                                                                                FILED
                                                                           Jul 31 2019, 10:14 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      John Kindley                                                Curtis T. Hill, Jr.
      South Bend, Indiana                                         Attorney General of Indiana

                                                                  Ian McLean
                                                                  Supervising Deputy Attorney
                                                                  General
                                                                  Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Lola M. Sells,                                              July 31, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  18A-CR-2691
              v.                                                  Appeal from the Franklin Circuit
                                                                  Court
      State of Indiana,                                           The Honorable J. Steven Cox,
      Appellee-Plaintiff.                                         Judge
                                                                  Trial Court Cause No.
                                                                  24C01-1506-F3-626



      Najam, Judge.


                                         Statement of the Case
[1]   Lola M. Sells appeals her conviction for dealing in methamphetamine, as a

      Level 3 felony, following a jury trial. Sells raises four issues for our review,

      which we restate as follows:
      Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019                             Page 1 of 12
              1.       Whether she preserved for appellate review her argument
                       that the trial court violated her right to be free from double
                       jeopardy when it permitted the State to try her after the
                       court had previously declared a mistrial.


              2.       Whether Sells’ defense attorney opened the door to
                       comments made by the prosecutor during his rebuttal
                       following her attorney’s closing argument.


              3.       Whether her two convictions violate the actual evidence
                       test under Article 1, Section 14 of the Indiana
                       Constitution.


              4.       Whether the State proved venue in Franklin County.


[2]   We affirm.


                                   Facts and Procedural History
[3]   In August of 2014, Adam Wagner used and dealt methamphetamine out of his

      residence in Rush County. During that time, his girlfriend, Felicia Craig, also

      used methamphetamine. In late August, Wagner arranged to have Craig buy

      seven grams of methamphetamine from Sells at a predetermined location in

      another county.


[4]   In the early morning hours of August 26, after Craig had met with Sells and

      purchased the seven grams of methamphetamine, Craig began to drive back to

      meet with Wagner. On her way back, Officer Chris Smith of the Batesville

      Police Department initiated a traffic stop of Craig’s vehicle for a lane violation



      Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019             Page 2 of 12
      on Interstate 74 in Franklin County. Officer Smith gave Craig a warning and

      let her go.


[5]   Craig then called Wagner. Wagner thought Craig sounded in a “way I’ve never

      heard her before”; she was “[s]uper excited, super scared, just all over . . . she

      was very confused, excited.” Amended Tr. Vol. 2 at 135. Craig told Wagner

      that “she had just got pulled over and that she ate all those drugs and she was

      scared.” Id. Craig then went silent.


[6]   Around 6:30 that morning, Greg Kinker met an associate at a truck stop in

      Decatur County, just a few miles from the location of Officer Smith’s traffic

      stop of Craig’s vehicle, to carpool to work. While there, he observed a “leg

      sticking out the window” of the driver’s side of a nearby vehicle and “thought

      somebody was sleeping.” Id. at 33. However, when he came back to the truck

      stop to get his vehicle around 5:00 that afternoon, Kinker “noticed that vehicle

      sitting there with the leg sticking out again and figured nobody can be in that

      position all day long.” Id. Kinker went to check on the person, realized that

      “she was unresponsive, dead,” and called 9-1-1. Id. The decedent was later

      identified as Craig, and she had died of an overdose of methamphetamine.


[7]   In June of 2015, the State charged Sells with dealing in methamphetamine, as a

      Level 3 felony, and with conspiracy to deal methamphetamine, also as a Level

      3 felony. On July 25, 2016, the trial court began Sells’ jury trial in her absence

      and empaneled a jury. The court then directed the parties to begin their

      evidentiary presentations at the beginning of the next day.


      Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019          Page 3 of 12
[8]    However, prior to the commencement of the evidentiary presentations, the trial

       court, out of the presence of the parties and the jury, declared a mistrial sua

       sponte and discharged the jury. According to the court’s written order: “press

       coverage in the Brookville Democrat/American . . . reported that the defendant

       failed to appear and ‘could not be contacted.’ The article further quoted the

       State as offering that the reason the trial court not proceed was because the

       defendant was not present.” Appellant’s App. Vol. II at 38. The court

       determined that “the disclosure of issues . . . of matters resolved on the record

       out of the presence of the jury before the production of evidence so taints the

       jury that no limiting instructions can cure the defect.” Id. The court then

       directed that the State would have a second opportunity to try Sells “at the next

       convenient date.” Id.


