Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

DANIEL J. MOORE                                GREGORY F. ZOELLER
Lasynski & Moore                               Attorney General of Indiana
Lafayette, Indiana
                                               GARY R. ROM
                                               Deputy Attorney General
                                               Indianapolis, Indiana
                                                                             FILED
                                                                         Feb 14 2012, 9:41 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                  CLERK
                                                                               of the supreme court,
                                                                               court of appeals and
                                                                                      tax court




MICHAEL T. HACKWORTH,                          )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )        No. 79A02-1106-CR-526
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


              APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                     The Honorable Thomas H. Busch, Judge
                         Cause No. 79D02-1008-FA-21


                                    February 14, 2012

            MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Michael T. Hackworth (Hackworth), appeals his conviction

for two Counts of dealing in cocaine as Class A felonies, Ind. Code § 35-48-4-1, and for

being an habitual offender, I.C. § 35-50-2-8.

       We affirm.

                                          ISSUES

       Hackworth raises two issues on appeal, which we restate as follows:

       (1) Whether there was sufficient evidence that Hackworth committed two Counts

          of dealing in cocaine as Class A felonies; and

       (2) Whether the trial court erred when it allowed the State to file a belated habitual

          offender charge against him.

                        FACTS AND PROCEDURAL HISTORY

       Natalie Lovett (Lovett) worked as an undercover police officer for the Lafayette

Police Department. On June 17, 2010, Lovett was introduced to Hackworth and two

other females in reference to purchasing crack cocaine. Hackworth asked Lovett if she

could drive him to Danville, Illinois in order to purchase cocaine, but Lovett declined his

request. Following this meeting, though, Hackworth called Lovett, and she returned his

call on June 29, 2010. Lovett recorded the June 29 phone call in which she asked

Hackworth for a “bill,” which is a slang term for one hundred dollars worth of cocaine.

Hackworth told her that he had that amount of cocaine available to sell, and they arranged

an exchange to occur that same day at an apartment located at 2012 Banstead Court in
                                         2
Lafayette, Indiana. Lovett fitted herself with a body wire and met Hackworth at the

apartment to make the exchange.

       When Lovett arrived at the apartment, Hackworth first asked Lovett if she wanted

a “swing,” which is a slang term for smoking cocaine. (Transcript p. 48). Lovett

declined his offer and handed him her money. In exchange, Hackworth spit two plastic

knotted baggies out of his mouth and gave them to her. Lovett returned to her office and

determined that the baggies weighed 0.7 grams and tested positive for cocaine.

       Half an hour later, Lovett called Hackworth again, asking if he had another bill.

Hackworth did not have the bill immediately available but called someone else and

obtained it. Hackworth subsequently arranged to meet Lovett near a local Village Pantry.

When Lovett reached the store, Hackworth walked up to her car and spit two plastic

baggies out of his mouth in exchange for one hundred dollars. Lovett returned to her

office and found that the substance in the plastic baggie again tested positive for cocaine.

       On July 19, 2010, Lovett contacted Hackworth asking for another bill of cocaine.

Lovett drove to Ironwood Apartments in Lafayette, picked up Hackworth, and then drove

to 18th Street and Perrine Avenue. This location was about 515 feet from Stonecrest

Apartments, 670 feet from Murdock Elementary School, and within 1,000 feet of a park.

The school was closed and not in session, but approximately 29 children lived within

1,000 feet of the exchange, and approximately three to five children lived in Stonecrest

Apartments. The park was closed, and no one saw children in the park.



                                             3
      Hackworth did not have the cocaine, so Lovett gave him one hundred dollars and

he exited the vehicle to obtain the drugs from someone else. Hackworth returned to

Lovett’s car after approximately five minutes and gave her a plastic baggie out of his

mouth. Lovett drove Hackworth back to Ironwood Apartments and returned to her office

to field test the substance in the plastic baggie. She determined that it was positive for

cocaine and weighed 0.6 grams.

