author: Friedlander, Senior Judge.

text:
    Russell MCCALLISTER, Appellant-Respondent, v. Angela MCCALLISTER, Appellee-Petitioner.
    Court of Appeals Case No. 49A02-1704-DR-887
    Court of Appeals of Indiana.
    FILED June 26, 2018
    Attorney for Appellant: Nicholas Dandurand, Gilley Dandurand & Summerfield Law Group, LLP, Anderson, Indiana
    Attorneys for Appellee: Kathleen M. Meek, Justin T. Bowen, Bowen & Associates, LLC, Carmel, Indiana
   Friedlander, Senior Judge.

[1] Russell McCallister appeals the trial court's order finding him in contempt of court, directing him to reinstate his former wife, Angela McCallister, as the beneficiary of his Survivor Benefit Plan, and ordering him to pay Angela's attorney fees. Concluding the trial court correctly determined that Russell violated the parties' Marital Settlement Agreement, but constrained by the federal statutes which prevent the enforcement of the trial court's order, we are compelled to reverse and remand in part and affirm in part.

[2] Russell raises three issues for our review, which we restate as:

1. Whether the trial court erred in ordering Russell to reinstate Angela as the beneficiary under his Air Force Survivor Benefit Plan.
2. Whether the trial court erred in finding Russell in contempt of court.
3. Whether the trial court erred in ordering Russell to pay Angela's attorney fees.

[3] Russell and Angela married on June 11, 1983. For the duration of the marriage, Russell served on active duty in the United States Air Force. After more than twenty years of marriage, Angela filed a petition for dissolution. On November 15, 2011, the parties executed a Marital Settlement Agreement providing for the disposition of their property. The Agreement included a clause that Russell would designate Angela as his beneficiary under the Air Force Survivor Benefit Plan ("SBP") and that he would execute all necessary paperwork and provide documentation that he had done so. Specifically, paragraph 19 of the parties' Agreement provided:

19. SURVIVOR'S BENEFIT PLAN. Upon his retirement, the Husband shall designate his Wife as his beneficiary under the Air Force Survivor's Benefit Plan as specifically authorized in the "Uniformed Services Former Spouses' Protection Act" Public Law 97-252, and all amendments thereto, to the extent of her interest in the Husband's Military Retired pay. The Husband shall, within 15 days of the date of execution of this agreement, execute and forward to proper authorities, whatever documents may be required to effectuate the provisions of this paragraph. The Husband shall provide the Wife with copies of all such documents within such 15 day period. A copy of the Final Judgment of Dissolution of Marriage incorporating this agreement shall be [sic] also be sent directly to the Defense Finance and Accounting Service in order to qualify as a "deemed election" of the Survivor Benefit Plan.

Appellant's Appendix Vol. 2, pp. 55-56. On November 16, 2011, Russell signed a form designating Angela as the beneficiary of his SBP. The parties' Agreement was incorporated into a divorce decree dated December 2, 2011.

[4] On December 22, 2012, Russell remarried. In June 2013, he changed the beneficiary of his SBP from Angela to his current wife. Angela did not learn that she was no longer the beneficiary of Russell's SBP until May 2016. Upon learning this information, Angela filed a motion for rule to show cause with the trial court. The court held a hearing on Angela's motion and subsequently issued an order holding Russell in contempt of court for violating the Marital Settlement Agreement by removing Angela as the beneficiary of his SBP, ordering Russell to reinstate Angela as the beneficiary, and ordering Russell to pay Angela's attorney fees. Russell filed a motion to correct error, which the trial court denied. This appeal ensued.

1. Reinstatement of Beneficiary

[5] Russell first contends the trial court erred by ordering him to reinstate Angela as the beneficiary of his SPB. He asserts that, pursuant to the applicable federal statutes, Angela's time frame for SPB former spouse eligibility has expired and, therefore, she is just simply out of luck.

[6] SBP was created by Congress in 1972 to provide an annuity payable to survivors of a retired military service member upon the service member's death. Silva v. Silva , 333 S.C. 387, 509 S.E.2d 483 (Ct. App. 1998) ; see generally 10 U.S.C. §§ 1447 - 1455. Under the plan, premiums are deducted from the service member's retirement pay, and, when the service member dies, payments go to the service member's designated beneficiary. Holmes v. U.S. , 98 Fed.Cl. 767 (2011). A former spouse can be a service member's designated beneficiary, and such a designation is accomplished in one of two ways. See 10 U.S.C. § 1448(b)(2), (3). First, the service member can elect a former spouse as beneficiary by submitting a written, signed election to the appropriate government Secretary within one year after the date of the divorce decree. See 10 U.S.C. § 1448(b)(3)(A)(iii). Second, if the service member is required, such as under a court order, to elect a former spouse as beneficiary and fails or refuses to do so, the former spouse can, within one year of the date of the divorce decree, file with the appropriate government Secretary a written request that an election be deemed to have been made designating the former spouse as beneficiary along with a copy of the pertinent court order. See 10 U.S.C. § 1450(f)(3). Thus, under the applicable statutory framework, a court-ordered election of a former spouse as beneficiary may be made either by the service member or the former spouse; however, in both instances the election must be made within one year of the court order directing the election. Further, the SBP annuity is not assignable or subject to execution, levy, attachment, garnishment, or other legal process. 10 U.S.C. § 1450(i).

[7] It appears no Indiana case has addressed the precise question posed here: whether, at the present time, it is possible to designate Angela as the beneficiary of Russell's SBP. Where no Indiana case has addressed an issue, we may look to decisions from other jurisdictions for guidance. DiMaggio v. Rosario , 950 N.E.2d 1272 (Ind. Ct. App. 2011), trans. denied. To that end, we note the decision of the District Court of Appeal of Florida in Wise v. Wise , 765 So.2d 898 (Fla. Dist. Ct. App. 2000). There, husband retired from the military while he and wife were still married. They elected to participate in the SBP and designate their then minor daughter as the beneficiary. When husband and wife later divorced, the final judgment of dissolution required husband to elect wife as beneficiary of his SBP. Despite wife's repeated requests, husband failed to comply with this requirement, and, six years later, wife filed a motion for contempt and enforcement of the final judgment of dissolution. Following a hearing, the trial court ordered husband to complete the necessary paperwork for designation of wife as beneficiary of his SBP.

[8] Husband appealed the decision of the trial court, and the Florida court of appeals reversed, stating it was "compelled to reverse" because the applicable federal law prevented the enforcement of the trial court's order. Id. at 899. The appellate court explained that the language of the federal statutes concerning SBPs as well as the comments in their legislative history do not permit a revocation of child-only SBP coverage to provide an annuity for a former spouse. The court stated further that even if the court-ordered change of beneficiary could have been accomplished at the time of dissolution, such a change was no longer possible because it was past the one-year time limit for both an election of the former spouse as beneficiary by the service member and a request by the former spouse that an election be deemed to have been made under 10 United States Code sections 1448(b)(3)(A)(iii) and 1450(f)(3), respectively. Consequently, despite the requirement in the dissolution decree, wife could not obtain SBP coverage. See also King v. King , 225 Ga. App. 298, 483 S.E.2d 379 (1997) (holding that, although generally state law rather than federal law controls domestic relations matters, federal law preempted state law where Congress enacted specific conditions under which former spouse awarded SBP benefits in state court divorce decree may be elected beneficiary of annuity under SBP); Silva , 509 S.E.2d 483 (finding reasoning in King persuasive and affirming trial court's refusal to impose constructive trust on SBP proceeds where former husband failed to complete paperwork necessary to designate former wife as beneficiary pursuant to agreement in divorce decree and former wife did not take necessary steps to insure she was deemed beneficiary).

[9] Notably, the Florida appellate court stated that its reversal of the trial court's order did not end the matter:

Like other retirement plans, military retirement benefits, including a Survivor Benefit Plan, are considered marital assets subject to equitable distribution. As has been shown, federal law expressly empowers state courts to order a spouse to maintain a Survivor Benefit Plan for a former spouse, and that was done in this case in the 1993 dissolution judgment. In the instant case, it is apparent that an annuity was awarded to the former wife as part of the overall scheme of equitable distribution in the final judgment. Accordingly, the lower court has authority to revisit the equitable distribution in this case or otherwise effect the terms of the dissolution judgment.

Wise , 765 So.2d at 901 (citations omitted).

[10] In the present case, Russell voluntarily entered into the Agreement to designate Angela as the beneficiary of his SBP. At the hearing on Angela's motion for rule to show cause, Russell testified that upon signing the Agreement on November 15, 2011, he then submitted paperwork the next day designating Angela as the beneficiary of his SBP. Angela testified that her attorney at the time apparently received some paperwork and told her there was nothing more she needed to do. At the time of the designation on November 16, however, Russell and Angela were still married. Their divorce was not finalized until December 2, 2011, after which Russell failed to comply with the court's order and execute the necessary forms to ensure that Angela, as a now former spouse, was designated as beneficiary. Nonetheless, Angela remained listed as the beneficiary of Russell's SBP.

