                                                                             FILED
                                                                         Apr 20 2020, 8:57 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Amy D. Griner                                               Curtis T. Hill, Jr.
Mishawaka, Indiana                                          Attorney General of Indiana

                                                            Courtney L. Staton
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA
Kurtis L. Shorter,                                          April 20, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-2957
        v.                                                  Appeal from the Elkhart Superior
                                                            Court
State of Indiana,                                           The Honorable Stephen R.
Appellee-Plaintiff.                                         Bowers, Judge
                                                            Trial Court Cause No.
                                                            20D02-1801-F4-2



Bradford, Chief Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020                               Page 1 of 22
                                            Case Summary
[1]   On November 12, 2018, Kurtis L. Shorter was sentenced to an aggregate thirty-

      year sentence after he was convicted of Level 4 felony unlawful possession of a

      handgun by a serious violent felon (“SVF”), Class A misdemeanor possession

      of a synthetic drug, and Class B misdemeanor possession of marijuana and

      found to be a habitual offender. On appeal, he challenges the admission of

      certain evidence and the sufficiency of the evidence to sustain his convictions.

      He also argues that the trial court erred in denying his motion to dismiss the

      habitual-offender enhancement. We affirm.



                             Facts and Procedural History
[2]   While on patrol at approximately 2:30 a.m. on October 22, 2016, Elkhart

      Sheriff’s Department Officer Robert Smith’s attention was drawn to a green

      Pontiac G6. While following behind the vehicle, Officer Smith observed as the

      vehicle “kind of veer[ed] from the south to the north” and “the tires of the

      vehicle, the right tires, went off the road onto the gravel portion across the

      white line.” Tr. Vol. III p. 56. Officer Smith further observed the vehicle make

      a turn and, although the driver “used their turn signal,” the driver did not

      satisfy the statutory requirement that a driver engage her turn signal two

      hundred feet before turning. Tr. Vol. III p. 56. Officer Smith initiated a traffic

      stop.




      Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020         Page 2 of 22
[3]   At the time of the traffic stop, there were two individuals, one female and the

      other male, inside the vehicle. Haven Chamberlain was driving and Shorter

      was sitting in the front passenger seat. Given that it was dark outside at the

      time of the traffic stop, Officer Smith used a flashlight to aid his ability to see

      the occupants of and the general vicinity in and around the vehicle.


[4]   As Officer Smith approached the vehicle, he began “smelling a chemical odor

      that [he] recognized to be a synthetic drug.” Tr. Vol. III p. 59. The smell got

      “stronger as [he] got closer” to the vehicle. Tr. Vol. III p. 59. The smell “was

      emitting from the vehicle … through [the] driver’s window.” Tr. Vol. III p. 59.


[5]   After smelling the odor of a synthetic drug emanating from the vehicle, Officer

      Smith returned to his vehicle and “radioed for a backup unit.” Tr. Vol. III p.

      60. When he believed the backup unit was in the general vicinity and would

      arrive soon, Officer Smith approached the vehicle for a second time and

      requested that Chamberlain exit the vehicle. Officer Smith did not notice

      anything at Chamberlain’s feet either of the first two times he approached the

      vehicle. When the assisting officer arrived a minute or two later, the assisting

      officer asked Shorter to step out of the vehicle and stand near where Officer

      Smith and Chamberlain were standing.


[6]   Due to the smell of synthetic drugs emanating from the vehicle, Officer Smith

      and the assisting officer searched the vehicle. Officer Smith began by searching

      the area around the front driver’s-side door. He found “a loose greenish

      substance in the door panel and in the center console” that, based on his


      Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020           Page 3 of 22
      training and experience as an officer, he believed to be synthetic drugs. Tr. Vol.

