MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              May 31 2019, 9:13 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Rory Gallagher                                          Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Corey Nickles Morris,                                   May 31, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1264
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Alicia Gooden,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G21-1502-F2-5941



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019                    Page 1 of 21
                                       Statement of the Case

[1]   Corey Morris (“Morris”) appeals his convictions and adjudication as an

      habitual offender. Morris argues that: (1) the trial court abused its discretion by

      admitting certain evidence obtained following the execution of a search warrant

      and an investigative stop, maintaining that the search warrant affidavit lacked

      probable cause and the investigative stop lacked reasonable suspicion; and (2)

      the trial court erred by allowing the State to refile an habitual offender

      enhancement. Concluding that the trial court did not abuse its’ discretion and

      that Morris has waived review of his habitual offender enhancement argument,

      we affirm the trial court.


[2]   We affirm.


                                                    Issues

                1. Whether the trial court abused its discretion by admitting
                certain evidence.

                2. Whether Morris waived review of his habitual offender
                enhancement argument.

                                                     Facts

[3]   Between January 11, 2015 and February 14, 2015, an undercover detective and

      member of a multi-agency Indianapolis Metropolitan Drug Task Force

      (“Undercover Detective”) purchased heroin from an unwitting individual

      (“Unwitting Individual”), known to be able to secure heroin, and Morris on

      four separate occasions. The first heroin purchase occurred between January
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 2 of 21
      11, 2015 and January 13, 2015. During this purchase, Undercover Detective

      contacted Unwitting Individual. They met in a parking lot and Unwitting

      Individual called his/her source for heroin. Shortly thereafter, a black Ford

      Escape with a New York license plate driven by a black male arrived.

      Unwitting Individual walked directly to the Escape, got inside for short amount

      of time, and then after exiting, walked directly back to the vehicle where

      Undercover Detective was waiting. After Unwitting Individual left the Escape,

      the vehicle immediately departed and was followed by police surveillance units

      to the area of 62nd Street and Coffman Road, where the surveillance was

      ultimately terminated.


[4]   Approximately ten days later, Detective Randall Dings (“Detective Dings”),

      who was with the Hamilton County Sheriff’s Department and a member of the

      multi-agency drug task force, was in the area of 56th Street and Georgetown

      Road when he saw the same black Ford Escape from the first heroin purchase.

      He observed a black male driving the vehicle. Detective Dings followed the

      vehicle to a condominium complex near 62nd Street and Coffman Road, where

      it parked in an open garage connected to the residence of 4837 Shallow Water

      Place (“the Condo”). Detective Dings then observed the male driver walk from

      the garage to the front door of the Condo.


[5]   Between January 23, 2015 and January 25, 2015, Undercover Detective

      arranged a second heroin purchase from Unwitting Individual. The same black

      Escape driven by a black male again arrived to meet Unwitting Individual.

      Unwitting Individual informed Undercover Detective that the driver of the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 3 of 21
      Escape was his/her source for heroin. After Unwitting Individual exited the

      Escape, it immediately left the area.


[6]   For heroin purchase number three, law enforcement surveilled the Condo

      before the purchase. They saw the Escape driven during the first two

      purchases. The officers also observed the garage door of the Condo open, and a

      black male wearing a multi-colored shirt standing in the garage. After

      Unwitting Individual made the call, surveillance observed the black male walk

      from the garage area and enter the front passenger seat of a black truck. Law

      enforcement followed the black truck from the Condo to the parking lot where

      Undercover Detective and Unwitting Individual were waiting to make a

      purchase. Unwitting Individual advised Undercover Detective that anytime

      “he/she sees the guy with dreads that is the same source of supply as buys 1 &

      2.” (App. 68). Undercover Detective observed that the male front passenger of

      the black truck was wearing a multi-colored shirt and had dreads. After

      Unwitting Individual left the truck, it immediately left the area, and law

      enforcement followed it back to the Condo. There, surveillance units observed

      the front seat passenger, the black male with dreads, exit the truck and use a key

      to enter the front door of the Condo.