[11] In December 2012, Russell remarried, and, in June 2013, he changed the SBP beneficiary designation from Angela to his current wife. Russell's action of removing Angela as beneficiary is a clear violation of the terms of the parties' Agreement. In addition, no evidence was presented that Russell made any attempt to inform Angela that she was no longer the designated beneficiary on his SBP. In fact, it was not until three years later, in May 2016, that Angela received information from a third party that she was not the designated beneficiary on Russell's SBP.

[12] We find the holdings in Wise and King to be sound. Accordingly, we conclude that based on the facts of this case and the specific provisions of the SBP enacted by Congress, the trial court's order directing Russell to reinstate Angela as the beneficiary of his SBP cannot be enforced despite Russell's violation of the terms of the Agreement. Thus, because Russell failed to comply with the divorce decree and the SBP statutory deadline of one year for election of a former spouse as beneficiary and Angela did not request within one year that an election be deemed, Angela cannot now obtain beneficiary status with regard to Russell's SBP.

[13] Having determined that the trial court's order cannot be carried out, we further acknowledge that the SBP annuity was awarded to Angela as part of an agreed upon distribution of the parties' assets. Accordingly, it is necessary to remand to the trial court for a determination of the value of Angela's portion of Russell's SBP, and we grant the trial court the authority to reconsider the distribution of the parties' assets in order to fashion an alternative remedy to compensate Angela for the loss of her portion of Russell's SBP. See Heldmyer v. Heldmyer , 555 So.2d 1324 (Fla. Dist. Ct. App. 1990) (remanding to trial court for determination of value of former wife's portion of military pension and for complete reevaluation of property distribution in order to compensate former wife for loss of her portion of pension).

2. Finding of Contempt

[14] Russell argues the trial court abused its discretion by finding him in contempt. Whether a party is in contempt of a court order is a matter left to the trial court's discretion.

Akiwumi v. Akiwumi , 23 N.E.3d 734 (Ind. Ct. App. 2014). On appeal, we will reverse the trial court's finding of contempt only for an abuse of that discretion-that is, when the decision is against the logic and effect of the facts and circumstances before it. Id. Further, upon review of a finding of contempt, we neither reweigh the evidence nor judge the credibility of the witnesses., and we consider only the evidence and reasonable inferences in support thereof. Bandini v. Bandini , 935 N.E.2d 253 (Ind. Ct. App. 2010).

[15] To be held in contempt for failing to comply with a court order, a party must have willfully disobeyed the order. Id. The court order must be so clear and certain that there could be no question as to what the party must do or not do, such that there could be no question regarding its violation. Id. Accordingly, a party may not be held in contempt for failing to comply with an ambiguous or indefinite order; if such were the case, a party could be held in contempt for obeying an ambiguous order in good faith. Id.

[16] Here, the trial court's basis for finding Russell in contempt is his failure to designate Angela as the beneficiary of his SBP. The unambiguous language of the parties' Agreement required Russell to designate Angela as his beneficiary under his SBP and to execute all necessary paperwork and provide documentation that he had done so. Russell acknowledged that he failed to file the proper documentation following the finalization of the parties' divorce in December 2011. Furthermore, he admitted that in June 2013, when Angela was still listed as the beneficiary of his SBP, he replaced her with his current wife.

[17] Russell claims that he was confused by the use of the term "Wife" in the Agreement such that he did not know if it referred to his former wife, Angela, or his current wife. He argues to this Court that "The Agreement did not ... explicitly provide that Husband shall elect 'former spouse' coverage. Given the resulting implications of the 'spouse' versus 'former spouse' distinction, Paragraph 19 of the Agreement is evidently ambiguous, and it would violate the spirit of the law to hold Husband in contempt 'for obeying an ambiguous order in good faith.' " Appellant's Br. p. 15.

[18] We reject this disingenuous argument. Under the heading "RECITATIONS," the first page of the Agreement states that "The Husband is RUSSELL E. McCALLISTER. The Wife is ANGELA K. McCALLISTER. " Appellant's App. Vol. 2, p. 47. In addition, Russell clearly knew the Agreement distributed the property of his marriage to Angela to whom he was married at the time he signed it. Moreover, not only did Russell fail to do what he was obligated to do under the Agreement, but also he intentionally neglected to notify Angela when he removed her as the beneficiary and replaced her with his current wife. The evidence unequivocally shows that Russell willfully disobeyed the court's unambiguous order. Therefore, we find no abuse of the trial court's discretion.

3. Attorney Fees

[19] Trial courts in this state have inherent authority to award attorney fees for civil contempt. Reynolds v. Reynolds , 64 N.E.3d 829 (Ind. 2016). This authority stems from the court's power to enforce compliance with its orders and decrees. In re Paternity of Pickett , 44 N.E.3d 756 (Ind. Ct. App. 2015). Further, once a party is found in contempt, the trial court has the authority to compensate the aggrieved party for losses and damages resulting from another's contemptuous actions, including the award of attorney fees. Id.

[20] The trial court ordered Russell to pay $3,000.00 of Angela's attorney fees as sanctions for his contempt. At the hearing, an affidavit of Angela's attorney setting forth her attorney fees in this matter was admitted without objection. Having determined that Russell willfully failed to abide by the parties' Agreement, thereby causing Angela to file a motion for rule to show cause and incur attorney fees, we find the trial court did not abuse its discretion in ordering Russell to pay $3,000.00 of Angela's attorney fees.

[21] For the reasons stated, we conclude the action of reinstating Angela as beneficiary of Russell's SBP as ordered by the trial court cannot be accomplished under the applicable federal law; therefore, we reverse and remand with instructions for the trial court to fashion an appropriate remedy to compensate Angela for the loss of her portion of Russell's SBP. In addition, we affirm the trial court's finding of contempt against Russell and its imposition of sanctions for such.

[22] Judgment reversed and remanded in part and affirmed in part.

May, J., and Altice, J., concur.


source: Caselaw Access Project

author: Bailey, Judge.

license: Public Domain

text:
    Kevin Shawn CARTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 17A-CR-3024
    Court of Appeals of Indiana.
    Filed June 28, 2018
    Attorney for Appellant: Yvette M. LaPlante, Keating & LaPlante, LLP, Evansville, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, Indiana
   Bailey, Judge.

Case Summary

[1] A jury convicted Kevin Shawn Carter ("Carter") of Dealing in a Narcotic Drug, as a Level 2 felony, and Dealing in Methamphetamine, as a Level 2 felony. Thereafter, Carter admitted to being a habitual offender. Carter now appeals.

[2] We affirm.

Issues

[3] Carter presents the following two restated issues:

I. Whether the trial court abused its discretion by admitting evidence obtained from a search of a cell phone because the underlying warrant was impermissibly general, allowing an exploratory search; and
II. Whether the trial court committed fundamental error by admitting testimony from an officer who opined that the amount of heroin seized was a dealer-level quantity.

Facts and Procedural History

[4] After seeing a Ford Mustang cross the center line several times, Deputy Brandon Mattingly ("Deputy Mattingly") of the Vanderburgh County Sheriff's Department conducted a traffic stop. Deputy Mattingly approached the vehicle and observed the front passenger-Carter-making furtive movements and appearing to place an item under his seat. Deputy Mattingly then spoke with the driver, Tiffani Colschen ("Colschen"). At some point, Carter stated that he co-owned the vehicle, and both Colschen and Carter consented to a vehicle search. During the ensuing search, Deputy Mattingly found a bag between the front seats. Inside, there was a container holding a syringe and a spoon. Below the container there were several plastic bags that appeared to contain drugs; subsequent lab testing revealed that the bags contained, in the aggregate, approximately 205 grams of methamphetamine and approximately 27.5 grams of heroin. Carter and Colschen were arrested and their cell phones were confiscated. The police later obtained a warrant to search the cell phones.

[5] Carter was brought to trial on charges of Dealing in a Narcotic Drug and Dealing in Methamphetamine, both as Level 2 felonies. The State also alleged that Carter was a habitual offender. Before the trial began, Carter moved to suppress evidence obtained from the search of his cell phone; the trial court denied Carter's motion. At trial, Carter objected to the admission of cell phone evidence, and the court held a conference outside the presence of the jury. At the conference, the State tendered an exhibit containing several pages of text messages. The court determined that eight messages were admissible, and that, among the eight, any messages from third parties were admissible only to give context to Carter's messages. The State prepared a redacted exhibit containing the eight admissible text messages. See State's Ex. 23-1. Those messages-later admitted with a limiting instruction-indicated that Carter met with three individuals in the hours preceding the traffic stop, and had instructed one individual to pull around to the back, behind his Mustang, to avoid being seen.

