MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Oct 21 2015, 7:48 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Gregory F. Zoeller
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eric D. Lacy,                                            October 21, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A05-1412-CR-590
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1310-FB-28



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015       Page 1 of 25
[1]   Eric D. Lacy was convicted after a jury trial of possession of

      methamphetamine1 as a Class B felony, auto theft2 as a Class D felony, illegal

      drug lab3 as a Class C felony, possession of a schedule IV controlled substance 4

      as a Class C felony, possession of a syringe 5 as a Class D felony, possession of

      paraphernalia6 as a Class A misdemeanor, conspiracy to commit burglary 7 as a

      Class B felony, conspiracy to commit theft8 as a Class D felony, burglary9 as a

      Class C felony, and two counts of theft,10 each as a Class D felony, and was

      adjudicated a habitual offender.11 He appeals raising the following restated

      issues for our review:

                 I. Whether the trial court abused its discretion in admitting
                 evidence discovered in violation of the Fourth Amendment to the




      1
        See Ind. Code § 35-48-4-6.1. We note that, effective July 1, 2014, a new version of these criminal statutes
      was enacted. Because Lacy committed his crimes prior to July 1, 2014, we will apply the statutes in effect at
      the time he committed his crimes.
      2
          See Ind. Code § 35-43-4-2.5.
      3
          See Ind. Code § 35-48-4-14.5.
      4
          See Ind. Code § 35-48-4-7.
      5
          See Ind. Code § 16-42-19-18.
      6
          See Ind. Code § 35-48-4-8.3.
      7
          See Ind. Code §§ 35-41-5-2, 35-43-2-1.
      8
          See Ind. Code §§ 35-41-5-2, 35-43-4-2.
      9
          See Ind. Code § 35-43-2-1.
      10
           See Ind. Code § 35-43-4-2.
      11
           See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015            Page 2 of 25
              United States Constitution and Article 1, section 11 of the
              Indiana Constitution;


              II. Whether the trial court abused its discretion when it denied
              Lacy’s motion to sever the charges for trial;


              III. Whether sufficient evidence was presented to support Lacy’s
              conviction for possession of a syringe; and


              IV. Whether the trial court erred in allowing the State to amend
              the habitual offender charging information.


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


                                 Facts and Procedural History
[3]   On October 7, 2013, Lafayette Police Department Officer John Wells (“Officer

      Wells”) responded to a report of an auto theft at St. Elizabeth Hospital in

      Lafayette, Indiana. Officer Wells spoke with Nancy Billue (“Billue”), who was

      visiting her fiancé at the hospital and had driven his red Ford Focus and parked

      it in the hospital parking garage. Billue had fallen asleep in the visiting area,

      and when she woke up, she realized that her jacket and the car keys had been

      taken. Billue went to the parking garage and discovered that the Ford Focus

      had been stolen. After speaking with Billue, Officer Wells spoke with the

      hospital security staff, who reviewed the video surveillance footage showing

      two individuals, later identified as Lacy and Leslie Carr (“Carr”), entering the

      hospital and checking the clothing of people who were sleeping in the hospital’s

      common areas. With the assistance of hospital security, Officer Wells


      Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 3 of 25
      recovered two bicycles that had been abandoned in the bushes near one of the

      hospital’s entrances. Officer Wells entered information about the Ford Focus

      into the computer databases as a stolen vehicle.


[4]   A few days later, Lacy came into contact with Brian Williamson

      (“Williamson”), whom Lacy had met when both men were incarcerated in the

      Fountain County Jail. Lacy asked if he and Carr could stay in Williamson’s

      apartment for a couple of days. The apartment was located at 1723 Greenbush

      Street in Lafayette and was within 1,000 feet of St. Lawrence School, Linwood

      Elementary School, and Linwood Park. Williamson rented the apartment from

      ERE Lafayette, LLC (“ERE”) under a lease that prohibited him from allowing

      other people to occupy the apartment or altering the premises. State’s Ex. 39.

      Williamson had moved out of the apartment and told Lacy that he and Carr

      could stay at the apartment for a couple of days.


