MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 16 2018, 10:36 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Otto Sutton, July 16, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1712-CR-2916 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1504-F2-13642
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 1 of 32 Case Summary and Issues [1] Following a jury trial, Otto Sutton was found guilty of dealing in a narcotic
drug and dealing in cocaine, both Level 2 felonies, and possession of a narcotic
drug and possession of cocaine, both Level 4 felonies. The trial court entered
judgments of conviction on all four counts. In the second phase of the
bifurcated trial, Sutton waived his right to a jury and the court found Sutton to
be an habitual offender. At sentencing, the trial court merged the two counts of
possession with the two counts of dealing and sentenced Sutton to a total of
twenty-five years, with five years suspended to probation.
[2] Sutton now appeals, raising four issues for our review which we restate as: (1)
whether a patdown search of Sutton violated the Fourth Amendment of the
United States Constitution or Article 1, Section 11, of the Indiana Constitution;
(2) whether jury instructions which failed to inform the jury that it must find
there was evidence of intent to deliver in addition to the weight of the drugs
amounted to fundamental error; (3) whether there was sufficient evidence that
Sutton was an habitual offender; and (4) whether the trial court erred when it
merged the counts of possession with the counts of dealing without vacating the
formal judgments of conviction. Concluding the patdown search was a
reasonable Terry frisk, the jury instructions did not rise to the level of
fundamental error, there was sufficient evidence that Sutton was an habitual
offender, and the trial court erred when it merged both counts of possession
with both counts of dealing without vacating the formal judgments of
conviction, we affirm in part, reverse in part, and remand.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 2 of 32 Facts and Procedural History 1
[3] On April 16, 2015, Brady Ball, a canine officer with the Indianapolis
Metropolitan Police Department (“IMPD”), received a telephone call from Eric
Jensen, an agent with the Bureau of Alcohol, Tobacco, and Firearms, regarding
an ongoing narcotics investigation. Officer Ball was familiar with Agent Jensen
from their work together on multi-jurisdictional task forces some ten years
prior. Agent Jensen informed Officer Ball that he had “fresh” information that
Sutton was in the area of 40th Street and Arlington Avenue traveling in a “red
tow truck” and in possession of “a large amount of narcotics and a firearm.”
Transcript, Volume 2 at 66. Agent Jensen urged Officer Ball to “get up there as
soon as possible” because Sutton “was there at that point in time.” Id.
[4] Officer Ball had arrested Sutton “in [the] middle 2000s” for a drug offense and
had contact with him on “at least two other occasions” where Sutton was
arrested in connection with a narcotics investigation, resisting law enforcement,
and “an investigation with a gun.” Id. at 66-67. After speaking with Agent
Jenson, Officer Ball “did a couple of computer checks on Mr. Sutton to look at
the case reports. I pulled up what I think was a photo that’s in the system of
Mr. Sutton and then I headed up to the area around 40th and Arlington.” Id. at
68.
1 We heard oral argument in Indianapolis, Indiana, at the Jewish Community Center on June 21, 2018. We thank the members of the Jewish Community Center and our hosts, Ken Newton and Lev Rothenberg, for their generous hospitality and commend counsel for their skilled and informative oral advocacy.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 3 of 32 [5] Almost immediately upon arriving in the area described by Agent Jensen,
Officer Ball located a red tow truck and began observing the vehicle. As Officer
Ball approached, he noticed “extremely excessive” window tinting and a lack of
identifying markers required on tow trucks such as a name and phone number,
a Department of Transportation (“DOT”) number, and a license plate. Id. at
70-71, 86. Officer Ball then began following the vehicle and noted that it
paused for an “inordinate amount of time” at a three-way intersection. Id. at
73. The vehicle eventually displayed a turn signal and made a right-hand turn,
but only after Officer Ball used his air horn. At this point, having observed the
passenger side of the vehicle and confirming that the vehicle had a “full tint
job,” and still unable to locate identifying markings, a DOT number, or a
license plate, Officer Ball activated his emergency lights and attempted to
conduct a traffic stop. Id. at 77.
[6] Despite Officer Ball’s use of emergency lights and repeated activation of the
car’s siren, the tow truck continued westbound for a block and turned
northbound before eventually coming to a stop after a short distance in the
“middle of the road,” which “blocked a driveway and . . . blocked the entire
street.” Id. at 79. Officer Ball used his PA system to instruct the driver of the
vehicle to move to a spot about twenty-five yards away and pull over. Officer
Ball later testified that drivers who refuse to stop often “either . . . are going to
flee or they want to get a position or a place that’s more beneficial to them.” Id.
at 81. As the vehicle complied, Officer Ball noticed a group of three adult
females and “some children and maybe some teenagers” that were walking
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 4 of 32 toward the tow truck. Id. “[P]eople [were] really paying close attention from
that driveway that he pulled in front of that were very focused on the red tow
truck and now me.” Id. at 81-82. Fearing a “distinct officer safety
disadvantage,” Officer Ball requested back-up before stepping out of his vehicle
and addressing the three women who had approached the tow truck. Officer
Ball asked, “do you know this dude, or words to that effect,” and two of the
girls said no, but one said, “yeah, we know him.” Id. at 83.