      III p. 68. He also found a backpack “on the driver’s floorboard” that had not

      been present when Chamberlain exited the vehicle. Tr. Vol. III p. 68. Officer

      Smith unzipped the backpack and looked inside, finding “men’s cologne, doo-

      rag, a digital scale, some more synthetic marijuana, err, I’m sorry, synthetic

      drug, marijuana, a Ruger .380 semi-automatic pistol … a man’s belt and there

      was mail belonging to Kurtis Shorter in there as well.” Tr. Vol. III p. 69. The

      mail, which included legal documents, had Shorter’s name and address

      “printed on the envelopes and on the paperwork.” Tr. Vol. III p. 69. Officer

      Smith field tested and weighed the marijuana, with the test confirming the

      presence of 24.8 grams of marijuana. Officer Smith also weighed the synthetic

      drugs, confirming the presence of 97.3 grams of synthetic drugs. The marijuana

      and synthetic drugs were stored “in a large gallon size baggie and inside that

      there was [sic] smaller baggies, like sandwich baggies with the substance in

      them.” Tr. Vol. III p. 70.

[7]   On October 26, 2016, the State charged Shorter with Level 5 felony possession

      of a handgun without a license with a prior conviction, Class A misdemeanor

      possession of a synthetic drug or synthetic drug lookalike substance, Class B

      misdemeanor possession of marijuana. Shorter subsequently filed a motion to

      suppress “any and all items seized from the car” during the traffic stop.

      Appellant’s App. Vol. II p. 33. On June 12, 2017, the State amended the Class

      A misdemeanor carrying a handgun without a license charge to a charge of

      Level 4 felony SVF. The State also alleged Shorter to be a habitual offender.


      Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020          Page 4 of 22
       On July 18, 2017, Shorter filed a motion to dismiss the habitual-offender

       enhancement.


[8]    The trial court conducted a hearing on July 20, 2017, during which it heard

       argument relating to both Shorter’s motion to suppress and motion to dismiss

       the habitual-offender enhancement. On August 24, 2017, the trial court issued

       a written order denying Shorter’s motion to suppress. The trial court denied

       Shorter’s motion to dismiss the habitual-offender enhancement on September

       21, 2017.

[9]    Following a jury trial, on January 25, 2018, the jury returned a verdict of guilty

       for Class A misdemeanor possession of a synthetic drug or synthetic drug

       lookalike substance. However, the jury was unable to reach a verdict on the

       remaining counts. On October 10, 2018, following a retrial, Shorter was found

       guilty of the remaining counts. In a bifurcated portion of the trial, the jury also

       found Shorter to be an SVF as alleged in the amended firearm-possession

       charge. In the final trifurcated portion of the trial, the jury found Shorter to be

       a habitual offender. On November 12, 2018, the trial court sentenced Shorter

       to an aggregate thirty-year sentence.



                                   Discussion and Decision
                                    I. Admission of Evidence
[10]   Shorter contends that the trial court abused its discretion in admitting evidence

       recovered following what he claims was an unjustified traffic stop. “In cases

       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020         Page 5 of 22
       such as this one, where the defendant does not appeal the denial of a motion to

       suppress and the evidence is admitted over the defendant’s objection at trial, we

       frame the issue as whether the trial court abused its discretion in admitting the

       evidence at trial.” Kyles v. State, 888 N.E.2d 809, 812 (Ind. Ct. App. 2008).


               The admission or exclusion of evidence is entrusted to the
               discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67
               (Ind. Ct. App. 2004). We will reverse a trial court’s decision only
               for an abuse of discretion. Id. We will consider the conflicting
               evidence most favorable to the trial court’s ruling and any
               uncontested evidence favorable to the defendant. Taylor v. State,
               891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of
               discretion occurs when the trial court’s decision is clearly against
               the logic and effect of the facts and circumstances before the
               court or it misinterprets the law. Id.


       Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial

       court’s ruling will be upheld if it is sustainable on any legal theory supported by

       the record, even if the trial court did not use that theory.” Rush v. State, 881

       N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing Gonser v. State, 843 N.E.2d 947, 950

       (Ind. Ct. App. 2006)).


[11]   In arguing that the trial court abused its discretion in admitting the challenged

       evidence, Shorter claims that the challenged evidence was discovered in

       violation of the Fourth Amendment to the United States Constitution and

       Article 1, Section 11 of the Indiana Constitution. The Fourth Amendment

       provides as follows:




       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020         Page 6 of 22
                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.


