Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                          Jul 30 2014, 9:54 am
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:

JUNE E. BULES                                        GREGORY F. ZOELLER
Plymouth, Indiana                                    Attorney General of Indiana

                                                     BRIAN REITZ
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TRAVIS L. CHIZUM,                                    )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 50A04-1311-CR-560
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE MARSHALL SUPERIOR COURT
                           The Honorable Robert O. Bowen, Judge
                               Cause No. 50D01-1303-FB-29



                                           July 30, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Travis Chizum appeals his convictions for dealing in methamphetamine as a class B

felony, possession of methamphetamine as a class D felony, possession of chemical reagents

or precursors with intent to manufacture as a class D felony, and maintaining a common

nuisance, a class D felony. Chizum raises two issues, which we revise and restate as:

       I.       Whether the court abused its discretion when it admitted evidence
                seized during the execution of a search warrant; and

       II.      Whether the prosecutor committed misconduct by intimidating
                witnesses prior to trial.

We affirm.

                         FACTS AND PROCEDURAL HISTORY

       In January 2013, Plymouth Police Officer John Weir drove past 1008 North Plum

Street in Plymouth, Indiana (the “Location”), and smelled the strong odor of ammonia

emanating from a barn on the premises. Officer Weir had been working methamphetamine

cases since 2005 and associated the odor with the manufacture of methamphetamine.

Although Officer Weir would normally have called for other officers and performed a

“knock and talk” at the Location, only two other officers were working because it was a

Sunday, and accordingly he decided against doing so. Transcript at 74. Beginning on

January 8, 2013, Officer Weir conducted surveillance on the barn, including logging license

plate numbers of visiting vehicles and checking names to the pseudoephedrine purchase log.

Due to his experience working methamphetamine cases, Officer Weir recognized many of

the visitors.

                                            2
       On February 8, 2013, a vehicle was pulled over in which Brian Beeman was riding as

a passenger. Beeman had a warrant out for his arrest and had drug paraphernalia in his

possession when he was taken into custody. Beeman articulated to the arresting officer that,

in exchange for not being cited for possession of paraphernalia, he would show the officer a

location where there was “constant methamphetamine cooking” by Chizum and John Bobby.

Appellant’s Appendix at 26. Beeman told the officer “that he has been there and seen the old

labs and that they cook up to 16 boxes a night.” Id. He stated that this was where he

procured his methamphetamine. He then took the officer to the Location. This information

was given to Officer Weir.

       On February 27, 2013, Officer Weir prepared an Affidavit for Search Warrant (the

“Affidavit”) containing the information provided by Beeman as well as the results of Officer

Weir’s surveillance of the Location and investigation resulting therefrom. The request was

granted and a search warrant issued that same day. On March 7, 2013, the search warrant

was executed.

       On March 7, prior to the police executing the search warrant, Diane Watson and

Jordan Bunton had visited the Marshall County Jail to see a couple of inmates and, upon

leaving, they decided they wanted to get high and walked to the Location. While on the way

there, they called and spoke with Chizum to make sure they could come over. When they

arrived, Chizum and Adam Wagers were there, Watson paid forty dollars for approximately

one-half of a gram of methamphetamine, and Wagers injected both Watson and Bunton with

                                             3
the drug. While Watson and Bunton were at the Location, Kim Frazier arrived. At some

point, Chizum received a call or text on his cell phone, and shortly thereafter he gave Frazier

the keys to the Location and told her to lock up when she left. Chizum then left the Location.

       Within a few minutes of Chizum leaving there was a knock at the door, and when

Wagers went to answer it he saw that it was the police and alerted the others. Wagers

attempted to climb out of a window in the back of the Location but was apprehended by

officers, and the three females were found hiding under a vehicle parked in the back of the

Location. The police observed a strong odor of chemicals in the building, and they

accordingly ensured there were no other people inside and vacated the building except for

two Indiana State Police officers who were members of the Chemical Lab Team and have

special training in dealing with and disposing of methamphetamine chemicals and labs.

       At the Location, the police recovered a large quantity of methamphetamine related

items. Specifically, police discovered plastic zip lock type baggies, a scale, a hollowed out

pen taped with a glass tube used to smoke methamphetamine, empty pseudoephedrine boxes

and blister packs, hypodermic needles, coffee filters, and a coffee grinder containing a white

powdery residue. Also present were lye and sulfuric acid, Coleman fuel, cold packs, salt, and

empty lithium battery casings, as well as “crasher bags,” which are plastic bags that are hung

to allow the methamphetamine to filter from the liquid solvent. Transcript at 93, 112. There

were at least twenty-three old hydrochloric gas generators and sixteen one-pot labs found.

