MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                               Apr 05 2018, 8:35 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Derick W. Steele                                         Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Kokomo, Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony J. Williams,                                     April 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A02-1709-CR-2220
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Judge
                                                         Trial Court Cause No.
                                                         34D01-1607-F2-683



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018            Page 1 of 14
                                           Statement of the Case
[1]   Anthony J. Williams appeals his convictions for dealing in cocaine, as a Level 2

      felony; possession of cocaine, as a Level 5 felony;1 neglect of a dependent, as a

      Level 5 felony; and visiting a common nuisance, a Class B misdemeanor,

      following a jury trial. Williams raises the following three issues for our review:


               1.    Whether the trial court abused its discretion when it
               admitted certain evidence over Williams’ Indiana Evidence Rule
               404(b) objection.


               2.     Whether the trial court erred when it did not sua sponte
               admonish the jury that certain evidence should be considered in a
               particular manner.


               3.    Whether the trial court abused its discretion when it did
               not permit Williams to introduce a prior inconsistent statement
               by a witness.


      We also address the following issue:


               4.    Whether the trial court erred when it entered judgment of
               conviction for possession of cocaine, as a Level 5 felony, and
               then “merged . . . the sentence” for that conviction with the
               sentence for another conviction.




      1
        The trial court’s judgment of conviction—and the State in its brief on appeal—erroneously refers to the
      level of this offense as a Level 2 felony. See Appellant’s App. Vol. 2 at 106. The correct level of the offense
      as charged is a Level 5 felony. Id. at 15, 118.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018                 Page 2 of 14
[2]   We affirm on the issues raised by Williams and, on the remaining issue, reverse

      and remand with instructions for the court to vacate Williams’ conviction for

      possession of cocaine, as a Level 5 felony.


                                  Facts and Procedural History
[3]   On July 11, 2016, officers with the Kokomo Police Department executed a

      search warrant at Williams’ residence on East Broadway Street. In the living

      room, officers discovered marijuana and more than 15 grams of cocaine.

      Elsewhere in the house, officers discovered baggies, scales, and firearms. Six

      adults, including Williams, were inside the residence at the time, along with

      two juveniles, one of whom was Williams’ son. Two of the adults each had

      more than $1,000 in cash on their person. One person, Douglas Franklin, was

      outside in a vehicle.


[4]   In a bedroom where the officers had located Williams and other adults, officers

      discovered thirty individually wrapped baggies of cocaine and another baggie

      with “larger white chunks” of cocaine. Tr. at 76. The total weight of the

      cocaine found in that bedroom was 17.07 grams. The officers also discovered a

      handgun and $559 in that room. The officers did not discover “any drug

      paraphernalia” other than baggies and scales inside the residence, which

      indicated to the officers that the residence belonged to a “drug dealer” and not

      “users.” Id. at 146.


[5]   The State charged Williams with multiple offenses. At his ensuing jury trial,

      Williams’ attorney argued in his opening statement that the State would not be

      Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 3 of 14
able to prove that Williams, rather than one of the other adults in the residence

at the time of his arrest, either intentionally or knowingly possessed the cocaine

inside the residence or intended to deal that cocaine. Later, the State called

Franklin as a witness. Over Williams’ objections, Franklin testified as follows:


        Q        . . . [D]id you do some work for Mr. Williams?


        A        Yes, several times.


        Q        And what kind of work did you do?


        A        Worked on his yellow Dodge truck, mechanical work.


                                                ***


        Q        How did he pay you?


        A        Sometimes cash, sometimes in drugs.


                                                ***


        Q        OK. And what drugs were you using?


        A        Cocaine.


                                                ***


        Q     . . . During that thirty day period before July 11th . . . did
        you have occasion to be at Anthony Williams’ house?



Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 4 of 14
        A        Yes.


                                                ***


        Q     And on the times that you were there, did you purchase
        cocaine?


        A        Sometimes.


        Q     And the times that you did purchase it, who did you get it
        from?


        A        From Anthony.


                                                ***


        Q        Did you purchase small quantities or large quantities?


        A        Mostly small; personal use.


                                                ***


        Q     . . . Now on this date of July 11th of 2016, what was your
        purpose in being at Anthony Williams’ house?


        A     To pick up his yellow Dodge truck to fix the driver’s side
        rear window.


        Q        Was the truck there when you arrived?


        A        No, it was not.


Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 5 of 14
              Q        Did you go inside the house?