       U.S. CONST. amend. IV.1 “The fundamental purpose of the Fourth

       Amendment to the United States Constitution is to protect the legitimate

       expectations of privacy that citizens possess in their persons, their homes, and

       their belongings.” Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006).


                Because a traffic stop is a seizure under the Fourth Amendment,
                police may not initiate a stop for any conceivable reason, but
                must possess at least reasonable suspicion that a traffic law has
                been violated or that other criminal activity is taking place.
                Whren v. United States, 517 U.S. 806, 809–10, 116 S. Ct. 1769,
                1772, 135 L.Ed.2d 89, 95 (1996); Delaware v. Prouse, 440 U.S.
                648, 653, 99 S. Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979);
                Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003). An officer’s
                decision to stop a vehicle is valid so long as his on-the-spot
                evaluation reasonably suggests that lawbreaking occurred. See
                State v. Washington, 898 N.E.2d 1200, 1205 (Ind. 2008).


       Meredith v. State, 906 N.E.2d 867, 869–70 (Ind. 2009).


[12]   “Notwithstanding the textual similarity of Article 1, § 11 of the Indiana

       Constitution to that of the federal Fourth Amendment, Section 11 is interpreted



       1
         Although the Fourth Amendment and Article 1, Section 11, contain a few slight variations as to word
       tense, punctuation, and capitalization, generally, the language provided in both the Federal and Indiana
       Constitutions is the same.

       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020                               Page 7 of 22
       separately and independently from Fourth Amendment jurisprudence.”

       Washington, 898 N.E.2d at 1205–06 (citing Mitchell v. State, 745 N.E.2d 775, 786

       (Ind. 2001)).


               The Indiana Constitution may protect searches that the federal
               Constitution does not. State v. Moore, 796 N.E.2d 764, 767 (Ind.
               Ct. App. 2003). Section 11 should be applied to protect people
               from unreasonable search and seizure. Brown v. State, 653
               N.E.2d 77, 79 (Ind. 1995). When police conduct is challenged as
               violating this section, the burden is on the State to show that the
               search was reasonable under the totality of the circumstances.
               See, e.g., [State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)]; State v.
               Bulington, 802 N.E.2d 435, 438 (Ind. 2004). The determination
               of the reasonableness of a search and seizure under the Indiana
               Constitution turns “on a balance of: 1) the degree of concern,
               suspicion, or knowledge that a violation has occurred, 2) the
               degree of intrusion the method of search or seizure imposes on
               the citizen’s ordinary activities, and 3) the extent of law
               enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind.
               2005).


       Id. at 1206.


                                               A. Traffic Stop
[13]   In challenging his convictions, Shorter argues that the traffic stop was illegal

       under both the Federal and Indiana Constitutions, claiming that Officer Smith

       lacked a valid reason for initiating the traffic stop. “[P]olice officers may stop a

       vehicle when they observe minor traffic violations.” Black v. State, 621 N.E.2d

       368, 370 (Ind. Ct. App. 1993). “A traffic violation, however minor, creates

       probable cause to stop the driver of the vehicle.” Quirk, 842 N.E.2d at 340.


       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020           Page 8 of 22
       “An officer’s decision to stop a vehicle is valid so long as his on-the-spot

       evaluation reasonably suggests that lawbreaking occurred.” Meredith, 906

       N.E.2d at 870.


[14]   In this case, Officer Smith testified that he observed Chamberlain commit a

       traffic infraction, i.e., failing to adequately signal before turning. Indiana Code

       section 9-21-8-25 provides that “[a] signal of intention to turn right or left shall

       be given continuously during not less than the last two hundred (200) feet

       traveled by a vehicle before turning or changing lanes.” An officer’s

       observation-of a violation of Indiana Code section 9-21-8-25 is a valid basis for

       a traffic stop. See Peak v. State, 26 N.E.3d 1010, 1015 (Ind. Ct. App. 2015);

       Santana v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014).


