MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 14 2018, 9:19 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
Andrew Bernlohr                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        J. T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert Lavon Ackles,                                    December 14, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-846
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G21-1612-F2-46192



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018                  Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Robert Ackles (Ackles), appeals his conviction for one

      Count of dealing in a narcotic drug, a Level 2 felony, Ind. Code § 35-48-4-

      1(a)(2); two Counts of possession of a narcotic drug, Level 3 felonies, I.C. § 35-

      48-4-6(d); and one Count of possession of a marijuana, a Class B misdemeanor,

      I.C. § 35-48-4-11(a)(1).


[2]   We affirm.


                                                   ISSUE
[3]   Ackles presents one issue on appeal, which we restate as the following:

      Whether the trial court abused its discretion by denying Ackles’ pretrial motion

      to compel the State to disclose the identity of its confidential informant.


                      FACTS AND PROCEDURAL HISTORY
[4]   Between November 1, 2016, and November 3, 2016, Detective Patrick Bragg

      (Detective Bragg) and Detective Andrew Deddish (Detective Deddish) of the

      Indianapolis Metropolitan Police Department (IMPD), met with a confidential

      informant for the “purposes of attempting to purchase methamphetamine from

      a male known as ‘Black’ from a residence located “at 1260 King Ave,

      Indianapolis, IN 46222.” (Appellant’s App. Vol. II, p. 106). Prior to the buy,

      the confidential informant was searched and furnished with “buy money.”

      (Appellant’s App. Vol. II, p. 106). The detectives then followed the confidential

      informant to the residence located at 1260 King Avenue. Other assisting

      detectives strategically parked their vehicles at points to observe the transaction.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018   Page 2 of 11
      Detective Bragg observed the confidential informant speaking with a man

      known to him as Ackles and known to the confidential informant as “Black.”

      (Appellant’s App. Vol. II, p. 106). “After approximately 2 minutes, Detective

      Bragg and Deddish observed . . . Ackles use a key to open the front door” of the

      1260 King Avenue residence. (Appellant’s App. Vol. II, p. 106). Ackles was

      inside the house for about “30 seconds,” and when he exited, he “approached

      the confidential informant.” (Appellant’s App. Vol. II, p. 106). The

      confidential informant thereafter left and met the detectives at a pre-determined

      location without making any stops along the way. Reiterating the events of the

      controlled buy, the confidential informant informed the detectives that a male,

      known to “him/her” as Black, unlocked the front door of the residence and

      retrieved “a quantity of methamphetamine in exchange for the IMPD buy

      money.” (Appellant’s App. Vol. II, p. 106).


[5]   Between November 8, 2016, and November 10, 2016, Detective Bragg met with

      the confidential informant to conduct a second controlled buy from Ackles.

      After a search, the detectives equipped the confidential informant with buy

      money and “an audio transmitting device.” (Appellant’s App. Vol. II, p. 106).

      Detectives Bragg and Deddish, and other detectives, followed the confidential

      informant to Ackles’ residence at 1260 King Avenue to conduct a surveillance

      of the drug transaction. This time, the confidential informant was welcomed

      into the residence by an “unknown individual.” (Appellant’s App. Vol. II, p.

      108). After approximately five minutes, the confidential informant left Ackles’

      house and met the detectives at a predetermined location and gave the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018   Page 3 of 11
      detectives a “quantity of methamphetamine” that he had purchased from

      Ackles. (Appellant’s App. Vol. II, p. 108).


[6]   Between November 26, 2016, and November 28, 2016, Detective Bragg met

      with the confidential informant to conduct a third controlled buy from Ackles.

      As before, the confidential informant was provided with drug money and

      outfitted with a wire intercept device. Consistent with the first and second

      controlled buys, the detectives followed the confidential informant to Ackles’

      residence. The confidential informant was inside Ackles’ house for

      approximately eleven minutes, and after the confidential informant left, he/she

      met the detectives at a prearranged location. At the location, the confidential

      informant stated that Ackles had given him a quantity of methamphetamine in

      exchange for the buy money.


[7]   On November 29, 2016, Detective Bragg requested a No-Knock Search

      Warrant to search the residence at 1260 King Avenue for drugs, buy money,

      firearms, and other related items. In the supporting affidavit, Detective Bragg

      repeated the three controlled buys and averred that the confidential informant

      had seen Ackles with “a firearm and wearing a bullet resistant vest in the past.”

      (Appellant’s App. Vol. II, p. 110). Detective Bragg added that during

      “controlled buy[s] #2 and #3, the confidential informant stated that . . . Ackles

      . . . had a firearm on his lap and two other firearms were observed on separate

      tables in the residence.” (Appellant’s App. Vol. II, p. 110). In further support,

      Detective Bragg attested that Ackles is “currently on parole” and his “arrest

      poses a threat to law enforcement” since he was “more likely to employ

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018   Page 4 of 11
      dangerous measures to avoid apprehension.” (Appellant’s App. Vol. II, p.

