                                                                        FILED
                                                                   Aug 03 2018, 7:35 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Bruce W. Graham                                            Curtis T. Hill, Jr.
Graham Law Firm, P.C.                                      Attorney General of Indiana
Lafayette, Indiana                                         Justin F. Roebel
                                                           Supervising Deputy Attorney
                                                           General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

William P. Stickrod,                                       August 3, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A04-1710-CR-2473
        v.                                                 Appeal from the Tippecanoe
                                                           Circuit Court
State of Indiana,                                          The Honorable Thomas H. Busch,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           79C01-1612-F5-167



Barteau, Senior Judge.




Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018                   Page 1 of 15
                                            Statement of the Case
[1]   William P. Stickrod appeals his convictions of possession of methamphetamine,
                               1                                                               2
      a Level 5 felony; and possession of paraphernalia, a Class C misdemeanor.

      We affirm in part, reverse in part, and remand with instructions.


                                                     Issues
[2]   Stickrod raises three issues, which we restate as:

                 I.       Whether the trial court erred in admitting evidence the
                          police found in Stickrod’s house while serving two arrest
                          warrants.

                 II.      Whether the trial court violated Stickrod’s right to present
                          evidence in his defense by barring a witness’s testimony.

                 III.     Whether Stickrod’s two convictions for possession of
                          methamphetamine violate the federal constitutional
                          prohibition of double jeopardy.


                                   Facts and Procedural History
[3]   At 6:50 p.m. on December 17, 2016, Officer Grant Leroux of the Lafayette

      Police Department and other officers arrived at a house in Lafayette, Indiana.

      The house belonged to Stickrod’s mother, but Officer Leroux knew that

      Stickrod lived there. The officers were there to execute warrants to arrest

      Stickrod for failing to appear at court hearings in two criminal cases.




      1
          Ind. Code § 35-48-4-6.1 (2014).
      2
          Ind. Code § 35-48-4-8.3 (2015).


      Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018          Page 2 of 15
[4]   We discuss the circumstances in more detail below, but in summary Stickrod’s
                                       3
      girlfriend, Jessica Caliz, eventually answered the door and told Officer Leroux

      that Stickrod was not at home. The officers heard a “thud” coming from the

      house’s attached garage. Caliz had previously lied to Officer Leroux about

      Stickrod’s whereabouts. In addition, Officer Leroux had arrested Stickrod at

      that house a few weeks prior to December 17, 2016, after finding Stickrod

      hiding in the garage. The officers entered the house and discovered Stickrod

      hiding in the garage once again. They handcuffed him and, during a search of

      his person, discovered a glasses case in a pants pocket. The case contained a

      glass pipe and a small plastic bag which in turn contained a white powdery

      substance. Subsequent testing revealed the presence of .8 grams of

      methamphetamine in the bag and methamphetamine residue on the pipe.


[5]   The State charged Stickrod with possession of methamphetamine, a Level 6

      felony; possession of paraphernalia, a Class C misdemeanor; and possession of

      methamphetamine, a Level 5 felony. The State further alleged that Stickrod

      was an habitual offender. Stickrod filed a motion to suppress all evidence that

      the State obtained after entering his home. The trial court held a hearing and

      denied the motion.


[6]   The court bifurcated the case, choosing to first submit the Level 6 felony and

      Class C misdemeanor charges to a jury. After the State rested, Stickrod’s



      3
        Caliz’s name is spelled several different ways in the record. We use the spelling set forth in the presentence
      investigation report.

      Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018                           Page 3 of 15
      attorney informed the court outside the presence of the jury that he would not

      present testimony by Caliz because he believed Caliz would commit perjury on

      the stand. Stickrod disagreed with his attorney’s decision and told the court

      that Caliz’s testimony was “imperative for [his] defense.” Tr. Vol. 2, p. 156.

      Stickrod further asked the court to fire his attorney. The court denied Stickrod’s

      request to fire his attorney and did not allow Caliz to testify.


[7]   The jury determined Stickrod was guilty of the Level 6 felony and the Class C

      misdemeanor, and the court entered a judgment of conviction. Stickrod waived

      his right to a jury trial on the Level 5 felony and the habitual offender

      sentencing enhancement. During the second phase of trial, Stickrod pleaded

      guilty to the Level 5 felony and to being an habitual offender.


