MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 31 2018, 8:11 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michelle F. Kraus Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark C. Morr, August 31, 2018 Appellant-Defendant, Court of Appeals Case No. 57A03-1710-CR-2436 v. Appeal from the Noble Superior Court State of Indiana, The Honorable Robert E. Kirsch, Appellee-Plaintiff. Judge Trial Court Cause No. 57D01-1701-F2-1
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 1 of 16 Case Summary [1] Mark C. Morr (“Morr”) appeals his convictions for Dealing in
Methamphetamine, as a Level 2 felony,1 Dealing Marijuana, as a Level 5
felony,2 Maintaining a Common Nuisance, as a Level 6 felony,3 and Theft, as a
Level 6 felony,4 and his adjudication as a habitual offender.5 We affirm in part,
reverse in part, and remand for re-sentencing.
Issues [2] Morr presents three issues for review:
I. Whether the trial court improperly admitted evidence found during a search of Morr’s home because the search warrant was unsupported by probable cause;
II. Whether sufficient evidence supports the Theft conviction; and
III. Whether sufficient evidence supports the habitual offender adjudication.
1 Ind. Code § 35-48-4-1.1(e)(1). 2 I.C. § 35-48-4-10(d)(2)(A)(i). 3 I.C. § 35-45-1-5(c). 4 I.C. § 35-43-4-2(a)(1)(B)(i). 5 I.C. § 35-50-2-8(d).
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 2 of 16 Facts and Procedural History [3] Late in the evening of December 28, 2016, Kendallville Police Officer Matthew
Haber (“Officer Haber”) initiated a traffic stop after observing a vehicle turn
without a signal and then cross the fog line. The driver, Boni Coffelt (“Coffelt”)
was arrested upon the discovery of drug paraphernalia and methamphetamine
in the vehicle. Coffelt produced marijuana that had been hidden in her clothing
and expressed a willingness to cooperate with authorities. Ultimately, Coffelt
gave police statements identifying Morr as her drug supplier.
[4] During the early morning hours of December 29, 2016, law enforcement
officers obtained a warrant to search Morr’s residence and executed the
warrant. The search yielded large quantities of methamphetamine and
marijuana,6 sawed-off shotguns, numerous other weapons, drug paraphernalia,
and a ledger with names and amounts.
[5] On January 5, 2017, the State of Indiana charged Morr with Dealing in
Methamphetamine, Dealing Marijuana, Maintaining a Common Nuisance,
and Theft. On February 14, 2017, the State alleged that Morr is a habitual
offender. Morr filed a motion to suppress all evidence obtained in the
execution of the search warrant at his residence. On March 3, 2017, the trial
6 Officers recovered a “barrel of marijuana” and containers and packages amounting to at least eighteen pounds of suspected illicit drugs. (Tr. Vol. III, pg. 73.) However, a precise weight is unknown because forensic scientists stopped testing the subject materials after analyzing several pounds that testing revealed to be methamphetamine and marijuana.
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 3 of 16 court conducted an evidentiary hearing on the motion to suppress. At that
hearing, the trial court heard testimony from Officer Haber, Kendallville
Sheriff’s Department Sergeant Chris Moriarity (“Sergeant Moriarity”), Coffelt,
and Morr’s girlfriend, Samantha (“Sam”) Souder. The motion to suppress was
denied.
[6] On August 29, 2017, Morr was tried in a bench trial, convicted as charged, and
found to be a habitual offender. On September 22, 2017, the trial court
sentenced Morr to twenty-five years imprisonment for Dealing in
Methamphetamine, enhanced by eight years due to Morr’s possession of a
sawed-off shotgun, and further enhanced by twelve years due to his status as a
habitual offender. The trial court also imposed concurrent sentences of six
years for Dealing in Marijuana and two and one-half years each for
Maintaining a Common Nuisance and Theft, resulting in an aggregate sentence
of forty-five years. Morr now appeals.
Discussion and Decision Validity of Search Warrant [7] Morr asserts that the trial court should have granted his motion to suppress.
