FOR PUBLICATION


ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

JOHN (JACK) F. CRAWFORD                     GREGORY F. ZOELLER
Crawford & Devane                           Attorney General of Indiana
Indianapolis, Indiana

                                            IAN MCLEAN
                                            Deputy Attorney General
                                            Indianapolis, Indiana

                                                                      May 10 2013, 9:16 am

                            IN THE
                  COURT OF APPEALS OF INDIANA

DWIGHT L. COBBS,                            )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )     No. 49A05-1207-CR-380
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Steven R. Eichholtz, Judge
                         Cause No. 49G20-1108-FA-56319


                                   May 10, 2013

                            OPINION - FOR PUBLICATION

BARNES, Judge
                                      Case Summary

          Dwight Cobbs appeals his conviction for Class B felony dealing in cocaine. We

affirm.

                                            Issue

          Cobbs raises one issue, which we restate as whether the trial court properly

admitted the testimony of a confidential informant.

                                            Facts

          After Cobbs sold cocaine to a confidential informant inside of a Kroger

supermarket in Indianapolis during a recorded, controlled buy on July 15, 2010, the State

charged Cobbs with Class A felony dealing in cocaine and Class B felony possession of

cocaine. After a dispute regarding the deposition of the confidential informant, Cobbs

filed a motion to exclude the confidential informant’s testimony. On June 1, 2011, the

trial court granted Cobbs’s motion.

          At the beginning of the August 9, 2011 trial, the deputy prosecutor informed the

trial court that the police officer who had stopped Cobbs after the controlled buy and

recovered the marked buy money was out of the state. The deputy prosecutor stated:

“Knowing this Court’s policy on continuances, we’re just going to dismiss this case.

However, we are going to re-file it and make sure that we have all our witnesses when we

are ready to go next time.” August 9, 2011 Trial Tr. p. 16-17. The trial court dismissed

the charges without prejudice. Cobbs’s counsel stated, “we’d ask for dismissal with

prejudice, but we understand.” Id. at 17.



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       The State then refiled the charges against Cobbs. The new charges included the

original charges plus a charge of Class A felony conspiracy to commit dealing in cocaine.

The refiled charges were heard before a different trial court judge. Cobbs filed a motion

to dismiss the conspiracy charge because, according to Cobbs, “a purchaser of drugs

cannot be considered to be conspiring with another individual to deal drugs.” Appellant’s

App. p. 47. The State then moved to dismiss the conspiracy count, which the trial court

granted.

       Cobbs also filed a motion to exclude the audio recording of the controlled buy and

recordings of jail calls. The State then requested that the trial court reconsider the

exclusion of the confidential informant’s testimony. The State conceded that, under the

law of the case, the confidential informant’s testimony would be excluded in the present

case. However, the State pointed out that the audio/video recordings of the controlled

buy were not excluded by the original trial court. The State then asked, based on Cobbs’s

new request regarding the recordings, that the new trial court reconsider the initial

exclusion of the confidential informant’s testimony. Cobbs argued that he was not

attempting to relitigate any issues and that the original trial court did not address the

recordings.

       After a hearing, the new trial court judge found that the confidential informant’s

testimony was improperly excluded. The trial court noted that there was no finding of

misconduct by the State and there was insufficient evidence of “intentional conduct by

the State to keep the witness out.” Tr. p. 9. Consequently, the trial court ruled that the

confidential informant could testify at the trial.

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       Cobbs then filed another motion to exclude the testimony of the confidential

informant. Relying on Davenport v. State, 689 N.E.2d 1226 (Ind. 1997), reh’g granted in

part, 696 N.E.2d 870 (Ind. 1998), and Johnson v. State, 740 N.E.2d 118 (Ind. 2001),

Cobbs argued that his substantial rights had been violated. According to Cobbs, the State

refiled the charges to avoid an adverse evidentiary ruling, and the State “waited until the

last minute” to try to relitigate the exclusion of the confidential informant’s testimony.

App. p. 66. Cobbs again requested that the trial court exclude the testimony of the

confidential informant, the audio/video recording of the controlled buy, and “any

statements of others derived from the informant.” Id. at 67. The trial court again denied

Cobbs’s motion to exclude this evidence. The trial court also denied Cobbs’s motion for

certification for interlocutory appeal.

       At the start of Cobbs’s bench trial, the State moved to amend the charges to Class

B felony dealing in cocaine and Class D felony possession of cocaine, which the trial

court allowed. The trial court found Cobbs guilty as charged. Due to double jeopardy

concerns, the trial court did not enter judgment of conviction on the Class D felony

charge. On the B felony conviction, the trial court sentenced Cobbs to fourteen years in

the Department of Correction.

