MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Aug 22 2019, 7:35 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      CLERK
                                                                           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
R. Thomas Lowe                                           Curtis T. Hill, Jr.
Jeffersonville, Indiana                                  Attorney General of Indiana

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Andrew Ray,                                      August 22, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2354
        v.                                               Appeal from the Orange Circuit
                                                         Court
State of Indiana,                                        The Honorable Steven L. Owen,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         59C01-1303-FA-168



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019                    Page 1 of 22
[1]   Following a jury trial, Michael Andrew Ray was convicted of Class A felony

      attempted dealing in methamphetamine, Class D felony possession of

      methamphetamine, and two counts of resisting law enforcement, one as a Class

      D felony and one as a Class A misdemeanor. Ray was also found to be a

      habitual offender. The trial court sentenced Ray to an aggregate term of eighty-

      six years executed. Ray presents four issues for our review:


              1. Do his convictions for Class D felony and Class A
              misdemeanor resisting law enforcement violate double jeopardy
              principles?


              2. Did the trial court abuse its discretion in denying Ray’s
              challenge for cause during voir dire and his request to dismiss a
              juror after the trial began?


              3. Did the trial court abuse its discretion in admitting evidence
              relating to other crimes, wrongs, or acts?


              4. Is Ray’s conviction for attempted dealing methamphetamine
              supported by sufficient evidence?


[2]   We affirm in part, reverse in part, and remand with instructions.


                                       Facts & Procedural History


[3]   On March 7, 2013, Jason Lomax, a United States Postal Service employee,

      found a FedEx package in his mailbox that had been opened and “hastily . . .




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 2 of 22
      put back together with some clear tape.” 1 Transcript Vol. 3 at 96. As a postal

      service employee, Lomax knew that FedEx would not have put the package in

      his mailbox because it required a signature and is against the law for FedEx to

      put packages in a U.S. mailbox. When Lomax discovered this package in his

      mailbox, he also observed a vehicle parked approximately 100 feet away off the

      side of the road. He did not recognize anyone in the vehicle, but believed they

      were “staking out [his] mailbox.” Id.


[4]   Lomax then went to his mother’s house, which was on the same property and

      shared the same mailing address. Lomax learned that a man resembling Ray,

      who is Lomax’s nephew, was seen speaking with the FedEx driver. Lomax

      called FedEx directly and was informed that a “Dwayne Johnson” had signed

      for the package. Id. at 99. Other than the actor, Dwayne “The Rock” Johnson,

      Lomax did not know anyone else by that name. Lomax then left to head into

      town and noticed the same vehicle still parked on the street just down from his

      mailbox. Lomax called the police to report the issue with his mail and

      identified Ray as possibly being involved.


[5]   Sheriff Josh Babcock took the report from Lomax. Sheriff Babcock then

      checked with dispatch and learned that there was an outstanding warrant for

      Ray. Sheriff Babcock contacted Detective Shane Staggs of the Indiana State

      Police (ISP) and asked for his assistance in locating Ray. Sheriff Babcock, who




      1
          Lomax was expecting this package as it contained new bank cards.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 3 of 22
      was in uniform, and Detective Staggs, who was familiar with Ray, drove in

      Babcock’s marked patrol car toward Lomax’s residence. As they approached,

      they observed a vehicle parked on the side of the road near Lomax’s mailbox.

      Sheriff Babcock drove his patrol car right up to the front of the vehicle with the

      lights activated. Detective Staggs recognized Ray as the individual in the

      driver’s seat and noted that there was also a female passenger in the front seat.


[6]   Both officers exited the vehicle, and within a few seconds Ray put his vehicle

      into reverse and “backed out at a pretty high rate of speed.” Id. at 65. The

      officers got back in their vehicle and gave chase with lights and sirens activated.

