Bryan Stone v. State of Indiana , 112 N.E.3d 1153 ( 2018 )

FILED
Oct 10 2018, 8:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E. C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryan Stone, October 10, 2018
Appellant-Defendant, Court of Appeals Case No.
34A02-1710-CR-2514
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Judge
Trial Court Cause No.
34D01-1406-FA-453
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Bryan Stone (Stone), appeals his conviction for two
counts of dealing in a synthetic drug or synthetic drug lookalike substance, both
as Class D felonies, Ind. Code §§ 35-48-4-10.5 (b)(2); -(c)(1)(B). 1
ISSUES
[2] Stone presents two issues for our review which we restate as:
1) Whether his conviction on two counts of dealing in synthetic
drug or synthetic drug lookalike substance violates double
jeopardy principles; and
2) Whether he was denied a fair trial by the admission of
evidence stemming from the search of his backpack.
[3] We affirm in part, reverse in part, and remand with instructions.
FACTS AND PROCEDURAL HISTORY
[4] On June 12, 2014, Officer Alex Harper (Officer Harper) of the Kokomo Police
Department responded to a call of a domestic battery in progress in the area of
Apperson and Elm streets involving a black male wearing a striped shirt
choking a black female. Officer Harper responded to a home at 1030 Apperson
1
The synthetic drug statute was substantially revised by legislation that went into effect on July 1, 2014, after
Stone was charged in this matter.
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where he observed Stone, who fit the description provided in the call, standing
with a black female. Officer Harper exited his car to approach them. Stone
saw Officer Harper, turned around, and quickly walked away towards the back
of the home. As Stone walked away, Officer Harper saw that Stone was
carrying a black and red backpack. Officer Harper believed that Stone was
attempting to flee, so he followed him. As Officer Harper rounded the corner
of the home, Stone was walking back towards him, albeit without the backpack.
[5] Officer Harper asked Stone for his name. Stone appeared to be very nervous.
He was shaking and kept repeating, “my name?” (Transcript Vol. I, p. 120).
Stone eventually identified himself. Officer Harper spoke to Stone and the
female with him, both of whom denied that they had been arguing or that a
battery had taken place.
[6] As Officer Harper spoke with Stone, additional officers arrived to assist,
including Officer Jason Maynard (Officer Maynard). Officer Maynard made
initial contact with Officer Harper and then began to walk around the home,
which appeared to be vacant. In Officer Maynard’s experience, it was not
uncommon for citizens to dump contraband if law enforcement had been
summoned. Officer Maynard walked to the side of the property where there
was a stairwell. At the bottom of the stairwell perched on top of trash and
debris was a black and red backpack. Officer Maynard yelled to Officer Harper,
who was approximately twenty feet away out of Officer Maynard’s line of sight
talking to Stone, and inquired whether Stone had been carrying a backpack.
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Officer Harper confirmed that Stone had been carrying the backpack Officer
Maynard had found.
[7] The backpack contained over 300 packets of synthetic marijuana, known as
“spice.” (Tr. Vol. I, p. 83). Some of the packets of synthetic marijuana were
labeled “Caution, [S]uper-[S]trong [I]ncense.” (Tr. Vol. I, p. 87). Others were
labeled “Fidel Mix.” (Tr. Vol. I, p. 88). The backpack also contained two
prescription pill bottles that did not bear Stone’s name. Officer Harper detained
Stone by placing him in handcuffs. After Officer Harper had provided Stone
with his Miranda advisements, Stone denied that the backpack belonged to him.
In the area where the backpack had been in the stairwell, Officer Maynard
subsequently found a plastic bag containing eleven smaller baggies of a white
powdery substance that field tested positive for cocaine.
[8] On June 13, 2014, the State filed an Information charging Stone with dealing in
cocaine, a Class A felony; possession of cocaine, a Class A felony; and
unlawful possession or use of a legend drug, a Class D felony. On September
24, 2014, the State filed an amended Information reflecting the fact that the
white powdery substance found was heroin and charging Stone with dealing in
a narcotic drug, a Class B felony; and possession of a narcotic drug, a Class B
felony. The State also charged Stone with two identical counts of dealing in a
synthetic drug or synthetic drug lookalike substance, both as Class D felonies,
in relevant part, as follows:
[O]n or about June 12, 2014 at or near Apperson and Elm,
Kokomo in Howard County, State of Indiana, [Stone] did
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knowingly or intentionally possess with the intent to deliver a
synthetic drug or synthetic drug lookalike substance, to-wit:
XLR11 in an amount greater than 2 grams[.]
(Appellant’s App. Vol. II, pp. 48-49). On June 13, 2014, while Officer Harper
collected a sample of Stone’s DNA after his arrest, Stone told Officer Harper
that the spice found in the backpack was his.
