      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     Jan 22 2016, 8:36 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
      Jeffrey E. Stratman                                      Gregory F. Zoeller
      Aurora, Indiana                                          Attorney General of Indiana
                                                               Tyler G. Banks
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Lamocres A. Johnson,                                     January 22, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A04-1501-CR-2
              v.                                               Appeal from the Dearborn Circuit
                                                               Court
      State of Indiana,                                        The Honorable James D.
      Appellee-Plaintiff.                                      Humphrey, Judge
                                                               Trial Court Cause No.
                                                               15C01-1310-FB-42



      Mathias, Judge.


[1]   Lamocres A. Johnson (“Johnson”) was convicted in Dearborn Circuit Court of

      Class B felony dealing in a narcotic drug and Class B felony conspiracy to


      Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016         Page 1 of 12
      commit dealing in a narcotic drug. The trial court vacated the conspiracy

      conviction on double jeopardy grounds and sentenced Johnson to sixteen years

      incarceration. On appeal, Johnson presents three issues, which we reorder and

      restate as:

          I.   Whether the State presented sufficient evidence to support Johnson’s
               convictions;

          II. Whether Johnson’s convictions for both dealing in a narcotic drug and
              conspiracy to deal constitute double jeopardy; and

          III. Whether the trial court abused its discretion in denying Johnson’s
               motion to sever his trial from that of his co-defendant.

[2]   We affirm.


                                    Facts and Procedural History

[3]   On October 29, 2013, Johnson and Joshua Comer (“Comer”) went to the home

      of Andrea White (“White”) in Covington, Kentucky, near Cincinnati. White

      was a friend of Johnson but did not know Comer. Johnson introduced Comer

      to White and asked her if she could drive them to Indiana. Johnson and Comer

      needed White to drive because she had a valid driver’s license. Johnson stated

      that they needed a ride “[t]o go hit a lick.” Tr. p. 465. The two men offered

      White twenty dollars and some marijuana, but White was hesitant and

      declined. They then upped their offer to forty dollars and some marijuana, and

      White agreed.


[4]   Comer had been in contact with Nick Beetz (“Beetz”) who, unbeknownst to

      Comer, Johnson, or White, was an undercover detective for the Lawrence

      Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016   Page 2 of 12
      Police Department. Beetz had arranged to purchase heroin from Comer that

      afternoon at 2:30 p.m. Comer called Beetz at approximately 2:15 p.m. to

      arrange a location for the transaction, and Beetz chose the parking lot of a fast-

      food restaurant, which was already under police surveillance.

[5]   Beetz arrived at the parking lot in his unmarked car at approximately 2:22 p.m.

      While he waited for Comer to arrive, he had several telephone conversations

      with Comer regarding when he would arrive. Two calls came from Comer’s

      phone number, but a man other than Comer spoke with Beetz. This man told

      Beetz where he and Comer were in relation to the destination and their

      estimated time of arrival.

[6]   White’s vehicle arrived at the chosen destination a few minutes past three

      o’clock. White was driving, Johnson was in the front passenger seat, and

      Comer was in the rear seat behind Johnson. Beetz exited his vehicle and

      approached White’s vehicle and handed Comer $600 in cash. Comer then

      handed Beetz what was later identified to be heroin, wrapped in a piece of

      paper. During the transaction, Beetz commented that Comer was late. Johnson

      told Beetz that it was Johnson’s fault that they were late. After the transaction

      was complete, Beetz returned to his vehicle, and White drove away. Shortly

      thereafter, the police stopped White’s car and arrested all three occupants.

[7]   On October 31, 2013, the State filed an eleven-count charging information

      against Johnson, Comer, White, and another defendant. Four of these counts

      named Johnson: Count VI, Class B felony dealing in a narcotic drug; Count


      Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016   Page 3 of 12
       VII, Class B felony conspiracy to deal in a narcotic drug; Count IX, Class A

       misdemeanor possession of marijuana; Count X, Class A misdemeanor

       possession of paraphernalia; and Count XI, Class D felony maintaining a

       common nuisance.

