MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          Sep 01 2016, 6:11 am

regarded as precedent or cited before any                           CLERK
court except for the purpose of establishing                    Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David M. Payne                                           Gregory F. Zoeller
Ryan & Payne                                             Attorney General of Indiana
Marion, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eris Joshua Wallace,                                     September 1, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A05-1512-CR-2272
        v.                                               Appeal from the Grant Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark E. Spitzer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         27C01-1412-F6-194
                                                         27C01-1407-FC-60
                                                         27C01-1104-FB-171



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A05-1512-CR-2272 | September 1, 2016   Page 1 of 9
[1]   Eris Wallace appeals his conviction for Level 6 Felony Possession of Cocaine1

      and the revocation of his probation and suspended sentence. Wallace argues

      that the trial court erred by admitting certain evidence and that there is

      insufficient evidence supporting his conviction. Finding no error, and that there

      was sufficient evidence, we affirm.


                                                     Facts
[2]   On December 12, 2014, at approximately 2:45 a.m., Grant County Sheriff’s

      Deputy Kris Holtzleiter was dispatched to the area of 11th and Gallatin Streets

      in Marion to help with a Marion Police Department investigation. After

      arriving in the area, Deputy Holtzleiter observed a black Ford Focus that was a

      target of the investigation pulling into a parking lot nearby at 10th and

      Nebraska Streets. He contacted Sergeant Eric Fields and advised him of the

      vehicle’s location. Once Sergeant Fields arrived, they approached the vehicle.


[3]   The two men who had been traveling in the vehicle, Brandon Campbell and

      Eris Wallace, were walking toward a house. Deputy Holtzleiter ordered them

      to stop. He approached them and directed Wallace to Sergeant Fields while he

      patted down Campbell. During the pat down, Deputy Holtzleiter felt a

      bulletproof vest on Campbell. He placed him in handcuffs and told Sergeant

      Fields to place Wallace in handcuffs. Wallace and Campbell remained in

      separate areas near the police cars until police officers took them to the police




      1
          Ind. Code § 35-48-4-6(a).


      Court of Appeals of Indiana | Memorandum Decision 27A05-1512-CR-2272 | September 1, 2016   Page 2 of 9
      station. After the men were placed in custody, Deputy Holtzleiter did a sweep

      for weapons near the vehicle, but he did not find any.


[4]   While Wallace and Campbell were still in custody in the parking lot, Detective

      Mark Stefanatos arrived. After he parked, he walked across the street to where

      the Ford Focus was, observed an item of interest, and walked back to his

      vehicle to get his camera. Wallace started talking to Detective Stefanatos and

      asking him to come over to talk. Detective Stefanatos approached Wallace to

      say that he needed to take photographs; while standing there, the detective saw

      a bag of what appeared to be drugs on the street near the center line markers

      behind Wallace.


[5]   The bag of drugs had not been there the first two times that Detective

      Stefanatos walked across the street. It was found about six or seven feet from

      where Wallace was standing. He was the only person besides police officers in

      that area. None of the six or seven police officers present saw Wallace throw

      the bag. The bag was a small, clear plastic bag that had been tied off with the

      top cut off. It looked fresh, without any dirt or tire tracks on it, and in good

      condition. Detective Stefanatos asked Wallace about the bag of drugs; Wallace

      said he did not know anything and the bag was not his. A laboratory test later

      showed that the substance in the bag was cocaine and weighed .7 grams.


[6]   On December 23, 2014, the State charged Wallace with Level 6 felony

      possession of cocaine under lower court cause 27C01-1412-F6-194 (cause 194).

      Following Wallace’s October 26, 2015, jury trial, the jury found him guilty as


      Court of Appeals of Indiana | Memorandum Decision 27A05-1512-CR-2272 | September 1, 2016   Page 3 of 9
      charged. On November 20, 2015, the trial court held a sentencing hearing. It

      sentenced Wallace to two and one-half years of incarceration for cause 194 and

      revoked his probation and suspended sentence under lower court causes 27C01-

      1407-FC-60 (cause 60) and 27C01-1104-FB-171 (cause 171). The trial court

      ordered Wallace to serve in consecutive terms the balance of his suspended

      sentences, which was 915 days under cause 60 and 718 days under cause 171.