[8]   At sentencing, the court dismissed the habitual offender enhancement and

      imposed a sentence on the Level 6 felony, the Level 5 felony, and the Class C

      misdemeanor. The court further held the Level 6 felony would merge with the

      Level 5 felony. This appeal followed.


                                    Discussion and Decision
                                     I. Admission of Evidence
[9]   Stickrod argues the trial court should have granted his motion to suppress.

      Once a case proceeds to trial, the question of whether the trial court erred in

      denying a motion to suppress is no longer viable. Baird v. State, 854 N.E.2d

      398, 403 (Ind. Ct. App. 2006), trans. denied. Instead, we review whether the trial

      court erred in admitting the evidence at trial. Id.

      Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018   Page 4 of 15
[10]   In general, rulings on the admissibility of evidence are reviewed for an abuse of

       discretion and reversed when admission is clearly against the logic and effect of

       the facts and circumstances. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017).

       When a challenge to such a ruling is based on the constitutionality of the search

       or seizure of evidence, it raises a question of law that we review de novo. Id.


[11]   Stickrod argues the officers’ entry into his home violated his Fourth

       Amendment protection against unreasonable search and seizure. He does not

       present a claim under the Indiana Constitution. The Fourth Amendment

       provides:

                The right of the people to be secure in their persons, houses,
                papers, and effects, against unreasonable searches and seizures,
                shall not be violated, and no Warrants shall issue, but upon
                probable cause, supported by Oath or affirmation, and
                particularly describing the place to be searched, and the persons
                or things to be seized.

       The protections of the Fourth Amendment have been extended to the states

       through the Fourteenth Amendment. Ratliff v. State, 770 N.E.2d 807, 809 (Ind.

       2002).


[12]   In Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980),

       the United States Supreme Court addressed the circumstances under which an

       officer may enter a person’s dwelling to make an arrest. The Court noted that

       searches and seizures without a warrant are presumptively unreasonable, and

       “absent exigent circumstances,” officers may not enter a dwelling without a

       warrant. Id. at 590, 100 S. Ct. at 1382. By contrast, for purposes of the Fourth


       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018    Page 5 of 15
       Amendment, “an arrest warrant founded on probable cause implicitly carries

       with it the limited authority to enter a dwelling in which the suspect lives when

       there is reason to believe the suspect is within.” Id. at 603, 100 S. Ct. at 1388.

       An Indiana statute provides that an officer who is serving an arrest warrant

       “may break open any outer or inner door or window in order to execute an

       arrest warrant, if the officer is not admitted following an announcement of the

       officer’s authority and purpose.” Ind. Code § 35-33-2-3 (2011).


[13]   In Duran v. State, 930 N.E.2d 10 (Ind. 2010), officers attempted to execute a

       warrant to arrest Hernandez, but they mistakenly entered Duran’s apartment

       rather than Hernandez’s apartment. Once inside, they saw evidence of a drug

       dealing operation and arrested Duran. Duran claimed the officers’ entry

       violated his Fourth Amendment rights. The Indiana Supreme Court

       determined that, pursuant to the holding in Payton, officers must have a

       reasonable belief that the dwelling is the residence of the subject of the warrant

       and that the subject is present at the time the officers attempt to enter on

       authority of an arrest warrant. The officers’ belief that Hernandez was in

       Duran’s apartment was unreasonable because their belief was based entirely on

       statements by an anonymous man outside the building who may not have had

       any connection to the building. The officers’ entry violated Duran’s Fourth

       Amendment protections.


[14]   By contrast, in Carpenter v. State, 974 N.E.2d 569 (Ind. Ct. App. 2012), trans.

       denied, an officer arrived at Carpenter’s house with an arrest warrant for

       Howard. Another officer had told the first officer that Howard lived at that

       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018   Page 6 of 15
       address, but Howard had not lived there for several years. When the arresting

       officer and his colleagues approached Carpenter’s house, there were cars in the

       driveway and lights were on. An officer looked in a window and saw

       Carpenter placing items in a toilet. Items used to manufacture

       methamphetamine were also visible. The officers obtained a search warrant

       and arrested Carpenter.


