                                                                                  FILED
                                                                             Nov 27 2019, 10:46 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Zachary J. Stock                                          Curtis T. Hill, Jr.
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Megan M. Smith
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ernest Ray Snow, Jr.,                                     November 27, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-949
              v.                                                Appeal from the Hendricks Circuit
                                                                Court
      State of Indiana,                                         The Honorable Dan F. Zielinski,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                32C01-1705-F5-80



      Najam, Judge.


                                        Statement of the Case
[1]   Ernest Ray Snow, Jr. appeals his convictions following a jury trial for burglary,

      as a Level 5 felony; theft, as a Level 5 felony; conversion, as a Level 5 felony;

      and auto theft, as a Level 6 felony; and his sentence enhancements for

      Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019                            Page 1 of 16
      committing a felony while a member of a criminal organization and for being a

      habitual offender. Snow presents three issues for our review:


              1.       Whether the trial court erred when it admitted evidence
                       that law enforcement officers had seized pursuant to a
                       search of his residence.

              2.       Whether the State presented sufficient evidence to support
                       his convictions.

              3.       Whether the criminal organization enhancement violates
                       the prohibition against double jeopardy.


[2]   We also address sua sponte whether the trial court’s judgment of conviction and

      sentencing order erroneously lists Snow’s convictions.


[3]   We affirm and remand with instructions.


                                  Facts and Procedural History
[4]   On May 6, 2017, a friend of Snow’s introduced him to Robert Fields, a forklift

      operator at Ingram Micro, a company that distributes mobile devices, including

      Fitbits and Fitbit accessories. Snow drove a gold-colored Ford F350 truck that

      day. Fields was interested in buying shoes from Snow, so they exchanged

      phone numbers. Early the next morning, Snow called Fields, and he told Fields

      that he would give Fields ten pairs of shoes in exchange for information about

      security at an Ingram Micro warehouse. Fields described the two “older”

      people who provided security for the warehouse, and Fields told Snow the




      Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019       Page 2 of 16
      “trailer number” for a trailer loaded with Fitbits parked outside the warehouse.

      Tr. Vol. 2 at 234.


[5]   During the early morning hours of May 8, a semi-tractor was stolen from a

      facility in Plainfield, and that semi-tractor was used to steal the trailer full of

      Fitbits from Ingram Micro. When Scott Sunderman, an Ingram Micro security

      manager, learned of the missing trailer, he notified some “off-duty” officers

      with the Plainfield Police Department, and Sunderman “headed around town”

      to investigate himself. Id. at 141. The trailer was equipped with a GPS tracking

      device, and the company that owned the trailer accessed the data for that

      device, which showed that the trailer had been parked at 3524 Shadeland

      Avenue between 2:30 and 5:15 a.m. on May 8. The trailer was ultimately

      found abandoned and empty, and someone had disabled the GPS tracking

      device.


[6]   The next morning, Sunderman drove to the area of 3524 Shadeland Avenue,

      and he obtained a nearby hotel’s exterior surveillance video showing the semi-

      tractor driving the trailer full of Fitbits to that address, where several businesses

      are located. After watching the video, Sunderman notified law enforcement

      about the possible location where the Fitbits had been unloaded. And

      Sunderman decided to “continue to sit on the location.” Id. at 146. Dan

      Marshall, the director of security for Ingram Micro, joined Sunderman.


[7]   At some point, Sunderman and Marshall saw a man arrive at 3524 Shadeland

      Avenue in a “gold F350 pickup” truck. Id. The man was making several trips


      Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019         Page 3 of 16
      between the truck and a business at that address, Caldwell Automotive,

      carrying boxes that looked like the ones containing the Fitbits from Ingram

      Micro. Plainfield police officers then obtained a search warrant for Caldwell

      Automotive. During their subsequent search of the premises, officers found

      multiple boxes containing Fitbits and Fitbit accessories. Officers also talked to

      Gregory Street, who leases the premises immediately adjacent to Caldwell

      Automotive. Street provided the officers with surveillance footage of the

      exterior of the building from the morning of May 8. That footage showed

      people moving boxes from the parked trailer into Caldwell Automotive. Street

      recognized one of the men on the footage as one of his employees, Randy Price.

      Plainfield Police Department Detective Brian Bugler interviewed Price, who

      stated that a man named “Snow” had organized the heist and was one of the

      three to five men who had moved the boxes from the trailer into Caldwell

      Automotive. Appellant’s App. Vol. 2 at 34.


