MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jun 18 2020, 5:37 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                          Curtis T. Hill, Jr.
Bargersville, Indiana                                    Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven D. Warren, Jr.,                                   June 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2256
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Wendy W. Davis, Judge
                                                         Trial Court Cause No.
                                                         02D04-1810-F2-50



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020                    Page 1 of 31
[1]   Steven Warren (“Warren”) appeals his convictions for possession of cocaine

      with intent to deal1 as a Level 2 felony and possession of marijuana2 as a Class

      B misdemeanor. Warren raises the following issues for our review:


                 I.       Whether the trial court abused its discretion by admitting
                          evidence from a search conducted pursuant to a search
                          warrant which was not supported by probable cause;


                 II.      Whether the State presented sufficient evidence that he
                          possessed the cocaine found in the residence;


                 III.     Whether the trial court abused its discretion by denying his
                          motion to continue; and


                 IV.      Whether the trial court abused its discretion by allowing
                          supplemental closing arguments when the jury reached an
                          impasse.


[2]   We affirm.


                                        Facts and Procedural History
[3]   On August 21, 2018, Detective Jamie Masters (“Detective Masters”) of the Fort

      Wayne Police Department Vice and Narcotics division received information

      from a confidential informant (“CI”) that the CI could purchase crack cocaine

      from a man named “Lil Steve.” The CI provided a phone number to reach Lil




      1
          See Ind. Code § 35-48-4-1.
      2
          See Ind. Code § 35-48-4-11.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020    Page 2 of 31
      Steve. Tr. Vol. I at 7, 18. The CI contacted Lil Steve by phone and, as part of a

      controlled buy, met him near the gas station of a Meijer grocery store, entered

      the dark blue Audi A6, and exchanged $150 of controlled-buy money for what

      was later identified as crack cocaine. Id. at 224-32; Tr. Vol. II at 73-75, 88;

      State’s Exs. 1-3, 76. After the transaction, the police followed the vehicle to the

      Dupont Hospital and observed a black male exit the vehicle. Tr. Vol. I at 246;

      Tr. Vol. II at 187, 218.


[4]   On August 24, 2018, the CI arranged a second controlled buy for $150 worth of

      crack cocaine from the same seller. Tr. Vol. I at 239-40; Tr. Vol. II at 76-77.

      Before the second buy, the CI was shown a photo array of six individuals and

      was told the suspected dealer “may or may not be” pictured. The CI identified

      Lil Steve as Warren. Tr. Vol. I at 242; Tr. Vol. II at 77. Warren drove the same

      dark blue Audi A6, and the CI exchanged the controlled- buy funds for cocaine.

      Tr. Vol. I at 244-46; Tr. Vol. II at 78. The vehicle was registered to Barbara

      Hairston, Warren’s grandmother. Tr. Vol. I at 233. Law enforcement followed

      the vehicle after the buy but lost sight of it in the “area of Jacobs and Edgehill”

      in Fort Wayne. Id. at 246; Tr. Vol. II at 170. Following the second controlled

      buy, officers received a warrant to obtain the geolocation information (“pings”)

      for the phone number that the CI had contacted to arrange each controlled

      buy.3 Tr. Vol. II at 9-10.




      3
       The phone number the CI used to contact Warren for each controlled buy was a prepaid phone. Tr. Vol. II
      at 67-68.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020                Page 3 of 31
[5]   On September 13, 2018, a third controlled buy occurred. Warren drove the

      same blue Audi. The CI entered the vehicle and exchanged the controlled buy

      funds for what was later determined to be crack cocaine. Id. at 3-5. Law

      enforcement noted that the phone’s pings were consistent with the phone

      traveling from 2149 Edgehill Avenue (“Edgehill Avenue”) before the

      transaction and after the transaction. Id. at 59, 80-81; Tr. Vol. III at 58-59.

      Police attempted to follow the blue Audi after the transaction but were not able

      to do so successfully. Tr. Vol. II at 5.


[6]   On October 4, 2018, a fourth controlled buy occurred for another $150 worth of

      crack cocaine. Tr. Vol. II at 8, 82. Before the transaction occurred, Fort Wayne

      Police Department Vice and Narcotics Detective Shane Heath (“Detective

      Heath”) conducted surveillance at Edgehill Avenue and observed Warren exit

      the front door of the residence, check the mail, and return to the residence. Id.

      at 12, 172-74. Detective Heath observed the same blue Audi used in each

      previous controlled buy leave the garage of Edgehill Avenue approximately

      twelve minutes later. Id at 174. Officers followed the Audi as it went to a

      Kroger grocery store and then to the location of the controlled buy. Id. at 14,

      126, 149.


[7]   On October 15, 2018, a search warrant was issued for Edgehill Avenue in Fort

      Wayne, Indiana outlining the four controlled drug buys that occurred on




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 4 of 31
      August 21, 2018, August 24, 2018, September 13, 2018, and October 4, 2018. 4

      Tr. Vol. I at 17; Appellant’s Conf. App. Vol. III at 133-36. Warren’s uncle, Rodney

      Chapman, leased the residence at Edgehill Avenue, and law enforcement was

      aware that Warren’s address was 1411 East Washington Blvd through

      information obtained from a police database. Tr. Vol. II at 61; Tr. Vol. I at 16.

      On the morning of October 19, 2018, law enforcement executed the search

      warrant at Edgehill Avenue. Tr. Vol. I at 7. On that day, Warren was the sole

      individual in the residence, and the dark blue Audi, which was used in each

      controlled buy, was parked in the garage of the residence. Tr. Vol. II at 22-23.

      Warren was wearing boxer shorts and a t-shirt and appeared to be coming from

      the residence’s master bedroom at the time of the search. Id. at 100.


