Frank M. Hancock v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 29, 2016
• Docket: 39A05-1511-CR-1973
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jul 29 2016, 8:31 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James C. Spencer Gregory F. Zoeller Dattilo Law Office Attorney General of Indiana Madison, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Frank M. Hancock, July 29, 2016 Appellant-Defendant, Court of Appeals Case No. 39A05-1511-CR-1973 v. Appeal from the Jefferson Superior Court State of Indiana, The Honorable Fred H. Hoying, Appellee-Plaintiff Senior Judge Trial Court Cause No. 39D01-1409-F6-840

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016 Page 1 of 10 Case Summary [1] Following a jury trial, Frank Hancock was convicted of Level 6 felony

possession of a narcotic drug and Class A misdemeanor possession of a

synthetic drug. In this direct appeal, Hancock argues that his trial counsel was

ineffective for failing to challenge the admission of the drugs at trial. He also

argues that the evidence is insufficient to support his conviction for possession

of a narcotic drug because the State failed to establish that the pill found on his

person contained a schedule II, rather than a schedule III, controlled substance.

Because we find that the drugs were admissible, Hancock’s ineffectiveness

claim fails. In addition, because the pill contained hydrocodone, a schedule II

controlled substance, the evidence is sufficient to support his conviction for

possession of a narcotic drug. We therefore affirm the trial court.

Facts and Procedural History [2] On September 28, 2014, Officer Aaron Watson of the Madison Police

Department saw Hancock driving a maroon Kia. Although Officer Watson

suspected that Hancock’s driving privileges were suspended, he did not stop

Hancock at that time because he was off-duty.

[3] The next day, September 29, 2014, while on duty, Officer Watson checked and

verified that Hancock’s driving privileges were suspended. According to Officer

Watson, around midnight he saw the same maroon Kia pass by, and he

followed it until it parked in front of the house Officer Watson knew to be

Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016 Page 2 of 10 Hancock’s residence. Officer Watson then stopped his police cruiser in the

middle of the street next to the Kia without activating the emergency lights.

Hancock exited the car from the driver’s door. Hancock then walked toward

Officer Watson, and the two of them met in the street, between the Kia and the

police cruiser.

[4] Officer Watson asked Hancock whether he had a valid driver’s license, and

Hancock said no. Officer Watson called dispatch and confirmed that Hancock

did not have a driver’s license. During this process, Officer Watson smelled

what he believed to be the odor of marijuana coming from Hancock and from

inside the Kia, so he asked Hancock for permission to search the car. Hancock

refused. Officer Watson then called a police canine unit. A drug-sniffing dog

arrived, sniffed the exterior of the car, and gave a positive alert for the presence

of drugs. At this point, Officer Watson arrested Hancock for driving while

suspended and put him in his patrol car. Officers then searched the car and

found two hand-rolled, partially burnt cigarettes. A field test was positive for

marijuana.

[5] Hancock was transported to the Jefferson County Jail and preliminarily booked

on charges of driving while suspended and possession of marijuana. During the

booking process, a white pill was found in Hancock’s right pocket.

[6] The Indiana State Police Laboratory later tested one of the cigarettes and the

white pill. The forensic scientist concluded that the cigarette contained XLR11,

Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016 Page 3 of 10 a synthetic cannabinoid commonly known as “spice.” Tr. p. 75-76.1 The

forensic scientist also concluded that the white pill contained hydrocodone.

[7] The State charged Hancock with Count I: Level 6 felony possession of a

narcotic drug (hydrocodone); Count II: Class A misdemeanor possession of a

synthetic drug (XLR11); and Count III: Class A misdemeanor driving while

suspended. At trial, Hancock testified that he was not driving before Officer

Watson pulled up in front of his house; rather, he walked from his house to the

car, turned the engine on, and sat in the driver’s seat to smoke.

[8] The jury found Hancock guilty of Counts I and II, but it was split three to three

on Count III, which was declared a mistrial. The court sentenced Hancock to

an aggregate term of two years, with one year executed and one year suspended

to supervised probation.

