MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                            Aug 31 2020, 10:28 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

George W. Dixon,                                         August 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1112
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D01-1403-FB-732



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020                Page 1 of 29
                                       Statement of the Case
[1]   George W. Dixon appeals his convictions, following a jury trial, for unlawful

      possession of a firearm by a serious violent felon, as a Class B felony, and

      escape, as a Class D felony, and his adjudication as a habitual offender. Dixon

      presents five issues for our review, which we revise and restate as the following

      four issues:


              1.       Whether the delay in bringing Dixon to trial violated
                       Indiana Criminal Rule 4(C) and amounted to fundamental
                       error under the Sixth Amendment and Article 1, Section
                       12 of the Indiana Constitution.

              2.       Whether the trial court erred when it denied Dixon’s
                       motions to dismiss the charges against him.

              3.       Whether the trial court erred under the Fourth
                       Amendment to the United States Constitution when it
                       admitted evidence that law enforcement officers had
                       seized during a warrantless search of his home.

              4.       Whether his adjudication as a habitual offender
                       constituted an impermissible double enhancement to his
                       conviction for unlawful possession of a firearm by a
                       serious violent felon.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On January 7, 2012, the State charged Dixon with possession of cocaine, as a

      Class D felony, in Cause Number 84D01-1201-FD-94 (“FD-94”). On

      September 10, while that charge was pending, a confidential informant with the
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 2 of 29
      Vigo County Drug Task Force (“Task Force”) purchased cocaine from Dixon.

      Thereafter, on November 9, Dixon pleaded guilty in FD-94, and the court

      sentenced him to one year on home detention followed by two years on

      probation. As a condition of his placement on home detention, Dixon agreed

      to the following:


              I agree to allow the Vigo County Community Corrections
              Officers, Probation and/or Law Enforcement Officers or any
              other agency acting on their behalf to enter my residence without
              prior notice. I agree to submit to a search of my person,
              property, or residence at any time[.] I must make all persons
              who live in the home aware that they and their property are
              subject to search also. My signature on this contract attests that I
              have willingly and voluntarily waived my constitutional rights
              under the fourth amendment[] to the Constitution and Article 1,
              Section 11 of the Indiana Constitution. I waive these
              constitutional rights as to my person, vehicle, or residence.
              Further, any vehicle I am operating, or my residence may be
              searched at any time, without notice, probable cause, or search
              warrant. This search may be conducted by a Community
              Corrections officer, Law Enforcement Officer, or any agency
              acting on behalf of Vigo County Community Corrections or
              acting with a reasonable belief that I may be in violation of one
              of the conditions of my placement in the Community Corrections
              Program.


      Ex. Vol. V at 14.


[4]   On January 17, 2013, Task Force Detective Martin Dooley sent a fax to

      Dixon’s Community Corrections supervisor requesting assistance to search

      Dixon’s residence. In that fax, Detective Dooley stated that the Task Force had

      “made purchases of crack cocaine” from Dixon and that, on one occasion,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 3 of 29
      Dixon “came out of his residence and sold crack cocaine to a confidential

      informant.” Id. at 26. Dixon’s Community Corrections supervisor agreed to

      assist, and the officers searched Dixon’s home that same day. During the

      search, officers found a handgun, which Dixon was not allowed to possess due

      to a prior felony conviction. However, officers did not arrest Dixon at that time

      because he agreed to assist the Task Force with their investigation into the

      distribution of cocaine in the county.


[5]   The next day, Dixon absconded from his residence and did not contact

      Detective Dooley as instructed to assist the Task Force. On January 25, the

      State charged Dixon with dealing in cocaine, as a Class B felony, in Cause

      Number 84D01-1301-FB-212 (“FB-212”) based on the controlled buy of

      cocaine that had occurred on September 10, 2012. 1 Dixon was arrested for that

      offense on September 8, 2013.


[6]   On March 10, 2014, Dixon filed a motion to be released on his own

      recognizance in FB-212, which motion the trial court granted on March 12.

      Thereafter, on March 27, the State charged Dixon in this case with possession

      of a firearm by a serious violent felon, as a Class B felony, based on the gun

      officers had found in his residence on January 17, 2013. The State also charged

      him with escape, as a Class D felony, based on his act of absconding from his




      1
        The confidential informant also purchased cocaine from Dixon on September 11. However, the State did
      not charge him for that offense because the equipment officers used to record the transaction had
      malfunctioned.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020             Page 4 of 29
      placement on home detention on January 18. 2 And the State alleged that he

      was a habitual offender. To support its assertion that Dixon was a serious

      violent offender, the State relied on a 1989 conviction for dealing in cocaine.

      And to support its assertion that Dixon was a habitual offender, the State relied

      on a 1999 conviction for resisting law enforcement and his 2012 conviction in

      FD-94. The court held an initial hearing on April 14, 2014, which was the first

      date that Dixon appeared in front of the court in this case.


