JERID T. BENNETT, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
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APPEAL FROM THE ORANGE CIRCUIT COURT. The Honorable Frank Newkirk, Special Judge. Cause No. 59C01-1112-FB-77.
ATTORNEYS FOR APPELLANT: PAUL M. BLANTON, JEFFREY K. BRANSTETTER, Blanton, Branstetter, & Pierce, LLC, Jeffersonville, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; KATHERINE MODESITT COOPER, Deputy Attorney General, Indianapolis, Indiana.
BRADFORD, Judge. MATHIAS, J., and PYLE, J., concur.
In the months leading up to December of 2011, Officer Randall Sanders of the Paoli Police Department and Detective Shane Staggs of the Indiana State Police received information from multiple confidential informants (" CIs" ), each of whom had previously proven to be reliable, that Appellant-Defendant Jerid R. Bennett was engaged in illegal drug activity at his residence in Paoli. While conducting surveillance of Bennett's residence on the evening of December 6, 2011, Officer Sanders observed Kurt Sugarman arrive at Bennett's residence, walk around to a side entrance to the garage, return to his vehicle less than five minutes later, and drive away. Detective Staggs stopped Sugarman for a traffic infraction soon after he left Bennett's residence. Sugarman was arrested after Detective Staggs saw drug paraphernalia in plain view in Sugarman's vehicle. Sugarman subsequently admitted to police that he had visited Bennett's residence for the purpose of purchasing cocaine and that he had, in fact, purchased cocaine from Bennett for $50.00. Soon thereafter, Detective Staggs requested and received a search warrant for Bennett's residence. Law enforcement officers recovered substantial evidence of drug activity during their subsequent search of Bennett's residence.
On December 8, 2011, Appellee-Plaintiff the State of Indiana charged Bennett with one count of Class B felony dealing in cocaine, one count of Class D felony possession of cocaine, one count of Class D felony maintaining a common nuisance, and one count of Class A misdemeanor possession of marijuana. Following a jury trial, Bennett was found guilty as charged. On appeal, Bennett challenges his convictions, contending that (1) the trial court abused its discretion in admitting certain evidence, (2) the trial court erred in allowing the State to show certain text messages to the jury during its rebuttal closing argument, (3) the trial court erred in allowing the State to amend the charging information, and (4) his conviction for Class D felony possession of cocaine is barred by double jeopardy. Concluding that Bennett's conviction for Class D felony possession of cocaine is barred by double jeopardy but finding no other error, we affirm the judgment of the trial court in part and vacate Bennett's conviction for Class D felony possession of cocaine.
FACTS AND PROCEDURAL HISTORY
Approximately two or three months before December 6, 2011, Officer Sanders received information from a CI that Bennett was engaged in illegal drug activity at his residence in Paoli. Officer Sanders was aware that the CI had provided information
during past investigations that had proven to be reliable. In addition, at some point during the month before December 6, 2011, two CIs informed Detective Staggs that Bennett was dealing cocaine and prescription drugs from his residence. Detective Staggs was also aware that these CIs had proven credible during prior investigations.
Based on the information provided by the CIs, the Paoli Police Department decided to conduct surveillance of Bennett's residence during the evening hours of December 6, 2011. Officer Sanders began the surveillance of Bennett's residence at approximately 10:00 p.m. While conducting surveillance, Officer Sanders observed a vehicle pull into Bennett's driveway. Officer Sanders observed a man, subsequently identified to be Sugarman, exit the vehicle and approach the door on the side of the garage that was attached to Bennett's residence. Sugarman left Bennett's residence less than five minutes later. Officer Sanders then alerted Detective Staggs who, upon following Sugarman's vehicle, observed that Sugarman's registration was expired.
Detective Staggs initiated a traffic stop of Sugarman's vehicle. As he approached Sugarman's vehicle, Detective Staggs observed several hypodermic needles in plain view in the center console of the vehicle. One of the hypodermic needles appeared to be " loaded, ready to go." Tr. p. 44. Sugarman was placed under arrest. During a search incident to Sugarman's arrest, Detective Staggs discovered a baggie containing a white powdery substances that Sugarman identified as cocaine. Sugarman indicated that he had purchased the cocaine from Bennett at Bennett's residence a short time earlier.
Sugarman admitted that he met Bennett in the garage attached to Bennett's residence and purchased the cocaine from Bennett for $50.00. Sugarman also showed Detective Staggs his cellular phone, including a text message that he sent to an individual he referred to as " Coke Man" at approximately 10:30 p.m., asking if the recipient " got any left?" State's Ex. 3. The recipient responded a few minutes later saying " yeah a lil bit." State's Exs. 2, 86. Sugarman identified " Coke Man" as Bennett.