Because Morr appeals following trial, the issue is more properly framed as
whether the trial court abused its discretion by admitting the evidence obtained
in the execution of the search warrant. Carpenter v. State, 18 N.E.3d 998, 1001
(Ind. 2014). We review a trial court’s ruling on the admission or exclusion of
evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 4 of 16 1997). We reverse only where the decision is clearly against the logic and effect
of the facts and circumstances before the trial court. Joyner v. State, 678 N.E.2d
386, 390 (Ind. 1997).
[8] According to Morr, the trial court erred in admitting all items of incriminating
evidence found during the search of his home because the search warrant was
not supported by probable cause. He argues that the requesting officer’s
affidavit “failed to advise the Judge of material facts” and included “false and
misleading representations [made] with a reckless disregard for the truth,” and
that these deficiencies “thereby violated” his rights under the Fourth
Amendment to the United States Constitution and Article 1, Sec. 11 of the
Indiana Constitution. Appellant’s Brief at 11.
[9] More particularly, Morr complains that the affidavit, executed by Sergeant
Moriarity, did not include Officer Haber’s opinion that Coffelt had been
untruthful during her traffic stop or reveal Coffelt’s drug possession or her
stated motivation for cooperation, that is, she feared her child’s father would
deny her visitation if she was incarcerated. And Morr claims that the issuing
judge was misled by uncorroborated statements that Coffelt had been a reliable
informant in the past and had recently provided information against her penal
interests.
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 5 of 16 [10] When the sufficiency of a search warrant affidavit is challenged under the
Fourth Amendment,7 the reviewing court exercises its duty ‘“simply to ensure
that [there was] a substantial basis for finding probable cause.”’ Watkins v.
State, 85 N.E.3d 597, 603 (Ind. 2017) (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)). The reviewing court owes “great deference” to the initial probable-
cause determination, and will not invalidate warrants by interpreting probable
cause affidavits “in a hypertechnical, rather than a commonsense, manner.” Id.
(quotation omitted).
[11] Article 1, Section 11 of the Indiana Constitution contains language nearly
identical to that of the Fourth Amendment. The constitutional principles are
codified in Indiana Code Section 35-33-5-2, detailing the information to be
contained in an affidavit for a search warrant. Sparks v. State, 100 N.E.3d 715,
720-21 (Ind. Ct. App. 2018). When law enforcement seeks a warrant based
upon hearsay information, the affidavit must either:
(1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or
7 The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 6 of 16 (2) contain information that establishes that the totality of the circumstances corroborates the hearsay.
I.C. § 35-33-5-2(b). The trustworthiness of hearsay for proving probable cause
can be established where (1) the informant has given correct information in the
past, (2) independent police investigation corroborates the informant’s
statements, (3) some basis for the informant’s knowledge is demonstrated, or (4)
the informant predicts conduct or activity by the suspect that is not ordinarily
easily predicted; however, the list is non-exhaustive. Sparks, 100 N.E.3d at 721.
[12] Sergeant Moriarity’s affidavit provided, with respect to Coffelt’s representations
and reliability, the following:
1. At approximately 11:12 p.m. on December 28, 2016, officers with the Kendallville Police Department were conducting an investigation of an impaired driver identified as Bonnie [sic] Coffelt. While conducting the investigation Mrs. Coffelt informed officers of the location of large amounts of crystal methamphetamine.
2. Mrs. Coffelt reported that on Tuesday December 20, 2016 she was present at 11405 N. State Road 5, Ligonier, Noble County, Indiana when 7 pounds of crystal methamphetamine was delivered to a Mark Morr, whom resides at this residence.
3. Mrs. Coffelt further advised that Mr. Morr mad[e] a trip to California to obtain what she believed to be more narcotics and returned on or about December 26, 2016. Mrs. Coffelt stated that Mr. Morr has asked her to make the trips with him or for him to California with the intent to return with narcotics to the Noble County area. Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 7 of 16 4. Mrs. Coffelt reported that on Tuesday December 27th she was present and observed an “8 ball” (approx. 3.7 oz) of crystal meth at the above location.
