MEMORANDUM DECISION                                                  FILED
                                                                Jul 29 2016, 8:31 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                     CLERK
this Memorandum Decision shall not be                            Indiana Supreme Court
                                                                    Court of Appeals
regarded as precedent or cited before any                             and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James C. Spencer                                         Gregory F. Zoeller
Dattilo Law Office                                       Attorney General of Indiana
Madison, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Frank M. Hancock,                                        July 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A05-1511-CR-1973
        v.                                               Appeal from the Jefferson Superior
                                                         Court
State of Indiana,                                        The Honorable Fred H. Hoying,
Appellee-Plaintiff                                       Senior Judge
                                                         Trial Court Cause No.
                                                         39D01-1409-F6-840



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016     Page 1 of 10
                                          Case Summary
[1]   Following a jury trial, Frank Hancock was convicted of Level 6 felony

      possession of a narcotic drug and Class A misdemeanor possession of a

      synthetic drug. In this direct appeal, Hancock argues that his trial counsel was

      ineffective for failing to challenge the admission of the drugs at trial. He also

      argues that the evidence is insufficient to support his conviction for possession

      of a narcotic drug because the State failed to establish that the pill found on his

      person contained a schedule II, rather than a schedule III, controlled substance.

      Because we find that the drugs were admissible, Hancock’s ineffectiveness

      claim fails. In addition, because the pill contained hydrocodone, a schedule II

      controlled substance, the evidence is sufficient to support his conviction for

      possession of a narcotic drug. We therefore affirm the trial court.



                            Facts and Procedural History
[2]   On September 28, 2014, Officer Aaron Watson of the Madison Police

      Department saw Hancock driving a maroon Kia. Although Officer Watson

      suspected that Hancock’s driving privileges were suspended, he did not stop

      Hancock at that time because he was off-duty.


[3]   The next day, September 29, 2014, while on duty, Officer Watson checked and

      verified that Hancock’s driving privileges were suspended. According to Officer

      Watson, around midnight he saw the same maroon Kia pass by, and he

      followed it until it parked in front of the house Officer Watson knew to be


      Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016   Page 2 of 10
      Hancock’s residence. Officer Watson then stopped his police cruiser in the

      middle of the street next to the Kia without activating the emergency lights.

      Hancock exited the car from the driver’s door. Hancock then walked toward

      Officer Watson, and the two of them met in the street, between the Kia and the

      police cruiser.

[4]   Officer Watson asked Hancock whether he had a valid driver’s license, and

      Hancock said no. Officer Watson called dispatch and confirmed that Hancock

      did not have a driver’s license. During this process, Officer Watson smelled

      what he believed to be the odor of marijuana coming from Hancock and from

      inside the Kia, so he asked Hancock for permission to search the car. Hancock

      refused. Officer Watson then called a police canine unit. A drug-sniffing dog

      arrived, sniffed the exterior of the car, and gave a positive alert for the presence

      of drugs. At this point, Officer Watson arrested Hancock for driving while

      suspended and put him in his patrol car. Officers then searched the car and

      found two hand-rolled, partially burnt cigarettes. A field test was positive for

      marijuana.

[5]   Hancock was transported to the Jefferson County Jail and preliminarily booked

      on charges of driving while suspended and possession of marijuana. During the

      booking process, a white pill was found in Hancock’s right pocket.

[6]   The Indiana State Police Laboratory later tested one of the cigarettes and the

      white pill. The forensic scientist concluded that the cigarette contained XLR11,




      Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016   Page 3 of 10
       a synthetic cannabinoid commonly known as “spice.” Tr. p. 75-76.1 The

       forensic scientist also concluded that the white pill contained hydrocodone.

[7]    The State charged Hancock with Count I: Level 6 felony possession of a

       narcotic drug (hydrocodone); Count II: Class A misdemeanor possession of a

       synthetic drug (XLR11); and Count III: Class A misdemeanor driving while

       suspended. At trial, Hancock testified that he was not driving before Officer

       Watson pulled up in front of his house; rather, he walked from his house to the

       car, turned the engine on, and sat in the driver’s seat to smoke.

[8]    The jury found Hancock guilty of Counts I and II, but it was split three to three

       on Count III, which was declared a mistrial. The court sentenced Hancock to

       an aggregate term of two years, with one year executed and one year suspended

       to supervised probation.

