MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                    Jun 04 2019, 9:10 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald K. Smith                                          Curtis T. Hill, Jr.
Public Defender                                          Attorney General of Indiana
Muncie, Indiana
                                                         Jesse R. Drum
                                                         Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Willie Tabb,                                       June 4, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1886
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas A.
Appellee-Plaintiff.                                      Cannon, Jr., Judge
                                                         Trial Court Cause No.
                                                         18C05-1605-F2-4



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019                     Page 1 of 15
                               Case Summary and Issues
[1]   Following a jury trial, James Tabb was convicted of three counts of dealing in a

      narcotic drug—one Level 2 felony and two Level 4 felonies. He was sentenced

      to twenty-nine and one-half years with six years suspended to probation. On

      appeal of his convictions, Tabb raises two issues: 1) whether the trial court

      abused its discretion when it admitted evidence found following a police stop;

      and 2) whether the evidence was sufficient to support his convictions.

      Concluding the trial court did not err and the evidence is sufficient, we affirm.



                            Facts and Procedural History
[2]   On April 19 and April 25, 2016, a confidential informant (“CI”) working for the

      Muncie Police Department (“MPD”) arranged to buy heroin from Michelle

      Knight. The CI informed MPD that Knight “was who we were gonna buy off

      of but [Knight] gets her dope from . . . a subject . . . that she only knows . . . as

      James and that he drives a blue van.” Transcript of Evidence, Volume I at 80.

      Knight was a heroin addict who purchased heroin “[p]robably every other day

      or so, sometimes every day, sometimes every other day[.]” Tr., Vol. II at 107.

      Knight purchased heroin from Tabb for herself and she would sometimes act as

      a “go between” for Tabb and other buyers. Id. at 109.


[3]   On April 19, the CI called Knight and asked if Knight could “get a fifty” of

      heroin for her, meaning fifty dollars’ worth of heroin. Id. at 112-13. Knight

      called Tabb and asked him to bring the heroin to her. The CI came to Knight’s


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019   Page 2 of 15
      apartment to await the delivery and drove Knight to a nearby gas station where

      Knight bought a soda. They then returned to the parking lot of Knight’s

      apartment until a blue van arrived. When Tabb arrived, Knight “got in the

      van[,] . . . [Tabb] handed [a bag] to me, . . . I took what I wanted out of it and

      sealed it back, and then I got out of the van and gave it” to the CI. Id. at 116.

      Officer Bret Elam was conducting surveillance of the controlled buy and he

      observed that while Knight and the CI waited in the parking lot for Tabb to

      arrive, several other people were milling about the area. When the van pulled

      in, those people lined up at the passenger side window. After Knight left the

      van, the people in line “would go to the window and as they would walk away

      from the window the next person would go to the window[.]” Tr., Vol. I at

      206. Officer Elam contacted his supervisor who was going to stop the van

      when it left the parking lot, but the supervisor got a flat tire and the stop was

      never made.


[4]   On April 25, the CI again called Knight and asked if she could get some heroin.

      The CI told MPD that Knight would have to get the heroin from someone else

      as before. Knight contacted Tabb and was directed to come to his house. The

      CI picked up Knight and they went to Tabb’s house where they saw Tabb and

      his associate, William Jackson, carrying grocery bags back and forth from a

      blue van. Officer Elam and Officer Keith Benbow were conducting surveillance

      of the controlled buy and also saw Tabb moving between the van and the

      house. When Tabb was done, he and Knight got into the van, Tabb handed her

      a bag of heroin, Knight handed him money, took her cut of heroin out of the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019   Page 3 of 15
      bag, and returned to the CI to give her the bag. Knight and the CI then drove

      back to Knight’s apartment. Following the April 25 controlled buy, Officer

      Tyler Swain and other MPD officers spoke with Knight several times about

      acting as a confidential informant against Tabb.


[5]   In the early morning of May 6, Tabb and Jackson drove from Muncie to

      Chicago and picked up George Neloms, another associate of Tabb’s. Neloms

      had known Tabb for about thirty years and Jackson for about one year. The

      three first stopped at a spot Neloms knew as a place to buy or sell drugs because

      he had bought drugs there before. Tabb exited the van and Neloms saw Tabb

      speak to a man from whom Neloms had purchased drugs in the past. Tabb

      then returned to the van, poured some heroin onto a plate, crushed it, and cut it

      with another substance. The three men snorted the heroin that Tabb prepared

      before leaving. They then drove to Muncie, stopping at a gas station along the

      way to get gas and snacks and snort more heroin.