[9]    More than two years later, the court held Sells’ second jury trial. At that trial,

       the State called Wagner, Officer Smith, and Kinker as witnesses. The State also

       called, among others, Sells’ acquaintance Richard Campos as a witness.

       Campos testified that, about a week after Craig had died, Sells told him that

       Craig had “come to my house and left my house,” “[g]ot pulled over, freaked

       out[,] and swallowed” the “meth” and “overdosed.” Amended Tr. Vol. 2 at

       214.


[10]   During Sells’ closing argument, her attorney argued that the State had failed to

       prove that Sells dealt or conspired to deal methamphetamine “in Franklin

       County.” Amended Tr. Vol. III at 23. Instead, her attorney continued, the

       State “g[ot] turned down everywhere else” and so the prosecutor in Franklin

       Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019         Page 4 of 12
       County decided “to take our shot here.” Id. at 22. Sells’ attorney accused the

       State of “forum shop[ping],” which he told the jury might happen if a party

       “do[esn’t] really like the Judge in this county, or . . . do[esn’t] really like

       potential jurors in another county . . . .” Id. at 23. Sells’ attorney then accused

       the local prosecutor of finding facts “[t]o make [the prosecution in Franklin

       County] work” and to “fit the narrative . . . [b]ecause” otherwise “there’s no

       crime here . . . .” Id. at 24-25. This included suggesting that the State suborned

       perjury from Wagner and Campos. See id. at 26, 30. The prosecutor objected to

       Sells’ attorney’s argument, but the trial court stated that Sells’ attorney was

       “permitted to characterize the evidence.” Id. at 30.


[11]   In his rebuttal, the prosecutor responded to the argument of Sells’ attorney as

       follows:


               You know, ladies and gentlemen[,] I’ve tried a lot of cases. And
               this is my 40th year as a Prosecutor in this county. I’m proud of
               the work I do and I’m proud of law enforcement. You just heard
               a final argument. I don’t normally get upset, it’s the final
               argument. That’s his job. You attack the credibility of the
               witnesses. But when I heard the innuendo that me [and various
               law enforcement officers] started our investigation to target Lola
               Sells, we are the conspirators. We did that. That upsets me. If
               we would do that, we should be charged and in jail. We don’t
               make up facts, we present them. . . . [W]here is the evidence on
               anything he said? He said the officers went to Adam Wagner
               and made a deal with him, to give him the Defendant . . . .
               There is nobody that has testified to that. He’s pulling out of the
               air. Why is he doing that? He attacked [e]very witness. If he
               had attacked just one, it’s okay. But he attacked the whole
               system. He’s tearing the whole system down.


       Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019             Page 5 of 12
        I’m embarrassed. I don’t know how they do things in
        Indianapolis, [where Sells’ attorney is from,] but in Franklin
        County, we give it to you straight. We don’t make the facts, we
        present them. And he’s saying—I say bring your common sense,
        your life experiences, he says there’s no evidence of a conspiracy,
        and we had to have Adam involved in it. How do you get
        around these text messages [between Wagner, Sells, and Craig]?
        He said there’s no evidence of seven grams[] but [for] Adam
        Wagner. He wants you to throw out Richard Campos
        completely. Is that part of our conspiracy? We hunted down
        Richard Campos? We had no idea who he was. He came to us.
        He said he had an axe to grind with the Defendant. Where did
        you hear that? Did I sleep over that? I don’t think so. I never
        heard that they had any dispute on anything. He spent the night
        at her house.


        It’s a desperate attempt because the evidence is overwhelming. I
        thought—at first I thought, okay, his one argument is going to
        be, he’s hitting on [venue]. He did that opening statement, jury
        selection, . . . he did it on the witnesses. He did it in final. That’s
        fair game. But don’t attack the system because your client—the
        evidence is overwhelming on guilty, to try to take me down and
        tell me I’m unethical, that I conspired.