[6] The State's evidence also included testimony from Detective James Budde ("Detective Budde"), who was assigned to the local drug task force and had encountered heroin and methamphetamine hundreds of times as a police officer. Detective Budde opined that the quantity of heroin seized was "typical of a dealer amount," to which Carter did not object. Tr. Vol. IV at 224.

[7] The jury found Carter guilty of the dealing counts, and Carter admitted to being a habitual offender. Following a sentencing hearing, the trial court imposed an aggregate sentence of thirty-six years in the Indiana Department of Correction.

[8] Carter now appeals.

Discussion and Decision

Cell Phone Records

[9] Carter frames his argument as a challenge to the denial of his motion to suppress evidence, but Carter did not seek interlocutory review of that denial. We therefore treat Carter's argument as a challenge to the admission of the evidence. See Carpenter v. State , 18 N.E.3d 998, 1001 (Ind. 2014). "The trial court has broad discretion to rule on the admissibility of evidence." Thomas v. State , 81 N.E.3d 621, 624 (Ind. 2017). Ordinarily, we review evidentiary rulings for an abuse of discretion, evaluating whether the court's ruling was "clearly against the logic and effect of the facts and circumstances." Id. "However, when a challenge ... is predicated on the constitutionality of the search or seizure of evidence, it raises a question of law that we review de novo ." Id.

[10] Both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution proscribe unreasonable searches of "persons, houses, papers, and effects." Moreover, under the Fourth Amendment, "reasonableness generally requires the obtaining of a judicial warrant." Vernonia School Dist. 47J v. Acton , 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).

[11] There are a few "specifically established and well-delineated exceptions" to the warrant requirement. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Among those exceptions "is a search incident to a lawful arrest," Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), whereby the Fourth Amendment permits "a warrantless search of the arrestee's person and the area 'within his immediate control,' " Davis v. United States , 564 U.S. 229, 232, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (quoting Chimel v. California , 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ). Under this exception, officers generally may search the containers they encounter. See United States v. Robinson , 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (determining that the Fourth Amendment permitted a search of a package of cigarettes that was found during a search incident to arrest); cf. Garcia v. State , 47 N.E.3d 1196, 1205 (Ind. 2016) ("Under Article 1, Section 11, opening a container found on the person of an arrestee in the course of a search incident to [a]valid arrest will not automatically be deemed unreasonable.").

[12] However, as the United States Supreme Court noted in Riley v. California , "[a] search of the information on a cell phone bears little resemblance to the ... brief physical search" of a container found on an arrestee's person. --- U.S. ----, 134 S.Ct. 2473, 2485, 189 L.Ed.2d 430 (2014). Namely, modern cell phones-as a "particular category of effects" subject to Fourth Amendment protection, id. at 2485 -"implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." Id. at 2488-89. "Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house." Id. at 2491 (emphasis removed). In view of these privacy concerns, the Riley Court concluded that "officers must generally secure a warrant" before searching a cell phone. Id. at 2485.

[13] Recently, the United States Supreme Court addressed similar privacy concerns in deciding Carpenter v. United States , No. 16-402, 585 U.S. ----, 138 S.Ct. 2206, 201 L.Ed.2d 507, 2018 WL 3073916 (June 22, 2018). There, law enforcement had obtained, without a warrant, location-related data from an individual's wireless carrier's cell-site record that the cell phone had logged "by dint of its operation." Id. at *12, ----, 138 S.Ct. 2206. The Court rejected arguments that the information was rendered less private because it was part of business records or because, by using the phone, the individual had technically disclosed the location information to the wireless carrier. Id. at *11-12, ---- - ----, 138 S.Ct. 2206. The Court reflected on the "unique nature of cell phone location records," id. at *9, ----, 138 S.Ct. 2206, and ultimately concluded "that the Government must generally obtain a warrant supported by probable cause before acquiring such records," id. at * 13, ----, 138 S.Ct. 2206.

[14] Here, unlike in Riley and Carpenter , the police secured a warrant before searching the cell phone data. Thus, we must look beyond these cases to resolve the issue Carter presents-which is whether the warrant was defective, rendering the evidence unconstitutionally obtained and, thereby, inadmissible.

Probable Cause

[15] As an initial matter, for a valid warrant to issue, the police must first set forth probable cause to conduct the search. U.S. Const. amend. IV ; Ind. Const. art. 1, § 11 ; I.C. §§ 35-33-5-2, -8 (codifying constitutional principles and establishing requirements for affidavits or other testimony in support of search warrants). 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). In determining whether a police affidavit sets forth probable cause "to issue a search warrant, '[t]he 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 a crime will be found in a particular place.' " State v. Spillers , 847 N.E.2d 949, 952-53 (Ind. 2006) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). Put differently, the 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. See Eaton v. State , 889 N.E.2d 297, 300 (Ind. 2008) ; Figert , 686 N.E.2d at 830 (determining that a warrant to search a residence was not supported by probable cause where the underlying affidavit indicated that drug sales occurred in two residences that were merely nearby the residence to be searched, and that unidentified individuals had frequented all three residences).

[16] Here, law enforcement sought a warrant to search the cell phone for evidence of the crime of dealing methamphetamine. As to suspected criminal activity, the affiant stated that the police found a baggie inside Carter's co-owned vehicle that contained a substance field-tested to be methamphetamine, with a field weight of 207 grams. The affiant also stated that, based on training and experience, methamphetamine is typically purchased in one-gram quantities, and that the quantity in the vehicle was consistent with dealing activity. The affiant further stated that another baggie in the vehicle contained an amount of heroin consistent with drug dealing. As to the cell phone, the affidavit stated that the phone was recovered from Carter, and that those involved in drug activity primarily use cell phones and electronic devices to communicate with one another through calls, text messages, and applications such as Facebook.

[17] In Eaton , law enforcement had obtained evidence that the defendant was involved in drug-trafficking activity taking place at a muffler shop. 889 N.E.2d at 299. In the affidavit in support of a search warrant for the defendant's home, the affiant set forth factual background regarding the defendant's connection to the drug trafficking. Id. The affiant also "stated that drug traffickers commonly keep U.S. currency within quick access and maintain records in a variety of forms including ledgers, computers, cell phones, pagers, phone bills, and wire transfer receipts." Id. at 300 (internal quotation marks omitted). It does not appear that the affiant specifically stated that drug traffickers typically kept such records at their residences. See id. Nonetheless, in resolving Eaton , our supreme court upheld the underlying probable cause determination, concluding that the affidavit presented "facts showing that the defendant was involved in drug trafficking" along with "facts and reasonable inferences establishing a fair probability that records and equipment related to such drug trafficking were likely to be found in the defendant's home." Id. In so concluding, the Court observed that "other courts ha[d] recognized that it is reasonable to believe that drug dealers keep evidence of their activities in their residences." Id.

[18] Examining the instant case in light of Eaton , here, the supporting affidavit even more directly set forth the nexus between the asserted criminal activity-dealing methamphetamine-and the place to be searched-the cell phone, through which dealers typically communicate concerning their illegal activity. Thus, the affidavit provided a substantial basis for determining that probable cause existed to support the issuance of a warrant to search the phone. Yet, underlying probable cause is not the only facet of a constitutional warrant.

Particularity

[19] In addition to requiring probable cause, both the United States Constitution and the Indiana Constitution provide that a warrant must contain a particular description of the place to be searched and the persons or things to be seized. U.S. Const. amend. IV ; Ind. Const. art. 1, § 11. This particularity requirement "ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Maryland v. Garrison , 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). Indeed, the requirement aims to prevent "a general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire , 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

[20] Although the warrant must describe "with some specificity" where officers are to search and what they are to seize, "there is no requirement that there be an exact description." Overstreet v. State , 783 N.E.2d 1140, 1158 (Ind. 2003). Nonetheless, the warrant must be specific enough so that officers can, "with reasonable effort," ascertain the place to be searched and the items to be seized. Steele v. United States , 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925). This requirement "prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States , 275 U.S. 192, 198, 48 S.Ct. 74, 72 L.Ed. 231 (1927) ; see also Griffith v. State , 59 N.E.3d 947, 958 (Ind. 2016) (observing that a sufficient description avoids giving the police unbridled discretion). Ultimately, the description in a search warrant should " 'be as particular as circumstances permit.' " State v. Foy , 862 N.E.2d 1219, 1227 (Ind. Ct. App. 2007) (quoting United States v. Lievertz , 247 F.Supp.2d 1052, 1062 (S.D. Ind. 2002) ). Moreover, to satisfy the particularity requirement, it is permissible if a warrant incorporates by reference certain supporting documents-such as the probable cause affidavit-that collectively "serv[e] to identify the scope of ... items that could properly be seized." Membres v. State , 889 N.E.2d 265, 276 (Ind. 2008).