[7] Officer Ball conducted a passenger-side approach of the vehicle; identified
Sutton, the sole occupant of the vehicle; and informed him why he had been
stopped. Sutton produced a temporary license plate and a driver’s license but
no registration for the vehicle, stating that it belonged to both him and his
father. Officer Ball instructed Sutton to exit the vehicle and sit on the bumper
of his police car while he ran the vehicle’s information and checked for
warrants. Despite repeated efforts, Officer Ball was unable to locate the
vehicle’s registration, and Sutton eventually admitted that the vehicle belonged
only to his father. Around this time, and approximately six minutes after the
initial traffic stop, back-up arrived in the form of IMPD Officer Jerome
Harrison. Officer Ball handed his ticket book to Harrison and instructed him to
write Sutton citations for several traffic infractions while he walked his canine
around Sutton’s vehicle before warning, “Watch this dude . . . he may run.” Id.
at 97.
[8] Officer Ball’s canine alerted to the presence of narcotics by the driver’s side
door of Sutton’s vehicle. When Officer Ball informed Sutton that the canine
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 5 of 32 had alerted to his vehicle, there was “a distinct change in Mr. Sutton’s
demeanor. He stood up.” Tr., Vol. 3 at 34. Officer Ball instructed Sutton to sit
back down and proceeded to inform Sutton of his Miranda rights. Sutton
crossed his arms and looked from Officer Ball to the people gathered nearby
and then back at Officer Ball. About halfway through Officer Ball’s recitation,
Sutton again attempted to stand up and was instructed to sit down. Officer Ball
then
started over again with Mr. Sutton, explaining to him that there was a dog hit, and I started going back into the Miranda warning. At that point, he stood up and it was, in my mind, two things were going to happen. It was either going to be fight or flight. I immediately told Mr. Sutton, huh-uh (no). Turn around and put your hands on the vehicle. At that point, with his hands on the vehicle, I conducted a pat[-]down of him.
Id. at 35-36.
[9] Officer Ball initiated the pat-down at the front waist of Sutton’s shorts and “felt
this hard lumpy . . . substance with kind of co[a]rse, rough edges, and
immediately, I knew it was drugs, most consistent with most likely cocaine in
bulk form.” Id. at 39. Officer Ball signaled to the nearby officers, and they
handcuffed Sutton. Once Officer Ball obtained plastic gloves, he lifted up
Sutton’s shirt and retrieved a purple Crown Royal bag containing 24.95 grams
of heroin, 11.87 grams of crack cocaine, and 5.58 grams of powder cocaine.
[10] Officer Ball then conducted a full search of Sutton’s person. This search
revealed $1,530 in Sutton’s pocket composed of “twenty-two $1 bills, nine $2
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 6 of 32 bills, twelve $5 bills, ten $10 bills, fifty-four $20 bills, one $50, and two $100
bills.” Id. at 45. Sutton threw up following the search. Officer Ball also
conducted a search of Sutton’s vehicle pursuant to his canine’s alert and seized
three cell phones—one smartphone and two flip phones—but no other
paraphernalia common to drug users.
[11] On April 21, 2015, the State charged Sutton with Count I, dealing in a narcotic
drug, a Level 2 felony; Count II, possession of a narcotic drug, a Level 4 felony;
Count III, dealing in cocaine, a Level 2 felony; Count IV, possession of
cocaine, a Level 4 felony; and alleged he was an habitual offender.
[12] Sutton filed a Motion to Suppress on May 16, 2017. The trial court conducted
a hearing and denied the Motion to Suppress, and Sutton’s case proceeded to
trial on September 19. There, the State presented the testimony of Officers Ball
and Harrison regarding the underlying traffic stop, Sutton’s arrest, and Sutton’s
appearance and condition on the date in question. IMPD Detective Jeremy
Ingram, a twenty-year veteran of the police force, also testified regarding
evidence of drug dealing and his fourteen years of experience dealing almost
exclusively with narcotics. He testified that he had conducted approximately
1,000 undercover purchases of illegal drugs including cocaine and opiates and
was familiar with the differing characteristics of drug dealers and drug users.
Detective Ingram explained that a user of cocaine, a stimulant, may suffer from
agitation while a user of heroin, a depressant, may be tired and quiet, and that
both types of users display, among other things, poor hygiene, loss of teeth,
body odor, and sunken eyes.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 7 of 32 [13] Detective Ingram testified that a distinguishing characteristic between addicts
and dealers is that dealers possess multiple types of drugs, and he emphasized
how unusual it would be for an addict to be in possession of such a large
amount of heroin or crack cocaine. He explained:
I’ve been in law enforcement for almost 20 years now, I have never met an addict that was addicted to two different substances at the same time that was taking heroin and cocaine. Some of them limit addiction so bad they don’t drink or smoke cigarettes. They don’t do - they, literally, just do that drug.
Id. at 114.