      They pursued Ray for twenty-three miles, reaching speeds up to seventy-four

      miles per hour. During the pursuit, a black object and a silver, metal object

      were thrown out of the car through the passenger window. As Sheriff Babcock

      continued with the pursuit, Detective Staggs called out through dispatch the

      locations of where the items were thrown. Other officers went to those

      locations and recovered a gun and a black bag that contained two digital scales,

      a razor blade, and small plastic baggies, among other items.


[7]   The chase came to an end when Ray suddenly swerved his vehicle off the

      roadway, through a barbed-wire fence, and approximately 150 yards into a

      muddy cornfield before coming to a stop. Ray exited the vehicle and took off

      on foot. Sheriff Babcock stopped his vehicle on the roadway, and Detective

      Staggs began pursuing Ray, yelling at him to stop. As Ray was running, he

      threw away a Marlboro cigarette package, which Detective Staggs later

      recovered. Inside the cigarette package was a small baggie of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 4 of 22
       methamphetamine weighing .79 grams. Detective Staggs caught up with Ray

       after Ray fell. Detective Staggs held Ray at gunpoint until Sheriff Babcock

       arrived and handcuffed him.


[8]    Ray was then transported to the police station. During the drive, Ray admitted

       that he had been “shooting up methamphetamine” and that he was “not proud

       of it.” Id. at 233. As Ray was being booked into jail, officers recovered a

       baggie containing 1.32 grams of methamphetamine and a cell phone from Ray’s

       person.


[9]    When interviewed, Ray was asked about the mail he was waiting to be

       delivered to Lomax’s mailbox, and Ray claimed he was waiting for a letter

       from his mother from prison. Sheriff Babcock told Ray that they knew that Ray

       was waiting for a package to be delivered and that Lomax had already received

       the package and sent it back to the post office. Ray dropped his head in “[k]ind

       of a defeated action.” Id. at 73.


[10]   At Sheriff Babcock’s request, ISP Officer Paul Andry went to the post office to

       investigate the package that had been delivered to Lomax’s address but which

       Lomax had returned. The postal service employees had already set the package

       aside and contacted United States postal inspectors because they too had

       suspicions. The package was addressed to Lomax’s address, but to a “Dawn

       Spelling” and was from a “Gary Patton” in Las Vegas. Id. at 146. ISP officer

       Robbie Lambert and his drug canine were called to the post office to do a drug

       sniff. The subject package was placed among other packages. The drug canine


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 5 of 22
       performed an open-air drug sniff and alerted to the subject package. Officer

       Andry took possession of the package and obtained a search warrant. He then

       opened the package and found methamphetamine, later determined to have a

       total weight of 41.74 grams. Officer Andry testified that the amount was

       significant and indicated that it was not for personal use, but rather for dealing.

       The methamphetamine was “a very pure form of crystal methamphetamine”

       that had a street value of around $5000 before being cut with another substance

       to increase the volume and thereby increase profits. Id. at 151.


[11]   A search warrant was also obtained to search the phone found on Ray’s person.

       The phone was a flip-phone, so pictures were taken of text messages that were

       found on the phone. These photographs were admitted into evidence over

       Ray’s objection. 2 Ray’s phone was lost at some point thereafter and thus, was

       not admitted into evidence during the trial.


[12]   On March 11, 2013, the State charged Ray with Class A felony attempted

       dealing in methamphetamine, Class C felony possession of methamphetamine

       (enhanced by possession of a firearm), Class B felony unlawful possession of a

       firearm by a serious violent felon, Class D felony resisting law enforcement

       (fleeing by car), and Class A misdemeanor resisting law enforcement (fleeing on




       2
         In order to document the full text of some of the messages, it was necessary to take several photographs,
       with some overlap of the text message from one exhibit to the next. In total, there were 105 photographs
       related to the phone and text messages that were admitted at trial. See Exhibits 29-133.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019                   Page 6 of 22
       foot). The State also alleged that Ray was a habitual offender as well as a

       habitual substance offender.