Sugarman described Bennett as a heavy-set man who walked with a limp. Based on his familiarity with Bennett, Detective Staggs knew this description to be accurate. Sugarman also told Detective Staggs that Bennett lived across the street from another state trooper's residence. Detective Staggs also knew this information to be accurate.
Based on Officer Sanders's observations, Sugarman's statements, his personal knowledge regarding the accuracy of Sugarman's statements, and the prior statements of the CIs, Detective Staggs secured a search warrant for Bennett's residence. Detective Staggs, along with several other officers, executed the search warrant at approximately 3:45 a.m. on December 7, 2011. Detective Staggs and the other officers recovered a great deal of evidence from Bennett's residence which strongly suggested that Bennett dealt in narcotics or controlled substances and possessed cocaine. This evidence included digital scales, multiple plastic baggies containing white residue, an orange and yellow container containing a white residue, a pill in a clear plastic baggie, an opened box of plastic sandwich bags, a tin foil and glass smoking device, a plastic container containing seeds, a multi-colored glass smoking device, a glass smoking device containing a burnt residue, two plastic baggies containing a brownish substance, and shortened ink pens described as " tooters" containing white residue.
Detective Staggs testified that in his experience, he knows that " tooters" are used to snort cocaine. The officers and troopers also recovered $736 and a cellular phone from Bennett.
On December 8, 2011, the State charged Bennett with one count of Class B felony dealing in cocaine, one count of Class D felony possession of cocaine, one count of Class D felony maintaining a common nuisance, and one count of Class A misdemeanor possession of marijuana. On July 27, 2012, Bennett filed a motion to suppress certain evidence recovered during a search of his residence. The trial court denied Bennett's motion to suppress on August 1, 2012.
Bennett's three-day jury trial commenced on April 10, 2013. Following the presentation of its evidence, the State requested permission to amend the date on the charging information. This request was granted over Bennett's objection. On April 12, 2013, the jury found Bennett guilty as charged. On May 16, 2013, the trial court sentenced Bennett to an aggregate sixteen-year term with one year suspended to probation. The trial court also ordered that Bennett's sentence in the instant matter be served consecutively to Bennett's sentence stemming from an unrelated criminal matter. This appeal follows.
DISCUSSION AND DECISION
Bennett contends that the trial court abused its discretion in admitting certain evidence at trial, erred in allowing the State to show certain text messages to the jury during the State's rebuttal closing argument, and erred in allowing the State to amend the charging information at trial. Bennett also contends that his Class D felony possession of cocaine conviction is barred by double jeopardy.
I. Whether the Trial Court Abused Its Discretion in Admitting Certain Evidence
In raising the contention that the trial court abused its discretion in admitting certain evidence, Bennett claims that the trial court abused its discretion in admitting certain evidence recovered during a search of his residence. Bennett also claims that the trial court abused its discretion in admitting certain exhibits which depicted text messages on Bennett's cellular phone which referred to Bennett's alleged criminal drug activity.
Our standard of review for rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind.Ct.App. 2002), reh'g denied, trans. denied . We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App. 2005), trans. denied . We also consider uncontroverted evidence in the defendant's favor. Id.
Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App. 2007).
A trial court has broad discretion in ruling on the admissibility of evidence. Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App. 2003) (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind.Ct.App. 2001)). Accordingly, we will reverse a trial court's ruling on the admissibility of evidence only when the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 273). An abuse of discretion involves a decision that is clearly against
the logic and effect of the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093, 1095 (Ind.Ct.App. 2000)).
A. Evidence Recovered from the Search of Bennett's Residence
Bennett claims that the search of his residence was in violation of both the federal and state constitutions because the search warrant was issued without a showing of probable cause. It is well-established that both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution require probable cause for the issuance of a search warrant. See State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006); Query v. State, 745 N.E.2d 769, 771-72 (Ind. 2001); State v. Shipman, 987 N.E.2d 1122, 1126 (Ind.Ct.App. 2013); Breitweiser v. State, 704 N.E.2d 496, 498 (Ind.Ct.App. 1999). " As we have explained before, 'probable cause' is a fluid concept incapable of precise definition and must be decided based on the facts of each case." Shipman, 987 N.E.2d at 1126 (citing Casady v. State, 934 N.E.2d 1181, 1188 (Ind.Ct.App. 2010), trans. denied ). " In deciding whether to issue a search warrant, the task of the issuing magistrate is simply to make a ...