      On August 9, 2010, Detective Bradley Curwick (Detective Curwick) of the

Tippecanoe County Drug Task Force contacted Hackworth, stating that he was dating

Lovett and that he wanted Hackworth to “help [him] out.”           (State’s Exhibit 18a).

Hackworth called Lovett to verify Detective Curwick’s story, then returned Detective

Curwick’s call and arranged to sell him a bill of cocaine near the Banstead Court

Apartments.

      The exchange took place at the intersection of 17th Street and Underwood Street,

less than 1,000 feet away from Banstead Court Apartments. On the date of the exchange,

August 9, 2010, approximately 22 children lived in the apartments. After the exchange,

Detective Curwick and Hackworth split up and went separate ways. Officers Brian

Gossard (Officer Gossard) and Brandon Withers (Officer Withers) observed Hacksworth

walk back toward his apartment from their vehicle, then exited their vehicle, identified

themselves as police, and ordered him to the ground. Hackworth ran away, but the

Officers caught up with him and knocked him to the ground. While on the ground,

Hackworth clenched his fist. Officer Gossard kept Hackworth’s hand pinned out of fear

                                            4
that he would attempt to destroy evidence. After the Officers handcuffed Hackworth,

they opened his fist and found the money from the transaction.

      On August 16, 2010, the Stated filed an Information charging Hackworth with

Count I, dealing in cocaine, a Class A felony, I.C. § 35-48-4-1; Count II, possession of

cocaine, a Class B felony, I.C. § 35-48-4-6; Count III, dealing in cocaine, a Class A

felony, I.C. § 35-48-4-1; Count IV, possession of cocaine, a Class B felony, I.C. § 35-48-

4-6; Count V, dealing in cocaine, a Class B felony, I.C. § 35-48-4-1; Count VI,

possession of cocaine, a Class D felony, I.C. § 35-48-4-6; Count VII, dealing in cocaine,

a Class A felony, I.C. § 35-48-4-1; Count VIII, possession of cocaine, a Class B felony,

I.C. § 35-48-4-6; and Count IX, resisting law enforcement, a Class A misdemeanor, I.C.

§ 35-44-3-3. On September 9, 2010, the State filed a notice of its intention to file an

habitual offender enhancement as Count X. On November 9, 2010, the Stated filed

Count X, alleging that Hackworth was an habitual offender pursuant to I.C. § 35-50-2-8.

Then, on February 4, 2011, the State amended Count X. On February 21, 2011, the State

also filed the following amended Counts: Count I, unlawful sale of a legend drug, a

Class D felony, I.C. § 16-42-19-11; Count II, possession of a legend drug, a Class D

felony, I.C. § 16-42-19-13; Count III, dealing in cocaine, a Class B felony, I.C. § 35-48-

4-1; Count IV, possession of cocaine, a Class D felony, I.C. § 35-48-4-6; Count V,

dealing in cocaine, a Class A felony, I.C. § 35-48-4-1; Count VI, possession of cocaine, a

Class B felony, I.C. § 35-48-4-6; Count VII, dealing in cocaine, a Class A felony, I.C. §

35-48-4-1; and Count VIII, possession of cocaine, a Class B felony, I.C. § 35-48-4-6.

                                            5
       On April 5-7, 2011, a jury trial was held.          At the conclusion of the trial,

Hackworth was found guilty as charged, and the trial court entered judgments against him

on Counts I, III, V, VII, and IX. Next, the trial court addressed Hackworth’s habitual

offender charge in a bifurcated phase of the proceedings. Hackworth waived his right to

a jury trial, and the trial court found him to be an habitual offender. On May 18, 2011,

the trial court sentenced Hackworth to three years imprisonment for Count I, twenty years

for Count III, thirty-five years for Count V, thirty-five years for Count VII, and one year

for Count IX, with sentences to run concurrently.           The trial court also enhanced

Hackworth’s sentence by thirty years for Hackworth’s habitual offender charge, for a

total of sixty-five years imprisonment with ten years suspended.