[9] Hancock now appeals.

Discussion and Decision [10] Hancock raises two issues. First, he argues that trial counsel was ineffective.

Second, he contends that the evidence is insufficient to support his conviction

for possession of a narcotic drug.

1 Synthetic cannabinoids are compounds designed to mimic the psychoactive properties of marijuana, first reported in the United States in 2008. Tiplick v. State, 43 N.E.3d 1259, 1261 (Ind. 2015).

Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016 Page 4 of 10 I. Ineffective Assistance of Trial Counsel [11] Hancock first contends that his trial counsel was ineffective because she failed

to challenge the admission of the spice and hydrocodone. We review claims of

ineffective assistance of trial counsel under the two-prong test articulated in

Strickland v. Washington, 466 U.S. 668 (1984). Pruitt v. State, 903 N.E.2d 899,

905-06 (Ind. 2009), reh’g denied. To satisfy the first prong, the defendant must

show that trial counsel’s performance fell below an objective standard of

reasonableness based on prevailing professional norms, “committing errors so

serious that the defendant did not have the counsel guaranteed by the Sixth

Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g denied.

To satisfy the second prong, the defendant must show prejudice: “a reasonable

probability that, but for counsel’s errors, the result of the proceeding would

have been different.” Id. A reasonable probability is one that is sufficient to

undermine confidence in the outcome. Overstreet v. State, 877 N.E.2d 144, 152

(Ind. 2007). In order to prove ineffective assistance of counsel due to failure to

challenge the admission of evidence, the defendant must demonstrate

“prejudicial failure to raise an objection that the trial court would have been

required to sustain. Otherwise stated, if the trial court overruled the objection,

it would have committed error, and the error would have had a prejudicial

effect.” Stephenson v. State, 864 N.E.2d 1022, 1035 (Ind. 2007), reh’g denied.

[12] Hancock argues that trial counsel should have challenged the discovery of the

spice and hydrocodone because his “original detainment” was illegal, thereby

invalidating the subsequent searches that led to the discovery of the spice and

Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016 Page 5 of 10 hydrocodone. Appellant’s Br. p. 8. An officer may conduct a brief

investigatory stop of an individual when, based on the totality of the

circumstances, the officer has a reasonable, articulable suspicion that criminal

activity is afoot. J.B. v. State, 30 N.E.3d 51, 55 (Ind. Ct. App. 2015). The

investigatory stop, also known as a Terry stop, is a lesser intrusion on the person

than an arrest and may include a request to see identification and inquiry

necessary to confirm or dispel the officer’s suspicions. Id. Reasonable

suspicion is determined on a case by case basis. Id. The reasonable-suspicion

requirement is met where the facts known to the officer at the moment of the

stop, together with the reasonable inferences from such facts, would cause an

ordinarily prudent person to believe criminal activity has occurred or is about to

occur. Id.

[13] Here, Officer Watson testified that he saw Hancock driving a maroon Kia the

day before the arrest. He also testified that the next day he verified that

Hancock’s driving privileges were suspended, observed the same maroon Kia

drive by, followed the Kia to where he knew Hancock lived, and saw Hancock

exit the car from the driver’s door. This testimony would support a conclusion

that Officer Watson had a reasonable suspicion that Hancock was driving

without a license and therefore properly stopped and questioned him.

[14] Hancock, however, claims that he was not actually driving before his encounter

with Officer Watson, that Officer Watson was lying when he testified

otherwise, and that the fact that the jury deadlocked on the driving-while-

suspended count means that the trial court would not have believed Officer

Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016 Page 6 of 10 Watson. There are several problems with Hancock’s position. First, we must

