MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                                        Jan 24 2018, 5:47 am
this Memorandum Decision shall not be                                             CLERK
regarded as precedent or cited before any                                     Indiana Supreme Court
                                                                                 Court of Appeals
court except for the purpose of establishing                                       and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James D. Crum                                            Curtis T. Hill, Jr.
Coots Henke & Wheeler, P.C.                              Attorney General of Indiana
Carmel, Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Torri Newman,                                            January 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A02-1706-CR-1327
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Steven R. Nation,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D01-1312-FA-10347



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018          Page 1 of 14
                                             Case Summary
[1]   Torri Elliott Newman appeals his conviction for Class A felony dealing in

      cocaine. We affirm.


                                                     Issues
[2]   Newman raises three issues, which we restate as:


              I.       whether the trial court erred by denying Newman’s motion
                       to dismiss;

              II.      whether the police had probable cause to arrest Newman;
                       and

              III.     whether the trial court abused its discretion by admitting
                       evidence of cocaine found in Newman’s apartment.



                                                     Facts
[3]   In 2013, Detective Darin Troyer with the Hamilton-Boone County Drug Task

      Force began working with a confidential informant (“CI”) to arrange a

      controlled buy of drugs from Joe Bobish. On December 11, 2013, the CI made

      arrangements with Bobish to purchase cocaine at Bobish’s residence in Fishers

      the next day. Bobish indicated that he had a source that could deliver the

      cocaine to his residence. The next day, Bobish told the CI, “I got it,” and they

      set a time to meet. Tr. Vol. III p. 149. The CI went to Bobish’s residence while

      wearing a transmitter and recorder. Bobish was on the phone and walking

      around his house for most of the time that the CI was at his house.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 2 of 14
[4]   After a few minutes, a vehicle stopped in front of Bobish’s house. Bobish went

      outside and briefly talked to the driver, Newman. Bobish went back inside,

      gave cocaine to the CI, and took money from the CI. Bobish then took the

      money, went back outside to Newman’s vehicle, where he sat in the passenger

      seat for a minute or two, and returned to the house. The officers did not

      witness Bobish obtaining cocaine from Newman or delivering money to

      Newman. Detective Troyer ordered officers to follow Newman’s vehicle away

      from the residence and stop it. Without observing a traffic violation, the

      officers stopped Newman, immediately placed him in handcuffs, and arrested

      him. His vehicle was later searched and contraband was found. Newman

      subsequently gave consent to search his Marion County apartment where

      officers discovered additional contraband, including cocaine.


[5]   In Marion County, the State charged Newman with Class A felony dealing

      cocaine, Class B felony unlawful possession of a firearm by a serious violent

      felony, Class C felony possession of cocaine, Class D felony possession of a

      controlled substance, and Class D felony possession of marijuana. In

      December 2016, Newman was tried in Marion County on the charges related to

      the items found in his residence. He was found guilty of Class C felony

      possession of cocaine, Class D felony possession of a controlled substance, and

      Class D felony possession of marijuana, but he was found not guilty of dealing

      cocaine and the firearm charge was dismissed prior to trial. This court recently

      affirmed his Marion County convictions. Newman v. State, No. 49A02-1702-

      CR-290 (Ind. Ct. App. Sept. 8, 2017), trans. not sought.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 3 of 14
[6]   In Hamilton County, the instant case, the State charged Newman with Class A

      felony dealing in cocaine, two counts of Class C felony possession of cocaine,

      and Class D felony possession of cocaine. Newman filed a motion to suppress,

      arguing that “probable cause was not established prior to his vehicle being

      stopped as a result of the drug investigation, nor did reasonable suspicion exist

      that he had committed a traffic violation.” Appellant’s App. Vol. II p. 75.

      After a hearing, the trial court ordered:


              [S]uch Motion to Suppress is DENIED in part in that the arrest
              of the Defendant was based upon Probable Cause and that such
              arrest was proper. Court further finds that the Motion to
              Suppress is GRANTED in part in that a warrant was required for
              the search of the vehicle under the facts presented and the State
              failed to provide an exception to the warrant requirement.
              Therefore, the items seized from the vehicle should be and are
              hereby suppressed.


      Id. at 101. As a result of the suppression of evidence, the State dismissed the

      Class C felony and Class D felony charges.


[7]   Newman filed a motion in limine regarding several proposed pieces of

      evidence, including the evidence found during the search of his home in

      Indianapolis, which was the basis for the Marion County charges. The trial

      court found that the cocaine discovered in Newman’s residence was admissible

      because it was “relevant to Defendant’s intent.” Id. at 143. Newman was tried

      to a jury in March 2016, but the jury was unable to reach a verdict. The trial

      court declared a mistrial and rescheduled the matter for another jury trial.



      Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 4 of 14
[8]   Newman filed a second motion to suppress regarding his arrest and the search

      of his house, which the trial court also denied. Newman also filed a motion to

      dismiss the charge, arguing that prosecution was barred pursuant to Indiana

      Code Section 35-41-4-3 because the State was attempting to use the same facts

      presented in the Marion County case “to establish the essential elements of the

      Hamilton County dealing charge.” Appellant’s App. Vol. III p. 85.


[9]   Newman was tried for a second time in April 2017. During the trial, Newman

      renewed his motion to suppress regarding the stop and arrest, and the trial court

      “affirm[ed]” the prior rulings. Tr. Vol. III p. 172. Newman argued that “the

      totality of circumstances did not rise to the level of probable cause but only

      suspicion and such immediate arrest was improper and should be suppressed.”

      Appellant’s App. Vol. IV p. 5. Newman also objected to the admission of the

      cocaine found in his apartment, and the trial court overruled the objection. The

      jury found Newman guilty of Class A felony dealing in cocaine. The trial court

      then denied Newman’s motion to dismiss, finding that “proceeding with the

      case in Hamilton County, the State did not violate the Double Jeopardy clause

      as found in Article 1, Section 14 of the Indiana Constitution.” Id. at 135. The

      trial court sentenced Newman to serve thirty years in the Department of

      Correction consecutive to his sentence for the Marion County convictions.

      Newman now appeals.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 5 of 14
                                                   Analysis
                                            I. Motion to Dismiss

[10]   The first issue is whether the trial court properly denied Newman’s motion to

       dismiss. We review the denial of a motion to dismiss for an abuse of discretion.

       Tiplick v. State, 43 N.E.3d 1259, 1262 (Ind. 2015). An abuse of discretion occurs

       when the trial court’s decision is against the logic and effect of the

       circumstances before it. Lebo v. State, 977 N.E.2d 1031, 1035 (Ind. Ct. App.

       2012).


[11]   Newman argues that both his Hamilton County and Marion County

       convictions “resulted from the same set of circumstances, and the same

       investigation.” Appellant’s Br. p. 10. He contends that the trial court should

       have granted his motion to dismiss under the actual evidence test articulated in

       Richardson v. State, 771 N.E.2d 32 (Ind. 1999).


[12]   In Richardson, our supreme court concluded that two or more offenses are the

       same offense in violation of Article 1, Section 14 if, with respect to either the

       statutory elements of the challenged crimes or the actual evidence used to

       obtain convictions, the essential elements of one challenged offense also

       establish the essential elements of another challenged offense. Garrett v. State,

       992 N.E.2d 710, 719 (Ind. 2013). “Under the actual evidence test, we examine

       the actual evidence presented at trial in order to determine whether each

       challenged offense was established by separate and distinct facts.” Id. To find a

       double jeopardy violation under this test, we must conclude that there is a


       Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 6 of 14
       reasonable possibility that the evidentiary facts used by the fact-finder to

       establish the essential elements of one offense may also have been used to

       establish the essential elements of a second challenged offense. Id. The actual

       evidence test is applied to all the elements of both offenses. Id. “‘In other

       words . . . the Indiana Double Jeopardy Clause is not violated when the

       evidentiary facts establishing the essential elements of one offense also establish

       only one or even several, but not all, of the essential elements of a second

       offense.’” Id. (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).


[13]   The convictions in Marion County related to drugs, including cocaine, that

       were found in Newman’s apartment, while the Hamilton County conviction

       was for dealing in cocaine. The evidentiary facts necessary to establish the

       essential elements of possession of cocaine in the Marion County conviction are

       not the same as the evidentiary facts necessary to establish the essential

       elements of dealing in cocaine in the Hamilton County conviction. The

       Hamilton County conviction was based on Newman’s participation in the sale

       of cocaine to the CI during the controlled buy. The Marion County conviction

       was based on the fact that cocaine was found in Newman’s apartment.

       Although the cocaine found in the Marion County apartment was admitted at

       the Hamilton County trial and evidence of his Hamilton County arrest was

       admitted during the Marion County trial, the cocaine found in the apartment

       was not necessary to establish the essential elements of the Hamilton County

       dealing conviction. Consequently, there was no double jeopardy violation, and

       the trial court did not abuse its discretion by denying the motion to dismiss.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 7 of 14
                                        II. Probable Cause to Arrest

[14]   The next issue is whether there was probable cause to arrest Newman. Because

       his motion to suppress was denied, he renewed his objection at trial, and the

       trial was completed, the issue is “best framed” as whether the trial court’s

       admission of evidence was an abuse of discretion. See Clark v. State, 994 N.E.2d

       252, 259 (Ind. 2013). We 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.