[7]   On July 29, Dixon filed a motion to suppress the evidence that officers had

      found during the January 17, 2013, search of his residence. In that motion,

      Dixon asserted that the only basis for the search of his residence was the

      controlled buy of cocaine, which had occurred prior to his placement on home

      detention. Accordingly, he maintained that the Task Force lacked reasonable

      suspicion that he had violated a term of his placement and, as such, that the

      search violated his rights under the Fourth Amendment and Article 1, Section

      11 of the Indiana Constitution.


[8]   At a hearing on the motion to suppress, Detective Dooley testified that, prior to

      the search of Dixon’s home, he had learned that Dixon was a “person of

      interest” in a federal case and that a confidential informant working with the

      FBI had informed him that the informant would be able to purchase cocaine

      from Dixon. Tr. Vol. II at 35. Detective Dooley further testified that that




      2
        The State also charged Dixon with theft, as a Class D felony. But the trial court entered a directed verdict
      in favor of Dixon on that count.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020                    Page 5 of 29
      informant had given credible information in the past, which information led to

      six convictions. And Detective Dooley testified that he did not provide that

      information to Vigo County Community Corrections when he requested to

      search Dixon’s home because he was not authorized to discuss the federal

      investigation with anyone outside of the investigation. Detective Dooley then

      confirmed that the purpose of the search of Dixon’s home was to look for

      cocaine based on the information he had received from the FBI. Following the

      hearing, the court found that the controlled buy that had occurred prior to

      Dixon’s placement on home detention did not “undermine the reasonableness”

      of the search because it was only “one factor in the mix.” Appellant’s App.

      Vol. II at 122. Accordingly, the court concluded that Detective Dooley had

      reasonable suspicion to search Dixon’s residence and denied his motion to

      suppress.


[9]   On October 28, 2015, Dixon was found guilty in FB-212. That same day, the

      court scheduled Dixon’s trial in this case for February 29, 2016, which trial date

      was ultimately continued several times. See Appellant’s App. Vol. II at 182.

      On June 13, 2016, Dixon filed a motion for discharge pursuant to Indiana

      Criminal Rule 4(C). Dixon asserted that it had been 724 days since his arrest,

      530 of which were delays that were attributable to the State. Accordingly,

      Dixon asserted that he was entitled to a dismissal of the charges against him. In

      response, the State asserted that, at most, 269 days were chargeable to it at the

      time the court set his jury trial for a date outside of the one-year period and that

      Dixon did not object when the court set that date. As such, the State


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 6 of 29
       maintained that Dixon “sat idly by” when the court set his trial date and, as a

       result, his failure to object to that trial date was a waiver of any claim under

       Criminal Rule 4(C). Id. at 162. The trial court denied that motion following a

       hearing.


[10]   On January 21, 2017, Dixon filed a motion to dismiss the charges against him.

       In that motion, he asserted that the State was barred from filing the charges

       against him as the current offense “was or could have been determined” in the

       same action as FB-212 since the evidence in this case “was the direct

       consequence of the controlled buy on September 10, 2012[,] and search based

       on that buy conducted on January 17, 2013.” Appellant’s App. Vol. III at 25.

       Dixon further asserted that the “instant prosecution is for an offense with which

       [he] should have been charged in the former prosecution.” Id. Accordingly,

       Dixon asserted that the doctrine of res judicata and Indiana’s successive

       prosecution statute barred the State from filing the current charges against him.


[11]   Thereafter, on February 10, Dixon filed another motion to dismiss the charges

       in which he asserted that the State had only filed the current charges against

       him after he had filed a motion to be released on his own recognizance in FB-

       212, which motion the trial court granted. Dixon maintained that the State

       only filed the current charges against him in order to place him back in jail,

       which action “amount[ed] to vindictive prosecution.” Id. at 30. The trial court

       denied both of Dixon’s motions to dismiss.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 7 of 29
[12]   On September 12, 2018, Dixon filed another motion for discharge pursuant to

       Criminal Rule 4(C). In that motion, he asserted that it had been 1,626 days

       since his arrest and that 825 of those days were attributable to the State. As

       such, he maintained that he was entitled to a discharge of the charges against

       him. The court denied that motion without a hearing.


[13]   The court then held a trifurcated jury trial on September 17 and 18, 2018, and

       February 25, 2019. 3 During the trial, Dixon lodged a continuing objection to

       the admission of evidence that officers had found during the search of his house

       on the ground that that search violated his federal and state constitutional

       rights. The court overruled Dixon’s objection. Following the first two phases

       of the trial, the jury found Dixon guilty of possession of a firearm by a serious

       violent felon, as a Class B felony, and escape, as a Class D felony.