[8]   Law enforcement conducted a search of the residence. Detective Masters

      observed that the kitchen appeared to be the area of the residence where the

      process of converting powder cocaine into crack cocaine occurred. Id. at 24-25.

      Several boxes of baking soda, a blender, a razor blade with residue on it, and

      numerous Pyrex measuring cups, were found scattered throughout the kitchen.

      Id. at 24, 240-241; State’s Exs. 21, 23. In a kitchen drawer law enforcement

      found a “larger amount of powder cocaine.” Tr. Vol. II at 24; State’s Ex. 24. In

      another kitchen drawer, law enforcement found a handgun. Tr. Vol. II at 27,




      4
        The pings attributable to the phone number the CI used to arrange the controlled buys with Warren showed
      that 74.2% of the pings from that phone in Fort Wayne were from the Edgehill Avenue residence, and 11.9%
      of the phone’s pings were attributable to 1411 East Washington Blvd. Tr. Vol. III at 66. This information
      was not included in the search warrant.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020                 Page 5 of 31
      243. Marijuana and digital scales were found on top of the microwave. Id. at

      27. A kitchen counter drawer contained gloves, a filter mask, and baggies. Id.

      at 242. Detective Masters also found $283 on the counter to the left of the

      refrigerator and a pink substance that was later determined to contain cocaine.

      Id. at 24-25, 235. The scales and the microwave tested positive for cocaine

      residue, although there was no drug paraphernalia found in the kitchen. Id. at

      26, 239, 246. Detective Masters observed that the amount of drugs found in the

      kitchen was “much more than a user amount.” Id. at 26.


[9]   In the master bedroom, law enforcement found the phone that was used to

      arrange the drug purchases, a second cell phone, a nine-millimeter handgun, a

      digital scale, and marijuana paraphernalia. Id at 175-80; Tr. Vol. III at 67, 72-

      73. The magazine of the nine-millimeter handgun had two partial latent

      fingerprints, and testing showed the fingerprints were consistent with Warren’s

      fingerprints. Tr. Vol. II at 247; Tr. Vol. III at 39, 42. The dresser in the master

      bedroom contained Warren’s wallet and identification, $796 in currency, and a

      personal check made out to Warren. Tr. Vol. II at 182; Tr. Vol. III at 2; State’s

      Exs. 46-48. Warren’s identification listed his address as 1411 E. Washington

      Blvd., Fort Wayne, IN. State’s Ex. 46. A shoebox located near a television in

      the master bedroom contained a razor blade and nametag with Warren’s name.

      Tr. Vol. II at 201-02; Tr. Vol. III at 3; State’s Exs. 49-51. In the closet of the

      master bedroom, law enforcement uncovered a Fat Albert sweatshirt with

      $6,351 in the pocket. Tr. Vo1. II at 180; Tr. Vol. III at 4; State’s Exs. 44-45.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 6 of 31
[10]   In the second bedroom of the residence, law enforcement found a backpack

       with 380.3 grams of marijuana, a leather jacket with $258 in currency, and

       boxes for two handguns. Tr. Vo1. II at 41-43, Tr. Vol. III at 5-8, 10-11; State’s

       Exs. 74-75. The search of the dining room revealed additional marijuana, a

       grinder, rolling papers, and two rolling devices. Tr. Vol. II at 226-29. Law

       enforcement also found a shipping label that listed Warren’s name and the

       phone number used to arrange the controlled drug buys with the CI. Tr. Vo1. II

       at 282-83; State’s Ex. 54.


[11]   The search also yielded credit union receipts dated April 20, 2018 and October

       18, 2018 with the name Warren on each receipt. Tr. Vol. II at 31-33; State’s Exs.

       22, 29. The search uncovered other names on documents in the house, but law

       enforcement did not recall finding any identifying information for any other

       individual who may have used the residence. Tr. Vol. III at 177, 182.


[12]   On October 25, 2018, the State charged Warren with: Count 1, possession of

       cocaine with the intent to deal as a Level 2 felony; Counts 2-5, dealing in

       cocaine, each as a Level 4 felony; and Count 6, possession of marijuana, as a

       Class B misdemeanor. Appellant’s Conf. App. Vol. II at 17-27. On February 14,

       2019, Warren filed a motion to suppress the evidence found in the search of

       Edgehill Avenue. Id. at 76. The State filed its response on March 8, 2019. Id.

       at 94. On April 22, 2019, Warren filed a supplemental memorandum in

       support of his motion to suppress. Id. at 106-08. On that same day, the trial

       court held a hearing on Warren’s motion to suppress and denied the motion.

       Id. at 9, 111. Warren then filed a motion requesting the trial court certify the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 7 of 31
       suppression order for an interlocutory appeal. The trial court denied the request

       on April 30, 2019. Id. at 109-14.


[13]   On August 21, 2019, the trial court began a jury trial. Id. at 13. On the day of

       trial, Warren filed a “Motion to Dismiss, or in the Alternative, Continue Jury

       Trial” due to belated discovery. The motion stated that the State provided a

       198-page report to him on August 12, 2019 of the phone calls between

       September 9, 2018 through October 9, 2018 from the phone number the CI had

       used to arrange the controlled drug buys with Warren, and Warren’s counsel

       had been unable to review the call detail report. Id. at 122-32. After hearing

       argument from the parties, the trial court denied the motion and found that the

       prosecutor’s failure to provide the report was inadvertent and that the

       information in the call detail report was not exculpatory. Tr. Vol. I at 69, 71-72,

       75. The trial court also found the State would be prejudiced because the CI was

       in danger due to a different case unrelated to Warren and that Warren’s motion

       “in some sort of fashion . . . is a stalling tactic” that was prejudicial to the

       State’s case. Id. at 75.


