Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                                   Feb 10 2014, 9:02 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DONALD E.C. LEICHT                               GREGORY F. ZOELLER
Kokomo, Indiana                                  Attorney General of Indiana

                                                 CYNTHIA L. PLOUGHE
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHARLES THOMPSON,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 34A05-1211-CR-578
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE HOWARD SUPERIOR COURT
                            The Honorable Brant Parry, Judge
                             Cause No. 34D02-1207-FA-165




                                     February 10, 2014



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                  Case Summary and Issues

       Charles Thompson appeals his convictions for dealing in methamphetamine as a

Class A felony, and two counts of possession of a controlled substance as Class D

felonies. Thompson raises two issues on appeal: 1) whether the trial court erred in

entering judgment of conviction on the charge of dealing in methamphetamine; and 2)

whether the trial court abused its discretion in the admission of evidence. Concluding

that the trial court did not err or abuse its discretion, we affirm.

                                Facts and Procedural History

       In April 2011 Officer Chad VanCamp with the Kokomo Police Department Drug

Task Force went to Thompson’s residence to serve an arrest warrant for Thompson.

Officer VanCamp saw a woman, Holly Patton, in Thompson’s driveway and asked her if

Jim Smith was inside the house. She answered that he and Thompson were inside, and

she went into the house, opening the front door just wide enough to squeeze through.

When the door opened, Officer VanCamp detected a strong odor that he associated with

the manufacturing of methamphetamine, having previously investigated more than one

hundred methamphetamine labs. When Patton, Thompson, and Smith exited the house,

VanCamp arrested all three of them.

       As Patton, Thompson, and Smith were exiting the house, Detective Shane Melton

arrived on the scene and also noticed odors that he associated with methamphetamine

labs. Detective Melton then requested and obtained a search warrant. Execution of the

warrant revealed methamphetamine, an oxycodone pill, and an unopened fentanyl patch,

inside a box stuffed into Thompson’s couch.


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       The State charged Thompson with count I, dealing in methamphetamine as a Class

A felony; count II, possession of a controlled substance (fentanyl) as a Class D felony;

and count III, possession of a controlled substance (oxycodone) as a Class D felony. The

State subsequently filed an information for count IA, possession of methamphetamine as

a Class C felony. Thompson was found guilty of all counts following a jury trial, and

judgment of conviction was entered on all four charges. At sentencing, the court merged

count IA into count I and sentenced Thompson to forty years with thirty-five years

executed on count I, and three years executed for each of counts II and III, with all

sentences to be run concurrently. This appeal followed.

                                  Discussion and Decision

                                I. Judgment of Conviction

       Thompson first argues that the trial court erred in entering judgment of conviction

on count I because the State had filed an information for count IA, which Thompson

contends should have replaced count I.            Thompson concedes that possession of

methamphetamine is a lesser included offense of dealing in methamphetamine but argues

that because the second information is titled as an “amended” information, it was

intended to replace count I. However, nowhere in the chronological case summary or on

the information itself do we see the word “amended.” Thompson does not argue that the

later information was intended to entirely replace the original information and all three

counts therein, but rather that it was intended to replace only count I.

       The record, however, indicates that count IA was always treated as an additional

charge. The court instructed the jury on each of the four counts (I, IA, II, III), and that

Thompson was charged with four crimes. The jury also received guilty/not guilty forms
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for each of the four charges. Thompson admits that he did not object when the court

treated the second information as an addition to—rather than a replacement of—the

original count I. The failure to raise an issue at trial waives the issue on appeal. Wilson

v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010), trans. denied.

       While perhaps the more clear practice would have been for the State to file the

second information as count IV rather than count IA, we see no indication in the

information itself or in the behavior of either party at trial that indicates the second

information was intended as anything but an addition to the original information. Rather,

it seems that count IA was intended and treated as being an additional, fourth charge

against Thompson—a lesser included offense of the dealing charge. The State notes that

this is a common backup charging plan such that if the jury failed to find that Thompson

had necessary mens rea to support a dealing charge, it could still find Thompson guilty of

possessing the methamphetamine found at his house. The trial court did not err in

entering judgment of conviction for Thompson on the dealing in methamphetamine

charge.

                               II. Admission of Evidence

                                   A. Arrest Warrant

       Thompson also argues that the arrest warrant was improper because it was not

supported by probable cause. Thompson argues that therefore everything stemming from

the arrest warrant—including the subsequent search warrant and fruits of that search—is

inadmissible.

       A valid arrest warrant must be supported by probable cause. U.S. Const. amend.

IV. “Probable cause turns on a ‘practical, common-sense decision whether, given all the
                                            4
circumstances set forth in the affidavit . . . there is a fair probability’ that the subject has

committed a crime or evidence of a crime will be found.” Shotts v. State, 925 N.E.2d

719, 723 (Ind. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). To establish

probable cause, an affidavit in support of the warrant must do more than state the

conclusion of the affiant, and a neutral and detached magistrate must draw his or her own

conclusion as to whether probable cause exists. Id. A reviewing court gives substantial

deference to the magistrate’s decision and must focus on whether reasonable inferences

drawn from the totality of the evidence support the determination of probable cause. Id.

