MEMORANDUM DECISION                                                      FILED
Pursuant to Ind. Appellate Rule 65(D), this                         Apr 11 2016, 8:37 am

Memorandum Decision shall not be regarded as                             CLERK
precedent or cited before any court except for the                   Indiana Supreme Court
                                                                        Court of Appeals
purpose of establishing the defense of res judicata,                      and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Bruce W. Graham                                           Gregory F. Zoeller
Graham Law Firm P.C.                                      Attorney General of Indiana
Lafayette, Indiana
                                                          Michael Gene Worden
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Danny James Horton,                                       April 11, 2016

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A05-1507-CR-990
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court.
                                                          The Honorable Steven P. Meyer,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 79D02-1403-FB-5




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016         Page 1 of 15
                                          Statement of the Case
[1]   Danny James Horton appeals from his conviction of unlawful possession of a
                                                 1
      firearm by a serious violent felon , a Class B felony, and an habitual offender

      determination. We affirm and remand for resentencing.


                                                     Issues
[2]   Horton presents the following issues for our review:

                 I.       Whether the trial court abused its discretion by excluding a
                          defense witness during the second phase of Horton’s jury
                          trial for violating an order separating the witnesses;
                 II.      Whether the trial court abused its discretion by denying
                          Horton’s motion to suppress and admitting evidence at
                          trial that was seized after law enforcement officers
                          executed a search warrant; and
                 III.     Whether the trial court committed a sentencing error on
                          the habitual offender enhancement.

                                   Facts and Procedural History
[3]   On February 25, 2014, Lafayette Police Department Sergeant Brian Brown

      received information that Horton was wanted on an outstanding warrant from

      Warren County, Indiana, and was being investigated for weapons and

      narcotics. Sergeant Brown examined the law enforcement records management

      system and discovered that Horton had an incident approximately two years




      1
          Ind. Code § 35-47-4-5 (2012).


      Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 2 of 15
      prior involving fleeing law enforcement, narcotics, and weapons. He also

      verified that the arrest warrant from Warren County was still active.


[4]   Sergeant Brown had been contacted by officers working for the United States

      Marshal’s Office informing him that they had been running surveillance on

      Horton and had narrowed his location to one particular house in Lafayette.

      Officers had spoken to three individuals who had recently left that house and

      asked them if Horton was inside. The first person, Jennifer Ellison, the owner

      of the home and Horton’s girlfriend, told the officers that Horton was not inside

      the house and that she had not seen him for two weeks. Two individuals who

      left the house later, Justin Rossi, Ellison’s step-son, and Jonathan Henson,

      Rossi’s friend, told officers that Horton was in the house, there were guns in the

      house, and that they had observed Horton carrying a handgun.


[5]   Brown obtained a search warrant for Ellison’s house, but before it could be

      executed, Horton was taken into custody a short distance away. When

      Sergeant Brown arrived on the scene with the search warrant, officers executed

      the warrant and searched Ellison’s house. While searching, they found

      marijuana hidden in the master bedroom, a rifle hidden beside a dryer, and

      ammunition for the rifle and other weapons. Officers applied for and obtained

      an amended search warrant, which was executed. After being advised of his

      rights, Horton was interviewed by Brown and an A.T.F. agent. Horton

      admitted that he possessed the rifle, but explained he was going to repair it for

      another person.



      Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 3 of 15
[6]   On March 3, 2014, the State charged Horton with Class B felony unlawful

      possession of a firearm by a serious violent felon, Class A misdemeanor

      possession of marijuana, and Class A misdemeanor possession of

      paraphernalia. Later, the State added an habitual offender allegation.


[7]   On July 24, 2014, Horton filed a motion to suppress the firearm, marijuana,

      paraphernalia, and his statements to police on constitutional grounds. He

      argued that the items seized were inadmissible because: 1) they were seized

      pursuant to a search warrant that was not supported by probable cause or

      reliable information; 2) the information supporting the warrant was stale and

      anticipatory; 3) the warrant lacked specificity of the items to be seized; and, 4)

      the search exceeded the scope of the warrant. With respect to his statements,

      Horton argued that he was questioned by law enforcement officers without the

      benefit of receiving his Miranda warnings.