[6]   Also on May 6, Knight again met with Officer Swain. While they were

      together, Knight received a phone call indicating a shipment of heroin was

      coming into Muncie. Knight did not provide information about who was

      bringing the drugs or when. Nonetheless MPD wanted to set up a controlled

      buy using Knight as the CI, but “if we could not get a controlled buy we were at

      least going to attempt a traffic stop of the shipment.” Tr., Vol. I at 98. Officer

      Elam went to a location near Knight’s apartment to conduct surveillance while

      Officer Swain attempted to pull together a controlled buy. “At that particular

      point the only plan we had was we’d just go see who it was [bringing the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019   Page 4 of 15
      heroin], what they were driving, and go from there[.]” Id. at 212. As Officer

      Swain drove to Knight’s residence, he saw a blue van drive by and relayed that

      information by police radio. Officer Elam then saw the blue van arrive in the

      parking lot at Knight’s apartment. Knight got into Tabb’s van, secured some

      heroin, and exited. As before, a line of people formed on the passenger side

      when the van pulled in. When the blue van drove away, Officer Elam lost sight

      of it. Other officers who had been called to the area located the van and Officer

      Howell, who was the only officer involved who was in uniform and driving a

      marked car, conducted a traffic stop.


[7]   Officer Howell approached the driver’s side of the van and Officer Benbow,

      who was wearing his police identification on a lanyard around his neck, went to

      the front passenger window. As Officer Swain approached the van from the

      passenger side, he saw through tinted windows movement in the back seat: “I

      could tell it was somebody had made a real furtive movement kind of down[.]”

      Id. at 110. Officer Benbow also saw both the driver and the backseat passenger

      put their hands down toward the floor despite orders to keep their hands where

      officers could see them. Officer Swain stepped onto the van’s side rail and

      banged on the backseat side window with his firearm telling the person within

      to show his or her hands. The van sped off with Officer Swain still standing on

      the side rail. Officer Swain, holding onto the luggage rack, slid toward the front

      of the van and was “banging on that window as hard as [he could] to get him to

      stop,” but at a certain point, feeling endangered, he opened fire, shooting out

      the front passenger side window. Id. at 132. Jackson, who was driving, was hit


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019   Page 5 of 15
      in the arm by the gunfire. The van swerved and Officer Swain was thrown

      from side of the van.


[8]   In the meantime, the other officers were in pursuit of the fleeing van. As

      Jackson turned a corner, Neloms tumbled out of the van, along with some

      items from the van. Officer Benbow stopped his pursuit of the van to attend to

      him, finding Neloms’ wallet, a phone, various other personal items, and three

      bags of heroin in the grass near him. The heroin weighed nearly thirty grams.

      Neloms admitted to Officer Benbow that he had recently used heroin but

      denied that the heroin found nearby was his. Instead, Neloms said, the drugs in

      the van were controlled solely by Tabb, who had purchased and distributed it.


[9]   Jackson brought the van to a stop in the middle of the street and he and Tabb

      abandoned the van, leaving it running with the doors open. Officer Elam and

      Officer Howell chased after Tabb, telling him numerous times to get on the

      ground and show his hands. Instead, Tabb tried to hide behind a parked car.

      Officer Elam took Tabb to the ground with a front kick and handcuffed him.

      Officer Howell later found Jackson, bleeding from his arm, propped up against

      the wall of a nearby house. With MPD having secured the van’s occupants, the

      Indiana State Police (“ISP”) were called to the scene. ISP Crime Scene

      Investigator Kris Martin took pictures of the scene, specifically of the area

      around where the van was abandoned and Neloms was found on the ground.

      On May 7, ISP Officer John Petro, pursuant to a search warrant, searched the

      blue van which had been towed from the scene. He found more heroin divided

      into individual bags, a pill crusher, and baggies.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019   Page 6 of 15
[10]   The State charged Tabb with Count 1, dealing in a narcotic drug as a Level 2

       felony and Count 2, possession of a narcotic drug as a Level 3 felony, for the

       events of May 6; Count 3, dealing in a narcotic drug as a Level 5 felony for the

       April 19 controlled buy; and Count 4, dealing in a narcotic drug as a Level 5

       felony for the April 25 controlled buy. The State also filed a notice of intent to

       seek an enhanced penalty on Counts 3 and 4 due to a prior conviction.