                                          Analysis

       Cobbs argues that the trial court abused its discretion when it admitted the

testimony of the confidential informant. We afford the trial court wide discretion in

ruling on the admissibility of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind.

2012). We review evidentiary decisions for abuse of discretion and reverse only when

                                             4
the decision is clearly against the logic and effect of the facts and circumstances. Id.

“An error is harmless if its probable impact on the [trier of fact], in light of all of the

evidence in the case, is sufficiently minor so as not to affect a party’s substantial rights.”

Brown v. State, 770 N.E.2d 275, 280 (Ind. 2002).

       Cobbs argues that the trial court erred by admitting the testimony of the

confidential informant because the testimony had been excluded by a previous court and

the State dismissed and refiled the charges. Cobbs makes no argument regarding the

audio/video recording of the controlled buy. Cobbs asks that we vacate his conviction

and remand for the State to retry him without the testimony of the confidential informant

or to dismiss all charges against him.

       Pursuant to Indiana Code Section 35-34-1-13, the prosecuting attorney may move

for the dismissal of charges at any time prior to sentencing. As long as the State gives a

reason for the dismissal, the trial court must grant the motion. Davenport v. State, 689

N.E.2d 1226, 1229 (Ind. 1997), reh’g granted in part, 696 N.E.2d 870 (Ind. 1998). The

dismissal of an information under Indiana Code Section 35-34-1-13 is not necessarily a

bar to refilling. Id. The State may refile an information against the defendant subject to

certain restrictions. For example, the State may not dismiss and refile if jeopardy has

already attached or to “evade the defendant’s speedy trial rights.” Id.

       Further, “[t]he State may not refile if doing so will prejudice the substantial rights

of the defendant.” Id. “While we have not specifically defined what a substantial right is

in other contexts, it is relatively clear what situations do not necessarily prejudice a

defendant’s substantial rights.” Id. Those situations include the following: 1) where the

                                              5
State dismisses a charge because it is not ready to prosecute and then refiles an

information for the same offense; 2) where the State dismisses an information in order to

avoid an adverse evidentiary ruling and then refiles an information for the same offense;

and 3) where the State dismisses a charge and refiles an amended information charging

the same offense. Id. “The defendant’s substantial rights are not prejudiced in these

situations primarily because the defendant can receive a fair trial on the same facts and

employ the same defense in the second trial as in the first.” Id. “Public policy favors the

prosecution of persons accused of criminal offenses when a fair trial is available.” Id. at

1230.

        In Davenport, the defendant was charged with murder and, four days before trial,

the State attempted to amend the charging information by adding charges of felony

murder, attempted robbery, and auto theft. The trial court denied the motion, and the

State dismissed the murder charge. The State then refiled the murder charge along with

the other proposed charges. The defendant moved to dismiss the additional charges, but

the trial court denied the motion.

        Our supreme court noted that, after receiving an adverse ruling on its motion to

amend, the State had dismissed and refiled the information with the additional charges.

The State had also moved for and was granted transfer to a different court. “By doing so,

the State not only crossed over the boundary of fair play but also prejudiced the

substantial rights of the defendant.” Id. “Because of a sleight of hand, the State was able

to escape the ruling of the original court and pursue the case on the charges the State had

sought to add belatedly.” Id. The court noted that “[t]his [was] significantly different

                                            6
than what ha[d] been permitted in the past.” Id. The court concluded that the trial court

erred by denying the defendant’s motion to dismiss the felony murder, attempted robbery,

and auto theft charges.     Consequently, the court reversed the convictions on those

charges.

       Our supreme court addressed a similar issue in Johnson v. State, 740 N.E.2d 118

(Ind. 2001). There, the defendant was charged with sexual misconduct with a minor, and

the trial court granted a motion in limine, excluding certain Rule 404(b) evidence. In

response, the State filed a motion to dismiss, which the trial court granted. The State then

refiled the information and added ten more charges. The defendant moved to dismiss all

of the charges, and the trial court denied the motion.

       Our supreme court noted that: “If the State may circumvent an adverse evidentiary

ruling by simply dismissing and refiling the original charge, and also ‘punish’ the

defendant for a successful procedural challenge by piling on additional charges,

defendants will as a practical matter be unable to avail themselves of legitimate

procedural rights.” Johnson, 740 N.E.2d at 121. The court also noted that no new

evidence was discovered between the dismissal and refilling. The court concluded that

“the State exceeded the boundaries of fair play.” Id. “The prosecutor impermissibly

impinged the defendant’s exercise of his substantial procedural rights by dismissing and

refiling to evade an adverse trial court ruling and, in the process, piling on additional

charges that were unjustified by changed circumstances.” Id. The court concluded that

the proper remedy was “to restore the defendant to something like the status quo ante.”

