FOR PUBLICATION




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

J. BRAD VOELZ                                GREGORY F. ZOELLER
Warsaw, Indiana                              Attorney General of Indiana

                                             ANDREW R. FALK
                                             Deputy Attorney General
                                             Indianapolis, Indiana
                                                                              FILED
                                                                           Sep 05 2012, 9:41 am

                            IN THE
                                                                                   CLERK
                  COURT OF APPEALS OF INDIANA                                    of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




CODY B. HONEYCUTT,                           )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )       No. 92A04-1203-CR-149
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE WHITLEY SUPERIOR COURT
                       The Honorable Douglas M. Fahl, Judge
                          Cause No. 92D01-1012-CM-741


                                 September 5, 2012

                            OPINION - FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       Cody B. Honeycutt was arrested and a few days later pled guilty, without counsel,

to Class A misdemeanor possession of marijuana and a traffic infraction and was

sentenced to one year with all but eight days suspended. When the results of Honeycutt’s

blood draw came back positive for marijuana a few days later, the State added two more

charges under the same cause number: Class A misdemeanor operating while intoxicated

and Class C misdemeanor operating a vehicle with a Schedule I or II controlled substance

in his body. Honeycutt, now represented by counsel, filed a motion to dismiss these

charges on grounds that they were barred by the Successive Prosecution Statute because

all four charges were connected by a single scheme or plan and therefore should have

been charged together. The trial court denied his motion, and Honeycutt was found

guilty in a bench trial. Concluding that the trial court abused its discretion in denying

Honeycutt’s motion to dismiss, we reverse the trial court.

                             Facts and Procedural History

       At 8:21 p.m. on December 21, 2010, Indiana State Police Sergeant Todd Reed

was conducting a traffic stop with his emergency lights activated when Honeycutt

“buzzed” by without slowing down or changing lanes. Tr. p. 39, 41. Sergeant Reed

completed his stop and then pursued Honeycutt.               When Sergeant Reed stopped

Honeycutt, who was the only person in the car, Sergeant Reed “immediately detected a

moderate odor of burnt marijuana coming from the inside of the vehicle.” Id. at 39. A

hollowed-out cigar was sitting in the ashtray.       Sergeant Reed also observed that

Honeycutt’s pupils “did not close when the light was shining across his eyes.” Id. at 40.


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Honeycutt told Sergeant Reed that he had smoked marijuana earlier in the day. Sergeant

Reed took Honeycutt to his police car where he began to write a ticket. When Sergeant

Reed told Honeycutt that he smelled raw marijuana, Honeycutt said that he had marijuana

in his pocket. Honeycutt took out a baggie of marijuana and handed it to Sergeant Reed.

Sergeant Reed told Honeycutt to exit the vehicle, at which point he handcuffed him.

Sergeant Reed searched Honeycutt’s car but did not find any contraband.

       Honeycutt agreed to a blood draw, so Sergeant Reed transported him to Parkview

Whitley Hospital, where Honeycutt’s blood was drawn and sent to a laboratory for

testing. Sergeant Reed explained the purpose of the blood draw as follows:

       Because it is illegal to operate a vehicle with marijuana in your system and
       [Honeycutt] had admitted that he had smoked marijuana and that it was in
       his system. [I] suspected at the time of [the] arrest that he was operating
       while intoxicated and operating with a controlled substance in his body.

Id. at 44 (formatting altered). Sergeant Reed filled out an affidavit for probable cause on

the form that is used for operating while intoxicated. Id. at 46-47; Def.’s Ex. B. He

believed Honeycutt was intoxicated because there was a moderate odor of tar consistent

with marijuana coming from inside the car, Honeycutt’s eyes were glassy, and Honeycutt

admitted smoking marijuana earlier in the day. Def.’s Ex. B. Sergeant Reed believed

there was “probable cause” that Honeycutt operated a vehicle while intoxicated and that

he operated a vehicle with a controlled substance in his body. Tr. p. 48.

       Two days later, on December 23, 2010, the State charged Honeycutt with only

Class A misdemeanor possession of marijuana and Class C infraction failure to yield to a

stationary emergency vehicle. At Honeycutt’s initial hearing on December 27, Honeycutt

said that he did not want an attorney and that he wanted to plead guilty to both charges.

                                             3
The State explained that the results of Honeycutt’s blood draw were not back yet and

there might be additional charges. Id. at 8. The trial court asked Honeycutt if he

understood, and he said yes. Id. The court asked Honeycutt if he wanted to wait on the

results, but he said no. Id. The court then said do you “just want to go ahead and get this

part of it done now? There may not be any more charges, but th[e]n again there might

be.” Id. at 8-9. Honeycutt agreed and pled guilty to both charges. During the plea

process, the court again told Honeycutt, “There may or may not be any more charges. If

there are you will deal with it at the time.” Id. at 13. Honeycutt told the trial court “as far

as the OWI, um, I admit that marijuana would be on my . . .,” but the trial court cut him

off before he could say anything else. Id. The trial court sentenced Honeycutt to one

year and suspended all but eight days. The court also suspended Honeycutt’s license for

180 days. Honeycutt began serving his jail time that day.