[11]   During the trial, the State called Officer Swain as its first witness. When he

       reached the point in his testimony that the MPD had stopped the blue van on

       May 6, Tabb objected “to any further testimony concerning the traffic stop or

       anything that happened as a result of this traffic stop, I don’t believe at this

       point that it’s supported by probable cause, at this point there is no indication

       whatsoever that criminal activity—there was reasonable suspicion of criminal

       activity at this time, . . . and that therefore it would be a violation of the – of my

       client’s fourth amendment rights to be free of unreasonable search and

       seizure[.]” Tr., Vol. I at 104-05. The trial court overruled the objection as

       premature, but the trial court noted the defense’s continuing objection to that

       issue. Nonetheless, the defense stated “no objection” each time an item found

       in or near the van was introduced into evidence. See, e.g., id. at 147-49 (State

       offers heroin found near road into evidence); id. at 150-51 (State offers

       laboratory report identifying heroin); id. at 178 (State offers heroin found in

       van); and id. at 178-79 (State offers pill crusher).


[12]   The jury returned verdicts of guilty on Counts 1, 3, and 4 but was unable to

       reach a verdict as to Count 2, the possession of a narcotic drug charge. The

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019   Page 7 of 15
       trial court declared a mistrial as to that count. Tabb then admitted to the

       allegation that he had a prior felony conviction for dealing in a narcotic drug

       and the trial court entered judgment of conviction on Counts 3 and 4 as Level 4

       felonies. Tabb was sentenced to a total of twenty-nine and one-half years. He

       now appeals his convictions. Additional facts will be provided as necessary.



                                    Discussion and Decision
                                     I. Admission of Evidence                           1




                                          A. Standard of Review
[13]   A trial court has broad discretion in ruling on the admissibility of evidence, and

       we review the admission of evidence for an abuse of discretion. Guilmette v.

       State, 14 N.E.3d 38, 40 (Ind. 2014). We will reverse only when admission of

       the evidence is clearly against the logic and effect of the facts and circumstances

       before the court and the error affects a party’s substantial rights. Id. The

       ultimate determination of the constitutionality of a search or seizure is a

       question of law that we consider de novo. Carpenter v. State, 18 N.E.3d 998,

       1001 (Ind. 2014). However, we do give deference to the trial court’s

       determination of the facts, which will be overturned only if clearly erroneous.




       1
         Tabb phrases his issue as whether the trial court erred in denying his “Motion to Suppress the fruits of a
       search resulting from the stop of a motor vehicle[.]” Brief of Defendant-Appellant at 4. However, as noted
       by the trial court when Tabb objected to the introduction of certain evidence during the trial, Tabb did not file
       a pre-trial motion to suppress. See Transcript of Evidence, Volume I at 107 (Tabb’s counsel affirming the trial
       court’s recollection that no motion to suppress had been filed). The issue is therefore whether the trial court
       erred in admitting that evidence at trial.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019                        Page 8 of 15
       Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008). Therefore, we do not reweigh

       the evidence, but consider conflicting evidence most favorably to the trial

       court’s decision. Id.


                             B. Evidence Arising from the Stop
[14]   Tabb argues the trial court erred in admitting evidence obtained as a result of

       the traffic stop on May 6, 2016. Specifically, he argues that the police “lacked

       probable cause to detain Tabb and to search the vehicle in which he was a

       passenger.” Br. of Defendant-Appellant at 8.


[15]   Tabb’s objection at trial was that the police did not have reasonable suspicion to

       stop the van in which he was a passenger and that all evidence procured after

       the unreasonable stop should be excluded. See Tr., Vol. I at 104-05. On appeal,

       Tabb seems to have changed tack, as he cites Arizona v. Gant, 556 U.S. 332

       (2009), for the proposition that the search of the van was unreasonable because

       he “was secured and not within reaching distance of a passenger compartment

       at the time of the search.” Br. of Defendant-Appellant at 9. Gant is

       distinguishable.


