David Wayne Lawson v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 29 2019, 10:18 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven E. Ripstra Curtis T. Hill, Jr.
Jasper, Indiana Attorney General of Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Wayne Lawson, October 29, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-740
v. Appeal from the Pike Circuit Court
The Honorable Jeffrey L. Biesterveld,
State of Indiana, Judge
Appellee-Plaintiff. Trial Court Cause No.
63C01-1805-F4-338
Bailey, Judge.
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Case Summary
[1] David Wayne Lawson (“Lawson”) appeals his convictions, following a jury
trial, for Count I, dealing in methamphetamine, as a Level 4 felony;1 Count II,
dealing in methamphetamine, as a Level 5 felony;2 and Count III, maintaining
a common nuisance, as a Level 6 felony.3
[2] We affirm in part, reverse in part, and remand.
Issues
[3] Lawson raises three issues on appeal, which we consolidate and restate as
follows:
1. Whether the trial court abused its discretion when it
admitted into evidence transcripts of text messages taken
from the cellular telephone of an alleged co-conspirator.
2. Whether the State presented sufficient evidence to support
his convictions for dealing in methamphetamine and
maintaining a common nuisance.
Facts and Procedural History
1
Ind. Code § 35-48-4-1.1(a)(1), (c).
2
I.C. § 35-48-4-1.1(a)(1).
3
I.C. § 35-45-1-5(c).
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[4] During the early morning hours of May 6, 2018, Lawson was driving through
Petersburg, Indiana. Jennifer Kostas (“Kostas”) was a passenger in the vehicle
Lawson drove. Corporal Jared Simmons (“Officer Simmons”) of the
Petersburg Police Department pulled Lawson’s vehicle over because his vehicle
was missing a functioning license plate light. Upon approaching Lawson’s
vehicle on the driver’s side and asking Lawson for his registration and
identification, Officer Simmons noticed that Lawson exhibited high levels of
nervousness. After Lawson exited the vehicle as instructed, Officer Simmons
smelled raw marijuana coming from Lawson’s person. Lawson consented to
Officer Simmons searching him, and, in doing so, Officer Simmons found what
he recognized as a methamphetamine pipe that contained fresh
methamphetamine residue, a marijuana pipe, and a cellophane wrapper
containing marijuana.
[5] Officer Simmons then handcuffed Lawson and read him the Miranda warnings.
Officer Simmons asked Lawson if there was anything illegal in the vehicle, and
Lawson responded that there was another methamphetamine pipe in between
the driver’s seat and the center console. Officer Simmons then had Kostas also
exit the vehicle, and he handcuffed her and read her the Miranda warnings.
Officer Simmons retrieved the second methamphetamine pipe from the vehicle
and searched the rest of the vehicle. During his search, Officer Simmons found
under the passenger seat a zipped plastic pouch that contained a butane lighter
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and another methamphetamine pipe. Officer Simmons then searched Kostas’s
purse and discovered a corner baggie that contained methamphetamine residue.
[6] The State charged Lawson with two counts of dealing in methamphetamine,
one as a Level 4 felony and the other as a Level 5 felony, and one count of
maintaining a common nuisance, as a Level 6 felony. The State later amended
the charges to include a habitual offender allegation4 and one count of
conspiracy to deal in methamphetamine in amount of at least one gram, as a
Level 4 felony.5
[7] Officer Simmons testified at Lawson’s December 3, 2018, jury trial as to what
Lawson said to Officer Simmons at the time of Lawson’s arrest, following the
reading of the Miranda warnings. Officer Simmons testified that, in response to
his questions, Lawson stated that he and Kostas had been visiting friends in the
nearby Autumn Lane Apartments. Officer Simmons asked Lawson if he and
Kostas had “brought meth up here to sell it,” and Lawson said he did not and
then turned to look at Kostas. Tr. at 89. Officer Simmons asked Lawson if
Kostas had sold methamphetamine and Lawson responded that he “believe[d]
so.” Id. Lawson told Officer Simmons that Kostas had sold methamphetamine
to a person in the Autumn Lane Apartments who Lawson did not know.