[15]   Shorter does not contest the fact that failure to adequately signal constitutes a

       traffic violation. He merely asserts that the evidence establishes that

       Chamberlain signaled for the required two hundred feet and Officer Smith’s

       mistaken belief to the contrary did not justify the stop. See State v. Keck, 4

       N.E.3d 1180, 1184 (Ind. 2014) (“But if the officer stops a driver based on the

       officer’s mistaken belief that the observed conduct constituted an infraction, the

       officer’s suspicion is no longer reasonable, and the stop is therefore unsupported

       and impermissible.”).


[16]   Shorter argues that the video recording of the stop taken from Officer Smith’s

       police vehicle proves that Chamberlain engaged her turn signal more than two

       hundred feet before turning. The trial court considered Shorter’s argument


       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020          Page 9 of 22
regarding the video recording during the suppression hearing but found that

contrary to Shorter’s argument, the evidence demonstrated that Officer Smith

witnessed Chamberlain “activate [the vehicle’s] turn signal within fewer than

two hundred feet of turning left.” Appellant’s App. Vol. II p. 63. In making

this finding, the trial court stated the following:


        Shorter … asserts also that the video of the stop shows that
        Chamberlain’s turn signal was on before the stop was made and
        that it was activated within the proper distance. Furthermore, he
        emphasizes Officer Smith’s concession that the video does not
        show the Pontiac veering across the fog lines and onto the gravel.
        Hence, Shorter argues that there was no traffic violation that
        supported the stop.

        The Court disagrees, as its review of the video of the stop and the
        testimony produced at the evidentiary hearing has already led it
        to find above that Chamberlain did not turn on her turn signal
        two hundred feet before turning left onto 9th Street.


Appellant’s App. Vol. II pp. 65–66. In addition to the trial court’s finding,

Officer Smith unequivocally testified that Chamberlain failed to signal her

intention to turn two hundred feet before turning. Based on Officer Smith’s

testimony and its review of the video, the trial court made the factual

determination that Chamberlain engaged her turn signal less than two hundred

feet before turning in violation of Indiana Code section 9-21-8-25. Shorter’s

argument to the contrary is effectively a request to reweigh the evidence, which

we will not do. Santana, 10 N.E.3d at 78 (citing Turner v. State, 862 N.E.2d 695,

699 (Ind. Ct. App. 2007)). Because the evidence establishes that Officer Smith

initiated a valid traffic stop after observing a violation of Indiana Code section
Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020        Page 10 of 22
       9-21-8-25, we conclude that the stop was justified under both the Federal and

       Indiana Constitutions.


                                           B. Search of Vehicle
[17]   Shorter also argues that the search of the vehicle was unreasonable and

       therefore violated both the Federal and Indiana Constitutions because Officer

       Smith lacked probable cause to search the vehicle. “Probable cause to search

       exists where the facts and circumstances within the knowledge of the officer

       making the search, based on reasonably trustworthy information, are sufficient

       to warrant a person of reasonable caution in the belief that an offense has been

       or is being committed.” State v. Hawkins, 766 N.E.2d 749, 751 (Ind. Ct. App.

       2002). Facts necessary to demonstrate the existence of probable cause for a

       warrantless search are not materially different from those which would

       authorize the issuance of a warrant if presented to a magistrate. Young v. State,

       564 N.E.2d 968, 970 (Ind. Ct. App. 1991), trans. denied. “Furthermore, the

       determination is to be based on the factual and practical considerations of

       everyday life upon which reasonable and prudent persons act.” Hawkins, 766

       N.E.2d at 751. “The United States Supreme Court has stated that when there

       exists probable cause to believe that a vehicle contains evidence of a crime, a

       warrantless search of the vehicle does not violate the Fourth Amendment

       because of the existence of exigent circumstances arising out of the likely

       disappearance of the vehicle.” Gibson v. State, 733 N.E.2d 945, 951–52 (Ind. Ct.

       App. 2000). As long as the search is supported by probable cause, a warrantless



       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020      Page 11 of 22
       search of a vehicle may also include a search of a container or package found in

       the vehicle. Id. at 952.


