 MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jul 16 2018, 10:36 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Otto Sutton,                                             July 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1712-CR-2916
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1504-F2-13642



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018          Page 1 of 32
                               Case Summary and Issues
[1]   Following a jury trial, Otto Sutton was found guilty of dealing in a narcotic

      drug and dealing in cocaine, both Level 2 felonies, and possession of a narcotic

      drug and possession of cocaine, both Level 4 felonies. The trial court entered

      judgments of conviction on all four counts. In the second phase of the

      bifurcated trial, Sutton waived his right to a jury and the court found Sutton to

      be an habitual offender. At sentencing, the trial court merged the two counts of

      possession with the two counts of dealing and sentenced Sutton to a total of

      twenty-five years, with five years suspended to probation.


[2]   Sutton now appeals, raising four issues for our review which we restate as: (1)

      whether a patdown search of Sutton violated the Fourth Amendment of the

      United States Constitution or Article 1, Section 11, of the Indiana Constitution;

      (2) whether jury instructions which failed to inform the jury that it must find

      there was evidence of intent to deliver in addition to the weight of the drugs

      amounted to fundamental error; (3) whether there was sufficient evidence that

      Sutton was an habitual offender; and (4) whether the trial court erred when it

      merged the counts of possession with the counts of dealing without vacating the

      formal judgments of conviction. Concluding the patdown search was a

      reasonable Terry frisk, the jury instructions did not rise to the level of

      fundamental error, there was sufficient evidence that Sutton was an habitual

      offender, and the trial court erred when it merged both counts of possession

      with both counts of dealing without vacating the formal judgments of

      conviction, we affirm in part, reverse in part, and remand.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 2 of 32
                            Facts and Procedural History                               1




[3]   On April 16, 2015, Brady Ball, a canine officer with the Indianapolis

      Metropolitan Police Department (“IMPD”), received a telephone call from Eric

      Jensen, an agent with the Bureau of Alcohol, Tobacco, and Firearms, regarding

      an ongoing narcotics investigation. Officer Ball was familiar with Agent Jensen

      from their work together on multi-jurisdictional task forces some ten years

      prior. Agent Jensen informed Officer Ball that he had “fresh” information that

      Sutton was in the area of 40th Street and Arlington Avenue traveling in a “red

      tow truck” and in possession of “a large amount of narcotics and a firearm.”

      Transcript, Volume 2 at 66. Agent Jensen urged Officer Ball to “get up there as

      soon as possible” because Sutton “was there at that point in time.” Id.


[4]   Officer Ball had arrested Sutton “in [the] middle 2000s” for a drug offense and

      had contact with him on “at least two other occasions” where Sutton was

      arrested in connection with a narcotics investigation, resisting law enforcement,

      and “an investigation with a gun.” Id. at 66-67. After speaking with Agent

      Jenson, Officer Ball “did a couple of computer checks on Mr. Sutton to look at

      the case reports. I pulled up what I think was a photo that’s in the system of

      Mr. Sutton and then I headed up to the area around 40th and Arlington.” Id. at

      68.




      1
        We heard oral argument in Indianapolis, Indiana, at the Jewish Community Center on June 21, 2018. We
      thank the members of the Jewish Community Center and our hosts, Ken Newton and Lev Rothenberg, for
      their generous hospitality and commend counsel for their skilled and informative oral advocacy.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018       Page 3 of 32
[5]   Almost immediately upon arriving in the area described by Agent Jensen,

      Officer Ball located a red tow truck and began observing the vehicle. As Officer

      Ball approached, he noticed “extremely excessive” window tinting and a lack of

      identifying markers required on tow trucks such as a name and phone number,

      a Department of Transportation (“DOT”) number, and a license plate. Id. at

      70-71, 86. Officer Ball then began following the vehicle and noted that it

      paused for an “inordinate amount of time” at a three-way intersection. Id. at

      73. The vehicle eventually displayed a turn signal and made a right-hand turn,

      but only after Officer Ball used his air horn. At this point, having observed the

      passenger side of the vehicle and confirming that the vehicle had a “full tint

      job,” and still unable to locate identifying markings, a DOT number, or a

      license plate, Officer Ball activated his emergency lights and attempted to

      conduct a traffic stop. Id. at 77.


[6]   Despite Officer Ball’s use of emergency lights and repeated activation of the

      car’s siren, the tow truck continued westbound for a block and turned

      northbound before eventually coming to a stop after a short distance in the

      “middle of the road,” which “blocked a driveway and . . . blocked the entire

      street.” Id. at 79. Officer Ball used his PA system to instruct the driver of the

      vehicle to move to a spot about twenty-five yards away and pull over. Officer

      Ball later testified that drivers who refuse to stop often “either . . . are going to

      flee or they want to get a position or a place that’s more beneficial to them.” Id.

      at 81. As the vehicle complied, Officer Ball noticed a group of three adult

      females and “some children and maybe some teenagers” that were walking


      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 4 of 32
      toward the tow truck. Id. “[P]eople [were] really paying close attention from

      that driveway that he pulled in front of that were very focused on the red tow

      truck and now me.” Id. at 81-82. Fearing a “distinct officer safety

      disadvantage,” Officer Ball requested back-up before stepping out of his vehicle

      and addressing the three women who had approached the tow truck. Officer

      Ball asked, “do you know this dude, or words to that effect,” and two of the

      girls said no, but one said, “yeah, we know him.” Id. at 83.