[14]   Prior to the third stage, Dixon filed a motion to dismiss the habitual offender

       enhancement. Dixon alleged that the State was using his conviction in FB-94

       to support that enhancement but that that conviction is what led to his

       placement on home detention. And he alleged that his act of fleeing from his

       placement on home detention in that offense is what led to the escape charges

       in the current offense. Accordingly, he asserted that there “are multiple

       connections with the possession and escape charges related through this cause”

       and FD-94. Appellant’s App. Vol. IV at 22. In other words, he asserted that




       3
         The court initially held the third phase of Dixon’s trial on September 19, 2018. However, that phase
       resulted in a mistrial based on statements Dixon had made in front of the jury.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020                 Page 8 of 29
       his conviction in FB-94 was part of the same res gestae as the charge for escape

       such that a double enhancement was improper. In response, the State asserted

       that it had used “separate and distinct” convictions to support the charge for

       possession of a firearm by a serious violent felon and the habitual offender

       adjudication and that the habitual offender enhancement was proper. Id. at 24.

       The court denied Dixon’s motion.


[15]   At the conclusion of the third stage, the jury found that Dixon was a habitual

       offender. The court entered judgment of conviction accordingly and sentenced

       him to an aggregate sentence of twenty-eight years in the Department of

       Correction. This appeal ensued.


                                      Discussion and Decision
                               Issue One: Time to Bring Dixon to Trial

                                        Indiana Criminal Rule 4(C)

[16]   Dixon first asserts that the delay in bringing him to trial violated Indiana

       Criminal Rule 4(C). “In reviewing Criminal Rule 4 claims, we review

       questions of law de novo, and we review factual findings under the clearly

       erroneous standard.” State v. Harper, 135 N.E.3d 962, 972 (Ind. Ct. App. 2019),

       trans. denied. Indiana Criminal Rule 4(C) provides in relevant part as follows:


               No person shall be held on recognizance or otherwise to answer
               a criminal charge for a period in aggregate embracing more than
               one year from the date the criminal charge against such
               defendant is filed, or from the date his arrest on such charge,
               whichever is later; except where a continuance was had on his

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 9 of 29
               motion, or the delay was caused by his act, or where there was
               not sufficient time to try him during such period because of
               congestion of the court calendar[.]


       When a defendant receives a summons in lieu of an arrest, the one-year speedy

       trial period begins to run on the date the court orders the defendant to appear in

       court. See Johnson v. State, 708 N.E.2d 912, 915 (Ind. Ct. App. 1999).


[17]   It is well settled that a defendant “must object to a trial setting at the earliest

       opportunity if []he learns within the period provided by the rule that the case is

       set for trial at a time beyond the date permitted.” Id. “If a defendant fails to

       object at the earliest opportunity to a trial set outside the prescribed one-year

       period, []he is deemed to have acquiesced to the belated trial date.” Id.


[18]   On appeal, Dixon correctly identifies April 14, 2014, the day he first appeared

       in court, as the date on which his one-year speedy trial period began.

       Accordingly, he asserts that the one-year period ended on April 14, 2015. He

       further asserts that, as the trial court “did not schedule the trial date for

       February 29, 2016 until October 28, 2015,” which was 562 days after his initial

       hearing, the one-year period had expired and he was under no duty to object

       when the court scheduled his trial date outside of that period. Appellant’s Br. at

       26.


[19]   Dixon has not met his burden on appeal to show that the trial court erred.

       First, Dixon asserts that the one-year period expired on April 14, 2015. Dixon


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 10 of 29
       ignores the fact that the one-year period is tolled anytime a defendant files a

       motion to continue. See Ind. Crim. Rule 4(C). And, here, Dixon filed a motion

       to continue on September 21, 2014, which tolled the period until March 2,

       2015. 4


[20]   In addition, Dixon had filed a motion to suppress evidence on July 29, 2014.

       While it is not automatically considered a delay attributable to the defendant

       under Criminal Rule 4(C), the delay caused by a motion to suppress may be

       attributable to a defendant. See Curtis v. State, 948 N.E.2d 1143, 1150 (Ind.

       2011). And in his motion for discharge, Dixon accepted, for the sake of

       argument, that his motion to suppress tolled the one-year period as of that date.

       See Appellant App. Vol. II at 204. But, in his brief on appeal, Dixon fails to

       acknowledge the fact that he filed a motion to suppress, nor does he make any

       argument to explain why the delay caused by his motion should not now be

       attributable to him. 5 As such, Dixon has failed to meet his burden on appeal to

       demonstrate that his motion to suppress did not toll the one-year period.




       4
         In a footnote, Dixon appears to acknowledge that his motion to continue created a delay that was
       attributable to him. See Appellant’s Br. at 26 n.1.
       5
         For the first time in his reply brief, Dixon asserts that the delay caused by the motion to suppress was not
       attributable to him. However, because Dixon makes this argument for the first time in his reply brief, it is
       waived. See Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020                   Page 11 of 29
[21]   As a result of Dixon’s motion to continue and motion to suppress, Dixon tolled

       the period within which the State needed to bring him to trial for 216 days—

       from July 29, 2014, to March 2, 2015. 6 As such, while 562 days passed between

       his initial hearing and the date the court set his jury trial, only 346 days had

       passed that were attributable to the State. Thus, contrary to Dixon’s assertions,

       because less than one year had passed that was attributable to the State when

       the court set his jury trial for outside of the one-year period, Dixon had the duty

       to object to his trial date at that time. 7 See Johnson, 708 N.E.2d at 915. Dixon’s

       failure to object on October 28, 2015, constitutes waiver.