[7]   For the fourth heroin purchase, law enforcement again conducted surveillance

      of the Condo and the parking lot where Undercover Detective met Unwitting

      Individual. After Unwitting Individual called the source, surveillance units

      observed a black Chevy Impala, driven by a black male wearing a gray

      sweatshirt, exit the garage at the Condo. Law enforcement followed the Impala

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 4 of 21
      to the location where Undercover Detective and Unwitting Individual were

      waiting to make a purchase. After Unwitting Individual exited the Impala,

      surveillance followed the Impala to the Condo, where it pulled into the garage.


[8]   Based upon the facts and circumstances surrounding the four heroin purchases

      and surveillance of the Condo performed, Detective Dings drafted a search

      warrant affidavit. In addition to the details of the four heroin purchases

      described above, the search warrant affidavit contained, in relevant part, the

      following:


              From this investigation, observations of law enforcement and the
              pattern for the controlled transactions which includes a phone
              call by the unwitting individual to the heroin supplier and the
              subsequent actions of the black male who leaves 4837 Shallow
              Water Place to meet with the unwitting individual, I have good
              cause to believe that the source who supplies the unwitting
              individual with the heroin sold to the undercover detective
              during these transactions lives at 4837 Shallow Water Place and
              that the heroin that is being supplied to the unwitting individual
              who is acting as a “middle man” dealer during this investigation
              is being kept at the residence of 4837 Shallow Water Place.

      (App. 69).

[9]   A commissioner issued Detective Dings a search warrant for the Condo. Prior

      to executing the warrant on February 15, 2015, Detective Dings and another

      detective surveilled the Condo for approximately ninety minutes. Detective

      Dings also distributed a photograph of Morris to all officers assisting him. At

      some point, the black Impala from the fourth heroin purchase exited the Condo

      garage. The assisting detective saw that the driver of the Impala was a black

      male and had “the same similar hairstyle” as Morris did in the photo. (Tr. Vol.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 5 of 21
       2 at 55). Law enforcement followed the Impala and initiated a traffic stop.

       Because law enforcement had previously been given a photograph of Morris,

       the officer who pulled the Impala over positively identified Morris as the driver.

       Morris was taken into custody, and the police found a set of keys on his person.

       One of the keys was used later by law enforcement to enter the Condo.


[10]   The police then took Morris to the Condo where they executed the search

       warrant. They brought Morris inside and read him his Miranda rights, which he

       stated he understood. Morris proceeded to inform law enforcement that his

       bedroom was at the end of the hall. However, law enforcement found clothing

       and other property that belonged to Morris in the middle bedroom. Inside the

       middle bedroom, law enforcement found a pair of tennis shoes matching

       Morris’ size. Inside the right tennis shoe, police found a letter addressed to

       Morris, as well as an oxycodone pill and a bag containing heroin. Inside the

       left tennis shoe, police found a second bag of heroin. On a shelf near the tennis

       shoes, law enforcement found a third bag containing heroin and three

       oxycodone pills. In total, law enforcement recovered 20.07 grams of heroin

       from this bedroom. They also found a shopping bag with $964 in cash and a

       pair of khaki pants that also contained approximately $12,000 in cash in the

       middle bedroom. Morris admitted that the letter and oxycodone pills belonged

       to him, but he denied ownership of the heroin and money. Inside the kitchen,

       law enforcement found several bags of heroin. They also recovered Dormin, a

       sleep aid commonly used as a cutting agent; a Magic Bullet blender, which is




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 6 of 21
       commonly used to mix heroin and cutting agents; a press, which is commonly

       used to compact the heroin mixture into a brick; and several scales.


[11]   The State charged Morris with Count 1, Level 2 felony dealing in a narcotic

       drug (heroin); Count 2, Level 3 felony possession of a narcotic drug weighing at

       least twenty-eight grams (heroin); and Count 3, Level 6 felony possession of a

       narcotic drug (oxycodone). The State also alleged that Morris was an habitual

       offender.


[12]   On June 1, 2015, Morris filed a motion for a Franks1 hearing, claiming that

       Detective Dings’ characterization of the four heroin purchases as “controlled”

       transactions in the search warrant affidavit was materially false and misleading.