judge the decisions of Hancock’s trial counsel based on what she knew at the

time she made those decisions, not in hindsight based on the jury’s

deliberations. Second, even if the jury’s split vote on the driving-while-

suspended count were somehow relevant, we have no idea whether three jurors

voted not guilty because they disbelieved Officer Watson or for some other

reason. Third, and most importantly, even if the trial court had believed that

Officer Watson fabricated the story about following Hancock home, Hancock

does not dispute Officer Watson’s testimony that he was in the street outside

Hancock’s house when Hancock got out of the Kia and that he saw Hancock

emerge from the driver’s door of the car. These facts, taken together with the

fact that Officer Watson verified that Hancock’s driving privileges were

suspended, would have given Officer Watson reasonable suspicion that

Hancock committed driving while suspended and, therefore, authority to

conduct an investigatory stop. 2

[15] Once Officer Watson received confirmation from dispatch that Hancock did

not have a license, he had probable cause to arrest Watson for driving while

suspended. In addition, during the questioning, Officer Watson smelled the

odor of what he believed to be marijuana. When a trained and experienced

police officer detects the strong and distinctive odor of burnt marijuana coming

2 The State argued that the initial encounter was consensual; however, we do not address this issue because we find that Officer Watson had reasonable suspicion.

Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016 Page 7 of 10 from a vehicle, the officer has probable cause to search the vehicle. State v.

Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002), trans. denied. Accordingly,

the odor of what Officer Watson believed to be marijuana gave him probable

cause to search the car. The cigarettes found during the search, therefore, were

admissible.

[16] Finally, as Hancock was lawfully arrested, the search incident to arrest

conducted at the jail was also valid. See Garcia v. State, 47 N.E.3d 1196, 1200

(Ind. 2016) (“[O]nce a lawful arrest has been made, authorities may conduct a

‘full search’ of the arrestee for weapons or concealed evidence.” (quotation

omitted)). Accordingly, the white pill found in Hancock’s pocket during this

search was also admissible.

[17] Hancock has not established that the trial court would have been required to

grant a motion to suppress or sustain an objection regarding the spice and the

pill. Therefore, trial counsel was not ineffective for failing to raise such a

challenge. See Stephenson, 864 N.E.2d at 1035.

II. Sufficiency of the Evidence [18] Hancock next contends that the evidence is insufficient to support his

conviction for Level 6 felony possession of a narcotic drug, which requires a

schedule I or II drug. See Ind. Code § 35-48-4-6(a) (“A person who, without a

valid prescription . . ., knowingly or intentionally possesses . . . a narcotic drug

(pure or adulterated) classified in schedule I or II, commits possession of . . . a

narcotic drug, a Level 6 felony.”). Although Hancock concedes that

Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016 Page 8 of 10 hydrocodone is a schedule II drug, he claims that because the pill found in his

possession contained hydrocodone and acetaminophen, it may have been “a

Schedule III controlled substance[] according to I.C. 35-48-2-8.” Appellant’s

Br. p. 15.

[19] At trial, a forensic scientist with the Indiana State Police Laboratory testified

that the pill contained “dihydrocodeinone or hydrocodone” plus

“acetaminophen.” Tr. p. 76 (emphasis added). The scientist then clarified that

the pill contained “hydrocodone,” an opiate derivative. Id.; see also id. at 82

(confirming that the pill “tested positive for the presence of hydrocodone”). At

the time of the offenses in this case, “hydrocodone” was listed as a schedule II

drug. See Ind. Code Ann. § 35-48-2-6(b)(1)(K) (West 2012). Also at the time of

the offenses, “dihydrocodeinone,” “with one (1) or more active nonnarcotic

ingredients in recognized therapeutic amounts,” was listed as a schedule III

drug. Ind. Code Ann. § 35-48-2-8(e)(4) (West 2012). Notably, schedule III did

not list hydrocodone. Because schedule II listed hydrocodone—regardless of

whether it was combined with another nonnarcotic ingredient3—and schedule

III did not list hydrocodone, we conclude that the evidence is sufficient to

support Hancock’s conviction for Level 6 felony possession of a narcotic drug

for possessing hydrocodone, a schedule II drug.

3 Effective April 23, 2015, Section 35-48-2-6 was amended to include both “hydrocodone” and “any hydrocodone combination product” as a schedule II drug. See P.L. 56-2015.

Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016 Page 9 of 10 [20] Affirmed.

Barnes, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016 Page 10 of 10