[8]   After additional investigation by law enforcement implicated Snow in the theft

      of the Fitbits from Ingram Micro, officers obtained a search warrant for Snow’s

      residence. When officers executed that warrant, they found seven Fitbits and

      Fitbit accessories. The Fitbits were identified as having been stolen from

      Ingram Micro. Officers also obtained warrants to search Snow’s cell phone,

      and they read text messages implicating Snow in the heist.




      Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019     Page 4 of 16
[9]    The State charged Snow with burglary, as a Level 5 felony; theft, as a Level 5

       felony; conversion, as a Level 5 felony; and auto theft, as a Level 6 felony. 1

       The State also alleged that Snow committed these offenses while he was a

       member of a criminal organization and that he was a habitual offender. The

       trial court held a trifurcated trial, and the jury found Snow guilty as charged at

       the conclusion of each phase.


[10]   In its judgment of conviction and sentencing order, the trial court erroneously

       entered judgment on two counts of burglary, as Level 5 felonies; theft, as a

       Level 5 felony; and conversion, as a Level 5 felony. The trial court did not

       enter judgment of conviction on the auto theft count. And the trial court

       sentenced Snow as follows: concurrent five-year sentences for the two burglary

       convictions and the theft conviction; a two-year sentence for conversion, to be

       served consecutive to the other counts; five years for the criminal organization

       enhancement; and two years for the habitual offender enhancement. Thus,

       Snow’s aggregate sentence is fourteen years executed. This appeal ensued.


                                          Discussion and Decision
                                            Issue One: Search Warrant

[11]   Snow contends that the trial court erred when it admitted evidence seized by

       law enforcement officers during the search of his residence. Snow’s argument

       that the search of his residence violated his constitutional rights raises




       1
           The State had charged Snow with three additional offenses, but it dismissed those charges prior to trial.


       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019                                Page 5 of 16
       “questions of law that we review de novo.” Redfield v. State, 78 N.E.3d 1104,

       1106 (Ind. Ct. App. 2017) (quotation marks omitted), trans. denied.


[12]   On appeal, Snow maintains that the search of his residence was illegal because

       the search warrant lacked probable cause. We cannot agree. Rather, we

       conclude that the evidence supports the trial court’s determination that

       sufficient probable cause supported the search warrant. In any event, even if we

       assume for the sake of argument that Snow is correct and there was no probable

       cause to support the search warrant, “[t]he lack of probable cause does not

       automatically require the suppression of evidence obtained during a search

       conducted pursuant to a warrant.” Jackson v. State, 908 N.E.2d 1140, 1143 (Ind.

       2009). Indeed, “the exclusionary rule does not require the suppression of

       evidence obtained in reliance on a defective search warrant if the police relied

       on the warrant in objective good faith.” Id.


[13]   Accordingly, to establish reversible error, Snow must demonstrate both the lack

       of probable cause and the inapplicability of the good faith exception. But, in his

       appellant’s brief, Snow only asserts that the search warrant lacked probable

       cause. He makes no argument that the good faith exception does not apply.

       And his attempt to make an argument on the good faith exception for the first

       time in his reply brief is unavailing. “The law is well settled that grounds for

       error may only be framed in an appellant’s initial brief and if addressed for the

       first time in the reply brief, they are waived.” Monroe Guar. Ins. Co. v. Magwerks

       Corp., 829 N.E.2d 968, 977 (Ind. 2005).



       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019       Page 6 of 16
[14]   There are two situations where the good faith exception does not apply.

       Jackson, 908 N.E.2d at 1143. Those include situations where “the magistrate is

       misled by information in an affidavit that the affiant knew was false or would

       have known was false except for his reckless disregard of the truth” or situations

       where “the warrant was based on an affidavit so lacking in indicia of probable

       cause as to render official belief in its existence entirely unreasonable.” Id.

       (quotation marks omitted).


[15]   As Snow has not addressed good faith in his lead brief on appeal, he has not

       directed us to any evidence in the record, or made any argument, that the

       magistrate was misled by information in the affidavit that Detective Bugler

       knew or should have known was false. See Ind. Appellate Rule 46(A)(8)(a).

       Neither does he assert that the warrant was so lacking in indicia of probable

       cause as to render belief in its existence entirely unreasonable. See id. And it is

       not this Court’s place to make arguments for a party on appeal. See Thacker v.

       Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). Accordingly, Snow has not

       met his burden on appeal to demonstrate that the trial court erred when it

       admitted as evidence items seized pursuant to the search of his residence.