Id. at 33-34. At that point, Sells’ attorney objected to the prosecutor’s use of the

word “unethical” and the prosecutor allegedly “attacking the Defense. He is

attacking my role in this case.” Id. The trial court overruled the objection on

the ground that the prosecutor was “characteriz[ing] what he heard” during

Sells’ closing argument, but nonetheless the court admonished the jury that the

attorneys’ arguments are not evidence. Id. at 34.




Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019            Page 6 of 12
[12]   The jury found Sells guilty as charged. The court entered its judgment of

       conviction and sentenced Sells to an aggregate term of twenty years in the

       Department of Correction. This appeal ensued.


                                        Discussion and Decision
                                          Issue One: Double Jeopardy

[13]   On appeal, Sells first asserts that the trial court denied her her right to be free

       from double jeopardy under the Fifth Amendment when it permitted the State

       to retry her after the trial court had declared a mistrial during her first trial. 1

       Generally, a trial court may not enter a mistrial over a defendant’s objection.

       Jackson v. State, 925 N.E.2d 369, 373 (Ind. 2010). However, “[a] defendant

       waives [her] right to raise double jeopardy by failing to make a timely objection

       to the discharge of the jury or to the court’s declaration of a mistrial.” Ried v.

       State, 610 N.E.2d 275, 279 (Ind. Ct. App.), summarily aff’d, 615 N.E.2d 893, 893

       (Ind. 1993).


[14]   Sells did not lodge any objection to the trial court’s discharge of the first jury,

       the declaration of the mistrial, the court’s explicit instructions to the State that it

       may retry her, or the actual, second trial held more than two years later. At no

       point after the declaration of the mistrial did Sells move for dismissal of the

       State’s charges. Indeed, Sells identifies no portion of the record, nor is any such

       portion of the record apparent, in which she expressed any dissatisfaction with



       1
         There is no dispute that double jeopardy attached when the first jury was empaneled. E.g., Jackson v. State,
       925 N.E.2d 369, 373 (Ind. 2010).

       Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019                                 Page 7 of 12
       the trial court’s procedures prior to her argument in her brief to this Court. And

       while Sells baldly states on appeal that the trial court’s sua sponte mistrial

       declaration did not give her counsel an opportunity to object, we conclude that

       she has not met her burden on appeal to demonstrate that she could not have

       filed a timely objection with the trial court or otherwise expressed her

       dissatisfaction with the court’s procedures long before this appeal. Accordingly,

       we hold that Sells has not preserved her double-jeopardy argument for our

       review, and we do not consider it. See id.


                                   Issue Two: Prosecutorial Misconduct

[15]   Sells next asserts that the prosecutor committed misconduct during his rebuttal

       argument to the jury because, according to Sells, the prosecutor “disparag[ed]

       Sells’ defense counsel and his role in the case” and further “vouch[ed] for the

       State’s witnesses.” Appellant’s Br. at 10. As our Supreme Court has explained:


               In reviewing a claim of prosecutorial misconduct properly raised
               in the trial court, we determine (1) whether misconduct occurred,
               and if so, (2) whether the misconduct, under all of the
               circumstances, placed the defendant in a position of grave peril to
               which he or she would not have been subjected otherwise. A
               prosecutor has the duty to present a persuasive final argument
               and thus placing a defendant in grave peril, by itself, is not
               misconduct. Whether a prosecutor’s argument constitutes
               misconduct is measured by reference to case law and the Rules of
               Professional Conduct. The gravity of peril is measured by the
               probable persuasive effect of the misconduct on the jury’s
               decision rather than the degree of impropriety of the conduct. To
               preserve a claim of prosecutorial misconduct, the defendant
               must—at the time the alleged misconduct occurs—request an


       Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019           Page 8 of 12
               admonishment to the jury, and if further relief is desired, move
               for a mistrial.


       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citations, emphases, and quotation

       marks omitted).


[16]   The parties dispute on appeal whether Sells properly preserved her claim of

       prosecutorial misconduct and, if not, whether the prosecutor’s comments

       during his rebuttal amount to fundamental error. But we need not consider

       those questions. Sells’ closing argument accused the prosecutor of suborning

       perjury and inventing facts to obtain jurisdiction in Franklin County after other

       counties had supposedly declined prosecution. “Prosecutors are entitled to

       respond to allegations and inferences raised by the defense even if the

       prosecutor’s response would otherwise be objectionable.” Id. at 669 (quoting

       Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006)). The prosecutor’s comments

       on rebuttal here were wholly in response to the allegations and inferences raised

       by Sells during her closing argument and did not go beyond such a response.

