MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 18 2020, 5:37 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stacy R. Uliana Curtis T. Hill, Jr. Bargersville, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven D. Warren, Jr., June 18, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2256 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Wendy W. Davis, Judge Trial Court Cause No. 02D04-1810-F2-50
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 1 of 31 [1] Steven Warren (“Warren”) appeals his convictions for possession of cocaine
with intent to deal1 as a Level 2 felony and possession of marijuana2 as a Class
B misdemeanor. Warren raises the following issues for our review:
I. Whether the trial court abused its discretion by admitting evidence from a search conducted pursuant to a search warrant which was not supported by probable cause;
II. Whether the State presented sufficient evidence that he possessed the cocaine found in the residence;
III. Whether the trial court abused its discretion by denying his motion to continue; and
IV. Whether the trial court abused its discretion by allowing supplemental closing arguments when the jury reached an impasse.
[2] We affirm.
Facts and Procedural History [3] On August 21, 2018, Detective Jamie Masters (“Detective Masters”) of the Fort
Wayne Police Department Vice and Narcotics division received information
from a confidential informant (“CI”) that the CI could purchase crack cocaine
from a man named “Lil Steve.” The CI provided a phone number to reach Lil
1 See Ind. Code § 35-48-4-1. 2 See Ind. Code § 35-48-4-11.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 2 of 31 Steve. Tr. Vol. I at 7, 18. The CI contacted Lil Steve by phone and, as part of a
controlled buy, met him near the gas station of a Meijer grocery store, entered
the dark blue Audi A6, and exchanged $150 of controlled-buy money for what
was later identified as crack cocaine. Id. at 224-32; Tr. Vol. II at 73-75, 88;
State’s Exs. 1-3, 76. After the transaction, the police followed the vehicle to the
Dupont Hospital and observed a black male exit the vehicle. Tr. Vol. I at 246;
Tr. Vol. II at 187, 218.
[4] On August 24, 2018, the CI arranged a second controlled buy for $150 worth of
crack cocaine from the same seller. Tr. Vol. I at 239-40; Tr. Vol. II at 76-77.
Before the second buy, the CI was shown a photo array of six individuals and
was told the suspected dealer “may or may not be” pictured. The CI identified
Lil Steve as Warren. Tr. Vol. I at 242; Tr. Vol. II at 77. Warren drove the same
dark blue Audi A6, and the CI exchanged the controlled- buy funds for cocaine.
Tr. Vol. I at 244-46; Tr. Vol. II at 78. The vehicle was registered to Barbara
Hairston, Warren’s grandmother. Tr. Vol. I at 233. Law enforcement followed
the vehicle after the buy but lost sight of it in the “area of Jacobs and Edgehill”
in Fort Wayne. Id. at 246; Tr. Vol. II at 170. Following the second controlled
buy, officers received a warrant to obtain the geolocation information (“pings”)
for the phone number that the CI had contacted to arrange each controlled
buy.3 Tr. Vol. II at 9-10.
3 The phone number the CI used to contact Warren for each controlled buy was a prepaid phone. Tr. Vol. II at 67-68.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 3 of 31 [5] On September 13, 2018, a third controlled buy occurred. Warren drove the
same blue Audi. The CI entered the vehicle and exchanged the controlled buy
funds for what was later determined to be crack cocaine. Id. at 3-5. Law
enforcement noted that the phone’s pings were consistent with the phone
traveling from 2149 Edgehill Avenue (“Edgehill Avenue”) before the
transaction and after the transaction. Id. at 59, 80-81; Tr. Vol. III at 58-59.
Police attempted to follow the blue Audi after the transaction but were not able
to do so successfully. Tr. Vol. II at 5.
[6] On October 4, 2018, a fourth controlled buy occurred for another $150 worth of
crack cocaine. Tr. Vol. II at 8, 82. Before the transaction occurred, Fort Wayne
Police Department Vice and Narcotics Detective Shane Heath (“Detective
Heath”) conducted surveillance at Edgehill Avenue and observed Warren exit
the front door of the residence, check the mail, and return to the residence. Id.
at 12, 172-74. Detective Heath observed the same blue Audi used in each
previous controlled buy leave the garage of Edgehill Avenue approximately
twelve minutes later. Id at 174. Officers followed the Audi as it went to a
Kroger grocery store and then to the location of the controlled buy. Id. at 14,
126, 149.
[7] On October 15, 2018, a search warrant was issued for Edgehill Avenue in Fort
Wayne, Indiana outlining the four controlled drug buys that occurred on
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 4 of 31 August 21, 2018, August 24, 2018, September 13, 2018, and October 4, 2018. 4
Tr. Vol. I at 17; Appellant’s Conf. App. Vol. III at 133-36. Warren’s uncle, Rodney
Chapman, leased the residence at Edgehill Avenue, and law enforcement was
aware that Warren’s address was 1411 East Washington Blvd through
information obtained from a police database. Tr. Vol. II at 61; Tr. Vol. I at 16.
On the morning of October 19, 2018, law enforcement executed the search
warrant at Edgehill Avenue. Tr. Vol. I at 7. On that day, Warren was the sole
individual in the residence, and the dark blue Audi, which was used in each
controlled buy, was parked in the garage of the residence. Tr. Vol. II at 22-23.
Warren was wearing boxer shorts and a t-shirt and appeared to be coming from
the residence’s master bedroom at the time of the search. Id. at 100.