      Wallace now appeals his conviction and the revocation of his probation and

      suspended sentence.


                                   Discussion and Decision
                                  I. Admission of Evidence
[7]   Wallace argues that testimony about Brandon Campbell’s bulletproof vest

      should not have been admitted. A trial court has broad leeway regarding the

      admission of evidence. Smith v. State, 889 N.E.2d 836, 839 (Ind. Ct. App.

      2008). We will reverse only if the decision is clearly against the logic and effect

      of the facts before the trial court. Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct.

      App. 2010).


[8]   Indiana Evidence Rule 402 provides that relevant evidence is generally

      admissible and irrelevant evidence not admissible. Under Indiana Evidence

      Rule 401, “[e]vidence is relevant if (a) it has any tendency to make a fact more

      or less probable than it would be without the evidence; and (b) the fact is of

      consequence in determining the action.”



      Court of Appeals of Indiana | Memorandum Decision 27A05-1512-CR-2272 | September 1, 2016   Page 4 of 9
[9]    Wallace relies on Brown v. State, 747 N.E.2d 66 (Ind. Ct. App. 2001), to support

       his argument that the testimony of the bulletproof vest should not have been

       admitted. In Brown, after Brown was convicted of carrying a handgun without

       a license, this Court found that evidence of a shotgun, duct tape, and ski masks

       found in the car in which Brown was a passenger was not relevant to the issue

       of Brown’s guilt or innocence on the charge of possessing an unlicensed

       handgun, and that evidence did not prove or disprove any material fact in the

       case. Id. at 68.


[10]   We find Brown distinguishable. In this case, the testimony about the bulletproof

       vest established that the officers handcuffed Wallace and Campbell because of

       concerns of officer safety and that the detention was lawful. Wallace asserts

       that there was no evidence that he knew Campbell was wearing a bulletproof

       vest, but whether he had knowledge of it does not change the fact that the

       officers had a justifiable reason to detain the men, and did in fact detain them,

       thereby giving Wallace a motive to discard the drugs. The testimony therefore

       had a tendency to make a fact more or less probable, and the trial court did not

       err by finding that the evidence was relevant and admissible.


[11]   Wallace also argues that even if the evidence was relevant, the trial court should

       not have admitted it because it was unfairly prejudicial. Under Indiana

       Evidence Rule 403, relevant evidence may be excluded “if its probative value is

       substantially outweighed by a danger of . . . unfair prejudice[.]” When

       evaluating whether to admit or exclude the evidence, the trial court looks for

       danger that the jury will substantially overestimate the value of the evidence or

       Court of Appeals of Indiana | Memorandum Decision 27A05-1512-CR-2272 | September 1, 2016   Page 5 of 9
       that the evidence will arouse or inflame the jury’s passions or sympathies.

       Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012).


[12]   Before trial, Wallace moved for an order in limine. The trial court granted the

       motion in part, excluding evidence that the officers were looking for the black

       Ford Focus because of a report of shots fired and evidence of a shell casing

       from a high-powered rifle on the floorboard of the car, because the danger of

       unfair prejudice substantially outweighed its probative value. The trial court

       declined to exclude evidence of the bulletproof vest, however, so that the State

       could elicit testimony that the officers arrested the two men out of concern for

       officer safety. Tr. p. 24-25. The testimony about the bulletproof vest was brief

       and was elicited only to establish the reason for the detention. Tr. p. 32-33. We

       therefore disagree with Wallace’s assertion that the bulletproof vest was

       evidence that would make the jury “likely tip the scales in favor of a

       conviction,” appellant’s br. at 21, because the testimony presented about the

       vest was short and concise and other, more significant evidence was presented

       that could persuade the jury to convict him. We find that the probative value of

       this evidence is not substantially outweighed by any prejudicial effect and that

       the trial court did not err by admitting it.


