text:
    Dontevius HUTCHERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A03-1109-CR-420.
    Court of Appeals of Indiana.
    April 30, 2012.

      P. Jeffrey Schlesinger, Appellate Division, Office of the Public Defender, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

This case addresses the unusual circumstance where, in a criminal trial, the State attempts to use a witness’s prior statement to refresh his recollection, but the witness cannot read. Dontevius Hutcherson was charged with multiple counts, including murder, attempted murder, and robbery. When the police took a statement from Victor Lee, he said that he saw Hutcher-son shortly after the shootings and that Hutcherson told him that he had shot and robbed two men. However, at trial, Lee claimed that he could not recall any of the information regarding a conversation with Hutcherson. Instead, he claimed that he could only remember that he had given a statement to police. Also, because he could not read, he could only verify that the signatures on each page of the statement were his own. To refresh Lee’s recollection, the prosecutor read Lee’s statement aloud in front of the jury, and the jury subsequently found Hutcherson guilty as charged.

Hutcherson appeals, claiming that he was denied his constitutional right to confront and cross-examine Lee. The State claims waiver due to insufficient objection, and Hutcherson claims fundamental error. Finding no reversible error, we affirm.

Facts and Procedural History

On the night of January 19, 2010, Hutch-erson was drinking alcohol and smoking marijuana with several people at the home of Cyrus Barnes in Gary. Later, when they all left the house to go to a nightclub, Hutcherson approached Barnes and a few other men by their vehicle, stated that he had lost his money, and told Barnes that he needed to go back inside. Several of the men waited outside while Barnes opened up the house so that Hutcherson could search for his money. Shortly thereafter, Hutcherson emerged from the house, yelled, “F* * * you all n* * * * * and fired multiple gunshots at two of the men, William Johnson and Lloyd Holland. Tr. at 83. As Johnson lay on the ground with bullet wounds to the chest, throat, shoulder, and leg, Hutcherson approached him, took his wallet, and left in his girlfriend’s vehicle. The girlfriend, identified only as Michelle, and her friend, Anastasia Tyson, were present at the time of the shooting. Hutcherson later cocked his gun at Tyson and asked her what she had seen, and she twice stated that she had seen nothing. Tyson later overheard Hutcherson talking to his mother on the phone, saying, “I f* * * * * up.” Id. at 133.

Meanwhile, Johnson was transported to a nearby hospital and was treated for serious injuries that have left him confined to a wheelchair. At the hospital, he told two relatives that Hutcherson had shot him. He also saw Hutcherson shoot Holland, who subsequently died from multiple gunshot wounds.

On March 8, 2010, Gary Police Detective Mark Davis took a statement from Victor Lee, who said that Hutcherson told him that he had shot and robbed two men. On March 10, 2010, the State charged Hutch-erson with murder, murder in the perpetration of a robbery, class A felony attempted murder, class A felony robbery, class B felony aggravated battery, and class C felony battery.

Hutcherson’s jury trial began on June 27, 2011. At trial, Lee authenticated his signature on each page of his statement to police and testified that he could remember giving the statement. However, he claimed that he could not recall the contents of any conversation with Hutcherson, and the prosecutor sought to use the prior inconsistent statement to refresh his recollection. Because Lee is illiterate, the trial court ultimately allowed the prosecutor to read the statement out loud to Lee in front of the jury. Afterward, Lee stated that he remembered “half of it but not all[.]” Id. at 207.

The jury found Hutcherson guilty as charged, but the trial court entered judgment only on the murder, attempted murder, and robbery counts. Hutcherson now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Hutcherson claims that the trial court’s decision to allow the prosecutor to read Lee’s prior statement aloud in front of the jury to refresh Lee’s recollection violated his constitutional right of confrontation. The State asserts that Hutcherson waived this issue on appeal by failing to raise a specific, contemporaneous objection when the prosecutor read Lee’s prior statement in court. Hutcherson counters by arguing that he raised a continuing objection during a bench conference regarding the use of Lee’s entire statement. To preserve an admissibility challenge for appeal, a defendant must make a contemporaneous objection at the time the evidence is introduced at trial. Brown v. State, 929 N.E.2d 204, 207 (Ind.2010). As a general rule, “a party must continue to object and obtain a ruling for each individual instance of inadmissible evidence.” Hayworth v. State, 904 N.E.2d 684, 692 (Ind.Ct.App.2009). The purpose of the rule is to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors. Brown, 929 N.E.2d at 207. Failure to raise a contemporaneous objection results in waiver. Id.

That being said, Indiana recognizes continuing objections as a way to avoid the futility and waste of time inherent in requiring repetition of the same unsuccessful objection each time a party offers evidence of a given character. Hayworth, 904 N.E.2d at 691-92. The decision whether to grant a continuing objection is a matter for the discretion of the trial court, and objecting counsel must ensure that the continuing objection fully and clearly advises the trial court of the specific grounds for objection. Id. at 692. If “the trial court does not specifically grant the right to a continuing objection, it is counsel’s duty to object to the evidence as it is offered in order to preserve the issue for appeal.” Id. (emphasis added) (citation omitted).

Here, Hutcherson raised a “continuing objection to any line of questioning from Victor Lee[.]” Tr. at 198. The trial court denied his request for a continuing objection, stating,

[Y]ou need to make the specific objection because there may be things in that statement that are inadmissible, so you need to make your individualized objections. I would not necessarily let the whole statement in because I don’t even know what’s in it. I’ll take one question at a time.

Id. Despite the trial court’s ruling, Hutch-erson made only one objection during the course of Lee’s testimony regarding his prior inconsistent statement. When the State subsequently read aloud from Lee’s prior statement, Hutcherson did not object. As such, we conclude that Hutcher-son waived this issue for appeal.

In the alternative, Hutcherson asks us to review his claim under the fundamental error exception to the contemporaneous objection rule. The fundamental error exception is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Brown, 929 N.E.2d at 207 (citation omitted). This means that the error must be “so prejudicial to the rights of the defendant as to make a fair trial impossible.” Hayworth, 904 N.E.2d at 694 (citation omitted).

Hutcherson predicates his fundamental error claim upon his constitutional right of confrontation. The Sixth Amendment to the United States Constitution prohibits the admission of testimonial statements by a declarant who is absent from trial and therefore not subject to cross-examination by the accused, unless the declarant is unavailable and the accused had a previous opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The issue of what constitutes unavailability is a question of law, to which we apply a de novo standard of review. Fowler v. State, 829 N.E.2d 459, 466-67 (Ind.2005), cert. denied, abrogated in part on other grounds by Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). Even if the declarant is unable to recall the events in question, the Confrontation Clause is satisfied as long as the declarant “appears for cross-examination at trial.” Id. at 464-66 (citation omitted). “The feigned or real absence of memory is itself a factor for the trier of fact to establish, but does not render the witness unavailable.” Id. at 466. In short, “[t]he Confrontation Clause ... generates only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. at 469.

Indiana’s Confrontation Clause, found in Article 1, Section 13 of the Indiana Constitution, differs from its federal counterpart in that it contemplates a face-to-face meeting in which the accused and the witness can see and recognize one another. Williams v. State, 698 N.E.2d 848, 852 (Ind.Ct.App.1998), trans. denied. “Although the accused must have an opportunity to cross-examine the witness during the face to face confrontation, the opportunity does not have to be seized or successful and the right can be waived.” Id. In Williams, the witness was present at trial but was unable to remember what he had previously said. The trial court held that the defendant was still afforded the opportunity to meet the witness face to face and ask him questions.

Here, Lee was face to face with Hutcherson in court and recognized him as a person whom he had known for about a year and a half. Although Lee could not initially recall any specifics concerning the night of the incident, he eventually testified that he could remember about half of the information contained in his prior statement. To the extent that his testimony remained less than unequivocal, such vacillation goes to the weight and not the admissibility of the evidence, a matter that is properly left for the trier of fact. Morgan v. State, 445 N.E.2d 585, 587 (Ind.Ct.App.1983). We reiterate that a defendant’s right to confront and cross-examine a witness does not guarantee the quality of the cross-examination. Williams, 698 N.E.2d at 852. Consequently, Hutcher-son’s confrontation with and cross-examination of Lee, such as it was, did not violate Hutcherson’s constitutional rights.

