MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Apr 30 2019, 8:37 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                           Curtis T. Hill, Jr.
Brownsburg, Indiana                                       Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dashon Allen Martin,                                      April 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2114
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Alicia Gooden,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G21-1607-F2-28142



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019                  Page 1 of 11
                                          Statement of the Case
[1]   Dashon Martin (“Martin”) appeals his convictions following a bench trial for

      Level 2 felony dealing in cocaine;1 Level 6 felony possession of a narcotic drug;2

      Level 6 felony escape;3 and Class A misdemeanor possession of marijuana. 4 He

      also appeals his adjudication as an habitual offender.5 Martin argues that: (1)

      the trial court abused its discretion in admitting evidence; and (2) fundamental

      error occurred during the habitual offender phase of Martin’s trial. Concluding

      that any error in the admission of evidence was harmless and that no

      fundamental error occurred, we affirm Martin’s convictions.


                                                     Issues
                  1.          Whether any error in the admission of evidence was
                              harmless.
                  2.          Whether fundamental error occurred during the habitual
                              offender phase of trial.

                                                      Facts
[2]   In July 2016, the State charged Martin with dealing in cocaine, possession of

      cocaine, possession of a narcotic drug, escape, and possession of marijuana and

      alleged that he was an habitual offender. Testimony at trial revealed that, at the




      1
          IND. CODE § 35-48-4-1.
      2
          I.C. § 35-48-4-6.
      3
          I.C. § 35-44.1-3-4.
      4
          I.C. § 35-48-4-11
      5
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019   Page 2 of 11
      time of his arrest, Martin was “on home detention [at his mother’s home] for

      dealing . . . cocaine.” (Tr. Vol. 2 at 43). After receiving a tip that Martin was

      engaging in narcotics activity, Community Corrections Coordinator Jill Jones

      (“Jones”) conducted a home visit at Martin’s mother’s apartment. Jones was

      accompanied to Martin’s mother’s apartment by IMPD Officer John Wallace

      (“Officer Wallace”) and when she entered the apartment, she immediately

      smelled the odor of marijuana.


[3]   A search of the apartment revealed 43.47 grams of cocaine in baggies hidden

      under couch cushions and in a bag of Martin’s clothes, 4.71 grams of

      marijuana, and .99 grams of heroin. In addition, the search also uncovered

      digital scales with residue, plastic baggies with torn off corners on the kitchen

      table, $2200 in a safe, $800 in Martin’s possession, and $120 on a television

      stand. When asked what the torn corners of baggies indicated to him, Officer

      Wallace responded without objection that he had often “seen that baggie

      corners are very frequently used to package narcotics for smaller quantities,

      breaking up into smaller quantities.” (Supp. Tr. Vol. 2 at 52).


[4]   IMPD Detective Ryan Vanoeveren (“Detective Vanoeveren”), who has been

      involved in narcotics investigations for fourteen years, testified that he is

      familiar with both cocaine users and dealers. According to the detective,

      cocaine users typically use plastic straws or a glass or metal pipes to ingest

      cocaine and do not have large amounts of cash on their person because they

      spend their money as fast as they get it. Detective Vanoeveren also testified that

      the most common items to repackage cocaine are plastic baggies. Specifically,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019   Page 3 of 11
      he explained that four to five ounces “is going to fit pretty good” in a baggy.

      (Tr. Supp. Vol. 2 at 149). However, he further explained that for “smaller

      amounts, then you may take a plastic baggy and put a[n] eight ball or quarter

      ounce in a bag and tie it off in a knot and cut it off and resell it.” (Tr. Supp.

      Vol. 2 at 149). Detective Vanoeveren testified, based on his training and

      experience and over Martin’s objection, that “no user paraphernalia, baggies

      with corners missing, a large amount of cash, scales, and about an ounce-and-a-

      half of cocaine” is consistent with dealing. (Tr. Supp. Vol. 2 at 150). The trial

      court found Martin guilty as charged on all five counts.


[5]   During the habitual offender phase of trial, the State introduced Exhibit 32,

      which included documents from a prior Level 3 felony dealing in cocaine

      conviction in State v. Dashon Martin. The State also introduced Exhibit 34,

      which included documents from a prior Court 14 Class D felony possession of

      cocaine conviction in State v. Dartanyon Martin. The documents in Exhibit 34

      included a copy of an order granting the State’s motion to amend the

      information by substituting the name Dashon Martin for the name Dartanyon

      Martin. The State’s motion to amend had explained to the trial court that

      Dashon Martin had falsely used the name Dartanyon Martin when he had been

      booked but had later admitted that he, Dashon Martin, was the defendant in

      the felony possession of cocaine cause. Martin did not object to either exhibit,

      and the trial court admitted them both into evidence.