[8]   On September 18, 2014, the trial court held a hearing on Horton’s motion to

      suppress after which it took the matter under advisement and requested that the

      parties brief the matter by October 8, 2014.


[9]   Horton’s memorandum in support of his motion to suppress maintained the

      position that the search warrant was not based on reliable information because

      Rossi and Henson’s information was not corroborated prior to the search.

      Horton argued in the alternative, that if the search warrant was proper, the

      scope of the search was overbroad. With respect to Horton’s statement to

      police officers, Horton argued for the first time that his interrogation was


      Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 4 of 15
       similar to the one conducted in Payne v. State, 854 N.E.2d 7 (Ind. Ct. App.

       2006). In Payne, a defendant’s conviction was reversed because of the

       erroneous admission of both her pre-Miranda statements to police, occurring

       during the first seven hours of interrogation, and her post-Miranda statements,

       occurring in the approximately four additional hours of interrogation.


[10]   In its response, the State argued in support of the admissibility of the evidence

       seized pursuant to the search warrant. However, no argument was made in

       support of the admissibility of Horton’s statements to police.


[11]   On October 15, 2014, the trial court entered an order denying Horton’s motion

       to suppress the evidence seized pursuant to the warrant, finding that it was

       supported by reliable, corroborated information and that the scope of the search

       was not overbroad. The trial court, however, granted the motion to suppress

       Horton’s statements to police, citing the State’s failure to present an argument

       against that part of Horton’s motion.


[12]   On November 10, 2014, the State filed a motion to reconsider the trial court’s

       order granting Horton’s motion to suppress his statements, citing argument and

       evidence presented by the State at the hearing on the motion to suppress. In

       support of the motion to reconsider, the State cited its overview of the evidence

       including the details of Horton’s recorded statement and that Horton received

       his Miranda warnings. The State also noted Sergeant Brown’s testimony at the

       suppression hearing about: 1) conducting the recorded interview with Horton

       on February 26, 2014; 2) reading a waiver of Miranda rights to Horton; 3)


       Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 5 of 15
       confirming that Horton understood his rights; and, 4) observing Horton sign a

       written waiver. The recorded statement and Horton’s written waiver were

       admitted at the hearing. The State also challenged Horton’s reliance on Payne,

       contending that Horton’s interview was not similar. The trial court granted the

       State’s motion to reconsider by order dated December 15, 2014.


[13]   On May 20, 2015, Horton filed a motion requesting an order in limine

       prohibiting at trial any mention of: 1) Horton’s prior arrests or convictions; 2)

       his pending habitual offender status; 3) that Horton currently was in custody;

       and, 4) the outstanding warrant for Horton’s arrest on a different matter at the

       time he was arrested for this offense. Horton also requested a separation of

       witnesses. The next day, Horton filed a supplemental motion requesting that

       the order in limine also suppress evidence obtained as a result of the search

       warrant and Horton’s statement to police. On May 26, 2015, the State filed a

       motion requesting an order in limine, which among other things, asked for a

       separation of witnesses save for the assisting law enforcement officer remaining

       at counsel table with the State.


[14]   Horton’s jury trial began on May 26, 2015. The trial court entered an order

       separating the witnesses and identifying the phases of the trial. The

       misdemeanor charges of possession of marijuana and possession of

       paraphernalia would be tried until a verdict was reached in phase one. The

       second phase of the trial would involve resolution of the felony charge of

       unlawful possession of a firearm by a serious violent felon. If necessary, the



       Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 6 of 15
       third phase of the trial would be held to determine Horton’s habitual offender

       status.


[15]   The jury acquitted Horton of the misdemeanor charges in phase one of the trial.

       Phase two of the trial began immediately after the verdicts were returned in

       phase one. On May 28, 2015, during phase two, Horton’s counsel, obligated by

       his ethical duty to the trial court, informed the court of a potential violation by

       Ellison and Horton of the order separating witnesses. Ellison had previously

       testified in phase one of the trial and was to testify on behalf of Horton in phase

       two.