              A        No, I did not.


              Q        How long were you there before the police arrived?


              A        Approximately five seconds.


      Id. at 98-101.


[6]   On cross-examination, Williams’ counsel engaged Franklin in the following

      colloquy regarding comments Franklin had made to officers shortly after his

      arrest at Williams’ residence on July 11:


              Q      And do you remember telling Officer Taylor that
              [Williams] didn’t have any dope that day?


              A      I said I didn’t know if he had any dope that day. I had not
              talked to him about dope that day. I talked to him about his
              vehicle.


              Q        Do you recall giving a statement?


              A        Yes, I do.


                                                      ***


              Q     Do you recall telling the officers that you haven’t used
              cocaine . . . for two months because of [a] liver problem?


              A        Yeah, at one time; yes.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 6 of 14
                                                      ***


              Q    So you do recall that you said you hadn’t used cocaine for
              two months preceding July 11th?


                                                      ***


              A      That answer was given. I wasn’t talking to anybody at
              that time. April, not around the date of the arrest. I was
              explaining . . . to him how I’d had liver problems and I did quit
              for two months.


      Id. at 105-08.


[7]   Following that colloquy, Williams’ counsel moved to have a recording from the

      investigating officers admitted into the record. According to Williams’ counsel,

      that recording would show that, shortly after his July 11 arrest, Franklin stated

      to officers that Williams had no drugs that day and that Franklin had not used

      cocaine for the past two months because of liver problems. The trial court

      denied the request but permitted Williams to make an offer of proof with the

      recording.


[8]   At the close of the trial, the jury found Williams guilty of dealing in cocaine, as

      a Level 2 felony; possession of cocaine, as a Level 5 felony; neglect of a

      dependent, as a Level 5 felony; and visiting a common nuisance, a Class B

      misdemeanor. The court entered its judgment of conviction on each of the

      guilty verdicts. Thereafter, the court sentenced Williams. In its written

      sentencing order, the court stated that “[t]he sentence on Count 2[, the Level 5

      Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 7 of 14
       possession conviction,] is merged with the sentence on Count 1.” Appellant’s

       App. Vol. 2 at 118. This appeal ensued.


                                      Discussion and Decision
                               Issue One: Admission of 404(b) Evidence

[9]    On appeal, Williams first contends that the trial court erred when it permitted

       Franklin to testify to prior cocaine dealings with Williams. The trial court has

       “inherent discretionary power on the admission of evidence, and its decisions

       are reviewed only for an abuse of that discretion.” McManus v. State, 814

       N.E.2d 253, 264 (Ind. 2004) (internal quotation marks omitted). An abuse of

       discretion occurs when the trial court’s judgment “is clearly against the logic

       and effect of the facts and circumstances and the error affects a party’s

       substantial rights.” Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).


[10]   Williams asserts that Franklin’s testimony should have been excluded under

       Indiana Evidence Rule 404(b). According to that Rule, “[e]vidence of a crime,

       wrong, or other act is not admissible to prove a person’s character in order to

       show that on a particular occasion the person acted in accordance with the

       character.” Ind. Evidence Rule 404(b)(1). However, such evidence “may be

       admissible for another purpose, such as proving motive, opportunity, intent,

       preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

       Evid. R. 404(b)(2). Further, if the evidence is admissible under Rule 404(b), it

       may still be excluded if its probative value is substantially outweighed by the

       danger of unfair prejudice. Evid. R. 403.


       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 8 of 14
[11]   According to Williams, Franklin’s testimony only went “to prove a continuous

       pattern of drug dealing . . . .” Appellant’s Br. at 9. We cannot agree. As our

       Supreme Court has explained, “[t]he intent exception in Evid. R. 404(b) will be

       available when a defendant goes beyond merely denying the charged culpability

       and affirmatively presents a claim of particular contrary intent.” Wickizer v.

       State, 626 N.E.2d 795, 799 (Ind. 1993). The defendant may place his intent at

       issue for purposes of applying Rule 404(b) during his “opening statement.” Id.


[12]   That is what happened here. In his opening statement to the jury, Williams

       argued that the State would not be able to show that it was Williams, rather

       than another adult at the residence on July 11, who intentionally or knowingly

       possessed and who intended to deal the cocaine found within the residence.

       Thus, Williams opened the door to allow the State to ask Franklin about prior

       acts that would demonstrate Williams’ intent and knowledge, which the State

       did.