[13]   On August 6, 2018, Ray filed a motion to suppress, 3 a motion to dismiss the

       attempted dealing charge, 4 and a motion in limine relating to Ind. Rules of

       Evidence 404(B) 5 and 704(B). The trial court denied the motion to suppress

       and motion to dismiss, but granted Ray’s motion in limine, although noting

       that its ruling regarding Evid. R. 404(B) was subject to change at trial. A three-

       day jury trial commenced on August 7, 2018.


[14]   During voir dire, Ray exhausted his peremptory strikes. He then sought to

       challenge Juror 990 for cause given certain statements the juror made that Ray

       claimed reflected the juror could not be fair and impartial in considering the

       evidence. The trial court denied Ray’s challenge for cause. After the first

       witness finished testifying, Juror 989 informed the court that she knew of two

       individuals referenced during the first witness’s testimony. The trial court

       questioned Juror 989 and concluded that she remained impartial and did not




       3
         Ray sought to suppress the methamphetamine found in the package at the post office and photographs of
       text messages found on his phone. With regard to the latter, Ray cited a lack of chain of custody and his
       inability to examine the phone from which the text messages were photographed.
       4
        Ray argued that the anticipated evidence was lacking with respect to establishing that he engaged in a
       substantial step toward commission of a crime. Specifically, he argued that the anticipated evidence would
       establish only that he engaged in acts that constituted “mere preparation.” Appellant’s Appendix Vol. II at 248.
       5
        In his motion in limine regarding Evid. R. 404(b), Ray sought to prevent the introduction of evidence
       “related to a letter which was submitted by [Ray] following a guilty plea.” Appellant’s Appendix Vol. II at 240.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019                     Page 7 of 22
       know the facts of the case outside of what had been presented at trial. The

       court denied Ray’s request that the Juror 989 be dismissed.


[15]   At trial, the State admitted pictures of the text messages found on Ray’s phone.

       The exhibits were admitted in sets, Exhibits 29-38, 39-51, 52-63, 64-74, 75-88,

       89-100, 101-12, 113-26, and 127-133. When the State offered the first set of

       exhibits (Exhibits 29-38), Ray objected claiming they amounted to

       “inadmissible hearsay” and that there was a lack of evidence pertaining to chain

       of custody. Transcript Vol. 3 at 174. The trial court overruled Ray’s objections

       and admitted Exhibits 29-38 into evidence. This first set of exhibits contained

       text messages pertaining to a tracking number, that Ray had been waiting for

       the package to be delivered for several hours, and questions about what day the

       package would be delivered.


[16]   Prior to admission of the second set of exhibits (Exhibits 39-51), Ray objected

       on the “same grounds as before.” Id. at 181. The trial court overruled Ray’s

       objection. This set of exhibits contained text messages discussing money and a

       potential drug transaction. In one message, someone inquired, “hey can you

       run half by”. Id. at 182; Exhibit 41. Sheriff Babcock testified that the reference

       to “half” could be referring to the sale of narcotics. Transcript Vol. 3 at 182.

       Within this set of text messages, there were also references to an exchange of

       money and “perks,” which Sheriff Babcock believed to be a reference to

       Percocet, a narcotic prescription medication. Id. at 183.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 8 of 22
[17]   With regard to the third set of exhibits (Exhibits 52-63), Ray objected on the

       same grounds and added that “it touches on issues of 404 I believe.” Id. at 184.

       The trial court again overruled Ray’s objection. Within this set of exhibits, an

       individual had sent a message to Ray’s phone that he or she “need a little bit go

       go i got some cash.” Id. at 185; Exhibits 62. Sheriff Babcock testified that “go

       go” is a street name for methamphetamine. Transcript Vol. 3 at 185.


[18]   Prior to the admission of the remaining sets of exhibits (Exhibits 64-133), Ray

       posed the “same objection.” Id. at 187, 188, 192, 193, 195; see also Id. at 190

       (“object for the same reasons”). The trial court overruled each objection and

       admitted the evidence. The text messages in these exhibits generally pertained

       to drug transactions involving methamphetamine, Xanax, and narcotic

       prescription painkillers. In discussing final instructions for the jury, the trial

       court granted Ray’s request for a 404(B) limiting instruction relating to the text

       message evidence that referred to drug transactions aside from those involving

       methamphetamine.