[6]   After admitting the documents into evidence, the trial court continued to look

      them over and pointed out that the original charging information in Exhibit 34

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019   Page 4 of 11
and the amended information that corrected Martin’s name had the two counts

“flipflopped and incorrect.” (Tr. Supp. Vol. 2 at 63). Specifically, the trial

court pointed out that the original information charging Dartanyon Martin

listed Count 1 as Class D felony possession of cocaine pursuant to INDIANA

CODE § 35-48-4-6 and Count 2 as Class A misdemeanor possession of

marijuana pursuant to INDIANA CODE § 38-48-4-11. The accompanying plea

agreement provided that Martin would plead guilty to Count 1, possession of

cocaine, and the State would dismiss Count 2. The abstract of judgment

showed a conviction and sentence for Count 1, possession of cocaine.

However, the amended information listed Count 1 as Class A misdemeanor

possession of hash oil pursuant to INDIANA CODE § 38-48-4-11 and Count 2 as

Class D felony possession of a narcotic drug pursuant to INDIANA CODE § 35-

48-4-6. Despite the flipflopping of charges in the amended information, the

parties agreed that Exhibit 34 showed that Martin had an unrelated felony

conviction for the purposes of an habitual offender adjudication. In fact,

Martin stipulated to the unrelated felony conviction and acknowledged that

“[i]t does have the substance.” (Tr. Vol. 2 at 64). When the trial court

remained bothered by the flipflopped charges, the State offered to follow up

with Court 14 and request an amended abstract of judgment. The trial court

responded that such a follow-up would be appropriate. The trial court stated

that Martin had a prior conviction pursuant to Exhibit 32 but that it would

withhold judgment on the habitual offender finding until the parties returned

for sentencing.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019   Page 5 of 11
[7]   At Martin’s sentencing hearing the following month, the State advised the trial

      court that it had filed the motion to amend the abstract of judgment in Court 14

      and had been notified that the motion had been granted; however, the State had

      not seen the amended abstract and did not have a copy of it to show the trial

      court. The State offered to call IDENT “to say that those fingerprints are

      indeed Dashon Martin’s, and match up those priors with the arrested person.”

      (Tr. Vol. 2 at 74). The State also suggested that since Martin’s counsel had

      represented Martin on both of the prior convictions, the State could “end up

      subpoenaing [Martin’s counsel] to say in fact it is Mr. Martin who I represented

      and pled guilty to these convictions.”6 (Tr. Vol. 2 at 74). The trial court

      determined that a fingerprint identification was “the cleaner way to do it.” (Tr.

      Vol. 2 at 75). As it looked through Exhibit 34, the trial court pointed out that

      even without an amended abstract of judgment, “given the record that was filed

      there, and the motion to amend the charging information, and that reflection




      6
        Martin’s counsel properly responded that the State could not “call [her] because [she had] an
      attorney/client privilege.” (Tr. Vol. 2 at 74). The United States Supreme Court has explained the attorney-
      client privilege as follows in Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)(quotations and citations
      omitted):
               The attorney-client privilege is the oldest of the privileges for confidential communications
               known to the common law. Its purpose is to encourage full and frank communication
               between attorneys and their clients and thereby promote broader public interests in the
               observance of law and administration of justice. The privilege recognizes that sound legal
               advice or advocacy serves public ends and that such advice or advocacy depends upon the
               lawyer’s being fully informed by the client.
      The Indiana Supreme Court has further noted that the “policy justifying the privilege is to encourage full and open
      disclosure of even very dangerous information.” Glover v. State, 836 N.E.2d 414, 420 (Ind. 2005). In addition,
      Indiana has codified the privilege providing that, except as otherwise provided by statute, attorneys shall not be
      required to testify regarding “confidential communications made to them during the course of their professional
      business.” IND. CODE § 34-46-3-1. Although the Indiana Rules of Professional Conduct provide exceptions to the
      attorney-client privilege, none of them apply to an attorney testifying about his client’s prior convictions to support
      an habitual offender adjudication. See Ind. Professional Conduct Rule 1.6(b).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019                            Page 6 of 11
       that Mr. Martin testified that he and Dartanyon Martin are the same, in that

       court hearing, I think the Court could have easily accepted it, found him guilty

       of habitual and we could have been done a month ago.” (Tr. Vol. 2 at 75, 77).

       The trial court further explained that it “felt it would just be cleaner, from a

       procedural sense to have it amended.” (Tr. Vol. 2 at 77).


[8]    Thereafter, Matthew Weisjahn from the IMPD identification and records unit,

       testified that he had just taken Martin’s fingerprint and that that fingerprint

       matched the fingerprint admitted as part of Exhibit 34. The trial court found

       Martin to be an habitual offender, vacated the possession of cocaine conviction,

       and sentenced Martin to twenty-eight (28) years for dealing cocaine, one (1)

       year for possession of a narcotic drug, one (1) year for escape, and one-hundred

       and eighty (180) days for possession of marijuana. The trial court ordered the

       sentences to run concurrently and enhanced the twenty-eight (28) year sentence

       by eight (8) years for the habitual offender adjudication.


[9]    Martin now appeals.


