MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Feb 05 2016, 8:45 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Susan E. Schultz                                         Gregory F. Zoeller
Corydon, Indiana                                         Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matt D. Neace,                                           February 5, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         31A01-1502-CR-84
        v.                                               Appeal from the Harrison Superior
                                                         Court
State of Indiana,                                        The Honorable Curtis B. Eskew,
Appellee-Plaintiff                                       Special Judge
                                                         Trial Court Cause No.
                                                         31D01-1304-FB-292



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016       Page 1 of 16
                                Case Summary and Issue
[1]   Following a jury trial, Matt Neace was convicted of possession of

      methamphetamine as a Class D felony and possession of paraphernalia as a

      Class A misdemeanor. Neace now appeals, raising two restated issues: (1)

      whether the trial court committed fundamental error in admitting evidence in

      violation of Indiana Evidence Rule 404(b), and (2) whether the State presented

      sufficient evidence to support his conviction for possession of

      methamphetamine. Concluding the trial court did not commit fundamental

      error and the evidence is sufficient, we affirm.



                            Facts and Procedural History
[2]   In early April 2013, Indiana State Police Sergeant Paul Andry was conducting

      an investigation involving Neace. During the investigation, Sergeant Andry

      contacted Leah Ewen, who Sergeant Andry suspected had recently been in

      contact with Neace. On April 17, Sergeant Andry and Ewen met at Ewen’s

      place of employment. At the meeting, Ewen admitted to using

      methamphetamine, providing prescription pills to Neace in exchange for

      methamphetamine, purchasing pseudoephedrine and other supplies to assist

      Neace in the manufacturing of methamphetamine, and witnessing Neace

      manufacture methamphetamine. Ewen agreed to assist Sergeant Andry in

      locating Neace.




      Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 2 of 16
[3]   The next day, Ewen—at Sergeant Andry’s direction—began communicating

      with Neace via text messaging. Ewen and Neace agreed Neace would provide

      a “g” of what both Ewen and Sergeant Andry assumed would be

      methamphetamine in exchange for Ewen providing prescription pills and a box

      of pseudoephedrine. State’s Exhibit B-14. Ewen and Neace further agreed to

      meet at a Family Dollar in New Salisbury, Indiana.


[4]   Prior to the exchange, Sergeant Andry searched Ewen’s vehicle and Indiana

      State Police Trooper Katrina Smith searched Ewen’s person. No cash or

      methamphetamine was discovered in Ewen’s vehicle or on Ewen’s person.

      Sergeant Andry explained the plan: “The plan was for [Ewen] to, whenever

      Matt got in the car with her, was for her to tell him that the pills and the box of

      pseudoephedrine was [sic] in the trunk.” Transcript at 187. Once the pair

      exited the vehicle, the police would surround the vehicle and arrest Neace.


[5]   After the search, Ewen followed Sergeant Andry to the Family Dollar. The trip

      to the Family Dollar took two minutes and Sergeant Andry never lost sight of

      Ewen or her vehicle. Upon arrival, Ewen backed the car into a parking spot on

      the side of the store as instructed by Sergeant Andry. As they waited, Ewen

      recognized Neace drive past the Family Dollar in a green vehicle. Ewen

      notified Sergeant Andry, and Sergeant Andry then witnessed the green vehicle

      “park next to a silver Escalade that was parked at the Dairy Dip[,]” which was

      an ice cream shop near the Family Dollar. A male exited the green vehicle and

      entered the Escalade. The Escalade then drove to the Family Dollar and

      parked next to Ewen. The police observed Neace exit the Escalade and sit in

      Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 3 of 16
      the front passenger seat of Ewen’s vehicle. Thereafter, both Neace and Ewen

      exited the vehicle and approached the vehicle’s trunk. At that point, the police

      moved in and arrested Neace. The police discovered a bag of

      methamphetamine and thirty dollars in cash in the vehicle’s cup holder, and in

      Neace’s pocket, a spoon with residue. Police concluded the spoon was

      “consistent with drug paraphernalia used to heat up a drug then use it with a

      hypodermic needle.” Id. at 121. Afterwards, Sergeant Andry spoke to the

      occupants in the green vehicle, who were identified as Amber Collier and Sarah

      Bright. They stated they had seen Neace in possession of methamphetamine

      much earlier in the day, but they did not know whether he possessed

      methamphetamine when he met with Ewen.


