MEMORANDUM DECISION
                                                                  Mar 20 2015, 7:33 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Gregory F. Zoeller
Keffer Barnhart LLP                                      Attorney General of Indiana
Indianapolis, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Lamont Payne,                                            March 20, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         82A04-1407-CR-297
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court; The Honorable
                                                         Robert Pigman, Judge;
State of Indiana,                                        82D02-1401-FA-142
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1407-CR-297 | March 20, 2015     Page 1 of 8
[1]   Lamont Payne appeals his conviction of Class A felony dealing in cocaine or a

      narcotic drug.1 Payne presents two issues for our review:


[2]   1.         Whether the trial court abused its discretion when it denied Payne’s

      motion to dismiss; and


[3]   2.         Whether the trial court abused its discretion when it admitted enhanced

      and clarified digital images purporting to represent Payne’s tattoos?


[4]   We affirm.


                                     Facts and Procedural History
[5]   On August 12, 2013, Evansville Police were using a confidential informant

      (“CI”) to conduct controlled buys of cocaine from Larry Allgood. While

      listening to the transaction from his car, Detective Chris Goergen realized a

      third person was involved in the buy. When the third person left the buy

      location, Detective Goergen drove around the block in an attempt to locate

      him. Detective Goergen “saw a black male wearing a white tee shirt on a

      bicycle” in the vicinity of the controlled buy, (Tr. at 10-11), but he did not

      attempt to apprehend this person as he did not want to jeopardize the case

      against Allgood. He instead gave a description to other officers.


[6]   Officer Paul Jacobs heard the description and, shortly thereafter, located a

      person matching it. He followed this person, later identified as Payne, and



      1
          Ind. Code § 35-48-4-1 (2013).


      Court of Appeals of Indiana | Memorandum Decision 82A04-1407-CR-297 | March 20, 2015   Page 2 of 8
      watched him perform what the officer suspected was a hand-to-hand narcotics

      transaction. Based on that transaction, Officer Jacobs stopped Payne. The

      officer requested permission to perform a pat down and Payne consented.

      Officer Jacobs found a baggie of marijuana and a crack pipe. Detective

      Goergen appeared and identified Payne as the person he had seen near the

      controlled buy.


[7]   On August 12, 2013, Payne was issued a citation for Class A misdemeanor

      possession of marijuana2 and Class A misdemeanor possession of

      paraphernalia3 under cause number 82D05-1309-CM-4028 (“4028”). On

      November 22, 2013, Payne pled guilty to both and was sentenced to time

      served.


[8]   On January 30, 2014, the State charged Payne with Class A felony dealing in

      cocaine or a narcotic drug based on his presence at the controlled buy. Payne

      filed a motion to dismiss based on the statute prohibiting successive

      prosecution, Ind. Code § 35-41-4-4. The trial court denied his motion. A jury

      trial ended in a hung jury on April 2, 2014.


[9]   Then, on May 1, 2014, the State requested a hearing to determine the

      admissibility of enhanced digital images provided by the CI that purported to

      depict Payne at the controlled buy. The court determined the images were




      2
          Ind. Code § 35-48-4-11.
      3
          Ind. Code § 35-48-4-8.3.


      Court of Appeals of Indiana | Memorandum Decision 82A04-1407-CR-297 | March 20, 2015   Page 3 of 8
       admissible. Another jury trial commenced on May 12, 2014. The jury found

       Payne guilty of Class A felony dealing cocaine. The court sentenced Payne to

       forty-four years.


                                      Discussion and Decision
                                              1. Motion to Dismiss

[10]   “[W]e review a trial court’s denial of a motion to dismiss for an abuse of

       discretion. An abuse of discretion occurs where the decision is clearly against

       the logic and effect of the facts and circumstances or when the trial court has

       misinterpreted the law.” Haywood v. State, 875 N.E.2d 770, 772 (Ind. Ct. App.

       2007) (internal citations omitted).


[11]   Ind. Code § 35-34-41-10(c) provides in relevant part:

               A defendant who has been tried for one (1) offense may thereafter
               move to dismiss an indictment or information for an offense which
               [sic] could have been joined for trial with the prior offenses under
               section 9 of this chapter. The motion to dismiss shall be made prior to
               the second trial, and shall be granted if the prosecution is barred by
               reason of the former prosecution.
[12]   A second prosecution is barred by reason of the former prosecution if

               all of the following exist:
                       (1) There was a former prosecution of the defendant for a
                       different offense or for the same offense based on different facts.
                       (2) The former prosecution resulted in an acquittal or a
                       conviction of the defendant or in an improper termination
                       under section 3 of this chapter.
                       (3) The instant prosecution is for an offense with which the
                       defendant should have been charged in the former prosecution.

