Lola M. Sells v. State of Indiana

FILED
Jul 31 2019, 10:14 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Kindley Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lola M. Sells, July 31, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2691
v. Appeal from the Franklin Circuit
Court
State of Indiana, The Honorable J. Steven Cox,
Appellee-Plaintiff. Judge
Trial Court Cause No.
24C01-1506-F3-626
Najam, Judge.
Statement of the Case
[1] Lola M. Sells appeals her conviction for dealing in methamphetamine, as a
Level 3 felony, following a jury trial. Sells raises four issues for our review,
which we restate as follows:
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1. Whether she preserved for appellate review her argument
that the trial court violated her right to be free from double
jeopardy when it permitted the State to try her after the
court had previously declared a mistrial.
2. Whether Sells’ defense attorney opened the door to
comments made by the prosecutor during his rebuttal
following her attorney’s closing argument.
3. Whether her two convictions violate the actual evidence
test under Article 1, Section 14 of the Indiana
Constitution.
4. Whether the State proved venue in Franklin County.
[2] We affirm.
Facts and Procedural History
[3] In August of 2014, Adam Wagner used and dealt methamphetamine out of his
residence in Rush County. During that time, his girlfriend, Felicia Craig, also
used methamphetamine. In late August, Wagner arranged to have Craig buy
seven grams of methamphetamine from Sells at a predetermined location in
another county.
[4] In the early morning hours of August 26, after Craig had met with Sells and
purchased the seven grams of methamphetamine, Craig began to drive back to
meet with Wagner. On her way back, Officer Chris Smith of the Batesville
Police Department initiated a traffic stop of Craig’s vehicle for a lane violation
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on Interstate 74 in Franklin County. Officer Smith gave Craig a warning and
let her go.
[5] Craig then called Wagner. Wagner thought Craig sounded in a “way I’ve never
heard her before”; she was “[s]uper excited, super scared, just all over . . . she
was very confused, excited.” Amended Tr. Vol. 2 at 135. Craig told Wagner
that “she had just got pulled over and that she ate all those drugs and she was
scared.” Id. Craig then went silent.
[6] Around 6:30 that morning, Greg Kinker met an associate at a truck stop in
Decatur County, just a few miles from the location of Officer Smith’s traffic
stop of Craig’s vehicle, to carpool to work. While there, he observed a “leg
sticking out the window” of the driver’s side of a nearby vehicle and “thought
somebody was sleeping.” Id. at 33. However, when he came back to the truck
stop to get his vehicle around 5:00 that afternoon, Kinker “noticed that vehicle
sitting there with the leg sticking out again and figured nobody can be in that
position all day long.” Id. Kinker went to check on the person, realized that
“she was unresponsive, dead,” and called 9-1-1. Id. The decedent was later
identified as Craig, and she had died of an overdose of methamphetamine.
[7] In June of 2015, the State charged Sells with dealing in methamphetamine, as a
Level 3 felony, and with conspiracy to deal methamphetamine, also as a Level
3 felony. On July 25, 2016, the trial court began Sells’ jury trial in her absence
and empaneled a jury. The court then directed the parties to begin their
evidentiary presentations at the beginning of the next day.
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[8] However, prior to the commencement of the evidentiary presentations, the trial
court, out of the presence of the parties and the jury, declared a mistrial sua
sponte and discharged the jury. According to the court’s written order: “press
coverage in the Brookville Democrat/American . . . reported that the defendant
failed to appear and ‘could not be contacted.’ The article further quoted the
State as offering that the reason the trial court not proceed was because the
defendant was not present.” Appellant’s App. Vol. II at 38. The court
determined that “the disclosure of issues . . . of matters resolved on the record
out of the presence of the jury before the production of evidence so taints the
jury that no limiting instructions can cure the defect.” Id. The court then
directed that the State would have a second opportunity to try Sells “at the next
convenient date.” Id.