       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019       Page 7 of 16
                                   Issue Two: Sufficiency of the Evidence

[16]   Snow next contends that the State presented insufficient evidence to support his

       convictions. 2 Our standard of review on a claim of insufficient evidence is well

       settled:


                For a sufficiency of the evidence claim, we look only at the
                probative evidence and reasonable inferences supporting the
                verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
                not assess the credibility of witnesses or reweigh the evidence. Id.
                We will affirm the conviction unless no reasonable fact-finder
                could find the elements of the crime proven beyond a reasonable
                doubt. Id.


       Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).


[17]   To prove that Snow committed burglary, as a Level 5 felony, the State was

       required to show that he broke and entered the building or structure of another

       person, with the intent to commit a felony or theft in it. Ind. Code § 35-43-2-1

       (2019). To prove that Snow committed theft, as a Level 5 felony, the State was

       required to show that he knowingly or intentionally exerted unauthorized

       control over the property of another person with the intent to deprive the other

       person of any part of its value or use and that the property’s value was at least

       $50,000. I.C. § 35-43-4-2(a)(2)(A). To prove that Snow committed conversion,

       as a Level 5 felony, the State was required to show that he knowingly or



       2
         The parties address Snow’s convictions as found by the jury, not as listed in the judgment of conviction.
       As we explain below, we remand to the trial court to correct the erroneous judgment of conviction and
       sentencing order accordingly.

       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019                              Page 8 of 16
       intentionally exerted unauthorized control over another person’s motor vehicle.

       I.C. § 35-43-4-3. To prove that Snow committed auto theft, a Level 6 felony,

       the State was required to show that he knowingly or intentionally exerted

       unauthorized control over the motor vehicle of another person with the intent

       to deprive the other person of the vehicle’s value or use. I.C. § 35-43-4-2.5(b)

       (2017). Finally, the State alleged that Snow committed each of these offenses as

       an accomplice. A person who knowingly or intentionally aids, induces, or

       causes another person to commit an offense commits that offense, even if the

       other person: (1) has not been prosecuted for the offense; (2) has not been

       convicted of the offense; or (3) has been acquitted of the offense. I.C. § 35-41-2-

       4.


[18]   Snow’s sole contention on appeal is that the State presented insufficient

       evidence to prove his guilt as an accomplice “because the identity of the

       individuals who committed the burglary, thefts, and conversion is completely

       unknown.” Appellant’s Br. at 13. In support of that contention, Snow

       maintains that none of the four factors relevant to accomplice liability is

       satisfied here. We cannot agree.


[19]   As our Supreme Court has explained,


               [a] defendant may be charged as the principal but convicted as an
               accomplice. Jester v. State, 724 N.E.2d 235, 241 (Ind. 2000); Wise
               v. State, 719 N.E.2d 1192, 1198 (Ind. 1999). Generally there is no
               distinction between the criminal liability of an accomplice and a
               principal, Wise, 719 N.E.2d at 1198, although evidence that the
               defendant participated in every element of the underlying offense

       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019      Page 9 of 16
        is not necessary to convict a defendant as an accomplice. Vitek v.
        State, 750 N.E.2d 346, 352 (Ind. 2001). . . . We consider four
        factors to determine whether a defendant acted as an accomplice:
        (1) presence at the scene of the crime; (2) companionship with
        another at scene of crime; (3) failure to oppose commission of
        crime; and (4) course of conduct before, during, and after
        occurrence of crime. Id. at 352. That a defendant was present
        during the commission of a crime and failed to oppose the crime
        is not sufficient to convict [him]. Id. But, “presence at and
        acquiescence to a crime, along with other facts and
        circumstances” may be considered. Id. at 352-53.


Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). Further, as this Court has

explained,


        [t]he particular facts and circumstances of each case must be
        considered in determining whether a person participated in the
        commission of an offense as an accomplice.” Peterson v. State,
        699 N.E.2d 701, 706 (Ind. Ct. App. 1998). For [a defendant’s]
        conviction to stand, “there must be evidence of [his] affirmative
        conduct, either in the form of acts or words, from which an
        inference of a common design or purpose to effect the
        commission of a crime may be reasonably drawn.” Id. “Each
        participant must knowingly or intentionally associate himself
        with the criminal venture, participate in it, and try to make it
        succeed.” Cohen v. State, 714 N.E.2d 1168, 1177 (Ind. Ct. App.
        1999), trans. denied. That said, the State need not show that [the
        defendant] “was a party to a preconceived scheme; it must
        merely demonstrate concerted action or participation in an illegal
        act.” Rainey v. State, 572 N.E.2d 517, 518 (Ind. Ct. App. 1991).


