MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Aug 31 2018, 8:11 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michelle F. Kraus                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         George P. Sherman
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark C. Morr,                                            August 31, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         57A03-1710-CR-2436
        v.                                               Appeal from the Noble Superior
                                                         Court
State of Indiana,                                        The Honorable Robert E. Kirsch,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         57D01-1701-F2-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018          Page 1 of 16
                                           Case Summary
[1]   Mark C. Morr (“Morr”) appeals his convictions for Dealing in

      Methamphetamine, as a Level 2 felony,1 Dealing Marijuana, as a Level 5

      felony,2 Maintaining a Common Nuisance, as a Level 6 felony,3 and Theft, as a

      Level 6 felony,4 and his adjudication as a habitual offender.5 We affirm in part,

      reverse in part, and remand for re-sentencing.



                                                   Issues
[2]   Morr presents three issues for review:


                  I.       Whether the trial court improperly admitted evidence
                           found during a search of Morr’s home because the search
                           warrant was unsupported by probable cause;


                  II.      Whether sufficient evidence supports the Theft conviction;
                           and


                  III.     Whether sufficient evidence supports the habitual offender
                           adjudication.




      1
          Ind. Code § 35-48-4-1.1(e)(1).
      2
          I.C. § 35-48-4-10(d)(2)(A)(i).
      3
          I.C. § 35-45-1-5(c).
      4
          I.C. § 35-43-4-2(a)(1)(B)(i).
      5
          I.C. § 35-50-2-8(d).


      Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018   Page 2 of 16
                              Facts and Procedural History
[3]   Late in the evening of December 28, 2016, Kendallville Police Officer Matthew

      Haber (“Officer Haber”) initiated a traffic stop after observing a vehicle turn

      without a signal and then cross the fog line. The driver, Boni Coffelt (“Coffelt”)

      was arrested upon the discovery of drug paraphernalia and methamphetamine

      in the vehicle. Coffelt produced marijuana that had been hidden in her clothing

      and expressed a willingness to cooperate with authorities. Ultimately, Coffelt

      gave police statements identifying Morr as her drug supplier.


[4]   During the early morning hours of December 29, 2016, law enforcement

      officers obtained a warrant to search Morr’s residence and executed the

      warrant. The search yielded large quantities of methamphetamine and

      marijuana,6 sawed-off shotguns, numerous other weapons, drug paraphernalia,

      and a ledger with names and amounts.


[5]   On January 5, 2017, the State of Indiana charged Morr with Dealing in

      Methamphetamine, Dealing Marijuana, Maintaining a Common Nuisance,

      and Theft. On February 14, 2017, the State alleged that Morr is a habitual

      offender. Morr filed a motion to suppress all evidence obtained in the

      execution of the search warrant at his residence. On March 3, 2017, the trial




      6
        Officers recovered a “barrel of marijuana” and containers and packages amounting to at least eighteen
      pounds of suspected illicit drugs. (Tr. Vol. III, pg. 73.) However, a precise weight is unknown because
      forensic scientists stopped testing the subject materials after analyzing several pounds that testing revealed to
      be methamphetamine and marijuana.

      Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018               Page 3 of 16
      court conducted an evidentiary hearing on the motion to suppress. At that

      hearing, the trial court heard testimony from Officer Haber, Kendallville

      Sheriff’s Department Sergeant Chris Moriarity (“Sergeant Moriarity”), Coffelt,

      and Morr’s girlfriend, Samantha (“Sam”) Souder. The motion to suppress was

      denied.


[6]   On August 29, 2017, Morr was tried in a bench trial, convicted as charged, and

      found to be a habitual offender. On September 22, 2017, the trial court

      sentenced Morr to twenty-five years imprisonment for Dealing in

      Methamphetamine, enhanced by eight years due to Morr’s possession of a

      sawed-off shotgun, and further enhanced by twelve years due to his status as a

      habitual offender. The trial court also imposed concurrent sentences of six

      years for Dealing in Marijuana and two and one-half years each for

      Maintaining a Common Nuisance and Theft, resulting in an aggregate sentence

      of forty-five years. Morr now appeals.



                                 Discussion and Decision
                                 Validity of Search Warrant
[7]   Morr asserts that the trial court should have granted his motion to suppress.