Also, a one-gallon pump type sprayer was found inside an oven, which was determined to be

                                              4
an active methamphetamine lab. The contents of a plastic bag containing a glass vial which

housed a cloudy liquid tested positive for methamphetamine, and the contents of another

plastic bag containing five coffee filters also tested positive for methamphetamine. In

addition, Watson was found to be in possession of a plastic bag containing a substance that

tested positive for methamphetamine.

       On March 14, 2013, the State charged Chizum with Count I, dealing in

methamphetamine as a Class B Felony; Count II, conspiracy to commit dealing in

methamphetamine as a class B felony; Count III, possession of methamphetamine as a class

D felony; Count IV, possession of chemical reagents or precursors with intent to manufacture

a controlled substance as a class D felony; and Count V, maintaining a common nuisance, a

class D felony. On July 15, 2013, Chizum filed a Notice of Alibi Defense, and on July 22,

2013, the State filed its Objection to Defendant’s Notice of Alibi. On July 22, 2013, Chizum

filed a motion to suppress, and on August 28, 2013, a hearing was held on the motion and the

matter was taken under advisement. The trial court denied the motion to suppress on August

30, 2013.

       Also, on July 29, 2013, after Chizum filed his motion to suppress but prior to the

hearing thereon, the State of Indiana filed an Amended Information. On August 29, 2013,

the State filed a Notice of Intent to Introduce Laboratory Results. On September 11, 2013,

the court held a hearing on the Notice of Alibi Defense and the State’s Amendment of the

Charging Information, and the court granted the State’s motion to amend the charging

                                             5
information and also ordered that Chizum be allowed to submit evidence regarding the facts

in the notice of alibi but that no alibi instruction would be read to the jury.

       On September 23, 2013, Chizum filed a Verified Petition for Appointment of Special

Prosecutor and a separate Motion to Dismiss for State Misconduct (the “Motion to Dismiss”).

Chizum’s Motion to Dismiss alleged that “[t]he prosecutor has obstructed [Chizum’s] access

to witnesses by following, harassing, threatening, and arresting several of [Chizum’s]

witnesses.” Appellant’s Appendix at 43. On September 24, 2013, prior to the jury trial

beginning, a hearing was held on the petition and Motion to Dismiss in which Tara Chizum,

the sister of Chizum, testified via video camera from the Marshall County Jail due to being

incarcerated. Tara testified regarding Prosecutor Nelson Chipman’s interactions with her and

other defense witnesses and the fact that certain defense witnesses had been recently arrested.

The court denied both Chizum’s petition and Motion to Dismiss.

       That day, the court proceeded to hold a jury trial in which evidence consistent with the

foregoing was presented. On September 25, 2013, the jury found Chizum guilty as charged.

On October 16, 2013, the court sentenced Chizum to twenty years at the Department of

Correction on Count I, dealing in methamphetamine, three years on Count III, possession of

methamphetamine, three years on Count IV, possession of chemical reagents or precursors

with intent to manufacture, and three years on Count V, maintaining a common nuisance, and




                                               6
ordered that the sentences be served concurrently.1 Thus, Chizum received an aggregate

sentence of twenty years. Additional facts will be provided below.

                                             DISCUSSION

                                                     I.

       The first issue is whether the court abused its discretion when it admitted evidence

seized during the execution of the search warrant. Although Chizum originally challenged

the admission of the evidence through a motion to suppress, he now challenges the admission

of the evidence at trial. Thus, the issue is appropriately framed as whether the trial court

abused its discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80

(Ind. Ct. App. 2008), trans. denied. We review the trial court’s ruling on the admission or

exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134

(Ind. 1997), reh’g denied. We reverse only where the decision is clearly against the logic and

effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g

denied. Even if the trial court’s decision was an abuse of discretion, we will not reverse if

the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.

1999), reh’g denied, trans. denied. We may affirm a trial court’s decision to admit evidence

seized as a result of the search based on any legal theory supported by the record. Edwards v.

State, 724 N.E.2d 616 (Ind. Ct. App. 2000), trans. denied.



       1
           The court ordered that Count II merge with Count I.

                                                     7
       Chizum raises a number of challenges to whether the search warrant was supported by

probable cause. Specifically, Chizum argues that: (A) probable cause had not been

established to issue the search warrant; (B) even if the information contained in the Affidavit

was enough to establish probable cause, the information was stale; and (C) even if the

information establishing probable cause was not stale at the time the warrant was issued,

probable cause had become stale by the time the officers executed the warrant. We address

each of Chizum’s arguments separately.