[6]   The State charged Neace with Count I dealing in methamphetamine, a Class B

      felony; Count II possession of methamphetamine, a Class D felony; Count III

      possession of paraphernalia, a Class A misdemeanor; and Count IV visiting a

      common nuisance, a Class B misdemeanor.1 The State also charged Neace

      with being an habitual offender. The State subsequently filed a “Notice to

      Introduce 404(b) Evidence,” stating it believed Ewen would testify Neace sold

      methamphetamine by way of exchanging methamphetamine for

      pseudoephedrine. In addition, the State believed Sergeant Andry would testify

      he sought Neace’s whereabouts because Neace had a warrant out for his arrest




      1
       The State dismissed Count IV before trial. In addition, the State later dismissed the habitual offender
      enhancement.

      Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016             Page 4 of 16
      and because Sergeant Andry received information that Neace was

      manufacturing and/or selling methamphetamine. Neace filed a motion in

      limine to exclude evidence of Neace’s prior alleged misconduct, including his

      criminal history, prior arrests, and warrants issued under other cause numbers.

      At the hearing on Neace’s motion, the State explained it did not intend to

      introduce evidence of Neace’s criminal history, prior arrests, and warrants

      issued under other cause numbers unless necessary for rebuttal purposes. The

      trial court granted Neace’s motion in that regard.


[7]   At trial, the State called several witnesses, including Sergeant Andry and Ewen.

      At the conclusion of evidence, the jury found Neace not guilty of dealing in

      methamphetamine, but guilty of possession of methamphetamine and

      possession of paraphernalia. This appeal ensued.



                                 Discussion and Decision
                                  I. Admission of Evidence
                                      A. Standard of Review
[8]   A trial court has broad discretion in ruling on the admissibility of evidence, and

      on appeal, we will only disturb the ruling if it appears the trial court abused its

      discretion. Ealy v. State, 685 N.E.2d 1047, 1049-50 (Ind. 1997). “To preserve

      an issue regarding the admission of evidence for appeal, the complaining party

      must have made a contemporaneous objection to the introduction of the

      evidence at trial.” Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct. App. 2002),


      Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 5 of 16
       trans. denied. Here, Neace concedes he did not preserve the alleged error for

       review because he failed to object to the evidence at the time it was offered.


[9]    In such circumstances, however, a reviewing court may disregard the

       defendant’s waiver and reverse the defendant’s conviction if he has

       demonstrated the existence of fundamental error. Purifoy v. State, 821 N.E.2d

       409, 412 (Ind. Ct. App. 2005), trans. denied. “The ‘fundamental error’ rule is

       extremely narrow, and applies only when the error constitutes a blatant

       violation of basic principles, the harm or potential for harm is substantial, and

       the resulting error denies the defendant fundamental due process.” Id. In other

       words, the fundamental error rule requires a defendant “show greater prejudice

       than ordinary reversible error because no objection has been made.” Id.


                                     B. Challenged Testimony
[10]   Neace argues the trial court committed fundamental error in allowing the State

       to elicit testimony from Ewen and Sergeant Andry in violation of Indiana

       Evidence Rule 404(b). “Evidence Rule 404(b) specifically bars the admission of

       evidence of other crimes, wrongs, or bad acts allegedly committed by the

       defendant to prove the defendant’s character, and forbids the use of this kind of

       evidence to show that the defendant acted in a manner consistent with that

       character.” Wilhelmus v. State, 824 N.E.2d 405, 414 (Ind. Ct. App. 2005). At

       trial, the State called Ewen as its first witness. Ewen testified on direct

       examination she was originally interviewed by Sergeant Andry on April 17 as

       to her alleged “crimes surrounding methamphetamine[.]” Tr. at 29. The State


       Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 6 of 16
       did not elicit testimony pertaining to Neace’s alleged prior misconduct. In fact,

       it seems the State specifically stopped Ewen from giving testimony that would

       likely violate Rule 404(b):


               [State:] And when [Sergeant Andry] questioned you, what did
               you do?
               [Ewen:] I told him the truth
               [State:] And what was the truth?
               [Ewen:] That I had pur --
               [State:] Actually, I move to strike that question, Judge.


       Id. at 30.