[15]   Carpenter claimed the officers had no reason to approach his house because

       Howard was not present. A panel of this Court concluded the information the

       first officer received from another officer, plus the presence of cars in the

       driveway and lights on in the house, provided a reasonable belief that the house

       was Howard’s residence and that he was home. The officers did not violate

       Carpenter’s Fourth Amendment rights by approaching the house and looking in

       the window.


[16]   In Stickrod’s case, Officer Leroux and several other officers arrived at a house

       in Lafayette, Indiana on the evening of December 17, 2016. Stickrod’s mother

       owned the house, but Officer Leroux knew Stickrod lived there because he had

       arrested Stickrod at that address a few weeks prior to the incident at issue.

       Officer Leroux was there to execute warrants that had been issued by a

       magistrate in two probation revocation cases. One case involved misdemeanor

       charges and the other involved a felony and several misdemeanors. Both

       warrants commanded officers to arrest Stickrod for failure to appear in court

       and to hold him without bond.



       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018   Page 7 of 15
[17]   A light was on in Stickrod’s bedroom. Officer Leroux knew which bedroom

       Stickrod used because, during the last time he arrested Stickrod, Stickrod’s

       mother had allowed Officer Leroux to enter the house and had shown him the

       room in which Stickrod slept. Officer Leroux knocked on the door repeatedly,

       but no one answered. He asked dispatch operators to call the home’s number,

       and eventually Caliz answered the door. Caliz said that Stickrod was not

       home, but she had previously lied to Officer Leroux about Stickrod’s

       whereabouts. As they talked, Officer Leroux heard a “thud” coming from the

       attached garage. Tr. Vol. 2, p. 147. During the prior arrest, Leroux had found

       Stickrod hiding in the attic of the house’s garage.


[18]   Caliz agreed to allow the officers to enter the house, but the officers hesitated

       because they did not believe her consent was valid. Officer Leroux called a

       prosecutor to ask for a search warrant, but the prosecutor advised that a warrant

       was unnecessary. Several officers entered the house and found Stickrod hiding

       in a gun safe in the garage. The officers discovered contraband on Stickrod’s

       person during a search incident to arrest.


[19]   We conclude the facts of this case more closely resemble the circumstances of

       Carpenter than the facts of Duran. Officer Leroux’s visit to the house only a few

       weeks prior to the incident at issue provided ample reason to believe that

       Stickrod lived there. In addition, based on Officer Leroux’s observations on the

       evening of December 17, 2016, he had ample reason to believe that Stickrod

       was present in that house on that night.



       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018   Page 8 of 15
[20]   Stickrod argues the officers lacked the authority to enter the house because the

       warrants were not true arrest warrants. He compares the warrants to the writ

       that was at issue in Casselman v. State, 472 N.E.2d 1310 (Ind. Ct. App. 1985). In

       that case, Casselman was a defendant in a civil lawsuit brought by a creditor.

       He twice failed to appear for court hearings, believing that he did not need to

       attend because he had filed for bankruptcy and an automatic stay was in effect.

       No one had informed the court in the civil case about the stay, and after

       Casselman twice failed to appear the court issued a writ of attachment, ordering

       the sheriff to take him into custody.


[21]   An officer arrived at Casselman’s house. Casselman answered the door, and

       the officer told him he had a body attachment “from the corporation” and that

       Casselman needed to come with him. Id. at 1312. The officer further stated

       Casselman could pay a “thousand dollars bond.” Id. Casselman refused to go

       with the officer and retreated into his house. The officer followed Casselman

       into the house and took him into custody. Casselman was convicted of

       resisting law enforcement, and he appealed.


[22]   A panel of this Court concluded the writ of attachment was “not a criminal

       arrest warrant” and the officer “could not claim the right to exercise the powers

       associated with the service of such a warrant.” 472 N.E.2d at 1312. The Court

       further determined the officer “was not lawfully engaged in the execution of

       civil process when . . . he prevented Casselman from closing the door to his

       home.” Id. at 1314. Casselman had the right to close his door, and as a result

       he could not be convicted of resisting law enforcement.

