                                                                          FILED
                                                                    Dec 07 2018, 10:47 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mark K. Leeman                                            Curtis T. Hill, Jr.
      Leeman Law Office                                         Attorney General of Indiana
      Logansport, Indiana                                       Ian McLean
                                                                Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jacob Lee Silvers,                                        December 7, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-1126
              v.                                                Appeal from the Cass Superior
                                                                Court
      State of Indiana,                                         The Honorable James K.
      Appellee-Plaintiff                                        Muehlhausen, Judge
                                                                Trial Court Cause No.
                                                                09D01-1711-F6-433



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Jacob Lee Silvers was convicted of several drug-related crimes. He now

      appeals, arguing that the trial court erred in denying his motion to continue the


      Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018                    Page 1 of 12
      trial and that the evidence is insufficient to support two of his convictions. The

      State concedes that the evidence is insufficient to support one of the

      convictions. Although we reverse that conviction and remand for resentencing,

      we affirm the trial court on the other issues.



                             Facts and Procedural History
[2]   In October 2017, Silvers and Rachelle Gerhart were romantically involved and

      regularly used drugs together, including heroin, methamphetamine, and

      marijuana. On October 31, Rachelle, driving her silver Pontiac Grand Am, and

      Silvers picked up Dustin Ecklebeck, and the trio drove to Kokomo to purchase

      heroin from Dustin’s dealer. After purchasing the heroin, Rachelle and Silvers

      dropped off Dustin at his house. As they dropped him off, Silvers’s mother,

      Michelle (who was staying at Dustin’s house), ran out of the house yelling at

      them not to leave her because her boyfriend (Scott Powers) had just called the

      police. Tr. Vol. II p. 193. Silvers ordered Rachelle, who was preparing a

      needle to inject herself with heroin, to drive away without his mother; however,

      he changed his mind and told Rachelle to wait on her. When Michelle got in

      the car, she was “frantic.” Id.


[3]   At about the same time, Cass County Sheriff’s Deputy Scott Turney received a

      dispatch to be on the lookout for a silver Pontiac Grand Am. Shortly

      thereafter, Deputy Turney passed a silver Pontiac Grand Am. As he passed the

      car, the three occupants—two females and one male—all stared at him, which

      was unusual. When Rachelle, Silvers, and Michelle saw the brake lights on the

      Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018     Page 2 of 12
      police car illuminate, Silvers and Michelle ordered Rachelle to “hurry up and

      go.” Id. at 194. Deputy Turney radioed another officer in the area, Detective

      Thomas Heflin, that the Grand Am had just passed him and that he was going

      to turn around to catch up to it. Detective Heflin positioned himself to

      intercept the car and waited. Soon thereafter, Detective Heflin observed the

      Grand Am abruptly pull into a Quonset hut (a semi-circle building made of

      sheet metal, commonly used during World War II). Detective Heflin pulled in

      behind the car and activated his emergency lights. Silvers exited the front

      passenger-side door and fled on foot but was soon apprehended.


[4]   The Grand Am was searched, and numerous items were found, including a

      burnt marijuana cigarette in the front passenger-side door and a blue plastic

      straw with white residue in the center console (Exhibit 5). Officers also found a

      Ziploc bag containing brown residue (Exhibit 12) and a spoon (Exhibit 8) in

      Rachelle’s purse as well as a rock of heroin on her person (Exhibit 6). It was

      later determined that Exhibit 5 contained heroin, Exhibit 6 contained heroin

      and cocaine, and Exhibit 12 contained heroin. Ex. 18 (lab results).


[5]   The State ultimately charged Silvers with Count 1: Level 6 felony possession of

      cocaine (for the heroin that also contained cocaine, Exhibit 6), Count 2: Class

      A misdemeanor resisting law enforcement, Count 3: Class B misdemeanor

      possession of marijuana, Count 4: Class B misdemeanor visiting a common

      nuisance, Count 5: Class C misdemeanor possession of paraphernalia (straw or

      spoon), and Count 6: Level 6 felony possession of a narcotic drug (heroin).



      Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018       Page 3 of 12
[6]   Silvers was in the Cass County Jail while awaiting trial. On the morning of

      March 5, 2018, the day before the jury trial was set to begin, the Cass County

      jail commander gave the deputy prosecutor an updated recording of Silvers’s

      jail calls on CD. When the deputy prosecutor began listening to the calls, he

      recognized defense counsel’s voice. The deputy prosecutor turned off the

      recording and went to the Cass County Prosecutor. After consulting the

      Indiana Prosecuting Attorneys Council, the State requested a hearing, which

      was held later that day. During the hearing, the deputy prosecutor told the trial

      court that when he started listening to the first call on the CD, he recognized

      defense counsel’s voice “within a few seconds.” Tr. Vol. II p. 5. He then

      “immediately” stopped the recording and moved on to the second call. He

      listened to a “few seconds” of that call and again recognized defense counsel’s

      voice. Id. He then stopped the recording. The deputy prosecutor told the trial

      court that he heard “nothing of substance relating to the case” and that he

      wanted to give the CD, which was the only copy that he was aware of, to the

      trial court for safekeeping. Id. The trial court told the parties that since it had

      heard nothing that appeared to affect the trial, the matter would be more fully

      addressed at trial the next day. Later that night, Silvers filed a motion to

      dismiss the charges based on the State’s “outrageous conduct” in recording

      protected attorney-client conversations. Appellant’s App. Vol. II p. 86.


[7]   The next day, the parties met for a continued hearing as well as for a hearing on

      Silvers’s motion to dismiss. In addition, Silvers orally requested a continuance

      so that he could depose the jail commander, “anybody else at the jail that’s


      Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018        Page 4 of 12
      listening to these conversations,” and “everyone at the prosecutor’s office who

      may have listened to this.” Tr. Vol. II p. 15. The State then presented evidence

      of how conversations are recorded in the Cass County Jail. First, an inmate

      can place a phone call in the cell pod; these phone calls are recorded (unless the

      phone call is to an attorney who has asked the jail to have his/her phone

      number blocked from recording). Second, there is a public visitation room,

      where visitors can see the inmates through plexiglass and talk to them using a

      phone; these calls, which are set up for ten minutes, are audio recorded. Last,

      there is an attorney meeting room where attorneys can privately meet with their

      clients; these conversations are not audio recorded.


[8]   Regarding the specifics of this case, the jail commander testified under oath that

      on the morning of Monday, March 5, he “pulled” Silvers’s calls from Friday

      through the weekend and gave them to the deputy prosecutor. Id. at 32. He

      verified that the CD was not blank by clicking on the first file. As soon as he

      heard the advisement that the call may be recorded, he stopped the CD and did

      not listen to any more. Id. at 33, 38. He did not listen to any of the substance

      of the calls. Id. at 39. The assistant jail commander—the only other person

      with access to the system that records the calls—testified under oath that in

      helping the prosecutor’s office figure out in this case the wording of the

      advisements for each type of call, he listened to the CD up to the point where

      the advisement started and then “hit stop.” Id. at 53. He also did not listen to

      any of the substance of the calls. Id. Defense counsel cross-examined both

      witnesses. In addition, the State admitted an affidavit from the deputy


      Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018         Page 5 of 12
       prosecutor, who said that he “did not hear anything substantively about the

       case during the few seconds the recording was played” and that he “stopped the

       playback immediately upon recognizing the defense attorney was on the call.”

       Ex. 1A. The deputy prosecutor also said that he has “no specific knowledge of

       any other person listening to the CD in question. Neither [his] co-counsel nor

       other individuals in the Cass County Prosecutor’s Office have listened to the

       CD.” Id.


[9]    At the end of the hearing, the trial court denied Silvers’s motions to dismiss and

       to continue:


               [The jail commander] and [assistant jail commander] are the only
               two at the jail that would have had an opportunity to hear it,
               both of them denied hearing it. [T]hen it was transmitted to [the
               deputy prosecutor], I have his affidavit saying that he didn’t
               listen to it and nobody else in the Prosecutor’s office listened to
               it. So what’s left?


       Tr. Vol. II p. 58.


[10]   The jury trial then began, and Silvers was found guilty as charged. The day

       after trial ended, the parties, pursuant to a stipulation reached before the case

       was submitted to the jury, returned to the courtroom so that the State could

       introduce evidence to supplement the record regarding the jail recordings. Tr.