[14]   At trial, the trial court admitted the evidence from the search of Edgehill

       Avenue over Warren’s objection, which restated his arguments from his motion

       to suppress. Tr. Vol. II at 21-22.


[15]   At the conclusion of the trial, the jury retired to deliberate, but after nearly six

       hours of deliberations, the jury reported it was at an impasse on the intent

       element of constructive possession. The trial court ordered the parties to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 8 of 31
       provide supplemental argument on that issue. Tr. Vol. III at 248-49. Warren’s

       counsel objected to providing supplemental argument, and, over the objection,

       the trial court allowed the prosecutor and Warren’s counsel to give

       supplemental argument. Id. at 249; Tr. Vol. IV at 1, 3-7.


[16]   Following the supplemental argument, the jury found Warren guilty of Count 1

       and Count 6 and acquitted him of Counts 2 through 5. Tr. Vol. IV at 8-9;

       Appellant’s Conf. App. Vol. III at 55-61. On September 13, 2019, Warren was

       sentenced on Count 1 to twenty-five years in the Department of Correction with

       five years suspended and four years of probation and a concurrent sentence of

       180 days on Count 6. Appellant’s Conf. App. Vol. II at 14. Warren now appeals.


                                      Discussion and Decision

                                     I.       Admission of Evidence
[17]   Warren first challenges the admission of evidence gathered from the search of

       Edgehill Avenue. Because Warren appeals from a completed trial, we review

       the trial court’s evidentiary ruling for an abuse of discretion. See Grayson v.

       State, 52 N.E.3d 24, 26 (Ind. Ct. App. 2016). An abuse of discretion occurs

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

       facts and circumstances, and the error affects a party’s substantial rights. Clark

       v. State, 994 N.E.2d 252, 260 (Ind. 2013). We will not reweigh the evidence,

       and we resolve any conflicts in the evidence in favor of the trial court’s

       ruling. J.G. v. State, 93 N.E.3d 1112, 1119 (Ind. Ct. App. 2018), trans. denied.

       When the challenge to the trial court’s ruling is premised on a constitutional


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 9 of 31
       violation, the issue is reviewed de novo because it raises a question of

       law. Pinner v. State, 74 N.E.3d 226, 229 (Ind. 2017).


                                                Probable Cause

[18]   Warren asserts that the trial court abused its discretion when it admitted the

       evidence from the search, because the search warrant issued for Edgehill

       Avenue lacked probable cause in violation of the Fourth Amendment to the

       United States Constitution and was unreasonable under Article I, Section 11 of

       the Indiana Constitution. He maintains that the trial court’s finding of probable

       cause is “inconsistent with this Court’s holdings in Merritt v. State, 803 N.E.2d

       257 (Ind. Ct. App. 2004) and State v. Vance, 119 N.E.3d 626 (Ind. Ct. App.

       2019)[,]” where this court held that the affidavits were not supported by

       probable cause. Appellant’s Br. at 19.


[19]   In response, the State points out that a properly conducted controlled buy has

       “long been held to provide sufficient probable cause to search the location

       where the buy occurred.” Appellee’s Br. at 18-19. The State distinguishes Merritt

       and Vance by noting that the probable cause affidavit here indicated a stronger

       connection between Warren, based on his involvement in the controlled buys,

       and the location to be searched. In reply, Warren argues that the evidence

       shows “a singular and transient presence at the residence” because the affidavit

       did not indicate whether Warren rented, owned, or occasionally stayed at

       Edgehill Avenue and that it did not allege how frequently the Audi was parked

       at that residence or whether Warren used the address for another purpose.

       Appellant’s Reply Br. at 8.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 10 of 31
[20]   The Fourth Amendment to the United States Constitution states:


                  The right of the people to be secure in their persons, houses,
                  papers, and effects, against unreasonable searches and seizures,
                  shall not be violated, and no Warrants shall issue, but upon
                  probable cause, supported by Oath or affirmation, and
                  particularly describing the place to be searched, and the persons
                  or things to be seized.


[21]   “The fundamental purpose of the Fourth Amendment is to protect the

       legitimate expectations of privacy that citizens possess in their persons, their

       homes, and their belongings.” Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct. App.

       2016) (internal quotation marks omitted). This protection has been extended to

       the states through the Fourteenth Amendment to the United States

       Constitution. Id. The text of Article I, Section 11 of the Indiana Constitution5

       contains nearly identical language. State v. Spillers, 847 N.E.2d 949, 953 (Ind.

       2006).


[22]   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. Smith v. State, 982 N.E.2d 393, 404 (Ind. Ct. App.




       5
           Article I, Section 11 similarly provides as follows:

                  The right of the people to be secure in their persons, houses, papers, and effects, against
                  unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon
                  probable cause, supported by oath or affirmation, and particularly describing the place to
                  be searched, and the person or thing to be seized.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020                      Page 11 of 31
       2013), trans. denied. For a valid warrant to issue, the police must set forth

       probable cause to an issuing magistrate. Carter v. State, 105 N.E.3d 1121, 1127

       (Ind. Ct. App. 2018), trans. denied. Probable cause is a “fluid concept incapable

       of precise definition . . . [and] is to be decided based on the facts of each

       case.” Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997). “[T]he central question

       in a probable cause determination is whether the affidavit presents facts,

       together with reasonable inferences, demonstrating a sufficient nexus between

       the suspected criminal activity and the specific place to be searched.” Carter,

       105 N.E.3d at 1128. “The task of the issuing magistrate is simply to make a

       practical, common-sense decision whether, given all the circumstances set forth

       in the affidavit . . . there is a fair probability that contraband or evidence of the

       crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238

       (1983)


[23]   Warren disputes that Edgehill Avenue is his residence, and citing Merritt and

       Vance, contends that the affidavit did not allege a sufficient connection between

       him and the place to be searched because the affidavit alleges only the

       information gathered from the October 4, 2018 controlled buy to link him to

       Edgehill Avenue. Merritt and Vance are distinguishable. In Merritt, we rejected

       a search warrant affidavit because it tied illegal drugs to a person who was

       selling them but not to the place to be searched. 803 N.E.2d at 260-61. In that

       case, the affidavit alleged only that “an unidentified black male” had been seen

       at the place to be searched with what appeared to be illegal drugs. Id. Without

       facts showing that the unidentified person with the drugs frequented, lived at, or

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 12 of 31
       stored drugs at the place to be searched, there was no probable cause to believe

       that evidence of a crime would be found there. Id.