[5]   After allowing them to stay at his apartment, Williamson noticed that Lacy and

      Carr were moving all of their property into the apartment and that they had

      changed the locks on the apartment. At that point, Williamson wanted them to

      leave, but did not know how to get them out of the apartment because they

      appeared “dead set on them not leaving.” Tr. at 225. Although Williamson

      was no longer living in the apartment primarily, he continued to keep some

      personal property there, including a moped, a television, a dresser, and some

      tools. Williamson also visited the apartment while Lacy and Carr were living

      there to smoke methamphetamine. Williamson observed Lacy and Carr

      driving a red Ford Focus and rode with Lacy occasionally.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 4 of 25
[6]   Both Lacy and Carr were methamphetamine users and manufacturers. They

      used the Ford Focus to drive to stores to obtain the ingredients and supplies

      needed to manufacture methamphetamine, and they also drove the car to rural

      locations in Tippecanoe County to manufacture methamphetamine outdoors.

      Lacy and Carr needed money to buy methamphetamine or the ingredients and

      supplies necessary to manufacture it.


[7]   In the beginning of October, Carr contacted Jason Martin (“Martin”), with

      whom she had previously lived for several years in his home on Stair Road in

      Tippecanoe County. Although they had separated in 2007, Martin still had the

      same employment and work schedule as when he lived with Carr. On October

      10, 2013, Martin returned home from work and found his shed had been broken

      into by cutting the lock Martin kept on the door. Several tools were stolen from

      the shed, including a router, router bits, a jigsaw, and a circular saw; a

      generator was also stolen from the shed. Martin contacted the Tippecanoe

      County Sheriff’s Department, and a deputy came to take a report of the

      burglary.


[8]   On October 15, 2013, Martin returned home from work and found his home

      had been broken into by shoving the door with such force that the door frame

      was dislodged. The home was ransacked inside, and many items were stolen,

      including two guitars, amplifiers, a television, two computers, and jewelry.

      Martin noticed that some photographs had been pulled out of a cabinet,

      particularly photographs of a cat that had been purchased when he and Carr

      were living together. Martin reported this burglary to the Sheriff’s Department,

      Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 5 of 25
       and based on the photographs, he told the police that he suspected Carr of being

       involved in the burglary.


[9]    On the morning of October 18, 2013, Lafayette Police Department Officer

       Thomas Davidson (“Officer Davidson”) was on routine patrol when he

       received a dispatch of an anonymous report that Lacy and Carr were driving a

       stolen red Ford Focus in the area of 18th Avenue and Greenbush Street in

       Lafayette. Officer Davidson and several other officers went to the location.

       There, Officer Davidson saw a female in a red Ford Focus at 1723 Greenbush

       Street. Officer Davidson observed that the female’s appearance matched the

       description of Carr in the computer system. Carr had parked the Ford Focus

       and turned off the motor. Officer Davidson approached the car and asked Carr

       for her name. After Carr identified herself by name and date of birth, Officer

       Davidson had her step out of the car. When she did so, Officer Davidson

       noticed Carr had a glass pipe between her legs. Officer Davidson then

       performed a pat down on Carr and handcuffed her. He also took the keys in

       Carr’s possession.


[10]   Although the license plate number listed for the Ford Focus did not match the

       plate number on the car, the vehicle identification number matched that of the

       Ford Focus stolen from Billue on October 7. Officer Davidson observed that

       the car was filled with several items including a television and several guitars.

       Officer Thomas Bordenet (“Officer Bordenet”) and Officer Stephen Pierce

       (“Officer Pierce”) of the Lafayette Police Department also arrived at the scene

       and determined that the vehicle registration for the car was registered to Billue’s

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 6 of 25
       fiancé, Richard Snyder. Carr told the officers that she and Lacy lived in

       Apartment 1 at 1723 Greenbush Street and that Lacy was asleep inside the

       apartment. Officer Pierce knocked on the door of the apartment, but there was

       no answer.


[11]   About an hour and a half after the police encountered Carr in the Ford Focus, a

       neighbor called Karrie Moore (“Moore”), the property manager for ERE, and

       informed her that the police were at the Greenbush Street apartments. Moore

       took the master keys to the apartments and drove over to the address. When

       she arrived, she saw the officers standing near the Ford Focus behind the

       apartment. Moore approached the officers, introduced herself as the property

       manager, and informed the officers that Williamson was the tenant of

       Apartment 1 and not Lacy and Carr. The officers had Moore look at Carr to

       see if Moore could recognize her as the tenant, but Moore could not. Moore

       called the owner of the building, and he told Moore that he wanted Lacy and

       Carr escorted out of the apartment as they were not on the lease. Moore told

       Officer Pierce that Carr’s key to the apartment should be turned over to Moore

       since Carr was not on the lease, and the officer retrieved the key and gave it to

       Moore.


[12]   Moore asked the officers what she could do to remove Lacy and Carr from the

       apartment. They told her they could not enter the apartment without a

       warrant, but that, as the property manager, she could enter the apartment.

