MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Nov 19 2019, 9:14 am
court except for the purpose of establishing
the defense of res judicata, collateral                               CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Zachary J. Stock                                        Curtis T. Hill, Jr.
Attorney at Law, P.C.                                   Attorney General of Indiana
Indianapolis, Indiana
                                                        Ian McLean
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dwight Teague,                                          November 19, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-573
        v.                                              Appeal from the
                                                        Hendricks Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff                                      Mark A. Smith, Judge
                                                        Trial Court Cause No.
                                                        32D04-1608-F2-13



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019          Page 1 of 12
                                          Case Summary
[1]   Dwight Teague was tried by a jury in absentia for drug charges stemming from

      two controlled buys. When the jury found Teague guilty, defense counsel

      stipulated that Teague was a habitual offender. The trial court sentenced

      Teague to twenty years enhanced by six years for being a habitual offender.


[2]   Teague now appeals, arguing that the trial court erred in admitting drugs from

      one of the controlled buys and a video from the other controlled buy and that

      we should vacate his habitual-offender adjudication and remand this case for a

      new trial on the habitual-offender charge because he did not personally waive

      his right to a jury trial on that charge. We find no error in the admission of the

      drugs and video. However, we agree with Teague that he is entitled to a new

      trial on the habitual-offender charge.



                            Facts and Procedural History
[3]   In August 2016, a confidential informant (CI) working with the Hendricks

      County United Drug Task Force set up a drug deal with Teague. On August

      17, Teague and the CI made plans to meet in the parking lot of the Plainfield

      Walmart. Task-force members met up with the CI at a briefing location, where

      the CI was searched, fitted with an audio-video recording device, and given

      $880 in buy money. John Maples, a detective with the task force, then drove

      the CI to Walmart in an unmarked police car. While they were waiting for

      Teague, Detective Maples activated the recording device. When a white car


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019   Page 2 of 12
      arrived at Walmart, the CI got out of the unmarked police car and “flag[ged]” it

      down. Tr. p. 128. The CI then got into the backseat of the white car. The CI

      was inside the white car for about five minutes. Detective Maples had the CI in

      his view “the entire time.” Id. After about five minutes, the CI got out of the

      white car and back into the unmarked police car. Once inside the car,

      Detective Maples took the drugs from the CI and then deactivated and removed

      the recording device from him. Detective Maples kept control of the recording

      device. Id. at 133. Subsequent testing revealed that the substance was 11.56

      grams of fentanyl.


[4]   On August 30, 2016, the CI set up a second drug deal with Teague. This time,

      they agreed to meet at a hotel “just off of 70 and 267” in Hendricks County. Id.

      at 119. This buy, however, did not occur, as the task force planned on “try[ing]

      to do a traffic stop and get [Teague] with the narcotics that way so [they] didn’t

      have to” involve the CI. Id.; see also id. at 36 (explaining that the plan was to

      make a traffic stop “if” an infraction occurred). Task-force members took up

      positions near the hotel while Ben Pyatt, a captain with the Brownsburg Police

      Department who often assisted the task force, parked his black Chevrolet Tahoe

      in the median of I-70 and waited for Teague’s car to approach from

      Indianapolis. Captain Pyatt was given a description of Teague as well as the

      possible cars he might be driving. After waiting about two hours, Captain Pyatt

      observed a car and a driver that fit the descriptions he was given. Captain Pyatt

      noted that this car, which was traveling around 60 to 70 miles per hour, was

      following the car in front of it “too closely,” in other words, “you could maybe


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019   Page 3 of 12
squeeze one car between” the two cars. Id. at 165, 166; see Ind. Code § 9-21-8-