[9] More than two years later, the court held Sells’ second jury trial. At that trial,
the State called Wagner, Officer Smith, and Kinker as witnesses. The State also
called, among others, Sells’ acquaintance Richard Campos as a witness.
Campos testified that, about a week after Craig had died, Sells told him that
Craig had “come to my house and left my house,” “[g]ot pulled over, freaked
out[,] and swallowed” the “meth” and “overdosed.” Amended Tr. Vol. 2 at
214.
[10] During Sells’ closing argument, her attorney argued that the State had failed to
prove that Sells dealt or conspired to deal methamphetamine “in Franklin
County.” Amended Tr. Vol. III at 23. Instead, her attorney continued, the
State “g[ot] turned down everywhere else” and so the prosecutor in Franklin
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County decided “to take our shot here.” Id. at 22. Sells’ attorney accused the
State of “forum shop[ping],” which he told the jury might happen if a party
“do[esn’t] really like the Judge in this county, or . . . do[esn’t] really like
potential jurors in another county . . . .” Id. at 23. Sells’ attorney then accused
the local prosecutor of finding facts “[t]o make [the prosecution in Franklin
County] work” and to “fit the narrative . . . [b]ecause” otherwise “there’s no
crime here . . . .” Id. at 24-25. This included suggesting that the State suborned
perjury from Wagner and Campos. See id. at 26, 30. The prosecutor objected to
Sells’ attorney’s argument, but the trial court stated that Sells’ attorney was
“permitted to characterize the evidence.” Id. at 30.
[11] In his rebuttal, the prosecutor responded to the argument of Sells’ attorney as
follows:
You know, ladies and gentlemen[,] I’ve tried a lot of cases. And
this is my 40th year as a Prosecutor in this county. I’m proud of
the work I do and I’m proud of law enforcement. You just heard
a final argument. I don’t normally get upset, it’s the final
argument. That’s his job. You attack the credibility of the
witnesses. But when I heard the innuendo that me [and various
law enforcement officers] started our investigation to target Lola
Sells, we are the conspirators. We did that. That upsets me. If
we would do that, we should be charged and in jail. We don’t
make up facts, we present them. . . . [W]here is the evidence on
anything he said? He said the officers went to Adam Wagner
and made a deal with him, to give him the Defendant . . . .
There is nobody that has testified to that. He’s pulling out of the
air. Why is he doing that? He attacked [e]very witness. If he
had attacked just one, it’s okay. But he attacked the whole
system. He’s tearing the whole system down.
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I’m embarrassed. I don’t know how they do things in
Indianapolis, [where Sells’ attorney is from,] but in Franklin
County, we give it to you straight. We don’t make the facts, we
present them. And he’s saying—I say bring your common sense,
your life experiences, he says there’s no evidence of a conspiracy,
and we had to have Adam involved in it. How do you get
around these text messages [between Wagner, Sells, and Craig]?
He said there’s no evidence of seven grams[] but [for] Adam
Wagner. He wants you to throw out Richard Campos
completely. Is that part of our conspiracy? We hunted down
Richard Campos? We had no idea who he was. He came to us.
He said he had an axe to grind with the Defendant. Where did
you hear that? Did I sleep over that? I don’t think so. I never
heard that they had any dispute on anything. He spent the night
at her house.
It’s a desperate attempt because the evidence is overwhelming. I
thought—at first I thought, okay, his one argument is going to
be, he’s hitting on [venue]. He did that opening statement, jury
selection, . . . he did it on the witnesses. He did it in final. That’s
fair game. But don’t attack the system because your client—the
evidence is overwhelming on guilty, to try to take me down and
tell me I’m unethical, that I conspired.
Id. at 33-34. At that point, Sells’ attorney objected to the prosecutor’s use of the
word “unethical” and the prosecutor allegedly “attacking the Defense. He is
attacking my role in this case.” Id. The trial court overruled the objection on
the ground that the prosecutor was “characteriz[ing] what he heard” during
Sells’ closing argument, but nonetheless the court admonished the jury that the
attorneys’ arguments are not evidence. Id. at 34.
