                                                                                  FILED
                                                                              Oct 10 2018, 8:44 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Donald E. C. Leicht                                        Curtis T. Hill, Jr.
Kokomo, Indiana                                            Attorney General of Indiana
                                                           Henry A. Flores, Jr.
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Bryan Stone,                                               October 10, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           34A02-1710-CR-2514
        v.                                                 Appeal from the Howard Superior
                                                           Court
State of Indiana,                                          The Honorable William C.
Appellee-Plaintiff.                                        Menges, Judge
                                                           Trial Court Cause No.
                                                           34D01-1406-FA-453



Riley, Judge.




Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018                           Page 1 of 11
                                  STATEMENT OF THE CASE
[1]   Appellant-Defendant, Bryan Stone (Stone), appeals his conviction for two

      counts of dealing in a synthetic drug or synthetic drug lookalike substance, both

      as Class D felonies, Ind. Code §§ 35-48-4-10.5 (b)(2); -(c)(1)(B). 1


                                                       ISSUES
[2]   Stone presents two issues for our review which we restate as:


               1) Whether his conviction on two counts of dealing in synthetic

               drug or synthetic drug lookalike substance violates double

               jeopardy principles; and


               2) Whether he was denied a fair trial by the admission of

               evidence stemming from the search of his backpack.



[3]   We affirm in part, reverse in part, and remand with instructions.


                        FACTS AND PROCEDURAL HISTORY
[4]   On June 12, 2014, Officer Alex Harper (Officer Harper) of the Kokomo Police

      Department responded to a call of a domestic battery in progress in the area of

      Apperson and Elm streets involving a black male wearing a striped shirt

      choking a black female. Officer Harper responded to a home at 1030 Apperson



      1
        The synthetic drug statute was substantially revised by legislation that went into effect on July 1, 2014, after
      Stone was charged in this matter.

      Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018                          Page 2 of 11
      where he observed Stone, who fit the description provided in the call, standing

      with a black female. Officer Harper exited his car to approach them. Stone

      saw Officer Harper, turned around, and quickly walked away towards the back

      of the home. As Stone walked away, Officer Harper saw that Stone was

      carrying a black and red backpack. Officer Harper believed that Stone was

      attempting to flee, so he followed him. As Officer Harper rounded the corner

      of the home, Stone was walking back towards him, albeit without the backpack.


[5]   Officer Harper asked Stone for his name. Stone appeared to be very nervous.

      He was shaking and kept repeating, “my name?” (Transcript Vol. I, p. 120).

      Stone eventually identified himself. Officer Harper spoke to Stone and the

      female with him, both of whom denied that they had been arguing or that a

      battery had taken place.


[6]   As Officer Harper spoke with Stone, additional officers arrived to assist,

      including Officer Jason Maynard (Officer Maynard). Officer Maynard made

      initial contact with Officer Harper and then began to walk around the home,

      which appeared to be vacant. In Officer Maynard’s experience, it was not

      uncommon for citizens to dump contraband if law enforcement had been

      summoned. Officer Maynard walked to the side of the property where there

      was a stairwell. At the bottom of the stairwell perched on top of trash and

      debris was a black and red backpack. Officer Maynard yelled to Officer Harper,

      who was approximately twenty feet away out of Officer Maynard’s line of sight

      talking to Stone, and inquired whether Stone had been carrying a backpack.



      Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018   Page 3 of 11
      Officer Harper confirmed that Stone had been carrying the backpack Officer

      Maynard had found.


[7]   The backpack contained over 300 packets of synthetic marijuana, known as

      “spice.” (Tr. Vol. I, p. 83). Some of the packets of synthetic marijuana were

      labeled “Caution, [S]uper-[S]trong [I]ncense.” (Tr. Vol. I, p. 87). Others were

      labeled “Fidel Mix.” (Tr. Vol. I, p. 88). The backpack also contained two

      prescription pill bottles that did not bear Stone’s name. Officer Harper detained

      Stone by placing him in handcuffs. After Officer Harper had provided Stone

      with his Miranda advisements, Stone denied that the backpack belonged to him.

      In the area where the backpack had been in the stairwell, Officer Maynard

      subsequently found a plastic bag containing eleven smaller baggies of a white

      powdery substance that field tested positive for cocaine.


[8]   On June 13, 2014, the State filed an Information charging Stone with dealing in

      cocaine, a Class A felony; possession of cocaine, a Class A felony; and

      unlawful possession or use of a legend drug, a Class D felony. On September

      24, 2014, the State filed an amended Information reflecting the fact that the

      white powdery substance found was heroin and charging Stone with dealing in

      a narcotic drug, a Class B felony; and possession of a narcotic drug, a Class B

      felony. The State also charged Stone with two identical counts of dealing in a

      synthetic drug or synthetic drug lookalike substance, both as Class D felonies,

      in relevant part, as follows:


              [O]n or about June 12, 2014 at or near Apperson and Elm,
              Kokomo in Howard County, State of Indiana, [Stone] did

      Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018   Page 4 of 11
              knowingly or intentionally possess with the intent to deliver a
              synthetic drug or synthetic drug lookalike substance, to-wit:
              XLR11 in an amount greater than 2 grams[.]