We now address the unusual circumstance created by Lee’s illiteracy. At trial, Lee testified that he knew Hutcher-son and that he recalled giving a statement to police. The statement contained Hutch-erson’s narrative of the events as he recounted them to Lee shortly after they occurred on the night of January 19, 2010. Lee gave his statement to Detective Mark Davis seven weeks later, on March 8, 2010. Detective Davis later testified that the statement accurately reflected what Lee had told him. Tr. at 271-72. When Lee was presented with his prior statement in court, he was able to authenticate his signature at the bottom of each page. Beyond that, however, he claimed that he could not recall anything concerning what Hutcherson had said to him on the night of the incident. At that point, the State sought to use his prior statement to refresh his recollection. Ordinarily, this is accomplished by handing the witness his prior statement, asking him to examine the writing, and then asking whether such examination has refreshed his memory. Thompson v. State, 728 N.E.2d 155, 160 (Ind.2000) (citing 13 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 612.101 at 225-26 (2d ed. 1995)). However, because Lee is illiterate, the prosecutor could not merely hand him the statement to read silently as contemplated by Indiana Evidence Rule 612.

A witness’s act of reading his own prior statement under Rule 612 is foundational in the sense that before proceeding, counsel must establish whether such reading was successful in refreshing the witness’s memory. See 13 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 601.101 at 274-75 (3d ed. 2007). In circumstances involving a blind or illiterate witness, counsel must improvise and may attempt to refresh the witness’s recollection by reading the statement aloud. If the jury is present during the reading, its members learn the document’s contents before the foundation has been laid. Thus, to avoid potential prejudice, the preferred methodology would be to excuse the jury prior to such a reading.

Here, the trial court held a bench conference and discussed with counsel the dilemma created by Lee’s illiteracy. Thereafter, without excusing the jury, the trial court allowed the prosecutor to refresh Lee’s recollection by reading aloud from his statement:

Q. Would you like me to read it to you?
A. Yes, sir.
Q. Your answer was, “Bubba [Hutcher-son] told me that he got into it with some dudes from Aetna and he said that he told this dude, I don’t know his name, to give me back my hundred dollars. And the dude said that he didn’t have his hundred dollars, so Bubba [Hutcherson] said that he took a gun from Mike Lips[e]omb’s waist and shot the dude, bam-bam. Then he shot the other dude he was with, bam-bam. Then he said he shot both the dudes two more times and that’s when Mike Lips[c]omb ran to the car and Bubba [Hutcherson] said he then went into one of the dude’s pockets and took a wallet out of there. And he jumped into his girl’s car named Michelle. Michelle drives a black four door Charger. The two back door windows are tinted and the back window is tinted. That’s when he drove to Dory Miller, and he saw me standing outside with my cousins and drove up and asked me what I got on a bottle? I jumped in the car with him and then we went to the liquor store and that’s when we went to his girl, Michelle’s house. We was drinking and that’s when he told me the story.” Do you recall giving that answer to Detective Mark Davis?
I don’t recall everything that you said, I don’t recall all of it though. <⅞
You don’t recall any of it? O’
I remember half of it but not all— <d
Okay. So you remember half of it? O’
Yeah. <!

Tr. at 206-07.

We conclude that the better method would have been for the trial court to excuse the jury prior to the actual reading of the statement in order to avoid potential prejudice. Nevertheless, here, Lee’s prior statement was not the bedrock upon which the State’s case against Hutcherson was built. Instead, it merely corroborated other testimony on such issues as Hutcher-son’s anger over losing his money, Johnson’s identification of Hutcherson as his and Holland’s shooter, Tyson’s testimony that she heard gunshots coming from the direction where only the two victims and Hutcherson were, and Tyson’s testimony that Hutcherson had possession of a gun shortly after the shootings because he threatened her with it. As such, Lee’s statement was cumulative, and any error attributable to ⅛ use was therefore harmless. Borders v. State, 688 N.E.2d 874, 878 (Ind.1997).

In sum, we conclude that Hutcherson was afforded the opportunity to meet and question Lee face to face and therefore was not deprived of his right of confrontation under either the federal or state constitutions. Likewise, due to the cumulative nature of the evidence contained in Lee’s prior statement, Hutcherson was not prejudiced when it was read aloud to the jury. Accordingly, we affirm.

Affirmed.

VAIDIK, J., and BRADFORD, J., concur.


source: Caselaw Access Project

author: BAKER, Judge.

license: Public Domain

text:
    Jason JEFFRIES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 87A01-1102-CR-128.
    Court of Appeals of Indiana.
    April 30, 2012.

      Warren C. Mathies, Boonville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Today we decide whether the trial court should have permitted a defendant to withdraw his guilty plea when his trial counsel failed to discover that the State could not have charged him with being a habitual offender in only one of the two separate causes that were filed against him. Because the defendant could have been tried on one of the habitual offender counts potentially resulting in a longer sentence than he received under the plea agreement and both habitual counts were dismissed pursuant to the plea agreement, we hold that the trial court did not abuse its discretion in denying the defendant’s motion to withdraw the guilty plea.

Appellant-defendant Jason Jeffries appeals his conviction for Possession of Methamphetamine with Intent to Deliver or Manufacture, a class A felony, following his plea of guilty to that offense. Specifically, Jeffries argues that the trial court erred in denying his motion to set aside a guilty plea to that offense because his decision to plead guilty was allegedly based on an improper threat by the State to file a habitual offender count against him. Jef-fries asserts that the trial court’s failure to set aside his guilty plea results in a “manifest injustice.” Appellant’s Br. p. 1.

Concluding that the trial court properly denied Jeffries’s motion to set aside his guilty plea, we affirm.

FACTS

On February 26, 2010, the State charged Jeffries in Cause FA-029, with Count I, possession of methamphetamine with the intent to deliver or manufacture, a class A felony; Count II, possession of three grams or more of methamphetamine while in possession of a firearm, a class C felony; and Count III, failure to obey signs and markings, a class C infraction. The trial court subsequently granted the State’s motion to amend the charging information to add Count IV, the habitual offender charge.

In a different case, the State amended a charging information in Cause FC-113, alleging that Jeffries was a habitual offender for having accumulated two prior convictions: (1) battery by means of a deadly weapon, a class C felony, on April 22, 2003, for which Jeffries was convicted on July 19, 2004, and (2) burglary, a class C felony, on April 17, 2008, for which Jeffries was convicted on September 26, 2008.

On July 26, 2010, the State and Jeffries entered into a plea agreement involving both Causes, which provided that Jeffries was to plead guilty to Count I, possession of methamphetamine with the intent to deliver or manufacture, a class A felony, in Cause FA-029, in exchange for the dismissal of all remaining counts under that cause number and all counts under Cause FC-113.

At a hearing that commenced that same day, Jeffries indicated to the trial court that he had completed an “advisement of rights” form. Tr. p. 2. It was established that the agreement called for a dismissal of all counts under Cause FC-113, which included the habitual offender allegation and one underlying count. The trial court confirmed with the parties that the sentencing agreement provided for a sentence of forty years. Jeffries would also reserve the right to seek a sentence modification and it was determined that all the charges in both Causes alleging Jeffries to be a habitual offender would be dismissed.

After reviewing the terms of the sentencing agreement with Jeffries, the trial court addressed Jeffries’s mental capacity and confirmed that he was not under the influence of drugs or alcohol. The trial court then informed Jeffries of his rights were he to go to trial, confirmed that Jeffries understood those rights, that he had read his advisement, informed Jeffries of the State’s burden of proof if he went to trial, and confirmed that Jeffries had no further questions regarding those rights.

The trial court reviewed the charges with Jeffries and confirmed that he understood the nature of the charge to which he would be pleading guilty if the trial court accepted the agreement. The trial court also advised Jeffries of the potential penalties if he went to trial, as well as the penalties that attached if the trial court accepted the agreement.

Jeffries acknowledged that he understood his sentence to be less than the maximum and more than the advisory term if the trial court accepted the agreement. The trial court also confirmed that Jeffries understood that his criminal history and parole or probation status could impact a sentence were he to go to trial. Jeffries understood that if he were to go to trial, the court could determine the sentence and that he might receive consecutive sentences for multiple offenses. The trial court also told Jeffries that parole or probation or a suspended sentence could be revoked. The trial court then confirmed that Jeffries received no additional promises, inducements, and was not subject to threats or force, before deciding to accept the agreement.

The trial court determined that Jeffries had reviewed the agreement and advisement forms with his defense counsel, and had reviewed the probable cause affidavits with Jeffries. In response, Jeffries stated that the information contained in the information and probable cause affidavit in Cause FA-029 was true and correct. Jef-fries confirmed that he understood the nature of the charge to which he would be pleading guilty and informed the trial court that he understood that the guilty plea was an admission of the truth of the charge. The trial court was satisfied that Jeffries understood that he would be admitting to the truth of the facts contained in the probable cause affidavit and charging information by pleading guilty.