[22]   Still, in the alternative, Dixon contends that his first opportunity to object to the

       trial date was at a hearing on February 22, 2016. Reply Br. at 6. However, at

       that hearing, Dixon only mentioned that he had “several motions to file.”

       Supp. Tr. Vol. VI at 74. He did not specify that one of those motions was a

       motion to discharge pursuant to Indiana Criminal Rule 4(C). Dixon did not file

       a motion to discharge until June 13, 2016, which was almost nine months after




       6
         As discussed above, Dixon’s motion to suppress tolled the period from July 29, 2014, until February 2,
       2015. And his motion to continue tolled the time period from September 21, 2014, until March 2, 2015.
       However, there is an overlap between those dates. Removing any overlap between the filings, Dixon’s
       motions tolled the time period from July 29, 2014, when he first filed the motion to suppress, until March 2,
       2015, when his motion to continue was resolved, which equates to 216 days.
       7
          Because we hold that the motion to continue and the motion to suppress tolled the one-year time period
       such that less than one year had passed when the court set the matter for a jury trial, we need not consider the
       State’s additional argument that Dixon acquiesced to a large delay when he agreed to let the State proceed to
       trial in FB-212 prior to scheduling the trial for the current offenses.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020                   Page 12 of 29
       the court had first set his trial for outside of the one-year period. Accordingly,

       we hold that Dixon did not timely object to the setting of his trial for outside of

       the one-year period.


[23]   In sum, less than one year had passed that was attributable to the State at the

       time the court set his jury trial for outside of the one-year period. Accordingly,

       Dixon had a duty to object. Because he failed to timely object to his trial date,

       Dixon acquiesced to a belated trial. See Johnson, 708 N.E.2d at 915.

       Accordingly, the delay in bringing Dixon to trial did not violate Indiana

       Criminal Rule 4(C).


                                      Federal and State Constitutions

[24]   Dixon also asserts that, even if the delay in bringing him to trial did not violate

       Indiana Criminal Rule 4(C), that delay violated his rights under the Sixth

       Amendment and Article 1, Section 12 of the Indiana Constitution. Dixon

       acknowledges that he did not raise this issue to the trial court. See Appellant’s

       Br. at 24. Thus, to prevail on appeal, he must demonstrate that fundamental

       error occurred during the trial. See Hall v. State, 108 N.E.3d 351, 355 (Ind. Ct

       App. 2018).


[25]   To prove fundamental error, one must “‘show that the trial court should have

       raised the issue sua sponte due to a blatant violation of basic and elementary

       principles, undeniable harm or potential for harm, and prejudice that makes a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 13 of 29
       fair trial impossible.’” Taylor v. State, 86 N.E.3d 157, 162 (Ind. 2017) (quoting

       Harris v. State, 76 N.E.3d 137, 140 (Ind. 2017)). A finding of fundamental error

       essentially means that the trial judge erred by not acting when he or she should

       have, even without being spurred to action by a timely objection. Hall, 108

       N.E.3d at 355.


[26]   On appeal, Dixon makes thorough and cogent argument on the question of

       whether the delay violated his constitutional rights, but his argument on the

       question of fundamental error is inadequate, and he has waived this issue for

       our review. Indeed, the only argument Dixon makes on this issue is that the

       “unreasonable delay constituted fundamental error.” Appellant’s Br. at 30. But

       Dixon does not provide any argument to explain why the delay constituted

       fundamental error or why the court should have acted sua sponte. Because he

       has not made cogent argument in support of his fundamental error claim, it is

       waived.


                          Issue Two: Denial of Motions to Dismiss Charges

[27]   Dixon next asserts that the trial court erred when it denied his motions to

       dismiss the charges against him. In general, we review a trial court’s ruling on

       a motion to dismiss a charging information for an abuse of discretion, which

       occurs only if a trial court’s decision is clearly against the logic and effect of the

       facts and circumstances. See Tuell v. State, 118 N.E.3d 33, 35 (Ind. Ct. App.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 14 of 29
       2019). But where the parties do not dispute the facts and we are presented with

       a question of law, we apply a de novo standard of review. See id at 35-36.


[28]   On appeal, Dixon contends that the trial court erred when it denied his motions

       to dismiss because the doctrine of res judicata and Indiana’s successive

       prosecution statute barred the State from filing the current charges and because

       the charges amounted to vindictive prosecution. We address each argument in

       turn.