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[12] The jury found Sells guilty as charged. The court entered its judgment of
conviction and sentenced Sells to an aggregate term of twenty years in the
Department of Correction. This appeal ensued.
Discussion and Decision
Issue One: Double Jeopardy
[13] On appeal, Sells first asserts that the trial court denied her her right to be free
from double jeopardy under the Fifth Amendment when it permitted the State
to retry her after the trial court had declared a mistrial during her first trial. 1
Generally, a trial court may not enter a mistrial over a defendant’s objection.
Jackson v. State, 925 N.E.2d 369, 373 (Ind. 2010). However, “[a] defendant
waives [her] right to raise double jeopardy by failing to make a timely objection
to the discharge of the jury or to the court’s declaration of a mistrial.” Ried v.
State, 610 N.E.2d 275, 279 (Ind. Ct. App.), summarily aff’d, 615 N.E.2d 893, 893
(Ind. 1993).
[14] Sells did not lodge any objection to the trial court’s discharge of the first jury,
the declaration of the mistrial, the court’s explicit instructions to the State that it
may retry her, or the actual, second trial held more than two years later. At no
point after the declaration of the mistrial did Sells move for dismissal of the
State’s charges. Indeed, Sells identifies no portion of the record, nor is any such
portion of the record apparent, in which she expressed any dissatisfaction with
1
There is no dispute that double jeopardy attached when the first jury was empaneled. E.g., Jackson v. State,
925 N.E.2d 369, 373 (Ind. 2010).
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the trial court’s procedures prior to her argument in her brief to this Court. And
while Sells baldly states on appeal that the trial court’s sua sponte mistrial
declaration did not give her counsel an opportunity to object, we conclude that
she has not met her burden on appeal to demonstrate that she could not have
filed a timely objection with the trial court or otherwise expressed her
dissatisfaction with the court’s procedures long before this appeal. Accordingly,
we hold that Sells has not preserved her double-jeopardy argument for our
review, and we do not consider it. See id.Issue Two: Prosecutorial Misconduct
[15] Sells next asserts that the prosecutor committed misconduct during his rebuttal
argument to the jury because, according to Sells, the prosecutor “disparag[ed]
Sells’ defense counsel and his role in the case” and further “vouch[ed] for the
State’s witnesses.” Appellant’s Br. at 10. As our Supreme Court has explained:
In reviewing a claim of prosecutorial misconduct properly raised
in the trial court, we determine (1) whether misconduct occurred,
and if so, (2) whether the misconduct, under all of the
circumstances, placed the defendant in a position of grave peril to
which he or she would not have been subjected otherwise. A
prosecutor has the duty to present a persuasive final argument
and thus placing a defendant in grave peril, by itself, is not
misconduct. Whether a prosecutor’s argument constitutes
misconduct is measured by reference to case law and the Rules of
Professional Conduct. The gravity of peril is measured by the
probable persuasive effect of the misconduct on the jury’s
decision rather than the degree of impropriety of the conduct. To
preserve a claim of prosecutorial misconduct, the defendant
must—at the time the alleged misconduct occurs—request an
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admonishment to the jury, and if further relief is desired, move
for a mistrial.
Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citations, emphases, and quotation
marks omitted).
[16] The parties dispute on appeal whether Sells properly preserved her claim of
prosecutorial misconduct and, if not, whether the prosecutor’s comments
during his rebuttal amount to fundamental error. But we need not consider
those questions. Sells’ closing argument accused the prosecutor of suborning
perjury and inventing facts to obtain jurisdiction in Franklin County after other
counties had supposedly declined prosecution. “Prosecutors are entitled to
respond to allegations and inferences raised by the defense even if the
prosecutor’s response would otherwise be objectionable.” Id. at 669 (quoting
Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006)). The prosecutor’s comments
on rebuttal here were wholly in response to the allegations and inferences raised
by Sells during her closing argument and did not go beyond such a response.