      (Appellant’s App. Vol. II, pp. 48-49). On June 13, 2014, while Officer Harper

      collected a sample of Stone’s DNA after his arrest, Stone told Officer Harper

      that the spice found in the backpack was his.


[9]   On September 9, 2014, Stone filed a motion to suppress that the trial court

      denied on December 5, 2014. Stone’s jury trial took place on May 19, 22-23,

      2017. During its closing arguments, the State argued that


              [t]here isn’t any question from the evidence that you heard that
              those packages that you saw, Exhibits, I believe it’s 5 and 6, are
              synthetic drugs. They’re a synthetic drug called XLR11. There
              were two different, I believe the evidence is there were two
              packages, one was Fidel Mix which the chemist determined had
              more than 2 grams of this XLR11, and the other one was
              Caution Incense, and the chemist determined that one had more
              than 2 grams of XLR11, so when they looked at the
              Informations, you have two Informations, Counts V and VI,
              which may appear to you to be identical. I did misstate, the
              Informations are IV and V, (inaudible) V, they appear to be
              identical but the elements supporting them is not the same
              because one is supported by the Fidel Mix with more than 2
              grams, and the other one was supported by the Caution with
              more than 2 grams. And I point that out so you don’t get
              confused and then we have all of the remaining 200 or 305
              packages which were not sent to the lab.


      (Tr. Vol. I, pp. 189-90). During his closing statement, Stone’s defense counsel

      argued that


      Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018   Page 5 of 11
                 [t]here is no doubt that Bryan Stone possessed the spice. There is
                 no doubt that this bag contained whoever you believe, 200 or 300
                 bags of spice and you don’t use that for personal use. That was
                 apparent itself. He possessed it, possessed the duffle bag that it
                 was in, and I’m not going to sit up here and (inaudible) by telling
                 (inaudible) hopefully (inaudible).


       (Tr. Vol. I, p. 198). The jury found Stone not guilty of all charges apart from

       the two synthetic drug charges. On July 20, 2017, the trial court sentenced

       Stone to 1,095 days for each conviction, to be served concurrently.


[10]   Stone now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION
                                                   I. Double Jeopardy

[11]   Stone argues that his convictions for two counts of dealing in a synthetic drug

       or synthetic drug lookalike substance violate Article 1, Section 14, of the

       Indiana Constitution. 2 Specifically, Stone contends that his convictions violate

       Indiana’s Double Jeopardy Clause because “[d]ividing the ‘307 bags of spice’

       found at one time from one source, diving it into components, each ‘greater

       than 2 grams’ does not legally create multiple crimes.” (Appellant’s Br. at 12)

       (quotation marks in the original). We review challenges under Indiana’s

       Double Jeopardy Clause de novo. Bennett v. State, 5 N.E.3d 498, 515 (Ind. Ct.

       App. 2014), reh’g denied, trans. denied.




       2
           Stone does not argue that his convictions violate the federal Double Jeopardy Clause.


       Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018                 Page 6 of 11
[12]   For purposes of Article 1, Section 14, of the Indiana Constitution, two or more

       offenses are the same offense if, “with respect to either the statutory elements of

       the challenged crimes or the actual evidence used to convict, the essential

       elements of one challenged offense also establish the essential elements of

       another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)

       (emphasis omitted).


[13]   In Campbell v. State, 734 N.E.2d 248 (Ind. Ct. App. 2000), this court addressed

       the issue of whether our state’s Double Jeopardy Clause prohibited multiple

       convictions for possession where a defendant simultaneously possessed separate

       quantities of the same illegal drug. After a confidential informant made a

       controlled buy from him, Campbell was arrested in front of his home and was

       found to have cocaine on his person. Id. at 250. Campbell’s home was

       subsequently searched pursuant to a search warrant, and cocaine was also

       found there. Id. The State charged Campbell with two counts of possession of

       cocaine for having possessed it on his person and for having possessed it in his

       home. Id. This court held that Campbell could only be convicted of one count

       of cocaine possession because he had simultaneously possessed the cocaine in

       his home and on his person. Id. The Campbell court found a separate

       concurring opinion by Judge Shields on rehearing in Young v. State, 564 N.E.2d

       968, 973 (Ind. Ct. App. 1991) to be persuasive:


               Young’s double jeopardy protection is breached by multiple
               convictions based upon the location Young had the cocaine
               which he simultaneously possessed, be it in part in his left
               trousers’ pocket and in part in his right trousers’ pocket, or in part

       Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018   Page 7 of 11
               in his right trousers’ pocket and in part underneath the car seat
               on which he sat, or, as here, in part on his person and in part in a
               spray can in his car from which he was removed immediately
               following the vehicle's stop. The essence of the offense of
               possession is the possession. Thus, just as the simultaneous
               possession of a stolen watch and a stolen wallet constitutes but
               one offense of theft, so too, the possession of the cocaine on a
               particular occasion is but one offense; the effect of the
               accumulated quantity possessed is to aggravate the possession
               rather than to break it into multiple possessions.


       Campbell, 734 N.E.2d at 250-51.


