MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jul 31 2020, 9:08 am

court except for the purpose of establishing                                       CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Marietto V. Massillamany                                 Curtis T. Hill, Jr.
Erica Guernsey                                           Attorney General
Massillamany Jeter & Carson LLP
Fishers, Indiana                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jay R. Smithhart,                                        July 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2840
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Andrew R.
Appellee-Plaintiff                                       Hopper, Judge
                                                         Trial Court Cause No.
                                                         48C03-1903-F2-726



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020                           Page 1 of 11
                                             Case Summary
[1]   Police stopped a car in which Jay R. Smithhart was a passenger, searched the

      car without a warrant, and found drugs and paraphernalia. Smithhart was

      charged with and found guilty of several drug-related offenses. On appeal,

      Smithhart argues that the trial court erred in admitting evidence obtained from

      the car. We affirm.


                                 Facts and Procedural History
[2]   On March 22, 2019, Elwood Police Department Canine Officer Matt Mills

      stopped a car for failing to dim its high-beam headlights. Officer Mills

      approached the car and asked the driver, Britleigh Wood, and the front-seat

      passenger, Smithhart, for identification. Neither Wood nor Smithhart had a

      driver’s license. The officer returned to his vehicle and gave their personal

      information to dispatch; the BMV database did not indicate that Wood had a

      valid license. Sergeant Marcus Shoppell arrived to assist Officer Mills, and they

      asked Wood and Smithhart to exit the car. Officer Mills walked his canine

      toward the car. The canine pulled the officer toward the driver’s side, placed

      his head on the driver’s seat, and alerted to the scent of illegal drugs. Officer

      Mills asked Wood and Smithhart “if there was anything in the vehicle that [he]

      needed to be made aware of.” Tr. Vol. 2 at 132. They said no, and the officers

      searched the car.


[3]   Officer Mills found a plastic baggie on the driver’s seat that contained what

      appeared to be methamphetamine. At that point, the officer detained Wood


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020   Page 2 of 11
      and Smithhart. Officer Mills also found a loaded handgun in the driver’s-side

      door pocket and a black zippered bag on the back seat. The officer opened the

      bag and saw small baggies containing chunks that field-tested positive for

      methamphetamine. The bag also contained syringes, cut straws with residue,

      three digital scales, packages of suboxone sublingual strips, and baggies both

      with and without residue. Sergeant Shoppell found a floral zippered bag on the

      front passenger’s-side floorboard. The sergeant opened the bag and found a

      credit or debit card bearing Wood’s name, syringes, and baggies that contained

      what was later confirmed to be methamphetamine and heroin. The officers

      also found two cell phones in the car, one of which was later linked to

      Smithhart and forensically examined. Officer Mills learned that the car did not

      belong to either Wood or Smithhart.


[4]   The State ultimately charged Smithhart with level 2 felony dealing in

      methamphetamine, level 3 felony possession of methamphetamine, level 5

      felony dealing in a narcotic drug (heroin), level 6 felony possession of a narcotic

      drug (heroin), level 6 felony unlawful possession of a syringe, level 6 felony

      maintaining a common nuisance, class A misdemeanor possession of a

      controlled substance (suboxone), and class C misdemeanor possession of

      paraphernalia. The State also alleged that Smithhart was a habitual offender.

      Smithhart filed a motion to suppress the evidence seized from the car. The trial

      court held a hearing and issued an order denying the motion. After a trial, the

      jury found Smithhart guilty of both dealing in and possession of

      methamphetamine, possession of a narcotic drug, unlawful possession of a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020   Page 3 of 11
      syringe, and possession of a controlled substance, and acquitted him of the

      remaining charges. Smithhart waived jury trial on the habitual charge. The

      trial court found him to be a habitual offender and sentenced him to forty years.

      Smithhart now appeals.


                                     Discussion and Decision

       Section 1 – Smithhart has no standing to challenge the search
                 of the car under the Indiana Constitution.
[5]   Smithhart first contends that the trial court erred in admitting the evidence

      seized from the car; he makes a separate argument regarding the evidence

      seized from the two zippered bags found in the car, which we address below.