[19]   At the conclusion of the evidence, the jury found Ray guilty of Class A felony

       attempted dealing in methamphetamine, Class D felony possession of

       methamphetamine as a lesser-included offense of the Class C felony charge,

       and both counts of resisting law enforcement. The jury found that Ray was not

       in possession of a firearm. Following the second phase of the trial, the jury

       found Ray to be a habitual offender. On August 28, 2018, the trial court

       sentenced Ray to fifty years on the Class A felony attempted dealing conviction

       and enhanced the sentence by thirty years for the habitual offender

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 9 of 22
       determination. The court also imposed consecutive three-year sentences on

       each Class D felony conviction, and a concurrent one-year sentence for the

       misdemeanor resisting conviction, for a total sentence of eighty-six years

       imprisonment. Ray now appeals. Additional facts will be provided as

       necessary.


                                           Discussion & Decision


                                             1. Double Jeopardy


[20]   Ray argues that his two convictions for resisting law enforcement violate double

       jeopardy principles. The State properly acknowledges that Ray’s conviction for

       Class A misdemeanor resisting law enforcement violates double jeopardy

       principles, and therefore, must be vacated. See Norris v. State, 113 N.E.3d 1245,

       1253 (Ind. Ct. App. 2018) (noting that a defendant cannot be convicted of both

       misdemeanor and felony resisting law enforcement when he flees in a vehicle,

       gets out, and immediately flees on foot), trans. denied; Lewis v. State, 43 N.E.3d

       689, 691 (Ind. Ct. App. 2015) (same); Arthur v. State, 824 N.E.2d 383, 385 (Ind.

       Ct. App. 2005). Here, Ray fled in his car and then immediately fled on foot.

       Under such circumstances, there is but one continuous act of resisting law

       enforcement. Accordingly, there can be but a single conviction for such

       offense. See Nevel v. State, 818 N.E.2d 1, 8-9 (Ind. Ct. App. 2004). We therefore

       remand to the trial court with instructions to vacate Ray’s conviction and

       sentence for Class A misdemeanor resisting law enforcement.


                                                2. Juror Issues

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 10 of 22
                                                  A. Juror 990


[21]   Ray argues that the trial court’s denial of his challenge for cause to Juror 990

       violated his constitutional right to an impartial jury. The United States and

       Indiana Constitutions guarantee the right to an impartial jury. Oswalt v. State,

       19 N.E.3d 241, 245 (Ind. 2014). The purpose of voir dire is to determine

       whether the potential jurors can render a fair and impartial verdict in

       accordance with the law and evidence. Kimbrough v. State, 911 N.E.2d 621, 628

       (Ind. Ct. App. 2009). For-cause challenges are available to exclude any

       prospective juror whose “views would prevent or substantially impair the

       performance of his duties as a juror in accordance with his instructions and his

       oath.” Id. (quoting Wainwright v. Witt, 469 U.S. 412, 423-24 (1985)).


[22]   The trial court has discretion to grant or deny challenges for cause, and we

       review the trial court’s decisions in this regard for an abuse of that discretion.

       Merritt v. Evansville-Vanderburgh Sch. Corp., 765 N.E.2d 1232, 1235 (Ind. 2002).

       “The trial court has the unique position to observe and ‘assess the demeanor of

       prospective jurors as they answer the questions posed by counsel.’” Oswalt, 19

       N.E.3d at 245 (quoting Smith v. State, 730 N.E.2d 705, 708 (Ind. 2000)). “[O]n

       appeal, we afford substantial deference to the trial judge’s decision . . . and will

       find error only if the decision is illogical or arbitrary.” Id. (quoting Whiting v.

       State, 969 N.E.2d 24, 29 (Ind. 2012)).


