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Sells v. State

Court of Appeals of Indiana

July 31, 2019

Lola M. Sells, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Franklin Circuit Court The Honorable J. Steven Cox, Judge Trial Court Cause No. 24C01-1506-F3-626

          Attorney for Appellant John Kindley South Bend, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana.

          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:

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 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 ...


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