[18]   In arguing that Officer Smith lacked probable cause to search the vehicle,

       Shorter challenges Officer Smith’s qualifications to classify the chemical odor

       he described as emanating from the vehicle as being the odor of burnt synthetic

       drugs. Specifically, he argues that smelling a chemical smell is “insufficient to

       establish probable cause to conduct a search because there are an unlimited

       number of completely legal substances that would also emit a chemical odor.”

       Appellant’s Br. p. 20. Considering the facts of this case, we cannot agree.


[19]   During trial, Officer Smith detailed his experience and training as both a regular

       patrol officer and a member of the narcotics task force. This experience

       included recognizing synthetic drugs. Officer Smith explained that synthetic

       drugs are man-made drugs produced to have “some sort of [e]ffect on the

       body.” Tr. Vol. III p. 48. Officer Smith further explained that synthetic drugs

       do not have a specific look, but “vary from different chemical make-up to

       different chemical make-up. Some will look like potpourri, some of them will

       look like marijuana, some of them will look like methamphetamine or shards of

       glass.” Tr. Vol. III p. 49.


[20]   Officer Smith further indicated that through his experience, he had become

       familiar with the smell of burnt synthetic drugs, stating that


               The odor is somewhat indescribable. It’s a chemical odor that
               I’m able to recognize cause I’ve smelled it before. I describe it a
               lot like a skunk. The first time I smelled a skunk I had no idea
       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020        Page 12 of 22
               what it was, somebody had to tell me that it was a skunk and
               then from then on I’ve always known what the smell of a skunk
               is. It’s kind of the same thing with the synthetic drugs.


       Tr. Vol. III p. 49. Officer Smith indicated that synthetic drugs had become

       prevalent beginning around 2011 to 2012, and that, due to his position as a

       police officer, he has had experience recognizing synthetic drugs since they

       became prevalent in the community.


[21]   As far back as 1948, the United States Supreme Court has held that

               If the presence of odors is testified to before a magistrate and he
               finds the affiant qualified to know the odor, and it is one
               sufficiently distinctive to identify a forbidden substance, this
               Court has never held such a basis insufficient to justify issuance
               of a search warrant. Indeed it might very well be found to be
               evidence of most persuasive character.


       Johnson v. U.S., 333 U.S. 10, 13 (1948). Likewise, we have concluded that when

       a trained and experienced police officer detects the strong and distinctive odor

       of a drug, such as burnt marijuana, coming from a vehicle, “the officer has

       probable cause to search the vehicle. That is true under both the Fourth

       Amendment of our federal constitution and under Article 1, Section 11 of the

       Indiana Constitution.” Hawkins, 766 N.E.2d at 752.


[22]   The record demonstrates that Officer Smith was both trained and experienced

       in identifying illegal drugs, including burnt synthetic drugs, and we agree with

       the trial court’s determination that in light of his training and experience,

       Officer Smith was qualified to identify the smell of burnt synthetic drugs. We

       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020            Page 13 of 22
       therefore conclude that Officer Smith had probable cause to search the vehicle

       after noticing the smell of synthetic drugs emanating from the vehicle. His

       search of the vehicle was reasonable and did not violate either the Fourth

       Amendment or Article 1, Section 11, of the Indiana Constitution.


[23]   Given that the traffic stop was justified under both the Federal and Indiana

       Constitutions and that Officer Smith had probable cause to search the vehicle

       after smelling the odor of synthetic drugs emanating from the vehicle, we

       conclude that the trial court did not abuse its discretion in admitting the

       challenged evidence.


                                II. Sufficiency of the Evidence
[24]   Shorter also contends that the evidence is insufficient to sustain his convictions.

       Our standard of review for challenges to the sufficiency of the evidence is well-

       settled. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). “We do not reweigh the

       evidence or assess the credibility of witnesses in reviewing a sufficiency of the

       evidence claim.” Id. Conflicting evidence is considered “in the light most

       favorable to the trial court’s finding.” Gray v. State, 957 N.E.2d 171, 174 (Ind.