       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018   Page 9 of 15
[23]   The holding in Casselman does not govern here. Casselman was a defendant in

       a civil suit, but Stickrod was on probation in two criminal cases when he failed

       to appear in court. The magistrate issued two “Bench Warrants” ordering the

       sheriff of Tippecanoe County to “arrest” Stickrod and hold him without bond

       pending the resolution of the criminal cases. Tr. Ex. Vol., State’s Exhibits 11

       and 12. By contrast, in Casselman’s case the court issued a writ of attachment,

       and he had the option of paying a bond. The Bench Warrants in Stickrod’s case

       were criminal arrest warrants. In addition, in Casselman the key issue was

       whether Casselman could resist the officer’s entry into his home. By contrast,

       the offense of resisting law enforcement is not at issue in Stickrod’s case. We

       conclude the officers’ entry into Stickrod’s house did not violate the Fourth

       Amendment, and the trial court did not err in admitting evidence the officers

       discovered on Stickrod’s person after entering the house.


                                   II. Right to Present a Defense
[24]   Stickrod claims the trial court deprived him of his Sixth Amendment right to

       present a defense by barring Caliz from testifying. The State argues Stickrod

       has waived this claim for appellate review because: (1) he did not present the

       Sixth Amendment claim to the trial court; and (2) he did not present an offer of

       proof describing the substance of Caliz’s testimony. After reviewing the record,

       we conclude Stickrod adequately informed the trial court that his right to

       present a defense was at issue, and he adequately described Caliz’s proposed

       testimony. We reject the State’s waiver claim and turn to the merits.


[25]   The Sixth Amendment provides:
       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018   Page 10 of 15
               In all criminal prosecutions, the accused shall enjoy the right to a
               speedy and public trial, by an impartial jury of the State and
               district wherein the crime shall have been committed, which
               district shall have been previously ascertained by law, and to be
               informed of the nature and cause of the accusation; to be
               confronted with the witnesses against him; to have compulsory
               process for obtaining witnesses in his favor, and to have the
               Assistance of Counsel for his defence.


[26]   The Sixth Amendment right to present witnesses in one’s defense applies to the

       states through the Due Process Clause of the Fourteenth Amendment.

       Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019

       (1967). “Just as an accused has the right to confront the prosecution’s witnesses

       for the purpose of challenging their testimony, he has the right to present his

       own witnesses to establish a defense. This right is a fundamental element of

       due process of law.” Id. at 19, 87 S. Ct. at 1923.


[27]   The right to present witnesses in one’s defense is not unlimited, but rather is

       subject to “reasonable restrictions” designed to accommodate other legitimate

       interests in the criminal trial process. U.S. v. Scheffer, 523 U.S. 303, 308, 118 S.

       Ct. 1261, 1264, 140 L. Ed. 2d 413 (1998). As a result, “the accused, as is

       required of the State, must comply with established rules of procedure and

       evidence designed to ensure both fairness and reliability in the ascertainment of

       guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038,

       1049, 35 L. Ed. 2d 297 (1973). A rule of procedure or evidence violates the

       Sixth Amendment when it infringes upon an accused’s “weighty” interests and

       is disproportionate to the purposes that it is designed to serve. Holmes v. South


       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018   Page 11 of 15
       Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731, 164 L. Ed. 2d 503 (2006)

       (quotation omitted).


[28]   An accused “does not have an unfettered right to offer testimony that is

       incompetent, privileged, or otherwise inadmissible under standard rules of

       evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653, 98 L. Ed.

       2d. 798 (1988). “[T]here is no right whatever—constitutional or otherwise—for

       a defendant to use false evidence.” Nix v. Whiteside, 475 U.S. 157, 173, 106 S.

       Ct. 988, 997, 89 L. Ed. 2d 123 (1986).


[29]   In the current case, after the State rested, the trial court and the parties held a

       conference outside the presence of the jury. Stickrod’s attorney told the court:

               Judge I know I approached before with the possibility of some
               ethical obligations. I just wanted to put that and make sure it
               was on the record and if Mr. Stickrod believes that it’s an
               ineffective assistance kind of argument that at least it is on the
               record for appeal purposes or PCR purpose [sic] but I think my
               ethical obligations judge is [sic] that I cannot call Mr. Stickrod’s
               girlfriend and I believe that and obviously as an officer of the
               court that I cannot support any kind of perjury or what I would
               feel possible falsehood judge so that would be my position just
               for the record in case there is an issue with ineffective judge.