                               II. Sufficiency of the Evidence
[13]   Wallace further argues that there is insufficient evidence supporting his

       conviction for possession of cocaine. When reviewing a claim of insufficient

       evidence, we will consider only the evidence and reasonable inferences that


       Court of Appeals of Indiana | Memorandum Decision 27A05-1512-CR-2272 | September 1, 2016   Page 6 of 9
       support the conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will

       affirm if, based on the evidence and inferences, a reasonable jury could have

       found the defendant guilty beyond a reasonable doubt. Bailey v. State, 907

       N.E.2d 1003, 1005 (Ind. 2009). Circumstantial evidence alone is sufficient if

       inferences may reasonably be drawn that enable the factfinder to find the

       defendant guilty beyond a reasonable doubt. Pratt v. State, 744 N.E.2d 434, 437

       (Ind. 2001). To convict Wallace of Level 6 felony possession of cocaine, the

       State was required to prove beyond a reasonable doubt that he, “without a valid

       prescription or order of a practitioner acting in the course of the practitioner’s

       professional practice, knowingly or intentionally possesse[d] cocaine (pure or

       adulterated).” Ind. Code § 35-48-4-6(a).


[14]   Wallace contends that the evidence is insufficient to support his conviction

       because no one saw him actually possess or discard the bag of cocaine and it

       was recovered in a public street after Wallace was placed in handcuffs. In

       support of his argument, Wallace distinguishes his case from Indiana cases that

       hold that sufficient evidence was presented where a defendant discarded or

       disposed of an illegal substance later recovered by police. See Hayes v. State, 876

       N.E.2d 373 (Ind. Ct. App. 2007) (officer observed defendant placing a closed

       fist inside a bin and removing an empty hand before recovering cocaine from

       the same part of the bin); Hicks v. State, 609 N.E.2d 1165 (Ind. Ct. App. 1993)

       (officer saw defendant drop a small brown paper package on the ground that

       another officer recovered); Phillips v. State, 313 N.E.2d 101, 160 Ind. App. 647




       Court of Appeals of Indiana | Memorandum Decision 27A05-1512-CR-2272 | September 1, 2016   Page 7 of 9
       (1974) (officers found a packet of heroin on the floor of the rear compartment of

       their patrol car after defendant had been removed).


[15]   In this case, the street where the bag of cocaine was found was blocked off by

       the officers’ cars, and there was no traffic on it. Detective Stefanatos testified

       that the bag of cocaine was not present on the street during the first two times

       he walked across the street. Once the bag of cocaine was on the ground, it was

       “obvious” that it was there. Tr. p. 88. The bag was in good condition without

       any dirt or tire tracks on it, despite its presence in the middle of a “heavily

       traveled” street. Id. at 100-01. Wallace was the only person other than the

       officers in the area where the bag of cocaine was recovered. Sergeant Fields

       testified that he observed Wallace, after being handcuffed, moving his hands

       around and sticking his hands into his right coat pocket, and that when he

       asked Wallace what he was doing, Wallace said he was trying to get his cell

       phone. During trial, Wallace demonstrated his range of movement while

       wearing handcuffs.


[16]   A reasonable fact-finder could infer from this evidence that Wallace actually

       possessed the cocaine. We find that the evidence is sufficient to sustain the

       verdict.2




       2
         Wallace also argues that the trial court’s revocation of his probation and suspended sentence under lower
       court causes 60 and 171 should be reversed because there was insufficient evidence to convict him of
       possession of cocaine under cause 194. Finding sufficient evidence for the possession of cocaine conviction,
       the trial court certainly did not err by revoking probation in those cases.

       Court of Appeals of Indiana | Memorandum Decision 27A05-1512-CR-2272 | September 1, 2016          Page 8 of 9
[17]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1512-CR-2272 | September 1, 2016   Page 9 of 9