[7]   Officer Ball conducted a passenger-side approach of the vehicle; identified

      Sutton, the sole occupant of the vehicle; and informed him why he had been

      stopped. Sutton produced a temporary license plate and a driver’s license but

      no registration for the vehicle, stating that it belonged to both him and his

      father. Officer Ball instructed Sutton to exit the vehicle and sit on the bumper

      of his police car while he ran the vehicle’s information and checked for

      warrants. Despite repeated efforts, Officer Ball was unable to locate the

      vehicle’s registration, and Sutton eventually admitted that the vehicle belonged

      only to his father. Around this time, and approximately six minutes after the

      initial traffic stop, back-up arrived in the form of IMPD Officer Jerome

      Harrison. Officer Ball handed his ticket book to Harrison and instructed him to

      write Sutton citations for several traffic infractions while he walked his canine

      around Sutton’s vehicle before warning, “Watch this dude . . . he may run.” Id.

      at 97.


[8]   Officer Ball’s canine alerted to the presence of narcotics by the driver’s side

      door of Sutton’s vehicle. When Officer Ball informed Sutton that the canine

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 5 of 32
       had alerted to his vehicle, there was “a distinct change in Mr. Sutton’s

       demeanor. He stood up.” Tr., Vol. 3 at 34. Officer Ball instructed Sutton to sit

       back down and proceeded to inform Sutton of his Miranda rights. Sutton

       crossed his arms and looked from Officer Ball to the people gathered nearby

       and then back at Officer Ball. About halfway through Officer Ball’s recitation,

       Sutton again attempted to stand up and was instructed to sit down. Officer Ball

       then


               started over again with Mr. Sutton, explaining to him that there
               was a dog hit, and I started going back into the Miranda warning.
               At that point, he stood up and it was, in my mind, two things
               were going to happen. It was either going to be fight or flight. I
               immediately told Mr. Sutton, huh-uh (no). Turn around and put
               your hands on the vehicle. At that point, with his hands on the
               vehicle, I conducted a pat[-]down of him.


       Id. at 35-36.


[9]    Officer Ball initiated the pat-down at the front waist of Sutton’s shorts and “felt

       this hard lumpy . . . substance with kind of co[a]rse, rough edges, and

       immediately, I knew it was drugs, most consistent with most likely cocaine in

       bulk form.” Id. at 39. Officer Ball signaled to the nearby officers, and they

       handcuffed Sutton. Once Officer Ball obtained plastic gloves, he lifted up

       Sutton’s shirt and retrieved a purple Crown Royal bag containing 24.95 grams

       of heroin, 11.87 grams of crack cocaine, and 5.58 grams of powder cocaine.


[10]   Officer Ball then conducted a full search of Sutton’s person. This search

       revealed $1,530 in Sutton’s pocket composed of “twenty-two $1 bills, nine $2

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 6 of 32
       bills, twelve $5 bills, ten $10 bills, fifty-four $20 bills, one $50, and two $100

       bills.” Id. at 45. Sutton threw up following the search. Officer Ball also

       conducted a search of Sutton’s vehicle pursuant to his canine’s alert and seized

       three cell phones—one smartphone and two flip phones—but no other

       paraphernalia common to drug users.


[11]   On April 21, 2015, the State charged Sutton with Count I, dealing in a narcotic

       drug, a Level 2 felony; Count II, possession of a narcotic drug, a Level 4 felony;

       Count III, dealing in cocaine, a Level 2 felony; Count IV, possession of

       cocaine, a Level 4 felony; and alleged he was an habitual offender.


[12]   Sutton filed a Motion to Suppress on May 16, 2017. The trial court conducted

       a hearing and denied the Motion to Suppress, and Sutton’s case proceeded to

       trial on September 19. There, the State presented the testimony of Officers Ball

       and Harrison regarding the underlying traffic stop, Sutton’s arrest, and Sutton’s

       appearance and condition on the date in question. IMPD Detective Jeremy

       Ingram, a twenty-year veteran of the police force, also testified regarding

       evidence of drug dealing and his fourteen years of experience dealing almost

       exclusively with narcotics. He testified that he had conducted approximately

       1,000 undercover purchases of illegal drugs including cocaine and opiates and

       was familiar with the differing characteristics of drug dealers and drug users.

       Detective Ingram explained that a user of cocaine, a stimulant, may suffer from

       agitation while a user of heroin, a depressant, may be tired and quiet, and that

       both types of users display, among other things, poor hygiene, loss of teeth,

       body odor, and sunken eyes.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 7 of 32
[13]   Detective Ingram testified that a distinguishing characteristic between addicts

       and dealers is that dealers possess multiple types of drugs, and he emphasized

       how unusual it would be for an addict to be in possession of such a large

       amount of heroin or crack cocaine. He explained:


               I’ve been in law enforcement for almost 20 years now, I have
               never met an addict that was addicted to two different substances
               at the same time that was taking heroin and cocaine. Some of
               them limit addiction so bad they don’t drink or smoke cigarettes.
               They don’t do - they, literally, just do that drug.


       Id. at 114.


[14]   Sutton possessed varying amounts of heroin, crack cocaine, and cocaine, in

       accordance with their profitability. Id. at 125-26. He possessed heroin in the

       largest quantity, slightly less than one ounce, which could cost $2,500 and from

       which a dealer could make a profit of $3,500. Id. at 131. Sutton possessed less

       than a half an ounce of crack cocaine, $700 worth, which could fetch a profit of

       $300. Id. at 130. And finally, Sutton possessed less than a “quad” of cocaine,

       the least profitable substance. Detective Ingram explained that drug dealers

       often leave scales and drug-packaging material at a central location and that

       dealers often have several cell phones, usually “cheap flip phone[s]” which are

       referred to as “burner phone[s].” Id. at 124. Additionally, the $20 bill is the

       most common denomination for drug dealing, and Sutton possessed $1,080

       worth of $20 bills among the $1,580 found on his person. Id. at 127.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 8 of 32
[15]   In final arguments, the State emphasized Sutton’s “variety store” type of

       dealing. Id. at 174. The State relied upon Detective Ingram’s testimony to

       prove intent to deal and pointed to evidence such as the variety and amounts of

       drugs that Sutton possessed, his lack of addict characteristics, and his

       possession of three cell phones. The jury found Sutton guilty of all charges and

       the trial court orally entered judgments of conviction on all four counts.