[8]    A jury trial began on June 2, 2014. On the second day of trial, Johnson agreed

       to plead guilty to the misdemeanor charges but still contested the felony

       charges. The trial proceeded on the remaining charges, but ended in a mistrial

       on June 6, 2014.


[9]    On August 21, 2014, prior to the beginning of the second trial, Johnson filed a

       motion to sever his trial from that of his co-defendants. The trial court held a

       hearing on this motion on September 22, 2014, and denied the motion by an

       order entered one week later.


[10]   A second jury trial commenced on October 10, 2014. The jury found Johnson

       guilty of both Class B felony charges, i.e., dealing in a narcotic drug and

       conspiracy to deal in a narcotic drug. On December 4, 2014, the trial court

       entered its order sentencing Johnson to sixteen years on the conviction for Class

       B felony dealing in a narcotic drug. The court vacated the conviction for

       conspiracy to commit dealing in a narcotic drug “to avoid double jeopardy.”

       Appellant’s App. p. 468. The court also sentenced Johnson to concurrent terms

       of one year on each of the misdemeanor convictions. Johnson now appeals.




       Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016   Page 4 of 12
                                     I. Sufficiency of the Evidence

[11]   Johnson claims that the State presented insufficient evidence to support his

       conviction for dealing in a narcotic drug. When reviewing claims of insufficient

       evidence, we apply our well-settled standard of review: we will neither reweigh

       the evidence nor judge the credibility of the witnesses; instead, we respect the

       exclusive province of the jury to weigh any conflicting evidence. McHenry v.

       State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the probative

       evidence and reasonable inferences supporting the verdict, and we will affirm if

       the probative evidence and reasonable inferences drawn therefrom could have

       allowed a reasonable trier of fact to find the defendant guilty beyond a

       reasonable doubt. Id.


[12]   Johnson claims the evidence was insufficient to support his conviction for

       dealing in a narcotic drug. We note that the State argued at trial that Johnson

       was guilty under a theory of accomplice liability, both in the prosecution’s

       closing argument and its jury instruction on accomplice liability. See Tr. p. 583

       (prosecution’s closing arguments); Appellant’s App. p. 216 (jury instruction on

       accomplice liability). Thus, to convict Johnson, the State was required to prove

       that he knowingly or intentionally aided, induced, or caused another person

       (Comer) to deliver a narcotic drug (heroin). See Ind. Code § 35-48-4-1(a)(1)(C)




       Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016   Page 5 of 12
       (defining the crime of dealing in a narcotic drug); Ind. Code § 35-41-2-4

       (defining accomplice liability).1

[13]   Johnson argues that the State failed to prove the element of his intent. That is,

       he claims no evidence supports a reasonable inference that he knew Comer was

       travelling to Indiana to deliver heroin. He notes that White testified that she did

       not know that Comer planned to deliver heroin and posits that he therefore also

       had no knowledge. We disagree.


[14]   First, White’s declared state of mind is not dispositive of Johnson’s state of

       mind. Further, the jury was not required to credit White’s testimony regarding

       even her personal lack of knowledge, let alone infer Johnson’s state of mind

       from that testimony. More importantly, evidence from which the jury could

       reasonably infer that Johnson knew that White planned to deliver heroin was

       presented. Johnson brought Comer to White, who did not know Comer, to get

       a ride to Indiana to “hit a lick.” Although this phrase is often associated with

       robbery or theft, see Turner v. State, 953 N.E.2d 1039, 1043-44 (Ind. 2011),

       testimony in the present case indicated that the term can more generically mean

       “to profit or to gain from some sort of illegal means.” Tr. p. 470, 530; see also

       United States v. Taylor, 522 F.3d 731, 735 (7th Cir. 2008) (where witness testified

       that defendant told her that they were on their way to “hit a lick,” which she

       explained meant that the defendant was going to sell drugs).




       1
           We refer to the version of the statutes in effect at the time Johnson committed the offense.


       Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016           Page 6 of 12
[15]   When White was hesitant, Johnson and Comer bribed her with both money

       and marijuana. Moreover, evidence that Johnson had spoken with White in the

       past regarding whether she used heroin was presented. In addition, the heroin

       delivered to Beetz was wrapped in paper similar to the marijuana found on

       Johnson’s person when he was arrested. From all of this evidence, the jury

       could reasonably conclude that Johnson knew that Comer needed a ride to

       Indiana to deliver heroin.