A.     Whether Probable Cause Was Established

       Both the Fourth Amendment to the United States Constitution and Article 1, Section

11 of the Indiana Constitution require probable cause for the issuance of a search warrant.

State v. Shipman, 987 N.E.2d 1122, 1126 (Ind. Ct. App. 2013). This court has previously

explained that “probable cause” is a fluid concept incapable of precise definition and must be

decided based on the facts of each case. Id. In deciding whether to issue a search warrant,

the task of the issuing magistrate is simply to make a practical, common sense decision

whether, given all the circumstances set forth in the affidavit, there is a fair probability that

evidence of a crime will be found in a particular place. Id.; see also Illinois v. Gates, 462

U.S. 213, 238, 103 S. Ct. 2317 (1983), reh’g denied. “A search warrant is presumed valid,

and the burden is upon the challenger to rebut the presumption.” Britt v. State, 810 N.E.2d

1077, 1080 (Ind. Ct. App. 2004).



                                               8
       The duty of a reviewing court is to determine whether the judge had a “substantial

basis” for concluding that probable cause existed. Shipman, 987 N.E.2d at 1126 (quoting

State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006)). A “substantial basis” requires the

reviewing court, with significant deference to the judge’s determination, to focus on whether

reasonable inferences drawn from the totality of the evidence support the determination of

probable cause. Id. We review the trial court’s substantial basis determination de novo, but

we nonetheless afford significant deference to the judge’s determination as we focus on

whether reasonable inferences drawn from the totality of the evidence support that

determination. Id. We consider only the evidence presented to the issuing judge, not after-

the-fact justifications for the search. Id.; see also Jaggers v. State, 687 N.E.2d 180, 182 (Ind.

1997) (noting that a reviewing court must confine its review to the “evidence presented to the

issuing magistrate and not post hac justifications for the search”) (citing Seltzer v. State, 489

N.E.2d 939, 941 (Ind. 1986)). In determining whether an affidavit provided probable cause

for the issuance of a search warrant, doubtful cases should be resolved in favor of upholding

the warrant. Shipman, 987 N.E.2d at 1126.

       The Fourth Amendment to the United States Constitution 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.



                                               9
The text of Article 1, Section 11 of the Indiana Constitution contains nearly identical

language. Jackson v. State, 908 N.E.2d 1140, 1143 (Ind. 2009). These constitutional

principles are codified in Ind. Code § 35-33-5-2, which details the information to be

contained in an affidavit for a search warrant. Spillers, 847 N.E.2d at 953.

       At the time the Affidavit was filed, Ind. Code § 35-33-5-2(a) provided in relevant part:

       [N]o warrant for search or arrest shall be issued until there is filed with the
       judge an affidavit:

              (1)    particularly describing:

                     (A)    the house or place to be searched and the
                            things to be searched for; or

                     (B)    particularly describing the person to be
                            arrested;

              (2)    alleging substantially the offense in relation thereto and
                     that the affiant believes and has good cause to believe
                     that:

                     (A)    the things as are to be searched for are
                            there concealed; or

                     (B)    the person to be arrested committed the
                            offense; and

              (3)    setting forth the facts then in knowledge of the affiant or
                     information based on hearsay, constituting the probable
                     cause.




                                              10
Ind. Code § 35-33-5-2(a) (2008) (subsequently amended by Pub. L. No. 170-2014, § 17 (eff.

July 1, 2014)). Also, if an affidavit used to establish probable cause is based on hearsay, the

affidavit must either:

       (1)    contain reliable information establishing the credibility of the source
              and of each of the declarants of the hearsay and establishing that there
              is a factual basis for the information furnished; or

       (2)    contain information that establishes that the totality of the
              circumstances corroborates the hearsay.

Ind. Code § 35-33-5-2(b).

       The Indiana Supreme Court has determined that uncorroborated hearsay from a source

whose credibility is itself unknown cannot support the finding of probable cause to issue a

search warrant. See Jaggers, 687 N.E.2d at 182 (citing Gates, 462 U.S. at 227, 103 S. Ct.

2317)). The trustworthiness of hearsay for the purpose of proving probable cause can be

established in a number of ways, including where: (1) the informant has given correct

information in the past, (2) independent police investigation corroborates the informant’s

statements, (3) some basis for the informant’s knowledge is demonstrated, or (4) the

informant predicts conduct or activity by the suspect that is not ordinarily easily predicted.

Lanham v. State, 937 N.E.2d 419, 424 (Ind. Ct. App. 2010). These examples are not

exclusive. Id. “Depending on the facts, other considerations may come into play in

establishing the reliability of the informant or the hearsay.” Id. One such additional

consideration is whether the informant has made a declaration against penal interest. Id.