[8] Law enforcement conducted a search of the residence. Detective Masters
observed that the kitchen appeared to be the area of the residence where the
process of converting powder cocaine into crack cocaine occurred. Id. at 24-25.
Several boxes of baking soda, a blender, a razor blade with residue on it, and
numerous Pyrex measuring cups, were found scattered throughout the kitchen.
Id. at 24, 240-241; State’s Exs. 21, 23. In a kitchen drawer law enforcement
found a “larger amount of powder cocaine.” Tr. Vol. II at 24; State’s Ex. 24. In
another kitchen drawer, law enforcement found a handgun. Tr. Vol. II at 27,
4 The pings attributable to the phone number the CI used to arrange the controlled buys with Warren showed that 74.2% of the pings from that phone in Fort Wayne were from the Edgehill Avenue residence, and 11.9% of the phone’s pings were attributable to 1411 East Washington Blvd. Tr. Vol. III at 66. This information was not included in the search warrant.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 5 of 31 243. Marijuana and digital scales were found on top of the microwave. Id. at
27. A kitchen counter drawer contained gloves, a filter mask, and baggies. Id.
at 242. Detective Masters also found $283 on the counter to the left of the
refrigerator and a pink substance that was later determined to contain cocaine.
Id. at 24-25, 235. The scales and the microwave tested positive for cocaine
residue, although there was no drug paraphernalia found in the kitchen. Id. at
26, 239, 246. Detective Masters observed that the amount of drugs found in the
kitchen was “much more than a user amount.” Id. at 26.
[9] In the master bedroom, law enforcement found the phone that was used to
arrange the drug purchases, a second cell phone, a nine-millimeter handgun, a
digital scale, and marijuana paraphernalia. Id at 175-80; Tr. Vol. III at 67, 72-
73. The magazine of the nine-millimeter handgun had two partial latent
fingerprints, and testing showed the fingerprints were consistent with Warren’s
fingerprints. Tr. Vol. II at 247; Tr. Vol. III at 39, 42. The dresser in the master
bedroom contained Warren’s wallet and identification, $796 in currency, and a
personal check made out to Warren. Tr. Vol. II at 182; Tr. Vol. III at 2; State’s
Exs. 46-48. Warren’s identification listed his address as 1411 E. Washington
Blvd., Fort Wayne, IN. State’s Ex. 46. A shoebox located near a television in
the master bedroom contained a razor blade and nametag with Warren’s name.
Tr. Vol. II at 201-02; Tr. Vol. III at 3; State’s Exs. 49-51. In the closet of the
master bedroom, law enforcement uncovered a Fat Albert sweatshirt with
$6,351 in the pocket. Tr. Vo1. II at 180; Tr. Vol. III at 4; State’s Exs. 44-45.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 6 of 31 [10] In the second bedroom of the residence, law enforcement found a backpack
with 380.3 grams of marijuana, a leather jacket with $258 in currency, and
boxes for two handguns. Tr. Vo1. II at 41-43, Tr. Vol. III at 5-8, 10-11; State’s
Exs. 74-75. The search of the dining room revealed additional marijuana, a
grinder, rolling papers, and two rolling devices. Tr. Vol. II at 226-29. Law
enforcement also found a shipping label that listed Warren’s name and the
phone number used to arrange the controlled drug buys with the CI. Tr. Vo1. II
at 282-83; State’s Ex. 54.
[11] The search also yielded credit union receipts dated April 20, 2018 and October
18, 2018 with the name Warren on each receipt. Tr. Vol. II at 31-33; State’s Exs.
22, 29. The search uncovered other names on documents in the house, but law
enforcement did not recall finding any identifying information for any other
individual who may have used the residence. Tr. Vol. III at 177, 182.
[12] On October 25, 2018, the State charged Warren with: Count 1, possession of
cocaine with the intent to deal as a Level 2 felony; Counts 2-5, dealing in
cocaine, each as a Level 4 felony; and Count 6, possession of marijuana, as a
Class B misdemeanor. Appellant’s Conf. App. Vol. II at 17-27. On February 14,
2019, Warren filed a motion to suppress the evidence found in the search of
Edgehill Avenue. Id. at 76. The State filed its response on March 8, 2019. Id.
at 94. On April 22, 2019, Warren filed a supplemental memorandum in
support of his motion to suppress. Id. at 106-08. On that same day, the trial
court held a hearing on Warren’s motion to suppress and denied the motion.
Id. at 9, 111. Warren then filed a motion requesting the trial court certify the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 7 of 31 suppression order for an interlocutory appeal. The trial court denied the request
on April 30, 2019. Id. at 109-14.
[13] On August 21, 2019, the trial court began a jury trial. Id. at 13. On the day of
trial, Warren filed a “Motion to Dismiss, or in the Alternative, Continue Jury
Trial” due to belated discovery. The motion stated that the State provided a
198-page report to him on August 12, 2019 of the phone calls between
September 9, 2018 through October 9, 2018 from the phone number the CI had
used to arrange the controlled drug buys with Warren, and Warren’s counsel
had been unable to review the call detail report. Id. at 122-32. After hearing
argument from the parties, the trial court denied the motion and found that the
prosecutor’s failure to provide the report was inadvertent and that the
information in the call detail report was not exculpatory. Tr. Vol. I at 69, 71-72,
75. The trial court also found the State would be prejudiced because the CI was
in danger due to a different case unrelated to Warren and that Warren’s motion
“in some sort of fashion . . . is a stalling tactic” that was prejudicial to the
State’s case. Id. at 75.