[16]   Furthermore, under the accomplice theory of liability, evidence from which the

       jury could conclude that Johnson aided Comer in delivering the heroin was

       presented. First, Johnson helped Comer secure their transportation to Indiana.

       White did not know Comer and insisted on Johnson coming with them on the

       trip. Also, Beetz testified that he spoke to another man on calls coming from

       Comer’s phone while they were on their way to meet Beetz. This man informed

       Beetz of their location and when they expected to arrive. As Johnson was the

       only other man in the car, and Beetz testified that the man on the phone

       sounded like Johnson, the jury could reasonably conclude that Beetz spoke with

       Johnson on the phone. Based upon his securing White’s help with the

       transportation, and his telephone conversations with Beetz, the jury could

       reasonably conclude that Johnson aided Comer in delivering the heroin to

       Beetz in Indiana.


[17]   In short, the State presented evidence sufficient to support Johnson’s conviction

       for Class B felony dealing in heroin under a theory of accomplice liability.



       Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016   Page 7 of 12
                                              II. Double Jeopardy

       Johnson also claims that his convictions for dealing in a narcotic drug and

       conspiracy to commit dealing in a narcotic drug constitute double jeopardy.

       However, because the trial court explicitly vacated Johnson’s conviction for

       conspiracy on double jeopardy grounds, Johnson’s appellate claim of double

       jeopardy has no basis.2 See Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct.

       App. 2013) (noting that vacating conviction constituting double jeopardy cures

       the double jeopardy problem).

                                         III. Separate Trial Motion

[18]   Lastly, Johnson argues that the trial court abused its discretion in denying his

       motion to sever his trial from that of his co-defendants. Johnson claims that he

       should have been tried separately because of the amount of evidence against his

       co-defendant Comer and because the admission of certain out-of-court

       statements by Comer violated his right to cross-examination protected by the

       Sixth Amendment.


[19]   Several defendants may be joined in a single prosecution. Lee v. State, 684

       N.E.2d 1143, 1147 (Ind. 1997) (citing Ind. Code § 35-34-1-9). However, upon

       motion by the defendant, the trial court may order a separate trial “whenever




       2
        Johnson recognizes that the trial court vacated his conviction for conspiracy on double jeopardy grounds
       but argues that if we overturn his conviction for dealing, he might still be subject to a conviction on the
       conspiracy charge. However, because we have held that sufficient evidence supports his conviction for
       dealing, this is not a concern.

       Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016          Page 8 of 12
       the court determines that a separate trial is necessary to protect a defendant’s

       right to a speedy trial or is appropriate to promote a fair determination of the

       guilt or innocence of a defendant.” Id. (quoting Ind. Code § 35-34-1-11(b)). The

       trial court generally has discretion to grant or deny a motion for separate trials.

       Id. However, the trial court must grant severance of trials where defenses are

       mutually antagonistic and the acceptance of one defense precludes the acquittal

       of the other. Id. Upon appellate review, the trial court’s decision is measured by

       what actually occurred at trial rather than what is alleged in the motion. Id.


[20]   Johnson does not contend that his defense was mutually antagonistic to

       Comer’s defense such that the trial court was required to grant his motion for

       separate trials. Instead, he argues that the “mountain” of direct evidence against

       Comer was improperly used by the State to implicate his own guilt simply

       based on his association with Comer and his presence at the scene. We

       disagree. As discussed above, evidence from which the jury could reasonably

       infer that Johnson knew that Comer was traveling to Indiana to sell heroin was

       presented, and the evidence also indicated that Comer aided in this transaction.

       The fact that Comer’s guilt might have been easier to prove did not require the

       trial court to grant separate trials. See Lee, 684 N.E.2d at 1147 (noting that when

       one defendant implicates another it does not require separate trials and further

       noting that no constitutional right to be protected from damaging evidence

       exists) (citing Castro v. State 580 N.E2d 232, 235 (Ind. 1991)). Since the State

       argued that Johnson was guilty under a theory of aiding Comer, the evidence

       against Comer was directly relevant to the issue of Johnson’s guilt.


       Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016   Page 9 of 12
[21]   The brunt of Johnson’s argument is that the admission of Comer’s out-of-court

       statements denied him the right to confront the witnesses against him because

       Comer exercised his right not to testify at trial. This, Johnson claims, prevented

       him from cross-examining Comer. Johnson argues that this runs afoul of both

       the Sixth Amendment, as interpreted in Bruton v. United States, 391 U.S. 123

       (1968), and Indiana Code section 35-34-1-11.

[22]   In Bruton, the United States Supreme Court held that in a joint trial, admission

       of one defendant’s confession that implicates another defendant is a violation of

       the second defendant’s Sixth Amendment right to confront witnesses. Fayson v.

       State, 726 N.E.2d 292, 294 (Ind. 2000) (citing Bruton, 391 U.S. at 124-26).

       Because the confessing defendant cannot be required to take the stand, the

       result is a denial of the other defendant’s right to cross-examine the confessing

       defendant. Id. (citing Bruton, 391 U.S. at 137). Subsequent case law has clarified

       that the Bruton rule is applicable only if the out-of-court statements by one

       defendant “facially incriminate” another defendant. Id. (citing Richardson v.

       Marsh, 481 U.S. 200, 211 (1987)).


[23]   Indiana Code section 35-34-1-11(b) provides:

               Whenever two (2) or more defendants have been joined for trial
               in the same indictment or information and one (1) or more
               defendants move for a separate trial because another defendant
               has made an out-of-court statement which makes reference to the
               moving defendant but is not admissible as evidence against him,
               the court shall require the prosecutor to elect:
                   (1) a joint trial at which the statement is not admitted into
                       evidence;
       Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016   Page 10 of 12
                    (2) a joint trial at which the statement is admitted into
                        evidence only after all references to the moving defendant
                        have been effectively deleted; or
                    (3) a separate trial for the moving defendant.

       This section has been described by our supreme court as a codification of the

       Bruton rule. See Small v. State, 736 N.E.2d 742, 745 n.5 (Ind. 2000); Houchin v.

       State, 581 N.E.2d 1228, 1233 (Ind. 1991).3


[24]   Johnson claims that the admission of audiotapes made of Comer’s telephone

       calls with Beetz constitutes a violation of the Bruton rule and Indiana Code

       section 35-34-1-11(b) because it was an out-of-court statement made by Comer

       about which he was unable to cross-examine Comer. We disagree.


[25]   To be subject to the Bruton rule or Indiana Code section 35-34-1-11(b), the out-

       of-court statement must have referred to the defendant. See Fayson, 726 N.E.2d

       at 294 (citing Richardson, 481 U.S. at 211) (noting that to be subject to Bruton

       rule, the co-defendant’s out-of-court statement must facially incriminate the

       defendant); I.C. § 35-34-1-11(b) (requiring that co-defendant’s out-of-court

       statement “make[] reference to the moving defendant”).

[26]   Here, the out-of-court statements at issue—Comer’s telephone calls with

       Beetz—did not make reference to Johnson at all, much less facially incriminate

       him. Accordingly, neither the Bruton rule or section 35-34-1-11(b) were




       3
        Houchin was later overruled in part on other grounds by Smith v. State, 581 N.E.2d 1228, 1246 n.11 (Ind.
       1997).

       Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016       Page 11 of 12
       implicated, and the trial court did not abuse its discretion in denying Johnson’s

       request for a separate trial.

                                                  Conclusion

[27]   The State presented sufficient evidence to establish that Johnson knowingly

       aided Comer in the delivery of heroin. Because the trial court vacated Johnson’s

       conviction for conspiracy to commit dealing, no double jeopardy issues are

       relevant to his conviction for dealing. Finally, the trial court did not abuse its

       discretion by denying Johnson’s motion for a separate trial.


[28]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 15A04-1501-CR-2 | January 22, 2016   Page 12 of 12