[24]   In Vance, a confidential informant involved in three “state-sponsored buys of

       cocaine” contacted an individual described by law enforcement as the “Target”

       who was alleged in the probable cause affidavit to be Dustin Vance (“Vance”).

       119 N.E.3d at 628-29. We affirmed the trial court’s grant of Vance’s motion to

       suppress the evidence found in the residence, explaining:


               The key to the controlled buy is that the police are always in
               control of the situation. But the instant circumstances were not
               those of a previously-searched buyer entering a residence. Police
               did not maintain strict control in this alleged tri-level (buyer-
               dealer-source) transaction where the alleged middle-man, who
               was not searched and did not act as an agent of police, moved
               about on his own volition and police surveillance was
               interrupted. And although the cocaine ultimately produced
               would arguably have been “attributable to the target,” see id., the
               sole connection between Target and Vance’s residence, the
               premises to be searched, was that Target was seen leaving the
               residence. Viewing someone exit a residence would not lead a
               reasonable person to “believe that a search of those premises will
               uncover evidence of a crime.” Esquerdo, 640 N.E.2d at 1029.
               The search warrant, not supported by probable cause, was invalid
               under the Fourth Amendment.


       Id. at 631.


[25]   Here, unlike in Merritt and Vance, the search warrant shows a stronger

       connection between Warren’s drug dealing and Edgehill Avenue. Unlike

       Vance, there is no dispute that the controlled buys were anything other than


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 13 of 31
       properly controlled buys, and the CI identified Warren after the first controlled

       buy, providing law enforcement with an identifiable suspect. Moreover, during

       each controlled buy, law enforcement maintained surveillance on the CI and,

       unlike Vance, conducted both pre-buy and post-buy searches of the CI. Unlike

       Merritt and its singular instance of drug activity, the information related to

       Edgehill Avenue was obtained after law enforcement had conducted three

       previous controlled buys. The affidavit also noted that at each controlled buy

       the same dark blue Audi appeared and exchanged crack cocaine for the CI’s

       controlled buy funds. Appellant’s Conf. App. Vol. III at 133-36.


[26]   In concluding that the affidavit was supported by probable cause despite the

       omission from the affidavit that Warren was not an owner or a lessee of

       Edgehill Avenue, the trial court found:


               I mean, it doesn’t matter what Spillman says. I mean, not that I
               don’t have faith in Spillman, but maybe he did live at [2149
               Edgehill Avenue]. Maybe he’s got multiple homes. Maybe he is
               utilizing [2149 Edgehill Avenue] just to run the drugs, and you
               know, there is a variety of reason[s] so I don’t feel like omitting
               that from the affidavit was in anyway looking to - was what we
               categorize as omitted relevant information. I don’t think that the
               detectives were misleading this Court.


       Tr. Vol. I at 55-56. The totality of the evidence surrounding the four controlled

       buys, including (1) Warren’s identification by the CI after the first controlled

       buy, (2) the use of the same dark blue Audi to conduct each controlled buy with

       the CI, which was parked in the garage on the day the warrant was executed,

       (3) Detective Heath’s observing Warren exit the residence, check the mail and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 14 of 31
       return to the residence, and then leave from the garage in the dark blue Audi

       before the October 4, 2018 controlled buy, and (4) the attempt by law

       enforcement to track Warren after the October 4, 2018 controlled buy, show

       that the affidavit was not lacking in probable cause. Appellant’s Conf. App. Vol.

       III at 133-36. Moreover, the time between each controlled buy also suggests an

       ongoing operation and that a search of Edgehill Avenue would assist law

       enforcement in locating contraband. The affidavit provided probable cause for

       the issuance of the search warrant. See Bradley v. State, 4 N.E.3d 831, 842 (Ind.

       Ct. App. 2014) (stating that “[a]lthough one particular piece of evidence may

       not have conclusively established probable cause, the evidence in the affidavit,

       when fitted together and viewed collectively, is sufficient to support the trial

       court’s finding of probable cause under both the United States and Indiana

       Constitutions.”) (footnote omitted).


                                                     Staleness

[27]   We turn next to whether the information in the warrant was stale. Warren

       argues that “[e]ven if there was information from which to infer a connection to

       Edgehill Avenue on October 4, 2018, that information was stale by the issuance

       and service of the warrant.” Appellant’s Br. at 22. Warren contends it is

       speculative that he would still be at Edgehill Avenue or that there would be

       evidence of cocaine dealing there on October 15, 2018, when the warrant was

       issued because, without a connection to Edgehill Avenue, the previous

       controlled buys are not sufficient to show probable cause for ongoing drug

       dealing. Alternatively, he maintains that probable cause had dissipated by

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 15 of 31
       October 19, 2018, when the search warrant was executed, noting there was no

       evidence law enforcement continued surveillance or conducted any additional

       buys.