[14] Sutton possessed varying amounts of heroin, crack cocaine, and cocaine, in
accordance with their profitability. Id. at 125-26. He possessed heroin in the
largest quantity, slightly less than one ounce, which could cost $2,500 and from
which a dealer could make a profit of $3,500. Id. at 131. Sutton possessed less
than a half an ounce of crack cocaine, $700 worth, which could fetch a profit of
$300. Id. at 130. And finally, Sutton possessed less than a “quad” of cocaine,
the least profitable substance. Detective Ingram explained that drug dealers
often leave scales and drug-packaging material at a central location and that
dealers often have several cell phones, usually “cheap flip phone[s]” which are
referred to as “burner phone[s].” Id. at 124. Additionally, the $20 bill is the
most common denomination for drug dealing, and Sutton possessed $1,080
worth of $20 bills among the $1,580 found on his person. Id. at 127.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 8 of 32 [15] In final arguments, the State emphasized Sutton’s “variety store” type of
dealing. Id. at 174. The State relied upon Detective Ingram’s testimony to
prove intent to deal and pointed to evidence such as the variety and amounts of
drugs that Sutton possessed, his lack of addict characteristics, and his
possession of three cell phones. The jury found Sutton guilty of all charges and
the trial court orally entered judgments of conviction on all four counts.
[16] Sutton waived his right to trial by jury in the habitual offender phase of the trial.
The State produced certified documents regarding two prior felony convictions,
and the trial court found Sutton was an habitual offender.
[17] At sentencing on November 27, 2017, the trial court recognized double
jeopardy implications and merged the two counts of possession with the two
counts of dealing. The trial court then sentenced Sutton to an aggregate
sentence of twenty years to be served in the Indiana Department of Correction
and five years suspended to probation. Sutton now appeals.
Discussion and Decision I. Search and Seizure A. Standard of Review [18] Sutton frames this issue as an appeal of the denial of a motion to suppress, and
we review the denial of a motion to suppress in a manner similar to reviewing
the sufficiency of the evidence. Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006).
However, because Sutton is appealing from a completed trial, “the question of
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 9 of 32 whether the trial court erred in denying a motion to suppress is no longer
viable.” Cochran v. State, 843 N.E.2d 980, 982 (Ind. Ct. App. 2006), trans.
denied, cert. denied, 549 U.S. 1122 (2007). In such cases, “the appeal is best
framed as challenging the admission of evidence at trial.” Clark v. State, 994
N.E.2d 252, 259 (Ind. 2013).
The general admission of evidence at trial is a matter we leave to the discretion of the trial court. We review these determinations for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party’s substantial rights.
Id. at 259-60 (citations omitted).
[19] Before proceeding, we note that Sutton stipulated the underlying traffic stop
was valid, Tr., Vol. 2 at 245, and Sutton concedes the issue on appeal, Br. of
Appellant at 19. It is well settled that a police officer may stop a vehicle upon
observing a minor traffic violation, Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct.
App. 2010), and it is not unreasonable under either the federal or Indiana
constitutions for an officer to make a pretextual traffic stop so long as they
possess probable cause, Whren v. United States, 517 U.S. 806, 810 (1996); Mitchell
v. State, 745 N.E.2d 775, 787 (Ind. 2001).
B. Reasonable Suspicion that Sutton May be Armed and Dangerous [20] In the first of four issues presented for appeal, Sutton argues that Officer Ball
lacked reasonable suspicion to believe he may be armed and dangerous, thus
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 10 of 32 the pat-down search of his person violated the Fourth Amendment of the
United States Constitution and Article 1, Section 11 of the Indiana
Constitution. The State, in turn, argues Officer Ball possessed such reasonable
suspicion, or, alternatively, that the pat-down was a valid search incident to
arrest.
1. Fourth Amendment
[21] The Fourth Amendment of the United States Constitution states: “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.” U.S. Const. amend IV. A search conducted without a warrant is per
se unreasonable unless it falls within a “few specifically established and well-
delineated exceptions” to the warrant requirement. Katz v. United States, 389
U.S. 347, 357 (1967).
[22] One exception to the warrant requirement is a protective search for weapons
during a lawful stop, often called a Terry pat-down or Terry frisk. Terry v. Ohio,
392 U.S. 1, 26-27 (1968). When an officer does not have probable cause to
arrest a person, he or she may conduct a Terry pat-down only if two conditions
are met: (1) the stop must be lawful, Arizona v. Johnson, 555 U.S. 323, 326
(2009) (citing Terry, 392 U.S. at 26-27); and (2) the officer must “reasonably
suspect that the person stopped is armed and dangerous.” Id. A generalized
suspicion that an individual presents a threat to an officer’s safety is insufficient Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 11 of 32 to authorize a Terry frisk; rather, articulable facts must exist to support an
officer’s reasonable belief that the particular individual is armed and dangerous.
Tumblin v. State, 736 N.E.2d 317, 322 (Ind. Ct. App. 2000), trans. denied. “The
officer need not be absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27.
This court has routinely held that traffic stops for infractions, without more, are
insufficient to provide reasonable suspicion for a Terry frisk. See, e.g., State v.
Pease, 531 N.E.2d 1207, 1211 (Ind. Ct. App. 1988).
[23] In denying Sutton’s Motion to Suppress, the trial court found Officer Ball
possessed reasonable suspicion that Sutton may be armed and dangerous based
upon “numerous articulable facts” including: (1) the information from Agent
Jensen that Sutton was in possession of “a large amount of narcotics and a
firearm”; (2) Officer Ball’s own research and experience with Sutton; (3)
Sutton’s failure to immediately stop and the location and manner in which he
finally fully stopped; (4) Officer Ball’s canine alerting to Sutton’s driver’s side
door; and (5) Sutton’s change in demeanor, nervousness, and repeated attempts
to stand up. Appellant’s Appendix, Volume III at 103-04. The trial court then
concluded, “Based upon the totality of circumstances known to Officer Ball, he
had reasonable suspicion to conduct a patdown of [Sutton].” Id. at 104.