       (App. 69). That same day, Morris also filed a motion to suppress, claiming that

       the traffic stop was unlawful and that the evidence obtained as a result of the

       stop would be inadmissible. Morris specifically argued that the “key [obtained]

       from the Defendant[,] which was later used to enter the premises[,]” should be

       excluded. (App. 52). On June 30, 2015, the trial court held a hearing on the

       motion for a Franks hearing. The trial court also considered the lawfulness of




       1
         In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the United States Supreme Court held that “where the
       defendant makes a substantial preliminary showing that a false statement knowingly or intentionally, or with
       reckless disregard for the truth, was included by the affiant in the warrant affidavit, and [was] necessary to the
       finding of probable cause, the Fourth Amendment requires that a hearing be held.” A hearing at which the
       defendant is allowed to attack the validity of a search warrant in such a manner is referred to as a “Franks
       hearing.” See Haynes v. State, 411 N.E.2d 659, 661 (Ind. Ct. App. 1980).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019                         Page 7 of 21
       the traffic stop. After the hearing on both motions, the trial court denied the

       Franks motion and the motion to suppress.


[13]   On March 17, 2016, this matter proceeded to jury trial. The State presented

       testimony from Detective Dings and three other law enforcement officers

       involved with the execution of the search warrant. 2 In addition to the facts

       above, Detective Dings discussed the additional surveillance he conducted on

       the Condo. He stated that he observed a black male, later identified as Morris,

       at the Condo “on multiple occasions.” (Tr. Vol. 2 at 221). Detective Dings

       estimated that he observed Morris on “[m]ore than 10[]” occasions and that he

       drove “[a] newer model Ford Escape, and a black, newer model, Chevy

       Impala.” (Tr. Vol. 2 at 222).


[14]   Before closing arguments, the trial court instructed the jury on two lesser-

       included offenses: (1) Level 4 felony possession of a narcotic drug weighing

       between ten and twenty-eight grams as a lesser-included offense to the Level 3

       felony possession of narcotic drug charge; and (2) Level 6 felony maintaining a

       common nuisance as a lesser-included offense to the Level 2 felony dealing in a

       narcotic drug. The jury found Morris guilty on the two lesser-included charges

       of Level 4 felony possession of a narcotic drug and Level 6 felony maintaining a

       common nuisance, as well as on the original charge of Level 6 felony

       possession of a narcotic drug. The jury did not reach a unanimous verdict on




       2
           Undercover Detective and Unwitting Individual did not testify.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 8 of 21
       Count 1, Level 2 felony dealing in a narcotic drug and returned a verdict of not

       guilty on Count 2, Level 3 felony possession of a narcotic drug weighing at least

       twenty-eight grams.


[15]   After the verdicts were read, the State indicated a hesitation with accepting the

       jury’s verdict because it was unsure if it would be able to re-try the Level 2

       dealing charge due to the Level 4 felony possession conviction and the

       evidentiary issue that “dealing kind of includes possession. Like he had to

       possess it to deal it.” (Tr. Vol. 3 at 141). The State raised the prospect of asking

       for a mistrial on all counts, but the trial court indicated an unwillingness to

       grant such a request. The parties discussed the matter further, and before the

       jury reconvened for the habitual phase of the trial, the State explained that it did

       not want to attach the habitual offender allegation to the Level 4 felony

       conviction and that it wanted to dismiss the habitual offender enhancement.

       The State also requested that the Level 2 felony dealing charge and the habitual

       offender allegation be stayed for retrial. In direct response, defense counsel

       stated: “And we would agree that he be released and then we would have

       further time to either negotiate or come back.” (Tr. Vol. 3 at 146). Thereafter,

       the parties discussed the best procedural process going forward and the

       following colloquy ensued:


               [Defense Counsel]: All right. So we waive the habitual, come
               back.

               The Court: I think you –

               [Defense Counsel]: I mean, waive the jury trial for the habitual,
               come back for –

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 9 of 21
               [The State]: Or I can dismiss the habitual.

               The Court: I think that’s the wise thing to do.

               [The State]: And then file it prior to – because then it would only
               be able to attach to the level two felony.

               [Defense Counsel]: And that’s the issue that pops out?

