MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Jul 20 2017, 9:12 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bethany Redinbo                                          Curtis T. Hill, Jr.
Delphi, Indiana                                          Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Johnny R. Green,                                         July 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1702-CR-374
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D03-1411-FA-24



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1702-CR-374 | July 20, 2017       Page 1 of 7
[1]   Johnny Green appeals his convictions for two counts of Class A Felony

      Dealing in Heroin Within 1,000 Feet of a Public Park1 and one count of Class B

      Felony Possession of Heroin With Intent to Deliver.2 Green argues that the

      trial court should have granted his motion to dismiss based on double jeopardy

      concerns and that the trial court erroneously admitted certain evidence.

      Finding no error, we affirm.


                                                     Facts
[2]   In March 2014, a Confidential Informant (CI) working for the Elkhart Police

      Department participated in two controlled buys of heroin from Green at

      Green’s apartment. On each occasion, the CI purchased a foil packet

      containing .23 grams of a substance later determined to be heroin. Following

      the second controlled buy, law enforcement executed a search warrant of the

      apartment and found, among other things, more packets of heroin totaling 4.01

      grams and paraphernalia associated with the packaging of drugs for sale. On

      November 19, 2014, the State charged Green with three counts of Class A

      felony dealing in heroin within 1,000 feet of a public park and one count of

      Class B felony possession of heroin with intent to deliver.


[3]   Meanwhile, Green was federally charged as the result of an investigation into

      the trafficking of heroin and cocaine between Michigan and Illinois. Green




      1
          Ind. Code § 35-48-4-1.
      2
          Id.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1702-CR-374 | July 20, 2017   Page 2 of 7
      originally faced two charges in the federal cause: first, for conspiring with

      multiple individuals to manufacture, possess, and distribute heroin; and second,

      for possessing heroin with the intent to distribute on August 31, 2014, in

      Michigan. On May 1, 2015, Green pleaded guilty to the conspiracy charge as a

      Class C felony and the possession charge was dismissed. Appellant’s App. p.

      63, 67.


[4]   On June 30, 2016, Green moved to dismiss the state charges based on double

      jeopardy concerns stemming from the federal charges and conviction. The trial

      court denied the motion. At the beginning of Green’s September 27, 2016,

      bench trial, the State dismissed one of the Class A felony dealing charges.

      During the trial, the trial court overruled Green’s objection to the State’s

      evidence regarding the distance between his apartment and a nearby public

      park. At the close of the trial, the trial court found Green guilty as charged.


[5]   On January 19, 2017, the trial court sentenced Green to concurrent thirty-year

      terms for the two Class A felony dealing in heroin within 1,000 feet of a public

      park convictions and to a consecutive ten-year term for the Class B felony

      possession of heroin with intent to deliver conviction. The trial court

      suspended ten years of the sentence to probation and ordered another ten years

      could be served in community corrections, if available. Green now appeals.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1702-CR-374 | July 20, 2017   Page 3 of 7
                                        Discussion and Decision
                                             I. Double Jeopardy
[6]   Green argues that the Indiana charges must be dismissed pursuant to Indiana’s

      statutory double jeopardy limitation on dual sovereign prosecutions:

                 In a case in which the alleged conduct constitutes an offense
                 within the concurrent jurisdiction of Indiana and another
                 jurisdiction, a former prosecution in any other jurisdiction is a
                 bar to a subsequent prosecution for the same conduct in Indiana,
                 if the former prosecution resulted in an acquittal or a conviction
                 of the defendant or in an improper termination under section 3 of
                 this chapter.[3]


      Ind. Code § 35-41-4-5.4 In other words, a former conviction in any other

      jurisdiction bars subsequent prosecution by the State for the “same conduct.”

      Swenson v. State, 868 N.E.2d 540, 541-42 (Ind. Ct. App. 2007). When

      determining whether the “same conduct” is included in both this State’s

      prosecution and the sister jurisdiction’s prosecution, we must consider “the

      ‘overt acts’ alleged in the sister jurisdiction’s charge in juxtaposition with the

      allegation in the State’s charge.” Id.




