MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Apr 08 2020, 12:23 pm
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
Kurt A. Young                                             Curtis T. Hill, Jr.
Nashville, Indiana                                        Attorney General of Indiana
                                                          Myriam Serrano
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Eugene Moore,                                       April 8, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2089
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Jennifer Prinz
Appellee-Plaintiff.                                       Harrison, Judge
                                                          Trial Court Cause No.
                                                          49G20-1804-F2-11795



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020                  Page 1 of 11
[1]   Brian Eugene Moore appeals his convictions for dealing in methamphetamine

      as a level 2 felony, unlawful possession of a syringe and maintaining a common

      nuisance as a level 6 felonies, possession of marijuana as a class B

      misdemeanor, and possession of paraphernalia as a class C misdemeanor. We

      affirm and remand.


                                       Facts and Procedural History

[2]   On April 9, 2018, police arrived at a residence which was leased by Moore and

      his fiancée Monica Vance to execute an arrest warrant for Tylan Abrego who

      was wearing a GPS monitor and had been staying at the residence for about

      one week. Police executed the arrest warrant and placed Abrego in handcuffs.

      Vance was not at home at the time of the search. As they placed Abrego in

      handcuffs, officers heard shuffling on the other side of the living room wall,

      performed a protective sweep for officer safety, found Moore sitting on the bed

      in the front bedroom, and noticed a semi-automatic handgun on a nightstand

      next to him and a bag of marijuana on a dresser. They obtained a search

      warrant and then searched the residence.


[3]   Officers found a baggie of marijuana; a baggie of crystal methamphetamine; a

      meth pipe, a hundred-gram balance weight, and wallet with Moore’s

      identification in the nightstand; a meth pipe and a syringe on the bed; a revolver

      on the floor near the nightstand; a sawed-off shotgun on a clothing shelf; a

      baggie of crystal methamphetamine in a pink bag; a large shard of crystal

      methamphetamine in a jewelry container; a large tied-off bag containing crystal

      methamphetamine inside a black CD case on a bookshelf; a post-it pad with
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020   Page 2 of 11
      dollar values next to names consistent with a ledger; a Winchester rifle; and a

      tray with a burnt spoon, used syringe, and marijuana under clothes on a

      dresser. Indianapolis Metropolitan Police Officer Clayton Portell spoke with

      Moore, went “over everything,” and “told him exactly what [officers] had

      found.” Transcript Volume II at 122. Moore initially denied that everything in

      the room belonged to him and said that he shared the room with Vance, officers

      indicated they would wait for her to return home, and at that point Moore said

      “everything in there is mine.” Id. He told Officer Portell the guns and all the

      drugs in the room belonged to him and he was not a drug dealer but just a user.


[4]   The State charged Moore with: Count I, dealing in methamphetamine as a level

      2 felony; Count II, possession of methamphetamine as a level 3 felony; Count

      III, unlawful possession of a syringe as a level 6 felony; Count IV, maintaining

      a common nuisance as a level 6 felony; Count V, possession of marijuana as a

      class B misdemeanor; and Count VI, possession of paraphernalia as a class C

      misdemeanor. Prior to trial, Moore filed a Notice of 404(b) Evidence stating he

      proposed to introduce at trial “the drug history of Tylan Abrego, which

      includes five arrests for drug charges in the past two years.” Appellant’s

      Appendix Volume II at 85. The State filed a motion in limine requesting that

      Moore be instructed not to refer in any way to Abrego’s criminal history, prior

      arrests, or drug use or to any speculative and/or hearsay testimony by Vance

      about the methamphetamine recovered from the front bedroom including

      testimony that it was placed there by Abrego.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020   Page 3 of 11
[5]   On the day of trial, July 15, 2019, the court heard argument and found that