14(b) (“A person who drives a motor vehicle may not follow another vehicle

more closely than is reasonable and prudent, having due regard for the speed of

both vehicles, the time interval between vehicles, and the condition of the

highway.”). Captain Pyatt pulled onto I-70 and followed the car for several

miles. During this time, the car continued following the car in front of it too

closely. As the car “exited onto 267,” Captain Pyatt activated his lights and

pulled it over. Id. at 167. Captain Pyatt didn’t know that the driver of this car

was Teague until he walked up to it. When Captain Pyatt asked Teague to

come back to his Tahoe, he smelled marijuana. As the two of them sat in the

Tahoe, Captain Pyatt could still smell marijuana. After Teague admitted that

he had recently smoked marijuana, Captain Pyatt told him that he was going to

search his car and asked him to step out of the Tahoe so that he could check

him for weapons. Captain Pyatt exited the Tahoe and walked to the front

passenger side to open the door. There, Captain Pyatt saw Teague leaning over

the Tahoe’s center console “messing with something.” Id. at 169. As soon as

Teague exited the Tahoe, Captain Pyatt “reached to where [Teague] had been

messing” and found a bag that contained what he believed to be marijuana and

heroin. Id. The contents of the bag were later examined and found to contain

four smaller bags containing 3.52 grams of marijuana, 13.99 grams of heroin,

7.13 grams of heroin, and 0.35 grams of cocaine. Teague was arrested and

taken to jail, where his photo was taken.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019   Page 4 of 12
[5]   Thereafter, the State charged Teague with Count I: Level 2 felony dealing in a

      narcotic drug (heroin, August 30); Count II: Class B misdemeanor possession

      of marijuana (August 30); and Count III: Level 2 felony dealing in a narcotic

      drug (fentanyl, August 17). The State also alleged that Teague is a habitual

      offender. Teague was released on bond.


[6]   Before trial, Teague filed a motion to suppress the drugs found during the

      August 30 traffic stop, arguing that “there was no valid reason to stop [his]

      vehicle.” Appellant’s App. Vol. II p. 93. The trial court held a hearing on

      Teague’s motion immediately before the jury trial was scheduled to begin on

      the morning of January 9, 2018. Teague was not present at the beginning of the

      hearing, and defense counsel told the court that Teague had just texted him that

      he was on his way. During the hearing, Captain Pyatt and a task-force member

      testified about the August 30 stop. The trial court denied Teague’s motion to

      suppress. Tr. p. 45. When Teague still was not present at 9:05 a.m., the trial

      court issued a warrant for his arrest. The court then conducted the jury trial in

      his absence.


[7]   During trial, Detective Maples testified that he wasn’t “close enough” to

      identify Teague at Walmart on August 17. Id. at 133. However, he was later

      able to identify Teague from the video taken from the CI’s recording device on

      August 17 (Exhibit 3) and comparing that to the photo of Teague taken when

      he was arrested on August 30. Detective Maples acknowledged that the date-

      and-time stamp on the video was not correct but confirmed that the video was

      taken on August 17, 2016. In addition, he noted that the date on the CD and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019   Page 5 of 12
      the CD case both said August 17, 2016. Id. at 159-60. Detective Maples

      explained that they “don’t ever adjust” the date-and-time stamp. Id. at 142; see

      also id. at 155 (“I never go into those internal data bases and mess with date and

      time because as far as with our investigation we know, we document how we

      need it documented. Those we’ve never put in – we’ve never put too much

      emphasis on – on that time stamp.”). Teague objected to the admission of

      Exhibit 3 on the ground that the State did not properly authenticate the video

      pursuant to the silent-witness theory. The trial court overruled his objection

      and admitted the exhibit. Id. at 139.


[8]   When the jury later informed the trial court that it had reached a verdict, the

      court noted that defense counsel had previously indicated that he would

      stipulate to the habitual-offender charge in the event the jury found Teague

      guilty on one of the felony counts. The court said that it wanted to make sure

      that there was “a clear record” that defense counsel was “stipulating on the

      habitual count in the event there’s a guilty on either [Count I or III].” Id. at

      218. Defense counsel confirmed that he would stipulate. Id. The trial court

      then brought in the jury, who found Teague guilty of Counts I-III. The court

      entered judgments of conviction on Counts I-III and, “[p]ursuant to counsel’s

      stipulation,” found that Teague was a “habitual felony offender.” Id. at 219.


[9]   About a year later, in December 2018, Teague was arrested on the warrant. At

      the March 2019 sentencing hearing, the trial court sentenced Teague to twenty

      years on Count I, enhanced by six years for being a habitual offender, and

      concurrent sentences of 180 days on Count II and twenty years on Count III.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019   Page 6 of 12
[10]   Teague now appeals.