               [The State]: Yes.

               [Defense Counsel]: Okay.

               The Court: Yeah. I think that’s the smarter thing to do.

               [The State]: Do I need to –

               [Defense Counsel]: Well, then that –

               [The State]: Can I just orally move to –

               [Defense Counsel]: - that cleans it up.

       (Tr. Vol. 3 at 149).


[16]   Thereafter, the trial court found a hung jury on Count 1 and entered judgments

       of conviction on the counts for which the jury returned guilty verdicts. The

       State then orally moved to dismiss the habitual offender allegation. The State

       also filed a written motion to dismiss the habitual offender allegation with the

       notation that it was “to be re-filed.” (App. 155). Morris waived his right to be

       sentenced within 30 days of the date of conviction and was released on bond.


[17]   At a subsequent pre-trial conference, the State informed the trial court that it

       would not seek a retrial on Count 1, the Level 2 dealing charge. The State then

       moved to amend the existing charging information to refile the habitual

       offender enhancement. In its motion, the State explained that it had


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 10 of 21
       “determined that it cannot go forward with a retrial on Count I, Dealing in a

       Narcotic Drug, Level 2 felony, as the Court denied the State’s motion for a

       mistrial as to all counts on March 18, 2016, and entered judgment of conviction

       as to Count III, which is factually a lesser-included offense of Count I.” (App.

       157). Morris objected to the motion to amend.


[18]   The trial court held a hearing on the State’s motion to amend. Relying on

       INDIANA CODE § 35-50-2-8(h), Morris argued that if the court were to grant the

       State’s motion, the same jury that found Morris guilty of the three counts would

       have to reconvene to determine whether he was an habitual offender. The trial

       court rejected Morris’ statutory argument and found that there was no authority

       that prohibited a second jury from deciding the habitual phase of the trial. The

       trial court granted the State’s motion to amend and found that Morris’

       substantial rights were not prejudiced by permitting the State to refile the

       habitual offender enhancement. The trial court explained:


               The habitual was filed I think sometime in February or March of
               2015 . . . when the original charges were filed, and its been
               pending ever since. [E]ven at the time of the jury, at the
               conclusion of the jury trial it was noted on the record that even
               though the State was choosing to dismiss the habitual, that was
               going to be refiled. So, I think there was knowledge all along
               that, the habitual offender count was going to be pursued by the
               State, so I definite[ly] think the motion to amend, and the
               granting of such by the court is fairly clear cut.

       (Tr. Vol. 2 at 77-78).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 11 of 21
[19]   Thereafter, Morris waived his right to a jury trial on the habitual phase. The

       trial court then heard evidence on the habitual offender allegation and found

       that Morris was an habitual offender.


[20]   At the sentencing hearing, the trial court imposed an eight (8) year sentence for

       the Level 4 felony conviction and enhanced the sentence by eight (8) years for

       the habitual offender enhancement. The trial court also imposed executed

       terms of one (1) year for each of the two Level 6 felony convictions, to be

       served concurrently with the Level 4 felony. Thus, the trial court imposed an

       aggregate executed sentence of sixteen (16) years. Morris now appeals.


                                                   Decision

[21]   On appeal, Morris argues that: (1) the trial court abused its discretion by

       admitting certain evidence; and (2) the trial court erred by permitting the State

       to amend the charging information. We address each of his contentions in

       turn.


       1. Admission of Evidence


[22]   Morris first contends that the statements made and the drugs and money that

       the State seized from the Condo are inadmissible because the search warrant

       affidavit lacked probable cause. Next, Morris argues that the key obtained from

       his person is inadmissible because the investigative stop lacked reasonable

       suspicion. He frames this issue as whether the court erred by denying his

       motion to suppress. Because Morris is appealing following a conviction, we


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 12 of 21
       note that Morris’ challenge would more appropriately be framed as whether the

       trial court properly admitted the evidence at trial. See Fry v. State, 25 N.E.3d

       237, 243 (Ind. Ct. App. 2015), trans. denied. A trial court has broad discretion in

       ruling on the admissibility of evidence and we will disturb its rulings only where

       it is shown that the court abused that discretion. Halliburton v. State, 1 N.E.3d

       670, 675 (Ind. 2013). An abuse of discretion occurs when the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before it. Id.