      Because Morr appeals following trial, the issue is more properly framed as

      whether the trial court abused its discretion by admitting the evidence obtained

      in the execution of the search warrant. Carpenter v. State, 18 N.E.3d 998, 1001

      (Ind. 2014). We review a trial court’s ruling on the admission or exclusion of

      evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind.
      Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018   Page 4 of 16
      1997). We reverse only where the decision is clearly against the logic and effect

      of the facts and circumstances before the trial court. Joyner v. State, 678 N.E.2d

      386, 390 (Ind. 1997).


[8]   According to Morr, the trial court erred in admitting all items of incriminating

      evidence found during the search of his home because the search warrant was

      not supported by probable cause. He argues that the requesting officer’s

      affidavit “failed to advise the Judge of material facts” and included “false and

      misleading representations [made] with a reckless disregard for the truth,” and

      that these deficiencies “thereby violated” his rights under the Fourth

      Amendment to the United States Constitution and Article 1, Sec. 11 of the

      Indiana Constitution. Appellant’s Brief at 11.


[9]   More particularly, Morr complains that the affidavit, executed by Sergeant

      Moriarity, did not include Officer Haber’s opinion that Coffelt had been

      untruthful during her traffic stop or reveal Coffelt’s drug possession or her

      stated motivation for cooperation, that is, she feared her child’s father would

      deny her visitation if she was incarcerated. And Morr claims that the issuing

      judge was misled by uncorroborated statements that Coffelt had been a reliable

      informant in the past and had recently provided information against her penal

      interests.




      Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018   Page 5 of 16
[10]   When the sufficiency of a search warrant affidavit is challenged under the

       Fourth Amendment,7 the reviewing court exercises its duty ‘“simply to ensure

       that [there was] a substantial basis for finding probable cause.”’ Watkins v.

       State, 85 N.E.3d 597, 603 (Ind. 2017) (quoting Illinois v. Gates, 462 U.S. 213, 238

       (1983)). The reviewing court owes “great deference” to the initial probable-

       cause determination, and will not invalidate warrants by interpreting probable

       cause affidavits “in a hypertechnical, rather than a commonsense, manner.” Id.

       (quotation omitted).


[11]   Article 1, Section 11 of the Indiana Constitution contains language nearly

       identical to that of the Fourth Amendment. The constitutional principles are

       codified in Indiana Code Section 35-33-5-2, detailing the information to be

       contained in an affidavit for a search warrant. Sparks v. State, 100 N.E.3d 715,

       720-21 (Ind. Ct. App. 2018). When law enforcement seeks a warrant based

       upon hearsay information, the affidavit must either:


                  (1) contain reliable information establishing the credibility of the
                      source and of each of the declarants of the hearsay and
                      establishing that there is a factual basis for the information
                      furnished; or




       7
           The Fourth Amendment to the United States Constitution 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, and no Warrants shall issue, but upon probable cause,
                  supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
                  things to be seized.




       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018                              Page 6 of 16
               (2) contain information that establishes that the totality of the
                   circumstances corroborates the hearsay.


       I.C. § 35-33-5-2(b). The trustworthiness of hearsay for proving probable cause

       can be established where (1) the informant has given correct information in the

       past, (2) independent police investigation corroborates the informant’s

       statements, (3) some basis for the informant’s knowledge is demonstrated, or (4)

       the informant predicts conduct or activity by the suspect that is not ordinarily

       easily predicted; however, the list is non-exhaustive. Sparks, 100 N.E.3d at 721.


[12]   Sergeant Moriarity’s affidavit provided, with respect to Coffelt’s representations

       and reliability, the following:


                     1. At approximately 11:12 p.m. on December 28, 2016,
                        officers with the Kendallville Police Department were
                        conducting an investigation of an impaired driver
                        identified as Bonnie [sic] Coffelt. While conducting the
                        investigation Mrs. Coffelt informed officers of the
                        location of large amounts of crystal methamphetamine.


                     2. Mrs. Coffelt reported that on Tuesday December 20,
                        2016 she was present at 11405 N. State Road 5, Ligonier,
                        Noble County, Indiana when 7 pounds of crystal
                        methamphetamine was delivered to a Mark Morr, whom
                        resides at this residence.


                     3. Mrs. Coffelt further advised that Mr. Morr mad[e] a trip
                        to California to obtain what she believed to be more
                        narcotics and returned on or about December 26, 2016.
                        Mrs. Coffelt stated that Mr. Morr has asked her to make
                        the trips with him or for him to California with the intent
                        to return with narcotics to the Noble County area.
       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018   Page 7 of 16
                     4. Mrs. Coffelt reported that on Tuesday December 27th she
                        was present and observed an “8 ball” (approx. 3.7 oz) of
                        crystal meth at the above location.