[21] Here, the warrant authorized searching the phone for:

fruits, instrumentalities and evidence pertaining to the crime(s) of DEALING, POSSESSION and/or CONSPIRACY TO COMMIT DEALING OR POSSESSION OF METHAMPHETAMINE, as more particularly described as follows: [ ] Permission to search the above described phone for any information relating to calls, messages, including Facebook messages and accounts, and all information including but not limited to photographs, images, emails, letters, applications, and folders as well as any messages that may be stored on the phone that would indicate the identity of the phone's owner/user and permission to view and copy said information if deemed necessary for preservation.

Pre-trial Hearing Exhibit 1 (emphasis added).

[22] Carter asserts that the warrant authorized a broad search of his device for all information that might supply indicia of ownership, rendering the warrant an impermissible general warrant. Carter points out that the police extracted "all the information on the cell phone," thereby generating "a document of roughly a thousand pages, which was then analyzed for criminal activity." Appellant's Br. at 16-17. Directing our attention to the privacy concerns articulated in Riley , Carter essentially argues that a warrant is unconstitutionally general where it permits law enforcement to review all the information on a cell phone to look for indicia of identity of the phone's owner.

[23] However, the warrant specifically described the place law enforcement could search-the phone recovered from Carter-and specifically described what law enforcement could search for-(1) "any information relating to calls, messages, including Facebook messages and accounts," and (2) "all information ... that would indicate the identity of the phone's owner/user." Pre-trial Hearing Exhibit 1. Moreover, the first clause permitting the search for calls and messages enjoys a close nexus to the probable cause that justified issuing the search warrant-which is that Carter was a suspected drug dealer, and drug dealers use cell phones to communicate with others involved in illicit drug activity. See Eaton , 889 N.E.2d at 300. Thus, this aspect of the search warrant was "tailored to its justifications." Maryland , 480 U.S. at 84, 107 S.Ct. 1013.

[24] In carrying out the search, law enforcement did extract more than one thousand pages of information using a "logical extraction" device that created an "auto generated" report of the file architecture on the phone. Tr. Vol. IV at 142-43. Although Carter draws our attention to the quantity of data extracted, he has not demonstrated that there was any other way to practically conduct the permitted search. As the State observes, "[a] great deal of other information will likely have to be sifted through in order to find the relevant information-similar to looking through drawers in a home or office file cabinet for specific files or letters that are relevant to the investigation." Appellee's Br. at 15. Ultimately, we discern no indication that law enforcement had the ability to determine, ex ante , that certain pages could not have contained any of the information sought. See United States v. Stabile , 633 F.3d 219, 238 (3d Cir. 2011) (" '[A] computer search may be as extensive as reasonably required to locate the items described in the warrant' based on probable cause." (quoting United States v. Grimmett , 439 F.3d 1263, 1270 (10th Cir. 2006) ); Wheeler v. State , 135 A.3d 282, 301 (Del. 2016) ("Some irrelevant files may have to be at least cursorily perused to determine whether they are within the authorized search ambit.").

[25] With respect to Carter's assertion that the second clause was impermissibly general-that is, the clause permitting a search for all indicia of ownership of the phone-the challenged evidence consisted only of text messages. Assuming arguendo that the second clause was insufficiently particular, even where a portion of a search warrant is too general, the Indiana Supreme Court has explained that "[t]he infirmity ... does not doom the entire warrant." Warren v. State , 760 N.E.2d 608, 610 (Ind. 2002). Rather, the infirmity requires "only ... suppression of the evidence seized pursuant to that part of the warrant but not the suppression of the evidence obtained pursuant to the valid specific portions of the warrant." Id. (citing United States v. Greene , 250 F.3d 471, 477 (6th Cir. 2001) and United States v. Reed , 726 F.2d 339, 342 (7th Cir. 1984) ); see also United States v. Galpin , 720 F.3d 436, 448-50 (2d Cir. 2013). Here, the challenged text messages were seized pursuant to the other, specific portion of the warrant that authorized searching the phone for messages.

[26] Based on the foregoing, we conclude that the challenged text messages were not seized pursuant to an impermissible general warrant. Therefore, the court did not abuse its discretion by admitting the text messages over Carter's objection.

Reasonableness

[27] Carter briefly argues that the search was unreasonable under Article 1, Section 11 of the Indiana Constitution. Under the Indiana Constitution, the legality of a search "turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances." Litchfield v. State , 824 N.E.2d 356, 359 (Ind. 2005). In evaluating the reasonableness of a search, we balance three factors: (1) the degree of suspicion of unlawful activity; (2) the degree of intrusion the method of the search imposes on the citizen's ordinary activities; and (3) the extent of law enforcement needs. Id. at 361.

[28] Here, the search did not greatly intrude upon Carter's activities. Nonetheless, the search was intrusive in nature, as it involved searching a personal cell phone-a device that often contains highly personal information. However, law enforcement had located contraband in Carter's vehicle-specifically, a quantity of methamphetamine with a street value around $20,000 and a quantity of heroin with a street value between $9,000 and $12,000. Thus, law enforcement had a high degree of suspicion of unlawful activity. Furthermore, searching the phone advanced law enforcement needs related to identifying drug-dealing activity and protecting the community from the hazards of methamphetamine and heroin. On balance, we conclude that the search was reasonable under the totality of the circumstances.

Opinion Testimony

[29] Carter argues that the trial court abused its discretion by admitting testimony from Detective Budde, who opined that the quantity of heroin seized was "typical of a dealer amount." Tr. Vol. IV at 224. Because Carter failed to raise a contemporaneous objection, Carter's only available argument with respect to admission of the testimony is that the admission constituted fundamental error. See, e.g. , Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010). Yet, Carter declined to argue fundamental error, despite the opportunity to do so. Thus, Carter has waived any fundamental-error argument. See Ferguson v. State , 40 N.E.3d 954, 957 (Ind. Ct. App. 2015), trans. denied . Waiver notwithstanding, Carter argues that Detective Budde's testimony was inadmissible because it was inaccurate and contrary to law. To the extent Carter's argument involves statutory interpretation, we interpret statutes de novo . Johnson v. State , 87 N.E.3d 471, 472 (Ind. 2017).

[30] Carter directs us to Indiana Code Section 35-48-4-1(a)(2), which criminalizes the possession of heroin with the intent to deliver the drug. Under the statutory framework, an individual can be convicted of dealing under either of two circumstances: (1) if the amount possessed is at least twenty-eight grams or (2) "there is evidence in addition to the weight of the drug that the person intended to ... deliver ... the drug." I.C. § 35-48-4-1(b). Here, the amount of heroin was less than twenty-eight grams, and so a conviction required additional evidence of Carter's intent to deliver the heroin. See id.

[31] According to Carter, the very existence of the twenty-eight-gram presumption precludes the admission of testimony indicating that less heroin could constitute a "dealer quantity" of heroin. He argues that "[t]he legislature has made a decision about the quantity of drug which may be interpreted as presumptive of dealing, and the officer has rendered an opinion that is contrary to what the legislature found." Reply Br. at 6. However, we conclude that the statute does not operate to bar admission of probative evidence related to the defendant's intent to deal the drug. Rather, the statute eliminates the State's burden of presenting additional intent evidence when there is evidence that the drug weighed at least twenty-eight grams. Put another way, once the State has introduced evidence that the defendant possessed the statutory amount, there is sufficient evidence to establish the defendant's intent to deliver the drug. Yet, the State is not foreclosed from presenting additional evidence of intent, and the statutory framework does not otherwise affect the admissibility of evidence of intent where, as here, the quantity possessed is less than twenty-eight grams.

[32] Thus, we conclude that the trial court did not err by admitting the challenged testimony.

Conclusion

[33] The court did not abuse its discretion by admitting text messages procured from the search of Carter's cell phone; the search was conducted pursuant to a valid search warrant and the search was reasonable under the totality of the circumstances. The court did not err in admitting Detective Budde's testimony.

[34] Affirmed.

Najam, J., and May, J., concur.

      Ind. Code § 35-48-4-1(a)(2), -1(e)(1).

      I.C. § 35-48-4-1.1(a)(2), -1.1(e)(1).

      I.C. § 35-50-2-8.

      We heard oral argument on this case on June 7, 2018, at Ivy Tech Community College in Sellersburg, Indiana. We thank Ivy Tech and its guests from the Sherman Minton American Inn of Court for their hospitality, and we thank counsel for their advocacy.