       Hackworth now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                               I. Sufficiency of the Evidence

       Hackworth first contends that the State did not provide sufficient evidence to

convict him of two Counts of dealing in cocaine as Class A felonies instead of Class B

felonies. Both Counts were enhanced to Class A felonies because of the allegation that

the offenses occurred within 1,000 feet of a school or a family housing complex. To

convict a defendant of dealing in cocaine, the State must prove that the defendant

       (1) knowingly or intentionally:
                (A) manufacture[d];
                (B) finance[d] the manufacture of;
                (C) deliver[ed]; or
                (D) finance[d] the delivery of;
       cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II.
                                             6
I.C. § 35-48-4-1. To enhance that offense to a Class A felony, the State must prove that

the defendant “manufactured, delivered, or financed the delivery of the drug: . . . (B) in,

on, or within one thousand (1,000) feet of: (i) school property; (ii) a public park; (iii) a

family housing complex; or (iv) a youth program center.” I.C. § 35-48-4-1. However, a

defendant may raise a defense to such an allegation if he or she was only “briefly in, on

or within one thousand (1,000) feet of school property, a public park, a family housing

complex, or a youth program center; and [] no person under eighteen (18) years of age at

least three (3) years junior to the [defendant] was in, on, or within one thousand (1,000)

feet of the school property, public park, family housing complex, or youth program center

at the time of the offense.” I.C. § 35-48-4-16.

       In reviewing a sufficiency of the evidence claim, this court does not reweigh the

evidence or judge the credibility of witnesses. Perez v. State, 872 N.E.2d 208, 213 (Ind.

Ct. App. 2007), trans. denied. In addition, we only consider the evidence most favorable

to the verdict and the reasonable inferences stemming from that evidence. Id. We will

only reverse a conviction when reasonable persons would not be able to form inferences

as to each material element of the offense. Id. at 212-13.

       Hackworth argues that he did raise the defense and that there was not sufficient

evidence to support his conviction for dealing in cocaine as a Class A felony rather than a

Class B felony. In support of his argument, Hackworth directs us to Harrison v. State,

901 N.E.2d 635 (Ind. Ct. App. 2009), trans. denied. In Harrison, an undercover officer

conducted an investigation at the Wheeler Mission in Indianapolis in response to
                                       7
complaints that a woman was dealing cocaine near the mission. Id. at 637-38. The

officer asked Harrison if he knew where the woman was and then told Harrison that he

was looking for $20 worth of cocaine. Id. at 638. Harrison told the officer that he could

help him out and then walked a block away from the Wheeler Mission and gave the

officer two bags of cocaine in exchange for $20. Id. Harrison was later convicted of

dealing cocaine within 1,000 feet of a public park as the exchange had occurred within

703 feet of University Park in Indianapolis. Id.

       On appeal, Harrison argued that the State had failed to introduce sufficient

evidence that he was within 1,000 feet of a public park at the time of the transaction. Id.

at 639. We reversed Harrison’s conviction for Class A dealing in cocaine and remanded

with instructions for the trial court to reduce the conviction to a Class B felony and

resentence Harrison. Id. at 643. Our reasoning was that the jury could reasonably infer

that Harrison was only briefly within 1,000 feet of the park because even though the

entire undercover operation took thirty minutes—beginning at the Wheeler Mission—and

Harrison walked with the undercover officer to a point 703 feet from University Park, the

State did not prove that Wheeler Mission was within 1,000 feet of University Park. Id.

Accordingly, the State did not establish the length of time that Harrison was actually

within 1,000 feet of University Park. Id.

       The supreme court addressed a similar issue in Griffin v. State, 925 N.E.2d 344

(Ind. 2010). Griffin was pushing a moped down the middle of the street at 2:15 a.m.

when he was stopped by an officer investigating moped thefts. Id. at 345. The officer

                                            8
attempted to move the moped off of the road and observed a plastic bag containing a

white cake rocklike substance that was later determined to be 0.77 grams of cocaine. Id.