                                                   Res Judicata

[29]   On this issue, Dixon first maintains that the charges against him violated the

       doctrine of res judicata. As our Supreme Court has stated:


               Res judicata is a legal doctrine intended to prevent repetitious
               litigation of disputes that are essentially the same, by holding a
               prior final judgment binding against both the original parties and
               their privies. It applies where there has been a final adjudication
               on the merits of the same issue between the same parties. Stated
               in more detail:


                        1. the former judgment must have been rendered by a
                           court of competent jurisdiction;


                        2. the former judgment must have been rendered on the
                           merits;


                        3. the matter now in issue was or might have been
                           determined in the prior suit; and




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 15 of 29
                        4. the controversy adjudicated in the former suit must
                           have been between the parties to the present action or
                           their privies.


               If any element is absent, res judicata does not apply.


       Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993 (Ind. 2014) (internal

       quotation marks and citations omitted).


[30]   On appeal, Dixon maintains that his conviction in FB-212 “was a former

       judgment rendered by a court that resolved the matter on the merits and

       involved the same parties, even down to the specific detective involved in both

       matters.” Appellant’s Br. at 31. He further asserts that the “various issues

       litigated in this case could have been determined in the prior action,” and, as

       such, the doctrine of res judicata barred the State from filing the charges. Id.


[31]   We cannot agree that Dixon’s conviction in FB-212 barred the State’s charges

       in the current offense. In the language of res judicata, the matters at issue before

       the court during the current proceedings were simply not the same as the issue

       before the trial court during the proceedings in FB-212. See Montgomery v. State,

       58 N.E.3d 279, 281 (Ind. Ct. App. 2016). The issues before the trial court

       during the current proceedings were whether Dixon was a serious violent felon

       in possession of a firearm and whether he had escaped from his placement on

       home detention, while the issue before the court in FB-212 was whether Dixon

       had sold cocaine.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 16 of 29
[32]   Indeed, the State charged Dixon in FB-212 because he had sold cocaine to a

       confidential informant on September 10, 2012. And the State charged Dixon

       with the current charges based on a firearm officers had found in his home on

       January 17, 2013, and because he had fled from his placement on home

       detention on January 18. In other words, the charges in the current offense are

       independent of the charge in FB-212. We are not persuaded by Dixon’s

       suggestion that the State was required to file all of the factually distinct charges

       in one information. Accordingly, we conclude that the doctrine of res judicata

       did not bar the State from filing the current charges against him.


                                Indiana’s Successive Prosecution Statute

[33]   Dixon also asserts that the court erred when it denied his motion to dismiss the

       charges against him because Indiana’s successive prosecution statute barred the

       State from filing the charges. Pursuant to that statute, a prosecution is barred if

       all of the following exist: (1) there was a former prosecution of the defendant

       for a different offense or for the same offense based on different facts, (2) the

       former prosecution resulted in an acquittal or a conviction of the defendant or

       in an improper termination under section 3 of this chapter, and (3) the instant

       prosecution is for an offense with which the defendant should have been

       charged in the former prosecution. Ind. Code § 35-41-4-4(a) (2020). Here,

       there is no dispute that the first two elements are satisfied. Dixon was

       convicted of dealing in cocaine in FB-212. Thus, the outcome of this issue

       turns on whether the current prosecution is for offenses for which the State

       should have charged Dixon in the previous prosecution.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 17 of 29
[34]   As our Supreme Court has previous stated, “[t]he words ‘should have been

       charged’ must be read in conjunction with Indiana’s joinder statute.” Williams

       v. State, 762 N.E.2d 1216, 1219 (Ind. 2002). The joinder statute provides in

       relevant part:


               A defendant who has been tried for one (1) offense may
               thereafter move to dismiss an indictment or information for an
               offense which could have been joined for trial with the prior
               offenses under section 9 of this chapter. The motion to dismiss
               shall be made prior to the second trial[] and shall be granted if the
               prosecution is barred by reason of the former prosecution.


       I.C. § 35-34-1-10(c).


[35]   Read together, “‘our legislature has provided that, where two or more charges

       are based on the same conduct or on a series of acts constituting parts of a

       single scheme or plan, they should be joined for trial.’” Williams, 762 N.E.2d at

       1219 (quoting State v. Wiggins, 661 N.E.2d 878, 880 (Ind. Ct. App. 1996))

       (emphasis original to Wiggins). In order to determine whether offenses are part

       of a single scheme or plan, “we examine whether they are connected by a

       distinctive nature, have a common modus operandi, and a common motive.”

       Id. at 1220 (quotation marks omitted).


[36]   On appeal, Dixon maintains that Indiana’s successive prosecution statute

       barred the State from filing the charges against him because the “offenses in this

       case and the offense under FB-212 were so connected to one another that

       discussion of what occurred in this case could not be understood without

       discussing the offense under FB-212.” Appellant’s Br. at 34. Specifically, he
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 18 of 29
       maintains that the current charges “were the direct consequence of a search

       based solely on the controlled buy under FB-212” and that “no new evidence

       was collected or investigated after the waiver search.” Id.