      The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
      Using nearly identical language, Article 1, Section 11 of the Indiana Constitution provides: "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."

      At oral argument, Carter conceded that there was probable cause to issue a search warrant. However, we must engage in some discussion of probable cause, as the topic informs other aspects of our analysis.

      Upon a challenge to whether probable cause supported the issuance of a search warrant, "[t]he duty of the reviewing court is to determine whether the magistrate had a 'substantial basis' for concluding that probable cause existed." Id. at 953 (quoting Gates , 462 U.S. at 238-39, 103 S.Ct. 2317 ). There is a substantial basis when "reasonable inferences drawn from the totality of the evidence support the determination of probable cause." Jackson v. State , 908 N.E.2d 1140, 1142 (Ind. 2009). Appellate courts review de novo whether a substantial basis supported the determination of probable cause, Spillers , 847 N.E.2d at 953, while affording deference to the magistrate's decision to issue the warrant. McGrath v. State , 95 N.E.3d 522, 527 (Ind. 2018).

      Carter also relies on Ogburn v. State , 53 N.E.3d 464 (Ind. Ct. App. 2016), trans. denied , but that case did not involve an insufficiently particular search warrant. Rather, in Ogburn , this Court determined that a warrant was not supported by probable cause and that, in the alternative, the ensuing search "clearly exceeded the scope of the warrant." 53 N.E.3d at 474. To the extent Ogburn comments on particularity, we regard its statements as dicta. See Koske v. Townsend Eng'g Co. , 551 N.E.2d 437, 443 (Ind. 1990) ("[S]tatements not necessary in the determination of the issues presented ... are not binding and do not become the law.").

      At oral argument, there was some discussion about the possibility of officers coming across evidence of a different crime while combing through electronic files pursuant to a warrant. Because the case before us does not present such facts, our opinion does not extend to that hypothetical situation. See Snyder v. King , 958 N.E.2d 764, 786 (Ind. 2011) (observing that courts should decide cases "only on the specific facts of the particular case and not on hypothetical situations"). Nonetheless, we expect that existing caselaw provides ample analogues should this issue arise in the electronic context. See, e.g. , Overstreet , 783 N.E.2d at 1160 (determining that the plain view doctrine permitted the seizure of evidence that officers came across while carrying out a valid search warrant).

      In his Appellant's Brief, Carter states that the evidence was admitted over his objection. However, the record indicates that no objection was made at the time the evidence was admitted, and it does not appear that the trial court entered a continuing objection that would have preserved the issue. See, e.g. , Kindred v. State , 524 N.E.2d 279, 292 (Ind. 1988).

      In its brief, the State pointed out that Carter had failed to raise a contemporaneous objection and had not argued fundamental error on appeal. Thereafter, Carter did not argue fundamental error in his Reply Brief.

      In a footnote, Carter briefly asserts that Detective Budde was not qualified to give opinion testimony as a skilled witness pursuant to Indiana Evidence Rule 701. At oral argument, however, Carter conceded that Detective Budde was qualified to give the opinion testimony, but maintained that the legislature preempted the particular type of opinion testimony due to the framework of the statute at issue.

      Moreover, it is not as though the weight and weight-based opinion testimony constituted the only evidence indicative of Carter's intent to deliver the heroin. Rather, the evidence indicated that Carter possessed multiple types of drugs with a collective street value around $30,000, and that he had met with several individuals prior to the traffic stop, at one point instructing an individual to covertly pull behind his vehicle.


author: Najam, Judge.

text:
    Alonzo R. WEEKLY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 20A03-1712-CR-2922
    Court of Appeals of Indiana.
    Filed June 29, 2018
    Attorney for Appellant: Donald R. Shuler, Barkes, Kolbus, Rife & Shuler, LLP, Goshen, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Monika Prekopa Talbot, Supervising Deputy Attorney General, Indianapolis, Indiana
   Najam, Judge.

Statement of the Case

[1] Alonzo R. Weekly appeals his convictions and sentence following a jury trial for operating a vehicle while intoxicated with a previous conviction, as a Level 6 felony, and a habitual vehicular substance offender ("HVSO") enhancement. He presents two issues for our review:

1. Whether the trial court abused its discretion when it admitted into evidence the result of a chemical breath test and the testimony of two officers.
2. Whether his sentence is inappropriate in light of the nature of the offense and his character.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] A 12:41 a.m. on March 11, 2017, Officer Kevin Corona and Corporal Lee Brooks with the Elkhart Police Department observed Weekly driving a motorized scooter through an intersection "at what appeared to be a high rate of speed." Tr. Vol. II at 85. The officers, who were in a marked police vehicle, began to follow Weekly, and they witnessed Weekly fail to stop at two stop signs. Accordingly, the officers initiated a traffic stop.

[4] When Officer Corona and Corporal Brooks approached Weekly, they both observed that he had slurred speech and bloodshot, glassy eyes. They could also smell an odor of alcohol on Weekly's breath. Based on those observations, Officer Corona conducted three standardized field sobriety tests on Weekly. Weekly failed the first test, and he did not complete the other two tests. Officer Corona then asked Weekly to submit to a certified chemical breath test at the police station. Weekly agreed to take the test. At that point, the officers transported Weekly to the police station, and Corporal Brooks performed the certified breath test. The results of the breath test showed that Weekly had an alcohol concentration of 0.207 gram of alcohol per 210 liters of breath.

[5] The State charged Weekly with one count of operating a vehicle while intoxicated in a manner that endangers a person, as a Class A misdemeanor (Count I), and one count of operating a vehicle with an alcohol concentration equivalent to at least 0.15 gram of alcohol per 210 liters of breath, as a Class A misdemeanor (Count II). The State later added one count of operating a vehicle while intoxicated with a previous conviction, as a Level 6 felony, and alleged that Weekly was an HVSO. Prior to trial, Weekly filed a motion to suppress evidence alleging that the evidence against him was obtained illegally because "the stop was unjustified without reasonable suspicion or probable cause." Appellant's App. Vol. II at 34. The trial court denied that motion after a hearing.

[6] The trial court held a bifurcated jury trial on October 23, 2017. During the first phase of the trial, both Officer Corona and Corporal Brooks testified to their observations of Weekly during the traffic stop, including the results of the field sobriety tests, without objection from Weekly. The State also presented as evidence, without objection, the video recording of the traffic stop. And the State presented the results of Weekly's chemical breath test, which the trial court admitted over Weekly's objection.

[7] At the conclusion of the first phase of his trial, the jury found Weekly guilty of Counts I and II. In phase two of the trial, Weekly pleaded guilty to operating a vehicle while intoxicated with a previous conviction, as a Level 6 felony, and he admitted to being an HVSO. The trial court merged the guilty verdicts for Counts I and II and entered judgment of conviction on the Level 6 felony and the HVSO enhancement. The trial court sentenced Weekly to two years with the Department of Correction for operating a vehicle while intoxicated with a previous conviction, as a Level 6 felony. And, for the HVSO enhancement, the trial court imposed "an additional three (3) years at the Indiana Department of Correction, consecutive to the sentence" for the Level 6 felony. Appellant's App. Vol. II at 124. This appeal ensued.

Discussion and Decision

Issue One: Admission of Evidence

[8] Weekly first contends that the trial court abused its discretion when it admitted into evidence the results of the chemical breath test and the officers' testimony, which included their observations of Weekly following the traffic stop and the results of the field sobriety tests. Weekly initially challenged the admission of this evidence through a motion to suppress but now appeals following a completed trial. Thus, the issue is appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial. Lanham v. State , 937 N.E.2d 419, 421-22 (Ind. Ct. App. 2010). This court has previously held that

[o]ur review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. [ Lundquist v. State , 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005).] We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Id. However, we must also consider the uncontested evidence favorable to the defendant. Id.

Harbaugh v. State , 96 N.E.3d 102, 106 (Ind. Ct. App. 2018).

[9] Weekly specifically contends that the trial court abused its discretion when it admitted the results of the chemical breath test over his objection and that, without that evidence, "there would be no remaining probative evidence sufficient to convict [Weekly] of Operating While Intoxicated or Operating with an ACE of 0.15 or greater." Appellant's Br. at 18. He also contends that the trial court committed fundamental error when it admitted into evidence the officers' testimony, including their observations of Weekly during the traffic stop and the results of the field sobriety tests.

[10] Weekly asserts that the trial court should not have admitted the evidence because the officers did not have reasonable suspicion to stop him and, therefore, the stop violated his Fourth Amendment rights. The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. U.S. Const. amend. IV.