4
I.C. § 35-50-2-8.
5
I.C. § 35-48-4-1.1(a)(1), (c); I.C. § 35-41-5-2.
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Lawson described the buyer as a “taller guy” with “dark hair,” and he stated
that Kostas had met up with the buyer at the window to an apartment, where a
pink light was shining. Id. at 90. Lawson stated to Officer Simmons that
Lawson knew Kostas “was selling meth and that was the reason for [their]
visit” to the apartment. Id. at 91. Lawson also stated to Officer Simmons that
Lawson had “been there” a “couple of times before.” Id. Lawson told Officer
Simmons that Lawson and Kostas had “come up here to sell drugs before to the
same person” at the same apartments. Id. at 91-92.
[8] Officer Simmons also testified that he had “seize[d] a phone from Ms. Kostas”
at the time of the arrest and had “occasion to search that phone for any
evidence of drug dealing.” Id. at 95-96. He identified State’s Exhibit 8 as seven
pages depicting “messages between Ms. Kostas and a Chris subject.” Id. at 96.
Officer Simmons testified that those messages were “taken off of [Kostas’s]
phone,” id., from Facebook messenger, id. at 136, and that there was a picture
of the “Chris subject” “associated with all of his messages,” on Kostas’s phone,
id. at 97. When Officer Simmons clicked on the picture of the Chris subject on
Kostas’s phone, the profile of Chris Grier (“Grier’) appeared. Officer Simmons
recognized the person in the picture as Grier, who Officer Simmons knew at the
time of the traffic stop. Officer Simmons further testified that he knew Grier
was living in the same Autumn Lane Apartments that Lawson had described.
Officer Simmons testified that the text messages in Exhibit 8 “indicate that
[Kostas] wants money from Grier in exchange for something she’s going to go
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get,” and “indicate[], from Mr. Grier, that he wants a gram in exchange for a
buck.” Id. at 100. State’s Exhibit 8 was then admitted into evidence over
Lawson’s objections.
[9] Officer Simmons further testified that “based on [his] training as an officer,” he
believed the part of the messages in Exhibit 8 referring to two hundred dollars
meant that Grier wanted two hundred dollars’ worth of “something.” Id. at
109. He testified that jail staff found $180 on Kostas’s person after she was
arrested, and Lawson had about $21 on his person. Id. at 109, 140-41. Officer
Simmons testified that the part of the messages stating “you got another g” was
Grier asking Kostas whether she had another “gram of meth,” id. at 110, and
that the message from Grier stating “got a buck” meant got “one hundred
dollars,” id. at 110-11. Officer Simmons testified that the “street price” for one
gram of methamphetamine is one hundred dollars. Id. at 112.
[10] On cross examination, Officer Simmons testified that the “only proof that [he
was] able to recover regarding the amount of methamphetamine that Ms.
Kostas allegedly took to the apartment to Mr. Grier was from her test (sic) -
from her statement to [Officer Simmons.]” Id. at 119. The “statement” to
which this question refers was from the State’s prior deposition of Kostas. Id.
Lawson further asked Officer Simmons whether Kostas had told Officer
Simmons what amount of money “she received from Mr. Grier,” and Officer
Simmons stated, “she [Kostas] told us it was about a hundred dollars.” Id. at
127. Kostas told Officer Simmons “she already had eighty dollars on her at that
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time.” Id. Officer Simmons testified that he had interviewed Kostas, and that
Kostas told him she “didn’t know the exact amount” of meth she sold to Grier.
Id. at 129. He stated that he could not say “with any reasonable certainty how
much methamphetamine was actually sold that day,” but that Kostas told him
Grier paid her $100 for “a gram.” Id. at 137, 139. Officer Simmons testified
that, based “solely” on “the statement from Ms. Kostas,” he believed the drug
deal was for “at least one gram” of methamphetamine. Id. at 137-38.