[15]   The Fourth Amendment guarantees that:


               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 (emphasis added). “The Fourth Amendment’s

       prohibition on unreasonable searches and seizures applies not only to searches

       and seizures of property, but also to physical apprehension of persons, such as

       arrests.” Thomas v. State, 81 N.E.3d 621, 625 (Ind. 2017) (citing Roberts v. State,

       599 N.E.2d 595, 598 (Ind. 1992)). In general, police must have a warrant to

       make an arrest. Id. (citing Herring v. United States, 555 U.S. 135, 136, 129 S. Ct.

       695 (2009)). An officer may, however, arrest a suspect without a warrant if he

       observes the suspect committing a crime, or if the officer has probable cause to



       Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 8 of 14
       believe that the suspect has committed a felony. Id. (citing Sears v. State, 668

       N.E.2d 662, 666-67 (Ind. 1996)).


[16]   “Probable cause to arrest arises when, at the time of the arrest, the arresting

       officer has knowledge of facts and circumstances, which would warrant a

       person of reasonable caution to believe that the defendant committed the

       criminal act in question.” Id. at 626 (citing Sears, 668 N.E.2d at 667). The

       amount of evidence necessary to satisfy the probable cause requirement for a

       warrantless arrest is evaluated on a case-by-case basis. Id. (citing Peterson v.

       State, 674 N.E.2d 528, 536 (Ind. 1996), cert. denied). Rather than requiring a

       precise mathematical computation, probable cause is grounded in notions of

       common sense. Id. (citing Ogle v. State, 698 N.E.2d 1146, 1148 (Ind. 1998)). “A

       police officer’s subjective belief as to whether he has probable cause to arrest a

       defendant has no legal effect. Instead, the police officer’s actual knowledge of

       objective facts and circumstances is determinative.” State v. Parrott, 69 N.E.3d

       535, 543 (Ind. Ct. App. 2017), trans. denied. “The ultimate determination of

       probable cause is reviewed de novo.” Id.


[17]   Newman argues that the officers did not have probable cause to arrest him.

       According to Newman, “at best,” there was “reasonable suspicion to effect a

       stop and further investigate.” Appellant’s Br. p. 16. The State argues that the

       officers had probable cause to believe that Newman had been involved in a drug

       transaction.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 9 of 14
[18]   We addressed this same argument in Newman’s appeal of his Marion County

       convictions. We held:


               [T]he evidence shows that, the day before the controlled buy,
               Bobish had told the CI over the telephone that he “had a local
               source [who] could deliver the cocaine for him.” Tr. Vol. 2 at 9.
               When the CI went to Bobish’s house to purchase cocaine, the CI
               and Bobish were inside his home for a short time and discussed
               marijuana, but the cocaine transaction did not occur until after
               Bobish met with Newman, who was parked outside Bobish’s
               residence. When Bobish went back inside after talking to
               Newman, Detective Troyer “could hear the cocaine transaction
               occurring between [the CI] and Mr. Bobish.” Id. at 11. Bobish
               then went back outside, “went back to [Newman’s] vehicle[,] and
               met with Mr. Newman again for a short period of time.” Id. at
               12. Bobish then returned to his house, and Newman drove off.
               Detective Troyer testified that, in his experience, the facts and
               circumstances indicated that Newman had delivered cocaine to
               Bobish to sell to the CI.


               We hold that the evidence shows that the officers had probable
               cause to initiate the traffic stop and arrest Newman for dealing in
               cocaine. Accordingly, Newman has not shown that his arrest
               violated the Fourth Amendment to the United States
               Constitution.


       Newman, No. 49A02-1702-CR-290, slip op. at 6.


[19]   We agree with the analysis in the appeal of Newman’s Marion County

       conviction. At the time of Newman’s arrest, the officers had knowledge of facts

       and circumstances that would warrant a person of reasonable caution to believe

       Newman committed dealing in cocaine. The trial court did not abuse its

       discretion by admitting evidence of the arrest.
       Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 10 of 14
                                         III. Admission of Cocaine

[20]   Newman also argues that the trial court abused its discretion by admitting the

       cocaine found in his Marion County apartment. “The trial court has

       discretionary power on the admission of evidence, and its decisions are

       reviewed only for an abuse of that discretion.” Lewis v. State, 34 N.E.3d 240,

       247 (Ind. 2015). An abuse of discretion occurs when the decision is clearly

       against the logic and effect of the facts and circumstances. Nicholson v. State,

       963 N.E.2d 1096, 1099 (Ind. 2012). “‘A claim of error in the exclusion or

       admission of evidence will not prevail on appeal unless the error affects the

       substantial rights of the moving party.’” Id. (quoting McCarthy v. State, 749

       N.E.2d 528, 536 (Ind. 2001)).