Id.   It determined that the State could proceed with the original charge of sexual

                                             7
misconduct excluding the 404(b) evidence, or the State could “forego the original charge

and pursue another charge carrying a similar potential penalty, with the opportunity to

offer Rule 404(b) evidence if timely notice is given and the trial court rules favorably on

admissibility.” Id.

       Despite Cobbs’s arguments, we conclude that this case is more like Hollowell v.

State, 773 N.E.2d 326 (Ind. Ct. App. 2002), than Davenport or Johnson. In Hollowell,

the defendant was charged with battery and resisting law enforcement. On the day of his

trial, the State dismissed the charges because of a missing essential witness. The State

offered not to refile the information if the defendant pled guilty in a separate case. When

the defendant refused, the State refiled charges of battery, two counts of resisting law

enforcement, and escape. The State claimed that it had erred by not filing the additional

charges in the prior case. The defendant moved to dismiss the charges, but the trial court

denied the motion.

       On appeal, we affirmed the trial court’s denial of the motion to dismiss. We noted

that the State was not attempting to circumvent an adverse ruling, that the State was not

attempting to punish the defendant by adding more charges, that the defendant had

sufficient time to prepare a defense for the new charges, and that the defendant was not

forced to discard his prior preparation for trial and begin again with new strategies and

defenses.

       Here, although Cobbs claims that the State dismissed the charges against him to

avoid the adverse ruling regarding the testimony of the confidential informant, the record

does not support his claim. The record indicates that, despite the original trial court’s

                                            8
ruling regarding the testimony of the confidential informant, the State was proceeding

with Cobbs’s trial. The State ultimately dismissed the charges because it was missing an

essential witness on the day of trial and because the trial court apparently had a strict

continuance policy.

        When the State refiled charges, it did add a conspiracy charge. However, that

conspiracy charge was promptly dismissed, leaving only the original charges of Class A

felony dealing in cocaine and Class B felony possession of cocaine. In fact, at Cobbs’s

trial, the State also dropped the allegation that Cobbs sold the cocaine within 1000 feet of

a public park, leaving Cobbs with charges of Class B felony dealing in cocaine and Class

D felony possession of cocaine, which were less severe than the original charges. Under

these circumstances, we cannot say that Cobbs’s substantial rights pursuant to Davenport

were violated by the trial court’s admission of the confidential informant’s testimony.1

        We acknowledge that, after the State refiled the charges, it did seek a

reconsideration of the exclusion of the confidential informant’s testimony, and the new

trial court allowed that testimony.             However, even if the trial court improperly

reconsidered the exclusion of the confidential informant’s testimony, we conclude that

any error was harmless. Cobbs does not challenge the admission of the audio/video

recording of the controlled buy or the officer’s testimony regarding the controlled buy.


1
  In his reply brief, Cobbs argues that the admission of the confidential informant’s testimony also
prejudiced his substantial rights “in contravention of all the fundamental rules of discovery.” Appellant’s
Reply Br. p. 3. Cobbs reviews the alleged discovery violations and argues that, under the discovery rules,
the new trial court judge erred by allowing the confidential informant to testify. This is a different
argument than the one presented in Cobbs’s Appellant’s Brief—that his substantial rights were violated
pursuant to Davenport. Appellants are not permitted to raise new arguments in their reply briefs. Curtis
v. State, 948 N.E.2d 1143, 1148 (Ind. 2011). This argument is waived.
                                                    9
The evidence presented at trial demonstrated that the officers searched the confidential

informant and gave him $100 in buy money. The confidential informant met with Cobbs

in the Kroger parking lot. The two men entered the Kroger store and were heard

exchanging something for $100. Once outside, the confidential informant was searched

again and was in possession of cocaine. Cobbs was stopped by an officer, and he was in

possession of the $100 in buy money.         Even without the confidential informant’s

testimony, there was overwhelming evidence to support Cobbs’s conviction. Even Cobbs

concedes that: “It would appear from the evidence that even without the informant

testifying the State had a fairly strong case.” Appellant’s Br. p. 11. A reviewing court

may determine that improper evidence did not have a significant impact on a judge or

jury where there was other overwhelming evidence of guilt. Shanks v. State, 640 N.E.2d

734, 736 (Ind. Ct. App. 1994). Any error in the admission of the confidential informant’s

testimony was harmless.

                                       Conclusion

      The trial court properly admitted the confidential informant’s testimony. Even if

the trial court erred by admitting the testimony, any error was harmless. We affirm.

      Affirmed.

NAJAM, J., and BAILEY, J., concur.




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