[16]   Ellison was questioned outside the presence of the jury about the potential

       violation. Under questioning by the defense, Ellison stated that when she

       visited Horton at the jail, she and Horton only discussed family and a legal

       matter in another county. She testified that Horton started to talk about the

       case, but she prevented him from saying much.


[17]   When questioned by the State, Ellison acknowledged that she had testified at

       trial the previous day and that she had been advised by Horton’s counsel about

       the order separating witnesses. She testified, however, that she did not think

       that the order applied to Horton. She admitted that she and Horton had

       discussed evidence in the case, facts about the case, and other witnesses’

       testimony.


[18]   After Ellison was excused from the courtroom, the State informed the trial

       court that police officers were asked to review jail telephone records. They

       Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 7 of 15
       found two telephone calls between Horton and Ellison made after the

       separation order was entered. Defense counsel informed the trial court that he

       intended to call Ellison as a witness in phase two to testify about the layout of

       her house and to the fact that she moved the rifle from the garage into the

       laundry room.


[19]   The trial court listened to the recordings of the telephone conversations between

       Horton and Ellison. In them, Horton acknowledged that he was aware of the

       order separating witnesses, yet the two discussed the testimony of various

       witnesses after the order was issued. The trial court then granted the State’s

       motion to exclude Ellison’s testimony during phase two over Horton’s

       objection.


[20]   At the conclusion of phase two of the trial, the jury found Horton guilty of

       unlawful possession of a firearm by a serious violent felon. Horton waived his

       right to a jury trial on phase three, and the trial court found Horton to be an

       habitual offender.


[21]   During sentencing, the trial court found the aggravating circumstances of

       Horton’s criminal history, that he was out on bond, and that he was on parole

       at the time he committed this offense, outweighed the lack of mitigating

       circumstances. The trial court sentenced Horton to eighteen years executed in

       the Department of Correction with a sentence of ten years executed for the

       habitual offender enhancement, to be served consecutively. The trial court

       entered a corrected sentencing order setting forth the accurate name of the


       Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 8 of 15
       crime. The trial court issued a second corrected sentencing order setting forth

       the accurate count upon which the conviction was entered. Horton now

       appeals.


                                    Discussion and Decision
                                       I. Exclusion of Witness
[22]   Horton argues that the trial court abused its discretion by excluding Ellison’s

       testimony in phase two of his jury trial. Evidence Rule 615 provides for the

       separation of witnesses for the purpose of preventing them from hearing other

       witness testimony. Indeed, a well-settled element of Indiana procedural law

       provides that “[t]he purpose of a separation order is to prevent witnesses from

       changing their testimony according to the questioning and testimony of those

       preceding them at trial.” Garland v. State, 439 N.E.2d 606, 608 (Ind. 1982),

       (superseded by rule as stated in Hernandez v. State, 716 N.E.2d 948, 950 (Ind.

       1999) (trial court required to grant motions for separation of witnesses)).


[23]   Appellate review of a trial court’s decision to exclude evidence based on a

       violation of a separation order is for an abuse of discretion. Jiosa v. State, 755

       N.E.2d 605, 607 (Ind. 2001) (citing Goolsby v. State, 517 N.E.2d 54, 61 (Ind.

       1987)). When a violation of a witness separation order occurs, it is within the

       trial court’s discretion as to the course of action to be followed. Cordray v. State,

       687 N.E.2d 219, 221 (Ind. Ct. App. 1997).


[24]   “Permitting a witness to testify in violation of a separation of witnesses order is

       a matter within the sound discretion of the trial judge and we will not disturb

       Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 9 of 15
       the exercise of that discretion unless there is a showing that there was such

       prejudice to the defendant that there was an abuse of discretion.” Wireman v.

       State, 432 N.E.2d 1343, 1349 (Ind. 1982). An abuse of discretion is found

       where the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).


[25]   Although a defendant has a right under the Sixth Amendment to the United

       States Constitution to present witnesses on his behalf, this right is not absolute.

