Justin Thomas v. State of Indiana

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this Memorandum Decision shall not
be regarded as precedent or cited FILED
before any court except for the Apr 09 2012, 8:40 am
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEBORAH MARKISOHN GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JUSTIN THOMAS, )
)
Appellant- Defendant, )
)
vs. ) No. 49A02-1107-CR-660
)
STATE OF INDIANA, )
)
Appellee- Plaintiff, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jose Salinas, Judge
Cause No. 49G14-1003-FD-17612
April 9, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Following a bench trial, Justin R. Thomas appeals his conviction of dealing in
marijuana as a Class D felony. He raises a single issue, which we restate as whether the
trial court’s inquiry into venue constitutes judicial partiality and fundamental error. We
raise the following issue sua sponte: whether convictions for dealing in marijuana and
possession of marijuana, both Class D felonies, violate double jeopardy. Concluding that
the trial judge was impartial, no fundamental error occurred, and double jeopardy
principles were violated, we affirm in part, vacate in part, and remand for resentencing.
Facts and Procedural History
On March 7, 2010, Indianapolis Metropolitan Police Sergeant Frank Wooten
observed Thomas commit two traffic violations and pulled his vehicle over. During this
stop, Sergeant Wooten discovered 69.09 grams of what was later determined to be
marijuana, an electronic scale, and $1,042 in cash. Thomas was arrested and charged
with dealing in marijuana and felony possession of marijuana, both Class D felonies.
The State did not explicitly establish venue during its case-in-chief. Just after the
State began its closing argument, the trial court interjected and said, “I also want you to
address because you didn’t – tell me where you got venue because I didn’t hear Marion
County anywhere in there.” Transcript at 45. The State moved to reopen the case to
establish venue. The trial court stated, “[i]f I deny your motion [to reopen the case], you
can make an argument that there’s enough evidence on the record that venue can be
drawn from that.” Id. at 47. Defense counsel objected to the case being reopened and the
trial court denied the State’s motion, but allowed the State to make the argument for
venue. The trial court determined that:
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On the issue of venue, the Court does feel that there’s enough ancillary
evidence to establish venue even though no direct question was asked,
there’s enough there. And I take into account the officer indicated he
works for [the Indianapolis Metropolitan Police Department] (IMPD) and
that he’s now East District with IMPD. Also, the location he gave of the
disturbance and that he noted on cross examination that it was east of
Indianapolis, Indiana being, you know, it connects to IMPD. So I find –
Indianapolis is in Marion County so that’s the “can take judicial notice of
Indianapolis being in Marion County” since it is the capital and biggest city
in the state. I do believe that venue has been established through secondary
evidence that the Court heard.
Id. at 52-53.
The trial court found Thomas guilty on both counts and merged them together. He
was sentenced to one year to be served on home detention. Thomas now appeals.
Discussion and Decision
I. Venue
A. Judicial Impartiality and Fundamental Error
Thomas did not raise the issue of judicial impartiality during his trial. Therefore,
the State argues that he must establish fundamental error on appeal. Generally, to
preserve an issue for appeal, a contemporaneous objection is required. Stellwag v. State,
854 N.E.2d 64, 66 (Ind. Ct. App. 2006). “Fundamental error is defined as an error so
prejudicial to the rights of a defendant that a fair trial is rendered impossible.” Benefield
v. State, 945 N.E.2d 791, 801 (Ind. Ct. App. 2011). 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.” Mathews v. State, 849 N.E.2d 578, 587
(Ind. 2006).
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Thomas cannot establish that fundamental error occurred. A fair trial was not
rendered impossible by the trial judge’s remarks because venue had been established
during the State’s case-in-chief through circumstantial evidence. Sergeant Wooten, the
arresting officer, testified he was employed by the IMPD. He also testified that he
observed Thomas on the “east side of Indianapolis over by 465 off of Franklin Road,”
which is where Thomas was detained and arrested. Tr. at 7. Sergeant Wooten also
testified that a second officer, Officer Keithly, was present at the scene and that she was
also employed by the IMPD. Finally, Thomas introduced into evidence a map of the area
in which the traffic stop occurred, which depicts Franklin Road near I-70 and I-465. This
area is located within and on the east side of Indianapolis. This circumstantial evidence,
taken together, is sufficient to establish the incident occurred in Marion County, thereby
satisfying the venue element of the offense. Therefore, the trial court’s inquiry into
venue did not deny Thomas a fair trial. No error occurred that was “so prejudicial to the
rights of a defendant that a fair trial [was] rendered impossible.” Benefield, 945 N.E.2d
at 801.
Thomas argues that the trial court failed to show impartiality during the bench trial
when it inquired about venue after the State did not explicitly establish it. He further
argues that the interjection denied Thomas a fair trial because it gave the deputy
prosecutor guidance on how to overcome the deficiency.
This Court has previously stated:
A trial before an impartial judge is an essential element of due process. . . .
To assess whether the trial judge has crossed the barrier of impartiality, a
court on review examines both the trial judge’s actions and demeanor.
However, a trial judge must be given latitude to run the courtroom and
maintain discipline and control of the trial.