[11] Lawson was convicted of two counts of dealing in methamphetamine, one
count of conspiracy to deal in methamphetamine, and one count of maintaining
a common nuisance. Lawson admitted to being a Habitual Offender. The trial
court sentenced Lawson to twelve years for Count I, dealing in
methamphetamine, as a Level 4 felony, and two and a half years for Count III,
maintaining a common nuisance, as a Level 6 felony. It ordered that Counts I
and III run concurrently. Count I was enhanced by twelve years as a habitual
offender enhancement. The convictions for Count II, dealing in
methamphetamine as a Level 5 felony, and Count IV, conspiracy to deal in
methamphetamine as a Level 4 felony, were merged into Count I. This appeal
ensued.
Discussion and Decision
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Admission of Out-of-Court Statements of Alleged Co-
Conspirators
[12] Lawson challenges the trial court’s ruling admitting State’s Exhibit 8 into
evidence, over his objections. We review the admission or exclusion of
evidence for an abuse of discretion, and we will reverse the trial court’s decision
only when its action is clearly against the logic and effect of the facts and
circumstances before it. E.g., Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct.
App. 2007).
[13] Lawson first attacks the admissibility of Exhibit 8 on the grounds that it is
hearsay, since it allegedly contains statements of Kostas and Grier, neither of
whom appeared at trial. And Lawson maintains that the State failed to
establish that Exhibit 8 was a statement of a co-conspirator—and therefore not
hearsay under Rule of Evidence 801(d)(2)(E)—because the State did not
provide proof of the conspiracy independent of the Exhibit 8 statements
themselves. Rule 801(d)(2)(E) provides: “A statement is not hearsay if ... [t]he
statement is offered against a party and is ... a statement by a co-conspirator of
a party during the course and in furtherance of the conspiracy.” In order to
introduce such a statement into evidence, the State must lay an evidentiary
foundation establishing by independent proof the existence of the conspiracy.
Hightower v. State, 866 N.E.2d 356, 365 (Ind. Ct. App. 2007) (noting the
independent proof may be circumstantial and “need not be strong”), trans.
denied. Here, the State introduced independent proof that Lawson conspired
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with Kostas to sell methamphetamine. Prior to the admission of Exhibit 8,
Officer Simmons testified that Lawson admitted to Officer Simmons that
Lawson knew Kostas intended to sell methamphetamine that night and that
Lawson drove Kostas to the Autumn Lane Apartments for that purpose.
[14] However, even assuming the messages were not hearsay and were admissible
under Rule of Evidence 801(d)(2)(E), Lawson argues that the court erred in
admitting Exhibit 8 because the State failed to authenticate the document as
required by Rule of Evidence 901. Rule 901 requires that the proponent of the
item “produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Although “[a]bsolute proof” of authenticity is not
required, the proponent must at least establish a “reasonable probability that the
evidence is what it is claimed to be and may use direct or circumstantial
evidence to do so.” M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App. 2016),
trans. denied. We have previously held that the authentication requirement
applies to the substantive content of text messages generated and stored in
cellular telephones. Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009),
trans. denied.
[15] Here, the State failed to authenticate Exhibit 8. Officer Simmons testified that
State’s Exhibit 8 was seven pages depicting “messages between [Kostas] and
[Grier].” Tr. at 96. He testified that the messages “were taken off of [Kostas’s]
phone” which he had seized upon arresting her but which was not, itself,
offered or admitted into evidence. Id. at 96-97. He further testified that there
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was a picture of Grier next to each message from Grier and that he recognized
Grier. Officer Simmons testified that the messages showed that “a drug deal
[was] in the process.” Id. at 98. However, neither Officer Simmons nor any
other witness testified as to how the documents in Exhibit 8 were created and
by whom or, most importantly, on what dates the messages had been created and/or
sent and received. And none of that information is discernable from the face of
the exhibit itself. Ex. at 10-16. Thus, the State failed to authenticate Exhibit 8
by showing a reasonable probability that the messages in it were—as alleged—
related to the drug deal that took place on May 6, 2018.