[28]   The State argues that this case involves ongoing criminal activity, and,

       reiterating its arguments that there was probable cause when the warrant was

       issued, maintains that the warrant was not stale. The State also argues that,

       although not included in the probable cause affidavit, law enforcement “linked

       the residence to the drug dealing as the phone used to arrange the controlled

       buys was kept in the residence for 74.2% of the pings after phone tracking began

       on September 6, 2018,” that officers “lost sight of the Audi near Edgehill after

       the second buy, and the phone’s movement was consistent with the traveling

       from 2149 Edgehill Avenue before the third buy and returning to 2149 Edgehill

       Avenue after that transaction” as relevant to whether probable cause existed

       four days after the warrant was issued. Appellee’s Br. at 24.


[29]   In reply, Warren argues that the number of times he dealt drugs is not relevant

       to the question of staleness, and there remains an insufficient connection

       between Warren and Edgehill Avenue because Warren disputes that he resides

       at Edgehill Avenue. He also argues that, because the information about the

       phone pings was not included in the affidavit, it is irrelevant to the staleness

       question.


[30]   The information contained in a search warrant affidavit must be timely.

       Mehring v. State, 884 N.E.2d 371, 377 (Ind. Ct. App. 2008), trans. denied. “The


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 16 of 31
       general rule is that stale information cannot support a finding of probable cause,

       but rather, only gives rise to mere suspicion.” Seeley v. State, 782 N.E.2d 1052,

       1060 (Ind. Ct. App. 2003), trans. denied, cert. denied 540 U.S. 1020 (2003).

       Nevertheless, the exact moment information becomes stale cannot be precisely

       determined. Id. We must look to the facts and circumstances of each case to

       determine whether the facts and information contained in the search warrant

       affidavit are stale. Mehring, 884 N.E.2d at 377.


[31]   In support of his position that the information in the probable cause affidavit

       from the last controlled buy on October 4, 2018 was stale when the warrant was

       issued on October 15, 2018, Warren cites to Ashley v. State, 251 Ind. 359, 241

       N.E.2d 264 (Ind. 1968) and State v. Haines, 774 N.E.2d 984 (Ind. Ct. App.

       2002). In Ashley, the Indiana Supreme Court held that a search warrant was

       defective where the affidavit on which it was based established probable cause

       that marijuana was at a residence on October 3, but the warrant was not issued

       until October 11, eight days later. 251 Ind. at 367, 241 N.E.2d at 269. In

       Haines, we found that “a crack cocaine purchase that took place two (2) to six

       (6) weeks prior to the probable cause hearing” to be too substantial a period of

       time to support a finding of probable cause that crack cocaine could be found at

       that residence. 774 N.E.2d at 990.


[32]   Here, in contrast to both Ashley and Haines, the four controlled buys occurred

       over a six-week period suggesting that the operation was more ongoing than the

       one-time marijuana purchase in Ashley or the two to six-week period separating

       the crack cocaine purchase and the probable cause hearing as in Haines. The

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 17 of 31
       multiple buys over the course of the investigation show the ongoing nature of

       drug dealing related to Warren and Edgehill Avenue. See Bennett v. State, 5

       N.E.3d 498, 508 (Ind. Ct. App. 2014) (noting, in the case of an affidavit which

       “merely recites an isolated crime[,]” that the “time between the occurrence and

       the issuance of the warrant will likely be crucial to a determination of probable

       cause” but “where the affidavit or testimony recites criminal activity of a

       protracted or continuous nature . . . such time is of less significance.” (citing

       Breitweiser v. State, 704 N.E.2d 496, 500 (Ind. Ct. App. 1999))). Moreover, as

       noted, the affidavit showed a sufficient link between Warren’s more protracted

       drug dealing and Edgehill Avenue in establishing probable cause for the

       warrant’s issuance. Under the facts and circumstances of this case, the

       information in the probable cause affidavit was not stale when the warrant was

       issued.


[33]   Warren also argues that the information in the warrant was stale by the time it

       was executed on October 19, 2018 and cites in support Huffines v. State, 739

       N.E.2d 1093, 1097 (Ind. Ct. App. 2000), trans. denied. Search warrants must be

       executed not more than ten days after the date of issuance. See Ind. Code § 35-

       33-5-7(b). This court has held that search warrants executed within the

       statutory ten-day period can be unconstitutional if the supporting probable

       cause dissipates before execution. Huffines, 739 N.E.2d at 1096-97.


[34]   We acknowledge that the record does not support that there was additional

       investigation or reassessment of the facts supporting probable cause in the

       warrant in the four days after its issuance. However, we find Huffines to be

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 18 of 31
       distinguishable as it involved only one prior drug buy from Huffines’s home.

       Thus, under these circumstances, we cannot say that the four-day delay in the

       warrant’s execution rendered the information in the warrant stale at the time of

       its execution. See Breitweiser, 704 N.E.2d at 501 (concluding that the initial

       probable cause supporting the search warrant’s issuance continued to exist at

       the time of the search, despite the three-day delay in its execution.)


[35]   Because the evidence in the affidavit was not stale and provided probable cause

       under both the United States and Indiana Constitutions,6 we find no error in the

       trial court’s admission of the evidence from the search of Edgehill Avenue.

       Because we conclude that the affidavit was supported by probable cause we

       need not address whether the good-faith exception applies.


                                    II.      Sufficiency of the Evidence
[36]   Warren next challenges the sufficiency of the evidence that he possessed

       cocaine with the intent to deal. When we review the sufficiency of evidence to

       support a conviction, we do not reweigh the evidence or assess the credibility of

       the witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.




       6
         The State argues Warren waived his arguments under the Indiana Constitution regarding the search’s
       reasonableness. Regardless of waiver, we find that the result is the same under the Indiana Constitution.
       Although Article I, Section 11 of the Indiana Constitution appears to have been derived from the Fourth
       Amendment and shares the same language, we interpret and apply it independently from Fourth
       Amendment jurisprudence. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). Rather than looking to
       federal requirements such as warrants and probable cause when evaluating Section 11 claims, we place the
       burden on the State to show that under the totality of the circumstances its intrusion was
       reasonable. Id. Based on the above facts, we find that the police acted reasonably, and therefore, there is no
       violation of the Indiana Constitution.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020                    Page 19 of 31
       denied. We consider only the evidence most favorable to the trial court’s ruling

       and the reasonable inferences that can be drawn from that evidence. Lock v.

