MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any
                                                                  Aug 04 2017, 8:54 am
court except for the purpose of establishing
the defense of res judicata, collateral                               CLERK
                                                                  Indiana Supreme Court
estoppel, or the law of the case.                                    Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James C. Spencer                                         Curtis T. Hill, Jr.
Dattilo Law Office                                       Attorney General of Indiana
Madison, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bruce Ashby,                                             August 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A01-1610-CR-2341
        v.                                               Appeal from the Jefferson Circuit
                                                         Court
State of Indiana,                                        The Honorable Steven M. Fleece,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         39C01-1508-F2-773



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017     Page 1 of 14
                                             Case Summary
[1]   Bruce Ashby appeals his conviction by bench trial of attempted dealing in a

      narcotic drug as a Level 2 felony. We affirm.


                                                    Issues
[2]   Ashby presents three issues:


              I. whether the trial court erred in considering a prior ruling on a
              motion to suppress to be res judicata;


              II. whether the trial court abused its discretion in admitting
              certain evidence; and


              III. whether there was sufficient evidence to sustain his
              conviction.


                                                     Facts
[3]   On August 6, 2015, Harry Mercer voluntarily went to the Madison Police

      Department and met with Detectives Jonathon Simpson and Kurt Wallace.

      Mercer informed the detectives that he had been approached on multiple

      occasions at a local bar by someone named Bruce, who wanted to sell him

      prescription pills. Mercer did not know Bruce’s last name. However, Mercer

      told Detective Simpson that Bruce lived on Lincoln Avenue in Madison, wore

      an ankle monitor, and was on house arrest for selling prescription pills. From

      this information, Detective Simpson recognized Bruce as Bruce Ashby.

      Detective Simpson showed Mercer a photograph of Ashby, and Mercer

      identified him as the man he knew as Bruce. Mercer was not a confidential
      Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017   Page 2 of 14
      informant and was referred to by the detectives as a “concerned citizen” or a

      “source of information.” Tr. p. 136. Mercer received no favorable treatment in

      exchange for working with the detectives.


[4]   While in the detectives’ presence, Mercer sent a text message to Ashby that

      read, “Did you say they were Perks? If so [I] will take 20 of them and how

      much each so [I] can stop and get the cash out of the bank [sic] please text me
                                                                                                             1
      back and let me know [sic] do I need to come to your house or [the bar]?”

      State’s Ex. 3. Approximately five minutes later, Ashby replied by text message,

      “Five my house.” State’s Ex. 19. Mercer was no longer in the presence of the

      detectives when the reply was sent, as he and the detectives parted ways shortly

      after Mercer sent the text message to Ashby.


[5]   Detective Simpson and Detective Wallace travelled to the area where Ashby

      lived. In route, they used a software system that allowed them to place a third-

      party call to Ashby’s cell phone, making it appear as if the call originated from
                                  2
      Mercer’s cell phone. Once the call connected, Mercer asked Ashby to meet

      him at a corner near Ashby’s house in twenty to thirty minutes because Mercer




      1
       “Perks” is street terminology for Percocet, a controlled substance that contains oxycodone and
      acetaminophen. Tr. pp. 14-15, 70, 152.
      2
        The software system, called Callyo, is a law enforcement telephone communication system. It allowed the
      detectives to create a three-way phone call between themselves, Mercer, and Ashby. Even though the
      detectives initiated the call, the software made it appear that Mercer placed the call to Ashby, and the caller
      I.D. on Ashby’s phone displayed Mercer’s phone number – not that of the detectives. Once the call
      connected, the software allowed the detectives to listen into the conversation between Mercer and Ashby
      without being detected, and the software automatically recorded and downloaded the call to a server for
      future access. See Tr. pp. 82-84.

      Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017              Page 3 of 14
      had “somebody with [him]” and he did not want to show that person where

      Ashby lived. State’s Ex. 4. Mercer also relayed the information in text

      messages. Once the detectives arrived in the area where Ashby lived, a second

      call was made using the same system. Mercer told Ashby he would be at the

      prearranged location in five minutes. Ashby replied, “I’m running around up

      here on the street.” State’s Ex. 5. Both phone calls were monitored and

      recorded by the detectives. Although Mercer was not in the physical presence

      of the detectives when the calls were made, Detective Simpson recognized

      Ashby’s and Mercer’s voices on the calls.


[6]   The detectives saw Ashby standing in the street where he agreed to meet

      Mercer. Ashby was leaning into a vehicle, conversing with someone inside.

      After the vehicle drove away, the detectives got out of their unmarked vehicle

      and approached Ashby. The detectives recorded the interaction with Ashby

      using an audio recording device.