[9] On September 9, 2014, Stone filed a motion to suppress that the trial court
denied on December 5, 2014. Stone’s jury trial took place on May 19, 22-23,
2017. During its closing arguments, the State argued that
[t]here isn’t any question from the evidence that you heard that
those packages that you saw, Exhibits, I believe it’s 5 and 6, are
synthetic drugs. They’re a synthetic drug called XLR11. There
were two different, I believe the evidence is there were two
packages, one was Fidel Mix which the chemist determined had
more than 2 grams of this XLR11, and the other one was
Caution Incense, and the chemist determined that one had more
than 2 grams of XLR11, so when they looked at the
Informations, you have two Informations, Counts V and VI,
which may appear to you to be identical. I did misstate, the
Informations are IV and V, (inaudible) V, they appear to be
identical but the elements supporting them is not the same
because one is supported by the Fidel Mix with more than 2
grams, and the other one was supported by the Caution with
more than 2 grams. And I point that out so you don’t get
confused and then we have all of the remaining 200 or 305
packages which were not sent to the lab.
(Tr. Vol. I, pp. 189-90). During his closing statement, Stone’s defense counsel
argued that
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[t]here is no doubt that Bryan Stone possessed the spice. There is
no doubt that this bag contained whoever you believe, 200 or 300
bags of spice and you don’t use that for personal use. That was
apparent itself. He possessed it, possessed the duffle bag that it
was in, and I’m not going to sit up here and (inaudible) by telling
(inaudible) hopefully (inaudible).
(Tr. Vol. I, p. 198). The jury found Stone not guilty of all charges apart from
the two synthetic drug charges. On July 20, 2017, the trial court sentenced
Stone to 1,095 days for each conviction, to be served concurrently.
[10] Stone now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Double Jeopardy
[11] Stone argues that his convictions for two counts of dealing in a synthetic drug
or synthetic drug lookalike substance violate Article 1, Section 14, of the
Indiana Constitution. 2 Specifically, Stone contends that his convictions violate
Indiana’s Double Jeopardy Clause because “[d]ividing the ‘307 bags of spice’
found at one time from one source, diving it into components, each ‘greater
than 2 grams’ does not legally create multiple crimes.” (Appellant’s Br. at 12)
(quotation marks in the original). We review challenges under Indiana’s
Double Jeopardy Clause de novo. Bennett v. State, 5 N.E.3d 498, 515 (Ind. Ct.
App. 2014), reh’g denied, trans. denied.
2
Stone does not argue that his convictions violate the federal Double Jeopardy Clause.
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[12] For purposes of Article 1, Section 14, of the Indiana Constitution, two or more
offenses are the same offense if, “with respect to either the statutory elements of
the challenged crimes or the actual evidence used to convict, the essential
elements of one challenged offense also establish the essential elements of
another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)
(emphasis omitted).
[13] In Campbell v. State, 734 N.E.2d 248 (Ind. Ct. App. 2000), this court addressed
the issue of whether our state’s Double Jeopardy Clause prohibited multiple
convictions for possession where a defendant simultaneously possessed separate
quantities of the same illegal drug. After a confidential informant made a
controlled buy from him, Campbell was arrested in front of his home and was
found to have cocaine on his person. Id. at 250. Campbell’s home was
subsequently searched pursuant to a search warrant, and cocaine was also
found there. Id. The State charged Campbell with two counts of possession of
cocaine for having possessed it on his person and for having possessed it in his
home. Id. This court held that Campbell could only be convicted of one count
of cocaine possession because he had simultaneously possessed the cocaine in
his home and on his person. Id. The Campbell court found a separate
concurring opinion by Judge Shields on rehearing in Young v. State, 564 N.E.2d
968, 973 (Ind. Ct. App. 1991) to be persuasive:
Young’s double jeopardy protection is breached by multiple
convictions based upon the location Young had the cocaine
which he simultaneously possessed, be it in part in his left
trousers’ pocket and in part in his right trousers’ pocket, or in part
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in his right trousers’ pocket and in part underneath the car seat
on which he sat, or, as here, in part on his person and in part in a
spray can in his car from which he was removed immediately
following the vehicle's stop. The essence of the offense of
possession is the possession. Thus, just as the simultaneous
possession of a stolen watch and a stolen wallet constitutes but
one offense of theft, so too, the possession of the cocaine on a
particular occasion is but one offense; the effect of the
accumulated quantity possessed is to aggravate the possession
rather than to break it into multiple possessions.
Campbell, 734 N.E.2d at 250-51.