[16]   Sutton waived his right to trial by jury in the habitual offender phase of the trial.

       The State produced certified documents regarding two prior felony convictions,

       and the trial court found Sutton was an habitual offender.


[17]   At sentencing on November 27, 2017, the trial court recognized double

       jeopardy implications and merged the two counts of possession with the two

       counts of dealing. The trial court then sentenced Sutton to an aggregate

       sentence of twenty years to be served in the Indiana Department of Correction

       and five years suspended to probation. Sutton now appeals.



                                  Discussion and Decision
                                        I. Search and Seizure
                                       A. Standard of Review
[18]   Sutton frames this issue as an appeal of the denial of a motion to suppress, and

       we review the denial of a motion to suppress in a manner similar to reviewing

       the sufficiency of the evidence. Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006).

       However, because Sutton is appealing from a completed trial, “the question of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 9 of 32
       whether the trial court erred in denying a motion to suppress is no longer

       viable.” Cochran v. State, 843 N.E.2d 980, 982 (Ind. Ct. App. 2006), trans.

       denied, cert. denied, 549 U.S. 1122 (2007). In such cases, “the appeal is best

       framed as challenging the admission of evidence at trial.” Clark v. State, 994

       N.E.2d 252, 259 (Ind. 2013).


               The general admission of evidence at trial is a matter we leave to
               the discretion of the trial court. We review these determinations
               for abuse of that discretion and reverse only when admission is
               clearly against the logic and effect of the facts and circumstances
               and the error affects a party’s substantial rights.


       Id. at 259-60 (citations omitted).


[19]   Before proceeding, we note that Sutton stipulated the underlying traffic stop

       was valid, Tr., Vol. 2 at 245, and Sutton concedes the issue on appeal, Br. of

       Appellant at 19. It is well settled that a police officer may stop a vehicle upon

       observing a minor traffic violation, Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct.

       App. 2010), and it is not unreasonable under either the federal or Indiana

       constitutions for an officer to make a pretextual traffic stop so long as they

       possess probable cause, Whren v. United States, 517 U.S. 806, 810 (1996); Mitchell

       v. State, 745 N.E.2d 775, 787 (Ind. 2001).


            B. Reasonable Suspicion that Sutton May be Armed and
                                 Dangerous
[20]   In the first of four issues presented for appeal, Sutton argues that Officer Ball

       lacked reasonable suspicion to believe he may be armed and dangerous, thus

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 10 of 32
       the pat-down search of his person violated the Fourth Amendment of the

       United States Constitution and Article 1, Section 11 of the Indiana

       Constitution. The State, in turn, argues Officer Ball possessed such reasonable

       suspicion, or, alternatively, that the pat-down was a valid search incident to

       arrest.


                                            1. Fourth Amendment

[21]   The Fourth Amendment of the United States Constitution states: “The right of

       the people to be secure in their persons, houses, papers, and effects, against

       unreasonable searches and seizures, shall not be violated, and no Warrants shall

       issue, but upon probable cause, supported by Oath or affirmation, and

       particularly describing the place to be searched, and the persons or things to be

       seized.” U.S. Const. amend IV. A search conducted without a warrant is per

       se unreasonable unless it falls within a “few specifically established and well-

       delineated exceptions” to the warrant requirement. Katz v. United States, 389

       U.S. 347, 357 (1967).


[22]   One exception to the warrant requirement is a protective search for weapons

       during a lawful stop, often called a Terry pat-down or Terry frisk. Terry v. Ohio,

       392 U.S. 1, 26-27 (1968). When an officer does not have probable cause to

       arrest a person, he or she may conduct a Terry pat-down only if two conditions

       are met: (1) the stop must be lawful, Arizona v. Johnson, 555 U.S. 323, 326

       (2009) (citing Terry, 392 U.S. at 26-27); and (2) the officer must “reasonably

       suspect that the person stopped is armed and dangerous.” Id. A generalized

       suspicion that an individual presents a threat to an officer’s safety is insufficient
       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 11 of 32
       to authorize a Terry frisk; rather, articulable facts must exist to support an

       officer’s reasonable belief that the particular individual is armed and dangerous.

       Tumblin v. State, 736 N.E.2d 317, 322 (Ind. Ct. App. 2000), trans. denied. “The

       officer need not be absolutely certain that the individual is armed; the issue is

       whether a reasonably prudent man in the circumstances would be warranted in

       the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27.

       This court has routinely held that traffic stops for infractions, without more, are

       insufficient to provide reasonable suspicion for a Terry frisk. See, e.g., State v.

       Pease, 531 N.E.2d 1207, 1211 (Ind. Ct. App. 1988).


[23]   In denying Sutton’s Motion to Suppress, the trial court found Officer Ball

       possessed reasonable suspicion that Sutton may be armed and dangerous based

       upon “numerous articulable facts” including: (1) the information from Agent

       Jensen that Sutton was in possession of “a large amount of narcotics and a

       firearm”; (2) Officer Ball’s own research and experience with Sutton; (3)

       Sutton’s failure to immediately stop and the location and manner in which he

       finally fully stopped; (4) Officer Ball’s canine alerting to Sutton’s driver’s side

       door; and (5) Sutton’s change in demeanor, nervousness, and repeated attempts

       to stand up. Appellant’s Appendix, Volume III at 103-04. The trial court then

       concluded, “Based upon the totality of circumstances known to Officer Ball, he

       had reasonable suspicion to conduct a patdown of [Sutton].” Id. at 104.