       Tr. Vol. 2, p. 154.


[30]   Stickrod objected to his attorney’s statement, claiming Caliz’s testimony was

       “imperative for [his] defense” because she would testify that he had been asleep

       when the officers arrived and that he did not have anything on his person, such

       as contraband, at the time of his arrest. Id. at 156. Stickrod asked the court to


       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018      Page 12 of 15
       discharge his counsel, accusing counsel of raising the ethical issue for the first

       time at trial. In response, Stickrod’s attorney told the court, “I have explained

       this to him, I am not risking my law license or anything else on something that I

       think is unethical and I am not going to call her nor did I plan to call her ever

       when she came and first met with me.” Id. at 159. The court denied Stickrod’s
                                                                                                            4
       request to fire his attorney and his request to present Caliz’s testimony.


[31]   We conclude that the trial court did not err in barring Caliz from testifying.

       Preventing the presentation of perjured testimony on the stand is a legitimate

       and substantial interest, and excluding Caliz’s testimony was not

       disproportionate to that interest. See Makiel v. Butler, 782 F.3d 882, 910 (7th Cir.

       2015) (no error in rejection of habeas corpus petition based on claim of unfair

       exclusion of witness’s testimony; evidence indicated the testimony was false).


[32]   Stickrod argues his attorney failed to explain why he thought Caliz would lie on

       the stand. The attorney’s statement to the court that he believed Caliz would

       perjure herself on the stand was a sufficient basis upon which to exclude her

       testimony. Whether counsel was incorrect in his belief, or failed to render

       effective assistance, are matters for post-conviction proceedings.




       4
         The trial court further stated while excluding Caliz’s testimony that she had violated the court’s order
       mandating separation of witnesses by remaining in the courtroom during the trial. We need not address this
       issue, but the record demonstrates that the court granted the State’s motion to separate witnesses at the
       beginning of the trial. Tr. Vol. 2, p. 59. Further, Stickrod does not challenge the trial court’s denial of his pro
       se request to discharge counsel.

       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018                            Page 13 of 15
                                          III. Double Jeopardy
[33]   Stickrod argues his convictions for possession of methamphetamine as Level 5

       and Level 6 felonies violate his federal constitutional protection against double

       jeopardy, and that the court’s merger of the counts at sentencing failed to

       correct the problem. We agree.


[34]   A double jeopardy violation occurs when judgments of conviction are entered

       for the same criminal act and cannot be remedied by the “practical effect” of

       concurrent sentences or by merger after conviction has been entered. West v.

       State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014), trans. denied. A trial court’s act

       of merging, without also vacating the conviction, is not sufficient to cure a

       double jeopardy violation. Id. The State agrees that “a separate but merged

       conviction for [a] lesser included offense cannot stand.” Appellee’s Br. p. 20.


[35]   The jury determined Stickrod was guilty of possession of methamphetamine as

       a Level 6 felony, and the trial court entered a “judgment of conviction” on that

       count. Appellant’s App. Vol. II, p. 77. Later, after Stickrod pleaded guilty to

       possession of methamphetamine as a Level 5 felony, the court entered another

       judgment of conviction. The court imposed sentences for both convictions of

       possession of methamphetamine but determined that the two counts would

       “merge.” Id. at 10. The entry of judgments of convictions for both counts

       violated double jeopardy, and merely merging the two convictions at sentencing

       was insufficient to correct the violation. We reverse the conviction for

       possession of methamphetamine as a Level 6 felony and remand with


       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018   Page 14 of 15
       instructions to vacate that conviction. The conviction for possession of

       methamphetamine as a Level 5 felony remains in effect.


                                                 Conclusion
[36]   For the reasons stated above, we affirm the judgment of the trial court in part,

       reverse in part, and remand with instructions.


[37]   Affirmed in part, reversed in part, and remanded.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018   Page 15 of 15