5. Mrs. Coffelt stated that on Tuesday December 28, 2016 she was met by Mark Morr and a Sam Sauder, with 2 grams of methamphetamine at a motel in Ligonier where the 3 of them consumed the methamphetamine.
6. In the past week Mrs. Coffelt stated that she had purchased ¼ oz of Methamphetamine from the [sic] Mark Morr.
7. I have also been informed that there is an ongoing narcotics investigation into the residence and Mr. Morr, and that the investigation corroborates many of Mrs. Coffelt’s statements. Further, I believe the statements of Mrs. Coffelt to be truthful and credible because she has made these statements against her own penal interests, and because she has given credible information in the past in other narcotics investigations.
(State’s Ex. 1, pgs. 1-2).
[13] A probable cause affidavit must include “material facts” known to law
enforcement. Ware v. State, 859 N.E.2d 708, 718 (Ind. Ct. App. 2007), trans.
denied. “The typical formulation of [omitted] ‘material’ facts is that they cast
doubt on the existence of probable cause.” Query v. State, 745 N.E.2d 769, 772
(Ind. 2001). Although it may not be practical to include all information related
to an investigation in a probable cause affidavit, “the best course for police to
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 8 of 16 follow is to include any information that could conceivably affect a probable
cause determination.” Ware, 859 N.E.2d at 719-20.
[14] When material information is omitted from a probable cause affidavit, such
omission will invalidate a warrant if (1) the police omitted facts with the intent
to make the affidavit misleading or with reckless disregard for whether it would
be misleading, and (2) the affidavit supplemented with the omitted information
would have been insufficient to support a finding of probable cause. Id. at 718.
It has been recognized that omissions from a probable cause affidavit are made
with reckless disregard “if an officer withholds a fact in his ken that ‘[a]ny
reasonable person would have known that this was the kind of thing the judge
would wish to know.’” Gerth v. State, 51 N.E.3d 368, 375 (Ind. Ct. App. 2016)
(quoting Wilson v. Russo, 212 F.3d 781, 788 (3rd Cir. 2000.).
[15] Morr argues that a reasonable jurist would have desired to know information
such as: Coffelt had made furtive movements when the traffic stop was
initiated, she produced marijuana out of her pants, she was allegedly untruthful
in response to Officer Haber’s inquiries,8 and she offered to help only after her
arrest and in conjunction with expressing concern over her parental visitation
rights.
8 Officer Haber had included in his police report his suspicion that Coffelt had given untruthful responses to some of his inquiries during the traffic stop.
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 9 of 16 [16] The text of the affidavit plainly indicates that Coffelt was a drug user
apprehended upon suspicion of driving while impaired. A reasonable jurist
would likely infer that Coffelt was in legal jeopardy and highly motivated to
escape the consequences of her actions. Indeed, at the suppression hearing,
Officer Haber testified that he did not relay his opinion of Coffelt’s veracity to
Sergeant Moriarity because it is “common knowledge” that drug users lie when
questioned about their activities. (Tr. Vol. II, pg. 45.) Officer Haber explained
that he had transferred Coffelt to Sergeant Moriarity to make a formal
statement and “told what was important” to Sergeant Moriarity. (Id. at 44.)
He did not address Coffelt’s conduct during the traffic stop or her expressed
parental concerns. Although the affidavit did not include all details known of
Coffelt’s background and current circumstances, the affidavit did not portray
her as a concerned citizen who provided information without personal
motivation.9 Morr has made no showing that Sergeant Moriarity omitted a fact
with intent to mislead or with reckless regard or that an affidavit supplemented
with the additional information would have been inadequate.
[17] Beyond challenging the omission of facts, Morr challenges the inclusion of
others. He claims that Sergeant Moriarity made false statements by averring
that Coffelt had provided credible information in the past and by describing
9 There are two general categories of informants: professional informants and cooperative citizens. Clifford v. State, 474 N.E.2d 963, 969 (Ind. 1985). An eyewitness or crime victims may be considered presumptively reliable unless circumstances exist which call into question their credibility. See Pawloski v. State, 269 Ind. 350, 380 N.E.2d 1230, 1232-33 (1978).