       A. Search Warrant


[23]   Morris first argues that the search warrant affidavit lacked probable cause

       because it “falsely states that police conducted a series of ‘controlled

       transactions[]’” and that the evidence obtained from the Condo should have be

       suppressed. (Morris’ Br. 13).


[24]   The Fourth Amendment of the United States Constitution provides that citizens

       have the right to be “secure in their persons, houses, papers, and effects, against

       unreasonable searches and seizures[.]” U.S. CONST. amend. IV. When

       officers secure a warrant ordering them to search a particular place, their

       actions are presumptively lawful, and “the burden is upon the defendant to

       overturn that presumption.” Jones v. State, 783 N.E.2d 1132, 1136 (Ind. 2003).

       When a defendant establishes “that the affidavits used to obtain the warrant

       contain perjury by the affiant, or a reckless disregard for the truth by him, and

       the rest of the affidavit does not contain materials sufficient to constitute


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 13 of 21
       probable cause[,]” the warrant may be invalidated. Id. (citing Franks, 438 U.S.

       at 154). “[M]istakes and inaccuracies of fact stated in a search or arrest warrant

       affidavit will not vitiate the reliability of the affidavits so long as such mistakes

       were innocently made.” Utley v. State, 589 N.E.2d 232, 236-37 (Ind. 1992).


[25]   As a reviewing court, our duty “is simply to ensure that [there was] a

       substantial” basis for finding probable cause. Illinois v. Gates, 462 U.S. 213, 238

       (1983). “Substantial basis requires the reviewing court, with significant

       deference to the magistrate’s determination, to focus on whether reasonable

       inferences drawn from the totality of the evidence support the determination[]”

       of probable cause. Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997). We owe

       “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.” Gates, 462 U.S. at 236.

       Even if the defendant can make these showings, a reviewing court will not

       automatically overturn the warrant, but will excise the offending provisions

       from the warrant application. Utley, 589 N.E.2d at 236.


[26]   “A court may issue warrants only upon probable cause, supported by oath or

       affirmation[.]” IND. CODE § 35-33-5-1. INDIANA CODE § 35-33-5-2 specifies

       the minimum information necessary to establish probable cause and provides in

       relevant part:

          (a) Except as provided in section 8 of this chapter, and subject to the
          requirements of section 11 of this chapter, if applicable, no warrant for
          search or arrest shall be issued until there is filed with the judge an
          affidavit:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 14 of 21
            (1) particularly describing:

               (A) the house or place to be searched and the things to be
               searched for; or

               (B) particularly describing the person to be arrested;

            (2) alleging substantially the offense in relation thereto and that the
            affiant believes and has good cause to believe that:

               (A) the things sought are concealed there; or

               (B) the person to be arrested committed the offense; and

            (3) setting forth the facts known to the affiant through personal
            knowledge or based on hearsay, constituting the probable cause.

       “‘An affidavit demonstrates probable cause to search premises if it provides a

       sufficient basis of fact to permit a reasonably prudent person to believe that a

       search of those premises will uncover evidence of a crime.’” Merritt v. State, 803

       N.E.2d 257, 260 (Ind. Ct. App. 2004) (quoting Hensley v. State, 778 N.E.2d 484,

       488 (Ind. Ct. App. 2002)).


[27]   Here, the search warrant affidavit provided a substantial basis to support a

       probable cause determination and issuance of a warrant for the Condo. The

       third and fourth heroin purchases tied the vehicles in which Morris brought

       heroin to Unwitting Individual and Undercover Detective to the Condo.

       During these purchases, law enforcement conducted surveillance of the Condo,

       as well as the parking lot where Undercover Detective met Unwitting

       Individual. When Unwitting Individual made the call for the purchases, law

       enforcement observed Morris leave the Condo. They followed him to where

       Unwitting Individual and Undercover Detective were waiting. After the

       purchases, Morris was followed and observed using a key to enter the Condo.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 15 of 21
       The search warrant affidavit also describes additional surveillance conducted on

       the Condo that not only placed Morris entering and exiting the Condo on

       several occasions, but also tied him to the Escape and Impala.