That is, Sells opened the door to the comments made by the prosecutor in his
rebuttal. Accordingly, we reject Sells’ claim of prosecutorial misconduct.
Issue Three: Article 1, Section 14
[17] Sells next asserts that her two convictions violate the actual evidence test under
Article 1, Section 14 of the Indiana Constitution. As we have often stated:
Article 1, Section 14 of the Indiana Constitution provides that
“[n]o person shall be put in jeopardy twice for the same offense.”
Our Supreme Court has interpreted that clause to prohibit
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multiple convictions based on the same “actual evidence used to
convict.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). To
determine the actual evidence used to establish a conviction, we
look to the “evidentiary facts” as they relate to “all” of the
elements of both offenses. Spivey v. State, 761 N.E.2d 831, 833
(Ind. 2002). In other words, the actual evidence test requires “the
evidentiary footprint for all the elements required to prove one
offense” to be “the same evidentiary footprint as that required to
prove all the elements of another offense.” Thrash v. State, 88
N.E.3d 198, 208 (Ind. Ct. App. 2017) (quoting Berg v. State, 45
N.E.3d 506, 510 (Ind. Ct. App. 2015)).
Bradley v. State, 113 N.E.3d 742, 751 (Ind. Ct. App. 2018), trans. denied.
[18] Sells’ two convictions do not violate the actual evidence test under Article 1,
Section 14. In particular, to prove her conviction for conspiracy to deal
methamphetamine, the State was required to show, among other things, that
“Craig performed an overt act in furtherance of the agreement by transporting
the methamphetamine from Sells’ home towards Wagner’s location in
Rushville.” Appellant’s App. Vol. II at 16. Nothing about Sells’ conviction for
dealing in methamphetamine required the State to make a similar showing, and
there is no reasonable possibility that the jury used that evidence of conspiracy
to support her conviction for dealing. Accordingly, Sells’ argument under
Article 1, Section 14 must fail. 2
2
Sells presents no argument for our review under the “very same act” test, and, as such, we do not consider
that possible argument. See Bradley, 113 N.E.3d at 751-53.
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Issue Four: Venue
[19] Finally, Sells asserts that the State failed to prove venue in Franklin County for
her conviction for dealing. We initially note that Sells erroneously
characterizes this issue as a challenge to the sufficiency of the evidence
underlying her conviction. Of course, “[v]enue is not an element of the offense.
Accordingly, although the State is required to prove venue, it may be
established by a preponderance of the evidence and need not be proved beyond
a reasonable doubt.” Alkhalidi v. State, 753 N.E.2d 625, 628 (Ind. 2001)
(citations omitted).
[20] “Venue is not limited to the place where the defendant acted. To the contrary,
the legislature may provide for concurrent venue when elements of the crime
are committed in more than one county.” Baugh v. State, 801 N.E.2d 629, 631-
32 (Ind. 2004). And when multiple charges are “integrally related—in other
words, one thing led to another—then the crimes may be considered a single
chain of events for purposes of venue,” including counties through which the
defendant travels in the commission of her crimes. Abran v. State, 825 N.E.2d
384, 392 (Ind. Ct. App. 2005) (citing French v. State, 266 Ind. 276, 284, 362
N.E.2d 834, 839 (1977)), trans. denied.
[21] The State met its burden to establish venue in Franklin County. The charges of
dealing and conspiracy to deal were integrally related charges. Sells’ delivery of
methamphetamine to Craig was part of a single chain of events intended to
culminate in the delivery of the methamphetamine to Wagner, and in
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performing those acts Craig drove through Franklin County. Abran, 825
N.E.2d at 392. Accordingly, Franklin County was a county of proper venue.
Conclusion
[22] In sum, we affirm Sells’ convictions.
[23] Affirmed.
Baker, J., and Robb, J., concur.
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