       2011). This is because the factfinder, and not the appellate court, “is obliged to

       determine not only whom to believe, but also what portions of conflicting

       testimony to believe, and is not required to believe a witness’s testimony even

       when it is uncontradicted.” Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017)

       (internal quotation and brackets omitted). On appeal, we “look to the evidence

       and reasonable inferences drawn therefrom that support the verdict and will


       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020       Page 14 of 22
       affirm the conviction if there is probative evidence from which a reasonable

       fact-finder could have found the defendant guilty beyond a reasonable doubt.”

       Bell, 31 N.E.3d at 499.


[25]   In challenging the sufficiency of the evidence to sustain his convictions, Shorter

       argues that the State “did not present sufficient evidence to allow the jury to

       make a reasonable inference that [he] possessed either a firearm or any of the

       illegal substances in the vehicle.” Appellant’s Br. p. 11. Shorter further argues

       that the State’s evidence is insufficient to sustain his convictions as it relies

       solely on speculation. We disagree.


[26]   The Indiana Supreme Court has held that possession may be either actual or

       constructive. Gray, 957 N.E.2d at 174. “Actual possession occurs when a

       person has direct physical control over the item.” Henderson v. State, 715

       N.E.2d 833, 835 (Ind. 1999). “Constructive possession occurs when somebody

       has the intent and capability to maintain dominion and control over the item.”

       Id. (internal quotation omitted).


               When constructive possession is asserted, the State must
               demonstrate the defendant’s knowledge of the contraband. This
               knowledge may be inferred from either the exclusive dominion
               and control over the premise containing the contraband or, if the
               control is non-exclusive, evidence of additional circumstances
               pointing to the defendant’s knowledge of the presence of the
               contraband.


       Woods v. State, 471 N.E.2d 691, 694 (Ind. 1984) (internal citations omitted).



       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020          Page 15 of 22
               Proof of dominion and control of contraband has been found
               through a variety of means: (1) incriminating statements by the
               defendant, (2) attempted flight or furtive gestures, (3) location of
               substances like drugs in settings that suggest manufacturing, (4)
               proximity of the contraband to the defendant, (5) location of the
               contraband within the defendant’s plain view, and (6) the
               mingling of the contraband with other items owned by the
               defendant.


       Henderson, 715 N.E.2d at 836 (internal citation omitted). Further, when a

       defendant’s possession of the automobile in which drugs are found is not

       exclusive, “the inference of intent must be supported by additional

       circumstances pointing to [the defendant’s] knowledge of the nature of the

       controlled substances and their presence.” Fassoth v. State, 525 N.E.2d 318, 323

       (Ind. 1988).


[27]   In this case, the State presented evidence proving both Shorter’s knowledge of,

       and intent and capability to exert control over, the contraband. The firearm,

       synthetic drugs, and marijuana were found within reach, i.e., within close

       proximity, to where Shorter had been sitting in the vehicle. In addition, Shorter

       had had the opportunity to exert exclusive control over the contraband after

       Chamberlain, the only other person in the vehicle at the time of the traffic stop,

       was removed from the vehicle. The contraband was also co-mingled with other

       items belonging to Shorter.


[28]   Officer Smith’s testimony established that when he first approached the vehicle,

       Chamberlain was sitting in the driver’s seat and Shorter was sitting in the front

       passenger seat. The backpack, which was eventually found on the front

       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020         Page 16 of 22
       floorboard on the driver’s side, was not present on the driver’s-side floorboard

       when Chamberlain was removed from the vehicle. While Officer Smith did not

       personally observe Shorter move the backpack, his testimony supports the

       reasonable inference that Shorter moved the backpack containing the

       contraband after Chamberlain was removed from the vehicle. Also

       importantly, the contraband was co-mingled with other items belonging to

       Shorter, i.e., a men’s belt, men’s cologne, doo-rag, and legal documents and

       mail belonging to Shorter. We agree with the State’s assertion that “[i]t would

       strain credulity to believe that Defendant was unaware of [a] firearm, synthetic

       drugs, and marijuana located in the same bag as his mail and court records.”