[11] Our Supreme Court has held that

[o]ur jurisprudence reflects two types of police encounters that implicate Fourth Amendment protection: the investigatory stop and the custodial arrest. Clark v. State , 994 N.E.2d 252, 261 (Ind. 2013). An investigatory stop is generally brief in duration and is constitutionally permissible so long as the law enforcement officer "has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.' " United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). The custodial arrest constitutes a greater restriction upon the subject's liberty and requires a commensurately greater justification: probable cause. Clark , 994 N.E.2d at 261.

State v. Keck , 4 N.E.3d 1180, 1184 (Ind. 2014).

[12] Here, the question is whether the police had reasonable suspicion to support a brief investigatory stop, i.e., a " Terry stop," of Weekly's motorized scooter. "When determining whether an officer had reasonable suspicion for a Terry stop, we consider whether 'the totality of the circumstances' presented 'a particularized and objective basis' for the officer's belief that the subject was engaged in criminal activity." Id. (quoting Sellmer v. State , 842 N.E.2d 358, 360 (Ind. 2006) ).

[13] It is well-settled that "[i]f an officer observes a driver commit a traffic violation, he has probable cause-and thus also the lesser included reasonable suspicion-to stop that driver." Id. And, here, both Officer Corona and Corporal Brooks testified that they witnessed Weekly fail to stop at two stop signs. Thus, the officers observed Weekly commit two traffic violations and, as such, the officers had probable cause to stop Weekly. See, e.g., Staten v. State , 946 N.E.2d 80, 83 (Ind. Ct. App. 2011). And as soon as Officer Corona and Corporal Brooks approached Weekly, they noticed that his speech was slurred, his eyes were bloodshot, and his breath smelled of alcohol. Weekly then attempted to perform three field sobriety tests, but he failed one and did not complete the other two. Finally, Weekly consented to a chemical breath test. The traffic stop and subsequent investigation did not violate Weekly's Fourth Amendment rights. Weekly's argument on appeal is simply a request for this court to reweigh the evidence, which we will not do. The trial court did not abuse its discretion when it admitted into evidence the results of the breath test that followed the traffic stop. See id. And the trial court did not commit any error, let alone fundamental error, when it admitted the testimony of the two officers. Accordingly, we affirm Weekly's convictions.

Issue Two: Sentencing

[14] Weekly next contends that his sentence is inappropriate in light of the nature of the offense and his character. Indiana Appellate Rule 7(B) provides that "[t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." The Indiana Supreme Court has recently explained that:

The principal role of appellate review should be to attempt to leaven the outliers ... but not achieve a perceived "correct" result in each case. Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State , 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State , 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[15] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment "should receive considerable deference." Cardwell , 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day turns on "our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State , 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court "prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State , 29 N.E.3d 111, 122 (Ind. 2015). Further, the location where a sentence is to be served is an appropriate focus for application of our review and revise authority. See Biddinger v. State , 868 N.E.2d 407, 414 (Ind. 2007).

[16] Weekly was convicted of one count of operating a vehicle while intoxicated with a previous conviction, as a Level 6 felony, and he was found to be an HVSO. The sentencing range for a Level 6 felony is six months to two and one-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b) (2018). And the court shall sentence a person found to be an HVSO to an additional term of one to eight years of imprisonment. I.C. § 9-30-15.5-2(d).

[17] Here, the trial court identified as mitigating factors the fact that Weekly has an outstanding child support obligation and that Weekly's imprisonment will place a hardship on his children. The trial court also acknowledged the fact that Weekly's Indiana Risk Assessment System score reflected a low risk to reoffend. But the trial court found the following aggravating circumstances: Weekly's criminal history; that Weekly has a history of violating conditions of probation and community corrections; and that previous sanctions have not been successful in keeping Weekly from engaging in criminal activity. Accordingly, the trial court sentenced Weekly to an aggregate term of five years in the Department of Correction.

[18] Weekly maintains that his sentence is inappropriate in light of the nature of the offense because "the actual actions by [Weekly] in the present case are the bare elements of an offense that is a Class A misdemeanor" and that his offense was only elevated to a Level 6 felony because of a prior offense. Appellant's Br. at 24. He further contends that the nature of his offense is "unremarkable" and that he "was cooperative with the police during the traffic stop and during his arrest[.]" Id. Be that as it may, we consider both the nature of the offense and Weekly's character in our review. See Williams v. State , 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). And Weekly's character persuades us that his sentence is not inappropriate.

[19] At the time of the instant offense, Weekly's criminal history included three felony convictions and four misdemeanor convictions, and three of those convictions were for operating a vehicle while intoxicated. And Weekly has had his probation revoked on one previous occasion. Further, Weekly was on probation for two prior instances of operating a vehicle while intoxicated when he committed the current offense. As such, we cannot say that Weekly's five-year sentence is inappropriate in light of his character.

[20] Weekly also asserts that his placement in the Department of Correction is inappropriate because his incarceration would result in a hardship on his children and because "there were more appropriate options to simply warehousing a defendant in the Department of Corrections [sic] for the entirety of a sentence." Appellant's Br. at 27. But, as the trial court found, Weekly "has a history of violating conditions of probation and community corrections" and "other sanctions previously imposed have not been successful in keeping [Weekly] from engaging in criminal activity." Appellant's App. Vol. II at 123. Accordingly, Weekly has not demonstrated that his placement in the Department of Correction is inappropriate. Weekly's five-year sentence executed in the Department of Correction is not inappropriate and we affirm his sentence.

[21] However, we also address the State's contention that the trial court erred when it ordered the HVSO portion of Weekly's sentence to be consecutive to the sentence for the felony conviction. The State contends that "the habitual portion should be an enhancement of the sentence for the Level 6 felony" pursuant to Indiana Code Section 9-30-15.5-2. Appellee's Br. at 5 n.1. We agree.

[22] Indiana Code Section 9-30-15.5-2 provides, in relevant part, that "[t]he court shall sentence a person found to be a habitual vehicular substance offender to an additional fixed term of at least one (1) year but not more than eight (8) years of imprisonment, to be added to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3." I.C. § 9-30-15.5-2(d) (emphasis added).

[23] We hold that the "to be added" language in the HVSO statute is equivalent to the "attach" language in Indiana's habitual offender statute, which provides, in relevant part:

Habitual offender is a status that results in an enhanced sentence. It is not a separate crime and does not result in a consecutive sentence. The court shall attach the habitual offender enhancement to the felony conviction with the highest sentence imposed and specify which felony count is being enhanced.

I.C. 35-50-2-8(j) (emphasis added).

[24] And it is well-settled that " '[a] habitual offender finding does not constitute a separate crime nor result in a separate sentence, but rather results in a sentence enhancement imposed upon the conviction of a subsequent felony.' " Kilgore v. State , 922 N.E.2d 114, 120 (Ind. Ct. App. 2010) (quoting Greer v. State , 680 N.E.2d 526, 527 (Ind. 1997) ). Accordingly, we hold that an HVSO finding does not constitute a separate crime nor result in a separate sentence but is an enhancement to an underlying felony conviction. The trial court erred when it ordered the HVSO sentence to run as a separate, consecutive sentence. We reverse that portion of the sentencing order and remand to the trial court with instructions to resentence Weekly in accordance with this opinion. See id.

[25] Affirmed in part, reversed in part, and remanded with instructions.

Robb, J., and Altice, J., concur.

      Weekly affirmatively stated that he had "no objection" to the admission of the video exhibit as evidence. Tr. Vol. II at 98. However, Weekly did object to the publication of the video. The trial court granted the State's motion to publish over Weekly's objection.

      Weekly was also on probation for two prior offenses at the time of his sentencing hearing. Accordingly, the trial court revoked Weekly's probation and imposed his previously suspended sentence for one offense and ordered Weekly back to reporting probation for the second offense. The trial court ordered both of those sentences to run consecutive to the sentence imposed for the instant offense.

      Throughout his brief on appeal, Weekly also contends that the trial court erred when it denied his motion to suppress. However, because Weekly appeals after a completed trial, "the question of whether the trial court erred in denying his motion to suppress is no longer viable." Reinhart v. State , 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).

      Weekly alleges that the trial court committed fundamental error when it admitted the officers' testimony because he did not object at trial.

      While Weekly makes one reference in his brief to Article I, Section 11 of Indiana Constitution, he has not developed a separate argument on appeal based upon the Indiana Constitution. Accordingly, we will only review whether the traffic stop violated his rights under the federal constitution.