       State, 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence in

       the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871,

       875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed if there is

       substantial evidence of probative value such that a reasonable trier of fact could

       have concluded the defendant was guilty beyond a reasonable doubt. Wolf v.

       State, 76 N.E.3d 911, 915 (Ind. Ct. App. 2017).


[37]   Warren argues the State failed to present sufficient evidence that he

       constructively possessed the cocaine found as a result of the search of Edgehill

       Avenue, contending that he did not have the intent to maintain control of the

       cocaine found in the kitchen. The State maintains the evidence sufficiently

       established that Warren had the requisite intent to maintain control of the

       cocaine and that his conviction should be affirmed. In reply, Warren asserts it

       was not apparent that the cocaine found in the kitchen was in plain view and

       that the State did not connect the cocaine found in the kitchen with the

       controlled buys.


[38]   Warren limits his challenge to his conviction for possession of cocaine with

       intent to deliver to whether he constructively possessed the cocaine. See Ind.

       Code § 35-48-4-1; Appellant’s Conf. App. Vol. II at 17. Possession of contraband

       may be either actual or constructive. See Gee v. State, 810 N.E.2d 338, 340 (Ind.

       2004). Actual possession occurs when a person has direct physical control over

       the item. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 20 of 31
[39]   There is no evidence in the record showing Warren had direct physical control

       over the cocaine, and Warren maintains that the State failed to present evidence

       that he had the requisite intent to constructively possess the cocaine. To

       establish constructive possession, the State must show that the defendant had

       both the intent and the capability to maintain dominion and control over the

       contraband. Id. Proof of a possessory interest in the premises on which the

       contraband is found is adequate to show the capability to maintain dominion

       and control over the item. Id. When possession of the premises is non-

       exclusive:


               [T]he inference of intent to maintain dominion and control over
               the drugs must be supported by additional circumstances
               pointing to the defendant’s knowledge of the nature of the
               controlled substances and their presence. The additional
               circumstances have been shown by various means: (1)
               incriminating statements made by the defendant, (2) attempted
               flight or furtive gestures, (3) location of substances like drugs in
               settings that suggest manufacturing, (4) proximity of the
               contraband to the defendant, (5) location of the contraband
               within the defendant’s plain view, and (6) the mingling of the
               contraband with other items owned by the defendant.


       Id. at 341 (citation and quotation marks omitted).


[40]   Warren was the sole occupant found in Edgehill Avenue at the time of the

       search, but Warren’s possession of Edgehill Avenue was nonexclusive. His

       uncle, Rodney Chapman, leased the premises, and the testimony presented at

       trial revealed that other individuals resided or spent time at Edgehill Avenue.

       Tr. Vol. I at 16; Tr. Vol. II at 22-23, 61; Tr. Vol. III at 177, 182. Therefore, we

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 21 of 31
       must determine whether Warren had the intent to maintain dominion and

       control over the cocaine.


[41]   Applying the factors in Gee to assess the intent to maintain dominion and

       control, the fact that the cocaine was found in the kitchen, which was the

       location where the powder cocaine was processed into crack cocaine, weighs in

       favor of the inference that Warren constructively possessed the cocaine. Tr.

       Vol. II at 24-25, 241. In the kitchen there was a pile of baking soda boxes,

       multiple boxes of baggies, a razor blade with residue, residue covered

       measuring cups, a digital scale, a microwave with cocaine residue inside, $283

       in currency on the counter, and a pink substance that later was determined to

       contain cocaine. Id. at 24-25, 30-32, 234-35; State’s Exs. 17-18, 21-23, 25-27, 55-

       56. The pink substance found in the kitchen that tested positive for cocaine was

       found on the countertop while some, including the “big chunk” of powder

       cocaine, was found in a drawer. Tr. Vol. II at 25, 235, 241; State’s Ex. 24.

       Likewise, in the kitchen there were also two credit union receipts in Warren’s

       name, one dated April 20, 2018 and the other dated October 18, 2018,

       suggesting that he stayed at Edgehill Avenue more frequently than as a guest.

       Tr. Vol. II at 31; State’s Exs. 22, 29. While the receipts were not intermingled

       with the cocaine, they were found in the kitchen, which in light of the cocaine,

       baking soda, baggies, razor blade and measuring cups with residue, and digital

       scale, shows their proximity to a setting suggestive of drug processing. See Gee,

       810 N.E.2d at 344 (explaining that the place where the contraband is found

       may serve as an additional circumstance to support the inference that a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 22 of 31
       defendant knew of the presence of the contraband and its illegal character and

       noting the significance of the kitchen as a gathering place.). When law

       enforcement executed the search warrant, Warren appeared to be coming from

       the master bedroom. Tr. Vol. II at 100. No cocaine was found in the master

       bedroom, although $6,351 in cash, a handgun under the bed, and a box

       containing Warren’s identification and wallet were found. Id. at 175-80; Tr.

       Vol. III at 67, 72-73; State’s Exs. 42, 44-46. Finally, the cell phone that was used

       to arrange the controlled buys with the CI and that had pinged to Edgehill

       Avenue 74% of the time over the period of September 6, 2018 through the

       warrant’s execution was found in the master bedroom, the room where Warren

       appeared to be exiting from at the time the warrant was executed. Tr. Vol. II at

       100, 178-80; Tr. Vol. III at 66. A reasonable trier of fact could conclude that the

       evidence presented was sufficient to show that Warren constructively possessed

       the cocaine. See Thompson v. State, 966 N.E.2d 112, 123 (Ind. Ct. App. 2012)

       (finding the evidence was sufficient to show the defendant constructively

       possessed the cocaine found in the residence.), trans. denied. Therefore, the

       evidence was sufficient to support Warren’s conviction.