       Appellee’s Br. p. 20.


[29]   We conclude that the evidence is sufficient to prove that Shorter had

       constructive possession of the firearm, synthetic drugs, and marijuana.

       Shorter’s argument otherwise amounts to an invitation for this court to reweigh

       the evidence, which we will not do. See Bell, 31 N.E.3d at 499. Furthermore, to

       the extent that Shorter points to Chamberlain’s testimony that the contraband

       belonged to her, the trial court, acting as the trier-of-fact, was under no

       obligation to believe Chamberlain and was in the best position to determine

       which witnesses to believe or disbelieve. See Perry, 78 N.E.3d at 8. As such, we

       will not disturb the trial court’s credibility determination on appeal, see Bell, 31

       N.E.3d at 499, and note that the conflicting evidence must be considered “in

       the light most favorable to the trial court’s finding.” See Gray, 957 N.E.2d at

       174.


       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020         Page 17 of 22
                            III. Habitual-Offender Enhancement
[30]   Shorter also contends that the trial court abused its discretion in denying his

       motion to dismiss the habitual-offender enhancement.


                       A. Claims Not Raised Before the Trial Court
[31]   Shorter argues that his substantial rights were violated by the State’s allegedly

       late filing of the habitual-offender enhancement after plea negotiations broke

       down2 and that a habitual-offender determination would constitute an

       impermissible double enhancement under Indiana Code section 35-50-2-8(e).3

       However, the State correctly asserts that Shorter “did not argue that his initial

       charge of Level 5 felony carrying a handgun without a license with a prior

       conviction would constitute a ‘double enhancement’ or that the State should be

       foreclosed from amending the charging information after plea negotiations




       2
         Indiana Code section 35-50-1-5(e) provides that an “amendment of an indictment or information to include
       a habitual offender charge … must be made at least thirty (30) days before the commencement of trial.” The
       habitual-offender enhancement was therefore timely as it was filed more than sixty days before the
       commencement of trial. Furthermore, we are unconvinced by Shorter’s argument that the habitual-offender
       enhancement should be considered untimely because it was allegedly vindictively filed in retaliation for his
       refusal to accept a guilty plea.
       3
           Indiana Code section 35-50-2-8(e) provides:
                 The state may not seek to have a person sentenced as a habitual offender for a felony
                 offense under this section if the current offense is a misdemeanor that is enhanced to a
                 felony in the same proceeding as the habitual offender proceeding solely because the person
                 had a prior unrelated conviction. However, a prior unrelated felony conviction may be
                 used to support a habitual offender determination even if the sentence for the prior
                 unrelated offense was enhanced for any reason, including an enhancement because the
                 person had been convicted of another offense.

       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020                              Page 18 of 22
       broke down” below, but rather makes these arguments for the first time on

       appeal. Appellee’s Br. p. 28.


[32]   “It is well settled that Indiana’s appellate courts look with disfavor upon issues

       that are raised by a party for the first time on appeal … without first raising the

       issue at the first opportunity in the trial court.” State v. Peters, 921 N.E.2d 861,

       868 (Ind. Ct. App. 2010) (citing Byrd v. State, 592 N.E.2d 690, 691 (Ind. 1992)).


               More importantly, a trial court cannot be found to have erred as
               to an issue or argument that it never had an opportunity to
               consider. Accordingly, as a general rule, a party may not present
               an argument or issue on appeal unless the party raised that
               argument or issue before the trial court. Marshall v. State, 621
               N.E.2d 308, 314 (Ind. 1993). In such circumstances the
               argument is waived. Id.


       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Because Shorter did not

       raise his arguments relating to Indiana Code section 35-50-2-8(e) or the timing

       of the filing of the habitual-offender enhancement, these arguments are waived

       on appeal. Id. However, in his motion to dismiss filed before the trial court,

       Shorter did argue that the habitual-offender enhancement should be dismissed

       because it constituted “an unlawful double enhancement” under the Indiana

       Supreme Court’s decision in Dye v. State, 972 N.E.2d 853 (Ind. 2012).