[14] At trial, the trial court admitted the evidence from the search of Edgehill
Avenue over Warren’s objection, which restated his arguments from his motion
to suppress. Tr. Vol. II at 21-22.
[15] At the conclusion of the trial, the jury retired to deliberate, but after nearly six
hours of deliberations, the jury reported it was at an impasse on the intent
element of constructive possession. The trial court ordered the parties to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 8 of 31 provide supplemental argument on that issue. Tr. Vol. III at 248-49. Warren’s
counsel objected to providing supplemental argument, and, over the objection,
the trial court allowed the prosecutor and Warren’s counsel to give
supplemental argument. Id. at 249; Tr. Vol. IV at 1, 3-7.
[16] Following the supplemental argument, the jury found Warren guilty of Count 1
and Count 6 and acquitted him of Counts 2 through 5. Tr. Vol. IV at 8-9;
Appellant’s Conf. App. Vol. III at 55-61. On September 13, 2019, Warren was
sentenced on Count 1 to twenty-five years in the Department of Correction with
five years suspended and four years of probation and a concurrent sentence of
180 days on Count 6. Appellant’s Conf. App. Vol. II at 14. Warren now appeals.
Discussion and Decision
I. Admission of Evidence [17] Warren first challenges the admission of evidence gathered from the search of
Edgehill Avenue. Because Warren appeals from a completed trial, we review
the trial court’s evidentiary ruling for an abuse of discretion. See Grayson v.
State, 52 N.E.3d 24, 26 (Ind. Ct. App. 2016). An abuse of discretion occurs
only when admission of evidence is clearly against the logic and effect of the
facts and circumstances, and the error affects a party’s substantial rights. Clark
v. State, 994 N.E.2d 252, 260 (Ind. 2013). We will not reweigh the evidence,
and we resolve any conflicts in the evidence in favor of the trial court’s
ruling. J.G. v. State, 93 N.E.3d 1112, 1119 (Ind. Ct. App. 2018), trans. denied.
When the challenge to the trial court’s ruling is premised on a constitutional
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 9 of 31 violation, the issue is reviewed de novo because it raises a question of
law. Pinner v. State, 74 N.E.3d 226, 229 (Ind. 2017).
Probable Cause
[18] Warren asserts that the trial court abused its discretion when it admitted the
evidence from the search, because the search warrant issued for Edgehill
Avenue lacked probable cause in violation of the Fourth Amendment to the
United States Constitution and was unreasonable under Article I, Section 11 of
the Indiana Constitution. He maintains that the trial court’s finding of probable
cause is “inconsistent with this Court’s holdings in Merritt v. State, 803 N.E.2d
257 (Ind. Ct. App. 2004) and State v. Vance, 119 N.E.3d 626 (Ind. Ct. App.
2019)[,]” where this court held that the affidavits were not supported by
probable cause. Appellant’s Br. at 19.
[19] In response, the State points out that a properly conducted controlled buy has
“long been held to provide sufficient probable cause to search the location
where the buy occurred.” Appellee’s Br. at 18-19. The State distinguishes Merritt
and Vance by noting that the probable cause affidavit here indicated a stronger
connection between Warren, based on his involvement in the controlled buys,
and the location to be searched. In reply, Warren argues that the evidence
shows “a singular and transient presence at the residence” because the affidavit
did not indicate whether Warren rented, owned, or occasionally stayed at
Edgehill Avenue and that it did not allege how frequently the Audi was parked
at that residence or whether Warren used the address for another purpose.
Appellant’s Reply Br. at 8. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 10 of 31 [20] The Fourth Amendment to 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.
[21] “The fundamental purpose of the Fourth Amendment is to protect the
legitimate expectations of privacy that citizens possess in their persons, their
homes, and their belongings.” Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct. App.
2016) (internal quotation marks omitted). This protection has been extended to
the states through the Fourteenth Amendment to the United States
Constitution. Id. The text of Article I, Section 11 of the Indiana Constitution5
contains nearly identical language. State v. Spillers, 847 N.E.2d 949, 953 (Ind.
2006).
[22] Both the Fourth Amendment to the United States Constitution and Article I,
Section 11 of the Indiana Constitution require probable cause for the issuance
of a search warrant. Smith v. State, 982 N.E.2d 393, 404 (Ind. Ct. App.
5 Article I, Section 11 similarly provides as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 11 of 31 2013), trans. denied. For a valid warrant to issue, the police must set forth
probable cause to an issuing magistrate. Carter v. State, 105 N.E.3d 1121, 1127
(Ind. Ct. App. 2018), trans. denied. Probable cause is a “fluid concept incapable
of precise definition . . . [and] is to be decided based on the facts of each
case.” Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997). “[T]he central question
in a probable cause determination is whether the affidavit presents facts,
together with reasonable inferences, demonstrating a sufficient nexus between
the suspected criminal activity and the specific place to be searched.” Carter,
105 N.E.3d at 1128. “The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the circumstances set forth
in the affidavit . . . there is a fair probability that contraband or evidence of the
crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983)
[23] Warren disputes that Edgehill Avenue is his residence, and citing Merritt and
Vance, contends that the affidavit did not allege a sufficient connection between
him and the place to be searched because the affidavit alleges only the
information gathered from the October 4, 2018 controlled buy to link him to
Edgehill Avenue. Merritt and Vance are distinguishable. In Merritt, we rejected
a search warrant affidavit because it tied illegal drugs to a person who was
selling them but not to the place to be searched. 803 N.E.2d at 260-61. In that
case, the affidavit alleged only that “an unidentified black male” had been seen
at the place to be searched with what appeared to be illegal drugs. Id. Without
facts showing that the unidentified person with the drugs frequented, lived at, or
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 12 of 31 stored drugs at the place to be searched, there was no probable cause to believe
that evidence of a crime would be found there. Id.
