MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 05 2016, 8:45 am regarded as precedent or cited before any 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 Susan E. Schultz Gregory F. Zoeller Corydon, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Matt D. Neace, February 5, 2016 Appellant-Defendant, Court of Appeals Case No. 31A01-1502-CR-84 v. Appeal from the Harrison Superior Court State of Indiana, The Honorable Curtis B. Eskew, Appellee-Plaintiff Special Judge Trial Court Cause No. 31D01-1304-FB-292
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 1 of 16 Case Summary and Issue [1] Following a jury trial, Matt Neace was convicted of possession of
methamphetamine as a Class D felony and possession of paraphernalia as a
Class A misdemeanor. Neace now appeals, raising two restated issues: (1)
whether the trial court committed fundamental error in admitting evidence in
violation of Indiana Evidence Rule 404(b), and (2) whether the State presented
sufficient evidence to support his conviction for possession of
methamphetamine. Concluding the trial court did not commit fundamental
error and the evidence is sufficient, we affirm.
Facts and Procedural History [2] In early April 2013, Indiana State Police Sergeant Paul Andry was conducting
an investigation involving Neace. During the investigation, Sergeant Andry
contacted Leah Ewen, who Sergeant Andry suspected had recently been in
contact with Neace. On April 17, Sergeant Andry and Ewen met at Ewen’s
place of employment. At the meeting, Ewen admitted to using
methamphetamine, providing prescription pills to Neace in exchange for
methamphetamine, purchasing pseudoephedrine and other supplies to assist
Neace in the manufacturing of methamphetamine, and witnessing Neace
manufacture methamphetamine. Ewen agreed to assist Sergeant Andry in
locating Neace.
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 2 of 16 [3] The next day, Ewen—at Sergeant Andry’s direction—began communicating
with Neace via text messaging. Ewen and Neace agreed Neace would provide
a “g” of what both Ewen and Sergeant Andry assumed would be
methamphetamine in exchange for Ewen providing prescription pills and a box
of pseudoephedrine. State’s Exhibit B-14. Ewen and Neace further agreed to
meet at a Family Dollar in New Salisbury, Indiana.
[4] Prior to the exchange, Sergeant Andry searched Ewen’s vehicle and Indiana
State Police Trooper Katrina Smith searched Ewen’s person. No cash or
methamphetamine was discovered in Ewen’s vehicle or on Ewen’s person.
Sergeant Andry explained the plan: “The plan was for [Ewen] to, whenever
Matt got in the car with her, was for her to tell him that the pills and the box of
pseudoephedrine was [sic] in the trunk.” Transcript at 187. Once the pair
exited the vehicle, the police would surround the vehicle and arrest Neace.
[5] After the search, Ewen followed Sergeant Andry to the Family Dollar. The trip
to the Family Dollar took two minutes and Sergeant Andry never lost sight of
Ewen or her vehicle. Upon arrival, Ewen backed the car into a parking spot on
the side of the store as instructed by Sergeant Andry. As they waited, Ewen
recognized Neace drive past the Family Dollar in a green vehicle. Ewen
notified Sergeant Andry, and Sergeant Andry then witnessed the green vehicle
“park next to a silver Escalade that was parked at the Dairy Dip[,]” which was
an ice cream shop near the Family Dollar. A male exited the green vehicle and
entered the Escalade. The Escalade then drove to the Family Dollar and
parked next to Ewen. The police observed Neace exit the Escalade and sit in
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 3 of 16 the front passenger seat of Ewen’s vehicle. Thereafter, both Neace and Ewen
exited the vehicle and approached the vehicle’s trunk. At that point, the police
moved in and arrested Neace. The police discovered a bag of
methamphetamine and thirty dollars in cash in the vehicle’s cup holder, and in
Neace’s pocket, a spoon with residue. Police concluded the spoon was
“consistent with drug paraphernalia used to heat up a drug then use it with a
hypodermic needle.” Id. at 121. Afterwards, Sergeant Andry spoke to the
occupants in the green vehicle, who were identified as Amber Collier and Sarah
Bright. They stated they had seen Neace in possession of methamphetamine
much earlier in the day, but they did not know whether he possessed
methamphetamine when he met with Ewen.