       Not surprisingly, Honeycutt’s results came back positive for marijuana on

December 30, 2010. Appellant’s App. p. 62. On January 6, 2011, which was ten days

after Honeycutt pled guilty to the first two charges, the State filed two more charges

under the same cause number: Class A misdemeanor operating while intoxicated

(endangering a person), Ind. Code § 9-30-5-2(b), and Class C misdemeanor operating a

vehicle with a Schedule I or II controlled substance in the person’s body, Ind. Code § 9-

30-5-1(c). Id. at 25. But at the initial hearing for these charges, Honeycutt pled not

guilty and requested an attorney. Tr. p. 24.

       Honeycutt later filed a motion to dismiss the new charges on grounds that they

violated the Successive Prosecution Statute, Indiana Code section 35-41-4-4. The trial


                                               4
court denied the motion.     Appellant’s App. p. 52.        A bench trial was then held.

Honeycutt renewed his motion to dismiss, but the trial court denied it. Honeycutt was

convicted of both counts, and sentencing was stayed pending this appeal.

                                Discussion and Decision

      Honeycutt contends that the trial court erred in denying his motion to dismiss the

additional charges of operating a vehicle while intoxicated and operating a vehicle with a

controlled substance in his body because they violated the Successive Prosecution

Statute. He argues that because all four charges arose from the same traffic stop, they

were connected by a single scheme or plan and should have been charged together.

      We review a trial court’s denial of a motion to dismiss for an abuse of discretion.

Haywood v. State, 875 N.E.2d 770, 772 (Ind. Ct. App. 2007). An abuse of discretion

occurs where the decision is clearly against the logic and effect of the facts and

circumstances or when the trial court has misinterpreted the law. Id.

      The Successive Prosecution Statute provides in relevant part:

      (a) A prosecution is barred if all of the following exist:

             (1) There was a former prosecution of the defendant for a different
             offense or for the same offense based on different facts.

             (2) The former prosecution resulted in an acquittal or a conviction of
             the defendant or in an improper termination under section 3 of this
             chapter.

             (3) The instant prosecution is for an offense with which the
             defendant should have been charged in the former prosecution.

Ind. Code § 35-41-4-4. The circumstances here satisfy subsections (a)(1) and (a)(2). The

issue is whether Honeycutt “should have been charged” with the two operating counts in


                                             5
the former prosecution. See Williams v. State, 762 N.E.2d 1216, 1219 (Ind. 2002); Allen

v. State, 956 N.E.2d 195, 197 (Ind. Ct. App. 2011). The language “should have been

charged” must be read in conjunction with Indiana’s joinder statute. Williams, 762

N.E.2d at 1219; Allen, 956 N.E.2d at 197. Indiana’s joinder statute provides in relevant

part:

        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.

Ind. Code § 35-34-1-9(a). In addition, Indiana Code section 35-34-1-10(c) provides in

relevant part:

        A defendant who has been tried for one (1) offense may thereafter move to
        dismiss an indictment or information for an offense which could have been
        joined for trial with the prior offenses under section 9 of this chapter. The
        motion to dismiss shall be made prior to the second trial, and shall be
        granted if the prosecution is barred by reason of the former prosecution.

Thus, where two or more charges are based on the same conduct or on a series of acts

constituting parts of a single scheme or plan, “they should be joined for trial.” Williams,

762 N.E.2d at 1219 (quotation omitted). This statutory scheme provides a check upon

the otherwise unlimited power of the State to pursue successive prosecutions.             Id.

“Where the State chooses to bring multiple prosecutions for a series of acts constituting

parts of a single criminal transaction, it does so at its own peril.” Id. To determine

whether contemporaneous crimes are part of a single scheme or plan, we examine


                                               6
“whether they are connected by a distinctive nature, have a common modus operandi, and

a common motive.” Id. at 1220 (quotation omitted).

       Here, the State concedes that all four charges are connected by a scheme or plan

and therefore this case falls under the Williams rule. See Appellee’s Br. p. 7. But the

State argues that this is irrelevant because the State did not have probable cause to bring

the operating charges against Honeycutt at the same time it charged him with possession

of marijuana and the traffic infraction. See State v. McDonald, 954 N.E.2d 1031, 1034

(Ind. Ct. App. 2011) (“We need not determine whether the alleged offenses were part of a

single scheme or plan because, regardless, we cannot say that McDonald ‘should have

been charged’ with the offenses against J.M. at the same time as he was charged with the

sexual offenses against A.M. and neglect against the three children . . . [because]

[p]robable cause was necessary to charge McDonald with the offenses related to J.M.”).

We do not agree. We find that there was probable cause to charge Honeycutt with the

operating offenses at the same time he was charged with possession of marijuana and the

traffic infraction.