                                              11
Chizum argues that probable cause had not been established to issue the search warrant,

asserting specifically that the State did not establish that the hearsay information provided by

Beeman was trustworthy. Chizum urges that the State’s argument that Beeman’s credibility

“was established because he was admitting wrongdoing” fails because he was “already in

custody for illegal activity” and he was not subjected “to any additional criminal liability and

[statements] were therefore not against his penal interest.” Appellant’s Brief at 11. He also

argues that, to the extent the Affidavit relied upon the criminal histories of various

individuals Officer Weir chronicled as frequenting the Location, “[t]he mere fact that certain

people are seen frequenting a location does not establish probable cause that unlawful

activity is occurring at that location.” Id. at 12. He further maintains that the fact “that some

of the people had purchased pseudoephedrine during the past several years does not establish

probable cause that there is currently unlawful behavior at the location now.” Id.

       The State asserts that Beeman’s statement to police was a statement against penal

interest, noting specifically that while he was under arrest for possession of paraphernalia,

which ranges in severity from a class A infraction to a class D felony, his statement was an

admission to possessing methamphetamine, with a range of a class D felony to a class A

felony. The State argues that Chizum’s contention that Beeman’s statement was not reliable

because he was in custody “does not square with the ‘common sense’ understanding outlined

by both this Court and the Supreme Court of the United States.” Appellee’s Brief at 14. The

State further posits that although Beeman’s statement alone sufficed, “Officer Weir had

                                               12
conducted further investigation to buttress probable cause and corroborate Beeman’s

statement” by logging license plates and names of subjects visiting the barn. Id. And the

State notes that the Affidavit “listed twenty people that had been visitors to the barn” who

“combined for 621 attempted pseudoephedrine purchases in the past few years, eighty prior

narcotics charges, 229 prior criminal charges in total, and forty-four total criminal

sentences.” Id. at 15. The State maintains that although “the specific dates of the individual

pseudoephedrine purchases were not listed–instead ranges of the purchases for each

individual were listed–each time period ended in February 2013, rendering the fair, plain

reading of the [A]ffidavit to indicate that these purchases were ongoing.” Id.

       The circumstances known to the trial court in its determination of admissibility

include Beeman’s statement to police regarding “constant methamphetamine cooking” by

Chizum, among others, occurring at the Location, and “that he has been there and seen the

old labs and that they cook up to 16 boxes a night.” The trial court also knew of Beeman’s

statements that he had purchased methamphetamine at the Location, as well as directing the

police to the Location, as well as Officer Weir’s investigation of the Location, which had

been occurring for a month prior to the stop of Beeman. Appellant’s Appendix at 26. The

Affidavit, consisting of ten single-spaced pages, chronicled the results of Officer Weir’s

investigation, including a list of twenty individuals associated with the Location and noting

their frequency of purchasing pseudoephedrine which he determined by examining “the

NPLEX pseudoephedrine purchase logs.” Id. Office Weir further noted in the Affidavit that

                                             13
through his thirteen years of “training and experiences with Methamphetamine

investigations,” he recognized that the pseudoephedrine purchasing behavior exhibited by the

twenty individuals was consistent with those of “Methamphetamine users/cooks or ‘smurfs’

(persons who buy [pseudoephedrine] to sell for a large profit or trade for Meth).” Id. Officer

Weir also indicated that he observed the strong odor of ammonia emanating from a barn on

the premises in January 2013. To the extent that the parties disagree as to whether Beeman’s

statement was trustworthy and reliable as a statement against penal interest, we need not

examine this question because the trustworthiness of his statement was established by

corroborating evidence procured by Officer Weir’s investigation of the Location.

Accordingly, we conclude that the Affidavit was supported by probable cause, and the trial

court acted within its discretion when it admitted the evidence seized at the Location. See

Scott v. State, 883 N.E.2d 147, 155-156 (Ind. Ct. App. 2008) (holding that information

provided by a confidential informant “was sufficiently corroborated by the totality of the

circumstances, including some additional police investigation and statements from concerned

citizens consistent with the [confidential informant’s] information” and that probable cause

to search a residence therefore existed).