[11]   On cross-examination, defense counsel also questioned Ewen about her

       conversation with Sergeant Andry, but specifically asked Ewen what crimes she

       confessed to Sergeant Andry. Ewen testified she told Sergeant Andry that she

       previously assisted Neace in the manufacturing of methamphetamine, sold

       Neace prescription pills, sold methamphetamine, and used methamphetamine.

       Moreover, defense counsel asked Ewen if Neace was the only individual she

       assisted in the manufacturing of methamphetamine, and Ewen stated, “Like in

       this situation or at the time period, yes, he was the only one.” Id. at 59.

       Finally, defense counsel asked if Ewen used methamphetamine daily, and if so,

       who she was receiving the methamphetamine from, to which Ewen responded,

       “I was getting it from Matt only around that time.” Id. at 61. On re-direct,

       Ewen testified she used methamphetamine with Neace “all the time” and the

       pair got their methamphetamine because Neace “cooked it.” Id. at 70. In

       addition, Ewen stated she would assist Neace in the manufacturing of

       Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 7 of 16
       methamphetamine by purchasing the necessary supplies, and Neace cooked

       methamphetamine “a couple of days before [he] got arrested.” Id. at 72.


[12]   The State also called Sergeant Andry. On direct, Sergeant Andry testified, “So

       when I interviewed [Ewen] she indicated to me that she had provided

       pseudoephedrine to Matt Neace to cook meth with. And that she had been

       present and had actually purchased other precursors and had been present with

       him when me [sic] manufactured.” Id. at 202. On cross-examination, defense

       counsel asked Sergeant Andry why the police did not set up any video or audio

       surveillance to record the controlled buy. Sergeant Andry stated he did not

       believe video or audio surveillance was necessary because Sergeant Andry knew

       he was going to arrest Neace as soon as he saw him. We note this testimony

       alludes to some prior alleged misconduct. In addition, the following exchange

       occurred:


               [Defense:] And what crime did she confess to you again?
               [Sergeant Andry:] She confessed to helping buy precursors, to
               helping Matt manufacture meth, . . . to purchasing Sudafed and
               some other chemicals for them to manufacture. All that was
               done in about a 2-month period right there.
               [Defense:] Did she admit to selling illegal pain pills?
               [Sergeant Andry:] Oh, yes. She did. She admitted to me --
               One of the first things she was [sic] that Matt likes prescription
               pills and he will meet me because I’ll trade him prescription pills
               for meth. And so that was basically the whole premiss [sic]
               behind the meeting.
               [Defense:] Did you talk to anybody in the (inaudible) that Matt
               Neace had been in when he – before he got into Leah’s vehicle?
               [Sergeant Andry:] Yes, I did.
               [Defense:] Who did you speak with?

       Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 8 of 16
               [Sergeant Andry:] I spoke with Amber Cole Collier and Sarah
               Bright, who were in the green Cadillac that we secured at the
               Dairy Dip across the road.
               [Defense:] Did either Sarah or Amber say they saw Matt Neace
               in possession of methamphetamine on April 18, 2013?
               [Sergeant Andry:] That’s a no. I’m thinking.
               [Defense:] That’s okay.
               [Sergeant Andry:] Actually, yes, but it was not in the afternoon.
               It would have been probably 1:00 or 2:00 o’clock that morning.
               That’s the . . . problem with the question.


       Id. at 222-24.


[13]   On appeal, Neace contends Ewen’s and Sergeant Andry’s testimony was

       improper under Rule 404(b) because the testimony created “a substantial risk

       that the jury would convict [Neace] solely on an inference of bad character and

       that he had a tendency to commit crimes.” Appellant’s Brief at 9. Specifically,

       Neace argues the State elicited testimony from Ewen indicating Neace

       manufactured methamphetamine, used methamphetamine daily, and cooked

       methamphetamine a few days before being arrested; and, in addition, the State

       elicited testimony from Sergeant Andry indicating he intended to arrest Neace

       as soon as he could locate him, Ewen assisted Neace in manufacturing

       methamphetamine, and Neace possessed methamphetamine just prior to the

       controlled buy. The State argues Neace is precluded from relief because Neace

       invited any error in the admission of the evidence in his own cross-examination

       of the witnesses, and even if Neace did not invite error, the error was not

       fundamental. We agree with the State.



       Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 9 of 16
[14]   It is well-settled that a defendant may “open the door” to the admission of

       evidence otherwise inadmissible under the rules of evidence. See Jackson v.