      He claims that the search of the car violated Article 1, Section 11 of the Indiana

      Constitution, which provides,


              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.


      Evidence obtained in violation of this provision is generally inadmissible at

      trial; the principal purpose of the exclusionary rule is to deter violations of

      constitutional rights. Anderson v. State, 961 N.E.2d 19, 32 (Ind. Ct. App. 2012),

      trans. denied. “Generally, evidentiary rulings are reviewed for an abuse of

      discretion and reversed when admission is clearly against the logic and effect of

      the facts and circumstances.” Curry v. State, 90 N.E.3d 677, 683 (Ind. Ct. App.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020   Page 4 of 11
      2017), trans. denied (2018). “However, when a challenge to an evidentiary

      ruling is predicated on the constitutionality of a search or seizure of evidence, it

      raises a question of law that is reviewed de novo.” Id. We may affirm a trial

      court’s evidentiary ruling on any theory supported by the evidence. Satterfield v.

      State, 33 N.E.3d 344, 352 (Ind. 2015).


[6]   As a threshold matter, the State asserts that Smithhart does not have standing to

      challenge the search of the car. In Campos v. State, 885 N.E.2d 590 (Ind. 2008),

      the Indiana Supreme Court considered whether the passenger of a vehicle may

      challenge a search of the vehicle under Article 1, Section 11. Based on its

      determination that “federal precedent addressing standing of a passenger

      asserting an interest in a searched vehicle is equally applicable under the

      Indiana Constitution[,]” 1 the court agreed with the Tenth Circuit Court of

      Appeals that “[w]here the defendant offers sufficient evidence indicating that he

      has permission of the owner to use the vehicle, the defendant plainly has a

      reasonable expectation of privacy in the vehicle and standing to challenge the

      search of the vehicle.” Id. at 598, 599 (quoting United States v. Rubio-Rivera, 917

      F.2d 1271, 1275 (10th Cir. 1990)). The court noted that “[t]he only evidence in




      1
        Although Article 1, Section 11 of the Indiana Constitution and the Fourth Amendment to the United States
      Constitution are virtually identical, Indiana courts generally have interpreted Section 11 separately and
      independently. J.G. v. State, 93 N.E.3d 1112, 1123 (Ind. Ct. App. 2018), trans. denied. “A Fourth
      Amendment analysis turns on whether the subject has a reasonable expectation of privacy, whereas a Section
      11 analysis ‘turns on whether the police conduct was reasonable under the totality of the circumstances.’” Id.
      (quoting Carpenter v. State, 18 N.E.3d 998, 1001-02 (Ind. 2014)). Smithhart does not challenge the legality of
      the traffic stop under either Section 11 or the Fourth Amendment, and he does not challenge the legality of
      the search of the car under the Fourth Amendment.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020                     Page 5 of 11
      the record regarding the ownership of the car” came from Campos, the

      passenger, and Santiago, the driver; both men told the officer who stopped and

      searched the car that the car belonged to Campos’s brother, and Campos said

      that he had permission to use it. Id. at 599. Because the State produced no

      evidence that the car was not owned by Campos’s brother “or that Campos did

      not have permission to use it[,]” the court held that “Campos [had] standing to

      challenge the search of the car.” Id.


[7]   In this case, however, Smithhart offered no evidence that the owner of the car

      in which he was a passenger had given him permission to use it. Smithhart

      contends that no such evidence was required because permission was not at

      issue. But Campos indicates that permission is always at issue when a passenger

      challenges the legality of a vehicle search, 2 and that it is the defendant’s burden