B.     Whether the Information Establishing Probable Cause Was Stale at Issuance

       “Time can be a critical requirement in determining probable cause.” Mehring v. State,

884 N.E.2d 371, 377 (Ind. Ct. App. 2008) (quoting Williams v. State, 426 N.E.2d 662, 667

(Ind. 1981)), reh’g denied, trans. denied. “It is a fundamental principle of search and seizure

                                              14
law that the information given to the magistrate or judge in the application for a search

warrant must be timely.” Id. The general rule is that stale information cannot support a

finding of probable cause. Id. Rather, it gives rise to a mere suspicion, especially where the

items to be obtained in the search are easily concealed and moved. Id. The exact moment

when information becomes stale cannot be precisely determined. Id. Although the age of the

information supporting an application for a warrant can be a critical factor when determining

the existence of probable cause, our courts have not established a bright-line rule regarding

the amount of time that may elapse between obtaining the facts upon which the search

warrant is based and the issuance of the warrant. Id. (citing Breitweiser v. State, 704 N.E.2d

496, 499 (Ind. Ct. App. 1999) (citing Moran v. State, 644 N.E.2d 536 542 (Ind. 1994), reh’g

denied)). “[P]robable cause is not determined by merely counting the number of days

between the occurrence of the facts relied upon and the warrant’s issuance.” Id. Instead,

whether the information is tainted by staleness must be determined by the facts and

circumstances of each particular case. Id.

       Chizum argues that even if the information contained in the Affidavit was enough to

establish probable cause, the court still abused its discretion in issuing the warrant because

the information was stale. Chizum states that “[s]tale information gives rise only to mere

suspicion and not reasonable belief, especially when the evidence is easily concealed and

moved.” Appellant’s Brief at 13. He argues that the Affidavit “contained information

provided from Beeman on February 8, 2013 that he would show where constant

                                             15
methamphetamine was being cooked” but that Beeman “did not disclose to the officer how

he knew” this, nor “how recently he had been to the location or the number of times he had

been there,” and that “the trial court knew a minimum nineteen (19) days, if not more, had

elapsed from the time officers obtained Beeman’s information and the issuance of the search

warrant” which “makes the information stale and the search warrant invalid.” Id. at 13-14.

He also maintains that the Affidavit contained “a laundry list of individuals Officer Weir

observed frequenting the location between January 25, 2013 and February 2013” and “the

number of times each person bought and/or attempted to purchase pseudoephedrine” and his

or her criminal history, but “[a]bsolutely nothing in the [A]ffidavit provided the trial court

with the timeliness of the purchases.” Id. at 14.

       The State argues that “items relating to the manufacture of methamphetamine would .

. . not dissipate in the short amount of time” between when the information supporting the

Affidavit was gathered and when the search warrant was issued, noting that such “remnants

of manufacturing methamphetamine and all the trash . . . associated with it is going to be

there unless they dispose of it” and indeed it was present when the search warrant was

executed. Appellee’s Brief at 17. The State maintains that the “litany of smurfs” contained

in the Affidavit, as well as Beeman’s statements that the Location “was used for ‘constant

Methamphetamine cooking’ and that ‘up to 16 boxes a night’ were being cooked” created

“[t]he reasonable inference . . . that Chizum’s barn was being used as a ‘constant’ staging

area for the production and consumption of methamphetamine,” id. at 17-18, and that

                                             16
“probable cause may continue for several weeks, if not months, of the last reported instance

of suspect activity.” Id. at 18 (quoting U.S. v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.

1986)). The State also argues that “no intervening facts changed the initial circumstances

that supported probable cause.” Id. at 19.

       The record reveals that on February 8, 2013, Beeman told police of “constant

methamphetamine cooking” by Chizum among others occurring at the Location and “that he

has been there and seen the old labs and that they cook up to 16 boxes a night.” Appellant’s

Appendix at 26.       This statement indicates that evidence of the manufacture of

methamphetamine was not being disposed of as it accumulated. Officer Weir had been

surveilling the Location, and he continued to do so for weeks after until February 20, 2013, a

week prior to filing the Affidavit. Unlike money or drugs, the remnants of precursors in the

manufacture of methamphetamine are not items that may be easily consumed and instead

must be disposed of in some fashion. See Foster v. State, 633 N.E.2d 337, 345 (Ind. Ct. App.

1994), trans. denied. We conclude that the evidence supporting probable cause was not stale

when the search warrant was issued. See Scott, 883 N.E.2d at 157 (holding that “[i]n light of

the C.I.’s information that Scott was involved in ongoing methamphetamine manufacture,

[the officer’s] information regarding detecting the odor of ether at [the defendant’s] residence

within the previous two months was not stale”).