[23]   During voir dire, Juror 990 stated that he was a businessman in the community,

       running a local office supply store, and that he was familiar with some of the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 11 of 22
       identified witnesses, of which at least one was a customer. He explained that

       “as a businessman I wouldn’t be a very good businessman if I didn’t take care

       of my customers when they buy stuff or whatever so . . . I’d be leaning towards

       people that I know.” Transcript Vol. 3 at 17. He also stated that if the trial went

       longer than indicated, he “would blame the counsel and . . . probably lean the

       other way . . . [b]ecause he would realize that [he] was losing customers.” Id. at

       20. Ray, who had used all of his peremptory strikes, 6 moved to strike Juror 990

       for cause in light of these statements. The trial court denied Ray’s challenge,

       finding that despite his comments, Juror 990 stated that he was not biased or

       prejudiced against either side and that he would try to put aside the fact that he

       was acquainted with some of the identified witnesses.


[24]   Our review of Juror 990’s voir dire convinces us that the trial court was within

       its discretion to deny Ray’s for-cause challenge. While Juror 990 stated that he

       would have to side with a person with whom he had an established

       relationship, he admitted that he knew some of the identified witnesses only “a

       little bit” and that he did not have an on-going, established relationship with

       any of them that would have caused him to give more credence to their

       testimony over any other testimony. Transcript Vol. 3 at 18, 19. As the trial

       court found, Juror 990 also stated that he was not biased or prejudiced for or

       against either side and that his associations with the identified witnesses was



       6
         Having exhausted his peremptory challenges, Ray satisfied the exhaustion rule, which requires that a
       defendant have used all of his allotted peremptory challenges in order to preserve for appeal a claim that the
       trial judge erred in denying a challenge for cause. See Whiting, 969 N.E.2d at 29-30.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019                   Page 12 of 22
       that he knew of them from being a businessman in the community. To the

       extent that Juror 990 said he would “blame the counsel” if the trial took longer

       than expected, the trial court found that such did not indicate a particular bias

       and could be avoided by making sure the trial was completed in a timely

       manner. Id. at 20. At no time did Juror 990 express or show any actual or

       implicit bias for or against Ray or the State. Rather, Juror 990 stated that he

       would try to put aside his knowledge of some of the witnesses, listen to the

       evidence, and be a fair and impartial juror. We therefore affirm the trial court’s

       denial of Ray’s for-cause challenge to Juror 990.


                                                  B. Juror 989


[25]   Ray also argues that the trial court abused its discretion in denying his request

       to dismiss Juror 989 after the trial started. At the end of the first day of trial,

       just after Sheriff Babcock testified, Juror 989 notified the court that she knew

       two individuals who Sheriff Babcock mentioned during his testimony. The

       following morning, Juror 989 was questioned in chambers by the trial court

       judge, with all attorneys in attendance. Juror 989 explained that she did not

       personally know one of the individuals and that she sometimes saw the other

       individual at family get togethers but had not seen her in a while. Juror 989

       also stated that Ray looked familiar, but that she did not know him. When

       questioned by the court, Juror 989 confirmed that she did not know any

       material facts about the case, that she had not heard anything about the case

       outside of the trial, and that she did not know anything about the alleged

       incident.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 13 of 22
[26]   After Juror 989 left the trial judge’s chambers, Ray requested that Juror 989 be

       dismissed. Ray informed the court that “it’s a little more complicated,” noting

       various relationships between Ray, the individuals mentioned by Sheriff

       Babcock, and Juror 989. Id. at 89. The trial court did not call Juror 989 back

       into chambers to further inquire given Ray’s claims of a “more complicated”

       scenario. Id. The court also noted that the individuals with whom Ray was

       familiar were not witnesses in the current action. The court therefore denied

       Ray’s request to dismiss Juror 989.


[27]   Although Ray frames his argument regarding Juror 989 as if it were a challenge

       for cause during jury selection, his argument is more properly addressed under

       Ind. Jury Rule 24, which addresses the procedure for when the trial court

       becomes aware of a juror with personal knowledge about the case. J.R. 24

       provides:


               If the court receives information that a juror has personal
               knowledge about the case, the court shall examine the juror
               under oath in the presence of the parties and outside the presence
               of the other jurors concerning that knowledge.