[7]   Detective Simpson asked Ashby if he was on house arrest, and Ashby answered

      in the affirmative. Detective Wallace then dialed Ashby’s cell phone number,

      and Ashby’s phone rang in the presence of the detectives. Detective Simpson

      told Ashby that he and Detective Wallace had information that Ashby was

      going to “sell pills to somebody.” State’s Ex. 6. Detective Simpson then asked

      Ashby if he had any pills on his person, and Ashby replied that he did not.

      Detective Simpson then searched Ashby. A pack of cigarettes that contained

      nineteen round white pills was found in Ashby’s left back pocket. Ashby was

      Mirandized and then questioned about the pills and who he was to meet. He

      Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017   Page 4 of 14
       stated that he was helping a friend who had cancer, that he had nineteen pills,

       and that he was selling the pills for five dollars each.


[8]    The detectives removed Ashby’s cell phone. Ashby exercised his Pirtle rights

       and did not consent to a search of his phone. Ashby was handcuffed and

       eventually transported to jail. His phone later was searched after a search

       warrant was obtained, and records of the text messages and phone calls that

       were sent and received on the day of the incident were found.


[9]    Ashby was charged with attempted dealing in a narcotic drug and dealing in a

       narcotic drug, both as Level 2 felonies. Ashby filed a motion to suppress,

       alleging that the evidence seized by the detectives was unlawfully obtained

       because the detectives did not have a search warrant or justification for a

       warrantless search. After a hearing, the trial court denied the motion.


[10]   Ashby then filed a motion to certify the denial of the motion for interlocutory

       appeal, which the trial court granted. This court, however, declined to accept

       jurisdiction over the interlocutory appeal.


[11]   A bench trial was held August 1, 2017, following which Ashby was found guilty

       as charged. The trial court merged the convictions and sentenced Ashby to

       twenty years executed for his conviction of Level 2 felony attempted dealing in

       a narcotic drug. Ashby now appeals.




       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017   Page 5 of 14
                                                   Analysis
                                                I. Res Judicata

[12]   Ashby maintains that the trial court erred when it determined that further

       consideration of his motion to suppress was precluded because the matter was

       res judicata. At the start of Ashby’s bench trial, the trial court noted that

       Ashby’s motion to suppress had been denied and that this court had declined to

       accept jurisdiction over Ashby’s interlocutory appeal of the denial. After the

       bench trial began, Ashby renewed his objection to the admission of the

       evidence in question. The trial court responded:

               And that position is, of course, consistent with what you stated
               before and with your prior motion to suppress that we’ve
               reference to. I have examined the briefs in support of the motion
               to suppress and the briefs opposed to it. I also consider that
               under these circumstances uh – issues with regard to suppression
               are res judicata, although the Court of Appeals has not spoken
               either way on that, and I will certainly show a continuing motion
               and objection to these things, but I would at this time deny the
               motion.


       Tr. p. 47.


[13]   The trial court erred in determining that further consideration of Ashby’s

       motion to suppress was precluded by res judicata. It is well-settled that a

       pretrial ruling on a motion to suppress is not a final judgment for res judicata

       purposes and that such a ruling may be modified by the court that issued the

       ruling or another court being asked to reconsider the ruling. See Joyner v. State,

       678 N.E.2d 386, 393 (Ind. 1997); see also Gasaway v. State, 249 Ind. 241, 243,

       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017   Page 6 of 14
       231 N.E.2d 513, 514 (1967) (holding that pretrial ruling on motion to suppress

       was “in no sense a final judgment” for res judicata purposes). However, we

       find the error to be harmless. See Ind. Trial Rule 61 (court at every stage of

       proceeding must disregard any error or defect in proceeding which does not

       affect substantial rights of party). Here, after the trial court denied Ashby’s

       motion to suppress, Ashby renewed his objection to the admission of the

       evidence, and his challenge to the admission of the evidence was properly

       preserved for this court’s review. We fail to see, and Ashby has not shown,

       how he was harmed by the trial court’s error or how the error affected his

       substantial rights. Reversal is not warranted.


                                          II. Admissibility of Evidence

[14]   Ashby next argues that the warrantless search of his person violated the Fourth
                                                                       3
       Amendment to the United States Constitution. Although Ashby originally

       challenged the admission of the evidence through a motion to suppress, he now

       challenges the admission of that evidence at trial. Therefore, the issue is

       appropriately framed as whether the trial court abused its discretion in

       admitting the evidence. See Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).


[15]   The trial court has broad discretion to rule on the admissibility of evidence.

       Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). We review its rulings “for



       3
         Although Ashby asserts that this search also violated his rights under Article I, Section 11 of the Indiana
       Constitution, he presents no separate argument and analysis with respect to the state constitution. Thus, any
       separate state constitutional claim is waived because of his failure to make a cogent argument under that
       provision. See Davis v. State, 907 N.E.2d 1043, 1048 n.10 (Ind. Ct. App. 2009).