[16] However, we hold that the admission of Exhibit 8 without proper
authentication was harmless error. Before a defendant is entitled to a reversal,
he must affirmatively show that the error of which he complains prejudiced his
substantial rights. E.g., Vaughn v. State, 13 N.E.3d 873, 886 (Ind. Ct. App.
2014), trans. denied.
In evaluating whether erroneously admitted evidence was
prejudicial, we assess its “probable impact ... upon the jury in
light of all of the other evidence that was properly presented. If
we are satisfied the conviction is supported by independent
evidence of guilt[,] ... the error is harmless.” [Blount v. State, 22
N.E.3d 559, 564 (Ind. 2014)]. Put another way, “we judge
whether the jury’s verdict was substantially swayed. If the error
had substantial influence, or if one is left in grave doubt, the
conviction cannot stand[.]” Lafayette v. State, 917 N.E.2d 660,
666–67 (Ind. 2009) (citation omitted).
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Williams v. State, 43 N.E.3d 578, 583 (Ind. 2015).
[17] Here, there is not a substantial possibility that the messages in Exhibit 8
prejudiced the jury’s verdicts. As we discuss in more detail below, there was
sufficient and compelling independent evidence establishing Lawson’s guilt of
dealing in methamphetamine. And it is highly unlikely that Exhibit 8 had any
impact on the jury’s verdict convicting Lawson of maintaining a common
nuisance (i.e., his vehicle) because the messages: did not refer to Lawson at all,
referred to only one drug deal, and did not indicate that any vehicle—much less
Lawson’s particular vehicle—was or would be used in any drug deal. The
admission of Exhibit 8 was harmless error.6
Sufficiency of Evidence
Standard of Review
[18] Lawson challenges the sufficiency of the evidence to support his convictions.
Our standard of review of the sufficiency of the evidence is well-settled:
When reviewing the sufficiency of the evidence needed to
support a criminal conviction, we neither reweigh evidence nor
judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
(Ind. 2009). “We consider only the evidence supporting the
6
Lawson alleges in one sentence of his brief that the admission of Exhibit 8 “violated, among other things,
the Sixth Amendment’s Confrontation Clause.” Appellant’s Br. At 9. Lawson has waived this argument
because he did not raise it in the trial court, see, e.g., Plank v. Cmty. Hosp. of Ind., Inc., 981 N.E.2d 49, 53 (Ind.
2013), or provide cogent reasoning in support of it on appeal, Ind. Appellate Rule 46(A)(8).
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judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial
evidence of probative value such that a reasonable trier of fact
could have concluded the defendant was guilty beyond a
reasonable doubt. Id.Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.
Dealing in methamphetamine
[19] To prove Lawson committed dealing in methamphetamine, as a Level 4 felony,
the State was required to prove beyond a reasonable doubt that (1) Lawson, as
an accomplice or principal, (2) knowingly or intentionally (3) delivered (4)
methamphetamine (5) in the amount of at least one gram but less than five
grams. I.C. § 35-41-2-4; I.C. § 35-48-4-1.1(a)(1)(A), (c)(1). There was no
evidence produced at trial that Lawson himself sold methamphetamine to
Grier. Rather, Lawson was charged as an accomplice 7 to Kostas. Indiana
Code Section 35-41-2-4 provides: “A person who knowingly or intentionally
aids, induces, or causes another person to commit an offense commits that
offense, even if the other person: (1) has not been prosecuted for the offense; (2)
has not been convicted of the offense; or (3) has been acquitted of the offense.”