       Court of Appeals of Indiana | Memorandum Decision 82A04-1407-CR-297 | March 20, 2015   Page 4 of 8
       Ind. Code § 35-41-4-4. The circumstances here satisfy the first two prongs of

       the test because Payne was prosecuted for possession of marijuana and

       possession of paraphernalia and that prosecution resulted in his conviction of

       both counts. Thus, the issue is whether Payne “should have been charged”

       with the cocaine count in the former prosecution. See Williams v. State, 762

       N.E.2d 1216, 1219 (Ind. 2002) (analysing whether defendant “should have been

       charged”).


[13]   The language “should have been charged” must be read in conjunction with

       Indiana’s joinder statute. Id. It provides in relevant part:

               Two (2) or more offenses may be joined in the same indictment or
               information, with each offense stated in a separate count, when the
               offenses:
               (1) are of the same or similar character, even if not part of a single
               scheme or plan; or
               (2) are based on the same conduct or on a series of acts connected
               together or constituting parts of a single scheme or plan.
       Ind. Code § 35-34-1-9(a). Thus, where two or more charges are based on the

       same conduct or on a series of acts constituting parts of a single scheme or plan,

       “they should be joined for trial.” Williams, 762 N.E.2d at 1219 (quotation

       omitted). We must determine whether Payne’s offenses were part of a “single

       scheme or plan.” See id.


[14]   In Williams, Williams was fleeing officers immediately following controlled

       buy. Williams knew the officers were attempting to arrest him, and he hid in an

       empty apartment to evade the police who were chasing him. Williams was first


       Court of Appeals of Indiana | Memorandum Decision 82A04-1407-CR-297 | March 20, 2015   Page 5 of 8
       charged with residential entry and possession of cocaine. After a guilty plea

       and conviction, Williams was charged with dealing cocaine within 1,000 feet of

       a school and possession of cocaine within 1,000 feet of a school, based on the

       controlled buy that led to Williams’ entry of the residence while fleeing police.

       The Court held the subsequent charges were barred by the successive

       prosecution statute because they “were based on a series of acts so connected

       that they constituted parts of a single scheme or plan [and] should have been

       charged in a single prosecution.” Id. at 1220.


[15]   In contrast, Payne’s actions during the controlled buy were not connected to his

       possession of paraphernalia and marijuana. After Payne left the buy location,

       Officer Jacobs waited until he observed what he thought was a hand-to-hand

       transaction of drugs before approaching Payne. Payne was unaware police had

       been following him, and he was not stopped because of his actions during the

       controlled buy. The charges under “4028” involved possession of illegal drugs

       in amounts indicative of personal use, but the current charge pertains to dealing

       illegal drugs. The charges underlying the two causes of action against Payne

       were not so connected as to be “a single scheme or plan.” See, e.g., Thompson v.

       State, 966 N.E.2d 112, 118 (Ind. Ct. App. 2012) (no abuse of discretion when

       motion to dismiss denied because separate causes were not part of a “single

       scheme”). Therefore, the trial court did not abuse its discretion when it denied

       Payne’s motion to dismiss.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1407-CR-297 | March 20, 2015   Page 6 of 8
                                         2. Admissibility of Evidence

[16]   “[A] trial court’s ruling on the admissibility of evidence is reviewed for an abuse

       of discretion. We will reverse only where the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances.” Tolliver v. State, 922

       N.E.2d 1272, 1278 (Ind. Ct. App. 2010) (internal citations omitted), trans.

       denied.


[17]   Payne asserts the photographs from the controlled buy that the trial court

       admitted into evidence had been enhanced to such an extent that they were no

       longer authentic representations of the tattoos on the person who allegedly

       provided the drugs Allgood sold to the CI. We cannot find reversible error, as

       substantial independent evidence proved Payne was at the controlled buy and

       provided the cocaine that was sold to the CI.


[18]   Detective Goergen testified the person he located in the area of the controlled

       buy was the same person identified as Payne during questioning on the street.

       (Tr. at 141.) Larry Allgood, who set up the buy, testified Payne provided the

       drugs. (Id. at 192.) The CI identified Payne as the person who provided the

       drugs. (Id. at 214.) The accumulation of the evidence presented at trial leads us

       to believe any error in admitting the photos would have had no likely impact on

       the jury’s decision in this case. See, e.g., Meadows v. State, 785 N.E.2d 1112,

       1122 (Ind. Ct. App. 2003) (error harmless when substantial, independent

       evidence supports conviction), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1407-CR-297 | March 20, 2015   Page 7 of 8
                                                 Conclusion
[19]   The trial court did not abuse its discretion when it denied Payne’s motion to

       dismiss, and Payne cannot demonstrate prejudice from the trial court’s

       admission of the enhanced photos. Accordingly, we affirm.


[20]   Affirmed.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1407-CR-297 | March 20, 2015   Page 8 of 8