      Abrego’s history of alleged drug possession, use, and convictions did not fall

      under the identity exception or any exception under Ind. Evidence Rule 404(b),

      was more prejudicial than probative, was a confusion of the issues, and was not

      relevant to Moore’s intent as to the items found in his room. Moore’s counsel

      then moved for a continuance and stated he received a message from Vance on

      Saturday morning and she was in the hospital. He argued Vance was an

      important defense witness, he had taken a taped statement from her several

      months earlier, and she would testify that: Abrego asked if she could store her

      valuables in the bedroom Vance shared with Moore; she was aware of a rifle

      Abrego had placed in the bedroom and cash Abrego kept in a drawer in her

      dresser; Moore did not have a black CD case, CDs, or a CD player; Abrego was

      trying to enter treatment but in the meantime was using speed,

      methamphetamine, and pills on a regular basis; there were times she tried to

      wake Abrego and it was difficult to wake her; Abrego carried a notebook with a

      list of names and numbers next to each name in her purse; and Abrego would

      front drugs to people. Moore made an offer of proof and introduced Vance’s

      statement during which Vance indicated she was not present when the officers

      searched the residence, Abrego had been staying at the house a few days and

      trying to become admitted to a treatment facility, Abrego had placed a long

      gun behind her nightstand and kept money in a sock or zip purse in her dresser

      drawer, she had the notion Abrego received the money selling drugs but was

      not sure, she saw her sell drugs in her living room two times, she was not aware

      of any drugs hidden in her room or house, she was not aware of Abrego storing

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020   Page 4 of 11
      anything in her bedroom other than the gun and some money, she had no

      knowledge of a pink purse or a jewelry container, she was unaware there was a

      CD case on her bookshelf, she had two skinnier cases than the one found on the

      bookshelf which contained DVDs and were kept just inside the door, and she

      did not know if Moore owned a black CD case. The State objected to a

      continuance and argued Vance’s statement revealed she had no knowledge of

      the recovered methamphetamine and “wasn’t even there,” any testimony about

      Abrego’s drug use was inadmissible, and the remaining testimony was

      speculation. Transcript Volume II at 13. The court stated it had reviewed the

      transcript of Vance’s statement, any statements regarding Abrego’s drug use

      was not admissible, Vance indicated she was unaware of the CD case, her

      testimony was speculative at best, and the majority of her testimony was

      inadmissible. The court denied Moore’s motion for a continuance and granted

      the State’s motion in limine.


[6]   During his jury trial, Moore testified that, on the day of the search, Vance was

      not home and was helping her sister move and that, besides himself and

      Abrego, there were three other people in the house including a friend who had

      been staying on the couch, a man he did not know who was in the other

      bedroom with Abrego, and a woman who was one of Abrego’s friends. He

      testified that the rifle belonged to Abrego and the other guns belonged to him.

      He testified the meth pipes were his, Vance did not know about them, “I had

      snuck around and I had done the stuff a few times with Ms. Abrego and didn’t

      tell my old lady,” “[y]ou know, she’d seen me do it twice,” and “that’s the big


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020   Page 5 of 11
      crime out of all of this. I did that behind her back.” Id. at 180. He testified he

      had no idea where the black CD case came from, there was not a CD player in

      the house, and he had DVDs but no CDs. He testified that, when he told

      officers everything in the bedroom belonged to him, he was referring to the

      marijuana and the little sack of meth and that he did not know there was

      methamphetamine in the CD case. When asked if he had been letting Abrego

      stay at his house, Moore replied affirmatively and indicated they had said she

      could stay for a week.


[7]   The jury found Moore guilty on all counts. The court stated: “I do accept the