Griffin v. State, 16 N.E.3d 997, 1003-04 (Ind. Ct. App. 2014).




Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019    Page 10 of 16
[20]   The State presented ample circumstantial evidence to prove that Snow was

       involved in every step of the heist—from the planning to the execution. In

       particular, prior to the heist, Snow asked Fields for information about security

       at Ingram Micro, and he asked Fields for identifying information on the trailer

       containing the Fitbits. Snow sent text messages to someone offering to pay

       $15,000 for that person to drive a semi-truck from one side of Indianapolis to

       the other. And when the trailer containing the stolen Fitbits was stolen,

       someone transported it from the west side to the east side of Indianapolis.

       Before, during, and after the heist, Snow was in close contact by phone with

       Caldwell, who owned the business where the Fitbits were unloaded from the

       trailer. After the heist, someone driving the same pickup truck Snow had

       driven to Ingram Micro prior to the heist parked that truck outside of Caldwell’s

       business and transported multiple boxes from Caldwell’s to the truck. And

       officers found some of the stolen Fitbits inside Snow’s residence.


[21]   Snow’s contentions on appeal amount to a request that we reweigh the evidence

       and assess witnesses’ credibility, which we cannot do. We hold that the State

       presented sufficient evidence to prove that Snow was liable as an accomplice for

       each of his convictions: burglary, as a Level 5 felony; theft, as a Level 5 felony;

       conversion, as a Level 5 felony; and auto theft, as a Level 6 felony.


                         Issue Three: Criminal Organization Enhancement

[22]   Finally, Snow contends that the criminal organization enhancement “violates

       both Snow’s right to be free from double jeopardy [under the Indiana

       Constitution] and the common law prohibition of enhancing a sentence using
       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019     Page 11 of 16
       the very same behavior used to support the underlying conviction.” Appellant’s

       Br. at 14. Article 1, Section 14 of the Indiana Constitution provides that “[n]o

       person shall be put in jeopardy twice for the same offense.” As we have

       explained,


               [o]ur Supreme Court has interpreted that clause to prohibit
               multiple convictions based on the same “actual evidence used to
               convict.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). To
               determine the actual evidence used to establish a conviction, we
               look to the “evidentiary facts” as they relate to “all” of the
               elements of both offenses. Spivey v. State, 761 N.E.2d 831, 833
               (Ind. 2002). In other words, the actual evidence test requires “the
               evidentiary footprint for all the elements required to prove one
               offense” to be “the same evidentiary footprint as that required to
               prove all the elements of another offense.” Thrash v. State, 88
               N.E.3d 198, 208 (Ind. Ct. App. 2017) (quoting Berg v. State, 45
               N.E.3d 506, 510 (Ind. Ct. App. 2015)).


       Bradley v. State, 113 N.E.3d 742, 751 (Ind. Ct. App. 2018), trans. denied.


[23]   The State charged Snow as follows:


               Ernest Snow was knowingly a member of a criminal organization
               while committing any of his charged offenses and committed the
               felony offense at [the] direction or in affiliation with a criminal
               gang or with the intent to benefit, promote, or further the interest
               of a criminal organization or for the purposes of increasing the
               person’s own standing or position with the criminal organization.


       Tr. Vol. 3 at 159; see I.C. § 35-50-2-15. Indiana Code Section 35-45-9-1 defines

       “criminal organization” in relevant part as a formal or informal group with at



       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019     Page 12 of 16
       least three members that either assists in or participates in or has as one of its

       goals the commission of a felony.


[24]   Here, during the criminal organization enhancement phase of Snow’s trial, the

       State did not present additional evidence. Instead, the State told the jury that it

       was “incorporating all of the evidence that [the jury] heard presented in the first

       phase of the trial and we’re going to rely on that evidence.” Id. at 163. And

       during closing argument, the prosecutor stated:


               In this case there is ample evidence that the State has proved this
               enhancement beyond a reasonable doubt. If you recall, the video
               that was played to you in the cab was an individual who came in
               and cut . . . the GPS [in the semi-truck], cut the video. Individual
               number one. Individual number two is an individual [who]
               testified to you of his involvement, Mr. Fields. Individual
               number three is their co-defendant sitting here in the courtroom.
               That’s number three and there’s many other people that had
               involvement in this case. Randy Price, you heard his name,
               didn’t you? So, the State of Indiana is going to ask you to rely on
               that, rely on the fact that the evidence beyond a reasonable doubt
               demonstrates that both Defendant Caldwell and Defendant Snow
               acted in concert with at least three people, thereby constituting a
               criminal organization.


