MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Oct 29 2019, 10:18 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
Steven E. Ripstra                                        Curtis T. Hill, Jr.
Jasper, Indiana                                          Attorney General of Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Wayne Lawson,                                      October 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-740
        v.                                               Appeal from the Pike Circuit Court
                                                         The Honorable Jeffrey L. Biesterveld,
State of Indiana,                                        Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         63C01-1805-F4-338



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019                  Page 1 of 17
                                                Case Summary
[1]   David Wayne Lawson (“Lawson”) appeals his convictions, following a jury

      trial, for Count I, dealing in methamphetamine, as a Level 4 felony;1 Count II,

      dealing in methamphetamine, as a Level 5 felony;2 and Count III, maintaining

      a common nuisance, as a Level 6 felony.3


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



                                                    Issues
[3]   Lawson raises three issues on appeal, which we consolidate and restate as

      follows:


                 1.        Whether the trial court abused its discretion when it
                           admitted into evidence transcripts of text messages taken
                           from the cellular telephone of an alleged co-conspirator.


                 2.        Whether the State presented sufficient evidence to support
                           his convictions for dealing in methamphetamine and
                           maintaining a common nuisance.


                                 Facts and Procedural History


      1
          Ind. Code § 35-48-4-1.1(a)(1), (c).
      2
          I.C. § 35-48-4-1.1(a)(1).
      3
          I.C. § 35-45-1-5(c).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019   Page 2 of 17
[4]   During the early morning hours of May 6, 2018, Lawson was driving through

      Petersburg, Indiana. Jennifer Kostas (“Kostas”) was a passenger in the vehicle

      Lawson drove. Corporal Jared Simmons (“Officer Simmons”) of the

      Petersburg Police Department pulled Lawson’s vehicle over because his vehicle

      was missing a functioning license plate light. Upon approaching Lawson’s

      vehicle on the driver’s side and asking Lawson for his registration and

      identification, Officer Simmons noticed that Lawson exhibited high levels of

      nervousness. After Lawson exited the vehicle as instructed, Officer Simmons

      smelled raw marijuana coming from Lawson’s person. Lawson consented to

      Officer Simmons searching him, and, in doing so, Officer Simmons found what

      he recognized as a methamphetamine pipe that contained fresh

      methamphetamine residue, a marijuana pipe, and a cellophane wrapper

      containing marijuana.


[5]   Officer Simmons then handcuffed Lawson and read him the Miranda warnings.

      Officer Simmons asked Lawson if there was anything illegal in the vehicle, and

      Lawson responded that there was another methamphetamine pipe in between

      the driver’s seat and the center console. Officer Simmons then had Kostas also

      exit the vehicle, and he handcuffed her and read her the Miranda warnings.

      Officer Simmons retrieved the second methamphetamine pipe from the vehicle

      and searched the rest of the vehicle. During his search, Officer Simmons found

      under the passenger seat a zipped plastic pouch that contained a butane lighter



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019   Page 3 of 17
      and another methamphetamine pipe. Officer Simmons then searched Kostas’s

      purse and discovered a corner baggie that contained methamphetamine residue.


[6]   The State charged Lawson with two counts of dealing in methamphetamine,

      one as a Level 4 felony and the other as a Level 5 felony, and one count of

      maintaining a common nuisance, as a Level 6 felony. The State later amended

      the charges to include a habitual offender allegation4 and one count of

      conspiracy to deal in methamphetamine in amount of at least one gram, as a

      Level 4 felony.5


[7]   Officer Simmons testified at Lawson’s December 3, 2018, jury trial as to what

      Lawson said to Officer Simmons at the time of Lawson’s arrest, following the

      reading of the Miranda warnings. Officer Simmons testified that, in response to

      his questions, Lawson stated that he and Kostas had been visiting friends in the

      nearby Autumn Lane Apartments. Officer Simmons asked Lawson if he and

      Kostas had “brought meth up here to sell it,” and Lawson said he did not and

      then turned to look at Kostas. Tr. at 89. Officer Simmons asked Lawson if

      Kostas had sold methamphetamine and Lawson responded that he “believe[d]

      so.” Id. Lawson told Officer Simmons that Kostas had sold methamphetamine

      to a person in the Autumn Lane Apartments who Lawson did not know.