                     5. Mrs. Coffelt stated that on Tuesday December 28, 2016
                        she was met by Mark Morr and a Sam Sauder, with 2
                        grams of methamphetamine at a motel in Ligonier where
                        the 3 of them consumed the methamphetamine.


                     6. In the past week Mrs. Coffelt stated that she had
                        purchased ¼ oz of Methamphetamine from the [sic]
                        Mark Morr.


                     7. I have also been informed that there is an ongoing
                        narcotics investigation into the residence and Mr. Morr,
                        and that the investigation corroborates many of Mrs.
                        Coffelt’s statements. Further, I believe the statements of
                        Mrs. Coffelt to be truthful and credible because she has
                        made these statements against her own penal interests,
                        and because she has given credible information in the
                        past in other narcotics investigations.


       (State’s Ex. 1, pgs. 1-2).


[13]   A probable cause affidavit must include “material facts” known to law

       enforcement. Ware v. State, 859 N.E.2d 708, 718 (Ind. Ct. App. 2007), trans.

       denied. “The typical formulation of [omitted] ‘material’ facts is that they cast

       doubt on the existence of probable cause.” Query v. State, 745 N.E.2d 769, 772

       (Ind. 2001). Although it may not be practical to include all information related

       to an investigation in a probable cause affidavit, “the best course for police to




       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018   Page 8 of 16
       follow is to include any information that could conceivably affect a probable

       cause determination.” Ware, 859 N.E.2d at 719-20.


[14]   When material information is omitted from a probable cause affidavit, such

       omission will invalidate a warrant if (1) the police omitted facts with the intent

       to make the affidavit misleading or with reckless disregard for whether it would

       be misleading, and (2) the affidavit supplemented with the omitted information

       would have been insufficient to support a finding of probable cause. Id. at 718.

       It has been recognized that omissions from a probable cause affidavit are made

       with reckless disregard “if an officer withholds a fact in his ken that ‘[a]ny

       reasonable person would have known that this was the kind of thing the judge

       would wish to know.’” Gerth v. State, 51 N.E.3d 368, 375 (Ind. Ct. App. 2016)

       (quoting Wilson v. Russo, 212 F.3d 781, 788 (3rd Cir. 2000.).


[15]   Morr argues that a reasonable jurist would have desired to know information

       such as: Coffelt had made furtive movements when the traffic stop was

       initiated, she produced marijuana out of her pants, she was allegedly untruthful

       in response to Officer Haber’s inquiries,8 and she offered to help only after her

       arrest and in conjunction with expressing concern over her parental visitation

       rights.




       8
        Officer Haber had included in his police report his suspicion that Coffelt had given untruthful responses to
       some of his inquiries during the traffic stop.

       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018            Page 9 of 16
[16]   The text of the affidavit plainly indicates that Coffelt was a drug user

       apprehended upon suspicion of driving while impaired. A reasonable jurist

       would likely infer that Coffelt was in legal jeopardy and highly motivated to

       escape the consequences of her actions. Indeed, at the suppression hearing,

       Officer Haber testified that he did not relay his opinion of Coffelt’s veracity to

       Sergeant Moriarity because it is “common knowledge” that drug users lie when

       questioned about their activities. (Tr. Vol. II, pg. 45.) Officer Haber explained

       that he had transferred Coffelt to Sergeant Moriarity to make a formal

       statement and “told what was important” to Sergeant Moriarity. (Id. at 44.)

       He did not address Coffelt’s conduct during the traffic stop or her expressed

       parental concerns. Although the affidavit did not include all details known of

       Coffelt’s background and current circumstances, the affidavit did not portray

       her as a concerned citizen who provided information without personal

       motivation.9 Morr has made no showing that Sergeant Moriarity omitted a fact

       with intent to mislead or with reckless regard or that an affidavit supplemented

       with the additional information would have been inadequate.


[17]   Beyond challenging the omission of facts, Morr challenges the inclusion of

       others. He claims that Sergeant Moriarity made false statements by averring

       that Coffelt had provided credible information in the past and by describing




       9
         There are two general categories of informants: professional informants and cooperative citizens. Clifford v.
       State, 474 N.E.2d 963, 969 (Ind. 1985). An eyewitness or crime victims may be considered presumptively
       reliable unless circumstances exist which call into question their credibility. See Pawloski v. State, 269 Ind.
       350, 380 N.E.2d 1230, 1232-33 (1978).

