                                                                    FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                            Feb 14 2013, 9:30 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                             CLERK
                                                                       of the supreme court,
                                                                       court of appeals and
                                                                              tax court




ATTORNEY FOR APPELLANT:                                 ATTORNEYS FOR APPELLEE:

DONALD E.C. LEICHT                                      GREGORY F. ZOELLER
Kokomo, Indiana                                         Attorney General of Indiana

                                                        CYNTHIA L. PLOUGHE
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

KEVIN PENDLETON,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 34A05-1207-CR-383
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE HOWARD SUPERIOR COURT
                         The Honorable William C. Menges, Judge
                             Cause No. 34D01-1105-FA-415


                                        February 14, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

          Kevin Pendleton (“Pendleton”) was convicted after a jury trial of two counts of

Conspiracy to Commit Dealing in Cocaine, as Class B felonies.1 He now appeals his

convictions.

          We affirm.

                                                Issues

          Pendleton raises three issues for our review, which we restate as:

            I.    Whether the trial court committed fundamental error when it permitted
                  the State to amend the charging information to add a second count for
                  Conspiracy to Commit Dealing in Cocaine, when the amendment
                  occurred after the omnibus date;

           II.    Whether the trial court abused its discretion when it overruled certain of
                  Pendleton’s objections to the admission of evidence at trial; and

          III.    Whether the trial court erred when it denied Pendleton’s motion for a
                  directed verdict.

                                   Facts and Procedural History

          Pendleton’s convictions arise from a Kokomo Police Department investigation

involving the use of a confidential informant (“the CI”) and targeting Pendleton. During the

events giving rise to this case, Pendleton lived at 623 South Walnut Street in Kokomo (“623

South Walnut”).

          On April 6, 2011, Kokomo Police Detectives Brad Reed (“Detective Reed”) and Gary

Taylor (“Detective Taylor”) met with the CI, who occasionally assisted Detective Reed with

investigations during 2011 and 2012. The CI had agreed with Detective Reed to purchase


1
    Ind. Code §§ 35-41-5-2(a) & 35-48-4-1(a).

                                                  2
cocaine from Jeffrey and Tonya Dunham (separately, “Jeffrey” and “Tonya”; collectively,

“the Dunhams”), who lived at 719 South Union Street in Kokomo (“719 South Union”).

          After searching the CI to ensure she had no money or drugs on her person, Detective

Reed recorded a phone call from the CI to the Dunhams arranging to purchase $50 worth of

cocaine. Detective Reed wired the CI with audio and video surveillance equipment and

assigned various other officers to perform surveillance on the scene or to follow vehicles to

and from 719 South Union on an as-needed basis. Detective Reed then drove the CI to 719

South Union to engage in the controlled purchase.

          The CI entered the Dunhams’ residence and gave Jeffrey the $50 in cash. While

Tonya remained at 719 South Union with the CI, detectives observed Jeffrey leave the

residence, get into an older Ford Ranger pickup truck, and drive to 623 South Walnut.2 After

a few minutes, Jeffrey returned to 719 South Union with crack cocaine, which he gave to the

CI. The CI in turn left a small amount of the cocaine with the Dunhams as payment for their

service in obtaining the drugs. Before leaving the Dunhams’ home, the CI asked if they

could arrange to provide her with powdered cocaine. Jeffrey and Tonya told the CI that they

required twenty-four hours’ notice to arrange such a transaction with an individual they

called “KP.” The CI requested that they do so, and the Dunhams indicated that the CI could

return the following day, April 7, 2011, to purchase the powdered form of the drug.

          With the transaction completed, the CI left 719 South Union, got into Detective

Reed’s car, and turned the crack cocaine over to him. The CI agreed to meet Detective Reed


2
    The address was later determined to be Pendleton’s residence. See infra.

                                                      3
again the next day to purchase powdered cocaine from the Dunhams, and confirmed the

planned transaction in a phone call with the Dunhams later on the night of April 6.

       On April 7, 2011, the CI again met with Detective Reed, who provided $100 in cash

for the CI to purchase drugs from the Dunhams at 719 South Union. Detective Reed had

already recorded the serial numbers for the $20 bills that he provided to the CI. He again

recorded the CI’s phone call with Tonya, wired the CI with surveillance equipment, assigned

officers to engage in surveillance of the scene and vehicles, and drove the CI to the

Dunhams’ residence.