       Appellant’s App. Vol. II p. 52. As this claim is properly preserved for appellate

       review, we will consider whether the trial court erred in denying Shorter’s

       motion to dismiss on this ground.




       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020         Page 19 of 22
                                B. Alleged Double Enhancement
[33]   Shorter argues that the trial court abused its discretion in applying both the

       habitual offender enhancement and the SVF firearm enhancement to his

       sentence for unlawful possession of a firearm, claiming that it is an

       impermissible double enhancement. “Claims of multiple sentencing

       enhancements are governed by statutory interpretation.” Woodruff v. State, 80

       N.E.3d 216, 217 (Ind. Ct. App. 2017). “We review matters of statutory

       interpretation de novo because they raise pure questions of law.” Id.


[34]   In Shepherd v. State, 985 N.E.2d 362 (Ind. Ct. App. 2013), we considered

       whether a defendant could have both a conviction enhanced due to the

       individual’s status as an SVF and found to be a habitual offender in the same

       action. In that case, Shepherd challenged his conviction for unlawful

       possession of a firearm by an SVF and status as a habitual offender, arguing

       that in Dye, the Indiana Supreme Court held that an SVF cannot have his

       sentence enhanced under the general habitual-offender statute. Shepherd, 985

       N.E.2d at 363. In rejecting Shepherd’s challenge, we noted that on March 21,

       2013, the Indiana Supreme Court issued its opinion on rehearing in Dye,

       clarifying that “an SVF conviction enhanced by an habitual offender

       adjudication is impermissible only when the same underlying offense, or an

       underlying offense within the res gestae of another underlying offense, is used

       to establish both the SVF status and the habitual offender status.” Id. In

       affirming Shepherd’s SVF conviction and habitual-offender status, we

       concluded that because the record demonstrated that Shepherd’s SVF status

       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020       Page 20 of 22
       was based on a 1993 conviction for dealing in cocaine, as a Class B felony,

       while his habitual-offender enhancement was based on a 1991 Class C felony

       conviction for battery and a 2008 Class D felony conviction for intimidation,

       “[t]here is no reason for this court to believe that any one of those three

       underlying felonies is in any way related to another.” Id. at 364.


[35]   In denying Shorter’s motion to dismiss the habitual-offender enhancement, the

       trial court found that


               Shorter’s case is functionally indistinguishable from Shepherd, as
               his SVF charge and the habitual offender enhancement are
               founded on discrete, apparently unrelated felonies. The SVF
               charge against Shorter is premised on his 2012 conviction in
               cause 20D02-1102-FC-24 of Trafficking with an Inmate. In
               contrast, the predicate felonies supporting the habitual offender
               enhancement are Shorter’s 2006 conviction of Unlawful
               Possession of a Firearm After a Previous Felony Conviction in
               cause 20D02-0603-FB-55 and his 2014 conviction of Failure to
               Return to Lawful Detention in cause 20D02-1802-FD-212.
               Thus, pursuant to Dye and Shepherd, the amended information
               does not subject him to an impermissible double enhancement by
               pairing the habitual offender enhancement with the SVF charge.


       Appellant’s App. Vol. II pp. 74–75. We agree with the trial court that Shorter’s

       case is functionally indistinguishable from Shepherd. It is clear from the record

       that the SVF conviction and the habitual-offender enhancement were based on

       unrelated predicate felonies. As such, the trial court did not err in finding that

       Shorter could be found to be both an SVF and a habitual offender.




       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020        Page 21 of 22
                                                 Conclusion
[36]   In sum, we conclude that (1) the trial court did not abuse its discretion in

       admitting the challenged evidence at trial, (2) the evidence is sufficient to

       sustain Shorter’s convictions, and (3) the trial court did not err in denying

       Shorter’s motion to dismiss the habitual-offender enhancement.


[37]   The judgment of the trial court is affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2957 | April 20, 2020        Page 22 of 22