               If the court finds that the juror has personal knowledge of a
               material fact, the juror shall be excused, and the court shall
               replace that juror with an alternate. If there is no alternate juror,
               then the court shall discharge the jury without prejudice, unless
               the parties agree to submit the cause to the remaining jurors.


[28]   Here, the court followed this procedure and found that Juror 989 “professed

       that she had no knowledge of any material element of this case.” Transcript Vol.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 14 of 22
       3 at 91. While she was acquainted with the mentioned individuals, she

       indicated that she did not personally know one of them and that she had not

       seen the other individual in quite some time. She brought such to the attention

       of the court only because she did not “know where the trial [wa]s going.”

       Transcript Vol. 3 at 86.


[29]   Having reviewed the record, we will not second guess the trial court’s

       assessment that Juror 989 “didn’t know any fact that would affect her ability to

       be fair and impartial, . . . and didn’t know a material fact of the case.” Id. at 89.

       The court was not obligated to inquire further after Ray claimed that the juror

       may have had a “deeper relationship” with individuals associated with or in

       some way connected to Ray, especially in light of the juror’s responses to the

       court’s direct questions regarding the same. Appellant’s Brief at 21. The trial

       court did not abuse its discretion in denying Ray’s request to dismiss Juror 989.


                                         3. Admission of Evidence


[30]   Ray argues that the trial court abused its discretion in admitting the text

       messages relating to other crimes, wrongs, or acts and testimony related thereto.

       Ray points out that the State introduced 105 photographs of text messages

       taken from the phone that was found on his person and claims that only about

       11 of them can be construed as having anything to do with receiving a package.

       He notes that many of the texts are replete with references and allusions to

       drugs and drug transactions unrelated to methamphetamine. Ray also argues

       that the court abused its discretion by permitting Sheriff Babcock to read each


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 15 of 22
       text message into evidence and offer his personal suppositions about what the

       text messages meant to him.


[31]   We review evidentiary decisions for an abuse of discretion and will reverse only

       when the decision is clearly against the logic and effect of the facts and

       circumstances before the trial court. 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.” McCarthy v. State, 749 N.E.2d 528, 536 (Ind. 2001).


[32]   We begin by noting that Ray did not object to Sheriff Babcock’s reading of the

       text messages or his interpretation of what was being discussed in the text

       messages. We further note that Ray did not object to the first two sets of

       exhibits on Evid. R. 404(b) grounds. Ray has therefore waived his right to

       challenge Sheriff Babcock’s testimony or the admission of Exhibits 29-38 7 and

       39-51. See Washington v. State, 840 N.E.2d 873, 886 (Ind. Ct. App. 2006)

       (stating that failure to object at trial results in wavier of an issue for purposes of

       appeal).


[33]   Ray first asserted his Evid. R. 404(b) objection prior to the admission of the

       third set of text message photographs (Exhibits 52-63) and then asserted the

       “same objection” to the remaining photographs of the text messages (Exhibits




       7
         Ray concedes that Exhibits 29-38 were directly related to the case as the messages pertained to him waiting
       for the package at Lomax’s address and a tracking number therefor.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019                 Page 16 of 22
       64-133). Ind. Evidence Rule 404(b)(1) provides that evidence of other crimes or

       wrongful acts 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.” The well-established rationale behind this rule 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. Hardin v.

       State, 611 N.E.2d 123, 129 (Ind. 1993). Such evidence, however, may be

       admissible “for another purpose, such as proving motive, opportunity, intent,

       preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

       Evid. R. 404(b)(2).