      4
          I.C. § 35-50-2-8.
      5
          I.C. § 35-48-4-1.1(a)(1), (c); I.C. § 35-41-5-2.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019   Page 4 of 17
      Lawson described the buyer as a “taller guy” with “dark hair,” and he stated

      that Kostas had met up with the buyer at the window to an apartment, where a

      pink light was shining. Id. at 90. Lawson stated to Officer Simmons that

      Lawson knew Kostas “was selling meth and that was the reason for [their]

      visit” to the apartment. Id. at 91. Lawson also stated to Officer Simmons that

      Lawson had “been there” a “couple of times before.” Id. Lawson told Officer

      Simmons that Lawson and Kostas had “come up here to sell drugs before to the

      same person” at the same apartments. Id. at 91-92.


[8]   Officer Simmons also testified that he had “seize[d] a phone from Ms. Kostas”

      at the time of the arrest and had “occasion to search that phone for any

      evidence of drug dealing.” Id. at 95-96. He identified State’s Exhibit 8 as seven

      pages depicting “messages between Ms. Kostas and a Chris subject.” Id. at 96.

      Officer Simmons testified that those messages were “taken off of [Kostas’s]

      phone,” id., from Facebook messenger, id. at 136, and that there was a picture

      of the “Chris subject” “associated with all of his messages,” on Kostas’s phone,

      id. at 97. When Officer Simmons clicked on the picture of the Chris subject on

      Kostas’s phone, the profile of Chris Grier (“Grier’) appeared. Officer Simmons

      recognized the person in the picture as Grier, who Officer Simmons knew at the

      time of the traffic stop. Officer Simmons further testified that he knew Grier

      was living in the same Autumn Lane Apartments that Lawson had described.

      Officer Simmons testified that the text messages in Exhibit 8 “indicate that

      [Kostas] wants money from Grier in exchange for something she’s going to go

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019   Page 5 of 17
       get,” and “indicate[], from Mr. Grier, that he wants a gram in exchange for a

       buck.” Id. at 100. State’s Exhibit 8 was then admitted into evidence over

       Lawson’s objections.


[9]    Officer Simmons further testified that “based on [his] training as an officer,” he

       believed the part of the messages in Exhibit 8 referring to two hundred dollars

       meant that Grier wanted two hundred dollars’ worth of “something.” Id. at

       109. He testified that jail staff found $180 on Kostas’s person after she was

       arrested, and Lawson had about $21 on his person. Id. at 109, 140-41. Officer

       Simmons testified that the part of the messages stating “you got another g” was

       Grier asking Kostas whether she had another “gram of meth,” id. at 110, and

       that the message from Grier stating “got a buck” meant got “one hundred

       dollars,” id. at 110-11. Officer Simmons testified that the “street price” for one

       gram of methamphetamine is one hundred dollars. Id. at 112.


[10]   On cross examination, Officer Simmons testified that the “only proof that [he

       was] able to recover regarding the amount of methamphetamine that Ms.

       Kostas allegedly took to the apartment to Mr. Grier was from her test (sic) -

       from her statement to [Officer Simmons.]” Id. at 119. The “statement” to

       which this question refers was from the State’s prior deposition of Kostas. Id.

       Lawson further asked Officer Simmons whether Kostas had told Officer

       Simmons what amount of money “she received from Mr. Grier,” and Officer

       Simmons stated, “she [Kostas] told us it was about a hundred dollars.” Id. at

       127. Kostas told Officer Simmons “she already had eighty dollars on her at that
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019   Page 6 of 17
       time.” Id. Officer Simmons testified that he had interviewed Kostas, and that

       Kostas told him she “didn’t know the exact amount” of meth she sold to Grier.

       Id. at 129. He stated that he could not say “with any reasonable certainty how

       much methamphetamine was actually sold that day,” but that Kostas told him

       Grier paid her $100 for “a gram.” Id. at 137, 139. Officer Simmons testified

       that, based “solely” on “the statement from Ms. Kostas,” he believed the drug

       deal was for “at least one gram” of methamphetamine. Id. at 137-38.