Additionally, the State produced testimony the traffic stop occurred in a “high
crime area.” Tr., Vol. 2 at 67.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 12 of 32 [24] On appeal, Sutton proceeds to analyze each of the foregoing factors
independently, before summarily concluding that none of the factors support a
finding of reasonable suspicion. This, however, is the flaw of Sutton’s
argument. Reasonable suspicion is determined under the totality of the
circumstances, not individual factors analyzed in isolation. U.S. v. Sokolow, 490
U.S. 1, 8 (1989). Indeed, even “a set of individually innocent facts, when
viewed in conjunction, can be sufficient to create reasonable suspicion,” Finger
v. State, 799 N.E.2d 528, 534 (Ind. 2003), and the facts presented here are more
than innocent. Officer Ball, who was familiar with Sutton and his criminal
history including an investigation involving a firearm, received a tip that Sutton
was in possession of firearm. When Officer Ball attempted to conduct a traffic
stop, Sutton refused to pull over and proceeded to an area where he knew
bystanders. Officer Ball’s canine alerted to the driver’s side door of Sutton’s
vehicle, Sutton’s demeanor changed when informed thereof, and Sutton
repeatedly attempted to stand up, despite Officer Ball’s orders to stay seated.
Officer Ball also observed a “fight or flight” response, and the traffic stop
occurred in a high crime area. Even assuming that none of these factors
constitute reasonable suspicion in isolation, under the totality of the
circumstances, we unhesitatingly conclude that Officer Ball possessed
reasonable suspicion to believe that Sutton may be armed and dangerous. See,
e.g., Patterson v. State, 958 N.E.2d 478, 486-88 (Ind. Ct. App. 2011) (Terry frisk
was justified during a traffic stop in a high crime area where officer detected
odor of marijuana). Therefore, the Fourth Amendment permits a Terry frisk of
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 13 of 32 Sutton’s person, and the trial court did not abuse its discretion by admitting
such evidence.
2. Article 1, Section 11
[25] Sutton also argues his search was unreasonable under Article 1, Section 11 of
the Indiana Constitution.
[26] Although Article 1, Section 11 of the Indiana Constitution shares the same
language as the Fourth Amendment, we interpret and apply the provision
independently. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). “Instead of
focusing on the defendant’s reasonable expectation of privacy, we focus on the
actions of the police officer, and employ a totality-of-the-circumstances test to
evaluate the reasonableness of the officer’s actions.” Duran v. State, 930 N.E.2d
10, 17 (Ind. 2010) (internal quotation marks omitted). It is the State’s burden to
show its intrusion was reasonable. Bulington, 802 N.E.2d at 438.
[27] To determine reasonableness, we consider: “1) the degree of concern, suspicion,
or knowledge that a violation has occurred, 2) the degree of intrusion the
method of the search or seizure imposes on the citizen’s ordinary activities, and
3) the extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361
(Ind. 2005).
a. Degree of Suspicion
[28] In evaluating the degree of suspicion that Sutton may be armed and dangerous,
we consider “the reasonableness of the officers’ assumptions, suspicions, or
beliefs based on the information available to them at the time.” Duran, 930 Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 14 of 32 N.E.2d at 18. Here, we rely on our discussion concerning reasonable suspicion
under the Fourth Amendment, see supra ¶¶ 21-24, and conclude that under the
totality of the circumstances, there was a high degree of suspicion that Sutton
may be armed and dangerous. Thus, this factor weighs in favor of the State.
b. Degree of Intrusion
[29] Having concluded Officer Ball possessed the requisite degree of suspicion to
conduct a pat-down of Sutton’s person for weapons, we turn to the degree of
intrusion caused by the pat-down. We evaluate the degree of intrusion from the
defendant’s point of view, Duran, 930 N.E.2d at 18, and consider “the nature of
the privacy interest upon which the search intrudes and the character of the
intrusion itself,” Chest v. State, 922 N.E.2d 621, 624 (Ind. Ct. App. 2009).
[30] Sutton argues that the pat-down was highly intrusive because it “focused on
[his] front waistband, which is of course a private and sensitive area of the
body.” Br. of Appellant at 27. Although we remain mindful that “[e]ven a
limited search of the outer clothing for weapons constitutes a severe, though
brief, intrusion upon cherished personal security,” Terry, 392 U.S. at 24-25, it is
well-known that individuals often conceal firearms along their waistband. The
record reveals the pat-down was quite ordinary, lasting only a matter of
seconds, conducted outside of Sutton’s clothing, and aimed at the area in which
many, if not most, firearms are concealed. Under the totality of these
circumstances, such intrusion was minimal. See J.R. v. State, 89 N.E.3d 408,
412 (Ind. Ct. App. 2017) (holding “ordinary pat-down search” did not violate
Article 1, Section 11), aff’d in relevant part, 2018 WL 3099178. Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 15 of 32 c. Extent of Law Enforcement Needs
[31] Finally, Sutton argues the extent of law enforcement needs was low because
there were three officers present and the bystanders were cooperative.