       Moore, accompanied by Officers Davidson, Bordenet, and Pierce, went to the

       apartment’s door and knocked and shouted “management.” Tr. at 248. She

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 7 of 25
       tried to enter with the master key, but it did not work, so she tried the key she

       had received from Officer Pierce that had been taken from Carr. Moore was

       able to unlock the door with this key, and after opening the door, she took one

       or two steps into the apartment and shouted, “management.” Id. The officers

       stayed outside on the porch and did not enter the apartment. Moore heard

       someone moving around who said that he would be there in a minute. Moore

       stepped back outside the apartment at that time.


[13]   Lacy came to the door and exited the apartment. Williamson was called to the

       apartment and arrived shortly thereafter. Officer Bordenet presented

       Williamson with a consent to search form and requested permission to search

       the apartment. Williamson signed the form and gave his consent to search the

       apartment. Lacy was also presented with a consent to search form, which he

       also signed and gave his consent to search the apartment. Inside the apartment,

       officers found lithium batteries, a digital scale, coffee filters, organic solvents,

       glass mason jars, and lighter fluid, which are all used in the manufacture of

       methamphetamine. They also found a pill grinder, drain cleaner containing lye

       or sodium hydroxide, more lye and sulfuric acid, cold packs containing

       ammonium nitrite, and plastic tubing consistent with use in an HCL generator,

       all of which are also used in the manufacture of methamphetamine. After

       conducting a search of the Ford Focus, the officers found, inside the car, a

       respirator and lithium batteries.


[14]   The State initially charged Lacy with Count I, Class B felony possession of

       methamphetamine and Count II, Class D felony auto theft. The State later

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 8 of 25
       added Count III, Class C felony illegal drug lab, Count IV, Class C felony

       possession of a schedule IV controlled substance, Count V, Class D felony

       possession of a syringe, Count VI, Class A misdemeanor possession of

       paraphernalia, Count VII, Class B felony conspiracy to commit burglary, Count

       VIII, Class D felony conspiracy to commit theft, Count IX, Class C felony

       burglary, Count X, Class D felony theft, Count XI, Class B felony burglary, and

       Count XII, Class D felony theft. The State later filed Count XIII, alleging Lacy

       to be a habitual offender.


[15]   The State amended the habitual offender count on two separate occasions.

       Lacy filed a motion to suppress and a request for severance of the offenses, and

       the trial court denied both motions. A jury found Lacy guilty of all the charges

       except for burglary as a Class B felony. Lacy waived his right to a jury trial on

       the habitual offender allegations, and the trial court found him to be a habitual

       offender. The trial court imposed twenty-three years on the underlying offenses

       and enhanced his sentence for the Class B felony conspiracy to commit burglary

       being by ten years for the habitual offender finding, resulting in an aggregate

       sentence of thirty-three years, of which twenty-eight were ordered served in the

       Department of Correction, two years on community corrections, and three

       years suspended to probation. Lacy now appeals.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 9 of 25
                                      Discussion and Decision

                                     I. Admission of Evidence
[16]   Although Lacy originally challenged the admission of the evidence through a

       pre-trial motion to suppress, he appeals following a completed jury trial and

       thus challenges the admission of such evidence at trial. The admission or

       exclusion of evidence is entrusted to the discretion of the trial court. Collins v.

       State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (citing Farris v. State, 818 N.E.2d

       63, 67 (Ind. Ct. App. 2004), trans. denied). We will reverse a trial court’s

       decision only for an abuse of discretion. Id. We will consider the conflicting

       evidence most favorable to the trial court’s ruling and any uncontested evidence

       favorable to the defendant. Id. (citing Taylor v. State, 891 N.E.2d 155, 158 (Ind.

       Ct. App. 2008), trans. denied, cert. denied 555 U.S. 1142 (2009)). An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before the court or it misinterprets the law.

       Id.


[17]   Lacy argues that the trial court abused its discretion when it admitted evidence

       found inside the apartment without a warrant. He contends that the evidence

       was discovered in violation of the Fourth Amendment because his consent to

       search the apartment was not validly obtained. Lacy specifically asserts that,

       when Moore entered into the apartment, she was acting as an agent of the

       police and this illegal entry invalidated his consent. Lacy also claims that the

       evidence was found in violation of Article 1, section 11 of the Indiana

       Constitution because the actions of the police sending in an agent to do their
       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 10 of 25
       business imposed an unreasonable degree of intrusion. This, when balanced

       against the suspicion of the police that Lacy was involved in an auto theft and

       the insufficiently-demonstrated law enforcement needs when a warrant could

       have been sought, show that the actions of the police were unreasonable under

       the Indiana Constitution.