[11]   Lawson was convicted of two counts of dealing in methamphetamine, one

       count of conspiracy to deal in methamphetamine, and one count of maintaining

       a common nuisance. Lawson admitted to being a Habitual Offender. The trial

       court sentenced Lawson to twelve years for Count I, dealing in

       methamphetamine, as a Level 4 felony, and two and a half years for Count III,

       maintaining a common nuisance, as a Level 6 felony. It ordered that Counts I

       and III run concurrently. Count I was enhanced by twelve years as a habitual

       offender enhancement. The convictions for Count II, dealing in

       methamphetamine as a Level 5 felony, and Count IV, conspiracy to deal in

       methamphetamine as a Level 4 felony, were merged into Count I. This appeal

       ensued.



                                  Discussion and Decision



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019   Page 7 of 17
          Admission of Out-of-Court Statements of Alleged Co-
                             Conspirators
[12]   Lawson challenges the trial court’s ruling admitting State’s Exhibit 8 into

       evidence, over his objections. We review the admission or exclusion of

       evidence for an abuse of discretion, and we will reverse the trial court’s decision

       only when its action is clearly against the logic and effect of the facts and

       circumstances before it. E.g., Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct.

       App. 2007).


[13]   Lawson first attacks the admissibility of Exhibit 8 on the grounds that it is

       hearsay, since it allegedly contains statements of Kostas and Grier, neither of

       whom appeared at trial. And Lawson maintains that the State failed to

       establish that Exhibit 8 was a statement of a co-conspirator—and therefore not

       hearsay under Rule of Evidence 801(d)(2)(E)—because the State did not

       provide proof of the conspiracy independent of the Exhibit 8 statements

       themselves. Rule 801(d)(2)(E) provides: “A statement is not hearsay if ... [t]he

       statement is offered against a party and is ... a statement by a co-conspirator of

       a party during the course and in furtherance of the conspiracy.” In order to

       introduce such a statement into evidence, the State must lay an evidentiary

       foundation establishing by independent proof the existence of the conspiracy.

       Hightower v. State, 866 N.E.2d 356, 365 (Ind. Ct. App. 2007) (noting the

       independent proof may be circumstantial and “need not be strong”), trans.

       denied. Here, the State introduced independent proof that Lawson conspired

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019   Page 8 of 17
       with Kostas to sell methamphetamine. Prior to the admission of Exhibit 8,

       Officer Simmons testified that Lawson admitted to Officer Simmons that

       Lawson knew Kostas intended to sell methamphetamine that night and that

       Lawson drove Kostas to the Autumn Lane Apartments for that purpose.


[14]   However, even assuming the messages were not hearsay and were admissible

       under Rule of Evidence 801(d)(2)(E), Lawson argues that the court erred in

       admitting Exhibit 8 because the State failed to authenticate the document as

       required by Rule of Evidence 901. Rule 901 requires that the proponent of the

       item “produce evidence sufficient to support a finding that the item is what the

       proponent claims it is.” Although “[a]bsolute proof” of authenticity is not

       required, the proponent must at least establish a “reasonable probability that the

       evidence is what it is claimed to be and may use direct or circumstantial

       evidence to do so.” M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App. 2016),

       trans. denied. We have previously held that the authentication requirement

       applies to the substantive content of text messages generated and stored in

       cellular telephones. Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009),

       trans. denied.


[15]   Here, the State failed to authenticate Exhibit 8. Officer Simmons testified that

       State’s Exhibit 8 was seven pages depicting “messages between [Kostas] and

       [Grier].” Tr. at 96. He testified that the messages “were taken off of [Kostas’s]

       phone” which he had seized upon arresting her but which was not, itself,

       offered or admitted into evidence. Id. at 96-97. He further testified that there
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019   Page 9 of 17
       was a picture of Grier next to each message from Grier and that he recognized

       Grier. Officer Simmons testified that the messages showed that “a drug deal

       [was] in the process.” Id. at 98. However, neither Officer Simmons nor any

       other witness testified as to how the documents in Exhibit 8 were created and

       by whom or, most importantly, on what dates the messages had been created and/or

       sent and received. And none of that information is discernable from the face of

       the exhibit itself. Ex. at 10-16. Thus, the State failed to authenticate Exhibit 8

       by showing a reasonable probability that the messages in it were—as alleged—

       related to the drug deal that took place on May 6, 2018.