[24] In Vance, a confidential informant involved in three “state-sponsored buys of
cocaine” contacted an individual described by law enforcement as the “Target”
who was alleged in the probable cause affidavit to be Dustin Vance (“Vance”).
119 N.E.3d at 628-29. We affirmed the trial court’s grant of Vance’s motion to
suppress the evidence found in the residence, explaining:
The key to the controlled buy is that the police are always in control of the situation. But the instant circumstances were not those of a previously-searched buyer entering a residence. Police did not maintain strict control in this alleged tri-level (buyer- dealer-source) transaction where the alleged middle-man, who was not searched and did not act as an agent of police, moved about on his own volition and police surveillance was interrupted. And although the cocaine ultimately produced would arguably have been “attributable to the target,” see id., the sole connection between Target and Vance’s residence, the premises to be searched, was that Target was seen leaving the residence. Viewing someone exit a residence would not lead a reasonable person to “believe that a search of those premises will uncover evidence of a crime.” Esquerdo, 640 N.E.2d at 1029. The search warrant, not supported by probable cause, was invalid under the Fourth Amendment.
Id. at 631.
[25] Here, unlike in Merritt and Vance, the search warrant shows a stronger
connection between Warren’s drug dealing and Edgehill Avenue. Unlike
Vance, there is no dispute that the controlled buys were anything other than
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 13 of 31 properly controlled buys, and the CI identified Warren after the first controlled
buy, providing law enforcement with an identifiable suspect. Moreover, during
each controlled buy, law enforcement maintained surveillance on the CI and,
unlike Vance, conducted both pre-buy and post-buy searches of the CI. Unlike
Merritt and its singular instance of drug activity, the information related to
Edgehill Avenue was obtained after law enforcement had conducted three
previous controlled buys. The affidavit also noted that at each controlled buy
the same dark blue Audi appeared and exchanged crack cocaine for the CI’s
controlled buy funds. Appellant’s Conf. App. Vol. III at 133-36.
[26] In concluding that the affidavit was supported by probable cause despite the
omission from the affidavit that Warren was not an owner or a lessee of
Edgehill Avenue, the trial court found:
I mean, it doesn’t matter what Spillman says. I mean, not that I don’t have faith in Spillman, but maybe he did live at [2149 Edgehill Avenue]. Maybe he’s got multiple homes. Maybe he is utilizing [2149 Edgehill Avenue] just to run the drugs, and you know, there is a variety of reason[s] so I don’t feel like omitting that from the affidavit was in anyway looking to - was what we categorize as omitted relevant information. I don’t think that the detectives were misleading this Court.
Tr. Vol. I at 55-56. The totality of the evidence surrounding the four controlled
buys, including (1) Warren’s identification by the CI after the first controlled
buy, (2) the use of the same dark blue Audi to conduct each controlled buy with
the CI, which was parked in the garage on the day the warrant was executed,
(3) Detective Heath’s observing Warren exit the residence, check the mail and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 14 of 31 return to the residence, and then leave from the garage in the dark blue Audi
before the October 4, 2018 controlled buy, and (4) the attempt by law
enforcement to track Warren after the October 4, 2018 controlled buy, show
that the affidavit was not lacking in probable cause. Appellant’s Conf. App. Vol.
III at 133-36. Moreover, the time between each controlled buy also suggests an
ongoing operation and that a search of Edgehill Avenue would assist law
enforcement in locating contraband. The affidavit provided probable cause for
the issuance of the search warrant. See Bradley v. State, 4 N.E.3d 831, 842 (Ind.
Ct. App. 2014) (stating that “[a]lthough one particular piece of evidence may
not have conclusively established probable cause, the evidence in the affidavit,
when fitted together and viewed collectively, is sufficient to support the trial
court’s finding of probable cause under both the United States and Indiana
Constitutions.”) (footnote omitted).
Staleness
[27] We turn next to whether the information in the warrant was stale. Warren
argues that “[e]ven if there was information from which to infer a connection to
Edgehill Avenue on October 4, 2018, that information was stale by the issuance
and service of the warrant.” Appellant’s Br. at 22. Warren contends it is
speculative that he would still be at Edgehill Avenue or that there would be
evidence of cocaine dealing there on October 15, 2018, when the warrant was
issued because, without a connection to Edgehill Avenue, the previous
controlled buys are not sufficient to show probable cause for ongoing drug
dealing. Alternatively, he maintains that probable cause had dissipated by
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 15 of 31 October 19, 2018, when the search warrant was executed, noting there was no
evidence law enforcement continued surveillance or conducted any additional
buys.