       Id. at 168. The prosecutor concluded his argument by stating that Snow was

       knowingly a member of a criminal organization when he committed the

       burglary “[w]ith the intent to promote or further the interest of the criminal

       organization.” Id. at 169.




       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019       Page 13 of 16
[25]   On appeal, Snow avers that “this Court is not required to speculate about what

       evidence guided the jury’s guilty verdict on the criminal organization

       enhancement. The Court can be sure that the jury used the very same evidence

       used to support the underlying felonies.” Appellant’s Br. at 16. Thus, Snow

       concludes, “the criminal organization enhancement violated [his] right to be

       free from double jeopardy under the Indiana Constitution.” Id. But Snow’s

       argument is silent regarding whether the evidentiary footprint for all the

       elements required to prove the enhancement is the same evidentiary footprint as

       that required to prove all the elements of burglary or any of the other underlying

       felonies. See Bradley, 113 N.E.3d at 751. Indeed, in his argument, Snow does

       not set out the elements for either the enhancement or any underlying felony.

       Accordingly, Snow has not sustained his burden on appeal to show that the

       criminal organization enhancement violates the actual evidence test under

       Article 1, Section 14.


[26]   Still, Snow asserts that, because “the State itself has argued that it used the

       same behavior to convict and enhance,” the enhancement cannot stand under

       common law principles. Appellant’s Br. at 16. As we explained in Bradley,


               the Indiana Supreme Court has also “long adhered to a series of
               rules of statutory construction and common law that are often
               described as double jeopardy[ ] but are not governed by the
               constitutional test set forth in Richardson.” Guyton v. State, 771
               N.E.2d 1141, 1143 (Ind. 2002) (quotation marks omitted).


       113 N.E.3d at 751. As Snow points out, one such rule “‘prohibit[s] conviction

       and punishment for an enhancement of a crime where the enhancement is
       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019      Page 14 of 16
       imposed for the very same behavior or harm as another crime for which the

       defendant has been convicted and punished.’” Cross v. State, 15 N.E.3d 569,

       571 (Ind. 2014) (quoting Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003);

       emphasis omitted).


[27]   However, as our Supreme Court has explained, “[a] criminal gang

       enhancement . . . is fundamentally related to its underlying felony or felonies.

       The enhancement increases punishment based on the manner in which the

       defendant committed the underlying felony or felonies.” Jackson v. State, 105

       N.E.3d 1081, 1086 (Ind. 2018). Here, the State presented evidence that Snow

       committed four felonies. In addition, the State presented evidence that Snow

       committed one or more of those felonies in concert with at least two other

       people with the intent to promote or further the interests of the criminal

       organization. The underlying felonies are the foundation for the enhancement,

       but it is the manner in which Snow committed those felonies, namely, acting in

       concert with at least two other people to further their organization’s interests,

       that supports the enhancement. Thus, the enhancement was not imposed for

       the “very same behavior or harm” as the underlying felonies. See Cross, 15

       N.E.3d at 571. We reject Snow’s contention on this issue.


                                                    Conclusion

[28]   On appeal, both Snow and the State describe Snow’s convictions as follows:

       burglary, as a Level 5 felony; theft, as a Level 5 felony; conversion, as a Level 5

       felony; auto theft, as a Level 6 felony; criminal organization enhancement; and

       habitual offender enhancement. Given the discrepancy between the parties’
       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019     Page 15 of 16
       understanding of the convictions, which is consistent with the jury verdicts, and

       the trial court’s judgment of conviction and sentencing order, we remand with

       instructions to vacate one of the burglary convictions listed on the judgment of

       conviction and sentencing order and to enter judgment of conviction as follows:

       burglary, as a Level 5 felony; theft, as a Level 5 felony; conversion, as a Level 5

       felony; auto theft, as a Level 6 felony; criminal organization enhancement; and

       habitual offender enhancement. And the trial court shall resentence Snow

       accordingly.


[29]   The trial court did not err when it admitted evidence seized by officers during a

       search of Snow’s residence. The State presented sufficient evidence to support

       Snow’s convictions. And Snow’s contentions regarding the criminal

       organization enhancement are without merit. We affirm Snow’s convictions,

       but we remand with instructions to enter judgment of conviction consistent

       with the jury’s verdicts and to resentence Snow accordingly.


[30]   Affirmed and remanded.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-949 | November 27, 2019     Page 16 of 16