Jeffries agreed to the factual basis for the guilty plea, which was that on “February 24, 2010, in Warrick County, ... Jef-fries knowingly and intentionally possessed methamphetamine, in an amount of three grams or greater, specifically over twenty-one grams, and did so with the intent to deliver or finance the delivery of the same.” Tr. p. 29-31. Jeffries acknowledged his commission of the offense and that he violated the statute. Jeffries also informed the court that he saw no advantage in going to trial.

Jeffries then pleaded guilty to this offense and the trial court accepted the plea. The trial court informed Jeffries that it would accept the agreement and asked Jeffries, again, if that is what he wanted, and Jeffries responded, “yes.” Tr. p. 33. The trial court again asked Jeffries if he wanted to “back out,” of the plea, to which Jeffries responded, “no.” Id. at 33-34. The trial court then ordered a pre-sen-tence investigation report and set the matter for sentencing.

At the sentencing hearing, Jeffries’s counsel informed the trial court that his review of the habitual offender statute indicated that Jeffries would not have been subject to such an enhancement in Cause FA-029. On the other hand, defense counsel conceded that Jeffries was eligible for the habitual offender charge in Cause FC-113. All of the charges in cause FC-113 were to be dismissed under the agreement, and that cause was pending, and only to be dismissed pursuant to the court’s acceptance of the sentencing agreement. As noted above, the habitual offender count in Cause FA-029 was also to be dismissed under the agreement.

Defense counsel informed the trial court that he had reviewed Jeffries’s options upon learning that the habitual offender enhancement was only available to the State under Cause FC-113, and not cause FA-029, and that he informed Jeffries that those options included the following: (1) proceed to sentencing and accept the sentencing agreement; (2) move to withdraw the guilty plea, which, counsel for Jeffries admitted would entail moving that cause and all others to “square one” for trial; or (3) move for additional time. Tr. p. 38. The trial court informed Jeffries that the matter could be continued, but the time relating to the continuance would be charged to him. The trial court also told Jeffries that he could move to withdraw his guilty plea, but there was no guarantee that the motion would be granted.

Jeffries chose to move to withdraw his guilty plea and requested the trial court to appoint new counsel. The trial court asked the defense to prepare the motion to withdraw the guilty plea in writing, and reminded Jeffries that if the agreement was eventually withdrawn, both causes “could come back.” Id. at 46. The trial court also appointed Jeffries new counsel in both causes.

On November 22, 2010, Jeffries moved to withdraw his guilty plea in writing. A hearing on that motion was held on January 27, 2011. Jeffries was represented by his fourth defense counsel, who requested the trial court to set aside the plea. The trial court heard argument from both parties and took judicial notice of the presen-tence investigation report (PSI).

On February 2, 2011, the trial court denied Jeffries’s motion to withdraw his guilty plea. Sentencing was conducted on February 18, 2011. The trial court made the PSI part of the record. Pursuant to the agreement, the trial court sentenced Jeffries to forty years for possession of methamphetamine in excess of three grams, with intent to manufacture or deliver, a class A felony. The State dismissed all charges under Cause FC-113 and the remaining counts under Cause FA-029. Jeffries now appeals.

DISCUSSION AND DECISION

As noted above, Jeffries maintains that the trial court erred in denying his motion to set aside his guilty plea. Jeffries alleges that his guilty plea was motivated by the State’s improper threat of a habitual offender enhancement. In other words, because Jeffries was allegedly not eligible for the habitual offender enhancement under one of the causes, he argues that the State’s refusal to negotiate the sentence was improper and results in a manifest injustice.

I. Standard of Review

We first note that Indiana Code section 35 — 35—1^4(b) governs motions to withdraw guilty pleas. In general, after a defendant pleads guilty but before a sentence is imposed, a defendant may move to withdraw a plea of guilty. Id. The trial court must permit a defendant to withdraw a guilty plea if it is “necessary to correct a manifest injustice.” Id. On the other hand, the motion to withdraw the plea should be denied if the plea’s withdrawal would substantially prejudice the State. Id. In all other cases, the court may grant the defendant’s motion to withdraw a guilty plea “for any fair and just reason.” Id..

We also note that a trial court’s ruling on a motion to withdraw a guilty plea “arrives in this court with a presumption in favor of the ruling.” Brightman v. State, 758 N.E.2d 41, 44 (Ind.2001). We will reverse the trial court only for an abuse of discretion. Id. In determining whether a trial court has abused its discretion in denying a motion to withdraw a guilty plea, we examine the statements made by the defendant at the guilty plea hearing to decide whether the plea was offered “freely and knowingly.” Id.

II. Jeffries’s Claims

A. Generally

In this case, Jeffries made it clear that he was entering into the plea because he saw no advantage in going to trial. Although Jeffries indicated at one point that he had not actually sold any methamphetamine, he subsequently acknowledged that he was, in fact, guilty as charged. Tr. p. 32.

Also, Jeffries did not enter into the plea because he might be adjudged to be a habitual offender. Appellant’s Br. p. 5-11. Indeed, Jeffries could have been found to be a habitual offender, had he not entered into the plea agreement and had proceeded to trial. Moreover, Jeffries’s counsel admitted as much. Tr. p. 38-40. Additionally, Jeffries understood that the habitual offender counts were to be dismissed. Id. at 3, 8. Thus, Jeffries was not subject to an habitual offender adjudication under the terms of the agreement, and he cannot successfully claim that he was misled into pleading guilty on this basis.

To the extent that Jeffries maintains that his guilty plea was unknowing or involuntary, we will proceed to examine the statements that were made at the guilty plea hearing. Jeffries made it clear at the hearing that he entered into the agreement knowing its terms and understood: (1) that those terms included a dismissal of both habitual counts; (2) the possible penalties, had he gone to trial; (3) that those penalties could include consecutive sentences, given the two causes and multiple counts; (4) that the court would determine the sentence in case he went to trial; and (5) that his prior criminal history could be considered by the trial court at sentencing.

Here, Jeffries admitted that he was subject to a habitual offender charge. In our view, the fact that the habitual offender enhancement could attach to Cause FC-113 but not to Cause FA-029, does not give rise to a manifest injustice. Instances of manifest injustice may include any of the following, none of which are present here: a defendant is denied the effective assistance of counsel, the plea was not entered or ratified by the defendant, the plea was not knowingly and voluntarily made, the prosecutor failed to abide by the terms of the plea agreement, or the plea and judgment of conviction are void or voidable. Gillespie v. State, 736 N.E.2d 770, 775-76 (Ind.Ct.App.2000).

Here, the State did not fail to abide by the terms of the agreement because the other counts were dismissed, including both habitual offender counts, as well as all counts stemming from Cause FC-113. In essence, the confusion regarding application of the habitual offender count to one cause and not the other, much like the issue raised by the circumstances in Gillespie, does not rise to the level of a manifest injustice. Put another way, the State could seek a habitual offender enhancement against Jeffries because he qualified as such under Cause FC-113. While the State’s efforts with regard to Cause FA-029 would have failed, the State nonetheless was legitimately poised to carry out the threat that Jeffries be charged as a habitual offender. That said, the State did not make any false threats about filing the habitual offender count in this case because he was not coerced into pleading guilty to being a habitual offender under Cause FA-029.

The mistaken application of the habitual count to one cause but not the other might well have been a technical flaw, but it simply does not qualify as an intentional false threat. Indeed, Jeffries managed to avoid both habitual offender charges, yet the State could have legitimately pursued one of them. See Munger v. State, 420 N.E.2d 1380, 1387 (Ind.Ct.App.1981) (holding that if a plea is induced by a promise to forego a recidivist proceeding, when no such proceeding would be warranted, the defendant is per se misinformed as to the benefit of his plea and the bargain is illusory).

Had Jeffries gone to trial, he would have been subject to potential convictions on five counts, including three from FA-029, plus conspiracy to traffic with an inmate, in cause FC-113, plus the habitual offender enhancement in cause FC-113. His offense from cause FA-029, to which he pleaded guilty, was a class A felony. Even assuming that an advisory thirty-year sentence would be imposed on that offense, the trial court could have ordered the sentence to be served consecutively with convictions from Cause FC-113. Hence, Jef-fries would be facing more than forty years of incarceration. And the dialogue between the trial judge and Jeffries shows that he understood this possibility. Tr. p. 20-25.