       When the CI entered 719 South Union, only Tonya was present. The CI gave Tonya

the $100 in cash, and Tonya called Pendleton, who drove a black GMC Jimmy SUV to the

back of 719 South Union. Tonya provided the money to Pendleton, who then left 719 South

Union in the SUV to obtain the drugs.

       After Pendleton left, Detective Reed contacted Kokomo Police Officer Drew

Wallsmith (“Officer Wallsmith”) and requested that he stop Pendleton’s vehicle. Detective

Reed had intended for Officer Wallsmith to arrest Pendleton but learned through a cell phone

call to the CI that Pendleton had not yet delivered the drugs to her and had left to retrieve the

cocaine. Because the transaction had not yet been completed and he wanted to complete the

controlled purchase of the cocaine, Detective Reed instructed Officer Wallsmith to determine

if there was another basis for stopping Pendleton’s vehicle. Officer Wallsmith observed that

the window tint on the SUV was too dark for him to readily identify the driver or whether

there were any other individuals in the vehicle, and saw that the license plate frame and a


                                               4
tinted cover blocked or obscured the license plate.

       Based upon these observations, Officer Wallsmith initiated a traffic stop of

Pendleton’s vehicle. Detective Reed asked Officer Wallsmith to talk to Pendleton and to

attempt to determine whether Pendleton had money on his person and, if so, what the serial

numbers for the bills were.

       When Officer Wallsmith requested Pendleton’s license and registration, Pendleton

produced his driver’s license, which identified him and stated his residence as 623 South

Walnut. Pendleton was unable to readily produce his vehicle’s registration and began rapidly

searching through the vehicle’s glove compartment and console. Officer Wallsmith, now

concerned for his safety, requested that Pendleton exit the vehicle.

       Pendleton complied, and Officer Wallsmith conducted a pat-down search of Pendleton

to ensure he did not have any weapons on his person. After feeling what he believed to be

folded cash in Pendleton’s front right pocket, Officer Wallsmith asked Pendleton for

permission to reach into Pendleton’s pocket to retrieve the money. Pendleton consented to

this. Officer Wallsmith returned to his patrol car and contacted Detective Reed, who asked

Officer Wallsmith to record the serial numbers of the bills and to read the numbers to him.

After recording the information and providing it to Detective Reed, Officer Wallsmith

completed a written warning for overly-dark window tint; the ticket also recorded

Pendleton’s name and address. Officer Wallsmith gave the cash and the written warning to

Pendleton and permitted Pendleton to leave.

       Pendleton had informed Tonya by phone of the traffic stop, and further told her that he


                                              5
would be changing vehicles. After Pendleton left the stop, he changed vehicles and returned

to 719 South Union in a blue minivan. He delivered crack cocaine to Tonya, who gave the

drugs to the CI. 3 The CI gave a portion to Tonya as a fee for arranging the purchase, left the

Dunhams’ residence, and returned to Detective Reed’s car. Once in Detective Reed’s car, the

CI gave the purchased drugs to Detective Reed and was searched and debriefed.4

        On May 20, 2011, the State charged Pendleton with one count of Conspiracy to

Commit Dealing in Cocaine, as a Class A felony, and a warrant was issued for his arrest.5

Pendleton was arrested on May 27, 2011.

        An initial hearing was conducted on June 16, 2011. During the initial hearing, the

trial court set an omnibus date of August 19, 2011, and a trial date of September 16, 2011.

The trial date was reset on numerous occasions due to court congestion and continuances

sought by both parties.

        On November 22, 2011, Pendleton filed a motion to suppress evidence, which

challenged the admissibility of the evidence obtained as a result of Officer Wallsmith’s stop,

pat-down search, and search of Pendleton’s pocket on April 7, 2011. On December 2, 2011,

a hearing was conducted on the motion to suppress, at the conclusion of which the trial court

denied Pendleton’s motion in all respects.

3
  Despite prior arrangements with the Dunhams, the CI was unable to obtain powdered cocaine during the
transaction on April 7, 2011.
4
 The CI was unable to obtain powdered cocaine during the transaction, and instead was provided with
crack cocaine.
5
  The charge was elevated to a Class A felony under Indiana Code section 35-48-4-1(b)(3)(B)(i), which
defines as a Class A felony dealing in cocaine where the offense is committed “in, on, or within one
thousand (1,000) feet of … school property.”