                                     III. Denial of Continuance
[42]   Warren also contends that the trial court abused its discretion by denying his

       motion to continue the trial. He argues the trial court abused its discretion by

       finding that his motion to continue was a stalling tactic rather than a result of

       the State’s discovery violation and that his right to present a defense

       outweighed the State’s concerns about the CI’s safety in another case. Warren

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 23 of 31
       contends that he was prejudiced because the call detail report was critical to his

       defense of misidentification and to rebut the State’s evidence from the phone

       ping information, which showed how often the phone was at Edgehill Avenue.

       The State maintains that the trial court did not abuse its discretion in denying

       Warren’s motion to continue and that he cannot show prejudice. In reply,

       Warren argues the State is overlooking the discovery violation that led to his

       motion and that he was prejudiced.


[43]   Warren does not argue that he was entitled to a continuance by statute pursuant

       to Indiana Code section 35-36-7-1. Rulings on non-statutory motions for

       continuance lie within the discretion of the trial court and will be reversed only

       for an abuse of that discretion and resultant prejudice. Jackson v. State, 758

       N.E.2d 1030, 1033 (Ind. Ct. App. 2001). An abuse of discretion occurs when

       the decision is clearly against the logic and effect of the facts and circumstances

       before the trial court. Id. Continuances to allow additional time for

       preparation are generally disfavored in criminal cases. Baxter v. State, 522

       N.E.2d 362, 366 (Ind. 1988).


[44]   After hearing argument by Warren’s counsel and from the State on Warren’s

       motion to continue, the trial court denied the motion, finding the State’s failure

       to provide the call detail report was inadvertent and that the information in the

       call detail report was not exculpatory. Tr. Vol. I at 69, 71-72, 75. It also found

       the State would be prejudiced if a continuance was granted, because the CI was

       in danger due to a different case unrelated to Warren and that Warren’s motion

       “in some sort of fashion . . . is a stalling tactic” that was prejudicial to the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 24 of 31
State’s case. Id. at 75. Before the commencement of Warren’s August 21, 2019

jury trial, the trial court had granted three continuances: (1) a January 21,

2019, defense motion to continue based on continuing discovery in which

Warren requested to continue the jury trial; (2) a February 18, 2019, defense

motion to continue due to a police officer’s unavailability in which Warren

requested to continue the suppression hearing and the jury trial; and (3) an

April 19, 2019 motion to continue filed by the prosecutor due to a police

officer’s unavailability in which the prosecutor requested to continue Warren’s

jury trial. Appellant’s Conf. App. Vol. II at 5-6, 9, 66, 80, 104. We acknowledge

that the phone call detail report was a crucial piece of evidence and Warren is

correct in citing that the preferred remedy for a discovery violation is a

continuance; however, we are not convinced that the trial court abused its

discretion such that Warren was prejudiced by the disclosure of the call detail

report nine days before the trial. Warren was alone at Edgehill Avenue at the

time of the search, and the phone was found in the master bedroom along with

Warren’s wallet and identification. Tr. Vol. II at 22-23, 100, 178-80. Warren

vigorously asserted a defense of misidentification at trial, calling multiple

witnesses to build his case, and it is speculation as to the impact of additional

review of the call detail report on the trial. Warren has not shown that the trial

court abused its discretion in denying his motion to continue the trial or that he

was prejudiced by the denial.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 25 of 31
                                    IV. Supplemental Argument
[45]   Finally, Warren argues that the trial court abused its discretion by allowing

       supplemental arguments when the jury reached an impasse. The jury

       deliberated for nearly six hours, and the trial court related the following

       interaction it had with the jury before ordering supplemental argument:


               So, I had a note from the jurors. It is 10:50 p.m. at night. The
               note came from my officer. The note says we have come to an
               agreement on Count – on one count which is Count Six, guilty.
               On count one through five, we currently – on count one through
               five we cannot currently come to an agreement. We are hung up
               on the intentionally and knowingly on count one. Counts two
               through five we are five to seven towards not guilty and getting
               nowhere. Then I instructed my officer, Officer Todd, to say you
               have all the law and evidence before [sic], please continue to
               work, Judge Davis. I sent that back after conferring with both
               Mr. Watkins and Ms. Yeager via the telephone. When I
               returned, I sent back my own personal handwritten note that
               states pursuant to the Indiana Rules I have the ability to allow
               the attorneys to give additional arguments on the above legal
               issue which the above legal issue is we are hung up on the
               knowingly and intentionally in count one. I said would it be
               helpful if I allow the attorneys to argue, and they sent back a note
               saying yes that would be helpful. Intentionally and knowingly
               possess with intent to deliver and what is constructive transfer.
               So with that, I am operating under rule 28 of the jury rules which
               states that if the jury advises the Court that it has reached an
               impasse in its deliberations the Court may, but only in the
               presence of counsel inquire the jurors to determine whether or
               how the Court and counsel can assist them in their deliberative
               process. After receiving the jurors’ response, if any, which I
               received their response, the Court after consultation with counsel
               may direct further proceedings to occur if appropriate.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 26 of 31
       Tr. Vol. III at 248-49. Responding to a written communication from the jury

       implicates two protections—a common law protection and a statutory

       protection. Dickenson v. State, 835 N.E.2d 542, 550 (Ind. Ct. App. 2005) (citing

       Bouye v. State, 699 N.E.2d 620, 627 (Ind.1998)). Warren does not argue that the

       statutory protection is implicated and instead argues that ex parte

       communication occurred but limits his arguments to the common law

       protections under the Sixth Amendment to the United States Constitution and

       Indiana Jury Rule 28. The State responds that Warren waived the issue of

       whether the trial court’s communication to the jury was an ex parte

       communication because he did not object on that basis and objected solely on

       the basis that “additional argument on constructive possession would unfairly

       force him to retry the case in five minutes.” Appellee’s Br. at 40. It argues that

       the record is ambiguous as to whether an ex parte communication occurred,

       and that if any error occurred in the trial court’s communication with the jury,

       the error is harmless because the trial court did not provide substantive

       instruction to the jury. In reply, Warren argues that he adequately preserved

       the ex parte communication issue because he was never given the opportunity

       to object, and that the State did not rebut the presumption of harm from the

       trial court’s communication with the jury.