[28]   Despite this information tying the Condo to the heroin purchases, Morris

       contends that the affidavit’s characterization of the four purchases as

       “controlled transactions” was a materially false statement. (App. 69). He

       argues that “[w]hen the false statement about controlled transactions is excised

       from the search warrant affidavit, what’s left is Unwitting’s hearsay[,]” which

       cannot support a finding of probable cause. (Morris’ Br. 20). We disagree. As

       described above, what precedes the phrase is several pages of detailed

       descriptions of firsthand observations by law enforcement officers. “The

       affidavit thus provided a substantial basis for finding that the ‘particular place

       contains evidence of a crime.’” Watkins v. State, 85 N.E.3d 597, 604 (Ind. 2017)

       (quoting Membres v. State, 889 N.E.2d 265, 275 (Ind. 2008) (emphasis omitted)).

       The warrant was based on a “‘practical, commonsense decision’” that there was

       “‘a fair probability that contraband or evidence of a crime’” would be found at

       the Condo. Id. (quoting Query v. State, 745 N.E.2d 769, 771 (Ind. 2001)). Even

       assuming Morris could prove that the phrase “controlled transactions,” which

       appears only once in the ten-page affidavit, was an inaccurate description of

       what occurred, probable cause for the search still exists. We hold that there was

       adequate information in the affidavit to support a probable cause determination

       and issuance of a warrant for the Condo. Thus, the trial court did not abuse its

       discretion when it admitted the evidence seized from the Condo.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 16 of 21
       B. Investigative Stop


[29]   Morris next argues that the key seized from his person is inadmissible because it

       was obtained during an investigative stop not based on reasonable suspicion of

       criminal activity. Specifically, Morris argues that “all evidence that flowed

       from [the investigative] stop, including any incriminating statements made by

       Morris[,]” is inadmissible.3 (Morris’ Br. 26).


[30]   It is well settled that reasonable suspicion to justify an investigative stop must

       be based on specific and articulable facts known to the officer at the time of the

       stop that leads the officer to believe that “criminal activity may be afoot.” Terry

       v. Ohio, 392 U.S. 1, 30 (1968). Reasonable suspicion requires more than mere

       hunches or unparticularized suspicions. Id. at 27. An officer must be able to

       point to specific facts giving rise to reasonable suspicion of criminal activity.

       Finger v. State, 799 N.E.2d 528, 534 (Ind. 2003). The reasonable suspicion

       inquiry is highly fact-sensitive and is reviewed under a sufficiency of the

       evidence standard. Id. at 533. Like any matter of sufficiency of the evidence,

       “‘[t]he record must disclose substantial evidence of probative value that

       supports the trial court’s decision. We do not reweigh the evidence and we




       3
         In his Reply Brief, Morris clarifies that the specific evidence alluded to in this statement includes: (1) the
       key Morris possessed to the Condo; (2) Morris’ statement that one of the bedrooms belonged to him; (3)
       Morris’ admission regarding the oxycodone pills; and (4) that he was present at the Condo on the day police
       executed the search warrant. Because his argument extends to the evidence obtained pursuant to a lawful
       search warrant, we limit our review to the key obtained from his person.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019                       Page 17 of 21
       consider conflicting evidence most favorably to the trial court’s ruling.’” Id.

       (quoting Goodner v. State, 714 N.E.2d 638, 641 (Ind. 1999) (citations omitted)).


[31]   Here, the police had reasonable suspicion to believe that the driver of the

       Impala was the same individual who supplied Unwitting Individual with

       heroin. Law enforcement conducted an extensive operation with detailed

       surveillance. Detective Dings testified that he previously observed a person

       later identified as Morris driving the Impala. He also stated that he had never

       observed anyone other than Morris drive that vehicle from the Condo. On the

       date the search warrant was executed, Detective Dings distributed a picture of

       Morris to other law enforcement officers. They then observed the Impala exit

       the Condo’s garage. An assisting detective saw that the driver of the Impala

       was a black male and had “the same similar hairstyle” as Morris did in the

       photo. (Tr. Vol. 2 at 55).