[6] The State charged Neace with Count I dealing in methamphetamine, a Class B
felony; Count II possession of methamphetamine, a Class D felony; Count III
possession of paraphernalia, a Class A misdemeanor; and Count IV visiting a
common nuisance, a Class B misdemeanor.1 The State also charged Neace
with being an habitual offender. The State subsequently filed a “Notice to
Introduce 404(b) Evidence,” stating it believed Ewen would testify Neace sold
methamphetamine by way of exchanging methamphetamine for
pseudoephedrine. In addition, the State believed Sergeant Andry would testify
he sought Neace’s whereabouts because Neace had a warrant out for his arrest
1 The State dismissed Count IV before trial. In addition, the State later dismissed the habitual offender enhancement.
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 4 of 16 and because Sergeant Andry received information that Neace was
manufacturing and/or selling methamphetamine. Neace filed a motion in
limine to exclude evidence of Neace’s prior alleged misconduct, including his
criminal history, prior arrests, and warrants issued under other cause numbers.
At the hearing on Neace’s motion, the State explained it did not intend to
introduce evidence of Neace’s criminal history, prior arrests, and warrants
issued under other cause numbers unless necessary for rebuttal purposes. The
trial court granted Neace’s motion in that regard.
[7] At trial, the State called several witnesses, including Sergeant Andry and Ewen.
At the conclusion of evidence, the jury found Neace not guilty of dealing in
methamphetamine, but guilty of possession of methamphetamine and
possession of paraphernalia. This appeal ensued.
Discussion and Decision I. Admission of Evidence A. Standard of Review [8] A trial court has broad discretion in ruling on the admissibility of evidence, and
on appeal, we will only disturb the ruling if it appears the trial court abused its
discretion. Ealy v. State, 685 N.E.2d 1047, 1049-50 (Ind. 1997). “To preserve
an issue regarding the admission of evidence for appeal, the complaining party
must have made a contemporaneous objection to the introduction of the
evidence at trial.” Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct. App. 2002),
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 5 of 16 trans. denied. Here, Neace concedes he did not preserve the alleged error for
review because he failed to object to the evidence at the time it was offered.
[9] In such circumstances, however, a reviewing court may disregard the
defendant’s waiver and reverse the defendant’s conviction if he has
demonstrated the existence of fundamental error. Purifoy v. State, 821 N.E.2d
409, 412 (Ind. Ct. App. 2005), trans. denied. “The ‘fundamental error’ rule is
extremely narrow, and applies only when the error constitutes a blatant
violation of basic principles, the harm or potential for harm is substantial, and
the resulting error denies the defendant fundamental due process.” Id. In other
words, the fundamental error rule requires a defendant “show greater prejudice
than ordinary reversible error because no objection has been made.” Id.
B. Challenged Testimony [10] Neace argues the trial court committed fundamental error in allowing the State
to elicit testimony from Ewen and Sergeant Andry in violation of Indiana
Evidence Rule 404(b). “Evidence Rule 404(b) specifically bars the admission of
evidence of other crimes, wrongs, or bad acts allegedly committed by the
defendant to prove the defendant’s character, and forbids the use of this kind of
evidence to show that the defendant acted in a manner consistent with that
character.” Wilhelmus v. State, 824 N.E.2d 405, 414 (Ind. Ct. App. 2005). At
trial, the State called Ewen as its first witness. Ewen testified on direct
examination she was originally interviewed by Sergeant Andry on April 17 as
to her alleged “crimes surrounding methamphetamine[.]” Tr. at 29. The State
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 6 of 16 did not elicit testimony pertaining to Neace’s alleged prior misconduct. In fact,
it seems the State specifically stopped Ewen from giving testimony that would
likely violate Rule 404(b):
[State:] And when [Sergeant Andry] questioned you, what did you do? [Ewen:] I told him the truth [State:] And what was the truth? [Ewen:] That I had pur -- [State:] Actually, I move to strike that question, Judge.