[21]   Newman argues that the admission of evidence of cocaine found in his Marion

       County apartment violated Indiana Evidence Rule 404(b). “Generally,

       evidence that is relevant—that is, evidence that has probative value as to an

       issue of fact in a case—is also admissible.” Stettler v. State, 70 N.E.3d 874, 879

       (Ind. Ct. App. 2017) (citing Ind. Evid. R. 401 & 402), trans. denied. Indiana

       Evidence Rule 403 provides that where the probative value of the evidence is

       substantially outweighed by a danger of unfair prejudice, confusion of the

       issues, misleading the jury, undue delay, or needless presentation of cumulative

       evidence, otherwise relevant evidence may be excluded. Id. Indiana Evidence

       Rule 404(b) further limits the admissibility of otherwise relevant evidence, and

       provides:



       Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 11 of 14
                   (1)      Prohibited Uses. Evidence of a crime, wrong, or other
                            act is not admissible to prove a person’s character in
                            order to show that on a particular occasion the person
                            acted in accordance with the character.


                   (2)      Permitted Uses; Notice in a Criminal Case. This
                            evidence may be admissible for another purpose, such
                            as proving motive, opportunity, intent, preparation,
                            plan, knowledge, identity, absence of mistake, or lack
                            of accident. On request by a defendant in a criminal
                            case, the prosecutor must:


                           (A)     provide reasonable notice of the general nature of
                                   any such evidence that the prosecutor intends to
                                   offer at trial; and


                           (B)     do so before trial--or during trial if the court, for
                                   good cause, excuses lack of pretrial notice.


[22]   “‘The well established rationale behind Evidence Rule 404(b) is that the jury is

       precluded from making the ‘forbidden inference’ that the defendant had a

       criminal propensity and therefore engaged in the charged conduct.’” Stettler, 70

       N.E.3d at 879 (quoting Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997)).


               When the defendant objects on the ground that the admission of
               particular evidence would violate Rule 404(b), the following test
               should be applied: (1) the court must determine that the evidence
               of other crimes, wrongs, or acts is relevant to a matter at issue
               other than the defendant’s propensity to commit the charged act;
               and (2) the court must balance the probative value of the
               evidence against its prejudicial effect pursuant to Rule 403.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 12 of 14
       Id. (quoting Thompson, 690 N.E.2d at 233). “If the ‘sole apparent purpose’ of

       evidence of a prior wrongful act is ‘to show the defendant acted in conformity

       with that character,’ the evidence is inadmissible.” Id. (quoting Pierce v. State,

       29 N.E.3d 1258, 1269 (Ind. 2015)). Such evidence may be admissible for “other

       purposes” if it survives Rule 403 balancing. Id.


[23]   The trial court here ruled that the cocaine was admissible to show Newman’s

       “intent.” Newman argues that his intent was not at issue, and the State argues

       that “intent was at issue here because the State was required to prove that

       Newman knowingly delivered cocaine to Bobish.” Appellee’s Br. p. 17.

       Although the State’s argument here misses the mark, we conclude that

       Newman’s intent was at issue, and the trial court properly admitted the cocaine.


[24]   The fact that the State was required to prove intent does not open the door to

       Rule 404(b) evidence, as the State argues. Rather, “[i]n Wickizer v. State, 626

       N.E.2d 795, 799 (Ind. 1993), the Indiana Supreme Court held that the intent

       exception in Evidence Rule 404(b) will be available when a defendant goes

       beyond merely denying the charged culpability and affirmatively presents a

       claim of particular contrary intent.” Baker v. State, 997 N.E.2d 67, 72 (Ind. Ct.

       App. 2013). “Stated another way, ‘the defendant must first place intent ‘at

       issue’ before prior bad act evidence relevant to intent is admissible.’” Id.

       (quoting Johnson v. State, 722 N.E.2d 382, 384 (Ind. Ct. App. 2000). Newman

       argued at trial that he was in the “[w]rong place, wrong time.” Tr. Vol. III p.

       34; Tr. Vol. IV p. 111. Newman was thereby claiming that he was not at

       Bobish’s residence to deal cocaine, and he placed his intent at issue. We further

       Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 13 of 14
       conclude that the probative value of the admission of the cocaine outweighed

       its prejudicial value. The trial court did not abuse its discretion by admitting

       the cocaine. See, e.g., Prewitt v. State, 761 N.E.2d 862, 870 (Ind. Ct. App. 2002)

       (holding that the trial court did not abuse its discretion by admitting evidence of

       a prior drug transaction because it showed the defendant’s intent).


                                                 Conclusion
[25]   The trial court did not abuse its discretion by denying Newman’s motion to

       dismiss, admitting evidence found as a result of Newman’s arrest, or admitting

       evidence of the cocaine found at his residence. We affirm.


[26]   Affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1706-CR-1327 | January 24, 2018   Page 14 of 14