7
The charging information cited the dealing statute, but not the accomplice liability statute. App. Vol. II at
111. However, “no reference to the accomplice liability statute need be included in the charging information
in order for a defendant to be convicted of [the underlying] crime.” Wise v. State, 719 N.E.2d 1192, 1199
(Ind. 1999); see also Schaaf v. State, 54 N.E.3d 1041, 1043 (Ind. Ct. App. 2016) (“[A] person can be charged as
a principal and convicted as an accomplice.”).
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This statute does not establish liability as a separate crime, but merely as a
separate basis of liability for the crime charged. E.g., Taylor v. State, 840 N.E.2d
324, 333 (Ind. 2006).
[20] In determining whether there is sufficient evidence to support an accomplice
relationship, we consider: (1) presence at the scene of the crime; 8 (2)
companionship with another at the scene of the crime; (3) failure to oppose
commission of the crime; and (4) course of conduct before, during, and after
occurrence of the crime. E.g., Bethel v. State, 110 N.E.3d 444, 450 (Ind. Ct. App.
2018), trans. denied. It is not necessary that the evidence show the alleged
accomplice personally participated in the commission of each element of the
offense. Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). Rather, “[a] jury
may infer complicity and participation in a crime ‘from defendant’s failure to
oppose the crime, companionship with the one engaged therein, and a course of
conduct before, during, and after the offense which tends to show complicity.’”
Hauk v. State, 729 N.E.2d 994, 998 (Ind. 2000) (quoting Shane v. State, 716
N.E.2d 391, 396 (Ind. 1999)); see also Vasquez v. State, 762 N.E.2d 92, 95 (Ind.
2001) (“An accomplice can be held criminally liable for everything done by his
confederates which was a probable and natural consequence of their common
plan.” (quotation and citation omitted)). Thus, in Wood v. State, for example,
8
“Mere presence at the scene of a crime is insufficient to make one an accomplice,” but we consider
presence at the scene in conjunction with the other factors. Griffin v. State, 16 N.E.3d 997, 1004 (Ind. Ct.
App. 2014).
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there was sufficient evidence to support the defendant’s conviction for robbery,
as an accomplice, where the defendant: admitted she knew the principal
intended to rob someone; drove the principal to the scene of the crime; parked
the vehicle and waited for the principal while the principal committed the
crime; and then drove away with the principal until stopped by police. 963
N.E.2d 632, 636 (Ind. Ct. App. 2012).
[21] Here, the State presented sufficient evidence that Lawson knowingly aided
Kostas in delivering one gram of methamphetamine. Lawson admitted he
knew Kostas intended to sell methamphetamine to Grier; Lawson admitted that
he drove Kostas to the scene of the crime, i.e., Autumn Lane Apartments, for
the purpose of her selling methamphetamine to Grier; Lawson waited for
Kostas while she conducted the drug sale; and Lawson drove Kostas away from
the scene of the crime until stopped by police. In addition, Officer Simmons
testified that one gram of methamphetamine sells for $100 and that Kostas told
him9 that Grier paid her $100 for the gram of methamphetamine she sold him.
From those facts, the jury could reasonably infer that Kostas sold Grier one
gram of methamphetamine and Lawson knowingly aided her in doing so.
There was sufficient evidence to support Lawson’s conviction for dealing in
methamphetamine, as a Level 4 felony.
9
Lawson did not object to Officer Simmons’s testimony about what Kostas told him; in fact, Lawson’s own
attorney elicited testimony about Kostas’s out of court statements to Officer Simmons.
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[22] The trial court entered a judgment of conviction on all four counts against
Lawson, but it merged the dealing in methamphetamine as a Level 5 felony
(Count II) and the conspiracy to deal in methamphetamine (Count IV) with the
conviction for dealing in methamphetamine as a Level 4 felony (Count I). App.
Vol. III at 49 (Abstract of Judgment). Presumably, the trial court did so due to
double jeopardy concerns.10 However, a double jeopardy violation “cannot be
remedied by the practical effect of concurrent sentences or by merger after
conviction has been entered.”11 Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct.