      to present evidence on that issue if the State does not.3 It is axiomatic that

      “[t]he State has the burden to demonstrate that the measures it used to seize

      information or evidence were constitutional.” Curry, 90 N.E.3d at 683. But

      that burden is contingent on the defendant establishing a legal basis for




      2
        In Jackson v. State, 890 N.E.2d 11, 17 (Ind. Ct. App. 2008), the court addressed a passenger’s challenge to
      the search of a car and noted that “permission to use the car did not appear to be at issue below[,]” perhaps
      because the trial was held before our supreme court decided Campos.
      3
        We note that the State argued at the suppression hearing that Smithhart did not have standing to challenge
      the search of the car because he was a passenger, and it specifically raised permission as an issue in the
      proposed findings that it submitted to the trial court. See Appellant’s App. Vol. 2 at 63 (“The evidence at the
      hearing was that neither the driver nor the defendant were [sic] the owner of the vehicle. There was no
      testimony that either had permission to be using the vehicle.”). And in its order denying the motion to
      suppress, the trial court noted that Smithhart did not “provide any information as to his approved use of the
      vehicle.” Id. at 82.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020                       Page 6 of 11
      challenging the constitutionality of those measures in the first place, and

      Smithhart failed to establish that basis here.


          Section 2 – Smithhart has no standing to challenge the search
          of the bags under either the United States Constitution or the
                              Indiana Constitution.
[8]   Smithhart also contends that the trial court erred in admitting the evidence

      seized from the two bags found in the car, claiming that the warrantless

      searches violated both the Fourth Amendment to the United States

      Constitution and Article 1, Section 11 of the Indiana Constitution. Smithhart

      has no standing to make these claims. 4 “Fourth Amendment and Article 1,

      Section 11 rights are personal rights that may not be asserted vicariously.”

      Lewis v. Putnam Cty. Sheriff’s Dep’t, 125 N.E.3d 655, 658 (Ind. Ct. App. 2019).

      “[A] defendant has no constitutional right to challenge the search or seizure of

      another person’s property.” Chappel v. State, 591 N.E.2d 1011, 1016 (Ind.

      1992). In its order denying Smithhart’s motion to suppress, the trial court noted

      that Smithhart “did not claim any of the possessions in the vehicle nor did he

      assert any interest in them.” Appellant’s App. Vol. 2 at 82. Smithhart made no

      claims of ownership at trial, and Sergeant Shoppell testified that both Smithhart




      4
       “As this court has noted before, the United States Supreme Court has rejected the rubric of ‘standing,’ and
      determined that the definition of Fourth Amendment rights is ‘more properly placed within the purview of
      substantive Fourth Amendment law than within that of standing.’” Jackson, 890 N.E.2d at 15 n.1 (quoting
      Willis v. State, 780 N.E.2d 423, 427 (Ind. Ct. App. 2002)). “In contrast, analysis under Article 1, Section 11
      of the Indiana Constitution has retained a ‘standing’ requirement.” Id. For ease of discussion, we use
      “standing” with respect to both the Fourth Amendment and Article 1, Section 11.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020                       Page 7 of 11
       and Wood claimed that the floral bag “was not their bag[.]” Tr. Vol. 2 at 115.

       In sum, Smithhart’s argument is a nonstarter. 5


       Section 3 – Smithhart has failed to establish that the trial court
          abused its discretion in admitting cell phone screenshots.
[9]    Finally, Smith argues that the trial court erred in admitting State’s Exhibits 19

       through 83, claiming that they should have been excluded pursuant to Indiana

       Evidence Rule 404(b). At trial, Smith did not object to Exhibits 19 through 26

       on Rule 404(b) grounds, so his argument is waived as to those exhibits. See

       Washington v. State, 808 N.E.2d 617, 625 (Ind. Ct. App. 2004) (“[A]s a general

       rule, a party may not present an argument or issue on appeal unless the party

       raised that argument or issue before the trial court. In such circumstances the

       argument is waived.”) (citation omitted).