In reviewing the execution of an arrest warrant, the focus is on a reasonable belief as to

the residence and presence of the subject. Duran v. State, 930 N.E.2d 10, 18 (Ind. 2010).

“Similarly, the reasonableness of an entry into a home to execute an arrest warrant

requires a reasonable belief that there is a valid warrant, a reasonable belief that the

residence is that of the suspect, and a reasonable belief that the suspect will be found in

the home.” Id.

       The original arrest warrant was for dealing in methamphetamine, robbery, and

intimidation. Two items were offered in support of the arrest warrant: a probable cause

affidavit from December 2010, affirmed under penalty of perjury and signed by Detective

Melton; and a police department supplementary report from April 2011, also signed by

Detective Melton, but not affirmed under oath.

       The affidavit recounts a controlled buy in which a confidential informant met with

Thompson at Thompson’s residence and exchanged money for a white powder

represented to be methamphetamine. Shortly after the buy, the informant turned the

powder over to Detective Melton, who field tested it for methamphetamine and found it
                                               5
to be positive. Detective Melton notes that the informant was searched both shortly

before and shortly after the transaction, and his vehicle was searched as well. No illegal

drugs or contraband were found during the searches. Detective Melton also stated that he

and/or fellow detectives maintained audio and/or visual surveillance on the informant

while the informant was meeting with Thompson.

       The supplementary report recounts an attempted second controlled buy between

the same confidential informant and Thompson. The informant was again searched prior

to the buy, with no illegal drugs or contraband found. The informant was set up with

surveillance equipment and went to Thompson’s house. Once inside Thompson’s house,

the informant was confronted by Thompson and was beaten, kicked, and bitten by

Thompson and a second person. At some point during the altercation, the money that the

informant had brought for the buy was taken from him. Thompson threatened the

informant by saying, “Do you want me to put a bullet in your head?” Defendant’s

Exhibit A. The informant was able to exit the residence, and Detective Melton took

photographs of his injuries.      Detective Melton noted that the informant’s face was

swollen and one eye was beginning to turn black, and the informant reported that he was

in pain. The report also notes that the informant indicated that he was afraid he was

going to die during the attack.

       We conclude that there was a sufficient basis presented from which a magistrate

could make reasonable inferences supporting a determination that there was probable

cause to believe that Thompson had committed the alleged crimes. Moreover, we note

that Officer VanCamp did not enter Thompson’s house to execute the warrant, and that


                                             6
there is no suggestion that he was acting on other than a reasonable belief that there was a

valid arrest warrant.

       When Detective Melton requested a search warrant for Thompson’s residence,

after his arrest, that request was accompanied by a probable cause affidavit which

Detective Melton affirmed under penalty of perjury.         The affidavit noted the two

controlled buys with a “confidential reliable informant”; Detective Melton’s knowledge

of Jimmy Smith as a methamphetamine and prescription drug user and assistant in

methamphetamine manufacture; the strong chemical odor associated with manufacturing

methamphetamine that was coming from Thompson’s house, smelled by both Detective

Melton and Officer VanCamp; and the inconsistent stories that Thompson and Smith told

when asked to explain the smell. State’s Exhibit 1. We conclude that this was a

sufficient basis to support a determination that probable cause existed for the search

warrant.

       When ruling on the admissibility of evidence, the trial court is afforded broad

discretion, and we will only reverse the ruling upon a showing of abuse of discretion.

Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse of discretion

involves a decision that is clearly against the logic and effect of the facts and

circumstances before the court. Id. We consider the evidence most favorable to the trial

court’s ruling and any uncontradicted evidence to the contrary to determine whether there

is sufficient evidence to support the ruling. Id.

       Concluding that there was probable cause to support both the arrest and search

warrants, we disagree that it was improper to admit evidence recovered during the search


                                              7
of Thompson’s home. The trial court did not abuse its discretion in admitting evidence

retrieved during the search of Thompson’s home.

                                     B. Fentanyl Patch

       In addition to the challenge based on the arrest warrant, Thompson also, briefly,

challenges the admission or sufficiency of the unopened fentanyl patch because it was not

tested by a lab to confirm its contents.

       However, the State correctly notes that our supreme court has held that the

contents of unbroken and manufacturer-sealed packaging can be established by the label

on that package, without needing to test the contents of the package. Reemer v. State,

835 N.E.2d 1005, 1009 (Ind. 2005) (“The fact that the tablets were in the original

unbroken blister packs is sufficient to establish that the contents remained as the

manufacturer packaged them. The labels clearly listed pseudoephedrine hydrochloride as

one of the active ingredients in each tablet. The trial court properly admitted the nasal

decongestant labels into evidence as proof of the contents, and therefore the blister packs

in Reemer’s possession contained pseudoephedrine hydrochloride.”). We conclude that

the trial court did not abuse its discretion in admitting the fentanyl patch into evidence to

prove possession without any further testing.

                                           Conclusion

       Concluding that the trial court did not err in entering judgment of conviction on

the dealing in methamphetamine count, and did not abuse its discretion in admission of

any of the evidence, we affirm.

       Affirmed.

BARNES, J., and BROWN, J., concur.
                                               8