                                                   6
        On January 5, 2012, several months after the omnibus date of August 19, 2011, the

State moved to amend the charging information to add an additional charge of Conspiracy to

Commit Dealing in Cocaine, as a Class B felony. The trial court granted the State’s motion

without objection from Pendleton. Also on January 5, 2012, Pendleton filed a motion to

continue the trial.

        A jury trial was ultimately conducted from April 16 to April 18, 2012. During the

trial, Pendleton objected to the admission of evidence obtained as a result of the April 7,

2011 traffic stop Officer Wallsmith had conducted, including the serial numbers for the $20

bills Pendleton had obtained from Tonya, which numbers Officer Wallsmith obtained on

Detective Reed’s instructions. The trial court overruled Pendleton’s objections and admitted

the associated testimony and exhibits into evidence.

        At the close of the State’s case-in-chief, Pendleton moved for directed verdicts on

each of the charges against him. The trial court granted the motion as to Conspiracy to

Commit Dealing in Cocaine, as a Class A felony, but denied the motion as to both charged

offenses as Class B felonies.6 At the trial’s conclusion, the jury found Pendleton guilty of the

two counts of Conspiracy to Commit Dealing in Cocaine, as Class B felonies.

        On June 27, 2012, a sentencing hearing was conducted, at the conclusion of which the

trial court entered judgments of conviction against Pendleton and sentenced him to twenty

years imprisonment for each count, with fifteen years executed and five years suspended to


6
 Evidence at trial indicated that while there was a private school within 1,000 feet of 719 South Union,
classes were not in session and there were neither students nor staff present at the school on the days of
April 6 and 7, 2011.

                                                      7
probation for each, and with the sentences to be served concurrent to one another.

       This appeal ensued.

                                   Discussion and Decision

                 Amendment of Charging Information after Omnibus Date

       The first argument Pendleton raises for our review contends that the trial court

committed fundamental error when it granted the State’s motion, filed after the omnibus date,

to amend the charging information to add a count for Conspiracy to Commit Dealing in

Cocaine.

       Indiana Code section 35-34-1-5 sets forth the procedure by which a charging

information may be amended for both matters of substance and defects that are “immaterial.”

I.C. § 35-34-1-5(a).        Where the amendment is immaterial or addresses a defect,

imperfection, or omission in form that does not prejudice the defendant’s substantive rights,

it may be made any time. I.C. §§ 35-34-1-5(a) & (c).

       Where an amendment relates to a matter of substance, however, the statute specifies

time limits within which the amendment must be made:

       The indictment or information may be amended in matters of substance and the
       names of material witnesses may be added, by the prosecuting attorney, upon
       giving written notice to the defendant at any time:

           (1) up to:

              (A)       thirty (30) days if the defendant is charged with a felony…

              before the omnibus date; or

           (2) before the commencement of trial;

       if the amendment does not prejudice the substantial rights of the defendant.

                                               8
I.C. § 35-34-1-5(b). “A defendant’s substantial rights include a right to sufficient notice and

an opportunity to be heard regarding the charge.” Baker v. State, 922 N.E.2d 723, 729 (Ind.

Ct. App. 2010) (citations and quotations omitted), aff’d on reh’g, 928 N.E.2d 890, aff’d in

relevant part on trans., 948 N.E.2d 1169 (Ind. 2011).

       Our supreme court set forth the test for whether an amendment is a matter of

substance in Fajardo v. State:

       An amendment is one of form, not substance if both (a) a defense under the
       original information would be equally available after the amendment, and (b)
       the accused’s evidence would apply equally to the information in either form.
       And an amendment is one of substance only if it is essential to making a valid
       charge of the crime.

859 N.E.2d 1201, 1207 (Ind. 2007). Here, a one-count charging information was amended to

add a charge for criminal activity that, while related to the initially-charged offense, was a

separate alleged criminal act. We therefore conclude that the amendment was one of

substance.