[34]   We first observe that Exhibits 61-63, 113-15, 125, and 127-33 referenced

       potential sales of methamphetamine, in that two of the text messages received

       by Ray requested “go go” and “a little bump,” which, according to Sheriff

       Babcock, are both slang terms for methamphetamine. Transcript Vol. 3 at 185,

       193-94; Exhibits 61-63, 113-15. In text messages sent by Ray, he stated that he

       had “go fast,” which Sheriff Babcock testified was another slang term for

       methamphetamine, and that he would soon have “some of that good real good

       stuff.” Transcript Vol. 3 at 194-96; Exhibits 125, 127-33. This evidence pertains

       to the charged crimes and thus, is not evidence of other crimes or acts.


[35]   We are thus left with those exhibits that reference or allude to drug transactions

       unrelated to methamphetamine. Even if we assume the trial court abused its

       discretion in admitting these text message exhibits into evidence, we conclude

       that any such error was harmless. No error in the admission of evidence is

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 17 of 22
       grounds for setting aside a conviction unless the erroneous admission appears

       inconsistent with substantial justice or affects the substantial rights of the

       parties. Ind. Trial Rule 61. The improper admission of evidence is harmless

       error when the conviction is supported by such substantial independent

       evidence of guilt as to satisfy the reviewing court that there is no substantial

       likelihood that the questioned evidence contributed to the conviction. Wickizer

       v. State, 626 N.E.2d 795, 800 (Ind. 1993). To decide if the erroneous admission

       of prejudicial evidence of extrinsic offenses is harmless, we therefore evaluate

       whether the jury’s verdict was substantially swayed. Id.; see also Meadows v.

       State, 785 N.E.2d 1112, 1122 (Ind. Ct. App. 2003) (stating that the erroneous

       admission of evidence is harmless if there is substantial independent evidence of

       guilt such that there is no substantial likelihood that the improper evidence

       contributed to the verdict).


[36]   Here, the State presented overwhelming evidence of Ray’s guilt such that we

       are convinced that the text messages related to dealing prescription narcotics

       did not contribute to the verdict. The State connected Ray to the package

       containing the large quantity of methamphetamine through his text messages in

       which he asked about the tracking number and discussed timing of the package

       delivery. Ray also indicated that he had been at the address waiting for hours

       for delivery of the package. Ray was observed speaking with a FedEx delivery

       driver earlier the same day that Lomax discovered a previously opened and

       hastily taped-back-together package in his mailbox. Lomax and police also

       observed Ray staking out Lomax’s mailbox. Ray later stated in response to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 18 of 22
       questioning that he was waiting on mail at that address, even though he did not

       live there or ever receive mail there. When told that the package had been

       returned to the post office, Ray showed a consciousness of guilt by dropping his

       head in defeat. In addition, the black bag that was thrown from Ray’s vehicle

       as he fled from the police contained items that are utilized in dealing

       methamphetamine, including two digital scales, a razor blade, and plastic

       baggies.


[37]   In short, the State presented evidence that clearly linked Ray to the package

       containing a significant amount of pure methamphetamine that was indicative

       of dealing. Ray also possessed items used to weigh, cut, and package the

       methamphetamine for sale. With such overwhelming evidence of Ray’s guilt,

       we cannot say that the challenged text messages contributed to the jury’s

       verdict. 8


                                                       4. Sufficiency


[38]   Ray argues that the evidence is insufficient to support his conviction for

       attempted dealing in methamphetamine. Our standard of review for sufficiency

       of the evidence claims is well settled. We consider only the probative evidence




       8
         We also note that the trial court granted Ray’s request for a limiting instruction. As part of the court’s final
       instructions, the jury was instructed as follows:
              Evidence has been introduced that the Defendant was involved in crimes, wrongful conduct,
              and/or bad acts other than those charged in the information. This evidence has been received
              solely on the issue of Defendant’s intent, preparation, plan, or knowledge. This evidence should
              be considered by you only for that limited purpose.
       Transcript Vol. 4 at 117; Appellant’s Appendix Vol. III at 69.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019                     Page 19 of 22
       and reasonable inferences supporting the conviction. Drane v. State, 867 N.E.2d

       144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh

       evidence, and we will affirm unless no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt. Id. It is not necessary

       that the evidence overcome every reasonable hypothesis of innocence; rather,

       the evidence will be found sufficient if an inference may reasonably be drawn

       from it to support the conviction. Id. at 147.