       State, 728 N.E.2d 147, 152 (Ind. 2000). Grounded in estoppel, the doctrine of

       invited error provides “a party may not take advantage of an error that she

       commits, invites, or which is the natural consequence of her own neglect or

       misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). In other words,

       “[d]efendants cannot complain of errors that they induced the trial court to

       make; a party may not invite error and then rely on such error as a reason for

       reversal, because error invited by the complaining party is not reversible error.”

       Berry v. State, 574 N.E.2d 960, 963 (Ind. Ct. App. 1991), trans. denied.


[15]   Here, although the State did elicit the testimony of which Neace complains, it

       was on re-direct. Neace’s own attorney first elicited the vast majority of the

       challenged testimony. For example, Ewen testified on cross-examination she

       assisted Neace in the manufacturing of methamphetamine, sold Neace

       prescription pills, and received methamphetamine from only Neace at the time

       of the controlled buy. In addition, Sergeant Andry subsequently testified on

       cross-examination he planned on arresting Neace as soon as he could locate

       him, Ewen confessed to assisting Neace in the manufacturing of

       methamphetamine, and Neace possessed methamphetamine earlier that day.

       By eliciting such testimony, defense counsel opened the door for the State to

       elicit testimony relevant to the same, including how often Ewen used

       methamphetamine with Neace, how Ewen assisted Neace in the manufacturing

       of methamphetamine, and how Ewen received the methamphetamine. At no


       Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 10 of 16
       point did defense counsel object to, or move to strike, the testimony given by

       Ewen or Sergeant Andry on the basis the testimony violated Rule 404(b).


[16]   We note the record indicates Neace’s attorney attempted to take advantage of

       testimony regarding Ewen’s methamphetamine use, while hoping to keep

       testimony regarding Neace’s involvement in Ewen’s methamphetamine use

       from the jury. See Appellant’s Br. at 12 (“Ewen’s credibility was at issue. Ewen

       further admitted she had been a daily drug user . . . . She admitted to Sgt.

       Andry that she committed numerous crimes . . . .”). Such a strategy invited

       error and we will not allow Neace to now argue the error supports reversal. See

       Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995).


                                  II. Sufficiency of Evidence
                                       A. Standard of Review
[17]   When reviewing the sufficiency of the evidence needed to support a criminal

       conviction, we neither reweigh evidence nor judge witness credibility. Smart v.

       State, 40 N.E.3d 963, 966 (Ind. Ct. App. 2015). Rather, we consider only the

       evidence supporting the judgment and any reasonable inferences that can be

       drawn from such evidence. Id. We will affirm a conviction unless “no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citation

       omitted).




       Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 11 of 16
                            B. Possession of Methamphetamine
[18]   Neace contends the evidence is insufficient to support his conviction for

       possession of methamphetamine. To prove Neace committed Class D felony

       possession of methamphetamine, the State was required to prove Neace

       knowingly or intentionally possessed methamphetamine without a prescription.

       Ind. Code § 35-48-4-6.1(a) (2006). Although Neace argues the State charged

       him with only actual possession and it failed to meet its burden, the State may

       prove the defendant either actually or constructively possessed

       methamphetamine. See, e.g., Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct.

       App. 2009), trans. denied. Constructive possession occurs when somebody has

       the intent and capability to maintain dominion and control over the item. Id.

       Neace argues the evidence is insufficient because the only evidence showing

       Neace possessed methamphetamine came from Ewen’s testimony, which

       Neace claims was incredibly dubious. We disagree.


[19]   First, Neace had the capability to maintain dominion and control over the

       methamphetamine. “To prove capability, the State must show that the

       defendant is able to reduce the contraband to her personal possession.” K.F. v

       State, 961 N.E.2d 501, 510 (Ind. Ct. App. 2012), trans. denied. Here, Neace sat

       in the front passenger seat, and the methamphetamine was discovered in the

       vehicle’s central cup holder, within Neace’s reach. See Lampkins v. State, 682

       N.E.2d 1268, 1275 (Ind. 1997) (holding a defendant had the capability to

       maintain dominion and control over cocaine discovered in another person’s

       vehicle, where the cocaine was found underneath the seat in which defendant

       Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 12 of 16
       had been sitting and easily within the defendant’s reach), modified on reh’g on

       other grounds, 685 N.E.2d 698 (Ind. 1997). Therefore, the evidence was

       sufficient from which the jury could infer Neace had the capability to maintain

       dominion and control over the methamphetamine.