                                 Discussion and Decision
                   I. Admission of Drugs from August 30 Stop
[11]   Teague first contends that the trial court erred in admitting the drugs from the

       August 30 traffic stop because the stop was “an unreasonable seizure that

       violated the protections of Article 1, Section 11 of the Indiana Constitution.”

       Appellant’s Br. p. 9.


[12]   It is “well settled that investigative stops, like traffic stops,” are subject to the

       protections of Article 1, Section 11. Marshall v. State, 117 N.E.3d 1254, 1261-62

       (Ind. 2019), cert. denied. Although police officers may stop a car when they

       observe minor traffic violations, “they must do so under Article 1, Section 11’s

       strictures.” Id. at 1262. When a defendant challenges the propriety of an

       investigative stop under the Indiana Constitution, the burden falls to the State

       to show that the police conduct “was reasonable under the totality of the

       circumstances.” Id. (quotation omitted). We decide whether a stop was

       reasonable under the totality of the circumstances by applying the three-

       part Litchfield test, whereby we evaluate: (1) the degree of concern, suspicion, or

       knowledge that a violation has occurred; (2) the degree of intrusion the method

       of the search or seizure imposes on the citizen’s ordinary activities; and (3) the

       extent of law-enforcement needs. Id.; Litchfield v. State, 824 N.E.2d 356, 361

       (Ind. 2005).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019   Page 7 of 12
[13]   On appeal, Teague focuses on the first Litchfield factor. That is, he argues that

       Captain Pyatt “had no objective basis for his belief that the driver he stopped . .

       . had committed a traffic violation.” Appellant’s Br. pp. 7-8. Teague

       acknowledges Captain Pyatt’s testimony that he was driving 60 to 70 miles per

       hour on I-70 and that there was just one car length between his car and the car

       in front of it; however, he claims that Captain Pyatt had no explanation for

       these estimates. We disagree.


[14]   Captain Pyatt stopped Teague’s car pursuant to Indiana Code section 9-21-8-

       14(b), which provides that “[a] person who drives a motor vehicle may not

       follow another vehicle more closely than is reasonable and prudent, having due

       regard for the speed of both vehicles, the time interval between vehicles, and the

       condition of the highway.” Captain Pyatt, who had been a police officer for at

       least fifteen years and had spent many of those years patrolling I-65, I-70, and I-

       74, testified that Teague was driving around 60 to 70 miles per hour on I-70 and

       that he was following the car in front of it “too closely.” Tr. p. 165. Captain

       Pyatt explained that Teague was following so close that “you could maybe

       squeeze one car between” Teague’s car and the car in front of it. Id. at 166

       (emphasis added). Captain Pyatt not only gauged this distance from his

       vantage point on the median, but he also followed Teague for several miles on

       I-70, observing that Teague maintained the same speed and short distance. Id.

       (Captain Pyatt testifying that when he followed Teague on I-70, they were

       driving “between sixty and seventy mile an hour.”). Based on these facts,




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019   Page 8 of 12
       Captain Pyatt had a strong degree of concern or suspicion that Teague was

       following too closely in violation of Section 9-21-8-14.


[15]   As for the other two Litchfield factors, Teague concedes that the intrusion was

       “relatively minor.” Appellant’s Br. p. 10. However, he argues that there was

       “no immediate need for the stop given the sting operation in place.” Id. But

       Teague doesn’t develop this argument or cite any authority for the proposition

       that law enforcement must have further “need” for a traffic stop once they have

       observed a traffic violation. We therefore conclude that the August 30 traffic

       stop was reasonable under Article 1, Section 11.1 The trial court did not err in

       admitting the drugs found during the stop.


                    II. Admission of Video from August 17 Buy
[16]   Teague next contends that the trial court erred in admitting Exhibit 3—the

       video from the August 17 buy—because it was not properly authenticated.