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 10 of 16 criminal activity alleged by Coffelt without attempting to corroborate the
allegations. A warrant issued by a trial judge or magistrate is presumptively
valid; thus, when a defendant claims that the search warrant contained
information known to be false, he bears the burden of showing that the relevant
matter expressed in the affidavit was untrue. Brock v. State, 540 N.E.2d 1236,
1239 (Ind. 1989). In reviewing the question, we do not weigh the evidence nor
judge the credibility of witnesses, as these functions are entrusted to the trial
court. Id.
[18] Citing Gerth v. State, 51 N.E.3d at 373, Morr argues that the statement of
Coffelt’s past provision of information is an example of a “bare bones” or
“generic” representation generally regarded as insufficient to establish an
informant’s credibility. However, Morr concedes that Coffelt and her husband
had in the past worked with law enforcement officers assigned to investigate
illegal drug activity. He points to one officer’s assessment that Coffelt’s
husband had been the more valuable informant and the officer had evaluated
some of Coffelt’s information with skepticism. Morr’s argument in this regard
presents a classic request for reweighing of evidence, an invitation we reject.
Brock, 540 N.E.2d at 1239.
[19] Morr additionally suggests that Coffelt’s credibility was questionable because
she was caught “red-handed” with “drugs in her possession,” Appellant’s Brief
at 14, and did not provide statements that were “against her own penal
interests,” (State’s Ex. 1), as attested to by Sergeant Moriarity. Upon her arrest,
Coffelt extracted marijuana from inside her clothing and gave it to police.
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 11 of 16 Coffelt had been driving a vehicle in which methamphetamine was found.
Although Coffelt claimed that the methamphetamine belonged to her
passenger, it is apparent that she was proverbially “caught red-handed” with
contraband and the State possessed information to use against her.
Nevertheless, Coffelt provided additional self-incriminating information when
she admitted to purchasing methamphetamine from Morr in the recent past and
to using methamphetamine provided by Morr in a local hotel room. And
Sergeant Moriarity testified at the suppression hearing that Coffelt admitted to
selling methamphetamine for a profit on two prior occasions. In short, the trial
court had a basis upon which to find that Coffelt provided statements against
her penal interests; the weight to be assigned and the credibility determination
were within its purview. Brock, 540 N.E.2d at 1239.
[20] We acknowledge that, even where an informant has been proven reliable in the
past, the requirement for corroboration is not eliminated. Cartwright v. State, 26
N.E.3d 663, 669 (Ind. Ct. App. 2015). Here, however, the record does not
support Morr’s claim that the police simply relied upon Coffelt’s accusations
against Morr without any efforts to corroborate. Rather, the police conducted a
background check, verified Morr’s address, and discovered that Morr already
had “pending charges” related to narcotics activity. (Tr. Vol. II, pg. 76.) In
sum, Morr has failed to show that a false statement, or one made with reckless
disregard for the truth, was contained in the affidavit supporting the warrant to
search Morr’s residence.
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 12 of 16 [21] The search warrant was based on a practical, commonsense decision that there
was a fair probability that contraband or evidence of a crime would be found in
Morr’s residence. The warrant was supported by probable cause and the trial
court did not err in admitting the evidence obtained in its execution.
Sufficiency of the Evidence – Theft [22] Morr challenges the sufficiency of the evidence to support his conviction for
theft of firearms, contending that there was no evidence of his taking the items.
He also points out that police officers discovered that the guns were stolen only
after a serial numbers check and thus a person other than the thief would have
no reason to know that they were stolen.
[23] When reviewing the sufficiency of the evidence to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider the evidence supporting
the judgment and the reasonable inferences that can be drawn from such
evidence and will affirm if there is substantial evidence of probative value such
that a reasonable trier of fact could have concluded the defendant was guilty
beyond a reasonable doubt. Id.