       Additionally, the State produced testimony the traffic stop occurred in a “high

       crime area.” Tr., Vol. 2 at 67.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 12 of 32
[24]   On appeal, Sutton proceeds to analyze each of the foregoing factors

       independently, before summarily concluding that none of the factors support a

       finding of reasonable suspicion. This, however, is the flaw of Sutton’s

       argument. Reasonable suspicion is determined under the totality of the

       circumstances, not individual factors analyzed in isolation. U.S. v. Sokolow, 490

       U.S. 1, 8 (1989). Indeed, even “a set of individually innocent facts, when

       viewed in conjunction, can be sufficient to create reasonable suspicion,” Finger

       v. State, 799 N.E.2d 528, 534 (Ind. 2003), and the facts presented here are more

       than innocent. Officer Ball, who was familiar with Sutton and his criminal

       history including an investigation involving a firearm, received a tip that Sutton

       was in possession of firearm. When Officer Ball attempted to conduct a traffic

       stop, Sutton refused to pull over and proceeded to an area where he knew

       bystanders. Officer Ball’s canine alerted to the driver’s side door of Sutton’s

       vehicle, Sutton’s demeanor changed when informed thereof, and Sutton

       repeatedly attempted to stand up, despite Officer Ball’s orders to stay seated.

       Officer Ball also observed a “fight or flight” response, and the traffic stop

       occurred in a high crime area. Even assuming that none of these factors

       constitute reasonable suspicion in isolation, under the totality of the

       circumstances, we unhesitatingly conclude that Officer Ball possessed

       reasonable suspicion to believe that Sutton may be armed and dangerous. See,

       e.g., Patterson v. State, 958 N.E.2d 478, 486-88 (Ind. Ct. App. 2011) (Terry frisk

       was justified during a traffic stop in a high crime area where officer detected

       odor of marijuana). Therefore, the Fourth Amendment permits a Terry frisk of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 13 of 32
       Sutton’s person, and the trial court did not abuse its discretion by admitting

       such evidence.


                                           2. Article 1, Section 11

[25]   Sutton also argues his search was unreasonable under Article 1, Section 11 of

       the Indiana Constitution.


[26]   Although Article 1, Section 11 of the Indiana Constitution shares the same

       language as the Fourth Amendment, we interpret and apply the provision

       independently. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). “Instead of

       focusing on the defendant’s reasonable expectation of privacy, we focus on the

       actions of the police officer, and employ a totality-of-the-circumstances test to

       evaluate the reasonableness of the officer’s actions.” Duran v. State, 930 N.E.2d

       10, 17 (Ind. 2010) (internal quotation marks omitted). It is the State’s burden to

       show its intrusion was reasonable. Bulington, 802 N.E.2d at 438.


[27]   To determine reasonableness, we consider: “1) the degree of concern, suspicion,

       or knowledge that a violation has occurred, 2) the degree of intrusion the

       method of the search or seizure imposes on the citizen’s ordinary activities, and

       3) the extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361

       (Ind. 2005).


                                            a. Degree of Suspicion

[28]   In evaluating the degree of suspicion that Sutton may be armed and dangerous,

       we consider “the reasonableness of the officers’ assumptions, suspicions, or

       beliefs based on the information available to them at the time.” Duran, 930
       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 14 of 32
       N.E.2d at 18. Here, we rely on our discussion concerning reasonable suspicion

       under the Fourth Amendment, see supra ¶¶ 21-24, and conclude that under the

       totality of the circumstances, there was a high degree of suspicion that Sutton

       may be armed and dangerous. Thus, this factor weighs in favor of the State.


                                             b. Degree of Intrusion

[29]   Having concluded Officer Ball possessed the requisite degree of suspicion to

       conduct a pat-down of Sutton’s person for weapons, we turn to the degree of

       intrusion caused by the pat-down. We evaluate the degree of intrusion from the

       defendant’s point of view, Duran, 930 N.E.2d at 18, and consider “the nature of

       the privacy interest upon which the search intrudes and the character of the

       intrusion itself,” Chest v. State, 922 N.E.2d 621, 624 (Ind. Ct. App. 2009).


[30]   Sutton argues that the pat-down was highly intrusive because it “focused on

       [his] front waistband, which is of course a private and sensitive area of the

       body.” Br. of Appellant at 27. Although we remain mindful that “[e]ven a

       limited search of the outer clothing for weapons constitutes a severe, though

       brief, intrusion upon cherished personal security,” Terry, 392 U.S. at 24-25, it is

       well-known that individuals often conceal firearms along their waistband. The

       record reveals the pat-down was quite ordinary, lasting only a matter of

       seconds, conducted outside of Sutton’s clothing, and aimed at the area in which

       many, if not most, firearms are concealed. Under the totality of these

       circumstances, such intrusion was minimal. See J.R. v. State, 89 N.E.3d 408,

       412 (Ind. Ct. App. 2017) (holding “ordinary pat-down search” did not violate

       Article 1, Section 11), aff’d in relevant part, 2018 WL 3099178.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 15 of 32
                                    c. Extent of Law Enforcement Needs

[31]   Finally, Sutton argues the extent of law enforcement needs was low because

       there were three officers present and the bystanders were cooperative.


[32]   “Indiana citizens are concerned not only with personal privacy but also with

       safety, security, and protection from crime. . . . [R]easonableness under the

       totality of circumstances may include consideration of police officer safety.”