      3
       Because the United States dismissed the possession charge against Green and none of the circumstances
      described in Indiana Code section 35-41-4-3 were present, only the conspiracy conviction is relevant for
      purposes of our double jeopardy analysis.
      4
          It is undisputed that Green has no state or federal constitutional double jeopardy claim.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1702-CR-374 | July 20, 2017              Page 4 of 7
[7]   Here, Green’s federal conviction was based on his participation in a conspiracy

      to transport cocaine between Chicago, Illinois, and Benton Harbor, Michigan.

      His alleged involvement included buying drugs in Michigan from the primary

      subject of that investigation, selling drugs on one occasion in Michigan, and

      participating in phone conversations related to those drugs. The federal charges

      and allegations do not claim that Green agreed to sell drugs in Indiana as part

      of the conspiracy, nor are those charges based upon what occurred in Green’s

      Elkhart residence on March 25 and 26, 2014.


[8]   It is true, as Green points out, that the time period of the federal conspiracy

      charge included March 2014 and that the presentence report prepared in the

      federal cause mentioned the drugs found in Green’s Elkhart residence. But

      these facts do not mean that Green’s federal charges were based on the “same

      conduct” underlying his state charges. Green has failed to show that the drugs

      sold and recovered from his Elkhart residence in March 2014 were procured

      through or sold as part of the conspiracy, or that the Michigan federal district

      court actually relied on any facts related to the March 2014 controlled buys and

      possession when accepting his guilty plea in the federal cause.


[9]   We simply cannot conclude that Green’s federal charges, which were based on

      a conspiracy that did not even take place in the State of Indiana, were also

      based on the “same conduct” underlying the dealing and possession charges

      filed by this State. Therefore, the trial court did not err by denying Green’s

      motion to dismiss on this basis.



      Court of Appeals of Indiana | Memorandum Decision 20A03-1702-CR-374 | July 20, 2017   Page 5 of 7
                                  II. Admission of Evidence
[10]   Green also argues that the trial court erroneously admitted evidence regarding

       the distance between his apartment and the public park. We will reverse a trial

       court’s ruling on the admissibility of evidence only if the decision is clearly

       against the logic and effect of the facts and circumstances and the error affects a

       party’s substantial rights. E.g., Shelton v. State, 26 N.E.3d 1038, 1042 (Ind. Ct.

       App. 2015).


[11]   At trial, the State offered the testimony of Elkhart Police Detective Brian

       Schroth to establish that the controlled buys occurred within 1,000 feet of a

       public park. Detective Schroth explained that he measured that distance using

       Google Earth and that he had previously verified Google Earth distances in

       many other cases by using a wheel tape measuring device. The detective

       presented two exhibits—an aerial view of the location and a second aerial view

       indicating his line of measurement. Green objected to the second exhibit on the

       basis that the State had not shown the measurement from Google Earth to be

       reliable; the trial court overruled the objection based on the detective’s

       testimony that he had verified other Google Earth measurements in the past.

       Green did not otherwise object to the detective’s testimony or the first exhibit,

       nor did he object to the detective’s calculation that the distance between his

       residence and the public park was 820 feet.


[12]   Because Green did not object to the admission of the first exhibit or to

       Detective Schroth’s testimony, he has waived this argument for appellate


       Court of Appeals of Indiana | Memorandum Decision 20A03-1702-CR-374 | July 20, 2017   Page 6 of 7
       purposes. E.g., Halliburton v. State, 1 N.E.3d 670, 683 (Ind. 2013). He argues

       that the State should have presented foundational evidence regarding the

       accuracy of the police department’s wheel tape apparatus, but as he lodged no

       objection in this regard below, he may not make this argument on appeal.


[13]   Waiver notwithstanding, we have observed that “because there is no complex

       scientific process necessary to obtain a measurement of distance,” the State

       need only “show that the measuring device was accurate and was operated

       correctly in order to allow the admission of the distance as evidence.” Charley v.

       State, 651 N.E.2d 300, 303 (Ind. Ct. App. 1995). Here, Detective Schroth

       testified that he has previously verified Google Earth distances in other drug

       cases on more than twenty occasions, he explained his method of

       measurement, and he documented that measurement through the introduction

       of his second exhibit. This testimony indicated that Google Earth is a reliable

       measurement tool for distances within the city of Elkhart and that the officer

       properly used the tool. Consequently, the trial court did not err by admitting

       the evidence.


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


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1702-CR-374 | July 20, 2017   Page 7 of 7