[24] To convict Morr of Theft, as a Level 6 felony, as charged, the State was
required to prove beyond a reasonable doubt that Morr knowingly or
intentionally exerted unauthorized control over firearms of James Croy
(“Croy”), having a value of at least $750.00, with intent to deprive Croy of the
property’s use or value. The State is required to offer evidence to show that the
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 13 of 16 defendant either stole an item in question or knew that it was stolen. See Fortson
v. State, 919 N.E.2d 1136, 1143 (Ind. 2010) (“the mere unexplained possession
of recently stolen property standing alone does not automatically support a
conviction for theft.”)
[25] Sergeant Moriarity testified that a serial numbers search revealed that some of
the guns recovered in Morr’s residence had been reported as stolen. He
acknowledged that he did not know how long the guns had been located at
Morr’s property, who put them there, or who took them from the owner’s
location. Croy testified that twenty-two weapons had been stolen from his
residence; he examined photographs produced at trial and identified some of
the guns depicted as his property. Because the State did not produce evidence
from which the fact-finder could conclude beyond a reasonable doubt that Morr
stole the guns or knew them to be stolen, this conviction must be reversed for
insufficient evidence.
Habitual Offender Adjudication [26] Morr was alleged to be a habitual offender under Indiana Code Section 35-50-2-
8(d)(2) (2015), providing that a person convicted of a felony may have his or her
sentence enhanced if:
(1) the person has been convicted of three (3) prior unrelated felonies; and
(2) if the person is alleged to have committed a prior unrelated:
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 14 of 16 (A)Level 5 felony;
(B) Level 6 felony;
(C) Class C felony; or
(D)Class D felony;
Not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) and the time the person committed the current offense.
[27] Morr claims that his habitual offender adjudication must be reversed because
his adjudication rests on proof of convictions of three Class D felonies, one of
which was committed more than ten years prior to the instant offenses.
Specifically, the State adduced evidence that Morr had been convicted of
Criminal Recklessness, Intimidation, and Unlawful Sale of a Precursor, all as
Class D felonies. The judgment upon Morr’s plea of guilty to Criminal
Recklessness was entered in May of 1999 and he had served his sentence more
than ten years before the December 2016 crimes.
[28] In Johnson v. State, 87 N.E.3d 471 (Ind. 2017), our Indiana Supreme Court
interpreted the language under which Morr was alleged to be a habitual
offender.10 The Court found the statutory language to be “unambiguous” and
10 At the time of Morr’s trial, the parties were aware that the Johnson case was pending. The State pursued the habitual offender adjudication with the agreement that, if Johnson was decided to require each of the
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 15 of 16 declared: “the plain meaning of the 2015 version of subsection 8(d) requires that
each lower-level felony – namely a Level 5, Level 6, Class C, or Class D felony
– the State uses to establish subsection 8(d)(1) must meet the ten-year
requirement found in subsection 8(d)(2). Id. at 473. Because the State relied
upon a felony outside the ten-year requirement to establish Morr’s habitual
offender status, his adjudication must be reversed.
[29] In Coble v. State, 523 N.E.2d 228, 229 (Ind. 1988), our Supreme Court held that
when a habitual offender enhancement is vacated on appeal, the trial court has
the authority on remand to resentence the defendant on the underlying felony
to which the habitual enhancement had been attached. We remand to allow
the trial court the opportunity for resentencing.
Conclusion [30] Morr did not present evidence sufficient to overcome the presumption of the
search warrant’s validity. His conviction for Theft and his habitual offender
adjudication are vacated. Finally, we remand for resentencing.
[31] Affirmed in part, reversed in part, and remanded.
Mathias, J., and Bradford, J., concur.
prerequisite felonies to meet the ten-year requirement, the State would not oppose a request from Morr to vacate his adjudication. The language of the habitual offender statute has since been amended, in 2017, to provide “not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) for at least one (1) of the three (3) prior unrelated felonies and the time the person committed the current offense.” I.C. § 35-50-2-8(d).
Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018 Page 16 of 16