       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018            Page 10 of 16
       criminal activity alleged by Coffelt without attempting to corroborate the

       allegations. A warrant issued by a trial judge or magistrate is presumptively

       valid; thus, when a defendant claims that the search warrant contained

       information known to be false, he bears the burden of showing that the relevant

       matter expressed in the affidavit was untrue. Brock v. State, 540 N.E.2d 1236,

       1239 (Ind. 1989). In reviewing the question, we do not weigh the evidence nor

       judge the credibility of witnesses, as these functions are entrusted to the trial

       court. Id.


[18]   Citing Gerth v. State, 51 N.E.3d at 373, Morr argues that the statement of

       Coffelt’s past provision of information is an example of a “bare bones” or

       “generic” representation generally regarded as insufficient to establish an

       informant’s credibility. However, Morr concedes that Coffelt and her husband

       had in the past worked with law enforcement officers assigned to investigate

       illegal drug activity. He points to one officer’s assessment that Coffelt’s

       husband had been the more valuable informant and the officer had evaluated

       some of Coffelt’s information with skepticism. Morr’s argument in this regard

       presents a classic request for reweighing of evidence, an invitation we reject.

       Brock, 540 N.E.2d at 1239.


[19]   Morr additionally suggests that Coffelt’s credibility was questionable because

       she was caught “red-handed” with “drugs in her possession,” Appellant’s Brief

       at 14, and did not provide statements that were “against her own penal

       interests,” (State’s Ex. 1), as attested to by Sergeant Moriarity. Upon her arrest,

       Coffelt extracted marijuana from inside her clothing and gave it to police.

       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018   Page 11 of 16
       Coffelt had been driving a vehicle in which methamphetamine was found.

       Although Coffelt claimed that the methamphetamine belonged to her

       passenger, it is apparent that she was proverbially “caught red-handed” with

       contraband and the State possessed information to use against her.

       Nevertheless, Coffelt provided additional self-incriminating information when

       she admitted to purchasing methamphetamine from Morr in the recent past and

       to using methamphetamine provided by Morr in a local hotel room. And

       Sergeant Moriarity testified at the suppression hearing that Coffelt admitted to

       selling methamphetamine for a profit on two prior occasions. In short, the trial

       court had a basis upon which to find that Coffelt provided statements against

       her penal interests; the weight to be assigned and the credibility determination

       were within its purview. Brock, 540 N.E.2d at 1239.


[20]   We acknowledge that, even where an informant has been proven reliable in the

       past, the requirement for corroboration is not eliminated. Cartwright v. State, 26

       N.E.3d 663, 669 (Ind. Ct. App. 2015). Here, however, the record does not

       support Morr’s claim that the police simply relied upon Coffelt’s accusations

       against Morr without any efforts to corroborate. Rather, the police conducted a

       background check, verified Morr’s address, and discovered that Morr already

       had “pending charges” related to narcotics activity. (Tr. Vol. II, pg. 76.) In

       sum, Morr has failed to show that a false statement, or one made with reckless

       disregard for the truth, was contained in the affidavit supporting the warrant to

       search Morr’s residence.




       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018   Page 12 of 16
[21]   The search warrant was based on a practical, commonsense decision that there

       was a fair probability that contraband or evidence of a crime would be found in

       Morr’s residence. The warrant was supported by probable cause and the trial

       court did not err in admitting the evidence obtained in its execution.


                           Sufficiency of the Evidence – Theft
[22]   Morr challenges the sufficiency of the evidence to support his conviction for

       theft of firearms, contending that there was no evidence of his taking the items.

       He also points out that police officers discovered that the guns were stolen only

       after a serial numbers check and thus a person other than the thief would have

       no reason to know that they were stolen.


[23]   When reviewing the sufficiency of the evidence to support a criminal

       conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider the evidence supporting

       the judgment and the reasonable inferences that can be drawn from such

       evidence and will affirm if there is substantial evidence of probative value such

       that a reasonable trier of fact could have concluded the defendant was guilty

       beyond a reasonable doubt. Id.