[16]   However, we hold that the admission of Exhibit 8 without proper

       authentication was harmless error. Before a defendant is entitled to a reversal,

       he must affirmatively show that the error of which he complains prejudiced his

       substantial rights. E.g., Vaughn v. State, 13 N.E.3d 873, 886 (Ind. Ct. App.

       2014), trans. denied.


               In evaluating whether erroneously admitted evidence was
               prejudicial, we assess its “probable impact ... upon the jury in
               light of all of the other evidence that was properly presented. If
               we are satisfied the conviction is supported by independent
               evidence of guilt[,] ... the error is harmless.” [Blount v. State, 22
               N.E.3d 559, 564 (Ind. 2014)]. Put another way, “we judge
               whether the jury’s verdict was substantially swayed. If the error
               had substantial influence, or if one is left in grave doubt, the
               conviction cannot stand[.]” Lafayette v. State, 917 N.E.2d 660,
               666–67 (Ind. 2009) (citation omitted).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019   Page 10 of 17
       Williams v. State, 43 N.E.3d 578, 583 (Ind. 2015).


[17]   Here, there is not a substantial possibility that the messages in Exhibit 8

       prejudiced the jury’s verdicts. As we discuss in more detail below, there was

       sufficient and compelling independent evidence establishing Lawson’s guilt of

       dealing in methamphetamine. And it is highly unlikely that Exhibit 8 had any

       impact on the jury’s verdict convicting Lawson of maintaining a common

       nuisance (i.e., his vehicle) because the messages: did not refer to Lawson at all,

       referred to only one drug deal, and did not indicate that any vehicle—much less

       Lawson’s particular vehicle—was or would be used in any drug deal. The

       admission of Exhibit 8 was harmless error.6


                                          Sufficiency of Evidence
                                                     Standard of Review


[18]   Lawson challenges the sufficiency of the evidence to support his convictions.

       Our standard of review of the sufficiency of the evidence is well-settled:


                When reviewing the sufficiency of the evidence needed to
                support a criminal conviction, we neither reweigh evidence nor
                judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
                (Ind. 2009). “We consider only the evidence supporting the




       6
         Lawson alleges in one sentence of his brief that the admission of Exhibit 8 “violated, among other things,
       the Sixth Amendment’s Confrontation Clause.” Appellant’s Br. At 9. Lawson has waived this argument
       because he did not raise it in the trial court, see, e.g., Plank v. Cmty. Hosp. of Ind., Inc., 981 N.E.2d 49, 53 (Ind.
       2013), or provide cogent reasoning in support of it on appeal, Ind. Appellate Rule 46(A)(8).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019                          Page 11 of 17
                judgment and any reasonable inferences that can be drawn from
                such evidence.” Id. We will affirm if there is substantial
                evidence of probative value such that a reasonable trier of fact
                could have concluded the defendant was guilty beyond a
                reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.


                                            Dealing in methamphetamine


[19]   To prove Lawson committed dealing in methamphetamine, as a Level 4 felony,

       the State was required to prove beyond a reasonable doubt that (1) Lawson, as

       an accomplice or principal, (2) knowingly or intentionally (3) delivered (4)

       methamphetamine (5) in the amount of at least one gram but less than five

       grams. I.C. § 35-41-2-4; I.C. § 35-48-4-1.1(a)(1)(A), (c)(1). There was no

       evidence produced at trial that Lawson himself sold methamphetamine to

       Grier. Rather, Lawson was charged as an accomplice 7 to Kostas. Indiana

       Code Section 35-41-2-4 provides: “A person who knowingly or intentionally

       aids, induces, or causes another person to commit an offense commits that

       offense, even if the other person: (1) has not been prosecuted for the offense; (2)

       has not been convicted of the offense; or (3) has been acquitted of the offense.”