       Saffold v. State, 938 N.E.2d 837, 840 (Ind. Ct. App. 2010), trans. denied. As

       noted above, Officer Ball had reasonable suspicion to believe Sutton may be

       armed and dangerous. Sutton’s potential possession of a firearm creates an

       officer safety issue, regardless of the number of officers on scene or the

       bystanders’ level of cooperation. Therefore, this factor, too, weighs in favor of

       the State. J.R., 89 N.E.3d at 412 (concluding “the extent of law enforcement

       needs was great—Officer Snow needed to be able to conduct his investigation in

       safety.”).


[33]   All three Litchfield factors weigh in favor of the State and thus the search of

       Sutton’s person for weapons was reasonable under Article 1, Section 11 of the

       Indiana Constitution.


                                       C. Abuse of Discretion
[34]   Under the totality of the circumstances, Officer Ball possessed reasonable

       suspicion that Sutton may be armed and dangerous. Therefore, the Fourth

       Amendment permitted Officer Ball to conduct a Terry frisk of Sutton’s person

       and that search was reasonable under Article 1, Section 11. During the search,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 16 of 32
       Officer Ball detected what was “immediately” apparent to him to be illegal

       narcotics. Tr., Vol. 3 at 39. Officers may seize contraband detected through

       the officer’s sense of touch during the lawful execution of a Terry frisk.

       Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). Accordingly, the trial court

       did not abuse its discretion by admitting the evidence at trial.2


                                              II. Jury Instructions
[35]   Next, Sutton argues the trial court committed fundamental error when

       instructing the jury. Specifically, Sutton contends that the jury instructions

       relating to the two dealing charges3 failed to inform the jury of an element of the

       crimes—that there must be evidence of his intent to deal in addition to the

       weight of the drugs. In turn, the State argues the language does not amount to

       an element of the crime and that even if it does, such error does not rise to the

       level of fundamental error. For the reasons set forth below, we conclude that

       any error was harmless.


                                            A. Standard of Review
[36]   The manner of instructing a jury is left to the sound discretion of the trial court.

       Patton v. State, 837 N.E.2d 576, 579 (Ind. Ct. App. 2005). When reviewing the

       jury instructions, we consider them as a whole and in reference to each other.




       2
        Because we conclude Officer Ball possessed reasonable suspicion that Sutton may be armed and dangerous,
       we need not address the State’s alternative argument regarding a search incident to arrest.
       3
           Count I, dealing in a narcotic drug, and Count III, dealing in cocaine, both Level 2 felonies.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018                 Page 17 of 32
       Id. Before a defendant is entitled to a reversal, he must affirmatively show that

       the erroneous instruction prejudiced his substantial rights. Id. A defendant

       who fails to object to a jury instruction at trial waives any challenge to that

       instruction on appeal, unless giving the instruction was fundamental error.

       Wright v. State, 730 N.E.2d 713, 716 (Ind. 2000).


[37]   Sutton admits that he failed to object to the jury instructions at trial. Br. of

       Appellant at 31. To avoid waiver, Sutton bears the burden of establishing that

       the instructional errors constitute fundamental error.


               Fundamental error is error that represents a blatant violation of
               basic principles rendering the trial unfair to the defendant,
               thereby depriving the defendant of fundamental due process.
               The error must be so prejudicial to the rights of the defendant as
               to make a fair trial impossible. In determining whether a claimed
               error denies the defendant a fair trial, we consider whether the
               resulting harm or potential for harm is substantial. The element
               of harm is not shown by the fact that a defendant was ultimately
               convicted. Rather, it depends upon whether the defendant’s right
               to a fair trial was detrimentally affected by the denial of
               procedural opportunities for the ascertainment of truth to which
               he would have been entitled.


       Evans v. State, 81 N.E.3d 634, 637 (Ind. Ct. App. 2017) (citations omitted).


[38]   Before proceeding, we note that Sutton’s claim is set forth under the Sixth

       Amendment to the United States Constitution, and he does not make a separate

       argument relating to the protections of Article 1, Section 13. In Davenport v.

       State, we explained that:



       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 18 of 32
                 Absent a clear invocation of a violation of rights under the
                 Indiana Constitution and cogent supporting argument, we will
                 assume that defendant raises only a claim under the United
                 States Constitution and will analyze that claim as we would a
                 federal constitutional claim.


       734 N.E.2d 622, 624 n.2 (Ind. Ct. App. 2000) (citing Smith v. State, 689 N.E.2d

       1238, 1240 n. 3 (Ind. 1997)), trans. denied. Because Sutton fails to separately

       invoke or provide relevant authority relating to Article 1, Section 13, we review

       Sutton’s claim only under the federal constitution.


                                      B. Final Jury Instructions
[39]   Sutton was charged with Count I, dealing in a narcotic drug, and Count III,

       dealing in cocaine, both under Indiana Code section 35-48-4-1(a)(2) (2014).

       The version of the statute in effect on the date of the offense, April 16, 2015,

       states:


                 (a)    A person who:
                        ***
                        (2) possesses, with intent to:
                                ...
                                (C) deliver;
                                 ...
                                cocaine or a narcotic drug, pure or adulterated,
                                classified in schedule I or II;
                        commits dealing in cocaine or a narcotic drug, a Level 5
                        felony, except as provided in subsections (b) through (e).
                 (b)    A person may be convicted of an offense under subsection
                        (a)(2) only if there is evidence in addition to the weight of
       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 19 of 32
                           the drug that the person intended to manufacture, finance
                           the manufacture of, deliver, or finance the delivery of the
                           drug.
                           ***
                  (e)      The offense is a Level 2 felony if:
                           (1) the amount of the drug involved is at least ten (10)
                           grams[.]