Id. at 30.
[11] On cross-examination, defense counsel also questioned Ewen about her
conversation with Sergeant Andry, but specifically asked Ewen what crimes she
confessed to Sergeant Andry. Ewen testified she told Sergeant Andry that she
previously assisted Neace in the manufacturing of methamphetamine, sold
Neace prescription pills, sold methamphetamine, and used methamphetamine.
Moreover, defense counsel asked Ewen if Neace was the only individual she
assisted in the manufacturing of methamphetamine, and Ewen stated, “Like in
this situation or at the time period, yes, he was the only one.” Id. at 59.
Finally, defense counsel asked if Ewen used methamphetamine daily, and if so,
who she was receiving the methamphetamine from, to which Ewen responded,
“I was getting it from Matt only around that time.” Id. at 61. On re-direct,
Ewen testified she used methamphetamine with Neace “all the time” and the
pair got their methamphetamine because Neace “cooked it.” Id. at 70. In
addition, Ewen stated she would assist Neace in the manufacturing of
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 7 of 16 methamphetamine by purchasing the necessary supplies, and Neace cooked
methamphetamine “a couple of days before [he] got arrested.” Id. at 72.
[12] The State also called Sergeant Andry. On direct, Sergeant Andry testified, “So
when I interviewed [Ewen] she indicated to me that she had provided
pseudoephedrine to Matt Neace to cook meth with. And that she had been
present and had actually purchased other precursors and had been present with
him when me [sic] manufactured.” Id. at 202. On cross-examination, defense
counsel asked Sergeant Andry why the police did not set up any video or audio
surveillance to record the controlled buy. Sergeant Andry stated he did not
believe video or audio surveillance was necessary because Sergeant Andry knew
he was going to arrest Neace as soon as he saw him. We note this testimony
alludes to some prior alleged misconduct. In addition, the following exchange
occurred:
[Defense:] And what crime did she confess to you again? [Sergeant Andry:] She confessed to helping buy precursors, to helping Matt manufacture meth, . . . to purchasing Sudafed and some other chemicals for them to manufacture. All that was done in about a 2-month period right there. [Defense:] Did she admit to selling illegal pain pills? [Sergeant Andry:] Oh, yes. She did. She admitted to me -- One of the first things she was [sic] that Matt likes prescription pills and he will meet me because I’ll trade him prescription pills for meth. And so that was basically the whole premiss [sic] behind the meeting. [Defense:] Did you talk to anybody in the (inaudible) that Matt Neace had been in when he – before he got into Leah’s vehicle? [Sergeant Andry:] Yes, I did. [Defense:] Who did you speak with?
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 8 of 16 [Sergeant Andry:] I spoke with Amber Cole Collier and Sarah Bright, who were in the green Cadillac that we secured at the Dairy Dip across the road. [Defense:] Did either Sarah or Amber say they saw Matt Neace in possession of methamphetamine on April 18, 2013? [Sergeant Andry:] That’s a no. I’m thinking. [Defense:] That’s okay. [Sergeant Andry:] Actually, yes, but it was not in the afternoon. It would have been probably 1:00 or 2:00 o’clock that morning. That’s the . . . problem with the question.
Id. at 222-24.
[13] On appeal, Neace contends Ewen’s and Sergeant Andry’s testimony was
improper under Rule 404(b) because the testimony created “a substantial risk
that the jury would convict [Neace] solely on an inference of bad character and
that he had a tendency to commit crimes.” Appellant’s Brief at 9. Specifically,
Neace argues the State elicited testimony from Ewen indicating Neace
manufactured methamphetamine, used methamphetamine daily, and cooked
methamphetamine a few days before being arrested; and, in addition, the State
elicited testimony from Sergeant Andry indicating he intended to arrest Neace
as soon as he could locate him, Ewen assisted Neace in manufacturing
methamphetamine, and Neace possessed methamphetamine just prior to the
controlled buy. The State argues Neace is precluded from relief because Neace
invited any error in the admission of the evidence in his own cross-examination
of the witnesses, and even if Neace did not invite error, the error was not
fundamental. We agree with the State.