C.     Whether Probable Cause Was Stale When Search Warrant Executed



                                              17
       Search warrants must be executed not more than ten days after the date of issuance.

Ind. Code § 35-33-5-7(b)(1). This court has held that search warrants executed within the

statutory ten-day period can be unconstitutional if the supporting probable cause dissipates

before execution. Huffines v. State, 739 N.E.2d 1093, 1096-1097 (Ind. Ct. App. 2000), trans.

denied. With respect to whether the information supporting a warrant was stale by the time

the warrant was served, this court has held:

              Although the age of the information supporting an application for a
       warrant can be a critical factor when determining the existence of probable
       cause, our courts have not established a bright-line rule regarding the amount
       of time which may elapse between obtaining the facts upon which the search
       warrant is based and the issuance of the warrant. Instead, whether the
       information is tainted by staleness must be determined by the facts and
       circumstances of each particular case.

Smith v. State, 953 N.E.2d 651, 659 (Ind. Ct. App. 2011) (citing Scott, 883 N.E.2d at 157

(quoting Frasier v. State, 794 N.E.2d 449, 457 (Ind. Ct. App. 2003), reh’g denied, trans.

denied)), trans. denied.

       Chizum argues that the “delay of eight (8) days before the warrant was executed

dissipated the information even more enhancing the staleness and therefore making the

search invalid.” Appellant’s Brief at 15. He asserts that “[i]mportant factors to consider in

determining whether probable cause had dissipated, rendering the warrant fatally stale,

include the lapse of time since the warrant was issued, the nature of the criminal activity, and

the kind of property subject to the search,” id. at 14-15 (citing Ashley v. State, 251 Ind. 359,

367-368, 241 N.E.2d 264, 268-269 (1968)), and that there was “very little information

                                               18
contained in the [A]ffidavit . . . that supports a determination that evidence of

methamphetamine and /or methamphetamine manufacturing items would be found at the

location on March 7, 2013 . . . .” Id. at 15. The State argues that for the same reasons

discussed in part (B), “considering the type of evidence believed to have been at [the

Location] this was not an unreasonable delay” because it “was a ‘constant’ process . . . .”

Appellee’s Brief at 20.

        We agree with the State that the information contained in the Affidavit which, as

noted above, was not stale at the time of issuance, was similarly not stale at the time the

search warrant was executed. Again, there was evidence of constant methamphetamine

manufacturing by Chizum and others at the Location, and evidence that Beeman had been

there and seen the old labs and that observed up to 16 boxes a night being manufactured.

Appellant’s Appendix at 26. The Location was frequented by a multitude of individuals who

frequently purchased pseudoephedrine and had criminal histories involving the use and

manufacture of methamphetamine. The police executed the search warrant within the

statutory ten-day period, and we cannot say that the evidence supporting probable cause had

become stale between the issuance of the warrant and the date it was executed. We therefore

conclude Chizum is not entitled to reversal on this basis.2

                                                     II.


        2
         The State also argues that even if the warrant was invalid, the good faith exception applies and the
evidence should not be excluded. However, because we so conclude we need not address this argument.

                                                    19
       The next issue is whether the prosecutor committed misconduct by intimidating

witnesses prior to trial. In reviewing a claim of prosecutorial misconduct, we determine: (1)

whether the prosecutor engaged in misconduct, and if so, (2) whether that misconduct, under

all of the circumstances, placed the defendant in a position of grave peril to which he or she

should not have been subjected. Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001). The

“gravity of peril” is measured by the “probable persuasive effect of the misconduct on the

jury’s decision, not on the degree of impropriety of the conduct.” Id. When deciding

whether a mistrial is appropriate, the trial court is in the best position to gauge the

surrounding circumstances and the potential impact on the jury. Stephenson v. State, 742

N.E.2d 463, 482 (Ind. 2001), cert. denied, 534 U.S. 1105, 122 S. Ct. 905 (2002). A mistrial

is “an extreme remedy granted only when no other method can rectify the situation.”

Overstreet v. State, 783 N.E.2d 1140, 1155 (Ind. 2003), cert. denied, 540 U.S. 1150, 124 S.

Ct. 1145 (2004). The denial of a mistrial lies within the sound discretion of the trial court,

and will be reversed only upon a finding of an abuse of discretion. Coleman, 750 N.E.2d at

375. An abuse of discretion occurs where the decision is clearly against the logic and effect

of the facts and circumstances. Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).

       Chizum argues that, as alleged in his Motion to Dismiss, the prosecutor “committed

misconduct by harassing and intimidating witnesses prior to trial and by facilitating the arrest

of all of the witnesses on [Chizum’s] witness list a week to ten (10) days prior to trial.”