In sum, Jeffries did in fact qualify for the application of the habitual offender statute, even if it was misapplied to one cause number when it should have been applied exclusively to the other. Jeffries correctly understood that he had the requisite prior offenses and knew that under any calculation of his potential sentence, he faced more time than the agreement allowed. Thus, Jeffries’ contention that the trial court should have granted his motion to set aside his guilty plea on this basis fails.

B. Ineffective Assistance of Counsel

Finally, to the extent that Jeffries is arguing that the motion to set aside his guilty plea should have been granted because his defense counsel failed to advise him that the habitual offender charge could not have been applied to Cause FA-029, his claim fails.

To prevail on a claim of ineffective assistance of counsel, Jeffries must show both that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind.1998) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a strong presumption that counsel rendered adequate assistance. Id. Evidence of isolated poor strategy, inexperience or bad tactics will not support a claim of ineffective assistance. Id. at 273. Counsel’s performance is evaluated as a whole. Lemond v. State, 878 N.E.2d 384, 391 (Ind.Ct.App.2007).

To establish prejudice, the defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Sims v. State, 771 N.E.2d 734, 741 (Ind.Ct.App.2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Prejudice exists when the conviction or sentence resulted from a breakdown in the adversarial process that rendered the result of the proceeding fundamentally unfair or unreliable. Coleman, 694 N.E.2d at 272.

In this case, the outcome might have been different had Jeffries gone to trial, but he cannot establish a better outcome than the forty-year sentence that he received under the agreement if he had been convicted of the charges. As noted above, the multiple offenses, the nature of the offense to which Jeffries pleaded, and the evidence in his history that reveal his character, all point to a lengthier — rather than shorter — aggregate sentence than the one he received. And even if his initial trial counsel failed to recognize that the habitual offender charge should attach to Cause FC-113 and not cause FA-029, counsel’s deficient performance did not prejudice Jeffries because it resulted in a more favorable sentence than the one he would have received, had he gone to trial and been convicted of the charged offenses.

In the guilty plea context, a defendant who claims that he was incorrectly advised by counsel regarding a possible defense must show that but for that advice, he or she would not have pleaded guilty and that the defense likely would have succeeded, and he or she would have received a favorable outcome. Segura v. State, 749 N.E.2d 496, 499 (Ind.2001). Although Jeffries would have had a defense to one of the habitual offender counts, it had no impact on the issue of whether he would have prevailed at trial on the underlying offenses in cause FA-029, nor does it mean a lesser sentence, and for all the reasons already stated, he was likely facing a lengthier term of incarceration. Jeffries indeed informed the trial court that he saw no advantage in going to trial and admitted that there was no question that he committed the underlying felony to which he pleaded guilty. In short, Jef-fries’s ineffective assistance of trial counsel claim fails.

CONCLUSION

In light of our discussion above, we conclude that the trial court properly denied Jeffries’s motion to withdraw his guilty plea. Jeffries was advised of his rights, the possible penalties that could result from trial, and the terms of the agreement. The State was not making any kind of idle or unenforceable threat when it charged Jeffries with being a habitual offender, as that charge could have been pursued under Cause FC-113.

Moreover, Jeffries’s counsel’s failure to recognize the inapplicability of the habitual offender enhancement to one of the two causes did not prejudice Jeffries, and he has not demonstrated that the failure to advise him of such resulted in a worse outcome had he proceeded to trial. To the contrary, a better outcome resulted, given the penalties that would have attached had Jeffries proceeded to trial and been found guilty.

The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.

      . Ind.Code § 35-48-4-1.1 (a)(2), (b).

      . The circumstances here are unlike those in Lafler v. Cooper,-U.S.-, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), where the Supreme Court of the United States determined that the State had to reoffer a plea agreement to the defendant when it was shown that the ineffective assistance of defense counsel caused the rejection of a plea that led to a more severe sentence following a trial. In Lafler, the defendant demonstrated that but for counsel’s deficient performance that led to the plea offer’s rejection, there was a reasonable probability that he and the trial court would have accepted the guilty plea. As a result of not accepting the plea and being convicted at trial, the defendant received a minimum sentence 3 ½ times greater than he would have received under the plea.


author: BRADFORD, Judge.

text:
    Leondre WOODSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 53A01-1109-PC-466.
    Court of Appeals of Indiana.
    May 2, 2012.

      Stephen T. Owens, Public Defender of Indiana, Linda G. Nicholson, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Petitioner Leondre Woodson appeals from the post-conviction court’s denial of his petition for post-conviction relief (“PCR”), in which Woodson claims that he received ineffective assistance of trial counsel. We affirm.

FACTS AND PROCEDURAL HISTORY

The facts underlying this post-conviction proceeding were detailed by this court in our unpublished disposition of Woodson’s direct appeal:

On August 27, 2005, Woodson was a passenger in the front seat of a rental car that was pulled over for speeding. Woodson and the driver, Chinedu Onye-ji, were driving to Bloomington. Bloom-ington Police Officer Walter Harris approached the car and asked the driver for his license and registration. When Onyeji opened the glove compartment to get the car rental agreement, the police officer observed Onyeji push a handgun to the side of the glove compartment.
The police officer subsequently ran an inquiry on the handgun to see if it was stolen. He was advised the gun was not stolen and that it had been registered to Onyeji and that Onyeji did have a valid permit to carry a firearm.
Further investigation revealed that the car rental agreement indicated Onyeji had rented the car and included Onyeji’s signature. The rental agreement listed Woodson as an additional driver. Officer Harris stated Woodson acknowledged that he was on the car rental agreement as an additional driver, that he had paid for the car rental, and that he had driven the car. Onyeji told the officer the two were returning from a one-day trip to Gary, Indiana. Wood-son told the police officer they went to Gary because he needed to obtain his birth certificate and an identification card and they made stops at the Bureau of Motor Vehicles and at his friend’s house.
Based on the circumstances of the stop, Officer Harris stated he suspected Woodson and Onyeji might be involved in drug trafficking. Officer Harris noted the two appeared nervous, had paid for a car rental with cash, and had taken a one-day trip to Gary. Officer Harris asked Onyeji if he could search the trunk of the vehicle, but Onyeji declined to allow the search. Officer Harris asked Woodson for permission to search the trunk, and Woodson consented to the search.
The officer opened the trunk and found it to be empty. He then opened the spare tire compartment and observed two bags of a white powdery substance and a handgun. Subsequent testing showed the bagged substance was cocaine. The separate amounts weighed 113.96 grams and 13.34 grams respectively. Woodson denied knowledge of the items.
Woodson and Onyeji were arrested. During a later statement to the police, Onyeji told the police that the gun in the trunk was Woodson’s. Woodson was charged with Count I, dealing in cocaine, a Class A felony; Count II, possession of cocaine in an amount greater than three grams, a Class C felony; Count III, possession of cocaine while in possession of a firearm, a Class C felony; and Count IV, possession of a firearm by a serious violent felon, a Class B felony.

Woodson v. State, No. 53A05-0604-CR-174, 2007 WL 506890, slip op. at 1-2 (Ind. Ct.App., Feb. 19, 2007), trans. denied.

Prior to trial, Woodson filed a motion to suppress the evidence seized from the rental car. On December 9, 2005, the trial court denied Woodson’s motion to suppress. During the subsequent trial, Wood-son’s trial counsel did not renew any objection to evidence regarding the items seized from the rental car. On December 13, 2005, Woodson was convicted of Class C felony cocaine possession, Class C felony possession of cocaine while in possession of a firearm, and Class B felony possession of a firearm by a serious violent felon. The trial court sentenced Woodson to an aggregate sentence of twenty years of incarceration. On direct appeal, this court ordered Woodson’s possession of cocaine while in possession of a firearm conviction vacated and affirmed in all other respects, leaving his aggregate sentence unaffected. See Woodson, No. 53A05-0604-CR-174, slip op. at 5.

On May 13, 2008, Woodson filed his pro se PCR petition. On February 10, 2011, Woodson filed his amended PCR petition. On August 24, 2011, the post-conviction court denied Woodson’s PCR petition.

DISCUSSION AND DECISION

PCR Standard of Review

Our standard for reviewing the denial of a PCR petition is well-settled:

In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting its judgment. The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. To prevail on appeal from denial of postconviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court.... Only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, will its findings or conclusions be disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468, 469 (Ind.2006) (internal citations and quotations omitted).

Whether Woodson Received Effective Assistance of Trial Counsel

We review claims of ineffective assistance of counsel based upon the principles enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

[A] claimant must demonstrate that counsel’s performance fell below an objective standard of reasonableness based on prevailing professional norms, and that the deficient performance resulted in prejudice. Prejudice occurs when the defendant demonstrates that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” A reasonable probability arises when there is a “probability sufficient to undermine confidence in the outcome.”

Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Because an inability to satisfy either prong of this test is fatal to an ineffective assistance claim, this court need not even evaluate counsel’s performance if the petitioner suffered no prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind.1999).

Woodson contends that his trial counsel was ineffective for failing to object at trial to the admission of evidence related to the search of the rental car, thereby failing to preserve the issue for direct appeal. Woodson contends that (1) continued police detention and investigation beyond writing a traffic ticket violated Article I, Section 11 of the Indiana Constitution and (2) the record does not support a conclusion that he had apparent authority to consent to a search of the rental car, rendering the search improper under the Fourth Amendment to the United States Constitution. Woodson argues that raising these claims on appeal would have had a reasonable likelihood of success and that the failure to preserve them therefore prejudiced him.

A. Whether Continued Detention and Investigation Violated Article I, Section 11

Woodson contends that Officer Harris’s continued investigation of him and Onyeji violated Article I, Section 11, of the Indiana Constitution, which provides that

[t]he 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.
The Indiana Supreme Court has noted that

[wjhile almost identical in wording to the federal Fourth Amendment, the Indiana Constitution’s Search and Seizure clause is given an independent interpretation and application. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.1999); Moran v. State, 644 N.E.2d 536, 540 (Ind.1994). To determine whether a search or seizure violates the Indiana Constitution, courts must evaluate the “reasonableness of the police conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005) (citing Moran, 644 N.E.2d at 539). “We believe that the totality of the circumstances requires consideration of both the degree of intrusion into the subject’s ordinary activities and the basis upon which the officer selected the subject of the search or seizure.” Id. at 360. In Litchfield, we summarized this evaluation as follows:

In sum, although we recognize there may well be other relevant considerations under the circumstances, we have explained reasonableness of a search or seizure as turning on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizens’ ordinary activities, and 3) the extent of law enforcement needs.

Id. at 361.

Myers v. State, 839 N.E.2d 1146, 1153 (Ind.2005).

At the suppression hearing, Officer Harris testified regarding the traffic stop. According to Officer Harris, he was alone on patrol at approximately 11:30 p.m. when he pulled the rental car over. Upon receiving Onyeji’s driver’s license from him, Officer Harris observed Onyeji push aside a handgun when he reached for the registration. Onyeji had not previously warned Officer Harris of the presence of the handgun. At that point, Officer Harris pulled his weapon and ordered the duo to place their hands behind their heads while he called for backup, which arrived approximately four minutes later. After Woodson and Onyeji were removed from the car, Officer Harris verified with dispatch that the handgun in the glove compartment was not stolen, which took approximately three and one-half minutes. Officer Harris had by this point verified that Onyeji had a permit for the weapon.

Meanwhile, Officer Harris questioned Onyeji outside ';he car about where he had been and was told that the duo had driven to Gary, Indiana, and back that day. Onyeji, and soon thereafter Woodson, claimed that the purpose of the trip was to retrieve a copy of Woodson’s birth certificate and an identification card so that he could cash a check. Soon after learning that the handgun was not stolen, Officer Harris was informed by another police officer that the car was rented, even though Onyeji owned his own vehicle. At this point, Officer Harris failed to obtain Onye-ji’s consent to search the car before obtaining Woodson’s. Officer Harris indicated that, in light of his training and experience, renting a car when one owns one and making a one-day round trip to another city were possible indicators of narcotics activity. At some point, Woodson also indicated that he had paid for the rental car in cash. Finally, Officer Harris observed that Onyeji was “somewhat nervous during the stop” and that “he was just acting nervous to [him]” even before the officer drew his weapon. Tr. pp. 42, 43.

Under the circumstances, Woodson has failed to establish that the police acted unreasonably in continuing the investigation to the point where they obtained consent to search the rental car. At all points of the encounter, police were justified in having at least a reasonably high degree of concern or suspicion that some sort of criminal activity might be occurring. After the traffic stop, Onyeji seemed nervous to Officer Harris, even before the officer drew his weapon. Perhaps most significantly, Onyeji’s failure to inform Officer Harris of the handgun in the glove compartment, at the very least, could lead a reasonable officer to suspect that he intended to keep its presence concealed, perhaps because it was illegally possessed or to ensure continued access to it. Moreover, as we have recognized, “it is not uncommon for drug dealers to carry weapons.” Swanson v. State, 730 N.E.2d 205, 211 (Ind.Ct.App.2000), trans. denied. Officer Harris’s detention of the duo at gunpoint was fully justified, not only by officer safety concerns but by concerns regarding criminal activity.

Furthermore, what police learned after backup arrived only increased what was already a reasonable degree of suspicion that criminal activity might be afoot. Police learned that the car was rented even though Onyeji owned his own vehicle and that the duo had just returned from a one-day round trip to a relatively far-away city, both of which were, in Officer Harris’s experience and pursuant to his training, indications of possible illegal narcotics activity. And, even though Officer Harris learned at some point that Onyeji’s handgun was legally possessed and not stolen, there remained at least the possibility that Onyeji might have been concealing it to ensure access to it for use against the police. We conclude that the police had at least a reasonably high degree of concern or suspicion that some sort of criminal activity might be occurring.

The intrusion of the detention before consent was obtained into Woodson’s and Onyeji’s activities was minimal. The record indicates that the stop had lasted not much longer than seven and one-half minutes before Officer Harris obtained consent to search the rental car, most of which time was spent waiting for backup and for receiving information from dispatch regarding Onyeji’s handgun. There was no invasive search of either Onyeji’s or Woodson’s person at any point. The record also contains no indication that any personal effects of either occupant, such as luggage or other containers, were searched at any point. Neither Woodson nor Onyeji was handcuffed or otherwise restrained during the initial detention. We conclude that the seizure of Woodson and Onyeji prior to obtaining consent and the manner in which it was conducted were minimally intrusive.

Finally, we conclude that the needs of law enforcement were great. First, the obvious need to maintain officer safety was clearly implicated in this case. Officer Harris discovered very early on the presence of one deadly weapon and expressed the reasonable concern that “maybe, perhaps, they could have been armed with other weapons on their persons[.]” Tr. p. 11. As the stop progressed, and indications of illegal narcotics activity became apparent, the equally obvious need to deter, prevent, and punish drug trafficking was implicated. Given the reasonably high degree of suspicion of criminal activity, the minimally intrusive nature of police conduct prior to obtaining consent, and the great needs of law enforcement, Woodson has failed to establish that police detention of him until they obtained consent to search the rental car was unreasonable under Article I, Section 11. As such, Woodson has failed to carry his burden to establish that his trial counsel’s failure to preserve the issue for appeal prejudiced him.

B. Whether Woodson’s Consent to Search was Valid Under the Fourth Amendment

The Fourth Amendment to the United States Constitution provides that “[t]he 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.” “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). “In Wolf [v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ] we recognized ‘(t)he security of one’s privacy against arbitrary intrusion by the police’ as being ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’ ” Id.

The Fourth Amendment protects persons from unreasonable search and seizure and this protection has been extended to the states through the Fourteenth Amendment. U.S. Const, amend. IV; Mapp v. Ohio, 367 U.S. 643, 650, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Warrantless searches and seizures inside the home are presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. See Berry v. State, 704 N.E.2d 462, 465 (Ind.1998) (citing Brown v. State, 691 N.E.2d 438, 443 (Ind.1998)). One well-recognized exception to the warrant requirement is a voluntary and knowing consent to search. See Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Stallings v. State, 508 N.E.2d 550, 552 (Ind. 1987).

Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001).

Woodson contends that his consent to the search of the rental car was invalid because he did not have actual or apparent authority to give such consent.

It is well established that a third party may consent to the search of the premises or property of another if actual authority exists. Establishing actual authority requires a showing that there is a sufficient relationship to or “mutual use of the property by persons generally having joint access or control for most purposes.” [U.S. v.] Matlock, 415 U.S. [164,] 171 & n. 7, 94 S.Ct. 988 [39 L.Ed.2d 242 (1974) ]. See also Caldwell v. State, 583 N.E.2d 122, 125 (Ind.1991). If actual authority cannot be shown, then facts demonstrating that the consenting party had apparent authority to consent could prove a lawful search. See [Illinois v.] Rodriguez, 497 U.S. [177,] 188-89, 110 S.Ct. 2793 [111 L.Ed.2d 148 (1990) ]. Under the apparent authority doctrine, a search is lawful if the facts available to the officer at the time would “warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). See also Logan v. State, 729 N.E.2d 125, 130 (Ind.2000); Canaan v. State, 683 N.E.2d 227, 231-32 (Ind.1997), cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998). The State bears the burden of proving that the third party possessed the authority to consent. See Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793 [111 L.Ed.2d 148],

Krise, 746 N.E.2d at 967.