       Vol. III p. 6. According to the stipulation, the evidence was to be treated if it

       was admitted into evidence at the time the trial court ruled on Silvers’s motions

       to dismiss and to continue. Id. at 25-26. The jail commander testified that

       upon further investigation, he learned that on Friday, March 2, defense counsel
       Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018      Page 6 of 12
       went to the Cass County Jail and asked to speak with Silvers, but the attorney

       meeting room was in use at the time. Id. at 9; Ex. 31 (audio recording of

       defense counsel talking on a speaker to someone in the control room and asking

       to speak with Silvers). Defense counsel was told that he would have to use a

       phone in the public visitation room, and defense counsel agreed to talk to

       Silvers there. Tr. Vol. III p. 9; Ex. 32 (video of defense counsel meeting Silvers

       in public visitation room on Friday). Defense counsel then cross-examined the

       jail commander. Finally, the State admitted Exhibit 30, which is the CD that

       the jail commander made of Silvers’s calls. Tr. Vol. III pp. 8, 15, 24. Defense

       counsel did not object to the admission of Exhibit 30. Indeed, defense counsel

       invited the trial court to listen to Exhibit 30. Id. at 15 (defense counsel: “what

       matters is what is on the tape which you have number 30 which was between”

       defense counsel and Silvers). According to Exhibit 30, there are two calls

       between Silvers and his attorney in the public visitation room on Friday, March

       2: one starting at “14[:]39[:]28” and lasting exactly ten minutes (the longest

       each call can be due to the recording system) and the other starting at

       “14[:]49[:]41” and lasting four minutes. Ex. 30 (emphases added); see also Tr.

       Vol. II p. 45 (deputy prosecutor explaining that the CD contained ten calls, only

       two of which involved defense counsel).


[11]   A sentencing hearing was later held, and the trial court sentenced Silvers to 912

       days for Count 1, 365 days for Count 2, 180 days for Count 3, 180 days for

       Count 4, 60 days for Count 5, and 912 days for Count 6. The court ordered




       Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018       Page 7 of 12
       Counts 1, 2, and 3 to be served consecutive to each other and concurrent to the

       other counts, for an aggregate term of 1457 days.


[12]   Silvers now appeals.



                                  Discussion and Decision
[13]   Silvers raises two issues on appeal. First, he contends that the trial court erred

       in denying his motion to continue. Second, he contends that the evidence is

       insufficient to support his convictions on Counts 1 and 5.


                                       I. Motion to Continue
[14]   Silvers first contends that he was “deprived of due process when the trial court

       denied his motion for a continuance.” Appellant’s Br. p. 12. Specifically,

       Silvers argues that although the CD contains two calls between him and his

       attorney, there was only evidence admitted about one of the calls and therefore

       he was entitled to a continuance to investigate the second one. Silvers’s starting

       premise that there was only evidence admitted about one of the calls is

       incorrect. Both the jail commander and the assistant jail commander—the only

       two people with access to the system—testified that they did not listen to any of

       the calls on the CD. Silvers vigorously cross-examined both witnesses. The

       deputy prosecutor also submitted an affidavit, which provided that he did not

       listen to any substance on the CD and that no one else in the prosecutor’s office

       had listened to the CD at all. Although Silvers was not able to cross-examine

       the deputy prosecutor, he was able to make argument to the trial court and

       Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018      Page 8 of 12
       respond to the deputy prosecutor’s claims. See Tr. Vol. II pp. 7-8, 13-15, 22-24;

       see also id. at 7 (defense counsel saying that he believed the deputy prosecutor

       when he said that did not listen to the calls). Moreover, according to Exhibit

       30, defense counsel had only one conversation with Silvers in the public

       visitation room on March 2. The conversation was broken up into two calls

       because of the ten-minute time limit imposed by the recording system. In other

       words, the second call was merely a continuation of the first call. Accordingly,

       because the circumstances of both calls are the same and these circumstances

       were fully explored below, Silvers was not entitled to a continuance to

       investigate the second call.