[32] “Indiana citizens are concerned not only with personal privacy but also with
safety, security, and protection from crime. . . . [R]easonableness under the
totality of circumstances may include consideration of police officer safety.”
Saffold v. State, 938 N.E.2d 837, 840 (Ind. Ct. App. 2010), trans. denied. As
noted above, Officer Ball had reasonable suspicion to believe Sutton may be
armed and dangerous. Sutton’s potential possession of a firearm creates an
officer safety issue, regardless of the number of officers on scene or the
bystanders’ level of cooperation. Therefore, this factor, too, weighs in favor of
the State. J.R., 89 N.E.3d at 412 (concluding “the extent of law enforcement
needs was great—Officer Snow needed to be able to conduct his investigation in
safety.”).
[33] All three Litchfield factors weigh in favor of the State and thus the search of
Sutton’s person for weapons was reasonable under Article 1, Section 11 of the
Indiana Constitution.
C. Abuse of Discretion [34] Under the totality of the circumstances, Officer Ball possessed reasonable
suspicion that Sutton may be armed and dangerous. Therefore, the Fourth
Amendment permitted Officer Ball to conduct a Terry frisk of Sutton’s person
and that search was reasonable under Article 1, Section 11. During the search,
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 16 of 32 Officer Ball detected what was “immediately” apparent to him to be illegal
narcotics. Tr., Vol. 3 at 39. Officers may seize contraband detected through
the officer’s sense of touch during the lawful execution of a Terry frisk.
Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). Accordingly, the trial court
did not abuse its discretion by admitting the evidence at trial.2
II. Jury Instructions [35] Next, Sutton argues the trial court committed fundamental error when
instructing the jury. Specifically, Sutton contends that the jury instructions
relating to the two dealing charges3 failed to inform the jury of an element of the
crimes—that there must be evidence of his intent to deal in addition to the
weight of the drugs. In turn, the State argues the language does not amount to
an element of the crime and that even if it does, such error does not rise to the
level of fundamental error. For the reasons set forth below, we conclude that
any error was harmless.
A. Standard of Review [36] The manner of instructing a jury is left to the sound discretion of the trial court.
Patton v. State, 837 N.E.2d 576, 579 (Ind. Ct. App. 2005). When reviewing the
jury instructions, we consider them as a whole and in reference to each other.
2 Because we conclude Officer Ball possessed reasonable suspicion that Sutton may be armed and dangerous, we need not address the State’s alternative argument regarding a search incident to arrest. 3 Count I, dealing in a narcotic drug, and Count III, dealing in cocaine, both Level 2 felonies.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 17 of 32 Id. Before a defendant is entitled to a reversal, he must affirmatively show that
the erroneous instruction prejudiced his substantial rights. Id. A defendant
who fails to object to a jury instruction at trial waives any challenge to that
instruction on appeal, unless giving the instruction was fundamental error.
Wright v. State, 730 N.E.2d 713, 716 (Ind. 2000).
[37] Sutton admits that he failed to object to the jury instructions at trial. Br. of
Appellant at 31. To avoid waiver, Sutton bears the burden of establishing that
the instructional errors constitute fundamental error.
Fundamental error is error that represents a blatant violation of basic principles rendering the trial unfair to the defendant, thereby depriving the defendant of fundamental due process. The error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. In determining whether a claimed error denies the defendant a fair trial, we consider whether the resulting harm or potential for harm is substantial. The element of harm is not shown by the fact that a defendant was ultimately convicted. Rather, it depends upon whether the defendant’s right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled.
Evans v. State, 81 N.E.3d 634, 637 (Ind. Ct. App. 2017) (citations omitted).
[38] Before proceeding, we note that Sutton’s claim is set forth under the Sixth
Amendment to the United States Constitution, and he does not make a separate
argument relating to the protections of Article 1, Section 13. In Davenport v.
State, we explained that:
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 18 of 32 Absent a clear invocation of a violation of rights under the Indiana Constitution and cogent supporting argument, we will assume that defendant raises only a claim under the United States Constitution and will analyze that claim as we would a federal constitutional claim.
734 N.E.2d 622, 624 n.2 (Ind. Ct. App. 2000) (citing Smith v. State, 689 N.E.2d
1238, 1240 n. 3 (Ind. 1997)), trans. denied. Because Sutton fails to separately
invoke or provide relevant authority relating to Article 1, Section 13, we review
Sutton’s claim only under the federal constitution.
B. Final Jury Instructions [39] Sutton was charged with Count I, dealing in a narcotic drug, and Count III,
dealing in cocaine, both under Indiana Code section 35-48-4-1(a)(2) (2014).
The version of the statute in effect on the date of the offense, April 16, 2015,
states:
(a) A person who: *** (2) possesses, with intent to: ... (C) deliver; ... cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II; commits dealing in cocaine or a narcotic drug, a Level 5 felony, except as provided in subsections (b) through (e). (b) A person may be convicted of an offense under subsection (a)(2) only if there is evidence in addition to the weight of Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 19 of 32 the drug that the person intended to manufacture, finance the manufacture of, deliver, or finance the delivery of the drug. *** (e) The offense is a Level 2 felony if: (1) the amount of the drug involved is at least ten (10) grams[.]