[11,12] Matlock, Rodriguez, and their progeny, however, do not apply here for the simple reason that those cases, by their plain language, apply to third-party consent, and Woodson was not a third party. Moreover, to the extent that Woodson requests that we extend Matlock and Rodriguez to cover consent by second parties, we decline to do so. We cannot conclude that a defendant still has a reasonable expectation of privacy in a place or thing he himself has allowed to be searched, assuming, of course, that he ever had one. “An expectation of privacy gives rise to Fourth Amendment protection where the defendant had an actual or subjective expectation of privacy and the claimed expectation is one which society recognizes as reasonable.” Krise v. State, 746 N.E.2d 957, 969 (Ind.2001) (citing Bond v. U.S., 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000)). Put another way, without a reasonable expectation of privacy, there is no interest that is protected by the Fourth Amendment. Woodson has failed to establish that his consent was invalid, and has therefore not shown that he was prejudiced by his trial counsel’s failure to preserve the claim that it was. Woodson has not established that he received ineffective assistance of trial counsel.

The judgment of the post-conviction court is affirmed.

VAIDIK, J., and CRONE, J., concur.

      . The record indicates that Onyeji and Wood-son were patted down "for safety purposes” after their removal from the rental car. Tr. p. 12.


author: SULLIVAN, Justice.

text:
    Jimmie E. JONES, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 29S02-1108-CR-511.
    Supreme Court of Indiana.
    March 19, 2012.

      Lawrence M. Hansen, Noblesville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Andrew Kobe, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   On Petition to Transfer from the Indiana Court of Appeals, No. 29A02-1008-CR-935

SULLIVAN, Justice.

Jimmie E. Jones, Jr., was charged with the murder of Andrew Takash, Jr. Ind. Code § 35-42-1-1(1) (2008). At trial, Jones tendered instructions on reckless homicide and involuntary manslaughter as lesser included offenses to the murder charge. The trial court refused Jones’s instructions, finding that those lesser included offenses were not supported by the evidence. A jury later found Jones guilty of murder.

On appeal, Jones disputed that his tendered instructions were not supported by the evidence. For its part, the State argued that (1) the evidence did not support a reckless homicide instruction and (2) the charging information for the murder count foreclosed an involuntary manslaughter instruction.

[1-7] The Court of Appeals agreed with the State. It first outlined the three-step test from Wright v. State, 658 N.E.2d 563 (Ind.1995), for determining when a trial court should, upon request, instruct the jury on a lesser included offense of the crime charged. Under that test, it held that although reckless homicide is an inherently included offense of murder, Jones v. State, 948 N.E.2d 1197, 1200 (Ind.Ct. App.2011), the evidence reflected that the trial court had not abused its discretion by finding no serious evidentiary dispute, id. at 1201. Judge Bailey, writing for the court, compared the evidence in this case to that in Horan v. State, 682 N.E.2d 502 (Ind.1997), and Lyttle v. State, 709 N.E.2d 1 (Ind.1999):

In this case, the evidence showed that Jones, who outweighed Takash by about fifty pounds, pushed Takash to the floor. Jones then punched him in the chest twice to “get [the] wind out of him.” Jones placed his hands on Takash’s neck in an effort “to render him unconscious.” Jones “readjusted” his hands to a place higher under Takash’s chin and “leaned up into it” with his weight. According to Jones, he “let go” and “there was blood visible on [Takash’s] lips.” Air bubbles then passed through the blood as Jones removed his hands.
Expert testimony indicated that Ta-kash would have lost consciousness after ten to fifteen seconds, but he would have died only after an additional period of oxygen deprivation, up to two minutes. By Jones’s own admission, he applied his body as a pressure weight until Takash was unconscious and he let go only when blood and air bubbles were expressed through Takash’s mouth. Upon observing Takash’s nonresponsive state, Jones did not summon help or attempt to revive Takash but rather took his money and vehicle and fled.
One “knowingly” kills when he is “aware of a high probability” that his conduct might kill. Here, as in Horan and Lyttle, the protracted nature of the conduct is such that Jones could not have been without an awareness that his actions could result in Takash’s death. The trial court did not abuse its discretion by finding no serious evidentiary dispute; the Reckless Homicide instruction was properly refused.

Jones, 948 N.E.2d at 1201 (alterations in original) (internal citations omitted).

With regard to the involuntary manslaughter instruction, the court recognized that although the State cannot foreclose through its drafting of the charging information an instruction on an inherently lesser included offense, it may foreclose an instruction on a factually lesser included offense. Id. It held that the State did precisely that in this ease by omitting from Jones’s charging information any reference to a battery. Id. at 1202.

We agree with Judge Bailey’s analysis and the result reached by the Court of Appeals. Having previously granted transfer, we now adopt the court’s opinion in full. Ind. Appellate Rule 58(A)(1).

We affirm the judgment of the trial court.

SHEPARD, C.J, and DICKSON, RUCKER, and DAVID, JJ., concur.

      . Jones was also charged with and convicted of auto theft, Ind.Code § 35-43-4-2.5 (2008), and theft, Ind.Code § 35-43-4-2 (Supp.2011). The State further alleged him to be a habitual offender, Ind.Code § 35-50-2-8 (2008). Jones has not presented any arguments on appeal with regard to these convictions or his adjudication as a habitual offender.


author: BRENT E. DICKSON, Chief Justice.

text:
    INDIANA DEPARTMENT OF STATE REVENUE, Petitioner, v. Virginia and Kristin GARWOOD, Respondents.
    No. 82S10-1203-TA-171.
    Supreme Court of Indiana.
    May 15, 2012.
   BRENT E. DICKSON, Chief Justice.

On March 16, 2012, this Court granted a petition seeking review of the Tax Court’s decisions in this matter. Garwood v. Indiana Dep’t of State Revenue, 939 N.E.2d 1150 (Ind. Tax Ct.2010); Garwood v. Indiana Dep’t of State Revenue, 953 N.E.2d 682 (Ind. Tax Ct.2011). After further review, including oral argument, the Court has determined that review was improvidently granted. Accordingly, the order granting review is VACATED.

The review petition filed by the Department of State Revenue is DENIED. Pursuant to Appellate Rule 63(N), litigation between the parties in this Court is at an end. The Clerk is directed to certify this appeal as final and to send copies of the order to the parties or their attorneys. The Clerk is also directed to post this order on the Court’s website, and Thomson Reuters is directed to publish this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: BARTEAU, Senior Judge.

text:
    Douglas P. WILSON, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 79A05-1107-CR-350.
    Court of Appeals of Indiana.
    May 9, 2012.

      Steven P. Meyer, Carlos I. Carrillo, Ball Eggleston PC, Lafayette, IN Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN Attorneys for Appellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

Douglas Wilson appeals his convictions and sentence for Class B felony dealing in a narcotic drug, Ind.Code § 35-48-4-1 (2006); Class D felony possession of a narcotic drug, Ind.Code § 35-48-4-6 (2006); Class A misdemeanor resisting law enforcement, Ind.Code § 35-44-3-3 (2006); and Class A misdemeanor operating a vehicle while suspended, Ind.Code § 9-24-19-2 (2000). We affirm.

ISSUES

Wilson raises four issues, which we consolidate and restate as three:

I. Whether the trial court erred by admitting evidence of items discovered during a search of Wilson’s vehicle that occurred after a police officer stopped the vehicle and Wilson fled from it.
II. Whether the evidence is sufficient to sustain Wilson’s convictions for Class B felony dealing in a narcotic drug and Class D felony possession of a narcotic drug.
III. Whether Wilson’s sentence is inappropriate.