[46]   The Indiana Supreme Court has set forth an established procedure for the trial

       court to follow when the deliberating jury makes a request for additional

       guidance during its deliberations. Dickenson, 835 N.E.2d at 551-




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 27 of 31
       52 (citing Stephenson v. State, 742 N.E.2d 463, 492 (Ind. 2001), cert. denied, 534

       U.S. 1105 (2002)), trans. denied. Specifically, the trial court should:


               notify the parties so they may be present in court and informed of
               the court’s proposed response to the jury before the judge ever
               communicates with the jury. When this procedure is not
               followed, it is an ex parte communication and such
               communications between the judge and the jury without
               informing the defendant are forbidden. However, although an ex
               parte communication creates a presumption of error, such
               presumption is rebuttable and does not constitute per se grounds
               for reversal. When a trial judge responds to the jury’s request by
               denying it, any inference of prejudice is rebutted and any error
               deemed harmless.


       Id. at 551 (quoting Stephenson, 742 N.E.2d at 492).


[47]   Here, the parties dispute whether the trial court’s statement shows that it

       communicated ex parte with the jury. It is not clear from the trial court’s

       statement what the trial court specifically discussed on the telephone with

       Warren’s counsel and the prosecutor. However, we agree with Warren that the

       trial court’s statement supports the conclusion that two notes were delivered

       and that there is nothing in the statement to show that the second handwritten

       note indicating the option of having the parties provide additional argument

       was done in consultation with the parties. Therefore, the second note was an




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 28 of 31
       ex parte communication, which created a presumption of error.7 See Dickenson,

       835 N.E.2d at 551. The trial court did not supplement the jury’s instructions

       via the handwritten note; rather, the court stated that Indiana Jury Rule 28

       could be used to allow the parties to provide additional argument. Therefore,

       the inference of prejudice was rebutted and any error resulting from the

       communication was harmless.


[48]   We turn next to Warren’s argument that it was reversible error for the trial

       court to order supplemental closing arguments without his consent. The State

       maintains that the trial court properly ordered additional argument under

       Indiana Jury Rule 28 over Warren’s objection. Indiana Jury Rule 28 provides:


               If the jury advises the court that it has reached an impasse in its
               deliberations, the court may, but only in the presence of counsel,
               and, in a criminal case the parties, inquire of the jurors to
               determine whether and how the court and counsel can assist
               them in their deliberative process. After receiving the jurors’
               response, if any, the court, after consultation with counsel, may
               direct that further proceedings occur as appropriate.


       Regarding Indiana Jury Rule 28, the Indiana Supreme Court has stated that in

       certain circumstances and “with advance consultation with the parties and an

       opportunity to voice objections” a trial court may, among a list of examples,




       7
         We agree with Warren that he did not waive the ex parte communication issue on appeal because he did
       not have an opportunity to make a contemporaneous objection. See Ind. Trial Rule 46 (“[I]f a party has no
       opportunity to object to a ruling or order at the time it is made, the absence of an objection does not
       thereafter prejudice him.”)

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020                 Page 29 of 31
       “allow counsel to briefly address the jury’s question in short supplemental

       arguments” to the jury. Tincher v. Davidson, 762 N.E.2d 1221, 1224 (Ind. 2002).


[49]   Warren does not claim that the trial court’s authority to order additional

       argument on the intent element of constructive possession is not authorized by

       Jury Rule 28, nor does he challenge whether the jury was at an impasse.8

       Instead, he cites to the concurring opinion in Tincher that the resolution of a

       jury question should require the consent of both parties. 762 N.E.2d at 1226-

       27. The State observes that the jury rule does not require the consent of the

       parties to order supplemental argument. We agree with the State. As noted,

       the Indiana Supreme Court has stated that the trial judge may use the

       procedures of Jury Rule 28 to assist the jury in its deliberations, including an

       opportunity for the parties to voice objections and for the use of supplemental

       argument. See Tincher, 762 N.E.2d at 1224. Warren objected to the use of

       supplemental argument, and, over his objection, the trial court ordered

       supplemental argument. We cannot say that the trial court abused its discretion

       in ordering the parties to provide supplemental argument. See Parks v. State, 921

       N.E.2d 826, 831-32 (Ind. Ct. App. 2010) (concluding that the trial court did not




       8
         Jury Rule 28 applies only when the jury is at an impasse. See generally Ronco v. State, 862 N.E.2d 257 (Ind.
       2007). Alternatively, Indiana Code section 34-36-1-6 gives judges some discretion to assist the jury in its
       deliberation and in pertinent part provides that after the jury retires for deliberation, if “the jury desires to be
       informed as to any point of law arising in the case” that “the information required shall be given in the
       presence of, or after notice to, the parties or the attorneys representing the parties.”

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020                          Page 30 of 31
       err by invoking Indiana Jury Rule 28 and that replaying testimony over

       defendant’s objection was not an abuse of discretion resulting in prejudice.).


[50]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2256 | June 18, 2020   Page 31 of 31