[16]   In Gant, the defendant was arrested for driving with a suspended license,

       handcuffed, and secured in the back of a police car. Police officers then

       searched his car and found drugs in the pocket of a jacket located on the

       backseat. The State offered as a justification for the warrantless search that it

       was a search incident to arrest. The Supreme Court rejected that argument in

       part because the defendant could not have accessed his car to retrieve weapons

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019   Page 9 of 15
       or conceal evidence at the time of the search. Id. at 335. The Court also noted

       that although “circumstances unique to the automobile context justify a search

       incident to arrest when it is reasonable to believe that evidence of the offense of

       arrest might be found in the vehicle[,]” that possibility did not justify the search

       in Gant because police could not expect to find evidence of driving while

       suspended in the passenger compartment of his car. Id. (citing Thornton v.

       United States, 541 U.S. 615, 632 (2004)). Thus, the search of the defendant’s car

       was unreasonable. Id. at 351; see also Hathaway v. State, 906 N.E.2d 941, 945

       (Ind. Ct. App. 2009) (citing Gant in holding warrantless search of defendant’s

       vehicle was unreasonable when the stop was premised on failing to properly

       signal a turn and having windows that were tinted too dark and the driver was

       out of the car and under arrest for driving while suspended when the search was

       conducted because there was no need to search the car to find and preserve

       evidence connected to the crime of driving while suspended), trans. denied.


[17]   Here, the stop was initiated on the suspicion that the occupants were dealing

       drugs out of the van and it was therefore reasonable to believe the van

       contained evidence of that offense. But the more crucial distinction between

       this case and Gant is that the on-site search in this case was limited to items

       found in open view on the ground around the scene; the search of the van was

       conducted a day later pursuant to a search warrant.2




       2
        Officer Petro clearly stated at trial that “[o]n the following day, on May 7, 2016, I served a search warrant
       on a vehicle that was located at the second crime scene[.]” Tr., Vol. I at 167. The “second crime scene” he

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019                      Page 10 of 15
[18]   As for the stop itself, the Fourth Amendment permits an officer to “stop and

       briefly detain a person for investigative purposes if the officer has a reasonable

       suspicion supported by articulable facts that criminal activity may be afoot,

       even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7

       (1989) (internal quotation omitted). Here, the police had reasonable suspicion

       supported by articulable facts that criminal activity might be afoot on May 6. A

       CI working with MPD told officers that her contact was Knight but that Knight

       gets her drugs from someone named James who drives a blue van. On two

       occasions prior to May 6, officers surveilling a controlled buy saw Knight enter

       a blue van and exit with heroin that she passed on to the CI. On one of those

       occasions, officers saw a line of people form at the blue van and after Knight

       left the van, those people went one at a time to the window for a few seconds

       and when they walked away, the next person stepped up to the window. On

       May 6, officers learned from Knight that a shipment of heroin was headed to

       Muncie. A short time later, officers saw the blue van pull into Knight’s parking

       lot, saw Knight get into and out of the van, and again saw a line of people form

       at the passenger side, like when “the ice cream truck pulls in, the whole

       neighborhood flocks to the van.” Tr., Vol. I at 212. Thus, the stop immediately

       after the van left the parking lot was supported by reasonable suspicion, as the

       facts known to the officers at the time of the stop, “together with the reasonable




       referred to was the scene where the van had been abandoned in the street on May 6 and had been
       photographed by Officer Martin on that date. However, neither party in its brief acknowledges that a search
       warrant was procured for the search of the van or addresses how that impacts the analysis.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019                   Page 11 of 15
       inferences arising from such facts, would cause an ordinarily prudent person to

       believe that criminal activity has occurred or is about to occur.” State v.

       Gladney, 793 N.E.2d 264, 268 (Ind. Ct. App. 2003), trans. denied. In other

       words, the information available to the police at the time of the stop caused

       them to reasonably believe the van was being used to store and deal drugs.


[19]   During the stop, the occupants of the van did not comply with police orders,

       officers saw furtive movements within the van, and the van ultimately drove

       away. When the van finally came to a stop, Tabb ran away and tried to hide.