Appellant’s Brief at 17. He contends that based on the testimony of Tara, discussed below,

                                              20
“[c]ertainly driving back and forth from the hospital parking lot to an apartment complex

next to a witness’ apartment complex at approximately midnight repeatedly could be viewed

as misconduct by intimidation” and that Prosecutor Holmes, who argued at the hearing, made

statements that he was aware of Chipman approaching “Johnson and Frazier,” which

corroborated what Tara testified to at the hearing. Id. at 19. He urges that Chipman’s

“conduct placed Chizum in a position of grave peril by placing witnesses in fear to testify on

his behalf” and “violated [his] right to a fair trial under the Due Process Clause of the

Constitution.” Id.

       The State argues that “Chizum’s entire argument is based on uncorroborated

testimony provided by Tara–Chizum’s incarcerated, methamphetamine-using sister,” and that

the court did not credit her testimony. Appellee’s Brief at 24. The State also argues that

even if the events occurred as Tara claimed “it would not have caused ‘grave peril’ to

Chizum,” noting that he does not cite authority regarding prosecutorial misconduct by

harassing witnesses in this fashion. Id. The State contends that it is unclear why Chizum

believes that a prosecutor cannot approach a listed witness prior to trial and that “there has

been no claim of any impermissible conversations, much less impermissible threats.” Id. at

26.

       On September 23, 2013, Chizum filed separately a Verified Petition for Appointment

of Special Prosecutor and a Motion to Dismiss, which alleged that “[t]he prosecutor has

obstructed [Chizum’s] access to witnesses by following, harassing, threatening, and arresting

                                             21
several of [Chizum’s] witnesses.” Appellant’s Appendix at 43. On September 24, 2013,

prior to the start of the jury trial, a hearing was held on the petition and Motion to Dismiss.

Chizum’s attorney called Tara Chizum, the defendant’s sister, who testified via video camera

from the Marshall County Jail due to being incarcerated. She testified that at about 11:45

p.m. to midnight on September 12, 2013, she witnessed a car drive out of the hospital parking

lot into the apartments next to hers and then back to the hospital parking lot and back about

three times and that she recognized Prosecutor Chipman as the driver of the vehicle.

       She testified that she heard that Larry Frazier, who was another witness for Chizum,

had been out shopping and that Chipman had followed him to three different stores, and

when Larry asked Chipman why he was following him Chipman responded that he was

looking for Frazier’s wife, Kim Frazier. Tara further testified that Kim Frazier had said that

Chipman had just been asked to leave her and her husband’s apartment complex by the

maintenance man after Chipman had been sitting there for three to four hours. She testified

that another witness, Melissa Johnson, called her and said that Chipman had shown up at her

hotel room and that when she asked him how he found her there he told her that he “hunted

[her] down.” Transcript at 24. When asked if Kim Frazier indicated she was afraid to testify,

Tara stated that Kim Frazier was very afraid. She further stated that Melissa Johnson was

also afraid but that she would testify no matter what. Tara then testified that she, Melissa

Johnson, Pam Chizum, Melissa Johnson’s mother, and Brian Beeman had all been arrested

since September 12, 2013, and that an officer talking to her about her own case indicated that

                                              22
it was “highly unusual” for “all the witnesses to [Chizum’s] trial [to] have been arrested a

week before his trial.” Id. at 25.

        On cross-examination, prosecutor David Holmes questioned if the majority of Tara’s

testimony was what other people had told her, and she responded affirmatively except that

she saw Chipman in his vehicle around midnight on September 12, 2013. Prosecutor Holmes

stated to the court that his office has officers that do their investigations but that they had

received Chizum’s witness list on September 13, 2013, and that Chipman needed to speak

with those witnesses to see what they were going to say at trial, and specifically stated that

his understanding was that Chipman approached “Johnson and Frazier” for that purpose. Id.

at 42. Prosecutor Holmes also stated that the people arrested were arrested after having

probable cause affidavits approved by a judicial officer, that chronologically the

investigations that led to the arrest of these witnesses were not done in relation to receiving

Chizum’s witness list, and that some investigations had even occurred prior to receiving the

list.

        Prosecutor Holmes introduced State’s Exhibits 3-8 without objection, and the court

admitted the exhibits into evidence. State’s Exhibits 3 and 4 pertained to Tara, State’s

Exhibit 3 was an affidavit of probable cause and State’s Exhibit 4 was an affidavit for a

search warrant on Tara’s home. The latter contains references to phone calls received from

other residents complaining about Tara’s residence, and the dates of the phone calls are prior

to September 13, 2013, when Chizum’s attorney submitted his witness list. State’s Exhibit 5