[28] The State argues that this case involves ongoing criminal activity, and,
reiterating its arguments that there was probable cause when the warrant was
issued, maintains that the warrant was not stale. The State also argues that,
although not included in the probable cause affidavit, law enforcement “linked
the residence to the drug dealing as the phone used to arrange the controlled
buys was kept in the residence for 74.2% of the pings after phone tracking began
on September 6, 2018,” that officers “lost sight of the Audi near Edgehill after
the second buy, and the phone’s movement was consistent with the traveling
from 2149 Edgehill Avenue before the third buy and returning to 2149 Edgehill
Avenue after that transaction” as relevant to whether probable cause existed
four days after the warrant was issued. Appellee’s Br. at 24.
[29] In reply, Warren argues that the number of times he dealt drugs is not relevant
to the question of staleness, and there remains an insufficient connection
between Warren and Edgehill Avenue because Warren disputes that he resides
at Edgehill Avenue. He also argues that, because the information about the
phone pings was not included in the affidavit, it is irrelevant to the staleness
question.
[30] The information contained in a search warrant affidavit must be timely.
Mehring v. State, 884 N.E.2d 371, 377 (Ind. Ct. App. 2008), trans. denied. “The
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 16 of 31 general rule is that stale information cannot support a finding of probable cause,
but rather, only gives rise to mere suspicion.” Seeley v. State, 782 N.E.2d 1052,
1060 (Ind. Ct. App. 2003), trans. denied, cert. denied 540 U.S. 1020 (2003).
Nevertheless, the exact moment information becomes stale cannot be precisely
determined. Id. We must look to the facts and circumstances of each case to
determine whether the facts and information contained in the search warrant
affidavit are stale. Mehring, 884 N.E.2d at 377.
[31] In support of his position that the information in the probable cause affidavit
from the last controlled buy on October 4, 2018 was stale when the warrant was
issued on October 15, 2018, Warren cites to Ashley v. State, 251 Ind. 359, 241
N.E.2d 264 (Ind. 1968) and State v. Haines, 774 N.E.2d 984 (Ind. Ct. App.
2002). In Ashley, the Indiana Supreme Court held that a search warrant was
defective where the affidavit on which it was based established probable cause
that marijuana was at a residence on October 3, but the warrant was not issued
until October 11, eight days later. 251 Ind. at 367, 241 N.E.2d at 269. In
Haines, we found that “a crack cocaine purchase that took place two (2) to six
(6) weeks prior to the probable cause hearing” to be too substantial a period of
time to support a finding of probable cause that crack cocaine could be found at
that residence. 774 N.E.2d at 990.
[32] Here, in contrast to both Ashley and Haines, the four controlled buys occurred
over a six-week period suggesting that the operation was more ongoing than the
one-time marijuana purchase in Ashley or the two to six-week period separating
the crack cocaine purchase and the probable cause hearing as in Haines. The
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 17 of 31 multiple buys over the course of the investigation show the ongoing nature of
drug dealing related to Warren and Edgehill Avenue. See Bennett v. State, 5
N.E.3d 498, 508 (Ind. Ct. App. 2014) (noting, in the case of an affidavit which
“merely recites an isolated crime[,]” that the “time between the occurrence and
the issuance of the warrant will likely be crucial to a determination of probable
cause” but “where the affidavit or testimony recites criminal activity of a
protracted or continuous nature . . . such time is of less significance.” (citing
Breitweiser v. State, 704 N.E.2d 496, 500 (Ind. Ct. App. 1999))). Moreover, as
noted, the affidavit showed a sufficient link between Warren’s more protracted
drug dealing and Edgehill Avenue in establishing probable cause for the
warrant’s issuance. Under the facts and circumstances of this case, the
information in the probable cause affidavit was not stale when the warrant was
issued.
[33] Warren also argues that the information in the warrant was stale by the time it
was executed on October 19, 2018 and cites in support Huffines v. State, 739
N.E.2d 1093, 1097 (Ind. Ct. App. 2000), trans. denied. Search warrants must be
executed not more than ten days after the date of issuance. See Ind. Code § 35-
33-5-7(b). This court has held that search warrants executed within the
statutory ten-day period can be unconstitutional if the supporting probable
cause dissipates before execution. Huffines, 739 N.E.2d at 1096-97.
[34] We acknowledge that the record does not support that there was additional
investigation or reassessment of the facts supporting probable cause in the
warrant in the four days after its issuance. However, we find Huffines to be
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 18 of 31 distinguishable as it involved only one prior drug buy from Huffines’s home.
Thus, under these circumstances, we cannot say that the four-day delay in the
warrant’s execution rendered the information in the warrant stale at the time of
its execution. See Breitweiser, 704 N.E.2d at 501 (concluding that the initial
probable cause supporting the search warrant’s issuance continued to exist at
the time of the search, despite the three-day delay in its execution.)
[35] Because the evidence in the affidavit was not stale and provided probable cause
under both the United States and Indiana Constitutions,6 we find no error in the
trial court’s admission of the evidence from the search of Edgehill Avenue.
Because we conclude that the affidavit was supported by probable cause we
need not address whether the good-faith exception applies.
II. Sufficiency of the Evidence [36] Warren next challenges the sufficiency of the evidence that he possessed
cocaine with the intent to deal. When we review the sufficiency of evidence to
support a conviction, we do not reweigh the evidence or assess the credibility of
the witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.