[18]   The Fourth Amendment to the United States Constitution protects an

       individual’s privacy and possessory interests by prohibiting unreasonable

       searches and seizures. Sugg v. State, 991 N.E.2d 601, 607 (Ind. Ct. App. 2013)

       (citing Washington v. State, 922 N.E.2d 109, 111 (Ind. Ct. App. 2010)), trans.

       denied. Generally, a search warrant is a prerequisite to a constitutionally proper

       search and seizure. Id. When a search is conducted without a warrant, the

       State has the burden of proving that an exception to the warrant requirement

       existed at the time of the search. Id. The propriety of a warrantless search is

       subject to de novo review. Montgomery v. State, 904 N.E.2d 374, 378 (Ind. Ct.

       App. 2009) (citing Engram v. State, 893 N.E.2d 744, 748 (Ind. Ct. App. 2008),

       trans. denied), trans. denied.


[19]   One recognized exception to the warrant requirement is a valid consent to

       search. Bulthuis v. State, 17 N.E.3d 378, 383 (Ind. Ct. App. 2014), trans. denied.

       “When an individual gives the State permission to search either his person or

       property, the governmental intrusion is presumably reasonable.” Id. When

       relying upon consent to justify a warrantless search, the State bears the burden

       of proving that the consent was freely and voluntarily given. Id. The

       voluntariness of the consent to search is to be determined by considering the

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 11 of 25
       totality of the circumstances. Id. A consent to search is valid except where it is

       procured by fraud, duress, fear, intimidation, or where it is merely a submission

       to the supremacy of the law. Crocker v. State, 989 N.E.2d 812, 820 (Ind. Ct.

       App. 2013), trans. denied.


               The “totality of the circumstances” from which the voluntariness
               of a [defendant]’s consent is to be determined includes, but is not
               limited to, the following considerations: (1) whether the
               defendant was advised of his Miranda rights prior to the request
               to search; (2) the defendant’s degree of education and
               intelligence; (3) whether the defendant was advised of his right
               not to consent; (4) whether the detainee has previous encounters
               with law enforcement; (5) whether the officer made any express
               or implied claims of authority to search without consent; (6)
               whether the officer was engaged in any illegal action prior to the
               request; (7) whether the defendant was cooperative previously;
               and (8) whether the officer was deceptive as to his true identity or
               the purpose of the search.


[20]   Id. at 820-21. “The determination of whether consent in this context was

       voluntary is a question of fact, and a reviewing court is ill-equipped to make

       factual determinations, especially where the evidence is conflicting.” Bulthuis,

       17 N.E.3d at 383.


[21]   In the present case, after Lacy exited the apartment, he was provided with a

       written consent to search form, which was read to him by one of the officers.

       The form advised Lacy that he had a Constitutional right: (1) not to have a

       search conducted of the premises and vehicles under his control; (2) to refuse to

       consent to such a search; (3) to have an attorney appointed for him if he could

       not afford one; and (4) to consult with an attorney before deciding whether to
       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 12 of 25
       consent to the search. State’s Ex. 28. After being read the consent form, Lacy

       consented to a search of the apartment. Tr. at 261-62. At the time that Lacy

       signed the consent form, there were several officers present in uniform and at

       least one detective in plain clothes, and the officers were not deceptive as to

       their identity or the purpose of the search. The reading and signing of the

       consent form occurred on the front porch of the apartment in the early

       afternoon at around 1:30 p.m. When the officers spoke to Lacy, they did not

       make any express or implied claim of authority to search without Lacy’s

       consent. Nothing in the record suggested that Lacy was unable to understand

       the consent form, and the trial court was aware that Lacy had multiple prior

       encounters with law enforcement as he was facing allegations of being a

       habitual offender. We conclude that, based on the totality of the circumstances,

       the trial court did not abuse its discretion in determining that Lacy voluntarily

       consented to the search of the apartment.


[22]   Further, Lacy alleges that, when Moore entered the apartment, her actions

       constituted an illegal police entry. We disagree. “Two ‘critical factors’ in the

       ‘instrument or agent’ analysis are (1) whether the government knew of and

       acquiesced in the intrusive conduct, and (2) whether the private party’s purpose

       in conducting the search was to assist law enforcement agents or to further its

       own ends.” Sweet v. State, 10 N.E.3d 10, 14 (Ind. Ct. App. 2014) (citing Bone v.