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 9 of 16 [14] It is well-settled that a defendant may “open the door” to the admission of
evidence otherwise inadmissible under the rules of evidence. See Jackson v.
State, 728 N.E.2d 147, 152 (Ind. 2000). Grounded in estoppel, the doctrine of
invited error provides “a party may not take advantage of an error that she
commits, invites, or which is the natural consequence of her own neglect or
misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). In other words,
“[d]efendants cannot complain of errors that they induced the trial court to
make; a party may not invite error and then rely on such error as a reason for
reversal, because error invited by the complaining party is not reversible error.”
Berry v. State, 574 N.E.2d 960, 963 (Ind. Ct. App. 1991), trans. denied.
[15] Here, although the State did elicit the testimony of which Neace complains, it
was on re-direct. Neace’s own attorney first elicited the vast majority of the
challenged testimony. For example, Ewen testified on cross-examination she
assisted Neace in the manufacturing of methamphetamine, sold Neace
prescription pills, and received methamphetamine from only Neace at the time
of the controlled buy. In addition, Sergeant Andry subsequently testified on
cross-examination he planned on arresting Neace as soon as he could locate
him, Ewen confessed to assisting Neace in the manufacturing of
methamphetamine, and Neace possessed methamphetamine earlier that day.
By eliciting such testimony, defense counsel opened the door for the State to
elicit testimony relevant to the same, including how often Ewen used
methamphetamine with Neace, how Ewen assisted Neace in the manufacturing
of methamphetamine, and how Ewen received the methamphetamine. At no
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 10 of 16 point did defense counsel object to, or move to strike, the testimony given by
Ewen or Sergeant Andry on the basis the testimony violated Rule 404(b).
[16] We note the record indicates Neace’s attorney attempted to take advantage of
testimony regarding Ewen’s methamphetamine use, while hoping to keep
testimony regarding Neace’s involvement in Ewen’s methamphetamine use
from the jury. See Appellant’s Br. at 12 (“Ewen’s credibility was at issue. Ewen
further admitted she had been a daily drug user . . . . She admitted to Sgt.
Andry that she committed numerous crimes . . . .”). Such a strategy invited
error and we will not allow Neace to now argue the error supports reversal. See
Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995).
II. Sufficiency of Evidence A. Standard of Review [17] When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Smart v.
State, 40 N.E.3d 963, 966 (Ind. Ct. App. 2015). Rather, we consider only the
evidence supporting the judgment and any reasonable inferences that can be
drawn from such evidence. Id. We will affirm a conviction unless “no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citation
omitted).
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 11 of 16 B. Possession of Methamphetamine [18] Neace contends the evidence is insufficient to support his conviction for
possession of methamphetamine. To prove Neace committed Class D felony
possession of methamphetamine, the State was required to prove Neace
knowingly or intentionally possessed methamphetamine without a prescription.
Ind. Code § 35-48-4-6.1(a) (2006). Although Neace argues the State charged
him with only actual possession and it failed to meet its burden, the State may
prove the defendant either actually or constructively possessed
methamphetamine. See, e.g., Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct.
App. 2009), trans. denied. Constructive possession occurs when somebody has
the intent and capability to maintain dominion and control over the item. Id.
Neace argues the evidence is insufficient because the only evidence showing
Neace possessed methamphetamine came from Ewen’s testimony, which
Neace claims was incredibly dubious. We disagree.
[19] First, Neace had the capability to maintain dominion and control over the
methamphetamine. “To prove capability, the State must show that the
defendant is able to reduce the contraband to her personal possession.” K.F. v
State, 961 N.E.2d 501, 510 (Ind. Ct. App. 2012), trans. denied. Here, Neace sat
in the front passenger seat, and the methamphetamine was discovered in the
vehicle’s central cup holder, within Neace’s reach. See Lampkins v. State, 682
N.E.2d 1268, 1275 (Ind. 1997) (holding a defendant had the capability to
maintain dominion and control over cocaine discovered in another person’s
vehicle, where the cocaine was found underneath the seat in which defendant
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 12 of 16 had been sitting and easily within the defendant’s reach), modified on reh’g on
other grounds, 685 N.E.2d 698 (Ind. 1997). Therefore, the evidence was
sufficient from which the jury could infer Neace had the capability to maintain
dominion and control over the methamphetamine.