[40]   At issue here is the requirement in subsection (b) that a person may “be

       convicted of an offense . . . only if there is evidence in addition to the weight of

       the drug.” Id. (emphasis added). This requirement did not appear in pre-2014

       versions of Indiana Code section 35-48-4-1 and went into effect on July 1,

       2014.4


[41]   The trial court delivered the following jury instructions:


                  FINAL INSTRUCTION NO. 2

                  COUNT I

                  The Defendant is charged in Count I with the offense of Dealing
                  in A Narcotic Drug, which is defined by statute as follows:


                  A person who knowingly or intentionally possesses with the
                  intent to deliver heroin, pure or adulterated, a narcotic drug



       4
           Indiana Code section 35-48-4-1 was amended again in 2016. Subsection (b) now provides:
                (b) A person may be convicted of an offense under subsection (a)(2) only if:
                  (1) there is evidence in addition to the weight of the drug that the person intended to
                  manufacture, finance the manufacture of, deliver, or finance the delivery of the drug; or
                  (2) the amount of the drug involved is at least twenty-eight (28) grams.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018               Page 20 of 32
        classified in Schedule I of the Indiana Uniform Controlled
        Substances Act, in an amount of at least 10 grams commits
        Dealing in a Narcotic Drug.


        To convict the Defendant, the State must have proved each of the
        following beyond a reasonable doubt:


                 1. On or about April 16, 2015,
                 2. The Defendant, Otto Sutton,
                 3. Knowingly or intentionally
                 4. Possessed
                 5. With the intent to deliver
                 6. Heroin, pure or adulterated,
                 7. Said heroin having a weight of at least 10 grams.

        If the State fails to prove each of these elements beyond a
        reasonable doubt, you must find the Defendant, Otto Sutton, not
        guilty of Dealing in a Narcotic Drug, as charged in Count I.


        ***


        FINAL INSTRUCTION NO. 4

        COUNT III

        The Defendant is charged in Count III with the offense of
        Dealing in Cocaine, which is defined by statute as follows:


        A person who knowingly or intentionally possesses with the
        intent to deliver cocaine, pure or adulterated, in an amount of at
        least 10 grams commits Dealing in Cocaine.


        To convict the Defendant, the State must have proved each of the
        following beyond a reasonable doubt:



Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 21 of 32
                        1. On or about April 16, 2015,
                        2. The Defendant, Otto Sutton,
                        3. Knowingly or intentionally
                        4. Possessed
                        5. With the intent to deliver
                        6. Cocaine, pure or adulterated,
                        7. Said cocaine having a weight of at least 10 grams.

               If the State fails to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant, Otto Sutton, not
               guilty of Dealing in Cocaine, as charged in Count III.


       Appellant’s App., Vol. III at 134, 136.


[42]   Sutton argues the omitted language constitutes an element of the offenses and

       that its omission rises to the level of fundamental error. In turn, the State

       argues that the language does not constitute an element, but merely a “minimal

       guideline for evidentiary significance” or an “advisement,” and that even if it

       does amount to an element, the error is not fundamental. Br. of Appellee at 38.


[43]   “[T]he Due Process Clause protects the accused against conviction except upon

       proof beyond a reasonable doubt of every fact necessary to constitute the crime

       with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). In Neder v.

       United States, 527 U.S. 1 (1999), the Supreme Court held that where a jury was

       not instructed on an element of an offense, and thus there was no jury finding

       on that element, the error may be harmless if it is “clear beyond a reasonable

       doubt that a rational jury would have found the defendant guilty,” despite the

       lack of an actual jury finding on that element. Id. at 18. In so holding,

       however, the court cautioned that “safeguarding the jury guarantee will often

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 22 of 32
       require that a reviewing court conduct a thorough examination of the record.

       If, at the end of that examination, the court cannot conclude beyond a

       reasonable doubt that the jury verdict would have been the same absent the

       error . . . it should not find the error harmless.” Id. at 19.


[44]   The omission or misstatement of an element is erroneous, but it will not rise to

       the level of fundamental error “where the issue was not a central issue at trial,”

       Winkleman v. State, 22 N.E.3d 844, 850 (Ind. Ct. App. 2014), trans. denied, or if

       the other instructions, viewed as a whole, sufficiently inform the jury of the

       State’s burden of proof, Ramsey v. State, 723 N.E.2d 869, 873 (Ind. 2000). Here,

       despite Sutton’s urging, we need not decide whether the language of Indiana

       Code section 35-48-4-1 (b) (2014) constitutes an element of the offenses, for

       even if it does, we conclude its omission did not render a fair trial impossible.

       Evans, 81 N.E.3d at 637.


[45]   Sutton stipulated to the amounts of each substance found on his person and that

       the substances were, in fact, cocaine and heroin. Thus, as the State noted in

       closing argument, “[T]he only question you’re to determine is what was

       [Sutton’s] intent.” Tr., Vol. 3 at 172. Although Sutton’s intent was clearly the

       central issue for trial, whether there was “evidence in addition to the weight of

       the drug[s],” Indiana Code section 35-48-4-1 (b) (2014), was not.


[46]   Here, the State presented numerous pieces of evidence in addition to the weight

       of the drugs. Detective Ingram testified that Sutton did not display the

       distinguishing characteristics of a drug addict and that it would be highly


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 23 of 32
       unusual, if not impossible, for an individual to be addicted to cocaine and

       heroin at the same time. Sutton also possessed the drugs in accordance with

       their profitability, a large amount of cash in accordance with the denominations

       prevalent in drug transactions, and three cell phones, two of which were cheap

       “burner phone[s]” common amongst drug dealers. Tr., Vol. 3 at 124. To the

       extent Sutton now argues that he “strongly contested these non-weight factors”

       and emphasizes the low weight of the State’s evidence, we find such arguments

       unconvincing. Indiana Code section 35-48-4-1(b) (2014) provides simply that a

       person may be convicted of such offense only if there is evidence “in addition to

       the weight of the drug.” Under a plain reading of the statute, we see no reason

       the evidence need be overwhelming. See State v. Thakar, 82 N.E.3d 257, 260

       (Ind. 2017) (noting that where a statute is unambiguous, we “begin—and end—

       our analysis” with the plain text).