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Stellwag, 854 N.E.2d at 66 (Ind. Ct. App. 2006). In Indiana, the “law presumes that a
judge is unbiased and unprejudiced.” Everling v. State, 929 N.E.2d 1281, 1287 (Ind.
2010). To rebut a presumption of impartiality, a defendant must establish from the
judge’s conduct actual bias or prejudice that places the defendant in jeopardy. Id. In
addition, “not all untoward remarks by a judge constitute reversible error.” Cook v.
State, 734 N.E.2d 563, 567 (Ind. 2000). “The remarks must harm the complaining party
or interfere with the right to a fair trial.” Id.
Though venue was not specifically established during the State’s case-in-chief, it
was established through circumstantial evidence, as stated above. For this reason,
Thomas cannot establish that the remarks from the trial judge were biased or interfered
with his right to a fair trial. The trial judge’s remarks did not harm the outcome of
Thomas’s trial.
Even if an error was committed, the error was harmless. “Under [the] federal
harmless error analysis, which is triggered by an error affecting the Defendant’s federal
constitutional rights, the State has the burden of proving beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained.” Black v. State, 794
N.E.2d 561, 565 (Ind. Ct. App. 2003). In this case, the State has met that burden. When
the trial judge interjected, venue had already been established through circumstantial
evidence. The judge’s line of questioning regarding venue did not affect the outcome. It
is not a trial judge’s responsibility to inform either party when they forget to introduce
evidence. However, because there was enough evidence in the record prior to the judge’s
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interjection to deduce that this incident occurred in Marion County and the trial judge’s
questioning did not change the outcome of the trial, any error is harmless.
II. Double Jeopardy
Neither party raised the issue of double jeopardy, but the conviction and sentence
imposed on Thomas must be corrected. The Indiana Constitution states that “[n]o person
shall be put in jeopardy twice for the same offense.” Ind. Const. art 1, § 14 (amended
1851). “[T]wo convictions may be the ‘same offense’ in violation of this Indiana Double
Jeopardy Clause 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.” McIntire v. State,
717 N.E.2d 96, 99 (Ind. 1999).
The trial court found Thomas guilty of dealing in marijuana and possession of
marijuana, entered a judgment of conviction as to both, and sentenced him for each
count. Possession of marijuana is committed by one who “knowingly or intentionally
possesses (pure or adulterated) marijuana.” Ind. Code § 35-48-4-11(1). A person who
knowingly or intentionally delivers marijuana or possesses with intent to deliver
marijuana commits dealing in marijuana. Ind. Code § 35-48-4-10(a).1 However,
possession of marijuana is a lesser included offense of dealing in marijuana. An offense
is a lesser included offense if the included offense “is established by proof of the same
material elements or less than all the material elements required to establish the
commission of the offense charged.” Ind. Code § 35-41-1-16. Indiana law recognizes
1
Crowe’s conviction is a Class D felony because “the amount involved is more than thirty grams but less
than ten pounds of marijuana.” Ind. Code § 35-48-4-10(b).
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that “the inherently included offense . . . is necessarily committed in the course of
committing the greater offense.” Rouse v. State, 525 N.E.2d 1278, 1280 (Ind. Ct. App.
1988) (quoting Maynard v. State, 490 N.E.2d 762, 763 (Ind. 1986)), trans. denied. When
a reviewing court is determining whether double jeopardy principles have been violated,
it is not necessary to remand on appeal to vacate “[w]here the court merge[d] the lesser-
included offense without imposing judgment.” Green v. State, 856 N.E.2d 703, 704 (Ind.
2006). When multiple counts are merged, “only one sentence can be imposed between
the two counts.” Id.
To prove that Thomas was dealing in marijuana, it is necessary that he was in
possession of marijuana. Therefore, he would have to commit the lesser offense of
possession to commit the greater offense of dealing. It is a violation of double jeopardy
to sentence Thomas for the greater offense as well as the lesser-included offense. The
Court indicated that “Counts I and II merge together.” Tr. at 64. “[A] merged offense for
which a defendant is found guilty, but on which there is neither a judgment nor a
sentence, is ‘unproblematic’ as far as double jeopardy is concerned.” Green, 856 N.E. at
704. However, the Abstract of Judgment shows that he was convicted of and sentenced
to three hundred and sixty-five days for both Count I and Count II to be served
concurrently. In order for the offenses to be properly merged, the Court cannot enter a
judgment of conviction or impose a sentence for the lesser-included offense. Because
this is an error that needs to be corrected, we vacate the conviction of possession of
marijuana and sentence thereon and remand to the trial court with instructions to correct
the abstract of judgment consistent with this opinion.
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Conclusion
Based on the foregoing, we conclude that the trial judge’s inquiry into venue did
not constitute a fundamental error. We also conclude that Thomas’s convictions and
sentences for both dealing in marijuana and possession of marijuana violated double
jeopardy, and we vacate the conviction of possession of marijuana and sentence thereon
and remand with instructions to correct the abstract of judgment consistent with this
opinion.
Affirmed in part, vacated in part, and remanded.
NAJAM, J., and VAIDIK, J., concur.
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