[20] Second, Neace had the intent to maintain dominion and control over the
methamphetamine.
To prove the intent element, the State must demonstrate the defendant’s knowledge of the presence of the contraband. This knowledge may be inferred from either the exclusive dominion and control over the premises containing the contraband or, if the control is non-exclusive, evidence of additional circumstances that point to the defendant’s knowledge of the presence of the contraband. These additional circumstances may include incriminating statements by the defendant; flight or furtive gestures; defendant’s proximity to the contraband; the contraband being in plain view; or the location of the contraband in close proximity to items owned by the defendant.
K.F., 961 N.E.2d at 510 (citations omitted). Because Neace did not have
exclusive dominion and control over Ewen’s vehicle, we examine whether
additional circumstances point to Neace’s knowledge of the presence of
[21] After being contacted by Ewen, Neace texted Ewen stating he had “sum good”
and could give Ewen a “g” of what both Ewen and Sergeant Andry believed
would be methamphetamine. State’s Exhibits B-8, B-14. Prior to the exchange,
officers searched Ewen’s person and vehicle; no methamphetamine was
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 13 of 16 discovered. When Neace arrived at the Family Dollar, Officers witnessed
Neace sit in the front passenger seat of Ewen’s vehicle, which was in close
proximity to where the methamphetamine was discovered in plain view.
Sergeant Andry testified when Neace was arrested, Neace made incriminating
statements:
[State:] Did he say anything to you . . . . [Sergeant Andry:] Mr. Neace said to me, “I gave you a pretty good run.” And I said, -- [State:] Did he say anything about Leah to you? [Sergeant Andry:] Yes. [State:] And what did he say about Leah to you? [Sergeant Andry:] He said, “You wouldn’t have caught me without her.”
Tr. at 204. Although not an additional circumstance stated above, we note
when the police arrested Neace, Neace was in possession of drug paraphernalia.
The evidence is sufficient to show Neace had the intent to maintain dominion
and control over the methamphetamine.
[22] Finally, we note Ewen’s testimony that Neace placed the methamphetamine in
the vehicle’s cup holder was not incredibly dubious. The incredible dubiosity
rule allows a reviewing court to “impinge on the jury’s responsibility to judge
the credibility of the witnesses only when it has confronted inherently
improbable testimony . . . .” Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015)
(citations and internal quotation marks omitted). In other words, “[a]pplication
of this rule is rare and the standard to be applied is whether the testimony is so
incredibly dubious or inherently improbable that no reasonable person could
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 14 of 16 believe it.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). In Moore, our
supreme court described the appropriate scope of the rule, which requires: “1) a
sole testifying witness; 2) testimony that is inherently contradictory, equivocal,
or the result of coercion; and 3) a complete absence of circumstantial evidence.”
27 N.E.3d at 756. If all three factors are not present, application of the
incredible dubiosity rule is precluded. Id. at 758. As detailed in the paragraph
above, there is not a complete absence of circumstantial evidence in the present
case. Therefore, we conclude Ewen’s testimony is not so “inherently
improbable that no reasonable person could believe it.” Love, 761 N.E.2d at
810.
[23] Taking into account Ewen’s testimony, Neace’s proximity to
methamphetamine discovered in plain view, Neace’s possession of drug
paraphernalia, and Neace’s incriminating statements, we conclude the evidence
was sufficient to prove beyond a reasonable doubt Neace constructively
possessed methamphetamine.
Conclusion [24] We conclude the trial court did not commit fundamental error in admitting
Ewen’s and Sergeant Andry’s testimony mentioning Neace’s prior misconduct,
and the evidence was sufficient to support Neace’s conviction for possession of
methamphetamine. Accordingly, we affirm Neace’s convictions.
[25] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 15 of 16 Barnes, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016 Page 16 of 16