       7
         The charging information cited the dealing statute, but not the accomplice liability statute. App. Vol. II at
       111. However, “no reference to the accomplice liability statute need be included in the charging information
       in order for a defendant to be convicted of [the underlying] crime.” Wise v. State, 719 N.E.2d 1192, 1199
       (Ind. 1999); see also Schaaf v. State, 54 N.E.3d 1041, 1043 (Ind. Ct. App. 2016) (“[A] person can be charged as
       a principal and convicted as an accomplice.”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019                   Page 12 of 17
       This statute does not establish liability as a separate crime, but merely as a

       separate basis of liability for the crime charged. E.g., Taylor v. State, 840 N.E.2d

       324, 333 (Ind. 2006).


[20]   In determining whether there is sufficient evidence to support an accomplice

       relationship, we consider: (1) presence at the scene of the crime; 8 (2)

       companionship with another at the scene of the crime; (3) failure to oppose

       commission of the crime; and (4) course of conduct before, during, and after

       occurrence of the crime. E.g., Bethel v. State, 110 N.E.3d 444, 450 (Ind. Ct. App.

       2018), trans. denied. It is not necessary that the evidence show the alleged

       accomplice personally participated in the commission of each element of the

       offense. Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). Rather, “[a] jury

       may infer complicity and participation in a crime ‘from defendant’s failure to

       oppose the crime, companionship with the one engaged therein, and a course of

       conduct before, during, and after the offense which tends to show complicity.’”

       Hauk v. State, 729 N.E.2d 994, 998 (Ind. 2000) (quoting Shane v. State, 716

       N.E.2d 391, 396 (Ind. 1999)); see also Vasquez v. State, 762 N.E.2d 92, 95 (Ind.

       2001) (“An accomplice can be held criminally liable for everything done by his

       confederates which was a probable and natural consequence of their common

       plan.” (quotation and citation omitted)). Thus, in Wood v. State, for example,



       8
          “Mere presence at the scene of a crime is insufficient to make one an accomplice,” but we consider
       presence at the scene in conjunction with the other factors. Griffin v. State, 16 N.E.3d 997, 1004 (Ind. Ct.
       App. 2014).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019                    Page 13 of 17
       there was sufficient evidence to support the defendant’s conviction for robbery,

       as an accomplice, where the defendant: admitted she knew the principal

       intended to rob someone; drove the principal to the scene of the crime; parked

       the vehicle and waited for the principal while the principal committed the

       crime; and then drove away with the principal until stopped by police. 963

       N.E.2d 632, 636 (Ind. Ct. App. 2012).


[21]   Here, the State presented sufficient evidence that Lawson knowingly aided

       Kostas in delivering one gram of methamphetamine. Lawson admitted he

       knew Kostas intended to sell methamphetamine to Grier; Lawson admitted that

       he drove Kostas to the scene of the crime, i.e., Autumn Lane Apartments, for

       the purpose of her selling methamphetamine to Grier; Lawson waited for

       Kostas while she conducted the drug sale; and Lawson drove Kostas away from

       the scene of the crime until stopped by police. In addition, Officer Simmons

       testified that one gram of methamphetamine sells for $100 and that Kostas told

       him9 that Grier paid her $100 for the gram of methamphetamine she sold him.

       From those facts, the jury could reasonably infer that Kostas sold Grier one

       gram of methamphetamine and Lawson knowingly aided her in doing so.

       There was sufficient evidence to support Lawson’s conviction for dealing in

       methamphetamine, as a Level 4 felony.




       9
         Lawson did not object to Officer Simmons’s testimony about what Kostas told him; in fact, Lawson’s own
       attorney elicited testimony about Kostas’s out of court statements to Officer Simmons.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019             Page 14 of 17
[22]   The trial court entered a judgment of conviction on all four counts against

       Lawson, but it merged the dealing in methamphetamine as a Level 5 felony

       (Count II) and the conspiracy to deal in methamphetamine (Count IV) with the

       conviction for dealing in methamphetamine as a Level 4 felony (Count I). App.

       Vol. III at 49 (Abstract of Judgment). Presumably, the trial court did so due to

       double jeopardy concerns.10 However, a double jeopardy violation “cannot be

       remedied by the practical effect of concurrent sentences or by merger after

       conviction has been entered.”11 Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct.