       Whether there was an amendment after the statutorily-specified date is not the end of

the inquiry, however. Ordinarily, we would turn to the question of whether Pendleton’s

substantial rights were prejudiced by the State’s amendment of the charging information

adding a second count of Conspiracy to Commit Dealing in Cocaine. However, Pendleton

did not contemporaneously object to the amendment. Rather, the same day that the motion to

amend the information was filed, Pendleton sought a continuance, and our review of the

record reveals that Pendleton did not challenge the amendment of the charging information at

any point before trial.


                                              9
       Where a party fails to object to a trial court’s order contemporaneously with that

decision, ordinarily an issue on appeal is waived. Absher v. State, 866 N.E.2d 350, 354-55

(Ind. Ct. App. 2007). Acknowledging as much, Pendleton argues that the trial court’s

decision granting the State’s motion to amend the charging information amounted to

fundamental error. “[F]undamental error is only available in egregious circumstances.” Id.

at 355. The mere fact of prejudicial error is not sufficient to establish that there was

fundamental error. Id. Rather, “‘an error must be so prejudicial to the rights of the defendant

as to make a fair trial impossible’ and must ‘constitute a blatant violation of basic principles,

the harm or potential harm must be substantial, and the resulting error must deny the

defendant fundamental due process.’” Id. (quoting Benson v. State, 762 N.E.2d 748, 755

(Ind. 2002).

       Here, the added charge arose from a course of events that all parties acknowledge was

tied to the facts of the originally-filed charge: Pendleton’s alleged delivery of cocaine to the

Dunhams, who in turn sold the drugs to the CI. The events occurred on consecutive days and

involved the same parties to the two transactions. After the amended charging information

was filed, Pendleton was afforded a continuance, as was the State, and a trial was conducted

more than three months after the filing of the amended charging information.

       Further, we observe that Pendleton presented no evidence at trial. Rather, he sought

to exclude from evidence the results of Officer Wallsmith’s traffic stop and pat-down search.

Pendleton had already sought to suppress this evidence several months before the filing of

the amended charging information, and makes no claim now that the timing of the trial


                                               10
prejudiced his ability to prepare a defense to the charges.

       In light of all this, we cannot conclude that the belated amendment was prejudicial to

Pendleton at all—let alone that any error might have arisen to the level of fundamental error.

We therefore leave the judgment undisturbed in the face of Pendleton’s challenge to the

timing of the amended information.

                 Suppression of Evidence from the Traffic Stop and Search

       We turn now to Pendleton’s second issue on appeal, whether the trial court erred when

it denied his motion to suppress evidence obtained from Officer Wallsmith’s traffic stop of

Pendleton’s vehicle and subsequent pat-down search of Pendleton’s person.

       “Our standard of review of rulings on the admissibility of evidence is essentially the

same whether the challenge is made by a pre-trial motion to suppress or by trial objection.”

Boston v. State, 947 N.E.2d 436, 444 (Ind. Ct. App. 2011). We determine whether there is

substantial evidence of probative value to support the trial court’s ruling. Litchfield v. State,

824 N.E.2d 356, 359 (Ind. 2005). We do not reweigh evidence and construe conflicting

evidence most favorably to the trial court’s ruling. Widduck v. State, 861 N.E.2d 1267, 1270

(Ind. Ct. App. 2007). We must also consider uncontested evidence favorable to the

defendant. Id. The trial court’s ultimate determination of the constitutionality of a search or

seizure is, however, reviewed de novo. Harper v. State, 922 N.E.2d 75, 79 (Ind. Ct. App.

2010), trans. denied.

       Here, Pendleton contends that Officer Wallsmith’s pretextual stop of his vehicle and

Officer Wallsmith’s subsequent custodial search of his person violated the Indiana


                                               11
Constitution. We address each of Pendleton’s claims in turn.

                                         Traffic Stop

       We first address Pendleton’s claim that Officer Wallsmith’s pretextual stop of his

vehicle was unconstitutional and that the trial court erred when it overruled his objections to

the admission of evidence obtained as a result of the stop. The Fourth Amendment to the

United States Constitution, applicable to the States through the Fourteenth Amendment,

provides, “The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend IV.

The Indiana Constitution includes a nearly-identical provision. Ind. Const. art. I, § 11;

Mitchell v. State, 745 N.E.2d 775, 785-86 (Ind. 2001).