6 The State argues Warren waived his arguments under the Indiana Constitution regarding the search’s reasonableness. Regardless of waiver, we find that the result is the same under the Indiana Constitution. Although Article I, Section 11 of the Indiana Constitution appears to have been derived from the Fourth Amendment and shares the same language, we interpret and apply it independently from Fourth Amendment jurisprudence. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). Rather than looking to federal requirements such as warrants and probable cause when evaluating Section 11 claims, we place the burden on the State to show that under the totality of the circumstances its intrusion was reasonable. Id. Based on the above facts, we find that the police acted reasonably, and therefore, there is no violation of the Indiana Constitution.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 19 of 31 denied. We consider only the evidence most favorable to the trial court’s ruling
and the reasonable inferences that can be drawn from that evidence. Lock v.
State, 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence in
the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871,
875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed 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. Wolf v.
State, 76 N.E.3d 911, 915 (Ind. Ct. App. 2017).
[37] Warren argues the State failed to present sufficient evidence that he
constructively possessed the cocaine found as a result of the search of Edgehill
Avenue, contending that he did not have the intent to maintain control of the
cocaine found in the kitchen. The State maintains the evidence sufficiently
established that Warren had the requisite intent to maintain control of the
cocaine and that his conviction should be affirmed. In reply, Warren asserts it
was not apparent that the cocaine found in the kitchen was in plain view and
that the State did not connect the cocaine found in the kitchen with the
controlled buys.
[38] Warren limits his challenge to his conviction for possession of cocaine with
intent to deliver to whether he constructively possessed the cocaine. See Ind.
Code § 35-48-4-1; Appellant’s Conf. App. Vol. II at 17. Possession of contraband
may be either actual or constructive. See Gee v. State, 810 N.E.2d 338, 340 (Ind.
2004). Actual possession occurs when a person has direct physical control over
the item. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 20 of 31 [39] There is no evidence in the record showing Warren had direct physical control
over the cocaine, and Warren maintains that the State failed to present evidence
that he had the requisite intent to constructively possess the cocaine. To
establish constructive possession, the State must show that the defendant had
both the intent and the capability to maintain dominion and control over the
contraband. Id. Proof of a possessory interest in the premises on which the
contraband is found is adequate to show the capability to maintain dominion
and control over the item. Id. When possession of the premises is non-
exclusive:
[T]he inference of intent to maintain dominion and control over the drugs must be supported by additional circumstances pointing to the defendant’s knowledge of the nature of the controlled substances and their presence. The additional circumstances have been shown by various means: (1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the defendant’s plain view, and (6) the mingling of the contraband with other items owned by the defendant.
Id. at 341 (citation and quotation marks omitted).
[40] Warren was the sole occupant found in Edgehill Avenue at the time of the
search, but Warren’s possession of Edgehill Avenue was nonexclusive. His
uncle, Rodney Chapman, leased the premises, and the testimony presented at
trial revealed that other individuals resided or spent time at Edgehill Avenue.
Tr. Vol. I at 16; Tr. Vol. II at 22-23, 61; Tr. Vol. III at 177, 182. Therefore, we
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 21 of 31 must determine whether Warren had the intent to maintain dominion and
control over the cocaine.
[41] Applying the factors in Gee to assess the intent to maintain dominion and
control, the fact that the cocaine was found in the kitchen, which was the
location where the powder cocaine was processed into crack cocaine, weighs in
favor of the inference that Warren constructively possessed the cocaine. Tr.
Vol. II at 24-25, 241. In the kitchen there was a pile of baking soda boxes,
multiple boxes of baggies, a razor blade with residue, residue covered
measuring cups, a digital scale, a microwave with cocaine residue inside, $283
in currency on the counter, and a pink substance that later was determined to
contain cocaine. Id. at 24-25, 30-32, 234-35; State’s Exs. 17-18, 21-23, 25-27, 55-
56. The pink substance found in the kitchen that tested positive for cocaine was
found on the countertop while some, including the “big chunk” of powder
cocaine, was found in a drawer. Tr. Vol. II at 25, 235, 241; State’s Ex. 24.
Likewise, in the kitchen there were also two credit union receipts in Warren’s
name, one dated April 20, 2018 and the other dated October 18, 2018,
suggesting that he stayed at Edgehill Avenue more frequently than as a guest.
Tr. Vol. II at 31; State’s Exs. 22, 29. While the receipts were not intermingled
with the cocaine, they were found in the kitchen, which in light of the cocaine,
baking soda, baggies, razor blade and measuring cups with residue, and digital
scale, shows their proximity to a setting suggestive of drug processing. See Gee,
810 N.E.2d at 344 (explaining that the place where the contraband is found
may serve as an additional circumstance to support the inference that a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 22 of 31 defendant knew of the presence of the contraband and its illegal character and
noting the significance of the kitchen as a gathering place.). When law
enforcement executed the search warrant, Warren appeared to be coming from
the master bedroom. Tr. Vol. II at 100. No cocaine was found in the master
bedroom, although $6,351 in cash, a handgun under the bed, and a box
containing Warren’s identification and wallet were found. Id. at 175-80; Tr.
Vol. III at 67, 72-73; State’s Exs. 42, 44-46. Finally, the cell phone that was used
to arrange the controlled buys with the CI and that had pinged to Edgehill
Avenue 74% of the time over the period of September 6, 2018 through the
warrant’s execution was found in the master bedroom, the room where Warren
appeared to be exiting from at the time the warrant was executed. Tr. Vol. II at
100, 178-80; Tr. Vol. III at 66. A reasonable trier of fact could conclude that the
evidence presented was sufficient to show that Warren constructively possessed
the cocaine. See Thompson v. State, 966 N.E.2d 112, 123 (Ind. Ct. App. 2012)
(finding the evidence was sufficient to show the defendant constructively
possessed the cocaine found in the residence.), trans. denied. Therefore, the
evidence was sufficient to support Warren’s conviction.