[47]   Moreover, when viewed as whole, the jury instructions correctly informed the

       jury that the State was required to prove beyond a reasonable doubt that Sutton

       knowingly or intentionally possessed the drugs with the intent to deliver. Both

       instructions provide:


               1. On or about April 16, 2015,
               2. The Defendant, Otto Sutton,
               3. Knowingly or intentionally
               4. Possessed
               5. With the intent to deliver
               6. [Heroin / Cocaine], pure or adulterated,
               7. Said [heroin / cocaine] having a weight of at least 10 grams.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 24 of 32
       Appellant’s App., Vol. III at 134, 136 (emphasis added). Simply finding the

       weight of the drugs exceeded ten grams—which was stipulated by Sutton—

       would not have satisfied the tendered final jury instructions. Clearly then, with

       the intent to deliver necessitated evidence in addition to the weight of the drugs.

       Therefore, in context and viewed as whole, the jury instructions sufficiently

       informed the jury of the State’s burden of proof. Ramsey, 723 N.E.2d at 873.


[48]   We conclude that although the jury instructions should have included an

       express statement to the jury that evidence of Sutton’s guilt was required in

       addition to the weight of the drugs, because it is clear beyond a reasonable doubt

       that a rational jury would have found Sutton guilty regardless, any such error

       was harmless. Neder, 527 U.S. at 19.5


                                III. Habitual Offender Finding
[49]   Next, Sutton argues there was insufficient evidence that he was an habitual

       offender.


[50]   When reviewing a challenge to the sufficiency of the evidence, we look only to

       the evidence most favorable to the judgment and the reasonable inferences that

       can be drawn therefrom. Smith v. State, 21 N.E.3d 121, 124 (Ind. Ct. App.




       5
         Sutton also argues that because the omitted language constituted a fact that increases the penalty for the
       crime, such fact must have been submitted to the jury and proved beyond a reasonable doubt. Apprendi v.
       New Jersey, 530 U.S. 466, 490 (2000). However, Sutton raised this argument for the first time in oral
       argument and “issues are waived when raised for the first time at oral argument.” Harris v. State, 76 N.E.3d
       137, 140 (Ind. 2017).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018            Page 25 of 32
       2014). We neither reweigh the evidence nor judge the credibility of the

       witnesses. Walls v. State, 993 N.E.2d 262, 266 (Ind. Ct. App. 2013), trans.

       denied.


[51]   The habitual offender statute provides, in relevant part:


                 (b) A person convicted of murder or of a Level 1 through Level 4
                 felony is a habitual offender if the state proves beyond a
                 reasonable doubt that:


                        (1) the person has been convicted of two (2) prior
                        unrelated felonies; and


                        (2) at least one (1) of the prior unrelated felonies is not a
                        Level 6 felony or a Class D felony.


       Ind. Code § 35-50-2-8.


[52]   For the State to prove beyond a reasonable doubt that a defendant is an habitual

       offender:


                 Certified copies of judgments or commitments containing a
                 defendant’s name or a similar name may be introduced to prove
                 the commission of prior felonies. While there must be
                 supporting evidence to identify the defendant as the person
                 named in the documents, the evidence may be circumstantial. If
                 the evidence yields logical and reasonable inferences from which
                 the finder of fact may determine beyond a reasonable doubt that
                 it was a defendant who was convicted of the prior felony, then a
                 sufficient connection has been shown.


       Hernandez v. State, 716 N.E.2d 948, 953 (Ind. 1999) (citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 26 of 32
[53]   During the first phase of Sutton’s trial, the State established that Sutton was a

       5’9” black male with brown eyes and a birth date of August 10, 1984. State’s

       Exhibit 2, Exhibits at 20. Then, during the second phase of the trial, the State

       produced certified copies of prior judgments for (1) dealing cocaine or a

       narcotic drug, a Class B felony, under Cause Number 49G20-0911-FA-097171

       (Cause # 171) in 2011, State’s Exhibit 8, Exhibits at 50; and, (2) resisting law

       enforcement, a Class D felony, under Cause Number 49F09-0801-FD-013743

       (Cause # 743) in 2008. State’s Exhibit 11, Exhibits at 61. The State produced

       the following evidence:


               [Cause # 171]


                   • Charging information with a matching cause number, the
                     name “Otto Sutton a/k/a Trevis Stokes,” and the date of
                     birth of “8/10/84” (State’s Exhibit 6)


                   • Plea agreement with a matching cause number and the
                     name “Otto Sutton” (State’s Exhibit 7)


                   • Abstract of Judgment with a matching cause number and
                     the name “Otto Sutton” (State’s Exhibit 8)


               [Cause # 743]


                   • Charging information with a matching cause number, the
                     name “Otto Sutton,” and the date of birth “08/10/1984”
                     (State’s Exhibit 9)




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 27 of 32
                    • A plea agreement with the cause number “08013743,” the
                      name “Otto Sutton,” and a date of June 25, 2008 (State’s
                      Exhibit 10)


                    • Abstract of Judgment with a matching cause number, the
                      name “Otto Sutton,” and a sentencing date of July 2, 2008
                      (State’s Exhibit 11)


       Br. of Appellant at 39. Additionally, the charging information in Cause # 743

       provided the defendant was a black male. State’s Exhibit 9, Exhibits at 53.