       Our supreme court has, however, “made an explicit point to interpret and apply

Section 11 independently from federal Fourth Amendment jurisprudence.” Id. at 786.

       In resolving challenges under this section, we consider the circumstances
       presented in each case to determine “whether the police behavior was
       reasonable.” The State has the burden of showing the intrusion was reasonable
       in light of the totality of the circumstances. A police stop and brief detention
       of a motorist is reasonable and permitted under Section 11 if the officer
       reasonably suspects that the motorist is engaged in, or about to engage in,
       illegal activity. “Reasonable suspicion exists if the facts known to the officer,
       together with the reasonable inferences arising therefrom, would cause an
       ordinarily prudent person to believe that criminal activity has or is about to
       occur.” Pretextual stops are not, per se, unreasonable under the Indiana
       Constitution.

Turner v. State, 862 N.E.2d 695, 699 (Ind. Ct. App. 2007) (citations omitted) (quoting

Mitchell, 745 N.E.2d at 786-87).

       Thus, police officers may stop an individual’s vehicle when they observe minor traffic


                                              12
violations. State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006). “A traffic violation, however

minor, creates probable cause to stop the driver of the vehicle.” Id. Thus, where a police

officer initiates a traffic stop of a vehicle upon observing a traffic violation, that stop is not

unreasonable under the Indiana Constitution, even where the stop is a pretextual one. Id.;

Osborne v. State, 805 N.E.2d 435, 439 (Ind. Ct. App. 2004), trans. denied.

       Here, Officer Wallsmith received information from Detective Reed that Pendleton

was involved in an ongoing narcotics transaction. Detective Reed asked Officer Wallsmith

to stop Pendleton’s vehicle, and also asked that Officer Wallsmith identify a basis for the

stop that was independent of the narcotics sale. Officer Wallsmith identified two violations:

the too-dark tint of the windows of Pendleton’s SUV, and the obscuring of text on the

vehicle’s license plate. Officer Wallsmith issued a written warning for the darkness of the

tint on Pendleton’s vehicle, and Pendleton does not contend that Officer Wallsmith was

incorrect in identifying either the window-tint violation or the license plate violation for

which no warning or citation was issued.

       Thus, while Pendleton may be correct that the stop was a pretextual one, we cannot

conclude that Officer Wallsmith lacked probable cause.

                                       Pat-Down Search

       Having found no error in the trial court’s conclusion that Officer Wallsmith’s stop of

Pendleton’s SUV was supported by probable cause, we next examine whether the trial court

erred when it admitted evidence obtained from the pat-down search of Pendleton.

       The United States Supreme Court has held that a police officer may, during an


                                               13
investigatory stop of an individual, conduct a pat-down search of the individual “where he

has reason to believe that he is dealing with an armed and dangerous individual, regardless of

whether he has probable cause to arrest the individual for a crime.” Terry v. Ohio, 392 U.S.

1, 27 (1968). The officer need not be certain the individual is armed. Id. Rather, a pat-down

search for weapons is constitutionally permissible where a reasonably prudent person in the

circumstances would be warranted in the belief that his safety or that of others was in danger.

Id. An “inchoate and unparticularized suspicion or ‘hunch’” does not suffice to show that an

officer acted reasonably in conducting a pat-down search. Id. Rather, “due weight must be

given … to the specific reasonable inferences which [the officer] is entitled to draw from the

facts in light of his experience.” Id.

       Officer Wallsmith testified that when he conducted the traffic stop, he asked

Pendleton for his license and registration, but Pendleton could not produce the vehicle’s

registration. Pendleton then began making rapid movements inside the vehicle, moving both

his hands and body while searching the vehicle’s console and glove compartment.

       Further, Detective Reed had conveyed to Officer Wallsmith that Pendleton was

involved with an ongoing narcotics transaction. Officer Wallsmith testified that “[w]hen I do

receive information of involvement in drugs I am concerned about weapons, so I had him

exit the vehicle.” (Tr. at 215.) This, taken together with Pendleton’s rapid searching of the

SUV’s console and glove compartment, could lead a reasonable person to conclude that

Pendleton could have been looking for a weapon in the vehicle. Under the totality of the

circumstances, we cannot conclude that Officer Wallsmith’s pat-down search of Pendleton


                                              14
was an unreasonable search and accordingly find no abuse of discretion in the trial court’s

admission of the related evidence.