[14] In the more recent case of Elvers v. State, 22 N.E.3d 824 (Ind. Ct. App. 2014),
this court addressed the issue of whether the simultaneous possession of
different brands of spice could support the imposition of multiple charges for
possession with intent to deliver. Id. at 832-33. The State had seized 10.62
grams of “Kryp2Nite Original” packages containing the prohibited synthetic
drug JWH-122 from Elvers’ bathroom closet. Id. at 832. The State had also
seized 3.89 grams of spice products containing JWH-122 bearing the brand
names “Spike Max” and “K4Silver” from Elvers’ gun safe. Id. The State
charged Elvers with two counts of dealing in substances containing JWH-122 in
excess of two grams. Id. Elvers argued that the separate charges indicated that
he had been charged for possession of the specific spice brand names rather
than with possession of the prohibited compound JWH-122. Id. at 833. We
agreed and held that the State should have only charged Elvers with one count
of dealing in a synthetic drug because Elvers effectively had been convicted of
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two violations arising from his single act of simultaneously possessing multiple
products containing JWH-122. Id.[15] Here, the State charged Stone with two identical counts of possessing with
intent to deliver the prohibited compound XLR11 in an amount greater than
two grams on June 12, 2014. Both charges stemmed from his simultaneous
possession of two packets of spice each containing over two grams of XLR11
on June 12, 2014, that were found in his backpack. In light of Campbell and
Elvers, we hold that the State was not permitted to break that simultaneous
possession into multiple possessions based solely upon the fact that the packets
containing the spice bore different brand names, which was the only
distinguishing fact argued by the State at trial to support the two separate
charges. Stone’s convictions for both counts of dealing in a synthetic drug or
synthetic drug lookalike substance violated Indiana’s prohibition against double
jeopardy. Accordingly, we reverse and remand to the trial court with
instructions to vacate one of Stone’s convictions.
II. Backpack Search
[16] Stone next contends that the search of his backpack violated his rights under the
Fourth Amendment of the United States Constitution and Article 1, Section 11,
of the Indiana Constitution. Ordinarily, we review a trial court’s decisions on
the admission of evidence for an abuse of the trial court’s discretion. Fansler v.
State, 100 N.E.3d 250, 253 (Ind. 2018). However, such decisions are not subject
to review unless a contemporaneous objection was made at trial, regardless of
the fact that the defendant filed a pretrial motion to suppress. Jackson v. State,
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735 N.E.2d 1146, 1152 (Ind. 2000). Stone did not object at trial to the
admission of the evidence garnered from the search of his backpack. As he
recognizes on appeal, Stone’s claim of error is waived unless he can establish
that the admission of the challenged evidence constituted fundamental error.
[17] The doctrine of fundamental error is narrow and may lead to reversal only
where there has been a “‘blatant violation of basic principles, the harm or
potential for harm is substantial, and the resulting error denies the defendant
fundamental due process.’” Mamon v. State, 6 N.E.3d 488, 490 (Ind. Ct. App.
2014) (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). In Brown v.
State, 929 N.E.2d 204 (Ind. 2010), our supreme court noted that the admission
of evidence as the result of an improper search or seizure does not
automatically require reversal, and indeed, does not rise to the level of
fundamental error where there is “no claim of fabrication of evidence or willful
malfeasance” on the part of officers or where there is no contention that the
“evidence is not what it appears to be.” Id. at 207. The fundamental error
doctrine will, therefore, only be applicable in “‘egregious circumstances.’” Id.(citation omitted).
[18] Here, Stone’s factual guilt is not at issue, as he conceded at trial that he
possessed the backpack and the spice. On appeal, Stone does not allege, let
alone establish, that evidence was fabricated or that the challenged evidence
was not what it appeared to be. Stone seemingly intimates that at least one law
enforcement officer involved in this case acted improperly, as he suggests that
Officer Harper had an ulterior motive for searching his backpack based on his
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prior knowledge of Stone. However, our review of the record does not disclose
any willful malfeasance by law enforcement in this case. The claimed error
does not rise to the level of fundamental error, and we decline to review the
admissibility of the evidence garnered from the search of Stone’s backpack.
Mamon, 6 N.E.3d at 490 (finding no fundamental error and declining to review
the merits of Mamon’s Fourth Amendment and Article 1, Section 11, claims
based on evidence garnered from a traffic stop).
CONCLUSION
[19] Based on the foregoing, we conclude that Stone waived his claim of error based
upon the admission of evidence gathered from the search of his backpack but
also conclude that his conviction for two counts of dealing in a synthetic drug
or synthetic lookalike drug violated double jeopardy principles. We reverse in
part and remand this matter to the trial court to vacate one of Stone’s
convictions.
[20] Affirmed in part, reversed in part, and remanded with instructions.
[21] Vaidik, C. J. and Kirsch, J. concur
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