       Townsend v. State, 26 N.E.3d 619, 627 (Ind. Ct. App. 2015), trans. denied. A trial

       court may exclude the testimony of a party’s witness who violates the order

       separating witnesses if the party is at fault. Jiosa v. State, 755 N.E.2d 605, 608

       (Ind. 2001).


[26]   The record before us establishes that the trial court did not abuse its discretion

       by excluding Ellison’s testimony during phase two of Horton’s trial. Horton

       and Ellison were aware of the order separating witnesses. Horton and Ellison

       discussed the testimony of other witnesses who had testified at trial in clear

       violation of the court’s order.


[27]   Furthermore, the trial court’s decision finds support in Horton’s admission that

       he received the rifle from a friend, he was going to repair it for his friend,

       described the needed repairs, and informed officers that he was the person who

       placed the rifle next to the dryer. Therefore, exclusion of Ellison’s testimony in

       phase two did not prejudice Horton’s defense. There was no abuse of discretion

       in the exclusion of Ellison’s testimony during phase two of Horton’s trial.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 10 of 15
                               II. Admission of Seized Evidence
[28]   Horton argues that the trial court erred by denying his motion to suppress.

       Horton argues that the probable cause supporting the search warrant was

       deficient because it was based on uncorroborated hearsay information.


[29]   When a case proceeds to trial, review of a trial court’s ruling on a motion to

       suppress is no longer viable. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013).

       When an objection to the evidence is lodged at trial, the issue on appellate

       review is whether the trial court abused its discretion by admitting the evidence

       at trial. Id. The general admission of evidence at trial is left to the sound

       discretion of the trial court. Id. We will reverse the trial court’s decision only

       when admission of the evidence is clearly against the logic and effect of the facts

       and circumstances and the error affects a party’s substantial rights. Id. Based

       upon the arguments before us, we will analyze this issue under the Fourth

       Amendment to the United States Constitution only.


[30]   The Fourth Amendment to the U.S. Constitution protects persons from

       unreasonable search and seizure by prohibiting, as a general rule, searches and

       seizures conducted without a warrant supported by probable cause. Id. at 260.

       As a deterrent, evidence obtained in violation of this rule is generally

       inadmissible in a prosecution against the victim of the unlawful search or

       seizure absent evidence of a recognized exception. Id. Probable cause means a

       probability of criminal activity, not a prima facie showing. Seltzer v. State, 489

       N.E.2d 939, 941 (Ind. 1986).


       Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 11 of 15
[31]   When a probable cause affidavit is based on hearsay, the affidavit must either

       contain reliable information establishing the credibility of the source and of

       each of the declarants of the hearsay and establishing that there is a factual basis

       for the information furnished, or contain information that establishes that the

       totality of the circumstances corroborates the hearsay. Ind. Code § 35-33-5-2(b)

       (2014).


[32]   Upon appellate review of the trial court’s decision, we focus on whether

       reasonable inferences drawn from the totality of the evidence support the

       determination of probable cause. Jackson v. State, 908 N.E.2d 1140, 1142 (Ind.

       2009). “Where a presumption of the validity of the search warrant exists, the

       burden is upon the defendant to overturn that presumption.” Jones v. State, 783

       N.E.2d 1132, 1136 (Ind. 2003). We do not reweigh the evidence. State v.

       Washington, 898 N.E.2d 1200, 1203 (Ind. 2008).


[33]   Upon our deferential review of a trial court’s denial of a defendant’s motion to

       suppress, we construe conflicting evidence in the light most favorable to the

       ruling, but also consider any substantial and uncontested evidence favorable to

       the defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). We defer to the

       trial court’s findings of fact unless they are clearly erroneous. Id. When a trial

       court denies the defendant’s motion to suppress on constitutional grounds, it

       presents a question of law, which we address de novo. Id. We may affirm a

       trial court’s judgment on any theory supported by the evidence, and on any

       legal ground apparent in the record. Ratliff v. State, 770 N.E.2d 807, 809 (Ind.

       2002).

       Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 12 of 15
[34]   Sergeant Brown’s probable cause affidavit stated that the Lafayette Police

       Department was contacted on February 25, 2014, by an agent with the U.S.

       Marshal’s Fugitive team regarding an individual identified as Danny “Boone”

       Horton. Horton was wanted on a warrant out of Warren County for failure to

       appear for charges associated with dealing in methamphetamine. Brown

       obtained a copy of the warrant from the Warren County Sheriff’s office on

       February 25, 2014, confirming that the warrant was still active. While

       attempting to locate Horton, officers with the U.S. Marshal’s Office observed

       Horton enter Ellison’s residence. They maintained surveillance of the residence

       and observed Ellison leave. When questioned by the officers, Ellison claimed

       that Horton was not at her home, that she had not seen him in two weeks, and

       she declined to allow officers to check her residence.


[35]   After Ellison left, two other people exited the home and were questioned by the

       officers maintaining surveillance. Justin Rossi was Ellison’s stepson, and

       Jonathan Henson was a friend of Rossi’s. They both said that Horton was in

       Ellison’s house at the time they left, that he was carrying a handgun, and that

       there were other firearms in the house, including a rifle in the garage, that

       belonged to Horton.


[36]   The affidavit also stated that Horton had a prior conviction for Class B felony

       burglary, making it illegal for him to possess any firearms. Brown stated that he

       believed Henson and Rossi to be reliable and credible because they spoke from

       personal knowledge and had no known reason to lie. The officers with the U.S.

       Marshal’s office and Lafayette Police Department were also believed to be

       Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 13 of 15
       credible because they spoke from personal knowledge obtained in their

       capacities as law enforcement officers.


[37]   The information in the affidavit provided sufficient probable cause for the

       issuance of the search warrant for Ellison’s house and, though based upon

       hearsay, was based upon reliable and credible hearsay. Independent police

       investigation corroborated the witnesses’ statements. See Fry v. State, 25 N.E.3d

       237, 244 (Ind. Ct. App. 2015), trans. denied. Furthermore, these witnesses—

       Henson and Rossi—were identified. Concerned or cooperative citizens are

       entitled to some degree of credibility and reliability for purposes of probable

       cause. State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011).


[38]   Additionally, as long as participating officers seeking the issuance of a search

       warrant collectively have probable cause, their individual knowledge can be

       imputed to the officer signing the affidavit in the search warrant. Utley v. State,

       589 N.E.2d 232, 236 (Ind. 1992). Brown corroborated information from

       officers about the active warrant from Warren County by obtaining a copy of

       the warrant. Officers observed whom they believed to be Horton enter Ellison’s

       house. Henson and Rossi stated to officers that Horton was in the house, that

       they had observed him with a handgun and that other firearms were present.

       Given the totality of the circumstances, we cannot say that the affidavit lacked

       sufficient probable cause to search Ellison’s home. Horton has not overturned

       the presumption of validity of the search warrant. The trial court did not abuse

       its discretion by admitting evidence seized during the search.



       Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016   Page 14 of 15
                                         III. Sentencing Error
[39]   Horton briefly argues and the State concedes that the trial court erred by

       imposing a separate, consecutive sentence for Horton’s habitual offender

       adjudication. The trial court sentenced Horton to eighteen years executed in

       the Department of Correction with a sentence of ten years executed for the

       habitual offender enhancement, to be served consecutively.


[40]   An habitual offender adjudication does not constitute a separate crime nor does

       it result in a separate sentence. Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997).

       An habitual offender adjudication results in a sentence enhancement imposed

       upon the conviction of a subsequent felony. Id. We remand this matter to the

       trial court for purposes of resentencing Horton with instructions to enhance his

       sentence for his conviction of unlawful possession of a firearm by a serious

       violent felon due to his habitual offender adjudication.


                                                Conclusion
[41]   In light of the foregoing, we affirm the trial court’s decision regarding the

       sanction for the violation of the order separating witnesses and the admission of

       evidence seized pursuant to the search warrant. However, we remand this

       matter for resentencing.


[42]   Affirmed in part, and remanded in part with instructions.


       Najam, J., and Riley, J., concur.




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