[32]   We conclude that there was reasonable suspicion to stop Morris. Morris’

       argument to the contrary ignores the axiom that “an investigative stop may be

       based upon the collective information known to the law enforcement

       organization as a whole.” State v. Glass, 769 N.E.2d 639, 643 (Ind. Ct. App.

       2002), trans. denied. As described above, there was reasonable suspicion to

       believe that the driver of the Impala was the same individual who supplied

       Unwitting Individual with heroin. Law enforcement was only required to have

       a “reasonable suspicion” to stop Morris, not “absolute certainty” that Morris

       was involved in illegal activity. See Rutledge v. State, 28 N.E.3d 281, 290 (Ind.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 18 of 21
       Ct. App. 2015) (stating that “Terry does not require absolute certainty of illegal

       activity”).


       2. Habitual Offender Enhancement


[33]   Finally, Morris argues that the trial court erred by permitting the State to

       amend the charging information to refile the habitual offender allegation after

       the parties agreed to procedurally postpone the habitual offender proceeding.


[34]   Morris, however, has waived appellate review of his argument because his

       argument on appeal is not the argument he presented to the trial court. As we

       have long held, “[a]ny grounds for objections not raised at trial are not available

       on appeal, and a party may not add to or change his grounds in the reviewing

       court.” Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017), trans. denied.

       Below, Morris relied on INDIANA CODE § 35-50-2-8(h), arguing that the

       habitual offender enhancement could not be refiled because it would have to be

       tried by the same jury that originally found Morris guilty. On appeal, Morris

       argues that the State’s refiling of the habitual offender enhancement was

       contrary to the plain meaning of INDIANA CODE § 35-34-1-5(e) and that the

       State was not allowed to refile the habitual allegation at all regardless of what

       jury heard it. Because Morris failed to object to the refiling of the habitual

       offender enhancement under INDIANA CODE § 35-34-1-5(e), we hold that this

       failure below results in waiver. See Everroad v. State, 590 N.E.2d 567, 569 (Ind.

       1992) (noting that “fundamental unfairness” may result from reviewing a claim




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 19 of 21
       raised after the opportunity to make a record or conduct proper analysis in the

       trial court has passed).


[35]   Because Morris waived his argument, he can prevail only by meeting the

       “daunting” fundamental error standard. Griffith v. State, 59 N.E.3d 947, 956

       (Ind. 2016). The fundamental error exception is “extremely narrow[ ] and

       applies only when the error constitutes a blatant violation of basic principles,

       the harm or potential for harm is substantial, and the resulting error denies the

       defendant fundamental due process.” Matthews v. State, 849 N.E.2d 578, 587

       (Ind. 2006). “Harm is not shown by the fact that the defendant was ultimately

       convicted; rather harm is found when [the] error is so prejudicial as to make a

       fair trial impossible.” Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012), reh’g

       denied. “Fundamental error is meant to permit appellate courts a means to

       correct the most egregious and blatant trial errors that otherwise would have

       been procedurally barred, not to provide a second bite at the apple for defense

       counsel who ignorantly, carelessly, or strategically fails to preserve an error.”

       Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied.


[36]   Here, the trial court and the parties found themselves in a peculiar situation.

       Our review of the record reveals that all parties discussed and agreed to the

       State’s dismissal of the habitual offender enhancement, with the understanding

       that the State wanted to use it for a retrial on the Level 2 felony dealing charge.

       The State eventually chose not to refile the dealing charge, and the trial court

       allowed the State to go forward with the habitual. Morris fails to provide any

       evidence demonstrating how he was prejudiced by the refiling of the habitual

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 20 of 21
       offender enhancement. Indeed, the State filed the habitual offender

       enhancement when it originally charged Morris in 2015 and as described above,

       he knew that the habitual was going to be refiled and had originally agreed to

       that procedure. See Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996)

       (holding that the purpose of INDIANA CODE § 35-34-1-5(e) is to allow a

       defendant sufficient time to prepare a defense for an habitual offender charge).

       Accordingly, Morris cannot show error, let alone fundamental error.


[37]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1264 | May 31, 2019   Page 21 of 21