       Sutton did not object to the admission of the State’s evidence. Still, on appeal,

       Sutton argues the State failed to prove that he was the same Otto Sutton

       identified in those documents.


[54]   Sutton first alleges there are several “problems” with the State’s evidence: (1)

       the only document with a date of birth in Cause #171 also has a “alternate

       name”; and (2) the plea agreement in Cause #743 has a different cause number.

       Id. These “problems,” however, are insignificant. Id. The “alternate name”

       simply lists an alias, or an “a/k/a,” along with “Otto Sutton,” and the alleged

       incorrect cause number reflects the correct cause number if the letters of the

       cause number are omitted as the cause number is handwritten on the

       document.6 State’s Exhibit 10, Exhibits at 59.




       6
         The cause number at issue is “49F090801FD013743” while the cause number on the plea agreement is
       “08013743” and was entered in Marion Superior Court, Criminal Division 9, the same court identified as the
       sentencing court in the matching abstract of judgment. State’s Exhibit 10-11, Exhibits at 59, 61.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018         Page 28 of 32
[55]   Next, Sutton argues the State has at best shown that the person or persons with

       the prior convictions have the same name and date of birth, citing a recent

       decision by another panel of this court in Payne v. State for the proposition that

       “a matching name and birth date, absent other identifying evidence, are not

       sufficient to prove identity.” 96 N.E.3d 606, 612 (Ind. Ct. App. 2018), trans.

       denied. In Payne, the State produced a certified record of a prior robbery

       conviction with the same name and date of birth as the defendant and argued

       that it had produced “additional evidence of Payne’s identity” in the form of

       matching signatures on the plea agreement in the robbery and the signed

       advisement of rights from the present case. Id. at 612. Because the signature

       from the plea agreement had not been authenticated as belonging to Payne, we

       held that such evidence was insufficient.


[56]   Here, however, there was additional supporting evidence to identify the person

       named in the documents as the defendant in the present case. Id. at 611.

       Additional proof of identify may consist of circumstantial evidence, and a

       sufficient connection between the documents and the defendant is made if the

       evidence yields logical and reasonable inferences from which the trier of fact

       may determine it was indeed the defendant who was convicted of the alleged

       felonies. Baxter v. State, 522 N.E.2d 362, 365 (Ind. 1988). In addition to

       evidence of Sutton’s unique name and identification as a black male with the

       date of birth of August 10, 1984, there was also testimony that Officer Ball

       recognized Sutton from, among other things, an arrest for resisting law

       enforcement. Tr., Vol. 2 at 66. Where the habitual offender phase of these


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 29 of 32
       proceedings was conducted as a bench trial and the trial court previously heard

       such testimony, we conclude there was sufficient evidence to support Sutton’s

       adjudication as an habitual offender.


                                  IV. Merging of Convictions
[57]   Finally, Sutton argues that the trial court erred by merging Count II into Count

       I, and Count IV into Count III, without vacating the formal judgments of

       conviction because this constitutes double jeopardy. We agree.


[58]   We review claims of double jeopardy violations de novo because it presents a

       question of law. Cleary v. State, 23 N.E.3d 664, 668 (Ind. 2015).


[59]   Because Count II, possession of a narcotic drug, includes all of the statutory

       elements and evidence required to prove Count I, dealing in a narcotic drug,

       and Count IV, possession of cocaine, includes all of the statutory elements

       required to prove Count III, dealing in cocaine, entry of convictions for all four

       counts violates the double jeopardy clauses of both the United States and

       Indiana Constitutions. Richardson v. State, 717 N.E.2d 32, 50 (Ind. 1999).

       Recognizing the double jeopardy implications, the trial court merged Count II

       into Count I, and Count IV into Count III.


[60]   In Kovats v. State, we held,


               If a trial court does not formally enter a judgment of conviction
               on a jury verdict of guilty, then there is no requirement that the
               trial court vacate the “conviction,” and merger is appropriate.
               However, if the trial court does enter judgment of conviction on a


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 30 of 32
               jury’s guilty verdict, then simply merging the offenses is
               insufficient and vacation of the offense is required.


       982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (citations omitted).


[61]   Here, the trial court orally entered judgment of conviction on Counts I, II, III,

       and IV, immediately after the jury returned its verdict. Tr., Vol. 3 at 199. The

       Chronological Case Summary (“CCS”) shows judgment was formally entered

       for Counts I, II, III, and IV after the jury verdict on September 19, 2017.

       Appellant’s App., Vol. II at 20-21. Then, at the sentencing hearing on

       November 27, 2017, the trial court orally “merged” Count II with Count I, and

       Count IV with Count III. Tr., Vol. 3 at 215. The CCS entry for the sentencing

       hearing, sentencing order, and abstract of judgment state “Conviction Merged”

       for Counts II and IV. Appellant’s App., Vol. II at 22, 24, 27.


[62]   Sutton argues that Kovats requires a remand for the trial court to vacate his

       convictions for Count II and Count IV, and the State concedes this case

       “should be remanded for the limited purpose of issuing a corrected abstract of

       judgment.” Br. of Appellee at 45. We agree, and we remand so that the trial

       court may formally vacate Sutton’s convictions on Count II and Count IV and

       correct the abstract of judgment accordingly.



                                               Conclusion
[63]   For the reasons discussed at length above, we conclude the pat-down search

       was a reasonable Terry frisk, the jury instructions did not rise to the level of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 31 of 32
       fundamental error, there was sufficient evidence that Sutton was an habitual

       offender, and the trial court erred when it merged the counts of possession with

       the counts of dealing without vacating the formal judgments of conviction. We

       therefore affirm in part, reverse in part, and remand.


[64]   Affirmed in part, reversed in part, and remanded.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2916 | July 16, 2018   Page 32 of 32