                                Search of Pendleton’s Pocket

       We turn now to Pendleton’s contention that the trial court abused its discretion when it

denied his objections to the admission of evidence obtained from Officer Wallsmith’s search

of Pendleton’s pocket. Pendleton contends that he did not properly consent to the search of

his pocket, during which Officer Wallsmith withdrew five $20 bills, because Officer

Wallsmith did not provide him with an advisement of his right to have counsel present as

required under Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975).

       In Pirtle, our supreme court held that where an individual is held in police custody and

is asked to give consent to a search, he “is entitled to the presence and advice of counsel prior

to making the decision whether to give such consent.” Id. at 29, 323 N.E.2d at 640.

Pendleton does not dispute that he gave consent to the search of his pocket, and Officer

Wallsmith testified that he did not advise Pendleton of his right under Pirtle to advice of

counsel before giving consent to a search. Thus, our inquiry centers on whether he was in

custody of the type required in Pirtle and its progeny. See, e.g., Meredith v. State, 906

N.E.2d 867, 873 (Ind. 2009).

       In determining whether Pendleton was in custody such that Pirtle applies, “the

‘ultimate inquiry’ is whether there was a ‘formal arrest’ or a ‘“restraint on freedom of

movement” of the degree associated with a formal arrest.’” Id. (quoting Luna v. State, 788

N.E.2d 832, 833 (Ind. 2003)). Courts “‘largely apply an objective test asking whether a


                                               15
reasonable person under the same circumstances would believe that she was under arrest or

not free to resist the entreaties of the police.’” Id. (quoting Jones v. State, 655 N.E.2d 49, 55

(Ind. 1995)). Courts frequently consider as a factor in this determination whether a

reasonable person in the defendant’s position would feel free to leave. Id. However, where,

as here, a defendant is subject to a traffic stop and is “‘seized’ and momentarily not free to

go,” the defendant is ordinarily not considered in custody. Id.

       Pirtle and its progeny “police the line between ordinary investigative detentions and

full-blown custodial interrogations.”       Id.     Thus, we must determine whether the

circumstances under which the defendant granted consent to the search included “objectively

overpowering, coercive, or restraining police behavior, such that the facts demonstrate ‘a

degree associated with a formal arrest.’” Id. at 873-74 (quoting Melton v. State, 705 N.E.2d

564, 566 (Ind. Ct. App. 1999)). Prior cases have turned on whether a defendant was read

Miranda rights, how vigorous law enforcement interrogation was, whether police suggested a

defendant should or must cooperate, and the length of time during which the defendant was

detained. Id. at 874 (citing Clarke v. State, 868 N.E.2d 1114 (Ind. 2007); Sellmer v. State,

842 N.E.2d 358 (Ind. 2006); Cooley v. State, 682 N.E.2d 1277 (Ind. 1997); Torres v. State,

673 N.E.2d 472 (Ind. 1996)).

       Here, we cannot conclude that Officer Wallsmith’s request for consent to search

Pendleton’s pocket rose to the level of coercion or restraint required to entitle Pendleton to

advice of counsel prior to giving consent to a search under Pirtle. There is no contention that

the duration of Pendleton’s detention was any greater than the length of an ordinary traffic


                                               16
stop. While Officer Wallsmith inquired about the source of the money in Pendleton’s pocket,

there is no testimony that Officer Wallsmith asked for consent to a search beyond permission

to reach into a single pocket—and this after Officer Wallsmith had already correctly

determined that what he felt in Pendleton’s pocket was, in fact, money. Nor is there any

contention that Officer Wallsmith asked repeatedly, attempted to coerce, or otherwise

indicated to Pendleton that Pendleton’s cooperation was necessary to end the traffic stop.

       Absent circumstances indicative of coercion in obtaining Pendleton’s consent to the

search of his pocket, we cannot conclude that the trial court abused its discretion when it

admitted into evidence the serial numbers of the $20 bills in Pendleton’s pocket and any

related testimony. We therefore affirm the trial court’s evidentiary rulings on these matters.

                           Denial of Motion for Directed Verdict

       We turn now to Pendleton’s final contention on appeal, namely, that the trial court

erred when it denied his motion for a directed verdict, properly called a motion for judgment

on the evidence, on the second count in the charging information related to the events of

April 6, 2011.