[37]   However, as discussed above, the State charged Dixon in FB-212 based on the

       fact that he had sold cocaine to a confidential informant on September 10,

       2012. And the State charged Dixon with the current offense based on the fact

       that, in January 2013, he had possessed a firearm despite a prior felony

       conviction and because he had fled from his home following his placement on

       home detention in FD-94. Those offenses occurred several months apart, are

       distinct in nature, have a different modus operandi, and lack a common motive.

       The only connection between the two offenses is that officers found the firearm,

       which motivated Dixon to flee, during a search of Dixon’s home that was

       supported, in part, by the controlled buy that led to his charges in FB-212.


[38]   Dixon’s offenses in the current matter and FB-212 were not so connected as to

       constitute a single scheme or plan such that they should have been joined for

       trial. See Williams, 762 N.E.2d at 1219. Accordingly, the trial court did not err

       when it denied Dixon’s motion to dismiss the charges against him under

       Indiana’s successive prosecution statute.


                                            Vindictive Prosecution

[39]   Dixon next contends that the court erred when it denied his motion to dismiss

       the charges against him because the charges amounted to vindictive

       prosecution. “The Due Process clauses of Article 1, section 12, of the Indiana


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 19 of 29
       Constitution and the Fourteenth Amendment to the United States Constitution

       prohibit prosecutorial vindictiveness.” Owens v. State, 822 N.E.2d 1075, 1077

       (Ind. Ct. App. 2005). Vindictiveness may be established if the prosecutor’s

       charging decision was motivated by a desire to punish the defendant for doing

       something that the law allowed him to do. See Danks v. State, 733 N.E.2d 474,

       483 (Ind. Ct. App. 2000).


[40]   Here, Dixon specifically asserts that the State elected to file the current charges

       “only after Dixon was released from jail when he successfully argued for his

       release” in FB-212. Appellant’s Br. at 37. And Dixon maintains that “[t]here

       could be no other reason for the State’s delay in charging Dixon except that the

       State acted with actual vindictiveness.” Id. We cannot agree.


[41]   Contrary to Dixon’s assertions, there was a valid reason to support the State’s

       delay in filing the current charges against him other than to punish him for

       obtaining release from custody in FB-212. Detective Dooley testified that the

       delay in filing the charges against Dixon was due to the fact that the federal

       Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) “was thinking

       about taking the case.” Tr. Vol. II at 65. Indeed, the State did not take any

       action while the ATF “look[ed] into” Dixon’s possession of the handgun. Id.

       And the State ultimately filed the charges against Dixon after the ATF had

       decided that “it would be better off to go to the state side.” Id.


[42]   The charges in the current case were charges that the State had a legitimate

       right to file. See Cox v. State, 475 N.E.2d 664, 671 (Ind. 1985). And the fact the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 20 of 29
       State waited to file the charges until the ATF had decided not to pursue its own

       action does not equate to vindictive prosecution. As the State had a legitimate

       reason to file the charges when it did other than to punish Dixon for obtaining a

       release from custody in FD-212, Dixon has not demonstrated that the charges

       in the current offense amounted to vindictive prosecution. As such, the trial

       court did not err when it denied Dixon’s motion to dismiss the charges against

       him.


                                     Issue Three: Warrantless Search

[43]   Dixon next asserts that “the warrantless waiver search of [his] house” violated

       his constitutional rights and, as such, that the court erred when it admitted

       evidence officers had seized during that search. Appellant’s Br. at 38 (emphasis

       removed). As we have explained:


               [The defendant’s] arguments that police violated his Fourth
               Amendment and Article 1, Section 11 rights raise questions of
               law we review de novo. As the United States Supreme Court has
               explained with respect to the Fourth Amendment, as a general
               matter determinations of reasonable suspicion and probable
               cause should be reviewed de novo on appeal, while findings of
               historical fact underlying those legal determinations are reviewed
               only for clear error. The Indiana Supreme Court applies the
               same standard under Article 1, Section 11. In other words, we
               review whether reasonable suspicion or probable cause exists
               under a standard similar to other sufficiency issues—whether,
               without reweighing the evidence, there is substantial evidence of
               probative value that supports the trial court’s decision.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 21 of 29
       Redfield v. State, 78 N.E.3d 1104, 1106 (Ind. Ct. App. 2017) (internal quotation

       marks and citations omitted), trans. denied. Further, when a defendant

       challenges a warrantless search, the burden is on the State to prove the search

       fell within an exception to the warrant requirement. See Kelly v. State, 997

       N.E.2d 1045, 1051 (2013).


[44]   On appeal, Dixon acknowledges that, pursuant to his placement on home

       detention in FD-94, he consented to a warrantless search of his home

       conducted by a “Community Corrections officer, Law Enforcement Officer, or

       any agency acting on behalf of Vigo County Community Corrections or acting

       with a reasonable belief that [he] may be in violation of one of the conditions of

       my placement in the Community Corrections Program.” Ex. Vol. V at 14.