[40] At issue here is the requirement in subsection (b) that a person may “be
convicted of an offense . . . only if there is evidence in addition to the weight of
the drug.” Id. (emphasis added). This requirement did not appear in pre-2014
versions of Indiana Code section 35-48-4-1 and went into effect on July 1,
2014.4
[41] The trial court delivered the following jury instructions:
FINAL INSTRUCTION NO. 2
COUNT I
The Defendant is charged in Count I with the offense of Dealing in A Narcotic Drug, which is defined by statute as follows:
A person who knowingly or intentionally possesses with the intent to deliver heroin, pure or adulterated, a narcotic drug
4 Indiana Code section 35-48-4-1 was amended again in 2016. Subsection (b) now provides: (b) A person may be convicted of an offense under subsection (a)(2) only if: (1) there is evidence in addition to the weight of the drug that the person intended to manufacture, finance the manufacture of, deliver, or finance the delivery of the drug; or (2) the amount of the drug involved is at least twenty-eight (28) grams.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 20 of 32 classified in Schedule I of the Indiana Uniform Controlled Substances Act, in an amount of at least 10 grams commits Dealing in a Narcotic Drug.
To convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:
1. On or about April 16, 2015, 2. The Defendant, Otto Sutton, 3. Knowingly or intentionally 4. Possessed 5. With the intent to deliver 6. Heroin, pure or adulterated, 7. Said heroin having a weight of at least 10 grams.
If the State fails to prove each of these elements beyond a reasonable doubt, you must find the Defendant, Otto Sutton, not guilty of Dealing in a Narcotic Drug, as charged in Count I.
***
FINAL INSTRUCTION NO. 4
COUNT III
The Defendant is charged in Count III with the offense of Dealing in Cocaine, which is defined by statute as follows:
A person who knowingly or intentionally possesses with the intent to deliver cocaine, pure or adulterated, in an amount of at least 10 grams commits Dealing in Cocaine.
To convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 21 of 32 1. On or about April 16, 2015, 2. The Defendant, Otto Sutton, 3. Knowingly or intentionally 4. Possessed 5. With the intent to deliver 6. Cocaine, pure or adulterated, 7. Said cocaine having a weight of at least 10 grams.
If the State fails to prove each of these elements beyond a reasonable doubt, you must find the Defendant, Otto Sutton, not guilty of Dealing in Cocaine, as charged in Count III.
Appellant’s App., Vol. III at 134, 136.
[42] Sutton argues the omitted language constitutes an element of the offenses and
that its omission rises to the level of fundamental error. In turn, the State
argues that the language does not constitute an element, but merely a “minimal
guideline for evidentiary significance” or an “advisement,” and that even if it
does amount to an element, the error is not fundamental. Br. of Appellee at 38.
[43] “[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). In Neder v.
United States, 527 U.S. 1 (1999), the Supreme Court held that where a jury was
not instructed on an element of an offense, and thus there was no jury finding
on that element, the error may be harmless if it is “clear beyond a reasonable
doubt that a rational jury would have found the defendant guilty,” despite the
lack of an actual jury finding on that element. Id. at 18. In so holding,
however, the court cautioned that “safeguarding the jury guarantee will often
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 22 of 32 require that a reviewing court conduct a thorough examination of the record.
If, at the end of that examination, the court cannot conclude beyond a
reasonable doubt that the jury verdict would have been the same absent the
error . . . it should not find the error harmless.” Id. at 19.
[44] The omission or misstatement of an element is erroneous, but it will not rise to
the level of fundamental error “where the issue was not a central issue at trial,”
Winkleman v. State, 22 N.E.3d 844, 850 (Ind. Ct. App. 2014), trans. denied, or if
the other instructions, viewed as a whole, sufficiently inform the jury of the
State’s burden of proof, Ramsey v. State, 723 N.E.2d 869, 873 (Ind. 2000). Here,
despite Sutton’s urging, we need not decide whether the language of Indiana
Code section 35-48-4-1 (b) (2014) constitutes an element of the offenses, for
even if it does, we conclude its omission did not render a fair trial impossible.
Evans, 81 N.E.3d at 637.
[45] Sutton stipulated to the amounts of each substance found on his person and that
the substances were, in fact, cocaine and heroin. Thus, as the State noted in
closing argument, “[T]he only question you’re to determine is what was
[Sutton’s] intent.” Tr., Vol. 3 at 172. Although Sutton’s intent was clearly the
central issue for trial, whether there was “evidence in addition to the weight of
the drug[s],” Indiana Code section 35-48-4-1 (b) (2014), was not.
[46] Here, the State presented numerous pieces of evidence in addition to the weight
of the drugs. Detective Ingram testified that Sutton did not display the
distinguishing characteristics of a drug addict and that it would be highly
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 23 of 32 unusual, if not impossible, for an individual to be addicted to cocaine and
heroin at the same time. Sutton also possessed the drugs in accordance with
their profitability, a large amount of cash in accordance with the denominations
prevalent in drug transactions, and three cell phones, two of which were cheap
“burner phone[s]” common amongst drug dealers. Tr., Vol. 3 at 124. To the
extent Sutton now argues that he “strongly contested these non-weight factors”
and emphasizes the low weight of the State’s evidence, we find such arguments
unconvincing. Indiana Code section 35-48-4-1(b) (2014) provides simply that a
person may be convicted of such offense only if there is evidence “in addition to
the weight of the drug.” Under a plain reading of the statute, we see no reason
the evidence need be overwhelming. See State v. Thakar, 82 N.E.3d 257, 260
(Ind. 2017) (noting that where a statute is unambiguous, we “begin—and end—
our analysis” with the plain text).