       We apply the same appellate standard of review to motions for judgment on the

evidence as we do when the sufficiency of the evidence is challenged on appeal. Dye v.

State, 943 N.E.2d 928, 930 (Ind. Ct. App. 2011). That standard of review is well settled. We

consider only the probative evidence and reasonable inferences supporting the verdict. Drane

v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or

reweigh evidence. Id. We will affirm the conviction unless “‘no reasonable fact-finder could


                                             17
find the elements of the crime proven beyond a reasonable doubt.’” Id. (quoting Jenkins v.

State, 726 N.E.2d 268, 270 (Ind. 2000)). “‘The evidence is sufficient if an inference may

reasonably be drawn from it to support the verdict.’” Id. (quoting Pickens v. State, 751

N.E.2d 331, 334 (Ind. Ct. App. 2001)).

      Here, Pendleton challenges the sufficiency of the evidence to support one of the two

convictions for Conspiracy to Commit Dealing in Cocaine, as a Class B felony. To convict

Pendleton as charged, the State was required to prove beyond a reasonable doubt that he

agreed with another person to commit Dealing in Cocaine as defined in Indiana Code section

35-48-4-1, and that either he or the other person—here, either Tonya or Jeffrey Durham—

performed an overt act in furtherance of the agreement. I.C. § 35-41-5-2(a). Indiana Code

section 35-48-4-1 provides:

      A person who:


             (1) knowingly or intentionally:

                    (A) manufactures;

                    (B) finances the manufacture of;

                    (C) delivers; or

                    (D) finances the delivery of;

             cocaine or a narcotic drug, pure or adulterated, classified in schedule I
             or II; or

             (2) possesses, with intent to:

                    (A) manufacture;

                    (B) finance the manufacture of;

                                              18
                            (C) deliver; or

                            (D) finance the delivery of;

                   cocaine or a narcotic drug, pure or adulterated, classified in schedule I
                   or II;

           commits dealing in cocaine or a narcotic drug, a Class B felony, except as
           provided in subsection (b).

I.C. § 35-48-4-1(a).

           Pendleton argues:

           The evidence for Count 2 was that the CI went to a house to buy drugs from
           Jeffrey and Tonya. [The CI] gave $50.00 to Jeff. He left. He came back with
           drugs. She gave them a cut. Over Pendleton’s objection exhibits were passed
           that did not relate to Pendleton. Pendleton’s objections to speculation were
           overruled.7

(Appellant’s Br. at 9.)

           This is not, however, all the evidence that favors the verdict. Pendleton fails to note

that Detective James Nielson (“Nielson”) testified that when Jeffrey left the CI and Tonya at

his residence on April 6, 2011 to retrieve the drugs, Jeffrey drove to 623 South Walnut—the

address that Pendleton gave to Officer Wallsmith as his home address on April 7, 2011.

Pendleton further fails to note that Jeffrey and Tonya indicated that on April 6, 2011, after

placing a phone call to arrange for the acquisition of crack cocaine, they would obtain the

drugs from someone they called “KP,” which letters are the same as initials of Pendleton’s

first and last name. (Tr. at 116.)

           This evidence, taken together with the other evidence of a sale of drugs arranged for

the CI by the Durhams, permitted a reasonable fact finder to conclude beyond a reasonable

7
    Pendleton does not argue that the trial court’s decisions overruling these objections were in error.

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doubt that Pendleton had agreed with the Durhams to commit Dealing in Cocaine. We

cannot conclude that there was insufficient evidence to support the jury’s verdict on Count 2,

nor that the trial court erred when it denied Pendleton’s motion for judgment on the evidence.

We therefore affirm the verdict.

                                        Conclusion

       Pendleton was not prejudiced by the State’s amendment of the charging information

after the omnibus date. The trial court did not abuse its discretion when it admitted evidence

obtained as a result of Officer Wallsmith’s traffic stop, pat-down search of Pendleton, and

search of Pendleton’s pocket. There was sufficient evidence to support a jury verdict as to

Count 2, and thus the trial court did not err when it denied Pendleton’s motion for judgment

on the evidence.

       Affirmed.

VAIDIK, J., and BROWN, J., concur.




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