       Based on that provision, Dixon contends that an officer is only authorized to

       conduct a warrantless search of his home “so long as the search was supported

       by reasonable suspicion.” Appellant’s Br. at 38. And Dixon maintains that,

       because the only basis for the search was the two controlled buys of cocaine

       that had occurred in September 2012, which was prior to his placement on

       home detention, Detective Dooley lacked reasonable suspicion to search his

       home.


[45]   As the Supreme Court of the United States has stated, reasonable suspicion


               is dependent upon both the content of information possessed by
               police and its degree of reliability. The standard takes into
               account the totality of the circumstances—the whole picture.
               Although a mere “hunch” does not create reasonable suspicion,
               the level of suspicion the standard requires is considerably less

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 22 of 29
               than proof of wrongdoing by a preponderance of the evidence,
               and obviously less than is necessary for probable cause.


       Navarette v. California, 572 U.S. 393, 397 (2014) (citations and quotation marks

       omitted).


[46]   Here, Detective Dooley knew Dixon and knew that Dixon had a history of

       drug offenses, which included a prior criminal history of dealing in cocaine. In

       addition, before he searched Dixon’s home, Detective Dooley received

       information that a confidential informant, who was “being used locally and

       federally,” had advised detectives “that he would be able to purchase an

       amount of cocaine from Dixon.” Tr. Vol. II at 35. Detective Dooley had used

       that informant in the past, and that informant had previously provided

       Detective Dooley with information that “led to one search warrant and six

       convictions.” Id. Detective Dooley had also learned that, in January 2013,

       Dixon was “a person of interest” in an FBI investigation. Id. Based on the

       totality of the circumstances, we hold that Detective Dooley readily had

       reasonable suspicion to search Dixon’s home.


[47]   Still, Dixon appears to assert that officers lacked reasonable suspicion to search

       his home because Detective Dooley did not provide any of that information to

       Vigo County Community Corrections. However, we see nothing in Dixon’s

       community corrections agreement that would require Detective Dooley to

       provide Community Corrections officers with information such that the

       Community Corrections officers also had reasonable suspicion that Dixon had

       violated a term of his placement. Rather, we agree with the State that Dixon’s
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 23 of 29
       waiver agreement authorized a law enforcement officer to conduct a

       warrantless search of Dixon’s home either if the officer was acting on behalf of

       Vigo County Community Corrections or acting with a reasonable belief that

       Dixon had violated a term of his placement on home detention. And, as

       discussed above, Detective Dooley had reasonable suspicion to search Dixon’s

       home. Accordingly, the trial court did not err under the Fourth Amendment to

       the United States Constitution when it admitted evidence officers had seized

       during the warrantless search of Dixon’s home. 8


                                      Issue Four: Double Enhancement

[48]   Finally, Dixon asserts that the court erred when it denied his motion to dismiss

       the habitual offender allegation. Specifically, he contends that his adjudication

       as a habitual offender and the corresponding enhancement to his sentence for

       possession of a firearm by a serious violent felon constituted an impermissible

       double enhancement. “It has long been established that double enhancements

       are not permissible unless there is explicit legislative direction authorizing

       them.” Dye v. State, 972 N.E.2d 853, 856 (Ind. 2012) (“Dye I”), clarified on reh’g,

       984 N.E.2d 625 (Ind. 2013) (“Dye II”). And a “defendant convicted of unlawful




       8
         In his brief on appeal, Dixon asserts that the search of his home also violated his rights under Article 1,
       Section 11 of the Indiana Constitution. However, while Dixon acknowledges that we interpret and apply
       that provision independently from the Fourth Amendment, he does not provide an independent analysis
       under that provision. Accordingly, we conclude that Dixon has not preserved for appellate review any claim
       under Article 1, Section 11. See Wilkins v. State, 946 N.E.2d 1144, 1147 (Ind. 2011) (“Because he provides no
       authority or independent analysis supporting a separate standard under the state constitution, any state
       constitutional claim is waived.”). Insofar as Dixon may have preserved a state constitutional claim for our
       review, for the same reasons his federal rights were not violated, neither were his rights under Article 1,
       Section 11, and we affirm the trial court on this issue as well.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020                 Page 24 of 29
       possession of a firearm by a serious violent felon may not have his or her

       sentence enhanced under the general habitual offender statute by proof of the

       same felony used to establish that the defendant was a ‘serious violent felon.’”

       Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007).


[49]   Here, the State alleged that Dixon was a serious violent felon based on a 1989

       conviction for dealing in cocaine. And the State alleged that he was a habitual

       offender based on a 1999 conviction for resisting law enforcement and his 2012

       conviction in FD-94. Those convictions are separate and distinct from one

       another. Accordingly, the State did not seek to have Dixon’s sentence

       enhanced under the general habitual offender statute by proof of the same

       felony used to establish that he was a serious violent felon. However, our

       inquiry does not end there.