[39]   At the time of the instant offense, Ind. Code § 35-48-4-1.1(a)(2) provided that a

       person who possesses with intent to deliver methamphetamine commits dealing

       in methamphetamine, a Class B felony. If the amount of the

       methamphetamine weighed three grams or more, the offense was a Class A

       felony. Because Ray did not succeed in obtaining the package due to police

       intervention, the State sought to convict him of attempted dealing in

       methamphetamine. To do so, the State was required to prove that Ray, while

       acting with the culpability required for commission of the crime, engaged in

       conduct that constituted a substantial step toward possessing methamphetamine

       in excess of three grams with intent to deliver such methapmhetamine. See Ind.

       Code § 35-41-5-1(a).


[40]   Ray specifically challenges the evidence regarding whether he took a substantial

       step. A substantial step is “any overt act beyond mere preparation and in

       furtherance of the intent to commit the offense.” Kiplinger v. State, 922 N.E.2d

       1261, 1266 (Ind. 2010). The evidence favorable to the verdict showed that on

       March 6 and 7, 2013, Ray was waiting for the arrival of a FedEx package to be

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 20 of 22
       delivered to Lomax’s address, a residence where he did not reside and where he

       did not receive mail. The package was addressed to Lomax’s address and to a

       “Dawn Spelling,” a person unknown to Lomax.


[41]   On March 6, Ray sent text messages to another individual asking for a tracking

       number and indicating that he had been at Lomax’s address for several hours.

       The individual responded to the message stating that he sent the tracking

       number. Ray then texted the individual asking whether the package would be

       delivered that day, to which the individual responded that delivery could not be

       guaranteed for that day, so the package would arrive either that day or the next.


[42]   On March 7, 2013, Lomax arrived home and found a FedEx package that had

       been opened and taped back together in his mailbox. He also observed a

       vehicle “staking out” his mailbox. Transcript Vol. 3 at 96. Lomax then learned

       that a man who looked like Ray was seen talking to the FedEx delivery driver.

       Lomax reported the issue with the package and his suspicions about Ray to the

       police.


[43]   The police investigated Lomax’s complaint. As they approached Lomax’s

       residence, they observed the car that was “staking out” Lomax’s residence and

       identified Ray as the person sitting in the driver’s seat. Id. When the police

       initiated contact, Ray put his car in reverse and sped off, leading the officers on

       a twenty-three mile chase during which a black bag was thrown out of the car.

       The black bag was recovered and found to contain items commonly used to

       package and deal methamphetamine.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 21 of 22
[44]   The FedEx package that Lomax returned to the post office was found to

       contain 41.74 grams of “very pure” crystal methamphetamine with a street

       value of $5000. Further, Lomax admitted that he was waiting on mail at

       Lomax’s address, although he claimed that he was waiting on a letter from his

       mother from prison. When informed that the package had been returned to the

       post office, Ray dropped his head in a defeated manner.


[45]   In short, Ray waited at Lomax’s address for several hours across two days and

       texted another individual to get the tracking number and to try to pinpoint

       when the package would be delivered. Ray was seen talking to a FedEx

       delivery driver on the same day Lomax discovered a previously opened FedEx

       package in his mailbox. A reasonable inference can be drawn that Ray

       intercepted this FedEx package believing it was the package that contained the

       methamphetamine. Ray continued to stake out Lomax’s residence, waiting to

       take possession of the methamphetamine contained therein upon delivery by

       FedEx, until police arrived. This evidence is sufficient to show that Ray took a

       substantial step toward possessing the package containing methamphetamine.

       We therefore affirm Ray’s conviction for attempted dealing methamphetamine

       as a Class A felony.


[46]   Judgment affirmed in part, reversed in part, and remanded with instructions.


       Kirsch, J. and Vaidik C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2354 | August 22, 2019   Page 22 of 22