      jury’s verdict as to Count 1 through Count 6, and I do enter judgment of

      conviction for all three.” Id. at 216. The court verbally sentenced Moore to

      concurrent terms of seventeen and one-half years with eleven and one-half years

      suspended on Count I, 730 days each on Counts III and IV, 180 days on Count

      V, and sixty days on Count VI. 1 It ordered the executed sentence be served at

      Marion County Community Corrections. The court also stated: “I show that

      Count 2 would merge into Count 1, so there will be no sentence imposed as to



      1
        With respect to Count I, the court verbally stated it sentenced Moore to seventeen and one-half years with
      six years executed on a direct placement to Marion County Community Corrections Home Detention and
      eleven and one-half years suspended. The chronological case summary (“CCS”) reflects Moore received a
      sentence on Count I of 6205 days, or seventeen years, with 4197 days, or eleven and one-half years,
      suspended. The court’s abstract of judgment indicates Moore received a sentence on Count I of 6388 days,
      or seventeen and one-half years, with 2190 days, or six years, suspended. The appellant’s appendix contains
      two sentencing orders: one of the orders is stamped as filed and states Moore received a sentence on Count I
      of 6388 days, or seventeen and one-half years, with 2190 days, or six years, suspended; the other order states
      Moore received a sentence on Count I of 6205 days, or seventeen years, with 4197 days, or eleven and one-
      half years, suspended. Also, while the court verbally sentenced Moore to sixty days on Count VI, the
      abstract of judgment, both sentencing orders, and CCS show a sentence of 180 days. On remand, we instruct
      the trial court to issue amended entries reflecting Moore’s actual sentences.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020                     Page 6 of 11
      that.” Id. at 227. The abstract of judgment, with respect to Count II, states

      “Conviction Merged.” Appellant’s Appendix Volume II at 24.


                                                   Discussion

                                                         I.

[8]   Moore first asserts19 that the trial court should have allowed him to present

      evidence of Abrego’s drug history and prior arrests on drug charges to support

      his position that the methamphetamine belonged to her. The State responds

      that Abrego’s criminal history was not relevant and was inadmissible under

      Ind. Evidence Rules 404(b) and 403 and that any error in excluding the

      evidence is harmless in light of the overwhelming evidence of guilt presented.


[9]   The trial court has broad discretion to rule on the admissibility of evidence.

      Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court’s ruling on the

      admission of evidence is generally accorded a great deal of deference on appeal.

      Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh’g denied. We do not reweigh

      the evidence; rather, we consider only evidence that is either favorable to the

      ruling or unrefuted and favorable to the defendant. Beasley v. State, 46 N.E.3d

      1232, 1235 (Ind. 2016). Generally, errors in the admission of evidence are to be

      disregarded unless they affect the substantial rights of a party, and in

      determining the effect of the evidentiary ruling on a defendant’s substantial

      rights, we look to the probable effect on the fact finder. Turner v. State, 953

      N.E.2d 1039, 1059 (Ind. 2011).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020   Page 7 of 11
[10]   Ind. Evidence Rule 401 provides evidence is relevant if it has any tendency to

       make a fact more or less probable than it would be without the evidence and the

       fact is of consequence in determining the action. Ind. Evidence Rule 403

       provides that the court may exclude relevant evidence if its probative value is

       substantially outweighed by a danger of unfair prejudice, confusing the issues,

       misleading the jury, undue delay, or needlessly presenting cumulative evidence.


[11]   Ind. Evidence Rule 404(b)(1) provides that evidence of a crime, wrong, or other

       act is not admissible to prove a person’s character in order to show that on a

       particular occasion the person acted in accordance with the character. Ind.

       Evidence Rule 404(b)(2) provides that “[t]his evidence may be admissible for

       another purpose, such as proving motive, opportunity, intent, preparation, plan,

       knowledge, identity, absence of mistake, or lack of accident.” The prohibition

       in Evidence Rule 404(b) “applies to persons other than the defendant.” Britt v.

       State, 937 N.E.2d 914, 917 (Ind. Ct. App. 2010) (citing Wells v. State, 904

       N.E.2d 265, 270 (Ind. Ct. App. 2009) (citing Garland v. State, 788 N.E.2d 425,

       429-430 (Ind. 2003)), trans. denied).


[12]   The trial court was able to consider the evidence Moore wished to present

       regarding Abrego’s prior drug use and arrests. The evidence Moore desired to

       present was inadmissible under Evidence Rule 404(b) to prove Abrego’s

       character and that she acted in accordance with the character. Further, he does

       not show the evidence was admissible for another purpose under Evidence Rule

       404(b)(2). We cannot say the trial court abused its discretion in not admitting

       evidence of Abrego’s drug history and prior arrests.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020   Page 8 of 11
                                                                   II.