       State, 771 N.E.2d 710, 714 (Ind. Ct. App. 2002)).


[23]   Here, Moore’s objective in entering the apartment was to fulfill her employer’s

       request to escort Lacy out of the apartment because he was a squatter and not a

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 13 of 25
       signatory on the lease. Moore asked the officers what she could do to remove

       Lacy and Carr from the apartment, and they informed her they could not enter

       the apartment without a warrant, but that, as the property manager, she could

       enter the apartment. Moore then entered the apartment to obey her employer’s

       wishes, not to assist the police. Additionally, the police did not hand Carr’s key

       to Moore unprompted to allow her entry to assist them. Moore had already

       previously told Officer Pierce that Carr’s key to the apartment should be turned

       over to Moore since Carr was not on the lease, and the police were complying

       with that request. Although the police knew and acquiesced in Moore’s entry

       into the apartment, the evidence failed to show that her purpose in entering the

       apartment was to assist law enforcement in their endeavors. Moore’s entry into

       the apartment did not invalidate Lacy’s consent to search the apartment. The

       trial court did not abuse its discretion in overruling Lacy’s objection to the

       admission of the evidence based upon the Fourth Amendment.


[24]   Lacy also argues that the trial court abused its discretion in admitting the

       evidence because the officers’ actions violated the Indiana Constitution. Article

       I, Section 11 of the Indiana Constitution provides that “[t]he right of the people

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

       search or seizure, shall not be violated . . . .” Although virtually identical to the

       wording of the search and seizure provision in the federal constitution,

       Indiana’s search and seizure clause is independently interpreted and applied.

       Danner v. State, 931 N.E.2d 421, 431 (Ind. Ct. App. 2010), trans. denied. Under

       the Indiana Constitution, the legality of a governmental search turns on an


       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 14 of 25
       evaluation of the reasonableness of the police conduct under the totality of the

       circumstances. Id. (citing Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005)).

       The burden is on the State to show that under the totality of the circumstances,

       the intrusion was reasonable. Id. (citing State v. Bulington, 802 N.E.2d 435, 438

       (Ind. 2004)). Generally, the reasonableness of a search or seizure under the

       Indiana Constitution turns on the balance of: (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. Id. (citing Litchfield v.

       State, 824 N.E.2d 356, 361 (Ind. 2005)).


[25]   Lacy’s argues that the police violated the Indiana Constitution by “massing” on

       the porch of the apartment and, “sending in an agent of the State to conduct

       their business,” which tainted his consent. Appellant’s Br. at 16. However, as

       we have previously discussed, Moore was not acting as an agent of the State

       when she entered the apartment; she was acting on the request of her employer

       to remove Lacy from the apartment. Therefore, Moore’s entry into the

       apartment did not constitute an illegal entry that tainted Lacy’s later valid

       consent to search. Searches do not violate the Indiana Constitution if voluntary

       consent to search is given. Harper v. State, 963 N.E.2d 653, 658 (Ind. Ct. App.

       2012), clarified on reh’g, 968 N.E.2d 843 (Ind. Ct. App. 2012), trans. denied. The

       trial court did not abuse its discretion in overruling Lacy’s objection to the

       admission of the evidence based upon Article 1, section 11 of the Indiana

       Constitution.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 15 of 25
                                     II. Severance of Offenses
[26]   Lacy contends that the trial court abused its discretion when it denied his

       motion to sever the offenses for trial because he claims the offenses did not

       constitute a single scheme or plan and could not be joined. Indiana Code

       section 35-34-1-9(a) is the basis for joining these offenses and provides:

               Two (2) or more offenses may be joined in the same indictment
               or information, with each offense stated in a separate count,
               when the offenses:


               (1) are of the same or similar character, even if not part of a
               single scheme or plan; or


               (2) are based on the same conduct or on a series of acts
               connected together or constituting parts of a single scheme or
               plan.


       However, Indiana Code section 35-34-1-11(a) provides for a right to severance

       of offenses that are joined solely on the ground that they are of the same or

       similar character:

               Whenever two (2) or more offenses have been joined for trial in
               the same indictment or information solely on the ground that
               they are of the same or similar character, the defendant shall
               have a right to a severance of the offenses. In all other cases the
               court, upon motion of the defendant or the prosecutor, shall
               grant a severance of offenses whenever the court determines that
               severance is appropriate to promote a fair determination of the
               defendant’s guilt or innocence of each offense considering:


               (1) the number of offenses charged;

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 16 of 25
               (2) the complexity of the evidence to be offered; and


               (3) whether the trier of fact will be able to distinguish the
               evidence and apply the law intelligently as to each offense.