       Indiana Evidence Rule 901(a) provides that “[t]o satisfy the requirement of

       authenticating or identifying an item of evidence, the proponent must produce

       evidence sufficient to support a finding that the item is what the proponent

       claims it is.” Photographs and videos can be authenticated through either a




       1
        Teague argues that this case is “very much like” Turner v. State, 862 N.E.2d 695 (Ind. Ct. App. 2007).
       Appellant’s Br. p. 11. We disagree. In Turner, a police officer pulled over the defendant for speeding. The
       officer, based on his training, estimated the defendant’s speed at fifty-five miles per hour; however, the officer
       did not know the speed limit where he stopped the defendant. We found that the stop was not reasonable
       under Article 1, Section 11 and held that evidence stemming from the stop was inadmissible. The problem in
       Turner was that the police officer did not know the speed limit but pulled over the defendant for speeding.
       That problem is not present here.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019                     Page 9 of 12
       witness’s testimony or, in instances in which no witness observed what a

       photograph or video portrays, the silent-witness theory. McFall v. State, 71

       N.E.3d 383, 388 (Ind. Ct. App. 2017); 13 Robert L. Miller, Jr., Indiana

       Practice, Indiana Evidence § 901.209 (4th ed. Aug. 2019 update). Here, because

       the CI did not testify at trial and none of the task-force members saw what

       happened inside the white car, the State had to authenticate Exhibit 3 using the

       silent-witness theory. See Mays v. State, 907 N.E.2d 128 (Ind. Ct. App. 2009)

       (although the confidential informant did not testify at trial, the audio/video

       recording of the controlled buy was admitted into evidence through the

       detective pursuant to the silent-witness theory), trans. denied.


[17]   In order to authenticate videos or photographs using the silent-witness theory,

       there must be evidence describing the process or system that produced the

       videos or photographs and showing that the process or system produced an

       accurate result. Ind. Evidence Rule 901(b)(9); see also McFall, 71 N.E.3d at 388.

       The authenticating witness is not required to testify that the photograph or

       video is an accurate representation of the scene as it appeared in the photograph

       or video and, indeed, often could not do so since they were not necessarily there

       to observe the scene. Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014). Rather,

       “Rule 901(b)(9) requires only that the process or system be described in such a

       way as to allow the trier of fact to find that it is more likely than not that the

       system produced an accurate result.” 13 Miller at § 901.209.


[18]   Here, Detective Maples testified that the CI was fitted with an audio-video

       recording device and that he activated the device while they were waiting in the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019   Page 10 of 12
       Walmart parking lot. When the controlled buy was over and the CI got back

       into the unmarked police car, Detective Maples deactivated the recording

       device, removed it from the CI, and kept control of it. On appeal, Teague

       doesn’t challenge these steps; rather, he claims, without citation to authority,

       that the silent-witness theory compels “either that the dates match or that a

       better explanation is put forward.” Appellant’s Br. p. 14. At trial, Detective

       Maples acknowledged that the date-and-time stamp on the video did not match

       the date of the controlled buy—August 17, 2016. However, he said that the

       controlled buy indeed occurred on August 17, 2016—as indicated by the date

       on the CD and the CD case. Detective Maples explained that he never

       “mess[es] with” the internal settings of the recording equipment and that they

       don’t “put too much emphasis on . . . [the] time stamp” because they document

       the date and time in other ways. Tr. p. 155. Because these facts show that it

       was more likely than not that the system produced an accurate result, the trial

       court properly admitted Exhibit 3.


                             III. Habitual-Offender Enhancement
[19]   Last, Teague contends that the trial court was required to hold a jury trial on

       the habitual-offender charge because it did not get a personal waiver from him

       (and in fact could not have done so since he was not present) of his right to a

       jury trial on the habitual-offender charge.2 In Saylor v. State, 55 N.E.3d 354




       2
           The State does not object to Teague raising this issue on direct appeal.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019   Page 11 of 12
       (Ind. Ct. App. 2016), reh’g denied, trans. denied, this Court held that when a

       defendant pleads guilty to a habitual-offender charge, they must personally

       waive their right to a jury trial on that charge. The State petitioned for

       rehearing in Saylor, which we denied, and then sought transfer, which our

       Supreme Court denied. The State acknowledges Saylor but argues that it was

       wrongly decided. The State, however, has failed to persuade us that Saylor was

       wrongly decided. Accordingly, because Teague did not personally waive his

       right a jury trial on the habitual-offender charge, we vacate his habitual-offender

       adjudication and remand this case for a new trial on that charge.


[20]   Affirmed in part and vacated and remanded in part.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-573 | November 19, 2019   Page 12 of 12