[24]   To convict Morr of Theft, as a Level 6 felony, as charged, the State was

       required to prove beyond a reasonable doubt that Morr knowingly or

       intentionally exerted unauthorized control over firearms of James Croy

       (“Croy”), having a value of at least $750.00, with intent to deprive Croy of the

       property’s use or value. The State is required to offer evidence to show that the

       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018   Page 13 of 16
       defendant either stole an item in question or knew that it was stolen. See Fortson

       v. State, 919 N.E.2d 1136, 1143 (Ind. 2010) (“the mere unexplained possession

       of recently stolen property standing alone does not automatically support a

       conviction for theft.”)


[25]   Sergeant Moriarity testified that a serial numbers search revealed that some of

       the guns recovered in Morr’s residence had been reported as stolen. He

       acknowledged that he did not know how long the guns had been located at

       Morr’s property, who put them there, or who took them from the owner’s

       location. Croy testified that twenty-two weapons had been stolen from his

       residence; he examined photographs produced at trial and identified some of

       the guns depicted as his property. Because the State did not produce evidence

       from which the fact-finder could conclude beyond a reasonable doubt that Morr

       stole the guns or knew them to be stolen, this conviction must be reversed for

       insufficient evidence.


                              Habitual Offender Adjudication
[26]   Morr was alleged to be a habitual offender under Indiana Code Section 35-50-2-

       8(d)(2) (2015), providing that a person convicted of a felony may have his or her

       sentence enhanced if:


               (1) the person has been convicted of three (3) prior unrelated
                   felonies; and


               (2) if the person is alleged to have committed a prior unrelated:



       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018   Page 14 of 16
                    (A)Level 5 felony;


                    (B) Level 6 felony;


                    (C) Class C felony; or


                    (D)Class D felony;


                    Not more than ten (10) years have elapsed between the time
                    the person was released from imprisonment, probation, or
                    parole (whichever is latest) and the time the person committed
                    the current offense.


[27]   Morr claims that his habitual offender adjudication must be reversed because

       his adjudication rests on proof of convictions of three Class D felonies, one of

       which was committed more than ten years prior to the instant offenses.

       Specifically, the State adduced evidence that Morr had been convicted of

       Criminal Recklessness, Intimidation, and Unlawful Sale of a Precursor, all as

       Class D felonies. The judgment upon Morr’s plea of guilty to Criminal

       Recklessness was entered in May of 1999 and he had served his sentence more

       than ten years before the December 2016 crimes.


[28]   In Johnson v. State, 87 N.E.3d 471 (Ind. 2017), our Indiana Supreme Court

       interpreted the language under which Morr was alleged to be a habitual

       offender.10 The Court found the statutory language to be “unambiguous” and




       10
         At the time of Morr’s trial, the parties were aware that the Johnson case was pending. The State pursued
       the habitual offender adjudication with the agreement that, if Johnson was decided to require each of the

       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018         Page 15 of 16
       declared: “the plain meaning of the 2015 version of subsection 8(d) requires that

       each lower-level felony – namely a Level 5, Level 6, Class C, or Class D felony

       – the State uses to establish subsection 8(d)(1) must meet the ten-year

       requirement found in subsection 8(d)(2). Id. at 473. Because the State relied

       upon a felony outside the ten-year requirement to establish Morr’s habitual

       offender status, his adjudication must be reversed.


[29]   In Coble v. State, 523 N.E.2d 228, 229 (Ind. 1988), our Supreme Court held that

       when a habitual offender enhancement is vacated on appeal, the trial court has

       the authority on remand to resentence the defendant on the underlying felony

       to which the habitual enhancement had been attached. We remand to allow

       the trial court the opportunity for resentencing.



                                                   Conclusion
[30]   Morr did not present evidence sufficient to overcome the presumption of the

       search warrant’s validity. His conviction for Theft and his habitual offender

       adjudication are vacated. Finally, we remand for resentencing.


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


       Mathias, J., and Bradford, J., concur.



       prerequisite felonies to meet the ten-year requirement, the State would not oppose a request from Morr to
       vacate his adjudication. The language of the habitual offender statute has since been amended, in 2017, to
       provide “not more than ten (10) years have elapsed between the time the person was released from
       imprisonment, probation, or parole (whichever is latest) for at least one (1) of the three (3) prior unrelated
       felonies and the time the person committed the current offense.” I.C. § 35-50-2-8(d).

       Court of Appeals of Indiana | Memorandum Decision 57A03-1710-CR-2436 | August 31, 2018             Page 16 of 16