[20]   Second, Neace had the intent to maintain dominion and control over the

       methamphetamine.


               To prove the intent element, the State must demonstrate the
               defendant’s knowledge of the presence of the contraband. This
               knowledge may be inferred from either the exclusive dominion
               and control over the premises containing the contraband or, if the
               control is non-exclusive, evidence of additional circumstances
               that point to the defendant’s knowledge of the presence of the
               contraband. These additional circumstances may include
               incriminating statements by the defendant; flight or furtive
               gestures; defendant’s proximity to the contraband; the
               contraband being in plain view; or the location of the contraband
               in close proximity to items owned by the defendant.


       K.F., 961 N.E.2d at 510 (citations omitted). Because Neace did not have

       exclusive dominion and control over Ewen’s vehicle, we examine whether

       additional circumstances point to Neace’s knowledge of the presence of

       methamphetamine.


[21]   After being contacted by Ewen, Neace texted Ewen stating he had “sum good”

       and could give Ewen a “g” of what both Ewen and Sergeant Andry believed

       would be methamphetamine. State’s Exhibits B-8, B-14. Prior to the exchange,

       officers searched Ewen’s person and vehicle; no methamphetamine was


       Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 13 of 16
       discovered. When Neace arrived at the Family Dollar, Officers witnessed

       Neace sit in the front passenger seat of Ewen’s vehicle, which was in close

       proximity to where the methamphetamine was discovered in plain view.

       Sergeant Andry testified when Neace was arrested, Neace made incriminating

       statements:


               [State:] Did he say anything to you . . . .
               [Sergeant Andry:] Mr. Neace said to me, “I gave you a pretty
               good run.” And I said, --
               [State:] Did he say anything about Leah to you?
               [Sergeant Andry:] Yes.
               [State:] And what did he say about Leah to you?
               [Sergeant Andry:] He said, “You wouldn’t have caught me
               without her.”


       Tr. at 204. Although not an additional circumstance stated above, we note

       when the police arrested Neace, Neace was in possession of drug paraphernalia.

       The evidence is sufficient to show Neace had the intent to maintain dominion

       and control over the methamphetamine.


[22]   Finally, we note Ewen’s testimony that Neace placed the methamphetamine in

       the vehicle’s cup holder was not incredibly dubious. The incredible dubiosity

       rule allows a reviewing court to “impinge on the jury’s responsibility to judge

       the credibility of the witnesses only when it has confronted inherently

       improbable testimony . . . .” Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015)

       (citations and internal quotation marks omitted). In other words, “[a]pplication

       of this rule is rare and the standard to be applied is whether the testimony is so

       incredibly dubious or inherently improbable that no reasonable person could

       Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 14 of 16
       believe it.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). In Moore, our

       supreme court described the appropriate scope of the rule, which requires: “1) a

       sole testifying witness; 2) testimony that is inherently contradictory, equivocal,

       or the result of coercion; and 3) a complete absence of circumstantial evidence.”

       27 N.E.3d at 756. If all three factors are not present, application of the

       incredible dubiosity rule is precluded. Id. at 758. As detailed in the paragraph

       above, there is not a complete absence of circumstantial evidence in the present

       case. Therefore, we conclude Ewen’s testimony is not so “inherently

       improbable that no reasonable person could believe it.” Love, 761 N.E.2d at

       810.


[23]   Taking into account Ewen’s testimony, Neace’s proximity to

       methamphetamine discovered in plain view, Neace’s possession of drug

       paraphernalia, and Neace’s incriminating statements, we conclude the evidence

       was sufficient to prove beyond a reasonable doubt Neace constructively

       possessed methamphetamine.



                                               Conclusion
[24]   We conclude the trial court did not commit fundamental error in admitting

       Ewen’s and Sergeant Andry’s testimony mentioning Neace’s prior misconduct,

       and the evidence was sufficient to support Neace’s conviction for possession of

       methamphetamine. Accordingly, we affirm Neace’s convictions.


[25]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 31A01-1502-CR-84 | February 5, 2016   Page 15 of 16
Barnes, J., and Altice, J., concur.




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