[50]   Even where a sentencing enhancement under the general habitual offender

       statute is not based on the same felony that was used to establish that a

       defendant is a serious violent felon, the enhancement is nonetheless improper if

       it was based on a felony that was part of the same res gestae. See Dye II, 984

       N.E.2d at 629. Our Supreme Court has stated that, “[a]lthough res gestae is a

       term regularly used in Indiana’s common law of evidence to denote facts that

       are part of the story of a particular crime,” it also includes “acts that are part of

       an uninterrupted transaction.” Id. (quotation marks omitted). And a crime that

       is continuous in its purpose and objective is deemed to be a single uninterrupted

       transaction. Id.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 25 of 29
[51]   In Dye, the State charged Dye with unlawful possession of a firearm by a

       serious violent felon and alleged that he was a habitual offender. To prove that

       he was a serious violent felon, the State relied on a 1998 conviction for

       attempted battery with a deadly weapon. Dye I, 972 N.E.2d at 855. And to

       prove that he was a habitual offender, the State relied on a 1993 conviction for

       forgery and a 1998 conviction for possession of handgun within 1,000 feet of a

       school. Id. at 856. Dye pleaded guilty to the firearms charge, and the jury

       found that he was a habitual offender. On appeal, the Supreme Court found

       that the trial court’s enhancement of his sentence based on the habitual offender

       adjudication was an impermissible double enhancement to his conviction for

       possession of a firearm by a serious violent felon. Id. at 858.


[52]   On rehearing, the Supreme Court noted that Dye’s 1998 conviction for

       attempted battery with a deadly weapon, which supported the finding that he

       was a serious violent felon, and his 1998 conviction for possession of handgun

       within 1,000 feet of a school, which supported his habitual offender

       adjudication, both arose out of the same confrontation that Dye had had with a

       police officer. Dye II at 629. The Court further noted that the State charged

       both offenses under the same cause number and resolved them in the same plea

       agreement. Id. As such, the Court determined that the two offenses were part

       of the same “uninterrupted transaction” and that they arouse out of the same res

       gestae such that his adjudication as a habitual offender was an improper double

       enhancement. Id. at 630.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 26 of 29
[53]   Here, Dixon acknowledges that “neither of the predicate offenses supporting

       the habitual-offender enhancement were the ‘same felony’ as the cocaine

       dealing felony underlying the SVF conviction.” Appellant’s Br. at 44. But

       Dixon contends that he was placed on home detention as a result of his

       conviction in FD-94. And he asserts that his current charge for escape was a

       result of his fleeing from that placement. He further contends that he only fled

       his placement in FD-94 after officers had found a gun during a search of his

       home during that placement on home detention.


[54]   In other words, Dixon maintains that “one cannot understand the complete

       context of the escape and [serious violent felon] convictions without referring to

       the circumstances surrounding the conviction” in FD-94. Appellant’s Br. at 45.

       Accordingly, he contends that his convictions for escape and unlawful

       possession of a firearm by a serious violent felon in the current offense were

       part of the same res gestae as the offense in FD-94, which the State used to

       support the habitual offender enhancement, such that the double enhancement

       was improper. We cannot agree.


[55]   Unlike in Dye, the conviction used to support the finding that Dixon is a serious

       violent felon did not arise out of the same event, nor was it part of the same

       “uninterrupted transaction” as one of the convictions used to prove that he is a

       habitual offender See Dye II, 984 N.E.2d at 630. Indeed, the State charged

       Dixon in FD-94 in January 2012 after he had possessed cocaine. And the State

       filed the current charges against Dixon because he had possessed a firearm and

       fled his placement on home detention over a year later in January 2013. We

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 27 of 29
       are not persuaded by his argument that the offenses arose out of the same res

       gestae simply because he was on home detention as a result of the offense used

       to show that he is a habitual offender at the time he committed the current

       offenses. Accordingly, we hold that the trial court did not err when it denied

       Dixon’s motion to dismiss the habitual offender allegation.


                                                   Conclusion

[56]   In sum, less than one year had passed that was attributable to the State at the

       time the court set his jury trial for outside of the one-year period. Because

       Dixon failed to object to a belated trial date, the delay in bringing Dixon to trial

       did not violate Criminal Rule 4(C). Further, Dixon has failed to make a cogent

       argument that the delay in bringing him to trial violated his federal and state

       constitutional rights. In addition, the trial court did not err when it denied

       Dixon’s motions to dismiss the charges against him because neither the doctrine

       of res judicata nor Indiana’s successive prosecution statute prohibited the State

       from filing the charges and because the charges did not amount to vindictive

       prosecution. Further, the trial court did not err when it admitted evidence

       officers had seized during a warrantless search of Dixon’s home because

       Detective Dooley had reasonable suspicion to search Dixon’s home. Finally,

       the trial court did not err when it denied Dixon’s motion to dismiss the habitual

       offender allegation because the prior felonies used to support the habitual

       offender adjudication were not part of the same res gestae as his conviction used


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 28 of 29
       to show that he is a serious violent felon. Accordingly, we affirm Dixon’s

       convictions.


[57]   Affirmed.


       Bradford, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1112 | August 31, 2020   Page 29 of 29