      110).


[8]   On the same day, a magistrate issued the warrant. Prior to the execution of the

      warrant and the arrival of other officers and the SWAT team, Detective Bragg

      and Detective Deddish conducted a surveillance of Ackles’ home for about two

      hours. During that period, the detectives saw two males walk up to the porch

      of the 1260 King Avenue residence. The SWAT team arrived at the same time

      the men were arriving and ordered the men to lay on the ground. Upon seeing

      that, Detective Bragg and Detective Deddish exited their undercover vehicle

      and followed the SWAT team inside the house. Ackles and another male were

      found inside and escorted out of the house. Although it was about sixty-one

      degrees outside, Ackles requested Detective Deddish to hand him a grey

      sweatshirt that was on a recliner. When Detective Deddish lifted the

      sweatshirt, there was a “Glock .27 pistol” underneath. (Tr. Vol. II, p. 197).

      During the search, mail addressed to Ackles was found inside the home. In

      several locations inside Ackles’ home, the officers found several controlled

      substances which included suboxone, buprenorphine, oxycodone,

      hydrocodone, methamphetamine, twenty-two grams of marijuana, and twenty-

      eight grams of heroin.


[9]   On December 2, 2016, the State filed an Information, charging Ackles with

      Count I, dealing in a narcotic drug, a Level 2 felony; Counts II-III, possession

      of a narcotic drug, Level 3 felonies, Count IV, possession of methamphetamine,

      a Level 5 felony; and Count V, possession of marijuana, a Class B

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018   Page 5 of 11
       misdemeanor. The State also filed an habitual offender charge alleging that

       Ackles had accumulated at least two prior unrelated felony convictions.


[10]   On August 30, 2017, prior to his trial, Ackles filed a Motion to Reveal the

       Identity of the Confidential Informant. Ackles argued that without the identity

       of the confidential informant, he was unable to prepare his defense. On the

       same day, the State filed its response, arguing that the informant’s role was

       minimal in achieving the No-Knock Search Warrant. Specifically, the State

       argued, that while it had utilized a confidential informant in the “three

       controlled buys that led to the search warrant, [] those buys were not criminally

       charged.” (Appellant’s App. Vol. II, p. 94). Further, the State argued that it

       did not intend to subpoena the confidential informant to testify against Ackles.


[11]   On September 12, 2017, a hearing was conducted on Ackles’ motion. After the

       parties’ arguments, the trial court then took the matter under advisement. On

       September 22, 2017, the trial court denied Ackles’ motion to compel discovery.


[12]   On February 27, 2018, through February 28, 2018, the trial court conducted a

       bifurcated jury trial. The first phase of the trial involved all charges except the

       habitual offender charge. At the close of the evidence, the jury found Ackles

       guilty of Count I, dealing in a narcotic drug, a Level 2 felony; Counts II and III,

       possession of a narcotic drug, Level 3 felonies; and Count V, possession of a

       marijuana, a Class B misdemeanor. During the second phase, a bench trial was

       conducted since Ackles had waived his right to a jury trial. During the hearing,

       the State presented evidence of Ackles’ prior unrelated felony convictions in


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018   Page 6 of 11
       relation to the habitual offender charge. At the close of the evidence, the trial

       court adjudicated Ackles as a habitual offender.


[13]   On March 21, 2018, the trial court conducted a sentencing hearing. The trial

       court merged Count III with Count I and then ordered Ackles to serve

       seventeen years in the Department of Correction. That sentence was enhanced

       by six years due to the habitual offender finding. Also, the trial court sentenced

       Ackles to six years for Count II, and 180 days for Count V. Ackles’ sentences

       were to run concurrently, for an aggregate sentence of twenty-three years.


[14]   Ackles now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[15]   Ackles contends that the trial court abused its discretion in denying his pretrial

       motion to compel the State to disclose the identity of its confidential informant.


[16]   Even before we address Ackles’ claim, we note that “a party waives an issue on

       appeal by making no mention at trial of the grounds asserted on appeal.” Cadiz

       v. State, 683 N.E.2d 597, 598 (Ind. Ct. App. 1997). Ackles has therefore waived

       his claim for review. Ackles did not file an interlocutory appeal from the trial

       court’s adverse ruling. Also, during the first phase of Ackles’ trial, the trial

       court proceeded without any objections on grounds relating to the confidential

       informant’s identity or why that disclosure remained important in the

       preparation of Ackles’ defense. Waiver aside, we address his claim.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018   Page 7 of 11
[17]   In Beville v. State, 71 N.E.3d 13, 19 (Ind. 2017), our supreme court recently held