App. 2008) (quotations and citation omitted), trans. denied. Therefore, we
remand this cause to the trial court with an order to vacate the entries of
judgment of convictions for dealing in methamphetamine as a Level 5 felony
and conspiracy to deal in methamphetamine.
Maintaining a Common Nuisance
10
“Double jeopardy rules preclude a conviction for conspiracy and the underlying offense only when the
same evidence is used to prove both the overt act committed in furtherance of the conspiracy and the
commission of the underlying crime.” Coleman v. State, 952 N.E.2d 377, 382 (Ind. Ct. App. 2011) (citing
Johnson v. State, 749 N.E.2d 1103, 1108 (Ind. 2001)). In this case, the evidence that proved Lawson was
guilty of dealing a gram of methamphetamine as a Level 4 felony as an accomplice to Kostas is the same
evidence that would be used to show (1) Lawson dealt methamphetamine as a Level 5 felony (i.e., dealt less
than one gram) as an accomplice to Kostas, and (2) the overt act in furtherance of a conspiracy. That
evidence is Lawson’s admission that he knew Kostas intended to sell methamphetamine and drove Kostas to
Grier’s apartment on May 6, 2018, for that purpose.
11
Although Lawson does not raise the double jeopardy issue on appeal, we raise it sua sponte as “questions
of double jeopardy implicate fundamental rights.” Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App. 2015),
trans. denied.
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[23] To prove Lawson committed maintaining a common nuisance as a Level 6
felony, the State was required to prove beyond a reasonable doubt that Lawson:
(1) knowingly or intentionally (2) maintained (3) a vehicle (4) to unlawfully sell
or deliver a controlled substance. I.C. § 35-45-1-5(a)(3), (c). The State
presented evidence that Lawson knowingly used his vehicle to drive Kostas to
Grier’s apartment so that Kostas could sell Grier methamphetamine. However,
Lawson contends the State failed to meet its burden of proof because it
provided no evidence that he used his vehicle more than one time to assist
Kostas in dealing in methamphetamine. We agree.
[24] As we explained in Leatherman v. State, 101 N.E.3d 879, 883 (Ind. Ct. App.
2018), as corrected, “to prove the nuisance was a ‘common’ nuisance, the State
must provide evidence that the vehicle was used on more than one occasion for
the unlawful delivery of a controlled substance.” We reached this conclusion
based on the legislative and common law history of the crime of maintaining a
common nuisance. Id. at 884. Here, although the State provided evidence that
Lawson admitted that he and Kostas had come to the same apartment complex
on prior occasions to sell methamphetamine to the same person, there was no
evidence that Lawson used any vehicle—much less the specific vehicle he drove
on May 6, 2018—to do so.12 Therefore, the State failed to provide sufficient
12
Thus, the State is incorrect when it contends Lawson “admitted to driving there on prior occasions.”
Appellee Br. at 15. See Tr. at 91.
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evidence to support Lawson’s conviction for maintaining a common nuisance,
and we must reverse that conviction. Id.Conclusion
[25] Although the State failed to properly authenticate Exhibit 8, which it alleged
contained copies of text messages between Kostas and Grier related to the May
6, 2018, drug deal, the admission of that exhibit was harmless error; the exhibit
was irrelevant to—and therefore not relied upon to support—the common
nuisance conviction, and there was sufficient evidence aside from the exhibit to
support Lawson’s dealing conviction. Furthermore, there was sufficient
evidence to support Lawson’s conviction, under the accomplice liability statute,
of dealing in methamphetamine as a Level 4 felony. However, the trial court
failed to remedy any double jeopardy concerns by merging Counts II (dealing in
methamphetamine as a Level 5 felony) and IV (conspiracy to deal) as opposed
to vacating those convictions. And there was insufficient evidence to support
Lawson’s conviction for maintaining a common nuisance, Count III.
[26] We affirm in part, reverse in part, and remand with instructions to vacate the
convictions in Counts II, III, and IV.
Najam, J., and May, J., concur.
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