[10]   Exhibits 27 through 83 are screenshots of text conversations with over a dozen

       different persons on various dates that were extracted from one of the cell

       phones found in the car in which Smithhart was a passenger; the phone was

       accessed using a passcode that was divulged during a jailhouse phone

       conversation between the incarcerated Smithhart and a third party. One of the

       incoming texts addresses the recipient as “Jay,” State’s Ex. 34, and one of the

       outgoing texts states, “This Jay bro[.]” State’s Ex. 60. Anderson Police




       5
        Smithhart also raises arguments regarding his motion to suppress, which are moot because he is appealing
       after a completed trial. See Godby v. State, 949 N.E.2d 416, 420 n.12 (Ind. Ct. App. 2011) (explaining that a
       motion to suppress does not preserve an argument for appeal), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020                      Page 8 of 11
       Department Detective Keith Gaskill testified that the slang-filled conversations

       indicate that the phone’s owner facilitated numerous sales of illegal drugs,

       including methamphetamine and heroin. Smithhart objected to the exhibits

       based on Evidence Rule 404(b), which provides in relevant part that “[e]vidence

       of a crime, wrong, or other act is not admissible to prove a person’s character in

       order to show that on a particular occasion the person acted in accordance with

       the character[,]” but it “may be admissible for another purpose, such as proving

       motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

       mistake, or lack of accident.” The trial court overruled the objection and

       admitted the exhibits.


[11]   “When addressing the admissibility of evidence under Rule 404(b), a trial court

       must utilize a two-prong analysis.” Scalissi v. State, 759 N.E.2d 618, 623 (Ind.

       2001). “First, the trial court must assess whether the evidence has some

       relevancy to a matter at issue other than the defendant’s propensity to commit

       the charged act. Second, the trial court must weigh the probative value of the

       evidence against its prejudicial effect, pursuant to Indiana Evidence Rule 403.”

       Id. Rule 403 provides, “The court may exclude relevant evidence[ 6] if its

       probative value is substantially outweighed by a danger of one or more of the

       following: unfair prejudice, confusing the issues, misleading the jury, undue




       6
        “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be
       without the evidence; and (b) the fact is of consequence in determining the action.” Ind. Evidence Rule 401.
       Relevant evidence is admissible unless a constitution, statute, or rule provides otherwise, and irrelevant
       evidence is inadmissible. Ind. Evidence Rule 402.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020                    Page 9 of 11
       delay, or needlessly presenting cumulative evidence.” The inquiry is not

       whether the evidence is prejudicial, since all relevant evidence is inherently

       prejudicial in a criminal case; rather, the inquiry is whether the evidence is

       unfairly prejudicial. Cadiz v. State, 683 N.E.2d 597, 600 (Ind. Ct. App. 1997).

       “When determining the likely unfair prejudicial impact, courts will look for the

       dangers that the jury will substantially overestimate the value of the evidence or

       that the evidence will arouse or inflame the passions or sympathies of the jury.”

       Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct. App. 2014), trans. denied. “A trial

       court’s evidentiary rulings are presumptively correct, and the ‘defendant bears

       the burden on appeal of persuading us that the court erred in weighing [unfair]

       prejudice and probative value under Evid. R. 403.’” Rivera v. State, 132 N.E.3d

       5, 12 (Ind. Ct. App. 2019) (quoting Anderson v. State, 681 N.E.2d 703, 706 (Ind.

       1997)), trans. denied (2020).


[12]   Smithhart contends that the exhibits relate only to his propensity to commit the

       charged acts of dealing methamphetamine and heroin, the latter of which he

       was acquitted. We disagree. The State points out that Smithhart’s trial strategy

       “appeared to center around his denial that he possessed any of the illicit

       substances and paraphernalia, or—in the alternative—that if he did possess

       those items, he did not have any intent to deliver.” Appellee’s Br. at 28. See Tr.

       Vol. 3 at 179 (Smithhart’s closing argument: “[I]f you find that what was find

       [sic] in that vehicle that night – was jointly possessed by both Britleigh Wood

       and Jay Smithhart – possibly possession is it. But intent to deliver I think the

       State is having a hard time.”). The exhibits indicate that Smithhart had a ready


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020   Page 10 of 11
       customer base for the methamphetamine and heroin that were found in the car,

       and thus they are probative of his intent to deal, rather than merely possess,

       those substances. The exhibits are clearly prejudicial, but Smithhart has failed

       to persuade us that their considerable probative value is substantially

       outweighed by the danger of unfair prejudice, i.e., that the trial court abused its

       discretion in admitting the exhibits. Therefore, we affirm.


[13]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020   Page 11 of 11