       That is, Sells opened the door to the comments made by the prosecutor in his

       rebuttal. Accordingly, we reject Sells’ claim of prosecutorial misconduct.


                                      Issue Three: Article 1, Section 14

[17]   Sells next asserts that her two convictions violate the actual evidence test under

       Article 1, Section 14 of the Indiana Constitution. As we have often stated:


               Article 1, Section 14 of the Indiana Constitution provides that
               “[n]o person shall be put in jeopardy twice for the same offense.”
               Our Supreme Court has interpreted that clause to prohibit

       Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019          Page 9 of 12
               multiple convictions based on the same “actual evidence used to
               convict.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). To
               determine the actual evidence used to establish a conviction, we
               look to the “evidentiary facts” as they relate to “all” of the
               elements of both offenses. Spivey v. State, 761 N.E.2d 831, 833
               (Ind. 2002). In other words, the actual evidence test requires “the
               evidentiary footprint for all the elements required to prove one
               offense” to be “the same evidentiary footprint as that required to
               prove all the elements of another offense.” Thrash v. State, 88
               N.E.3d 198, 208 (Ind. Ct. App. 2017) (quoting Berg v. State, 45
               N.E.3d 506, 510 (Ind. Ct. App. 2015)).


       Bradley v. State, 113 N.E.3d 742, 751 (Ind. Ct. App. 2018), trans. denied.


[18]   Sells’ two convictions do not violate the actual evidence test under Article 1,

       Section 14. In particular, to prove her conviction for conspiracy to deal

       methamphetamine, the State was required to show, among other things, that

       “Craig performed an overt act in furtherance of the agreement by transporting

       the methamphetamine from Sells’ home towards Wagner’s location in

       Rushville.” Appellant’s App. Vol. II at 16. Nothing about Sells’ conviction for

       dealing in methamphetamine required the State to make a similar showing, and

       there is no reasonable possibility that the jury used that evidence of conspiracy

       to support her conviction for dealing. Accordingly, Sells’ argument under

       Article 1, Section 14 must fail. 2




       2
         Sells presents no argument for our review under the “very same act” test, and, as such, we do not consider
       that possible argument. See Bradley, 113 N.E.3d at 751-53.

       Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019                              Page 10 of 12
                                                Issue Four: Venue

[19]   Finally, Sells asserts that the State failed to prove venue in Franklin County for

       her conviction for dealing. We initially note that Sells erroneously

       characterizes this issue as a challenge to the sufficiency of the evidence

       underlying her conviction. Of course, “[v]enue is not an element of the offense.

       Accordingly, although the State is required to prove venue, it may be

       established by a preponderance of the evidence and need not be proved beyond

       a reasonable doubt.” Alkhalidi v. State, 753 N.E.2d 625, 628 (Ind. 2001)

       (citations omitted).


[20]   “Venue is not limited to the place where the defendant acted. To the contrary,

       the legislature may provide for concurrent venue when elements of the crime

       are committed in more than one county.” Baugh v. State, 801 N.E.2d 629, 631-

       32 (Ind. 2004). And when multiple charges are “integrally related—in other

       words, one thing led to another—then the crimes may be considered a single

       chain of events for purposes of venue,” including counties through which the

       defendant travels in the commission of her crimes. Abran v. State, 825 N.E.2d

       384, 392 (Ind. Ct. App. 2005) (citing French v. State, 266 Ind. 276, 284, 362

       N.E.2d 834, 839 (1977)), trans. denied.


[21]   The State met its burden to establish venue in Franklin County. The charges of

       dealing and conspiracy to deal were integrally related charges. Sells’ delivery of

       methamphetamine to Craig was part of a single chain of events intended to

       culminate in the delivery of the methamphetamine to Wagner, and in


       Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019        Page 11 of 12
       performing those acts Craig drove through Franklin County. Abran, 825

       N.E.2d at 392. Accordingly, Franklin County was a county of proper venue.


                                                   Conclusion
[22]   In sum, we affirm Sells’ convictions.


[23]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2691 | July 31, 2019   Page 12 of 12