The officer’s stop occurred immediately adjacent to a chain link fence surrounding an

elementary school, but the officer did not see any children at that time on or near the

property. Id. Griffin was arrested and convicted of possession of cocaine within 1,000

feet of school property. Id.

       Griffin appealed his conviction, and the supreme court clarified that the definition

of “briefly” varies according to the purpose of the defendant’s presence within the 1,000

foot proscribed zone. Id. at 349. Specifically,

       when a defendant’s presence in the proscribed zone is primarily for a
       purpose other than illicit drug activity, the risk to children is smaller and the
       word “briefly” could encompass a greater duration of time. One example
       of this would be the traversing within a proscribed area without tarrying but
       while in concealed, illegal possession of drugs. On the other hand, when
       the principal purpose of the defendant’s presence in the zone is to actively
       engage in criminal drug activity, especially if such activity is visible to any
       children, even a relatively short intrusion into the proscribed zone would be
       more than “brief” and thus should not excuse the defendant from the
       enhancement.

Id. Based on this standard, the Griffin court concluded that Griffin’s presence within

1,000 feet of the school was brief, as his primary purpose was to push the moped down

the street rather than to commit illicit drug activity; also, the court noted that his criminal

activities would not have been visible to children if they had been present. Id. at 350.

       In light of Harrison and Griffin, we agree with the trial court that the State

provided sufficient evidence that Hackworth’s presence within 1,000 feet of an

elementary school, a public park, and a family housing complex was not “brief” during
                                           9
his third and fourth drug transactions. Unlike Harrison, the State here established the

length of time each drug exchange occurred within the 1,000 foot proscribed zone. With

respect to the third transaction, Hackworth directed Lovett to drive to 18th Street and

Perrine Avenue, which was an intersection located 515 feet from Stonecrest Apartments,

a family housing complex; 670 feet from Murdock Elementary School; and within 1,000

feet of a public park. Hackworth initiated the drug exchange by taking $100 from Lovett,

then directed Lovett to wait for him in that location while he obtained the drugs.

Hackworth was gone for approximately four to five minutes and returned to the car to

complete the drug transaction. As the purpose of this entire exchange was to actively

engage in criminal drug activity, we recognize the supreme court’s interpretation that

even a relatively short intrusion into the proscribed zone can be more than “brief” in light

of I.C. § 35-48-4-16(b). Therefore, we conclude that five minutes, although a short

amount of time, was not “brief.” Thus, there was sufficient evidence that Hackworth

committed dealing in cocaine as a Class A felony with respect to his third drug

transaction.

       Likewise, Hackworth dealt cocaine in a five-minute drug exchange within 1,000

feet of a family housing complex during his fourth drug exchange. Hackworth does not

dispute that the transaction was approximately five minutes long, that the Banstead Court

Apartments is a family housing complex, or that his primary purpose was to engage in

illicit drug activity. Accordingly, we conclude that five minutes was not “brief” for the

purposes of interpreting I.C. § 35-48-4-16(b), using the same reasoning as above.

                                            10
       Finally, because we have determined that Hackworth’s transactions were not

“brief,” we will not address the second prong of the defense listed in I.C. § 35-48-4-

16(b), that there were not any children on the premises during the transactions. Instead,

we conclude that there was sufficient evidence to establish beyond a reasonable doubt

that Hackworth committed two Counts of dealing in cocaine as Class A felonies.

                               II. Habitual Offender Charge

       Next, Hackworth argues that the trial court abused its discretion when it allowed

the State to file and amend an untimely habitual offender charge against him. I.C. § 35-

34-1-5(e) states: “An amendment of an indictment or [I]nformation to include a[n]

habitual offender charge under [I.C. §] 35-50-2-8, [I.C. §] 35-50-2-8.5, or [I.C. §] 35-50-

2-10 must be made not later than ten (10) days after the omnibus date.” The trial court’s

August 16, 2010 Order set the omnibus date for October 4, 2010. However, the State did

not file its habitual offender charge until November 9, 2010.          The State also filed

petitions to amend the habitual offender Count on February 4, 2011, prior to the trial, and

on April 7, 2011, just prior to the parties’ closing arguments during trial.