[13]   Moore next claims the trial court should have granted his motion for a

       continuance. A trial may be continued at the trial court’s discretion and shall

       be continued upon a showing of good cause established by affidavit. Blackburn

       v. State, 130 N.E.3d 1207, 1210 (Ind. Ct. App. 2019) (citing Ind. Trial Rule

       53.5). 2 Ind. Code § 35-36-7-1 3 provides for a continuance upon a proper

       showing of an absence of evidence or the illness or absence of the defendant or

       a witness. Maxey v. State, 730 N.E.2d 158, 160 (Ind. 2000). Although absence

       of a material witness is a statutory ground for a continuance, if the motion for

       continuance does not meet the statutory criteria, then the court may use its

       discretion to grant or deny the motion. Blackburn, 130 N.E.3d at 1210.

       Decisions on motions made at the court’s discretion are given substantial

       deference. Id. There is always a strong presumption the trial court properly

       exercised its discretion. Id. We will not disturb the trial court’s decision absent

       a clear demonstration of abuse of discretion resulting in prejudice. Id.




       2
         Ind. Trial Rule 53.5 states in part: “Upon motion, trial may be postponed or continued in the discretion of
       the court, and shall be allowed upon a showing of good cause established by affidavit or other evidence.”
       3
           Ind. Code § 35-36-7-1 provides:

                  (a) A motion by a defendant to postpone a trial because of the absence of evidence may be made
                  only on affidavit showing:
                            (1) that the evidence is material;
                            (2) that due diligence has been used to obtain the evidence; and
                            (3) the location of the evidence.
                                                                    *****
                  (d) A defendant must file an affidavit for a continuance not later than five (5) days before the
                  date set for trial. If a defendant fails to file an affidavit by this time, then he must establish, to
                  the satisfaction of the court, that he is not at fault for failing to file the affidavit at an earlier date.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020                                Page 9 of 11
[14]   Moore argues that, although he did not file an affidavit, it was not possible to

       produce an affidavit no later than five days before trial. He argues Vance would

       have testified that Abrego carried a notebook showing how much she was

       owed, would front drugs to people, used and sold drugs, and stored valuables in

       the bedroom and that he did not have a CD player or own CDs. Moore

       testified that Vance was not present at the time of the search, she did not know

       about the meth pipes, and he had “snuck around and . . . done the stuff a few

       times with Ms. Abrego and didn’t tell” Vance. Transcript Volume II at 180.

       The trial court reviewed the transcript of Vance’s statement in which she

       indicated she had the notion Abrego received the money selling drugs and saw

       her sell drugs two times, was not aware of any drugs hidden in her room, was

       unaware there was a CD case on her bookshelf, and did not know if Moore

       owned a black CD case. Vance’s statements related to Abrego’s drug use were

       inadmissible under Evidence Rule 404(b). The other statements by Vance were

       speculative and largely cumulative of other evidence including Moore’s

       testimony. Based upon on the record, we cannot say the trial court erred or

       abused its discretion in denying Moore’s request for a continuance or that he

       was prejudiced by the court’s decision.


                                                         III.


[15]   Moore next claims the trial court erred in entering judgment of conviction

       under Count II. The State responds that vacation of the conviction would be




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020   Page 10 of 11
       appropriate. In light of the State’s agreement, we remand with instructions to

       vacate judgment of conviction under Count II. 4


[16]   For the foregoing reasons, we affirm Moore’s convictions and remand to vacate

       the judgment of conviction under Count II and, as previously, noted, to issue

       amended entries reflecting Moore’s actual sentences.


[17]   Affirmed and remanded.


       Najam, J., and Kirsch, J., concur.




       4
           This will not impact Moore’s sentence as the trial court did not impose any sentence on Count II.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2089 | April 8, 2020                     Page 11 of 11