[47] Moreover, when viewed as whole, the jury instructions correctly informed the
jury that the State was required to prove beyond a reasonable doubt that Sutton
knowingly or intentionally possessed the drugs with the intent to deliver. Both
instructions provide:
1. On or about April 16, 2015, 2. The Defendant, Otto Sutton, 3. Knowingly or intentionally 4. Possessed 5. With the intent to deliver 6. [Heroin / Cocaine], pure or adulterated, 7. Said [heroin / cocaine] having a weight of at least 10 grams.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 24 of 32 Appellant’s App., Vol. III at 134, 136 (emphasis added). Simply finding the
weight of the drugs exceeded ten grams—which was stipulated by Sutton—
would not have satisfied the tendered final jury instructions. Clearly then, with
the intent to deliver necessitated evidence in addition to the weight of the drugs.
Therefore, in context and viewed as whole, the jury instructions sufficiently
informed the jury of the State’s burden of proof. Ramsey, 723 N.E.2d at 873.
[48] We conclude that although the jury instructions should have included an
express statement to the jury that evidence of Sutton’s guilt was required in
addition to the weight of the drugs, because it is clear beyond a reasonable doubt
that a rational jury would have found Sutton guilty regardless, any such error
was harmless. Neder, 527 U.S. at 19.5
III. Habitual Offender Finding [49] Next, Sutton argues there was insufficient evidence that he was an habitual
offender.
[50] When reviewing a challenge to the sufficiency of the evidence, we look only to
the evidence most favorable to the judgment and the reasonable inferences that
can be drawn therefrom. Smith v. State, 21 N.E.3d 121, 124 (Ind. Ct. App.
5 Sutton also argues that because the omitted language constituted a fact that increases the penalty for the crime, such fact must have been submitted to the jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). However, Sutton raised this argument for the first time in oral argument and “issues are waived when raised for the first time at oral argument.” Harris v. State, 76 N.E.3d 137, 140 (Ind. 2017).
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 25 of 32 2014). We neither reweigh the evidence nor judge the credibility of the
witnesses. Walls v. State, 993 N.E.2d 262, 266 (Ind. Ct. App. 2013), trans.
denied.
[51] The habitual offender statute provides, in relevant part:
(b) A person convicted of murder or of a Level 1 through Level 4 felony is a habitual offender if the state proves beyond a reasonable doubt that:
(1) the person has been convicted of two (2) prior unrelated felonies; and
(2) at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D felony.
Ind. Code § 35-50-2-8.
[52] For the State to prove beyond a reasonable doubt that a defendant is an habitual
offender:
Certified copies of judgments or commitments containing a defendant’s name or a similar name may be introduced to prove the commission of prior felonies. While there must be supporting evidence to identify the defendant as the person named in the documents, the evidence may be circumstantial. If the evidence yields logical and reasonable inferences from which the finder of fact may determine beyond a reasonable doubt that it was a defendant who was convicted of the prior felony, then a sufficient connection has been shown.
Hernandez v. State, 716 N.E.2d 948, 953 (Ind. 1999) (citations omitted).
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 26 of 32 [53] During the first phase of Sutton’s trial, the State established that Sutton was a
5’9” black male with brown eyes and a birth date of August 10, 1984. State’s
Exhibit 2, Exhibits at 20. Then, during the second phase of the trial, the State
produced certified copies of prior judgments for (1) dealing cocaine or a
narcotic drug, a Class B felony, under Cause Number 49G20-0911-FA-097171
(Cause # 171) in 2011, State’s Exhibit 8, Exhibits at 50; and, (2) resisting law
enforcement, a Class D felony, under Cause Number 49F09-0801-FD-013743
(Cause # 743) in 2008. State’s Exhibit 11, Exhibits at 61. The State produced
the following evidence:
[Cause # 171]
• Charging information with a matching cause number, the name “Otto Sutton a/k/a Trevis Stokes,” and the date of birth of “8/10/84” (State’s Exhibit 6)
• Plea agreement with a matching cause number and the name “Otto Sutton” (State’s Exhibit 7)
• Abstract of Judgment with a matching cause number and the name “Otto Sutton” (State’s Exhibit 8)
[Cause # 743]
• Charging information with a matching cause number, the name “Otto Sutton,” and the date of birth “08/10/1984” (State’s Exhibit 9)
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 27 of 32 • A plea agreement with the cause number “08013743,” the name “Otto Sutton,” and a date of June 25, 2008 (State’s Exhibit 10)
• Abstract of Judgment with a matching cause number, the name “Otto Sutton,” and a sentencing date of July 2, 2008 (State’s Exhibit 11)
Br. of Appellant at 39. Additionally, the charging information in Cause # 743
provided the defendant was a black male. State’s Exhibit 9, Exhibits at 53.
Sutton did not object to the admission of the State’s evidence. Still, on appeal,
Sutton argues the State failed to prove that he was the same Otto Sutton
identified in those documents.