[9]    Hancock now appeals.



                                   Discussion and Decision
[10]   Hancock raises two issues. First, he argues that trial counsel was ineffective.

       Second, he contends that the evidence is insufficient to support his conviction

       for possession of a narcotic drug.




       1
         Synthetic cannabinoids are compounds designed to mimic the psychoactive properties of marijuana, first
       reported in the United States in 2008. Tiplick v. State, 43 N.E.3d 1259, 1261 (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016           Page 4 of 10
                      I. Ineffective Assistance of Trial Counsel
[11]   Hancock first contends that his trial counsel was ineffective because she failed

       to challenge the admission of the spice and hydrocodone. We review claims of

       ineffective assistance of trial counsel under the two-prong test articulated in

       Strickland v. Washington, 466 U.S. 668 (1984). Pruitt v. State, 903 N.E.2d 899,

       905-06 (Ind. 2009), reh’g denied. To satisfy the first prong, the defendant must

       show that trial counsel’s performance fell below an objective standard of

       reasonableness based on prevailing professional norms, “committing errors so

       serious that the defendant did not have the counsel guaranteed by the Sixth

       Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g denied.

       To satisfy the second prong, the defendant must show prejudice: “a reasonable

       probability that, but for counsel’s errors, the result of the proceeding would

       have been different.” Id. A reasonable probability is one that is sufficient to

       undermine confidence in the outcome. Overstreet v. State, 877 N.E.2d 144, 152

       (Ind. 2007). In order to prove ineffective assistance of counsel due to failure to

       challenge the admission of evidence, the defendant must demonstrate

       “prejudicial failure to raise an objection that the trial court would have been

       required to sustain. Otherwise stated, if the trial court overruled the objection,

       it would have committed error, and the error would have had a prejudicial

       effect.” Stephenson v. State, 864 N.E.2d 1022, 1035 (Ind. 2007), reh’g denied.


[12]   Hancock argues that trial counsel should have challenged the discovery of the

       spice and hydrocodone because his “original detainment” was illegal, thereby

       invalidating the subsequent searches that led to the discovery of the spice and

       Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016   Page 5 of 10
       hydrocodone. Appellant’s Br. p. 8. An officer may conduct a brief

       investigatory stop of an individual when, based on the totality of the

       circumstances, the officer has a reasonable, articulable suspicion that criminal

       activity is afoot. J.B. v. State, 30 N.E.3d 51, 55 (Ind. Ct. App. 2015). The

       investigatory stop, also known as a Terry stop, is a lesser intrusion on the person

       than an arrest and may include a request to see identification and inquiry

       necessary to confirm or dispel the officer’s suspicions. Id. Reasonable

       suspicion is determined on a case by case basis. Id. The reasonable-suspicion

       requirement is met where the facts known to the officer at the moment of the

       stop, together with the reasonable inferences from such facts, would cause an

       ordinarily prudent person to believe criminal activity has occurred or is about to

       occur. Id.


[13]   Here, Officer Watson testified that he saw Hancock driving a maroon Kia the

       day before the arrest. He also testified that the next day he verified that

       Hancock’s driving privileges were suspended, observed the same maroon Kia

       drive by, followed the Kia to where he knew Hancock lived, and saw Hancock

       exit the car from the driver’s door. This testimony would support a conclusion

       that Officer Watson had a reasonable suspicion that Hancock was driving

       without a license and therefore properly stopped and questioned him.


[14]   Hancock, however, claims that he was not actually driving before his encounter

       with Officer Watson, that Officer Watson was lying when he testified

       otherwise, and that the fact that the jury deadlocked on the driving-while-

       suspended count means that the trial court would not have believed Officer

       Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016   Page 6 of 10
       Watson. There are several problems with Hancock’s position. First, we must

