MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 26 2019, 8:21 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
James Brandon Dillon                                    Curtis T. Hill, Jr.
The Dillon Law Firm, LLC                                Attorney General of Indiana
Merrillville, Indiana
                                                        Tyler G. Banks
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tiras D. Johnson,                                       December 26, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1769
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable David A. Happe,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        48C04-1709-F2-2231



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1769 | December 26, 2019               Page 1 of 9
                                       Statement of the Case
[1]   Tiras D. Johnson appeals his convictions for dealing in cocaine, as a Level 2

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

      common nuisance, as a Level 6 felony, following a jury trial. Johnson raises

      two issues for our review, which we restate as follows:


              1.      Whether the trial court abused its discretion when it
                      denied Johnson’s motion to continue his jury trial, which
                      motion Johnson made one day before his trial was
                      scheduled to commence.


              2.      Whether the State violated his constitutional rights when it
                      searched his residence without a warrant but pursuant to
                      the terms of Johnson’s conditions of release on community
                      corrections.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2017, the Madison County Drug Task Force engaged in controlled drug buys

      from Eric Troutman. In August, Drug Task Force and Anderson Police

      Department Officer Chad Boynton learned from Troutman that Johnson was

      involved in drug activity. Officer Boynton then learned that Johnson had been

      placed in local community corrections and had signed an agreement with the

      Madison County Community Justice Center pursuant to his placement.


[4]   Johnson’s agreement to be placed in community corrections included the

      following waivers:

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1769 | December 26, 2019   Page 2 of 9
          11. I agree and specifically waive any and all rights as to
          search and seizure under the laws and constitutions of both the
          United States and the State of Indiana.


          12. I have been advised of my rights and understand that any
          community corrections staff, law enforcement officer or
          probation officer may enter my residence at any time without
          prior notice to search. I agree and consent to these terms, and
          understand that, upon request, I must facilitate the entry to my
          vehicle, residence, other location where my property may be
          located, or electronic devices, by providing keys, combinations or
          passwords. My refusal to do so would be a violation which could
          cause my sentence to be revoked.


Ex. Vol. at 8. 1 In a supplemental document attached to the agreement and

titled “[d]isclosure to individuals residing with a participant on electronic

monitoring,” the following language appears:


          This disclosure is provided to make you aware that as a
          participant of the electronic monitoring/Home Detention
          Program [Johnson] has signed a contract that states:


                   I agree to allow the Madison County Community Justice
                   Center Staff to enter my residence at any time, without
                   prior notice, and to make reasonable inquiry into my
                   activities and the activities of others in the home. I agree
                   to waive my right against search and seizure, and permit
                   Madison County Community Justice Center or any law
                   enforcement officer acting on behalf of Madison County
                   Community Justice Center to search my person, residence,




1
    Our pagination of the Exhibits Volume is based on the .pdf pagination.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1769 | December 26, 2019   Page 3 of 9
                      motor vehicle or any other location where my personal
                      property may be found . . . .


      Id. at 14 (emphasis added).


[5]   Officer Boynton approached officials at the Community Justice Center and

      informed them that Troutman had identified Johnson as a participant in drug

      activity. Those officials then “requested . . . that [the Anderson Police

      Department] make contact at the residence and proceed with a search . . . to

      verify whether the information was accurate.” Tr. Vol. III at 9. Officer

      Boynton and other officers then went to Johnson’s residence, went inside, and

      immediately smelled the “odor of burnt . . . marijuana.” Id. at 37. The officers

      then searched the residence and seized 679.97 grams of cocaine; 367.60 grams

      of methamphetamine; firearms; manufacturing equipment; and $6,944.02 in

      cash. Officers also found Johnson’s driver’s license under the cushions of a

      couch.


[6]   On September 1, the State charged Johnson with dealing in cocaine, as a Level

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

      common nuisance, as a Level 6 felony. The court later set Johnson’s jury trial

      date for June 5, 2019. On June 4, Johnson moved to continue the trial, among

      other reasons, so that he could locate and depose an additional witness.