       We cannot agree with Hackworth that the trial court abused its discretion in

allowing the belated filing of the charge. We have previously noted that the purpose of

I.C. § 35-34-1-5(e) is to allow a defendant sufficient time to prepare a defense for an

habitual offender charge. Land v. State, 802 N.E.2d 45, 53 (Ind. Ct. App. 2004), trans

denied. Towards that end, section 35-34-1-5(e) also provides that the trial court may

permit the filing of an habitual offender charge at any time before the commencement of

                                             11
trial “upon a showing of good cause.” Also, a defendant must show that he or she was

prejudiced by the belated filing. Jackson, 938 N.E.2d at 39.

       Once a trial court finds good cause, we review that decision for an abuse of

discretion. Id. And abuse of discretion occurs only where the decision is clearly against

the logic and effect of the facts and circumstances. Id. The trial court is not required to

enter a specific finding concerning good cause, and we will determine that the trial court

impliedly found good cause if it permits the State to file an habitual offender Count.

Jackson v. State, 938 N.E.2d 29, 39 (Ind. Ct. App. 2010), trans. denied.

       Here, Hackworth argues that the trial court never required the State to show good

cause for its belated habitual offender finding. We cannot find any support for this claim

in the transcript. Hackworth’s counsel directly raised the issue of the belated finding at

trial, and the trial court asked the State for a reply argument. In response, the State

submitted evidence that Hackworth had received notice of the State’s intent to file the

charge on September 9, 2010, prior to the omnibus date. The trial court also commented

that it “[knew] that there [had] been plea negotiations going on after the omnibus date

and subsequent to [] the filing.” (Tr. p. 418). From this evidence, it is clear that the trial

court did require the State to show good cause and did consider the issue.

       In addition, we find that the State’s evidence was sufficient for a showing of good

cause. Hackworth received notice of the State’s intent to file the habitual offender charge

before the omnibus date and, therefore, had the opportunity to prepare a defense to the

charge. Also, the State filed the charge on November 9, 2010. While this filing was past

                                             12
the October 4, 2010, omnibus date, it was still months prior to Hackworth’s April 2011

trial. Moreover, in Land we noted that evidence of ongoing plea negotiations may

constitute good cause for a belated habitual offender filing. Land, 802 N.E.2d at 53.

Thus, we conclude that there was good cause for the belated filing and it did not

prejudice Hackworth.

      Hackworth also argues that the trial court abused its discretion when it allowed the

State to amend the habitual offender charge on February 4, 2011 and on April 7, 2011.

This argument is misplaced. Amendments to habitual offender charges are governed by

I.C. § 35-34-1-5(c) rather than I.C. § 35-34-1-5(e). Williams v. State, 735 N.E.2d 785

(Ind. 2000). Pursuant to I.C. § 35-34-1-5(c), “[u]pon motion of the prosecuting attorney,

the court may, at any time before, during, or after the trial, permit an amendment to the

indictment or [I]nformation in respect to any defect, imperfection, or omission in form

which does not prejudice the substantial rights of the defendant.” Hackworth failed to

present any evidence that the amendments prejudiced his substantial rights.

      Instead, we conclude that the trial court did not abuse its discretion when it

allowed the State to file a belated charge that Hackworth was an habitual offender.

                                     CONCLUSION

      Based on the foregoing, we conclude that:        (1) the State produced sufficient

evidence to prove beyond a reasonable doubt that Hackworth committed dealing in

cocaine as a Class A felony; and (2) the trial court did not abuse its discretion when it

allowed the State to file a belated charge that Hackworth was an habitual offender.

                                           13
     Affirmed.

FRIEDLANDER, J. and MATHIAS, J. concur




                                   14