FACTS AND PROCEDURAL HISTORY

Around 11:30 p.m. on February 27, 2010, Officer Nathan Lamar of the Lafayette Police Department was patrolling a high crime area. As he turned off Concord Road and entered the parking lot of Riehle Brothers, a local bar, he saw a man, later identified as Wilson, exit the bar and walk quickly to a maroon Mazda parked in a handicapped parking space. The vehicle

did not have a handicapped plate or permit. Officer Lamar drove past the vehicle, noted the plate number, and entered it into his computer. The computer showed that the registered owner had a suspended driver’s license and two outstanding arrest warrants. Officer Lamar continued through the parking lot, saw the vehicle on Concord Road, and attempted to catch up to it. The vehicle turned into a nearby strip club and pulled into a parking space. Officer Lamar pulled up behind the vehicle and activated his emergency lights. He exited his patrol car, stood next to it, and waited for a break in the radio transmission so that he could notify other officers of the traffic stop. While he was waiting, Wilson, the only occupant of the vehicle, stepped out. Officer Lamar told him to get back into his vehicle, and Wilson complied. There was a break in the radio transmission, and Officer Lamar began to transmit information. At that point, Wilson stepped out of his vehicle for a second time. Officer Lamar stopped his transmission and again ordered Wilson to get back into his vehicle. This time, Wilson turned away from Officer Lamar and fled. Officer Lamar chased him but was unable to apprehend him. A subsequent police search was unsuccessful.

Upon returning to his patrol car and looking up a photo of the registered owner of the vehicle, Officer Lamar identified Wilson as the registered owner. Wilson’s vehicle was locked. Another officer was already preparing paperwork to tow the vehicle. After the tow truck driver arrived and unlocked the vehicle, Officer Lamar conducted an inventory search. In the center console, he found a pill bottle prescribed to Crystal Mickschl for 240 hy-dromorphone pills. The bottle contained five empty cellophane wrappers. In the glove box, Officer Lamar found a makeup bag containing two more pill bottles prescribed to Mickschl, both with fill dates of February 25, 2010. One bottle was for 240 hydromorphone pills but contained only 101 pills. The label directed Mickschl to take two pills every six hours. The second bottle was for 90 morphine sulfate pills but contained only 58 pills. The label directed Mickschl to take one pill every eight hours. Mickschl was later determined to be Wilson’s girlfriend. After the search, the vehicle was impounded.

Wilson was located in April 2010. The State charged him with two counts of Class B felony dealing in a narcotic drug (one count each for hydromorphone and morphine sulfate), two counts of Class D felony possession of a narcotic drug (one count each for hydromorphone and morphine sulfate), Class A misdemeanor resisting law enforcement, and Class A misdemeanor operating a vehicle while suspended.

Wilson filed a motion in limine, which the trial court treated as a motion to suppress. At a hearing, Wilson argued that the impoundment of his vehicle was unjustified and that the evidence of items discovered during the inventory search therefore required suppression. The trial court denied the motion to suppress.

At a jury trial, Officer Lamar testified for the State. Wilson objected to the evidence of items found during the search of his vehicle, which the trial court overruled. The State presented testimony that cellophane wrappers are commonly used to package pills for illegal sale. The State also presented testimony that on February 2, 2010, Wilson made a statement to a confidential informant that he expected to get 240 pills within the next two days and that he planned to sell them. Also at trial, a security guard for Riehle Brothers, Matthew Koning, testified that on February 26, 2010, he arrived at work early to shoot some pool before his shift. During a game

with Wilson, Koning observed him pulling pills out of his pocket and offering to sell what he described as a type of morphine pill to people at a table next to theirs. Wilson wanted to sell the pills for ten dollars each but was willing to sell them for eight dollars each. Koning did not see anyone buy any pills. He reported the incident to his acting supervisors. The next night, Wilson returned to Riehle Brothers. Koning believed Wilson saw him talking with a police officer. Wilson walked quickly out of the bar. Mickschl, who had married Wilson in April 2010, testified for the defense.

The jury found Wilson guilty of all charges except for the dealing charge relating to morphine sulfate, on which the jury did not return a verdict. The trial court declined to enter a judgment of conviction on the verdict for possessing hydro-morphone, finding that it merged into the conviction for dealing hydromorphone. At sentencing, the trial court found Wilson’s history of criminal or delinquent activity as an aggravator. As mitigators, the trial court noted Wilson’s mental illness, his family support, and his good work history. The court also found Wilson’s alcohol and drug problems as a mitigator but noted that such a mitigator was “diminished in force” in light of the fact that Wilson had gone through a treatment program but then “returnfed] to a life involving drugs.” Tr. p. 347. The trial court found that the aggravator outweighed the mitigators and sentenced Wilson to an aggregate term of thirteen years, with one year suspended to probation. Wilson now appeals.

DISCUSSION AND DECISION

Wilson contends that the trial court erred by admitting the evidence of items found during the search of his vehicle, that the evidence is insufficient to sustain his convictions for Class B felony dealing in a narcotic drug and Class D felony possession of a narcotic drug, and that his thirteen-year sentence is inappropriate.

I. ADMISSIBILITY OF EVIDENCE

[1-4] Wilson contends that the search of his vehicle violated the Fourth Amendment to the United States Constitution and that the trial court therefore erred by admitting the evidence of items discovered during that search. The Fourth Amendment prohibits unreasonable searches and seizures. W.H. v. State, 928 N.E.2d 288, 294 (Ind.Ct.App.2010), trans. denied. The protections of the Fourth Amendment have been extended to the states through the Fourteenth Amendment. Id. Evidence obtained in violation of a defendant’s Fourth Amendment rights may not be introduced against him at trial. Id. A search or seizure may generally only be conducted pursuant to a lawful warrant. Bryant v. State, 660 N.E.2d 290, 300 (Ind. 1995). Because warrantless searches are per se unreasonable, the State bears the burden of establishing that a warrantless search falls within one of the well-delineated exceptions to the warrant requirement. Johnson v. State, 766 N.E.2d 426, 432 (Ind. Ct.App.2002), trans. denied. One exception to the warrant requirement is an inventory search of an impounded vehicle. Ratliff v. State, 770 N.E.2d 807, 809 (Ind. 2002). We may affirm a trial court’s judgment on any theory supported by the evidence. Id.

Wilson argues that Officer Lamar’s search was unreasonable because it was an improper inventory search. We need not decide whether the search was a proper inventory search, however, because the evidence shows that Wilson abandoned the vehicle before Officer Lamar searched it. Abandoned property is not subject to Fourth Amendment protection. Wilson v. State, 825 N.E.2d 49, 51 (Ind.Ct.App.2005). However, if a defendant abandons property after he is improperly detained, the evidence is not admissible. See id. In the context of abandoned vehicles and the Fourth Amendment, “the question is not whether someone ‘had a proprietary or possessory interest in the automobile at the time of the police activity in question,’ taking into account the ‘subtle distinctions of common law property concepts,’ but rather whether [the] ‘defendant was entitled to and did have a reasonable expectation that the automobile would be free from governmental intrusion.’ ” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.5(a) (4th ed. 2004) (quoting State v. Achter, 512 S.W.2d 894, 899 (Mo.Ct.App.1974)).

In United States v. Pittman, 411 F.3d 813 (7th Cir.2005), a police officer accompanied by a civilian observer pulled over the defendant’s car because the rear license plate was not illuminated as required by Illinois law. When the defendant pulled to the side of the road, his passenger leapt out and ran. The passenger was found hiding in the basement of a house and placed in the backseat of the officer’s car. The civilian observer then told the officer that as soon as the officer disappeared in pursuit of the passenger, the defendant fled as well. The officer searched the car’s glove compartment, and the evidence found in that search was challenged on appeal. As one basis for upholding the search, the Seventh Circuit determined that the evidence would have been inevitably discovered because the police department had an established policy of conducting an inventory search when a vehicle is abandoned. The court then stated, “If the driver of a car flees at the approach of the police, this is pretty good evidence that he’s abandoned the car — that he doesn’t want to be associated with it and therefore isn’t going to reclaim it.” Id. at 817.

We find similar evidence of abandonment here. Upon learning that the registered owner of the maroon Mazda had a suspended driver’s license and two outstanding arrest warrants, Officer Lamar initiated a traffic stop. Before Officer Lamar approached, Wilson fled. This is evidence that Wilson abandoned the vehicle.

[8] Wilson attempts to refute this evidence of abandonment by pointing out that he locked the vehicle and took the keys with him. This argument is unpersuasive. First, Officer Lamar did not know where the keys were. Moreover, the fact that the vehicle was locked does not necessarily negate a reasonable inference that Wilson abandoned it. The vehicle was not parked on Wilson’s own property or on the property of any acquaintance but instead left in the parking lot of a strip club. There is no evidence that the police knew of anyone else around to whom Wilson may have entrusted the vehicle. By abandoning the vehicle, Wilson relinquished any reasonable expectation of privacy in it. His Fourth Amendment argument therefore fails.