      Weekly contends that the officers did not have reasonable suspicion to stop him because "neither officer can testify to what the relevant speed limit was to establish that [Weekly] committed the traffic violation of speeding." Appellant's Br. at 15-16. But, while both officers testified that Weekly's high rate of speed is what drew the attention of the officers, the affidavit for probable cause states that the reason for the traffic stop was only because Weekly had "disregarded stop signs[.]" Appellant's App. Vol. II at 15.


author: May, Judge.

text:
    Tony Lemorris CLEMONS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 79A02-1712-CR-2931
    Court of Appeals of Indiana.
    Filed June 29, 2018
    Attorney for Appellant: Timothy P. Broden, Lafayette, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, Indiana
   May, Judge.

[1] Tony Lemorris Clemons appeals his sentence for Level 5 felony domestic battery and Level 6 felony invasion of privacy. Clemons asserts the trial court erred when it imposed consecutive sentences for the two convictions because those convictions "were closely related in time, place, and circumstances." (Br. of Appellant at 5.) As we find no abuse of discretion, we affirm.

Facts and Procedural History

[2] Clemons and S.C. were married. Pursuant to a no contact order entered in 2016, Clemons was not allowed to interact with S.C. On April 23, 2017, S.C. was at a bar in Lafayette, Indiana. Clemons went into the bar and sat next to S.C. Clemons took S.C.'s phone but S.C. would not give him the password. Clemons left the bar with the phone. S.C. followed him to the parking lot where she attempted to retrieve her phone. Clemons refused to give it to her. Clemons grabbed S.C. and threw her, headfirst, on the ground. When the police arrived, S.C. was bleeding from a head wound.

[3] The State charged Clemons with four counts of domestic battery and two counts of invasion of privacy. Pursuant to a plea agreement, Clemons pled guilty to one count of Level 5 felony domestic battery and one count of Level 6 felony invasion of privacy. In return, the State dismissed the other charges under this cause number and a pending petition to revoke probation in an unrelated case. The trial court found the aggravators outweighed the mitigators and imposed a five-year sentence for domestic battery and a two-year sentence for invasion of privacy. The trial court ordered the sentences served consecutively.

Discussion and Decision

[4] Clemons argues the trial court erred by imposing consecutive sentences when the two convictions happened so closely in time as to warrant a single incident. Clemons argues this is one single incident because he could not commit battery on S.C. without first committing invasion of privacy. As such, he argues the sentences should have been imposed concurrently.

[5] Sentencing decisions rest within the sound discretion of the trial court and will be disturbed only on a showing of abuse of discretion. Anderson v. State, 989 N.E.2d 823, 826 (Ind. Ct. App. 2013), trans. denied. An abuse of discretion occurs when the decision is clearly against the logic and effect of the evidence before the court or the reasonable inferences to be drawn therefrom. Id.

[6] If not a violation of the prohibition of double jeopardy, and if not in violation of applicable statutory mandates, "[a] trial court may impose consecutive sentences for separate and distinct crimes that arise out of a single confrontation involving the same victim." Vermillion v. State , 978 N.E.2d 459, 466 (Ind. Ct. App. 2012). It is undisputed that Clemons' crimes are not crimes of violence as defined in Indiana Code section 35-50-1-2(a). Therefore, his sentences are subject to the limits as prescribed under Indiana Code section 35-50-1-2(d)(2).

[7] An "episode of criminal conduct" is defined as "offenses or a connected series of offenses that are closely related in time, place, and circumstance." Ind. Code § 35-50-1-2(b). If consecutive sentences are imposed for an episode of criminal conduct, the aggregate sentence is limited by the "most serious crime for which the defendant is sentenced[.]" Ind. Code § 35-50-1-2(d)(2). If that crime "is a Level 5 felony, the total consecutive terms of imprisonment may not exceed seven (7) years." Id. The trial court here ordered a seven-year sentence, which was within the statutory limits for a single episode of criminal conduct. Accordingly, Clemons cannot demonstrate error in his sentence based on that statute. See Williams v. State , 889 N.E.2d 1274, 1282-83 (Ind. Ct. App. 2008) (aggregate sentences equaling less than the statutory limit are not a violation of Indiana Code section 35-50-1-2 ), trans. denied .

[8] Clemons does not explicitly argue his right against double jeopardy has been implicated. Nevertheless, to support his assertion the trial court erred when it ordered him to serve the sentences for his two convictions consecutively, Clemons relies on a double jeopardy analysis regarding crimes arising from a single incident from Kocielko v. State , 938 N.E.2d 243 (Ind. Ct. App. 2010), on rehearing Kocielko v. State , 943 N.E.2d 1282 (Ind. Ct. App. 2011), trans. denied . In Kocielko , we held the trial court should have imposed concurrent sentences in order to reflect "the episodic nature of the crimes[.]" Id. at 1283.

[9] However, in Vermillion , we noted Kocielko was not primarily concerned with consecutive sentencing but rather double jeopardy. Vermillion , 978 N.E.2d at 466.

We then declined to interpret Kocielko to mean a trial court may not impose consecutive sentences for separate crimes arising out of a single confrontation with a single victim. Id. Indiana Code section 35-50-1-2 supports this holding in that it specifically allows a trial court to impose consecutive sentencing for "felony convictions arising out of an episode of criminal conduct" provided the aggregate sentence is capped based on the most serious crime for which the defendant is convicted.

[10] Here, the trial court sentenced Clemons to five years for domestic battery and two years for invasion of privacy. Finding the aggravators outweighed the mitigators, the trial court also noted the two offenses were separate, stating, "the invasion of privacy actually occurred even prior to the battery although it occurred close in time, there were two separate offenses here." (Tr. at 68.) The aggregate sentence is not more than the statutory maximum of seven years set forth for a Level 5 felony in Indiana Code section 35-50-1-2(d)(2). Therefore, we cannot say the trial court abused its discretion in ordering the sentences to be served consecutive to one another. See Vermillion , 978 N.E.2d at 466 (if crimes "constitute a single episode of criminal conduct" and are not crimes of violence, the aggregate sentence may not exceed the maximum imprisonment as defined in Indiana Code section 35-50-1-2 but the trial court is allowed to impose consecutive sentences).

[11] As Clemons has not demonstrated the trial court abused its discretion when it ordered Clemons to serve his sentences consecutively, we affirm.

[12] Affirmed.

Riley, J., and Mathias, J., concur.

      Ind. Code § 35-42-2-1.3 (2016).

      Ind. Code § 35-46-1-15.1 (2016).

      Clemons' brief includes no standard of review. Appellate Rule 46(A)(8)(b) provides the argument section of an appellant's brief must contain "a concise statement of the applicable standard of review."


text:
    Jermaine JACKSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A02-1712-CR-2899
    Court of Appeals of Indiana.
    FILED July 16, 2018
    Attorney for Appellant: Valerie K. Boots, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, Indiana
   Najam, Judge.

Statement of the Case

[1] Jermaine Jackson appeals his convictions for attempted murder, a Level 1 felony; three counts of criminal recklessness, as Level 6 felonies; and carrying a handgun without a license, as a Class A misdemeanor, following a jury trial. He presents a single issue for our review, namely, whether the trial court abused its discretion when it admitted evidence of his prior bad acts. We affirm.

Facts and Procedural History

[2] Jackson and Tranitra Tipton were previously married and had two children together, A.J. and J.J. In January 2016, after Jackson and Tipton had divorced, Tipton began dating Troy Pollard, and they had a child together, N.P., who was born in November 2016.

[3] On November 11, 2016, Tipton dropped off A.J. and J.J. at their daycare center, and Jackson was there. Jackson saw that J.J.'s hair had been cut and asked Tipton who had cut it. When Tipton told Jackson that Pollard had cut J.J.'s hair, Jackson "got angry," yelled at Tipton, threatened to beat her up, and threatened to "kill [Pollard] if he touch[ed J.J.'s] hair again." Tr. Vol. 2 at 239. Later that afternoon, when Tipton and Pollard returned to the daycare center to pick up the children, Jackson was there and confronted Pollard. Jackson began threatening Pollard and said, "N****, I [will] kill you." Id. at 241. Tipton called the police, and Jackson left the scene with the children.

[4] On January 20, 2017, Pollard, Tipton, A.J., J.J., and N.P. arrived home at 9:45 p.m. after an evening out. They were about to exit their minivan when Pollard saw a man running towards him. As the man got closer, Pollard recognized the man as Jackson. Jackson was wearing a black hoodie sweatshirt that he often wore, and he was wearing black sweatpants and black tennis shoes. When Jackson reached the minivan, he fired a semi-automatic handgun at Pollard four or five times, striking him twice in his chest and once in his back, near his spine. Tipton saw that the shooter was Jackson before he fled the scene, and she yelled, "That was Jermaine." Id. at 230. Tipton then drove Pollard to the hospital. On the way there, Pollard called his mother and told her that Jackson had shot him.