       Both flight and furtive gestures are suspicious behaviors. See Person v. State, 764

       N.E.2d 743, 748 (Ind. Ct. App. 2002) (noting unprovoked flight upon noticing

       the police is certainly suggestive of wrongdoing) (quoting Illinois v. Wardlow,

       528 U.S. 119, 125 (2000)), trans. denied; Walls v. State, 714 N.E.2d 1266, 1267

       (Ind. Ct. App. 1999) (noting furtive movements, among other things, are

       suspicious behaviors), trans. denied. And finally, when Neloms was thrown

       from the van, bags of heroin fell out with him. Officers had probable cause at

       that point to believe the van contained additional contraband. And yet, they

       waited to search the van until the next day after procuring a warrant. Neither

       the stop nor the search violated Tabb’s Fourth Amendment rights.3




       3
         Tabb briefly invokes Article 1, section 11 of the Indiana Constitution in his brief, but as he made no state
       constitutional argument at trial, he has waived any such argument on appeal. See Negash v. State, 113 N.E.3d
       1281, 1290 (Ind. Ct. App. 2018) (holding defendant waived state constitutional claim because “[i]t is well-
       settled in Indiana that a defendant may not argue one ground for objection at trial and then raise new
       grounds on appeal”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019                     Page 12 of 15
                               II. Sufficiency of the Evidence
                                       A. Standard of Review
[20]   When reviewing the sufficiency of the evidence required to support a criminal

       conviction, we do not reweigh the evidence or judge the credibility of the

       witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider only

       the evidence supporting the verdict and any reasonable inferences that can be

       drawn therefrom. Morris v. State, 114 N.E.3d 531, 535 (Ind. Ct. App. 2018),

       trans. denied. Thus, we consider conflicting evidence most favorably to the

       verdict. Silvers v. State, 114 N.E.3d 931, 936 (Ind. Ct. App. 2018). “We will

       affirm if there is substantial evidence of probative value such that a reasonable

       trier of fact could have concluded the defendant was guilty beyond a reasonable

       doubt.” Bailey, 907 N.E.2d at 1005. It is not necessary for the evidence to

       overcome every reasonable hypothesis of innocence; it is sufficient if an

       inference may reasonably be drawn from the evidence to support the verdict.

       Silvers, 114 N.E.3d at 936.


                                       B. Evidence of Dealing
[21]   Tabb was convicted of Count 1, possessing at least ten grams of heroin with

       intent to deliver on May 6, 2016; Count 3, knowingly or intentionally delivering

       heroin on April 19, 2016; and Count 4, knowingly or intentionally delivering

       heroin on April 25, 2016. He argues the evidence was insufficient to find him

       guilty because the “only evidence directly implicating Tabb in the alleged drug

       deals of April 19 and April 25, 2016 was the vague testimony of Michelle


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019   Page 13 of 15
       Knight,” and her testimony was inherently unreliable because she is an

       admitted drug addict and was granted leniency in her own criminal case for her

       testimony against Tabb. Br. of Defendant-Appellant at 11. He also argues the

       testimony of Neloms was vague and “replete with inconsistencies and

       contradictions.” Id.


[22]   The State’s evidence showed Tabb was in constructive possession of nearly

       thirty grams of heroin on May 6, and that he had baggies and a pill crusher for

       dividing and distributing the heroin. The evidence further showed that he

       actually did deliver some of the heroin on that date to Knight. The State’s

       evidence also showed that on April 19 and 25, he delivered heroin to Knight

       that she in turn passed along to a CI.


[23]   Tabb’s argument is a request that we reweigh the evidence and find Knight and

       Neloms’ testimony lacking. However, the credibility of witnesses is left to the

       jury and we do not reweigh the evidence or judge the credibility of the witnesses

       for ourselves. See Bailey, 907 N.E.2d at 1005. Moreover, Knight’s addiction

       and her arrangement for testifying were squarely before the jury and they chose

       to credit her testimony, as is their prerogative. And as to Neloms’ allegedly

       inconsistent and contradictory testimony, to the extent Tabb is attempting to

       claim his testimony is incredibly dubious, the argument is waived as he has

       failed to develop this challenge. See Ind. Appellate Rule 46(A)(8)(a); Burnell v.

       State, 110 N.E.3d 1167, 1171 (Ind. Ct. App. 2018). Furthermore, as Neloms’

       was not the sole witness, the incredible dubiosity rule is inapplicable. See Moore



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019   Page 14 of 15
       v. State, 27 N.E.3d 749, 756 (Ind. 2015). The evidence produced by the State is

       sufficient to support his convictions.



                                               Conclusion
[24]   The trial court did not err in admitting evidence arising from the stop and

       search that occurred on May 6, 2016, and the State presented sufficient

       evidence to prove beyond a reasonable doubt that Tabb committed the crimes

       alleged. Tabb’s convictions are therefore affirmed.


[25]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019   Page 15 of 15