       “Accordingly, severance is required as a matter of right . . . only when the

       offenses are joined solely because they are of the same or similar character.”

       Heinzman v. State, 895 N.E.2d 716, 720 (Ind. Ct. App. 2008), trans. denied.

       Where the offenses have been joined because the defendant’s underlying acts

       are connected together or constitute parts of a single scheme or plan, we review

       the trial court’s decision on severance for an abuse of discretion. Pierce v. State,

       29 N.E.3d 1258, 1264 (Ind. 2015).


[27]   Lacy does not argue that he was entitled to severance as a matter of right on the

       basis that the charged offenses were joined together solely on the ground that

       they were of the same of similar character, and the issue is whether the charges

       were properly joined under Indiana Code section 35-34-1-9(a)(2) because they

       were based on the same conduct or on a series of acts connected together or

       constituting parts of a single scheme or plan. “To determine whether offenses

       warrant joinder under subsection 9(a)(2), we ask whether the operative facts

       establish a pattern of activity beyond mere satisfaction of the statutory

       elements.” Pierce, 29 N.E.3d at 1266.


[28]   Here, the evidence showed that Lacy and Carr were methamphetamine users

       and manufacturers, who stole a car, and used that car to further their habit and

       to manufacture the drug. They drove the car to obtain the ingredients and

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 17 of 25
       supplies necessary to make methamphetamine and to rural locations in

       Tippecanoe County to manufacture the drug. They also used the car to commit

       two burglaries at Martin’s residence to steal items that they could sell to obtain

       money to make and buy more methamphetamine. Additionally, when Lacy

       and Carr were arrested, ingredients and supplies to manufacture

       methamphetamine and the drug itself were found in the car and the apartment

       where they were living. The common motive of making and buying

       methamphetamine and the continual use of the stolen vehicle to achieve this

       motive connected the crimes together and constituted a single scheme. The fact

       that Lacy’s crimes were committed with Carr as a co-defendant is an additional

       fact linking the crimes. We conclude that Lacy was not entitled to severance as

       a matter of right because his crimes were properly joined because they were

       based on a series of acts connected together or constituting parts of a single

       scheme or plan.


[29]   Lacy contends that the trial court abused its discretion when it denied his

       motion to sever because severance was necessary to promote a fair

       determination of his guilt or innocence for each offense. In looking at the

       factors set out in Indiana Code section 35-34-1-11(a), we note that there were

       twelve offenses charged in this case. However, the evidence to be offered at

       trial was not complex and consisted of the testimony of the victims of the auto

       theft and burglaries, surveillance footage of the hospital showing Lacy and Carr

       checking the belongings of people, testimony of the actions and behaviors of

       Lacy and Carr near the time of the crimes, and the identification of items found


       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 18 of 25
       in the stolen car and the apartment where they were staying, including items

       stolen from Martin and items used in the manufacture and use of

       methamphetamine. Although Lacy was charged with several offenses, the jury

       was able to distinguish the evidence and apply the law to each offense. Indeed,

       the jury acquitted him of the Class B felony burglary charge. We do not find

       that the trial court abused its discretion when it denied Lacy’s motion to sever

       his offenses for trial.


                                   III. Possession of a Syringe
[30]   Lacy also argues that insufficient evidence was presented to support his

       conviction for Class D felony possession of a syringe under Indiana Code

       section 16-42-19-18. He contends that the statute prohibits the possession of a

       hypodermic needle or syringe with the intent to violate the Legend Drug Act

       and that there was no evidence presented that he intended to violate the Legend

       Drug Act in his possession of the syringe. Lacy asserts that the statute pertains

       only to legend drugs and not to controlled substances and methamphetamine in

       particular.


[31]   The deferential standard of review for sufficiency claims is well settled. This

       court will neither reweigh the evidence nor assess the credibility of witnesses.

       Tooley v. State, 911 N.E.2d 721, 724 (Ind. Ct. App. 2009), trans. denied; Elisea v.

       State, 777 N.E.2d 46, 48 (Ind. Ct. App. 2002). Rather, we will consider only

       the evidence and reasonable inferences most favorable to the trial court’s ruling.

       Elisea, 777 N.E.2d at 48. We will affirm unless no reasonable fact-finder could


       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 19 of 25
       find the elements of the crime proven beyond a reasonable doubt. Tooley, 911

       N.E.2d at 724-25. Thus, if there is sufficient evidence of probative value to

       support the conclusion of the trier of fact, then the verdict will not be disturbed.