III. Denial of Continuance [42] Warren also contends that the trial court abused its discretion by denying his
motion to continue the trial. He argues the trial court abused its discretion by
finding that his motion to continue was a stalling tactic rather than a result of
the State’s discovery violation and that his right to present a defense
outweighed the State’s concerns about the CI’s safety in another case. Warren
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 23 of 31 contends that he was prejudiced because the call detail report was critical to his
defense of misidentification and to rebut the State’s evidence from the phone
ping information, which showed how often the phone was at Edgehill Avenue.
The State maintains that the trial court did not abuse its discretion in denying
Warren’s motion to continue and that he cannot show prejudice. In reply,
Warren argues the State is overlooking the discovery violation that led to his
motion and that he was prejudiced.
[43] Warren does not argue that he was entitled to a continuance by statute pursuant
to Indiana Code section 35-36-7-1. Rulings on non-statutory motions for
continuance lie within the discretion of the trial court and will be reversed only
for an abuse of that discretion and resultant prejudice. Jackson v. State, 758
N.E.2d 1030, 1033 (Ind. Ct. App. 2001). An abuse of discretion occurs when
the decision is clearly against the logic and effect of the facts and circumstances
before the trial court. Id. Continuances to allow additional time for
preparation are generally disfavored in criminal cases. Baxter v. State, 522
N.E.2d 362, 366 (Ind. 1988).
[44] After hearing argument by Warren’s counsel and from the State on Warren’s
motion to continue, the trial court denied the motion, finding the State’s failure
to provide the call detail report was inadvertent and that the information in the
call detail report was not exculpatory. Tr. Vol. I at 69, 71-72, 75. It also found
the State would be prejudiced if a continuance was granted, because the CI was
in danger due to a different case unrelated to Warren and that Warren’s motion
“in some sort of fashion . . . is a stalling tactic” that was prejudicial to the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 24 of 31 State’s case. Id. at 75. Before the commencement of Warren’s August 21, 2019
jury trial, the trial court had granted three continuances: (1) a January 21,
2019, defense motion to continue based on continuing discovery in which
Warren requested to continue the jury trial; (2) a February 18, 2019, defense
motion to continue due to a police officer’s unavailability in which Warren
requested to continue the suppression hearing and the jury trial; and (3) an
April 19, 2019 motion to continue filed by the prosecutor due to a police
officer’s unavailability in which the prosecutor requested to continue Warren’s
jury trial. Appellant’s Conf. App. Vol. II at 5-6, 9, 66, 80, 104. We acknowledge
that the phone call detail report was a crucial piece of evidence and Warren is
correct in citing that the preferred remedy for a discovery violation is a
continuance; however, we are not convinced that the trial court abused its
discretion such that Warren was prejudiced by the disclosure of the call detail
report nine days before the trial. Warren was alone at Edgehill Avenue at the
time of the search, and the phone was found in the master bedroom along with
Warren’s wallet and identification. Tr. Vol. II at 22-23, 100, 178-80. Warren
vigorously asserted a defense of misidentification at trial, calling multiple
witnesses to build his case, and it is speculation as to the impact of additional
review of the call detail report on the trial. Warren has not shown that the trial
court abused its discretion in denying his motion to continue the trial or that he
was prejudiced by the denial.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 25 of 31 IV. Supplemental Argument [45] Finally, Warren argues that the trial court abused its discretion by allowing
supplemental arguments when the jury reached an impasse. The jury
deliberated for nearly six hours, and the trial court related the following
interaction it had with the jury before ordering supplemental argument:
So, I had a note from the jurors. It is 10:50 p.m. at night. The note came from my officer. The note says we have come to an agreement on Count – on one count which is Count Six, guilty. On count one through five, we currently – on count one through five we cannot currently come to an agreement. We are hung up on the intentionally and knowingly on count one. Counts two through five we are five to seven towards not guilty and getting nowhere. Then I instructed my officer, Officer Todd, to say you have all the law and evidence before [sic], please continue to work, Judge Davis. I sent that back after conferring with both Mr. Watkins and Ms. Yeager via the telephone. When I returned, I sent back my own personal handwritten note that states pursuant to the Indiana Rules I have the ability to allow the attorneys to give additional arguments on the above legal issue which the above legal issue is we are hung up on the knowingly and intentionally in count one. I said would it be helpful if I allow the attorneys to argue, and they sent back a note saying yes that would be helpful. Intentionally and knowingly possess with intent to deliver and what is constructive transfer. So with that, I am operating under rule 28 of the jury rules which states that if the jury advises the Court that it has reached an impasse in its deliberations the Court may, but only in the presence of counsel inquire the jurors to determine whether or how the Court and counsel can assist them in their deliberative process. After receiving the jurors’ response, if any, which I received their response, the Court after consultation with counsel may direct further proceedings to occur if appropriate.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 26 of 31 Tr. Vol. III at 248-49. Responding to a written communication from the jury
implicates two protections—a common law protection and a statutory
protection. Dickenson v. State, 835 N.E.2d 542, 550 (Ind. Ct. App. 2005) (citing
Bouye v. State, 699 N.E.2d 620, 627 (Ind.1998)). Warren does not argue that the
statutory protection is implicated and instead argues that ex parte
communication occurred but limits his arguments to the common law
protections under the Sixth Amendment to the United States Constitution and
Indiana Jury Rule 28. The State responds that Warren waived the issue of
whether the trial court’s communication to the jury was an ex parte
communication because he did not object on that basis and objected solely on
the basis that “additional argument on constructive possession would unfairly
force him to retry the case in five minutes.” Appellee’s Br. at 40. It argues that
the record is ambiguous as to whether an ex parte communication occurred,
and that if any error occurred in the trial court’s communication with the jury,
the error is harmless because the trial court did not provide substantive
instruction to the jury. In reply, Warren argues that he adequately preserved
the ex parte communication issue because he was never given the opportunity
to object, and that the State did not rebut the presumption of harm from the
trial court’s communication with the jury.