      According to Johnson, the additional witness would have “testif[ied] that [there

      was a] person[] in the house other than Mr. Johnson.” Tr. Vol. II at 119. But

      Johnson gave no explanation to the court as to why that witness had yet to be

      deposed or the efforts he had previously made to locate that witness, and the
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1769 | December 26, 2019   Page 4 of 9
      court responded to Johnson’s motion by stating that “[t]his is a case which is

      over eighteen . . . months old now” and “at some point the court has to hold

      parties accountable for timely preparation of a case.” Id. at 120. The court then

      denied the motion to continue.


[7]   At Johnson’s ensuing trial, he objected to the evidence seized from his

      residence on the ground that it had been seized in violation of his state and

      federal constitutional rights. The trial court overruled that objection. The jury

      then found Johnson guilty as charged, which the trial court reduced to

      judgment. The court then sentenced Johnson, and this appeal ensued.


                                        Discussion and Decision
                                        Issue One: Motion to Continue

[8]   On appeal, Johnson first asserts that the trial court abused its discretion when it

      denied his motion to continue. We review the trial court’s decision to grant or

      deny a motion to continue for an abuse of discretion. Maxey v. State, 730

      N.E.2d 158, 160 (Ind. 2000). An abuse of discretion occurs when the trial

      court’s judgment is clearly against the logic and effect of the facts and

      circumstances before the court. E.g., Schuler v. State, 132 N.E.3d 903, 904 (Ind.

      2019). “A motion to postpone the trial on account of the absence of evidence

      can be made only upon affidavit,[ 2] showing the materiality of the evidence




      2
        The record does not show that Johnson’s June 4 motion to continue was in writing and verified.
      Nonetheless, we prefer to resolve appeals on their merits, and the State does not assert that the fact that
      Johnson only made his motion orally should be the basis for our decision.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1769 | December 26, 2019                     Page 5 of 9
      expected to be obtained, and that due diligence has been used to obtain it . . . .”

      Ind. Trial Rule 53.5.


[9]   According to Johnson, the trial court erred when it denied his motion to

      continue because, in doing so, the court denied him the right to present a

      defense by effectively prohibiting him from locating and deposing the additional

      witness. Johnson further asserts that his case is analogous to the facts of Barber

      v. State, in which we held that the trial court abused its discretion when it

      denied the defendant’s motion to continue to depose an additional, recently

      discovered witness. 911 N.E.2d 641, 646-47 (Ind. Ct. App. 2009), trans. denied.

      In particular, in Barber we stated as follows:


              there is no evidence that defense counsel acted in bad faith in
              asking for a continuance on the morning of Barber’s December
              15, 2008, bench trial and filing her updated witness list that
              morning as well. Defense counsel had just located the witnesses
              that weekend and needed time to secure their presence for trial.
              Barber was arrested on October 15, 2008. Barber’s first
              continuance came only five days after her arrest and before her
              defense counsel had been appointed. Barber’s second
              continuance was filed on November 17, 2008, about one month
              after her arrest. It provided, “On the evening on November 14,
              2008, an investigator located one of the many potential witnesses
              that would be essential to the Defendant’s case, however through
              that investigation, it has been learned that there may be several other
              witnesses left to be identified.” Appellant’s App. p. 19 (emphasis
              added). As a result, defense counsel alleged that she could not
              provide an effective defense for Barber. The trial court granted
              the continuance and scheduled the trial for December 15, 2008.
              In the meantime, defense counsel and the Public Defender’s
              Agency Investigators continued to look for additional witnesses.
              On Saturday, December 13, 2008, two days before trial, defense
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1769 | December 26, 2019   Page 6 of 9
               counsel finally contacted two additional witnesses, Mathis and
               Collier, who could support Barber’s defense of involuntary
               intoxication. Accordingly, on the morning of trial, defense
               counsel filed a Verified Emergency Motion to Continue seeking a
               motion to continue the trial or, in the alternative, a motion to
               bifurcate the trial allowing the State to present its witnesses that
               day and giving the defense an opportunity to present its
               newfound witnesses on a later date. Defense counsel then
               provided an offer of proof. The only prejudice the State alleged it
               would suffer was that had it known earlier, it could have called
               off its witnesses (two civilians and two officers), who showed up
               for trial that morning. However, defense counsel located Mathis
               and Collier over the weekend and filed the motion to continue on
               Monday morning, the day of the bench trial. As such, the State
               would not have known whether the trial was still on until the trial
               court ruled on the motion. The prejudice to the State is minimal.