[14]   In the more recent case of Elvers v. State, 22 N.E.3d 824 (Ind. Ct. App. 2014),

       this court addressed the issue of whether the simultaneous possession of

       different brands of spice could support the imposition of multiple charges for

       possession with intent to deliver. Id. at 832-33. The State had seized 10.62

       grams of “Kryp2Nite Original” packages containing the prohibited synthetic

       drug JWH-122 from Elvers’ bathroom closet. Id. at 832. The State had also

       seized 3.89 grams of spice products containing JWH-122 bearing the brand

       names “Spike Max” and “K4Silver” from Elvers’ gun safe. Id. The State

       charged Elvers with two counts of dealing in substances containing JWH-122 in

       excess of two grams. Id. Elvers argued that the separate charges indicated that

       he had been charged for possession of the specific spice brand names rather

       than with possession of the prohibited compound JWH-122. Id. at 833. We

       agreed and held that the State should have only charged Elvers with one count

       of dealing in a synthetic drug because Elvers effectively had been convicted of



       Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018   Page 8 of 11
       two violations arising from his single act of simultaneously possessing multiple

       products containing JWH-122. Id.


[15]   Here, the State charged Stone with two identical counts of possessing with

       intent to deliver the prohibited compound XLR11 in an amount greater than

       two grams on June 12, 2014. Both charges stemmed from his simultaneous

       possession of two packets of spice each containing over two grams of XLR11

       on June 12, 2014, that were found in his backpack. In light of Campbell and

       Elvers, we hold that the State was not permitted to break that simultaneous

       possession into multiple possessions based solely upon the fact that the packets

       containing the spice bore different brand names, which was the only

       distinguishing fact argued by the State at trial to support the two separate

       charges. Stone’s convictions for both counts of dealing in a synthetic drug or

       synthetic drug lookalike substance violated Indiana’s prohibition against double

       jeopardy. Accordingly, we reverse and remand to the trial court with

       instructions to vacate one of Stone’s convictions.


                                                II. Backpack Search

[16]   Stone next contends that the search of his backpack violated his rights under the

       Fourth Amendment of the United States Constitution and Article 1, Section 11,

       of the Indiana Constitution. Ordinarily, we review a trial court’s decisions on

       the admission of evidence for an abuse of the trial court’s discretion. Fansler v.

       State, 100 N.E.3d 250, 253 (Ind. 2018). However, such decisions are not subject

       to review unless a contemporaneous objection was made at trial, regardless of

       the fact that the defendant filed a pretrial motion to suppress. Jackson v. State,

       Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018   Page 9 of 11
       735 N.E.2d 1146, 1152 (Ind. 2000). Stone did not object at trial to the

       admission of the evidence garnered from the search of his backpack. As he

       recognizes on appeal, Stone’s claim of error is waived unless he can establish

       that the admission of the challenged evidence constituted fundamental error.


[17]   The doctrine of fundamental error is narrow and may lead to reversal only

       where there has been a “‘blatant violation of basic principles, the harm or

       potential for harm is substantial, and the resulting error denies the defendant

       fundamental due process.’” Mamon v. State, 6 N.E.3d 488, 490 (Ind. Ct. App.

       2014) (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). In Brown v.

       State, 929 N.E.2d 204 (Ind. 2010), our supreme court noted that the admission

       of evidence as the result of an improper search or seizure does not

       automatically require reversal, and indeed, does not rise to the level of

       fundamental error where there is “no claim of fabrication of evidence or willful

       malfeasance” on the part of officers or where there is no contention that the

       “evidence is not what it appears to be.” Id. at 207. The fundamental error

       doctrine will, therefore, only be applicable in “‘egregious circumstances.’” Id.

       (citation omitted).


[18]   Here, Stone’s factual guilt is not at issue, as he conceded at trial that he

       possessed the backpack and the spice. On appeal, Stone does not allege, let

       alone establish, that evidence was fabricated or that the challenged evidence

       was not what it appeared to be. Stone seemingly intimates that at least one law

       enforcement officer involved in this case acted improperly, as he suggests that

       Officer Harper had an ulterior motive for searching his backpack based on his

       Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018   Page 10 of 11
       prior knowledge of Stone. However, our review of the record does not disclose

       any willful malfeasance by law enforcement in this case. The claimed error

       does not rise to the level of fundamental error, and we decline to review the

       admissibility of the evidence garnered from the search of Stone’s backpack.

       Mamon, 6 N.E.3d at 490 (finding no fundamental error and declining to review

       the merits of Mamon’s Fourth Amendment and Article 1, Section 11, claims

       based on evidence garnered from a traffic stop).


                                              CONCLUSION
[19]   Based on the foregoing, we conclude that Stone waived his claim of error based

       upon the admission of evidence gathered from the search of his backpack but

       also conclude that his conviction for two counts of dealing in a synthetic drug

       or synthetic lookalike drug violated double jeopardy principles. We reverse in

       part and remand this matter to the trial court to vacate one of Stone’s

       convictions.


[20]   Affirmed in part, reversed in part, and remanded with instructions.


[21]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Opinion 34A02-1710-CR-2514 | October 10, 2018   Page 11 of 11