                                              23
includes a charging information and an affidavit for probable cause regarding Kim Frazier

which noted that on September 2, 2013, the manager of a hotel in Marshall County contacted

the police regarding a possible meth lab in one of the hotel rooms and that Kim Frazier, who

was an employee at the hotel, was arrested based thereon. State’s Exhibit 5 also indicates

that another person who was unrelated to the case against Chizum was arrested pursuant to

the conduct at the hotel. State’s Exhibit 7 included a charging information and an affidavit

for probable cause related to conduct at the hotel involving dealing in methamphetamine

charges against Larry Frazier. State’s Exhibit 8 pertained to a charge of driving while

suspended against Melissa Johnson. After admitting the exhibits, Prosecutor Holmes stated:

              Your Honor, I’m deeply troubled by these allegations. . . . We try to
       respond to public concerns in enforcing the law. We do not go beyond the
       law. We follow the law. We try to comply with all the requirements and that
       and when somebody uses allegations of ethical violations as a tactical matter in
       trying to gain advantage in a trial, I frankly think that’s despicable. It’s
       accusing us of unethical criminal even conduct that there is absolutely no basis
       for.

                                       *****

              [W]hen you get a witness list at the last minute from a defense attorney
       and you have little time to subpoena witnesses, to take depositions, the way
       you find out what they plan on testifying about is to approach them . . .
       Chipman approached two (2) witnesses, and, yeah, he did have to track them
       down because they weren’t where they said they would be and he went to ask
       them questions. That’s not violating any law. That’s, in fact, doing his job . . .
       .

Id. at 40-41. Chizum’s attorney responded as follows:

              Thank you, Your Honor. First I want to say that there was nothing
       disingenuous. This wasn’t something that I did as a matter of a tactic. I filed
                                         24
this motion reluctantly. I filed this motion because I felt that my obligation to
my client required filing it.

        As far as the timing is concerned, the trial disclosure that the Court has
that I prepared - - that was finished, I signed that on September 11th and it was
my understanding it was mailed to the Court and to the Prosecutor’s office that
same day.

        I went out of town the 12th . . . all the way through that weekend, I was
out of town. It occurred to me while I was gone that there were witnesses who
were in the discovery who I didn’t list in my disclosure, so I instructed my
secretary to send a letter to Mr. Chipman to let him know that in addition to
what’s in that disclosure these are some other witnesses who I may call, but
those witnesses are already in the discovery.

       While I was out of town, I got an e-mail from Mr. Chipman. I believe it
was on the 13th saying, well, I never got any disclosure what are you talking
about. That day I instructed my secretary to make sure this gets out to him in
the mail to him today and also fax it to him that way he has it today. It’s my
understanding it was faxed on Friday the 13th.

        So that’s where we get into the timing of all this, and I’m not saying it’s
unethical in any way for a Prosecutor to try to talk to witnesses. I understand
that’s customary and probably something that they’re obligated to do.

        I never had a situation where I give my list of witnesses to the
Prosecutor and then the next week and ten (10) days virtually everyone on the
list ends up in jail and at the same time I’m getting information from my
client’s sister indicating that there’s this intimidation harassment going on.
That’s why the motion was filed, and, like I say, this isn’t something that I
wanted to do. I did this reluctantly. I did it because I felt like I had an
obligation to do it, and, obviously, I didn’t have all the information that the
Prosecutor has presented today concerning these investigations and exactly
what the charges are and what they’re all based on.




                                        25
Id. at 42-44. The court ruled that it did not find that there had been sufficient evidence by the

standard of clear and convincing evidence to show that there had been a conflict of interest or

probable cause to believe a crime was committed and denied both motions.

       Based on the foregoing, we cannot say that Chizum has proved prosecutorial

misconduct in this case. The State admitted into evidence the charging information and

probable cause affidavits relating to the witnesses at issue, indicating investigations which

predate September 13, 2013, when the defense attorney submitted his witness list. Indeed,

the defense attorney admitted that he filed the Motion to Dismiss reluctantly and that he did

not have the information, including the State’s exhibits, available to him prior to filing the

motion. Finally, Chizum does not direct us to authority for the proposition that the

prosecutor behaved inappropriately when he attempted to contact various defense witnesses

in the days leading up to trial to learn the basis of what they intended to testify to at Chizum’s

trial. Also, we cannot say that Chizum has demonstrated that he was subjected to grave peril.

Accordingly, we conclude that Chizum has not proven prosecutorial misconduct warranting a

mistrial.

                                        CONCLUSION

       For the foregoing reasons, we affirm Chizum’s convictions for dealing in

methamphetamine as a class B felony, possession of methamphetamine as a class D felony,

possession of chemical reagents or precursors with intent to manufacture as a class D felony,

and maintaining a common nuisance as a class D felony.

                                               26
      Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.




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