       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017            Page 7 of 14
       abuse of that discretion and reverse only when admission is clearly against the

       logic and effect of the facts and circumstances and the error affects a party’s

       substantial rights.” Id. at 260. But when an appellant’s challenge to such a

       ruling is predicated on an argument that impugns the constitutionality of the

       search or seizure of the evidence, it raises a question of law, and we consider

       that question de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).


[16]   The Fourth Amendment to the United States Constitution protects persons

       from unreasonable search and seizure by prohibiting, as a general rule, searches

       and seizures conducted without a warrant supported by probable cause. U.S.

       Const. amend. IV.

               As a deterrent mechanism, evidence obtained in violation of this
               rule is generally not admissible in a prosecution against the
               victim of the unlawful search or seizure absent evidence of a
               recognized exception. Mapp v. Ohio, 367 U.S. 643, 649-55, 81 S.
               Ct. 1684, 6 L. Ed. 2d 1081 (1961) (extending exclusionary rule to
               state court proceedings). It is the State’s burden to prove that one
               of these well-delineated exceptions is satisfied. [Berry v. State, 704
               N.E.2d 462, 465 (Ind. 1998)].


       Clark, 994 N.E.2d at 260.


[17]   A search incident to a lawful arrest is an exception to the warrant requirement

       under the Fourth Amendment. Fentress v. State, 863 N.E.2d 420, 423 (Ind. Ct.

       App. 2007). A suspect is considered under arrest when a police officer

       interrupts his freedom and restricts his liberty of movement. Id. The fact that a

       police officer does not inform a defendant he is under arrest prior to a search


       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017   Page 8 of 14
       does not invalidate the search incident to arrest exception as long as there is

       probable cause to make an arrest. Id. Probable cause for an arrest exists if at

       the time of the arrest the officer has knowledge of facts and circumstances

       which would warrant a man of reasonable caution to believe that the suspect

       has committed the criminal act in question. Id. A police officer’s subjective

       belief concerning whether he had probable cause to arrest a defendant has no

       legal effect. Id. An arrest is lawful if it is supported by probable cause. Id. A

       search incident to lawful arrest allows the arresting officer to conduct a

       warrantless search of the arrestee’s person and the area within his immediate

       control. Id. at 423-24. A search incident to a valid arrest is lawful regardless of

       what it reveals. Garcia v. State, 47 N.E.3d 1196, 1200 (Ind. 2016).


[18]   Ashby maintains that the detectives lacked probable cause to arrest him, prior

       to searching him and seizing the cigarette package that contained the

       prescription pills, because Ashby did not make any statements that he intended

       to sell the pills to Mercer, and because the detectives first needed to find the

       pills before they could establish probable cause for the arrest. We disagree.


[19]   Mercer, a concerned citizen, voluntarily travelled to the Madison Police

       Department to report that Ashby was trying to sell him prescription pills that

       contained oxycodone, a narcotic drug. Mercer provided details about Ashby

       that the detectives knew to be true. The detectives presented Mercer with a

       picture of Ashby, and Mercer confirmed that the person in the picture was the

       individual attempting to sell him the prescription pills. In the presence of two

       police detectives, and at the detectives’ direction, Mercer sent a text message to

       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017   Page 9 of 14
       Ashby indicating a desire to purchase prescription pills. Ashby provided

       Mercer with a price per pill and a location where the transaction would take

       place.


[20]   The detectives then travelled to the designated location and discovered Ashby

       standing there. Before approaching Ashby, the detectives twice used a third-

       party calling device to confirm that Ashby was the individual Mercer had

       contacted about purchasing the pills. From the calls, the detectives confirmed

       that Ashby was waiting for Mercer. After approaching Ashby, one of the

       detectives placed a call to Ashby’s cell phone, using the number obtained from

       Mercer, to further confirm that Ashby was the individual who had agreed to sell

       Mercer prescription pills.


[21]   Based upon the information provided by Mercer, the phone calls between

       Ashby and Mercer, and the detectives’ observations, probable cause existed to

       arrest Ashby for attempted dealing in a narcotic drug. The detectives were not

       required to inform Ashby that he was under arrest. See Fentress, 863 N.E.2d at

       423. The fact that Ashby was not formally placed under arrest at the time he

       was searched did not invalidate the search. See id. Because there was probable

       cause to arrest Ashby at the time the search took place, this was a valid search

       incident to arrest; the prescription pills were properly seized; the detectives’




       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017   Page 10 of 14
       search and seizure did not violate the Fourth Amendment; and the trial court
                                                                                                       4
       did not abuse its discretion in admitting the pills into evidence at trial.