[15]   We share Silvers’s concern that the recording procedures at the Cass County

       Jail allowed a confidential communication between an attorney and his client

       to be captured and preserved. However, the issue we must decide here is

       whether the recording prejudiced Silvers. The evidence shows that the deputy

       prosecutor quickly brought this matter to the attention of the trial court, the

       incident was explored on three separate occasions below, and there is no

       indication that anyone listened to the substance on the CD. Cf. State v. Taylor,

       49 N.E.3d 1019 (Ind. 2016) (addressing police officers’ and prosecutor’s

       eavesdropping on a criminal suspect’s pre-interrogation consultation with his

       lawyer—during which they overheard information regarding both evidence and

       strategy—and declining to adopt a remedy of blanket suppression of the

       witnesses’ testimony). We therefore affirm the trial court.




       Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018      Page 9 of 12
                                II. Sufficiency of the Evidence
[16]   Silvers next contends that the evidence is insufficient to support his convictions

       for Level 6 felony possession of cocaine and Class C misdemeanor possession

       of paraphernalia. In reviewing the sufficiency of the evidence supporting a

       conviction, we consider only the probative evidence and reasonable inferences

       supporting the verdict. Wilson v. State, 39 N.E.3d 705, 716 (Ind. Ct. App.

       2015), trans. denied. We do not reweigh the evidence or assess witness

       credibility. Id. We consider conflicting evidence most favorably to the

       verdict. Id. We will affirm the conviction unless no reasonable fact-finder

       could find the elements of the crime proven beyond a reasonable doubt. Id. It

       is not necessary that the evidence overcome every reasonable hypothesis of

       innocence. Id. The evidence is sufficient if an inference may reasonably be

       drawn from it to support the verdict. Id.


                                 A. Possession of Paraphernalia
[17]   Silvers argues that the evidence is insufficient to prove Class C misdemeanor

       possession of paraphernalia. In order to convict Silvers of this offense, the State

       had to prove that he knowingly or intentionally possessed a straw or spoon that

       he intended to use for introducing a controlled substance into his body.

       Appellant’s App. Vol. II p. 140; see also Ind. Code § 35-48-4-8.3(b)(1). Silvers

       asserts that “there is no evidence he used a straw or spoon to ingest a controlled




       Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018     Page 10 of 12
       substance.” 1 Appellant’s Br. p. 17. At trial, Rachelle testified that the straw

       found in the center console (Exhibit 5) was used to snort heroin. Tr. Vol. II p.

       209. Indeed, heroin residue was found in the straw. Rachelle also testified that

       while she preferred to inject her heroin, Silvers snorted his. In fact, Rachelle

       said that after they purchased the heroin from Dustin’s dealer in Kokomo,

       Silvers “snorted” heroin using a “straw” while she drove. Id. at 206. Although

       it is true that Rachelle couldn’t say for certain whether Silvers used Exhibit 5 to

       snort the heroin, see id. at 209, the jury was entitled to believe that he did. In

       light of all the evidence, it was reasonable for the jury to infer that Silvers

       intended to use the straw to introduce heroin into his body. We therefore

       affirm his conviction on Count 5.


                                         B. Possession of Cocaine
[18]   Silvers next argues that the evidence is insufficient to prove Level 6 felony

       possession of cocaine because “there is no evidence that [he] knew the heroin

       [that he bought and used] also contained another controlled substance in the

       mixture.” Appellant’s Br. p. 16. The State concedes that the evidence does not

       support this conviction because there is no evidence that Silvers knew the

       heroin also contained cocaine. Appellee’s Br. p. 19. The State asks us to




       1
        To the extent that Silvers also argues that the evidence is insufficient to prove that he possessed the straw,
       he has waived this issue for failing to provide a cogent argument supported by citations to the record and
       authority. See Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, we find that the evidence easily
       supports a finding that Silvers constructively possessed the straw, as it was found in the center console right
       next to where he was sitting before he ran from the police.

       Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018                               Page 11 of 12
       remand this case to the trial court for resentencing on the five remaining counts.

       See Kendrick v. State, 947 N.E.2d 509, 514 (Ind. Ct. App. 2011) (explaining that

       “where a defendant is sentenced on multiple counts, he has no legitimate

       expectation of finality in any discrete portion of the sentencing package after a

       partially successful appeal” (quotation omitted)). Silvers does not ask for a

       different remedy. We therefore remand this case to the trial court for

       resentencing.


[19]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018     Page 12 of 12