       Trimble v. State, 848 N.E.2d 278, 279 (Ind. 2006).


[32]   Under Indiana Code section 16-42-19-18, which is entitled “legend drug

       injection devices,” “[a] person may not possess or have under control with

       intent to violate this chapter a hypodermic syringe or needle or an instrument

       adapted for the use of a legend drug by injection in a human being.” In order to

       be convicted under this statute, a defendant must possess a syringe with the

       intent to violate chapter 19, the Legend Drug Act, which is the chapter in which

       Indiana Code section 16-42-19-18 is included. Therefore, the requisite intent to

       be convicted under the statute is not expressed as the intent to inject any drug,

       but to violate the Act itself.


[33]   In Bookwalter v. State, 22 N.E.3d 735 (Ind. Ct. App. 2014), trans. denied, a panel

       of this court construed this statute to determine whether possessing a syringe

       with the intent to inject heroin satisfied the intent element of Indiana Code

       section 16-42-19-18. Id. at 740. In that case, the defendant was found to

       possess a syringe and admitted that he intended to use it to inject heroin, but he

       argued that heroin was not a legend drug and that there was insufficient

       evidence to show he possessed the syringe with the intent to violate the Legend

       Drug Act. Id. at 739. This court found that the statute was ambiguous as to

       whether possession of a syringe with the intent to inject “any substance that is

       not also a legend drug, insulin, or anabolic steroid” was a criminal act under

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 20 of 25
       Indiana Code section 16-42-19-18.12 Id. at 741. Due to this ambiguity, this

       court applied the rule of lenity and construed the statute in favor of the

       defendant, concluding that intent to inject heroin was not covered by the

       Legend Drug Act’s definition of the offense of possession of a syringe. Id.


[34]   Applying this reasoning to the present case, we conclude that the evidence did

       not support Lacy’s conviction for possession of a syringe. The only evidence

       presented regarding the use of drugs with the syringe was associated with

       methamphetamine. Methamphetamine is a schedule II controlled substance.

       Ind. Code § 35-48-2-6(d). A legend drug is defined as a drug listed in the

       “Prescription Drug Product List” as published and revised in “United Stated

       Department of Health and Human Services Approved Drug Products with

       Therapeutic Equivalence Evaluations” and its supplement. Ind. Code § 16-18-

       2-199. No evidence was presented that methamphetamine was a legend drug or

       that Lacy possessed the syringe with the intent to use a legend drug. We,

       therefore, hold that the evidence did not establish that Lacy possessed a syringe

       with the intent to violate the Legend Drug Act, and his conviction for

       possession of a syringe as a Class D felony must be reversed. Given that Lacy’s

       sentence for his possession of a syringe conviction was ordered to be served




       12
          We note that this ambiguity has been remedied by a change in the statutory language. Effective July 1,
       2015, Indiana Code section 16-42-19-18 was amended and now states, “A person may not possess with intent
       to: (1) violate this chapter; or (2) commit an offense described in IC 35-48-4; a hypodermic syringe or needle
       or an instrument adapted for the use of a controlled substance or legend drug by injection in a human being.”
       Ind. Code § 16-42-19-18(a). Indiana Code chapter 35-48-4 is entitled “Offenses Relating to Controlled
       Substances.” The statute is, therefore, no longer ambiguous as to its application to the possession of a
       syringe with the intent to inject a controlled substance.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015          Page 21 of 25
       concurrent with his six-year sentence for illegal drug lab and his one-year

       sentence for possession of paraphernalia, our decision to reverse his conviction

       does not affect his aggregate sentence. See Appellant’s App. at 27-28.


                        IV. Amendment of Charging Information
[35]   Lacy asserts that the trial court erred in allowing the State to amend the

       habitual offender information on the day of the trial to reinstate the habitual

       offender count to its original form. He argues that the State did not show good

       cause for the late amendment, and the trial court abused its discretion in

       allowing it. Lacy further contends that he was prejudiced by the late

       amendment of the habitual offender information because his counsel “had to

       scramble at the last minute to review additional supporting documentation, and

       make decisions about whether or not Lacy could, or should[,] testify.”

       Appellant’s Br. at 25.