                                        III. Sufficiency of the Evidence

[22]   Ashby contends that the evidence is insufficient to sustain his conviction

       because the State failed to prove that he possessed at least ten grams of

       oxycodone, which was required to convict him of Level 2 felony attempted

       dealing in a narcotic drug. At trial, Brandy Cline, an Indiana State Police

       Laboratory forensic scientist, testified that she performed three examinations of

       one of the pills seized from Ashby and determined that the pill contained the

       controlled substance oxycodone, as well as acetaminophen, a non-controlled

       substance. She determined that the one pill weighed 0.56 grams.


[23]   Cline then performed a visual examination of the remaining pills, referring to a

       desk-reference manual used to identify medications. She determined that the

       remaining pills “could contain oxycodone and acetaminophen” because they

       were identical to the tested pill; “they were all visually consistent as far as the

       markings, color and size and shape of [pills that could contain oxycodone and

       acetaminophen].” Tr. pp. 153, 154. Cline did not confirm the actual contents




       4
         Because we conclude that the detectives’ search and seizure did not violate the Fourth Amendment to the
       United States Constitution, we need not address Ashby’s argument that his statements to the detectives and
       the evidence found on his cell phone should not have been admitted at trial under the fruit of the poisonous
       tree doctrine.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017           Page 11 of 14
       of the remaining pills, but found the total weight of the remaining pills to be

       10.02 grams.


[24]   According to Ashby, the State failed to prove he possessed at least ten grams of

       oxycodone because “the State failed to prove . . . that all 19 tablets contained

       oxycodone and accordingly that the total weight of the oxycodone tablets (pure

       or adulterated) exceeded 10 grams.” Appellant’s Brief p. 19. Ashby maintains

       that “[a]t most, the State proved [he] was in possession of one tablet containing

       oxycodone, weighing 0.56 grams.” Id. We are unpersuaded by Ashby’s

       argument and find that the evidence was sufficient to prove Ashby attempted to

       deliver at least ten grams of a narcotic drug.


[25]   When we review the sufficiency of the evidence to support a criminal

       conviction, we consider only the probative evidence and reasonable inferences

       supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We

       neither reweigh the evidence nor assess witness credibility. Id. Unless no

       reasonable factfinder could conclude the elements of the crime were proven

       beyond a reasonable doubt, we will affirm the conviction. Id. That is, we will

       hold the evidence sufficient if an inference may reasonably be drawn from it to

       support the verdict. Id. at 147.


[26]   Indiana Code Section 35-48-4-1(a)(2)(C) provides that a person who possesses

       with intent to deliver a narcotic drug, pure or adulterated, classified in schedule

       I or II commits dealing in a narcotic drug, a Level 5 felony. However, the

       offense is a Level 2 felony if “the amount of the drug involved is at least ten (10)


       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017   Page 12 of 14
       grams.” I.C. § 35-48-4-1(e)(1). “A person attempts to commit a crime when,

       acting with the culpability required for commission of the crime, the person

       engages in conduct that constitutes a substantial step toward commission of the

       crime.” I.C. § 35-41-5-1(a). “An attempt to commit a crime is a felony or

       misdemeanor of the same level or class as the crime attempted.” Id. The

       weight of a controlled substance may be proven by either evidence of its actual,

       measured weight or by demonstrating that the quantity is so large as to permit a

       reasonable inference that the element of weight has been established. Boggs v.

       State, 928 N.E.2d 855, 866 (Ind. Ct. App. 2010), trans. denied.


[27]   Here, Ashby agreed to sell Mercer twenty “perks” – that is, pills that contained

       oxycodone, a narcotic drug classified in schedule II. Ashby went to the

       location where he and Mercer agreed to meet. Nineteen pills were found on

       Ashby’s person, seized, and submitted to the State Police laboratory. Cline

       testified that during her tenure with the laboratory, she had analyzed

       approximately 6,000 drug samples. She tested one of the pills seized from

       Ashby and determined that it contained oxycodone. Using a desk-reference

       manual, she identified the other pills as being identical to the pill that she tested.

       She found that one pill weighed 0.56 grams, that the remaining eighteen pills

       together weighed 10.02 grams, and that the total weight of the nineteen pills

       was 10.58 grams. Based on the foregoing, we find that sufficient evidence was

       presented to prove Ashby possessed at least ten grams of a narcotic drug.




       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017   Page 13 of 14
                                                 Conclusion
[28]   The trial court’s error in determining that further consideration of Ashby’s

       motion to suppress was precluded by res judicata was harmless, and the trial

       court properly admitted evidence discovered during a search of Ashby at the

       time of his arrest. The State presented sufficient evidence to sustain Ashby’s

       conviction for Level 2 felony attempted dealing in a narcotic drug. The

       judgment of the trial court is affirmed.


[29]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017   Page 14 of 14