       judge the decisions of Hancock’s trial counsel based on what she knew at the

       time she made those decisions, not in hindsight based on the jury’s

       deliberations. Second, even if the jury’s split vote on the driving-while-

       suspended count were somehow relevant, we have no idea whether three jurors

       voted not guilty because they disbelieved Officer Watson or for some other

       reason. Third, and most importantly, even if the trial court had believed that

       Officer Watson fabricated the story about following Hancock home, Hancock

       does not dispute Officer Watson’s testimony that he was in the street outside

       Hancock’s house when Hancock got out of the Kia and that he saw Hancock

       emerge from the driver’s door of the car. These facts, taken together with the

       fact that Officer Watson verified that Hancock’s driving privileges were

       suspended, would have given Officer Watson reasonable suspicion that

       Hancock committed driving while suspended and, therefore, authority to

       conduct an investigatory stop. 2


[15]   Once Officer Watson received confirmation from dispatch that Hancock did

       not have a license, he had probable cause to arrest Watson for driving while

       suspended. In addition, during the questioning, Officer Watson smelled the

       odor of what he believed to be marijuana. When a trained and experienced

       police officer detects the strong and distinctive odor of burnt marijuana coming




       2
        The State argued that the initial encounter was consensual; however, we do not address this issue because
       we find that Officer Watson had reasonable suspicion.

       Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016            Page 7 of 10
       from a vehicle, the officer has probable cause to search the vehicle. State v.

       Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002), trans. denied. Accordingly,

       the odor of what Officer Watson believed to be marijuana gave him probable

       cause to search the car. The cigarettes found during the search, therefore, were

       admissible.

[16]   Finally, as Hancock was lawfully arrested, the search incident to arrest

       conducted at the jail was also valid. See Garcia v. State, 47 N.E.3d 1196, 1200

       (Ind. 2016) (“[O]nce a lawful arrest has been made, authorities may conduct a

       ‘full search’ of the arrestee for weapons or concealed evidence.” (quotation

       omitted)). Accordingly, the white pill found in Hancock’s pocket during this

       search was also admissible.

[17]   Hancock has not established that the trial court would have been required to

       grant a motion to suppress or sustain an objection regarding the spice and the

       pill. Therefore, trial counsel was not ineffective for failing to raise such a

       challenge. See Stephenson, 864 N.E.2d at 1035.


                               II. Sufficiency of the Evidence
[18]   Hancock next contends that the evidence is insufficient to support his

       conviction for Level 6 felony possession of a narcotic drug, which requires a

       schedule I or II drug. See Ind. Code § 35-48-4-6(a) (“A person who, without a

       valid prescription . . ., knowingly or intentionally possesses . . . a narcotic drug

       (pure or adulterated) classified in schedule I or II, commits possession of . . . a

       narcotic drug, a Level 6 felony.”). Although Hancock concedes that

       Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016   Page 8 of 10
       hydrocodone is a schedule II drug, he claims that because the pill found in his

       possession contained hydrocodone and acetaminophen, it may have been “a

       Schedule III controlled substance[] according to I.C. 35-48-2-8.” Appellant’s

       Br. p. 15.

[19]   At trial, a forensic scientist with the Indiana State Police Laboratory testified

       that the pill contained “dihydrocodeinone or hydrocodone” plus

       “acetaminophen.” Tr. p. 76 (emphasis added). The scientist then clarified that

       the pill contained “hydrocodone,” an opiate derivative. Id.; see also id. at 82

       (confirming that the pill “tested positive for the presence of hydrocodone”). At

       the time of the offenses in this case, “hydrocodone” was listed as a schedule II

       drug. See Ind. Code Ann. § 35-48-2-6(b)(1)(K) (West 2012). Also at the time of

       the offenses, “dihydrocodeinone,” “with one (1) or more active nonnarcotic

       ingredients in recognized therapeutic amounts,” was listed as a schedule III

       drug. Ind. Code Ann. § 35-48-2-8(e)(4) (West 2012). Notably, schedule III did

       not list hydrocodone. Because schedule II listed hydrocodone—regardless of

       whether it was combined with another nonnarcotic ingredient3—and schedule

       III did not list hydrocodone, we conclude that the evidence is sufficient to

       support Hancock’s conviction for Level 6 felony possession of a narcotic drug

       for possessing hydrocodone, a schedule II drug.




       3
        Effective April 23, 2015, Section 35-48-2-6 was amended to include both “hydrocodone” and “any
       hydrocodone combination product” as a schedule II drug. See P.L. 56-2015.

       Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016        Page 9 of 10
[20]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 39A05-1511-CR-1973 | July 29, 2016   Page 10 of 10