                                                    Decision
[10]   Martin argues that the trial court abused its discretion in admitting evidence

       and that fundamental error occurred during the habitual offender phase of trial.

       We address each of his contentions in turn.


       1.      Admission of Evidence




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019   Page 7 of 11
[11]   Martin first contends that the trial court erred in admitting Detective

       Vanoeveren’s testimony that items found in Martin’s home were consistent

       with dealing in cocaine. We review the trial court’s decision on the

       admissibility of evidence for an abuse of discretion. Hape v. State, 903 N.E.2d

       977, 991 (Ind. Ct. App. 2009), trans. denied. We will reverse a trial court’s

       decision only if it is clearly against the logic and effect of the facts and

       circumstances of the case. Id. However, the erroneous admission of evidence is

       to be disregarded as harmless if the conviction is supported by substantial

       independent evidence of guilt satisfying the reviewing court that there is no

       substantial likelihood the challenged evidence contributed to the conviction.

       Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).


[12]   Here, there was substantial evidence apart from Detective Vanoeveren’s

       testimony to support Martin’s conviction. Specifically, officers found 43.47

       grams of cocaine in Martin’s mother’s apartment. One of the bags of cocaine

       was found in a bag of Martin’s clothes. Officers also found digital scales with

       residue, plastic baggies with torn off corners on the kitchen table, $2200 in a

       safe, $800 in Martin’s possession, and $120 on a television stand. No

       paraphernalia to use the cocaine, such as a plastic straw or a glass or metal pipe,

       was found in the apartment. In addition, when asked what the torn corners of

       baggies indicated to him, Officer Wallace responded that he had often “seen

       that baggie corners are very frequently used to package narcotics for smaller

       quantities, breaking up into smaller quantities.” (Supp. Tr. Vol. 2 at 52).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019   Page 8 of 11
[13]   This overwhelming evidence, all of which was admitted without objection,

       leads us to conclude that there is no substantial likelihood that the challenged

       evidence contributed to Martin’s conviction. Any error in the admission of

       Detective Vanoeveren’s testimony that this evidence was consistent with

       cocaine dealing was therefore harmless.


       2.      Habitual Offender Phase


[14]   Martin also argues that fundamental error occurred during the habitual offender

       phase of trial. Specifically, Martin contends that the trial “court should have

       decided if Martin was a[n] habitual offender, based solely on the evidence that

       the State presented” during the habitual offender phase of trial. (Martin’s Br.

       at 17). According to Martin, the trial court “judge stepped outside of her proper

       role, as a neutral and passive arbiter, when she pointed out the deficiencies in

       Exhibit 34, and adjourned the proceedings so that the State could correct those

       deficiencies.” (Martin’s Br. at 17).


[15]   Martin, however, acknowledges that he failed to object at the habitual offender

       phase of trial when the trial court adjourned the proceedings. In order to

       preserve an issue for appeal, a contemporaneous objection must be made when

       the evidence is introduced at trial. Palilonis v. State, 970 N.E.2d 713, 730 (Ind.

       Ct. App. 2012), trans. denied. If no such objection is made, the issue is waived

       for appellate review. Id. Nevertheless, Martin claims the adjournment

       amounted to fundamental error.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019   Page 9 of 11
[16]   The fundamental error doctrine is an exception to the general rule that the

       failure to object at trial constitutes a procedural default precluding consideration

       of the issue on appeal. Id. In order to be fundamental, the error must represent

       a “blatant violation of basic principles rendering the trial unfair to the defendant

       and thereby depriving the defendant of fundamental due process.” Hoglund,

       962 N.E.2d at 1239. “Harm is not shown by the fact that the defendant was

       ultimately convicted; rather harm is found when error is so prejudicial as to

       make a fair trial impossible.” Id. Further, this exception is available only in

       egregious circumstances. Palilonis, 970 N.E.2d at 730.


[17]   Here, Martin has failed to allege or show how the adjournment of the habitual

       offender proceedings to allow the State to clean up the record made a fair trial

       impossible or why the circumstances in this case were egregious. Rather, our

       review of the evidence reveals that the trial court simply wanted to obtain a

       clean record because Exhibit 34, which included information regarding one of

       Martin’s prior convictions, contained clerical errors unrelated to the underlying

       conviction. In fact, Martin stipulated to having the unrelated conviction set

       forth in Exhibit 34. The trial court could have adjudicated Martin to be an

       habitual offender based on this evidence but instead chose to adjourn the

       proceedings so that the State could seek an amendment to the abstract of

       judgment in Exhibit 34. According to the trial court, it felt the amendment to

       the abstract of judgment “would be cleaner.” (Tr. Vol. 2 at 77). We agree with

       the State that the additional proceedings conducted at the trial court’s request




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019   Page 10 of 11
       did not alter the result of habitual offender adjudication. We find no error,

       fundamental or otherwise.


[18]   Affirmed.


[19]   Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2114 | April 30, 2019   Page 11 of 11