II. SUFFICIENCY OF THE EVIDENCE

Wilson next contends that the evidence is insufficient to sustain his convictions for Class B felony dealing in a narcotic drug (hydromorphone) and Class D felony possession of a narcotic drug (morphine sulfate).

Our standard of review with regard to sufficiency claims is well settled. In reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind.Ct.App.2010), trans. denied. We consider only the evidence most favorable to the verdict and the reasonable inferences drawn therefrom and affirm if the evidence and those inferences constitute substantial evidence of probative value to support the verdict. Id. A conviction may be based upon circumstantial evidence alone. Id. Reversal is appropriate only when reasonable people would not be able to form inferences as to each material element of the offense. Id.

To convict Wilson of Class D felony possession of a narcotic drug as charged here, the State had to prove beyond a reasonable doubt that Wilson knowingly or intentionally possessed morphine sulfate without a valid prescription or order of a practitioner acting in the course of his professional practice. Appellant’s App. p. 10; see Ind.Code § 35W8-4-6(a). To convict Wilson of (Hass B felony dealing in a narcotic drug as charged here, the State had to prove beyond a reasonable doubt that Wilson oossessed hydromorphone with intent to deliver. Appellant’s App. p. 7; see Ind.Code § 35-48-4-1(a)(2)(C).

Wilson’s challenge is twofold. First, he argues that the evidence is insufficient to show that he possessed either drug. Second, he argues that the evidence is insufficient to show that he intended to deliver hydromorphone.

A conviction for possession of contraband may rest upon proof of either actual or constructive possession. Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct.App.2009), trans. denied. Actual possession occurs when a person has direct physical control over the contraband. Massey v. State, 816 N.E.2d 979, 989 (Ind. Ct.App.2004). Wilson did not have direct physical control over the morphine sulfate or hydromorphone pills; therefore, we consider whether the State established that he constructively possessed them.

[13-16] Constructive possession occurs when someone has the intent and the capability to maintain dominion and control over the contraband. Atwood v. State, 905 N.E.2d 479, 484 (Ind.Ct.App.2009), trans. denied. To prove the intent element, the State must demonstrate the defendant’s knowledge of the presence of the contraband. Iddings v. State, 772 N.E.2d 1006, 1015 (Ind.Ct.App.2002), trans. denied. This knowledge may be inferred from the defendant’s exclusive dominion and control over the premises containing the contraband. Ables v. State, 848 N.E.2d 293, 297 (Ind.Ct.App.2006). Because Wilson was the driver and sole occupant of the vehicle when Officer Lamar stopped him, he had exclusive possession of the vehicle. See Whitney v. State, 726 N.E.2d 823, 826 (Ind.Ct.App.2000) (determining that trial court could reasonably conclude defendant was in exclusive possession of vehicle where he was the driver and sole occupant when stopped by police). A jury could therefore reasonably infer his knowledge of the presence of the morphine sulfate and hydromorphone pills, which in turn demonstrates his intent to maintain dominion and control over them.

Wilson nonetheless points to Mickschl’s testimony to challenge the evidence that he knew of the presence of the pills. Mickschl testified that Wilson dropped her off at the strip club, and she put her makeup bag with the pills in the glove box because she did not want to carry them with her. This is merely a request to reweigh the evidence. Moreover, even crediting this testimony, a jury could still reasonably infer Wilson’s knowledge of the presence of the pills because he would have been in the vehicle when Mickschl left them there.

The capability element is shown when the State demonstrates that the defendant is able to reduce the contraband to his personal possession or to otherwise direct its disposition or use. hidings, 772 N.E.2d at 1015. Proof of a possessory interest in the premises in which contraband is found is adequate to show the capability to maintain dominion and control. Davenport v. State, 464 N.E.2d 1302, 1307 (Ind.1984). Wilson was the registered owner of the vehicle and its only occupant at the time Officer Lamar stopped him. He therefore had the capability to maintain dominion and control over the pills. The evidence is sufficient to show that Wilson constructively possessed morphine sulfate and hydromorphone.

We next consider the sufficiency of the evidence as to Wilson’s intent to deliver hydromorphone. The intent to deliver a narcotic drug in one’s possession may be proven by either direct or circumstantial evidence. Davis v. State, 868 N.E.2d 1218, 1220 (Ind.Ct.App.2007), trans. denied. Intent involves a person’s state of mind, and a factfinder may infer its existence from the surrounding circumstances. Id.

The evidence most favorable to the verdict shows that on the day of the incident, February 27, 2010, Officer Lamar found two hydromorphone pill bottles prescribed to Mickschl in Wilson’s vehicle. One bottle contained cellophane wrappers, which are commonly used to package pills for illegal sale. The other bottle indicated that it had been filled just two days before with 240 hydromorphone pills, with two pills to be taken every six hours, but only 101 pills remained. One day before the incident, Koning saw Wilson pulling pills out of his pocket and offering to sell what he described as a type of morphine pill to Riehle Brothers patrons. Wilson returned to Riehle Brothers the next night, February 27, 2010, but left after seeing Koning speaking with a police officer. Earlier in February, Wilson told a confidential informant that he expected to get 240 pills within the next two days and that he planned to sell them. This evidence is sufficient to show that Wilson intended to deliver hydromorphone.

We therefore conclude that the evidence is sufficient to sustain Wilson’s convictions for Class B felony dealing in a narcotic drug and Class D felony possession of a narcotic drug.

III. INAPPROPRIATE SENTENCE

Wilson finally contends that his thirteen-year sentence is inappropriate. Although a trial court may have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of sentences through Indiana Appellate Rule 7(B), which provides that a 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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.2007) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh’g, 875 N.E.2d 218 (2007)). The defendant has the burden of persuading us that his sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006)).

We first look to the statutory ranges established for the classes of the offenses. Wilson was convicted of a Class B felony, a Class D felony, and two Class A misdemeanors. The statutory range for a Class B felony is between six and twenty years, with the advisory sentence being ten years. Ind.Code § 35-50-2-5 (2005). The statutory range for a Class D felony is between six months and three years, with the advisory sentence being one and a half years. Ind.Code § 35-50-2-7(a) (2005). For a Class A misdemeanor, a person may not be imprisoned for more than one year. Ind.Code § 35-50-3-2 (1977). The trial court sentenced Wilson to an aggregate term of thirteen years, with one year suspended to probation.

We next look to the nature of the offenses and Wilson’s character. As for the nature of the offenses, Wilson drove a vehicle even though his driver’s license was suspended and fled from Officer Lamar during a traffic stop. He possessed Mickschl’s prescription medication and intended to sell the hydromorphone pills.

As for Wilson’s character, we acknowledge that he has mental health issues, which were also recognized by the trial court. However, his criminal record alone justifies the sentence imposed by the trial court. As a juvenile, Wilson was adjudicated a delinquent child for what would be child molesting if committed by an adult. Wilson, thirty-six years old at the time of these offenses, has misdemeanor convictions for criminal conversion, theft, possession of paraphernalia, invasion of privacy, operating a vehicle while never receiving a license, and driving while suspended. He has felony convictions for burglary, theft, and escape. He has also been adjudged to be a habitual offender. Wilson has been placed on probation and found to have violated that probation. Moreover, Wilson has substance abuse issues. He has used marijuana, cocaine, crack cocaine, heroin, and methampethamine. His abuse of prescription pills is extensive. The presen-tence investigation report indicates that Wilson reported to have used 5 to 6 morphine pills a day for 9 months at age 36, 5 to 6 Dilaudid pills a day for 9 months at age 36, approximately 10 Percocet pills a day between the ages of 33 and 36, and approximately 10 Xanax pills a day between the ages of 29 and 36. Further, Wilson has a child support arrearage of around $20,000.

Wilson has failed to persuade us that his sentence is inappropriate.

CONCLUSION

For the reasons stated, we affirm Wilson’s convictions and sentence.

Affirmed. MAY, J., and BROWN, J., concur.

      . Wilson also claims that the search of his vehicle violated Article 1, Section 11 of the Indiana Constitution. However, because he presents no authority or independent analysis supporting a separate standard under the Indiana Constitution, his claim is waived. See Lockett v. State, 747 N.E.2d 539, 541 (Ind.2001).

      . In arguing that his sentence is inappropriate, Wilson states that ‘‘[t]he trial court failed to give proper weight to Wilson's mental health.” Appellant's Br. p. 21. To the extent Wilson is arguing that the trial court abused its discretion in sentencing him, he fails to present any authority to support his contention. In any event, the relative weight of aggravating and mitigating circumstances is not subject to review for abuse. Anglemyer, 868 N.E.2d at 491.