               Barber’s defense was involuntary intoxication. Under Indiana
               law, “[i]t is a defense that the person who engaged in the
               prohibited conduct did so while he was intoxicated, only if the
               intoxication resulted from the introduction of a substance into his
               body: (1) without his consent; or (2) when he did not know that
               the substance might cause intoxication.” Ind. Code § 35-41-3-5.
               There is obvious prejudice to Barber from not being able to
               present the testimony of Collier and Mathis. Although Barber
               testified that she believed she was drugged, Collier would have
               testified that she believed the same thing happened to her on the
               evening of October 15, 2008, at the same American Legion. And
               according to defense counsel, Mathis would have supported both
               Barber’s and Collier’s testimony.


       Id.


[10]   Here, as in Barber, there is no evidence that defense counsel acted in bad faith

       when he requested a continuance. Nonetheless, we cannot agree with Johnson

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1769 | December 26, 2019   Page 7 of 9
       that his facts are analogous to the detailed showing in Barber or that the trial

       court here abused its discretion. Johnson asserts that the additional witness

       would have testified that there was another person at the residence with

       Johnson at the time of the search and seizure. Be that as it may, unlike in

       Barber, Johnson does not explain the materiality, if any, such testimony would

       have had to Johnson’s defense. Also, unlike the two-month timeframe in

       Barber, Johnson had approximately eighteen months to locate and depose his

       additional witness. And further unlike in Barber, Johnson makes no attempt to

       show the due diligence he may have used to locate and depose that witness

       within that timeframe. Thus Barber is inapposite here, and we cannot say that

       the trial court abused its discretion when it denied Johnson’s motion to

       continue.


                             Issue Two: Warrantless Search and Seizure

[11]   Johnson next asserts that the State violated his state and federal constitutional

       rights against unreasonable searches and seizures when it entered his home

       without a warrant. “We review de novo a trial court’s ruling on the

       constitutionality of a search and seizure.” Belvedere v. State, 889 N.E.2d 286,

       287 (Ind. 2008).


[12]   Johnson asserts that he only waived his rights with respect to searches and

       seizures for those officers “acting on behalf of” the Madison County

       Community Justice Center. Appellant’s Br. at 17-18. But Johnson does not

       discuss his agreement with the Community Justice Center in his argument on


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1769 | December 26, 2019   Page 8 of 9
       appeal. Instead, Johnson’s argument relies on the language of the disclosure to

       third parties that was attached to the agreement.


[13]   We reject Johnson’s argument. The actual agreement he signed to participate

       in community corrections unambiguously waived his rights with respect to

       searches and seizures by law enforcement officers, whether those officers were

       acting on behalf of the Community Justice Center or not. And we reject

       Johnson’s bald assertion that Officer Boynton’s coordination with the

       Community Justice Center prior to searching Johnson’s residence was

       pretextual. The record supports the conclusion that the Community Justice

       Center asked Officer Boynton to act on the its behalf. In any event, again, as a

       condition of his placement in community corrections Johnson validly waived

       his right to complain about searches and seizures at his residence. Accordingly,

       we affirm the trial court’s admission of the evidence seized from Johnson’s

       residence.


                                                 Conclusion
[14]   In sum, we affirm Johnson’s convictions.


[15]   Affirmed.


       Vaidik, C.J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1769 | December 26, 2019   Page 9 of 9