[54] Sutton first alleges there are several “problems” with the State’s evidence: (1)
the only document with a date of birth in Cause #171 also has a “alternate
name”; and (2) the plea agreement in Cause #743 has a different cause number.
Id. These “problems,” however, are insignificant. Id. The “alternate name”
simply lists an alias, or an “a/k/a,” along with “Otto Sutton,” and the alleged
incorrect cause number reflects the correct cause number if the letters of the
cause number are omitted as the cause number is handwritten on the
document.6 State’s Exhibit 10, Exhibits at 59.
6 The cause number at issue is “49F090801FD013743” while the cause number on the plea agreement is “08013743” and was entered in Marion Superior Court, Criminal Division 9, the same court identified as the sentencing court in the matching abstract of judgment. State’s Exhibit 10-11, Exhibits at 59, 61.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 28 of 32 [55] Next, Sutton argues the State has at best shown that the person or persons with
the prior convictions have the same name and date of birth, citing a recent
decision by another panel of this court in Payne v. State for the proposition that
“a matching name and birth date, absent other identifying evidence, are not
sufficient to prove identity.” 96 N.E.3d 606, 612 (Ind. Ct. App. 2018), trans.
denied. In Payne, the State produced a certified record of a prior robbery
conviction with the same name and date of birth as the defendant and argued
that it had produced “additional evidence of Payne’s identity” in the form of
matching signatures on the plea agreement in the robbery and the signed
advisement of rights from the present case. Id. at 612. Because the signature
from the plea agreement had not been authenticated as belonging to Payne, we
held that such evidence was insufficient.
[56] Here, however, there was additional supporting evidence to identify the person
named in the documents as the defendant in the present case. Id. at 611.
Additional proof of identify may consist of circumstantial evidence, and a
sufficient connection between the documents and the defendant is made if the
evidence yields logical and reasonable inferences from which the trier of fact
may determine it was indeed the defendant who was convicted of the alleged
felonies. Baxter v. State, 522 N.E.2d 362, 365 (Ind. 1988). In addition to
evidence of Sutton’s unique name and identification as a black male with the
date of birth of August 10, 1984, there was also testimony that Officer Ball
recognized Sutton from, among other things, an arrest for resisting law
enforcement. Tr., Vol. 2 at 66. Where the habitual offender phase of these
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 29 of 32 proceedings was conducted as a bench trial and the trial court previously heard
such testimony, we conclude there was sufficient evidence to support Sutton’s
adjudication as an habitual offender.
IV. Merging of Convictions [57] Finally, Sutton argues that the trial court erred by merging Count II into Count
I, and Count IV into Count III, without vacating the formal judgments of
conviction because this constitutes double jeopardy. We agree.
[58] We review claims of double jeopardy violations de novo because it presents a
question of law. Cleary v. State, 23 N.E.3d 664, 668 (Ind. 2015).
[59] Because Count II, possession of a narcotic drug, includes all of the statutory
elements and evidence required to prove Count I, dealing in a narcotic drug,
and Count IV, possession of cocaine, includes all of the statutory elements
required to prove Count III, dealing in cocaine, entry of convictions for all four
counts violates the double jeopardy clauses of both the United States and
Indiana Constitutions. Richardson v. State, 717 N.E.2d 32, 50 (Ind. 1999).
Recognizing the double jeopardy implications, the trial court merged Count II
into Count I, and Count IV into Count III.
[60] In Kovats v. State, we held,
If a trial court does not formally enter a judgment of conviction on a jury verdict of guilty, then there is no requirement that the trial court vacate the “conviction,” and merger is appropriate. However, if the trial court does enter judgment of conviction on a
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 30 of 32 jury’s guilty verdict, then simply merging the offenses is insufficient and vacation of the offense is required.
982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (citations omitted).
[61] Here, the trial court orally entered judgment of conviction on Counts I, II, III,
and IV, immediately after the jury returned its verdict. Tr., Vol. 3 at 199. The
Chronological Case Summary (“CCS”) shows judgment was formally entered
for Counts I, II, III, and IV after the jury verdict on September 19, 2017.
Appellant’s App., Vol. II at 20-21. Then, at the sentencing hearing on
November 27, 2017, the trial court orally “merged” Count II with Count I, and
Count IV with Count III. Tr., Vol. 3 at 215. The CCS entry for the sentencing
hearing, sentencing order, and abstract of judgment state “Conviction Merged”
for Counts II and IV. Appellant’s App., Vol. II at 22, 24, 27.
[62] Sutton argues that Kovats requires a remand for the trial court to vacate his
convictions for Count II and Count IV, and the State concedes this case
“should be remanded for the limited purpose of issuing a corrected abstract of
judgment.” Br. of Appellee at 45. We agree, and we remand so that the trial
court may formally vacate Sutton’s convictions on Count II and Count IV and
correct the abstract of judgment accordingly.
Conclusion [63] For the reasons discussed at length above, we conclude the pat-down search
was a reasonable Terry frisk, the jury instructions did not rise to the level of
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 31 of 32 fundamental error, there was sufficient evidence that Sutton was an habitual
offender, and the trial court erred when it merged the counts of possession with
the counts of dealing without vacating the formal judgments of conviction. We
therefore affirm in part, reverse in part, and remand.
[64] Affirmed in part, reversed in part, and remanded.
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018 Page 32 of 32