[5] At the hospital, officers with the Indianapolis Metropolitan Police Department ("IMPD") interviewed Pollard and Tipton, who both identified Jackson as the shooter. Tipton gave the officers Jackson's address and phone number, and she gave them the address for Jackson's aunt living in Chicago. When Pollard was released from the hospital, he, Tipton, and the children went to Michigan to stay with relatives, and they stayed there until Jackson was apprehended at his aunt's house in Chicago on January 30. In the course of their investigation, IMPD officers discovered that Jackson's cell phone had "pinged" two cell phone towers at 8:56 p.m. and 10:00 p.m. on January 20, at locations approximately fifteen minutes and ten minutes away from the scene of the shooting, respectively. Tr. Vol. 3 at 120.

[6] The State charged Jackson with attempted murder, as a Level 1 felony; three counts of criminal recklessness, as Level 6 felonies; carrying a handgun without a license, as a Class A misdemeanor; unlawful possession of a firearm by a domestic batterer, a Class A misdemeanor; and invasion of privacy, as a Class A misdemeanor. Prior to trial, the State filed a notice of intent to introduce evidence of other crimes, wrongs, or acts under Indiana Evidence Rule 404(b), namely, Jackson's threats to Pollard and Tipton in November 2016. Following a hearing, the trial court granted the State permission to introduce the Rule 404(b) evidence over Jackson's objection. Also prior to trial, the court dismissed the unlawful possession of a firearm by a domestic batterer on the State's motion, and the court ordered that the invasion of privacy charge would be severed and the trial would be bifurcated. At trial, Jackson's defense was that he was not the shooter. The first jury trial resulted in a mistrial after the jury could not reach a unanimous verdict. After the first phase of the second trial, a jury found Jackson guilty of attempted murder, carrying a handgun without a license, and three counts of criminal recklessness. The State dismissed the invasion of privacy count. The trial court entered judgment of conviction accordingly and sentenced Jackson to an aggregate term of thirty-five years executed. This appeal ensued.

Discussion and Decision

[7] Jackson contends that the trial court abused its discretion when it admitted the evidence of threats he had made to Pollard and Tipton in November 2016. Jackson maintains that the "prior bad act evidence here was a single, isolated, one-minute-long incident between [Jackson and Pollard], occurring months before the charged offense." Appellant's Br. at 14. And he asserts that "the challenged evidence is not sufficiently probative of the two men's relationship to justify its admission, and it unfairly suggested Jackson had a propensity to kill." Id. We cannot agree.

[8] As our Supreme Court has explained:

Generally, a trial court's ruling on the admission of evidence is accorded a great deal of deference on appeal. Because the trial court is best able to weigh the evidence and assess witness credibility, we review its rulings on admissibility for abuse of discretion and only reverse if a ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.

Hall v. State , 36 N.E.3d 459, 466 (Ind. 2015) (citations and quotation marks omitted).

[9] Indiana Evidence Rule 404(b) generally prohibits "[e]vidence of a crime, wrong, or other act ... to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." But such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id.

Evidence Rule 404(b) is designed to prevent the jury from making the "forbidden inference" that prior wrongful conduct suggests present guilt. Halliburton v. State , 1 N.E.3d 670, 681 (Ind. 2013) (citing Byers v. State , 709 N.E.2d 1024, 1026-27 (Ind. 1999) ). Or, as stated in Bassett v. State , 795 N.E.2d 1050, 1053 (Ind. 2003), the purpose behind Evidence Rule 404(b) is to "prevent[ ] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because ... he has a tendency to commit other crimes." (internal quotation omitted). In assessing the admissibility of evidence under Evidence Rule 404(b), the trial court must first determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act, and then balance the probative value of the evidence against its prejudicial effect pursuant to Evidence Rule 403. Halliburton , 1 N.E.3d at 681-82 (citing Wilson v. State , 765 N.E.2d 1265, 1270 (Ind. 2002) ). The effect of Rule 404(b) is that evidence is excluded only when it is introduced to prove the forbidden inference of demonstrating the defendant's propensity to commit the charged crime. Rogers v. State , 897 N.E.2d 955, 960 (Ind. Ct. App. 2008), trans. denied .

Laird v. State , 103 N.E.3d 1171, 1177, No. 69A05-1707-CR-1709, 2018 WL 2994579, at *4 (Ind. Ct. App. June 15, 2018), trans. pending .

[10] Here, the State contends that the challenged evidence was not admitted to show Jackson's propensity to commit attempted murder; rather, it was admitted to show Jackson's hostility towards Pollard and his motive for shooting him. See id. ; Evid. R. 404(b). And Jackson "acknowledges that evidence of motive is always relevant in the proof of a crime," citing Ross v. State , 676 N.E.2d 339, 346 (Ind. 1996). Appellant's Br. at 17.

[11] Still, Jackson maintains that the evidence of a single prior incident, specific to his anger over a haircut, is not probative of his motive here. In support of that contention, Jackson attempts to distinguish this case from those cited by the State in its brief on appeal, most notably Iqbal v. State , 805 N.E.2d 401, 408 (Ind. Ct. App. 2004). In Iqbal , we observed that "[n]umerous cases have held that where a relationship between parties is characterized by frequent conflict , evidence of the defendant's prior assaults and confrontations with the victim may be admitted to show the relationship between the parties and motive for committing the crime." 805 N.E.2d 401, 408 (Ind. Ct. App. 2004) (emphasis added). Here, the evidence does not show a history of frequent conflicts between Pollard and Jackson. Indeed, in addition to the November 11, 2016, incident, the evidence shows only one other brief encounter between the two men prior to the January 2017 shooting.

[12] However, given the nature of the two separate encounters between the men on November 11, 2016-in particular, Jackson's explicit threats to kill Pollard over something as trivial as a child's haircut-we hold that the evidence of the November 11, 2016, incidents is probative of Jackson's hostility towards Pollard and his motive in the shooting only two and a half months later. See id. (holding that defendant's prior threat to kill his wife, while holding a gun to her head, was "probative of the relationship between [the defendant and his wife] and his hostility towards her," and "highly relevant" to the issue of motive, where the threat had occurred more than three months prior to her murder). Indeed, defense counsel acknowledged at the Rule 404(b) hearing that the evidence "gives an idea [of] what the relationship between the two men" was like. Tr. Vol. 2 at 59. And the probative value of that evidence outweighed any prejudice to Jackson. See Laird , 103 N.E.3d at 1176-77, 2018 WL 2994579, at *4 ; see also Snow v. State , 77 N.E.3d 173, 177 (Ind. 2017) (stating trial court has "wide discretion" in making Rule 403 determination). Thus, the trial court did not abuse its discretion when it admitted the challenged evidence.

[13] Further, even if the trial court committed error in admitting the evidence of Jackson's prior threats against Pollard, that error was harmless.

An error is harmless when it results in no prejudice to the "substantial rights" of a party. Camm v. State , 908 N.E.2d 215, 225 (Ind. 2009) ; Ind. Trial Rule 61.[ ] While there are important contextual variations to this rule,[ ] the basic premise holds that a conviction may stand when the error had no bearing on the outcome of the case. At its core, the harmless-error rule is a practical one, embodying "the principle that courts should exercise judgment in preference to the automatic reversal for error and ignore errors that do not affect the essential fairness of the trial."[ ] United States v. Harbin , 250 F.3d 532, 546 (7th Cir. 2001) (internal quotation marks omitted).

Durden v. State , 99 N.E.3d 645, 652 (Ind. 2018).

[14] Here, at trial, Jackson alleged that Pollard and Tipton could not have identified him as the shooter given that it was dark outside and the encounter was brief. We disagree and hold that the evidence of Jackson's guilt was overwhelming. Pollard and Tipton, who had known Jackson for five years and had two children with him, both saw Jackson shoot Pollard. While the incident occurred at night, and while the shooting happened over the course of seconds before Jackson fled the scene, both eyewitnesses identified him immediately, and Tipton even recognized the black hoodie sweatshirt Jackson was wearing at the time of the shooting. In addition, the cell phone tower records show that Jackson was using his cell phone in the area both before and after the shooting, which evidence Jackson has not challenged on appeal. In sum, Jackson cannot show that the admission of the evidence regarding the November 11, 2016, threats prejudiced his substantial rights. See id.

[15] Affirmed.

Vaidik, C.J., and Pyle, J., concur.

      Officers found four shell casings at the scene, but Pollard and Tipton found another shell casing in the minivan after they returned home from Michigan.

      Jackson's suggestion that, because there was no evidence that Pollard cut J.J.'s hair again after November 11, 2016, his threats on that date are not probative of motive is not well taken. That Jackson would threaten to kill his ex-wife and her boyfriend over a child's haircut is plainly indicative of a motive to kill regardless of whether the condition precedent, i.e., that Pollard cut J.J.'s hair again, did not occur.