       App. 2008) (quotations and citation omitted), trans. denied. Therefore, we

       remand this cause to the trial court with an order to vacate the entries of

       judgment of convictions for dealing in methamphetamine as a Level 5 felony

       and conspiracy to deal in methamphetamine.

                                        Maintaining a Common Nuisance




       10
          “Double jeopardy rules preclude a conviction for conspiracy and the underlying offense only when the
       same evidence is used to prove both the overt act committed in furtherance of the conspiracy and the
       commission of the underlying crime.” Coleman v. State, 952 N.E.2d 377, 382 (Ind. Ct. App. 2011) (citing
       Johnson v. State, 749 N.E.2d 1103, 1108 (Ind. 2001)). In this case, the evidence that proved Lawson was
       guilty of dealing a gram of methamphetamine as a Level 4 felony as an accomplice to Kostas is the same
       evidence that would be used to show (1) Lawson dealt methamphetamine as a Level 5 felony (i.e., dealt less
       than one gram) as an accomplice to Kostas, and (2) the overt act in furtherance of a conspiracy. That
       evidence is Lawson’s admission that he knew Kostas intended to sell methamphetamine and drove Kostas to
       Grier’s apartment on May 6, 2018, for that purpose.
       11
          Although Lawson does not raise the double jeopardy issue on appeal, we raise it sua sponte as “questions
       of double jeopardy implicate fundamental rights.” Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App. 2015),
       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019                Page 15 of 17
[23]   To prove Lawson committed maintaining a common nuisance as a Level 6

       felony, the State was required to prove beyond a reasonable doubt that Lawson:

       (1) knowingly or intentionally (2) maintained (3) a vehicle (4) to unlawfully sell

       or deliver a controlled substance. I.C. § 35-45-1-5(a)(3), (c). The State

       presented evidence that Lawson knowingly used his vehicle to drive Kostas to

       Grier’s apartment so that Kostas could sell Grier methamphetamine. However,

       Lawson contends the State failed to meet its burden of proof because it

       provided no evidence that he used his vehicle more than one time to assist

       Kostas in dealing in methamphetamine. We agree.


[24]   As we explained in Leatherman v. State, 101 N.E.3d 879, 883 (Ind. Ct. App.

       2018), as corrected, “to prove the nuisance was a ‘common’ nuisance, the State

       must provide evidence that the vehicle was used on more than one occasion for

       the unlawful delivery of a controlled substance.” We reached this conclusion

       based on the legislative and common law history of the crime of maintaining a

       common nuisance. Id. at 884. Here, although the State provided evidence that

       Lawson admitted that he and Kostas had come to the same apartment complex

       on prior occasions to sell methamphetamine to the same person, there was no

       evidence that Lawson used any vehicle—much less the specific vehicle he drove

       on May 6, 2018—to do so.12 Therefore, the State failed to provide sufficient




       12
         Thus, the State is incorrect when it contends Lawson “admitted to driving there on prior occasions.”
       Appellee Br. at 15. See Tr. at 91.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019               Page 16 of 17
       evidence to support Lawson’s conviction for maintaining a common nuisance,

       and we must reverse that conviction. Id.



                                               Conclusion
[25]   Although the State failed to properly authenticate Exhibit 8, which it alleged

       contained copies of text messages between Kostas and Grier related to the May

       6, 2018, drug deal, the admission of that exhibit was harmless error; the exhibit

       was irrelevant to—and therefore not relied upon to support—the common

       nuisance conviction, and there was sufficient evidence aside from the exhibit to

       support Lawson’s dealing conviction. Furthermore, there was sufficient

       evidence to support Lawson’s conviction, under the accomplice liability statute,

       of dealing in methamphetamine as a Level 4 felony. However, the trial court

       failed to remedy any double jeopardy concerns by merging Counts II (dealing in

       methamphetamine as a Level 5 felony) and IV (conspiracy to deal) as opposed

       to vacating those convictions. And there was insufficient evidence to support

       Lawson’s conviction for maintaining a common nuisance, Count III.


[26]   We affirm in part, reverse in part, and remand with instructions to vacate the

       convictions in Counts II, III, and IV.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-740 | October 29, 2019   Page 17 of 17