       that


               Indiana generally withholds the disclosure of evidence that
               reveals an informant’s identity for at least two important policy
               reasons—preventing retaliation against informants and ensuring
               individuals come forward with information to help law
               enforcement. The informer’s privilege, however, is not absolute:
               if the accused seeks disclosure, the burden is on him to
               demonstrate that disclosure is relevant and helpful to his defense
               or is necessary for a fair trial. To meet this burden, the defendant
               must also show that he is not merely speculating that the
               information may prove useful. If the defendant overcomes his
               burden, the burden shifts to the State to present evidence showing
               that disclosure is not necessary to the defendant’s case or that
               disclosure would threaten its ability to recruit or use [confidential
               informants] in the future. Then, with both sides’ evidence, the
               trial court must determine whether disclosure is appropriate by
               balancing the public interest in encouraging a free flow of
               information to the authorities with the defendant’s interest in
               obtaining disclosure to prepare his defense. The trial court
               should not disclose an informant’s identity to permit a mere
               fishing expedition.


       (citations and quotation marks omitted).


[18]   At the evidentiary hearing, Ackles’ attorney argued that there “was no

       compelling need to keep the identity of the informant secret as there has been

       no real evidence” that there was a “safety issue.” (Tr. Vol. II, p. 13). Ackles’

       attorney continued to argue, “[S]o what we’re asking the [c]ourt to do is order

       the State to reveal the confidential informant’s identity to us for the purpose of

       discovery so that we can conduct complete discovery on behalf of Mr. Ackles.”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018   Page 8 of 11
       (Tr. Vol. II, p. 15). On appeal, Ackles argues that the confidential informant’s

       role was “neither marginal nor incidental. [It was] central. In withholding the

       [confidential informant’s] identity, the trial court abused its discretion and

       utterly and materially damaged [his] ability to defend himself.” (Appellant’s

       Br. p. 9). The State argues that Ackles’ arguments on appeal are the type of

       arguments disfavored by Indiana’s general policy preventing disclosure of an

       informant’s identity, and his contentions do not establish how he was

       prejudiced by the trial court’s refusal to order disclosure of the confidential

       informant’s identity.


[19]   Turning to the record, we note that the basis of the No-Knock Search Warrant

       for Ackles’ residence at 1260 King Avenue was the information contained in

       Detective Bragg’s probable cause affidavit. In Methene v. State, 720 N.E.2d 384,

       387 (Ind. Ct. App. 1999), we explained the process of a controlled buy:


               A controlled buy consists of searching the person who is to act as
               the buyer, removing all personal effects, giving him money with
               which to make the purchase, and then sending him into the
               residence in question. Upon his return he is again searched for
               contraband. Except for what actually transpires within the
               residence, the entire transaction takes place under the direct
               observation of the police. They ascertain that the buyer goes
               directly to the residence and returns directly, and they closely
               watch all entrances to the residence throughout the transaction.


       So long as the “controls are adequate, the affiant’s personal observation of a

       controlled buy may be sufficient as grounds for finding probable cause.” Id. at

       390.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018   Page 9 of 11
[20]   Although a confidential informant was used to effectuate the controlled buys of

       methamphetamine in November 2016, Detective Bragg outlined sufficient

       details in the probable cause affidavit that the controlled buys were valid.

       Therefore, we find that the informant’s identity had little relevance because

       probable cause to search was not simply based on the uncorroborated

       statements or credibility of the confidential informant. Instead, Detective Bragg

       stated that he personally observed the controlled buys which provided him

       probable cause to search Ackles’ residence. Simply put, the confidential

       informant’s statements and/or credibility did not play a substantial role in the

       issuance of the No-Knock Search Warrant.


[21]   As stated, the informer’s privilege, however, is not absolute: if the accused seeks

       disclosure, the burden is on him to demonstrate that disclosure is relevant and

       helpful to his defense or is necessary for a fair trial. Beville, 71 N.E.3d at 19. To

       meet this burden, the defendant must also show that he is not merely

       speculating that the information may prove useful. Id. Here, Ackles did not

       meet his burden to show how disclosure of the confidential informant’s identity

       would have been relevant and helpful to his defense or was necessary for a fair

       trial. While Ackles argues that the informant provided material information

       underlying the search warrant affidavit and that without the informant’s

       identity, he was unable to prepare his defense, the confidential informant had

       little relevance because probable cause to search was not simply based on the

       uncorroborated statements or credibility of the confidential informant. As such,

       Ackles’ request for disclosure appears to have been simply a fishing expedition,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018   Page 10 of 11
       and that does not suffice. Ackles did not meet his burden, and therefore the

       trial court did not abuse its discretion in denying his pretrial motion to compel

       the State to disclose the identity of its confidential informant.


                                             CONCLUSION
[22]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in denying Ackles’ pretrial motion to compel the discovery of the

       informant’s identity.


[23]   Affirmed.


[24]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-846 | December 14, 2018   Page 11 of 11