[46] The Indiana Supreme Court has set forth an established procedure for the trial
court to follow when the deliberating jury makes a request for additional
guidance during its deliberations. Dickenson, 835 N.E.2d at 551-
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 27 of 31 52 (citing Stephenson v. State, 742 N.E.2d 463, 492 (Ind. 2001), cert. denied, 534
U.S. 1105 (2002)), trans. denied. Specifically, the trial court should:
notify the parties so they may be present in court and informed of the court’s proposed response to the jury before the judge ever communicates with the jury. When this procedure is not followed, it is an ex parte communication and such communications between the judge and the jury without informing the defendant are forbidden. However, although an ex parte communication creates a presumption of error, such presumption is rebuttable and does not constitute per se grounds for reversal. When a trial judge responds to the jury’s request by denying it, any inference of prejudice is rebutted and any error deemed harmless.
Id. at 551 (quoting Stephenson, 742 N.E.2d at 492).
[47] Here, the parties dispute whether the trial court’s statement shows that it
communicated ex parte with the jury. It is not clear from the trial court’s
statement what the trial court specifically discussed on the telephone with
Warren’s counsel and the prosecutor. However, we agree with Warren that the
trial court’s statement supports the conclusion that two notes were delivered
and that there is nothing in the statement to show that the second handwritten
note indicating the option of having the parties provide additional argument
was done in consultation with the parties. Therefore, the second note was an
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 28 of 31 ex parte communication, which created a presumption of error.7 See Dickenson,
835 N.E.2d at 551. The trial court did not supplement the jury’s instructions
via the handwritten note; rather, the court stated that Indiana Jury Rule 28
could be used to allow the parties to provide additional argument. Therefore,
the inference of prejudice was rebutted and any error resulting from the
communication was harmless.
[48] We turn next to Warren’s argument that it was reversible error for the trial
court to order supplemental closing arguments without his consent. The State
maintains that the trial court properly ordered additional argument under
Indiana Jury Rule 28 over Warren’s objection. Indiana Jury Rule 28 provides:
If the jury advises the court that it has reached an impasse in its deliberations, the court may, but only in the presence of counsel, and, in a criminal case the parties, inquire of the jurors to determine whether and how the court and counsel can assist them in their deliberative process. After receiving the jurors’ response, if any, the court, after consultation with counsel, may direct that further proceedings occur as appropriate.
Regarding Indiana Jury Rule 28, the Indiana Supreme Court has stated that in
certain circumstances and “with advance consultation with the parties and an
opportunity to voice objections” a trial court may, among a list of examples,
7 We agree with Warren that he did not waive the ex parte communication issue on appeal because he did not have an opportunity to make a contemporaneous objection. See Ind. Trial Rule 46 (“[I]f a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.”)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 29 of 31 “allow counsel to briefly address the jury’s question in short supplemental
arguments” to the jury. Tincher v. Davidson, 762 N.E.2d 1221, 1224 (Ind. 2002).
[49] Warren does not claim that the trial court’s authority to order additional
argument on the intent element of constructive possession is not authorized by
Jury Rule 28, nor does he challenge whether the jury was at an impasse.8
Instead, he cites to the concurring opinion in Tincher that the resolution of a
jury question should require the consent of both parties. 762 N.E.2d at 1226-
27. The State observes that the jury rule does not require the consent of the
parties to order supplemental argument. We agree with the State. As noted,
the Indiana Supreme Court has stated that the trial judge may use the
procedures of Jury Rule 28 to assist the jury in its deliberations, including an
opportunity for the parties to voice objections and for the use of supplemental
argument. See Tincher, 762 N.E.2d at 1224. Warren objected to the use of
supplemental argument, and, over his objection, the trial court ordered
supplemental argument. We cannot say that the trial court abused its discretion
in ordering the parties to provide supplemental argument. See Parks v. State, 921
N.E.2d 826, 831-32 (Ind. Ct. App. 2010) (concluding that the trial court did not
8 Jury Rule 28 applies only when the jury is at an impasse. See generally Ronco v. State, 862 N.E.2d 257 (Ind. 2007). Alternatively, Indiana Code section 34-36-1-6 gives judges some discretion to assist the jury in its deliberation and in pertinent part provides that after the jury retires for deliberation, if “the jury desires to be informed as to any point of law arising in the case” that “the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 30 of 31 err by invoking Indiana Jury Rule 28 and that replaying testimony over
defendant’s objection was not an abuse of discretion resulting in prejudice.).
[50] Affirmed.
Najam, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020 Page 31 of 31