February 10, 2014
CHARLES THOMPSON, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE HOWARD SUPERIOR COURT. The Honorable Brant Parry, Judge. Cause No. 34D02-1207-FA-165.
ATTORNEY FOR APPELLANT: DONALD E.C. LEICHT, Kokomo, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, CYNTHIA L. PLOUGHE, Deputy Attorney General, Indianapolis, Indiana.
ROBB, Judge. BARNES, J., and BROWN, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Case Summary and Issues
Charles Thompson appeals his convictions for dealing in methamphetamine as a
Class A felony, and two counts of possession of a controlled substance as Class
D felonies. Thompson raises two issues on appeal: 1) whether the trial court
erred in entering judgment of conviction on the charge of dealing in
methamphetamine; and 2) whether the trial court abused its discretion in the
admission of evidence. Concluding that the trial court did not err or abuse its
discretion, we affirm.
Facts and Procedural History
In April 2011 Officer Chad VanCamp with the Kokomo Police Department Drug Task
Force went to Thompson's residence to serve an arrest warrant for Thompson.
Officer VanCamp saw a woman, Holly Patton, in Thompson's driveway and asked her
if Jim Smith was inside the house. She answered that he and Thompson were
inside, and she went into the house, opening the front door just wide enough to
squeeze through. When the door opened, Officer VanCamp detected a strong odor
that he associated with the manufacturing of methamphetamine, having previously
investigated more than one hundred methamphetamine labs. When Patton, Thompson,
and Smith exited the house, VanCamp arrested all three of them.
As Patton, Thompson, and Smith were exiting the house, Detective Shane Melton
arrived on the scene and also noticed odors that he associated with
methamphetamine labs. Detective Melton then requested and obtained a search
warrant. Execution of the warrant revealed methamphetamine, an oxycodone pill,
and an unopened fentanyl patch, inside a box stuffed into Thompson's couch.
The State charged Thompson with count I, dealing in methamphetamine as a Class A
felony; count II, possession of a controlled substance (fentanyl) as a Class D
felony; and count III, possession of a controlled substance (oxycodone) as a
Class D felony. The State subsequently filed an information for count IA,
possession of methamphetamine as a Class C felony. Thompson was found guilty of
all counts following a jury trial, and judgment of conviction was entered
on all four charges. At sentencing, the court merged count IA into count I and
sentenced Thompson to forty years with thirty-five years executed on count I,
and three years executed for each of counts II and III, with all sentences to be
run concurrently. This appeal followed.
Discussion and Decision
I. Judgment of Conviction
Thompson first argues that the trial court erred in entering judgment of
conviction on count I because the State had filed an information for count IA,
which Thompson contends should have replaced count I. Thompson concedes that
possession of methamphetamine is a lesser included offense of dealing in
methamphetamine but argues that because the second information is titled as an
"amended" information, it was intended to replace count I. However, nowhere in
the chronological case summary or on the information itself do we see the word
"amended." Thompson does not argue that the later information was intended to
entirely replace the original information and all three counts therein, but
rather that it was intended to replace only count I.
The record, however, indicates that count IA was always treated as an
additional charge. The court instructed the jury on each of the four counts (I,
IA, II, III), and that Thompson was charged with four crimes. The jury also
received guilty/not guilty forms for each of the four charges. Thompson admits
that he did not object when the court treated the second information as an
addition to--rather than a replacement of--the original count I. The failure to
raise an issue at trial waives the issue on appeal. Wilson v. State, 931 N.E.2d
914, 919 (Ind.Ct.App. 2010), trans. denied.
While perhaps the more clear practice would have been for the State to file the
second information as count IV rather than count IA, we see no indication in the
information itself or in the behavior of either party at trial that indicates
the second information was intended as anything but an addition to the original
information. Rather, it seems that count IA was intended and treated as being an
additional, fourth charge against Thompson--a lesser included offense of the
dealing charge. The State notes that this is a common backup charging plan such
that if the jury failed to find that Thompson had necessary mens rea to support
a dealing charge, it could still find Thompson guilty of possessing the
methamphetamine found at his house. The trial court did not err in entering
judgment of conviction for Thompson on the dealing in methamphetamine charge.
II. Admission of Evidence
A. Arrest Warrant
Thompson also argues that the arrest warrant was improper because it was not
supported by probable cause. Thompson argues that therefore everything stemming
from the arrest warrant--including the subsequent search warrant and fruits of
that search--is inadmissible.
A valid arrest warrant must be supported by probable cause. U.S. Const. amend.
IV. "Probable cause turns on a 'practical, common-sense decision whether, given
all the circumstances set forth in the affidavit . . . there is a fair
probability' that the subject has committed a crime or evidence of a crime will
be found." Shotts v. State, 925 N.E.2d 719, 723 (Ind. 2010) (quoting Illinois v.
Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). To
establish probable cause, an affidavit in support of the warrant must do more
than state the conclusion of the affiant, and a neutral and detached magistrate
must draw his or her own conclusion as to whether probable cause exists. Id. A
reviewing court gives substantial deference to the magistrate's decision
and must focus on whether reasonable inferences drawn from the totality of the
evidence support the determination of probable cause. Id. In reviewing the
execution of an arrest warrant, the focus is on a reasonable belief as to the
residence and presence of the subject. Duran v. State, 930 N.E.2d 10, 18 (Ind.
2010). "Similarly, the reasonableness of an entry into a home to execute an
arrest warrant requires a reasonable belief that there is a valid warrant, a
reasonable belief that the residence is that of the suspect, and a reasonable
belief that the suspect will be found in the home." Id.
The original arrest warrant was for dealing in methamphetamine, robbery, and
intimidation. Two items were offered in support of the arrest warrant: a
probable cause affidavit from December 2010, affirmed under penalty of perjury
and signed by Detective Melton; and a police department supplementary report
from April 2011, also signed by Detective Melton, but not affirmed under oath.
The affidavit recounts a controlled buy in which a confidential informant met
with Thompson at Thompson's residence and exchanged money for a white powder
represented to be methamphetamine. Shortly after the buy, the informant
turned the powder over to Detective Melton, who field tested it for
methamphetamine and found it to be positive. Detective Melton notes that the
informant was searched both shortly before and shortly after the transaction,
and his vehicle was searched as well. No illegal drugs or contraband were found
during the searches. Detective Melton also stated that he and/or fellow
detectives maintained audio and/or visual surveillance on the informant while
the informant was meeting with Thompson.
The supplementary report recounts an attempted second controlled buy between the
same confidential informant and Thompson. The informant was again searched prior
to the buy, with no illegal drugs or contraband found. The informant was set up
with surveillance equipment and went to Thompson's house. Once inside Thompson's
house, the informant was confronted by Thompson and was beaten, kicked, and
bitten by Thompson and a second person. At some point during the altercation,
the money that the informant had brought for the buy was taken from him.
Thompson threatened the informant by saying, "Do you want me to put a bullet in
your head?" Defendant's Exhibit A. The informant was able to exit the
residence, and Detective Melton took photographs of his injuries. Detective
Melton noted that the informant's face was swollen and one eye was beginning to
turn black, and the informant reported that he was in pain. The report also
notes that the informant indicated that he was afraid he was going to die during
We conclude that there was a sufficient basis presented from which a magistrate
could make reasonable inferences supporting a determination that there was
probable cause to believe that Thompson had committed the alleged crimes.
Moreover, we note that Officer VanCamp did not enter Thompson's house to execute
the warrant, and that there is no suggestion that he was acting on other than a
reasonable belief that there was a valid arrest warrant.
When Detective Melton requested a search warrant for Thompson's residence, after
his arrest, that request was accompanied by a probable cause affidavit which
Detective Melton affirmed under penalty of perjury. The affidavit noted the two
controlled buys with a "confidential reliable informant"; Detective Melton's
knowledge of Jimmy Smith as a methamphetamine and prescription drug user and
assistant in methamphetamine manufacture; the strong chemical odor
associated with manufacturing methamphetamine that was coming from Thompson's
house, smelled by both Detective Melton and Officer VanCamp; and the
inconsistent stories that Thompson and Smith told when asked to explain the
smell. State's Exhibit 1. We conclude that this was a sufficient basis to
support a determination that probable cause existed for the search warrant.
When ruling on the admissibility of evidence, the trial court is afforded broad
discretion, and we will only reverse the ruling upon a showing of abuse of
discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind.Ct.App. 2000). An abuse
of discretion involves a decision that is clearly against the logic and effect
of the facts and circumstances before the court. Id. We consider the evidence
most favorable to the trial court's ruling and any uncontradicted evidence to
the contrary to determine whether there is sufficient evidence to support the
Concluding that there was probable cause to support both the arrest and search
warrants, we disagree that it was improper to admit evidence recovered during
the search of Thompson's home. The trial court did not abuse its discretion in
admitting evidence retrieved during the search of Thompson's home.
B. Fentanyl Patch
In addition to the challenge based on the arrest warrant, Thompson also,
briefly, challenges the admission or sufficiency of the unopened fentanyl patch
because it was not tested by a lab to confirm its contents.
However, the State correctly notes that our supreme court has held that the
contents of unbroken and manufacturer-sealed packaging can be established by the
label on that package, without needing to test the contents of the package.
Reemer v. State, 835 N.E.2d 1005, 1009 (Ind. 2005) ("The fact that the tablets
were in the original unbroken blister packs is sufficient to establish that the
contents remained as the manufacturer packaged them. The labels clearly listed pseudoephedrine hydrochloride as one of the active ingredients in each tablet.
The trial court properly admitted the nasal decongestant labels into evidence as
proof of the contents, and therefore the blister packs in Reemer's possession
contained pseudoephedrine hydrochloride."). We conclude that the trial court did
not abuse its discretion in admitting the fentanyl patch into evidence to prove
possession without any further testing.
Concluding that the trial court did not err in entering judgment of
conviction on the dealing in methamphetamine count, and did not abuse its
discretion in admission of any of the evidence, we affirm.
BARNES, J., and BROWN, J., concur.