[36]   Initially, we note that Lacy failed to request a continuance when the

       amendment was granted by the trial court. This court has held “a defendant’s

       failure to request a continuance after a trial court allows a pre-trial substantive

       amendment to the charging information over defendant’s objection results in

       waiver.” Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct. App. 2010), trans.

       denied. Lacy had the opportunity to request a continuance of his trial for the

       purpose of allowing him the chance to prepare his defense after the trial court

       allowed the State to amend the charging information over his objection, but

       chose not to do so. “‘A party may not sit idly by and permit the court to act in


       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 22 of 25
       a claimed erroneous matter and then attempt to take advantage of the alleged

       error at a later time.’” White v. State, 963 N.E.2d 511, 518 (Ind. 2012) (quoting

       Hensley v. State, 251 Ind. 633, 639, 244 N.E.2d 225, 228 (1969)). Lacy has,

       therefore, waived this issue for appellate review.


[37]   Waiver notwithstanding, Lacy’s contention fails on the merits. Although he

       cites to Indiana Code section 35-41-1-5(e) and claims the State was required to

       show good cause before it could amend the habitual offender information, that

       subsection only applies when the State moves to amend the charging

       information to include or add a habitual offender charge; it does not apply

       when the State wishes to amend an existing habitual offender charge. Williams

       v. State, 735 N.E2d 785, 789 n.5 (Ind. 2000) (holding that it was erroneous for

       defendant to rely on Indiana Code section 35-34-1-5(e) where the State was

       requesting to amend the already existing habitual offender information);

       Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996) (finding defendant’s

       reliance on Indiana Code section 35-34-1-5(e) was in error when the State was

       not seeking to add a habitual offender charge, but merely seeking to amend an

       existing charge). We, therefore, find Lacy’s contentions in the present case that

       the State was required to show good cause to amend the already existing

       habitual offender charge to be misplaced.


[38]   Indiana Code section 35-34-1-5 governs amendments to criminal indictments or

       informations and permits amendments to both form and substance at any time

       prior to the commencement of trial as long as the defendant’s substantial rights

       are not prejudiced by the amendment. Ind. Code § 35-34-1-5(a), (b). A

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 23 of 25
       defendant’s substantial rights include a right to sufficient notice and an

       opportunity to be heard regarding the charge. Hurst v. State, 890 N.E.2d 88, 95

       (Ind. Ct. App. 2008), trans. denied. Our Supreme Court has stated that the

       question is ultimately whether the defendant had a reasonable opportunity to

       prepare for and defend against the charges. Id.


[39]   Here, the State filed its notice of intent to file a habitual offender enhancement

       on October 23, 2013 at the same time it filed the initial charges against Lacy.

       Thereafter, on January 9, 2014, filed Count XIII, alleging Lacy to be a habitual

       offender. This charge alleged that Lacy had a 2005 conviction for nonsupport

       of a dependent under Cause Number 23C01-0502-FC-114 (“Cause 114”), a

       2001 conviction for residential entry under Cause Number 79E02-0007-DF-340

       (“Cause 340”), and convictions in 1992 for two counts of theft under Cause

       Number 23C01-9111-CF-388 (“Cause 388”). Appellant’s App. at 50. The State

       moved to amend the habitual offender count on September 17, 2014 as to the

       conviction in Cause 114 by changing the dates of the offense and as to Cause

       388 by removing the allegation of theft convictions. Id. at 67. The trial court

       granted this motion. On October 6, 2014, the day before the trial began, the

       State moved to amend the habitual offender count with respect to Cause 388 in

       order to restore the previously-removed theft convictions.


[40]   Based on these facts, Lacy was aware that the State intended to seek a habitual

       offender finding against him as of October 23, 2013. He was on notice that the

       State intended to prove this status by his prior convictions under Cause 114,

       Cause 340, and Cause 388 from the date of the filing of the habitual offender

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015   Page 24 of 25
       charge on January 9, 2014 until the State’s first amendment on September 17,

       2014. During this period of time, the case was set for trial five times, as the trial

       court noted during a hearing on the State’s motion to amend. Then, for a short

       period of time from September 17 until October 7, 2014, when the trial court

       granted the second amendment, the State removed Cause 388 from the

       allegations until its motion to reinstate the identical habitual offender

       information that had been alleged for over eight months prior to the

       amendment on September 17. At the time the trial court granted the State’s

       motion to amend the habitual offender charge, Lacy did not raise any

       complaints regarding a scramble to review additional documentation or allege

       prejudice resulting from a decision as to whether he should testify. We

       conclude that Lacy had a reasonable opportunity to prepare for and defend

       against the habitual offender charge, and the trial court did not abuse its

       discretion in allowing the State to amend the habitual offender charge.


[41]   Affirmed in part and reversed in part.


       Najam, J., and Barnes, J., concur.




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