       The record shows that Sergeant Reed pulled over Honeycutt for failing to yield to

a stationary emergency vehicle. When Sergeant Reed approached Honeycutt, the lone

occupant of the car, he “immediately detected a moderate odor of burnt marijuana

coming from the inside of the vehicle.” Tr. p. 39. A hollowed-out cigar was sitting in the

ashtray. In addition, Honeycutt’s eyes were glassy, and his pupils did not react when a

flashlight was shined in his eyes. Honeycutt admitted smoking marijuana earlier that

day, and he had marijuana in his pocket. As a result of these facts, Sergeant Reed took


                                            7
Honeycutt to the hospital for a blood draw and filled out the probable-cause affidavit

form that is used for OWIs. Sergeant Reed later testified at Honeycutt’s bench trial that

he believed he had probable cause that Honeycutt operated a vehicle while intoxicated

and operated a vehicle with a controlled substance in his body. Id. at 48. Notably, it is a

crime to operate a vehicle with marijuana in your body, even if you are not “intoxicated.”

I.C. § 9-30-5-1(c). Unlike McDonald, upon which the State relies on appeal, here the

State was aware of the basis of the operating charges and had evidence to support these

charges when it filed the Class A misdemeanor possession of marijuana and traffic

infraction on December 23, 2010, which was two days after Honeycutt’s arrest.1

        Although the lab results were no doubt an important piece of evidence for the

State, the State also had Honeycutt’s admission that he smoked marijuana earlier that

day, marijuana from Honeycutt’s pocket, and Sergeant Reed’s observations of Honeycutt.

If the State believed that the lab results were the key piece of evidence it needed to file

the operating charges, then it should have completed its investigation, dismissed the

initially-filed Class A misdemeanor possession of marijuana and traffic infraction, and

filed all four charges at the same time.               See McDonald, 954 N.E.2d at 1035 n.2

(“Prosecutors are not under a duty to bring charges as soon as probable cause exists. In

fact, they are vested with broad discretion in the performance of their duties, and such



        1
          In McDonald, when the State charged the defendant with child molesting and other counts
related to one of his children, A.M., his other child, J.M., was unable to communicate due to severe
speech delays and impaired hearing. Consequently, J.M. made no allegations against the defendant at that
time. But when J.M.’s speech improved greatly over a year after the defendant pled guilty to a charge
related to A.M., J.M. accused the defendant of child molesting. This Court held that the State did not
have adequate evidence to charge the defendant with molesting J.M. until over a year after he pled guilty
to the charge related to A.M. and therefore there was no violation of the Successive Prosecution Statute.
McDonald, 954 N.E.2d at 1034-35. The facts of this case are readily distinguishable.
                                                   8
discretion includes the decision of whether and when to prosecute.” (emphasis added)

(citations omitted)). Because the four charges were supported by probable cause and

based on a series of acts so connected that they constituted parts of a single scheme or

plan, they should have been charged in a single prosecution.

       Nevertheless, the State argues that Honeycutt waived this issue because both the

trial court and the prosecutor warned Honeycutt before he pled guilty to Class A

misdemeanor possession of marijuana and the traffic infraction that the results of his

blood draw were pending and additional charges might be coming. The trial court asked

Honeycutt, do you “just want to go ahead and get this part of it done now? There may

not be any more charges, but th[e]n again there might be.” Tr. p. 8-9. The unrepresented

Honeycutt then pled guilty to Class A misdemeanor possession of marijuana and the

traffic infraction.

       Indiana Code section 35-34-1-10(c) provides:

       A defendant who has been tried for one (1) offense may thereafter move to
       dismiss an indictment or information for an offense which could have been
       joined for trial with the prior offenses under section 9 of this chapter. The
       motion to dismiss shall be made prior to the second trial, and shall be
       granted if the prosecution is barred by reason of the former prosecution.

(Emphases added). As this Court explained in Allen,

       prior holdings of both this and the Indiana Supreme Court as well as the
       express language of Indiana Code section 35-34-1-10(c) contemplate that
       dismissal of a subsequent matter is still available after the resolution of the
       first matter so long as the defendant requests the dismissal before the
       beginning of the second trial. See Williams, 762 N.E.2d at 1219; Haywood,
       875 N.E.2d at 773-74; [State v.]Wiggins, 661 N.E.2d [878, 880-81 (Ind. Ct.
       App. 1996)]. We see no reason to stray from the prior decisions of the
       Indiana Appellate Courts, or to circumvent the wisdom of the General
       Assembly regarding when a defendant must object to a successive


                                             9
       prosecution under the Successive Prosecution Statute, and accordingly
       reject the State’s invitation to do so.

956 N.E.2d at 198.

       Even if we assume that a defendant can waive this issue when he knows that a

second set of charges may be on the horizon, there was no valid waiver here because

Honeycutt was neither aware of the rights he was waiving under the Successive

Prosecution Statute nor was he represented by an attorney. We therefore cannot say that

Honeycutt waived his challenge under the Successive Prosecution Statute.

       The trial court abused its discretion in denying Honeycutt’s motion to dismiss the

charges of Class A misdemeanor operating while intoxicated and Class C misdemeanor

operating a vehicle with a Schedule I or II controlled substance in his body.

       Reversed.

MATHIAS, J., and BARNES, J., concur.




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