[13]   Still, Williams asserts that the probative value of Franklin’s testimony was

       substantially outweighed by the danger of unfair prejudice. In a recent opinion,

       the Indiana Supreme Court explained the trial court’s broad discretion to apply

       Rule 403:


               “Trial judges are called trial judges for a reason. The reason is
               that they conduct trials. Admitting or excluding evidence is what
               they do.” United States v. Hall, 858 F.3d 254, 288 (4th Cir. 2017)
               (Wilkinson, J., dissenting). That’s why trial judges have
               discretion in making evidentiary decisions. This discretion
               means that, in many cases, trial judges have options. They can

       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 9 of 14
               admit or exclude evidence, and we won’t meddle with that
               decision on appeal. See Smoote v. State, 708 N.E.2d 1, 3 (Ind.
               1999). There are good reasons for this. “Our instincts are less
               practiced than those of the trial bench and our sense for the
               rhythms of a trial less sure.” Hall, 858 F.3d at 289. And trial
               courts are far better at weighing evidence and assessing witness
               credibility. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
               In sum, our vantage point—in a “far corner of the upper deck”—
               does not provide as clear a view. State v. Keck, 4 N.E.3d 1180,
               1185 (Ind. 2014).


                                                       ***


               The unfair prejudice from [the challenged evidence] . . . was not
               so high that it overrode the trial court’s wide discretion. See
               Dunlap[ v. State], 761 N.E.2d [837, 842 (Ind. 2002)]. We thus
               decline to second-guess the trial court’s determination that the
               [evidence’s] relevance . . . was not substantially outweighed by
               the danger of unfair prejudice. The trial court could have
               admitted or excluded the [evidence]. The trial court chose
               admission. . . .


       Snow v. State, 77 N.E.3d 173, 177, 179 (Ind. 2017).


[14]   Contrary to Williams’ assertions on appeal, Franklin’s testimony was relevant

       to show that Williams intentionally or knowingly possessed the cocaine and

       intended to deal the cocaine. Moreover, any danger of unfair prejudice from

       that relevant evidence did not override the trial court’s discretion to admit or

       exclude it under Rule 403. See id. Accordingly, the trial court acted within its

       discretion when it permitted Franklin’s testimony, and we will not second-guess

       the court’s exercise of that discretion.


       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 10 of 14
                                         Issue Two: Admonishment

[15]   Williams next asserts that the trial court should have sua sponte admonished the

       jury that Franklin’s testimony was being offered for a limited purpose—namely,

       Williams’ intent and knowledge—to minimize the danger of unfair prejudice

       from that testimony. Williams recognizes that his argument is not supported by

       a rule or our case law. Indeed, contrary to Williams’ argument, our case law

       has long required the parties to request an admonishment from the court if the

       parties think such an admonishment might be appropriate. E.g., Humphrey v.

       State, 680 N.E.2d 836, 839-40 (Ind. 1997). We reject Williams’ argument on

       this issue.


                               Issue Three: Prior Inconsistent Statement

[16]   Williams also asserts that the trial court abused its discretion when it did not

       permit him to impeach Franklin with a prior inconsistent statement. According

       to Williams, Franklin’s testimony that he had told an officer that he “didn’t

       know if [Williams] had any dope that day” is inconsistent with Franklin’s

       statements to officers shortly after his arrest.2 Tr. at 105.


[17]   Williams is correct that Franklin’s testimony that he did not know if Williams

       had any cocaine on July 11 is inconsistent with the prior recorded statement. In

       that statement, Franklin said that Williams “told me he didn’t have no drugs”




       2
         On appeal, Williams does not challenge Franklin’s testimony about having quit cocaine for two months
       due to liver problems.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018        Page 11 of 14
       when Franklin went to Williams’ residence on July 11 to work on Williams’

       truck. Def.’s Ex. A at 2:53 to 2:57.


[18]   Nonetheless, we cannot say that any error in the trial court’s decision to

       exclude the prior statement was reversible error. Rather, we agree with the

       State that “the potential impeachment evidence . . . against Franklin was

       insignificant.” Appellee’s Br. at 28. Franklin’s specific recollection of

       statements made by Williams shortly before Williams was found in a room with

       more than 17 grams of cocaine distributed in various baggies, with another 15

       grams found elsewhere in the residence along with scales, firearms, and a large

       amount of cash, simply did not matter. As such, the error, if any, in the trial

       court’s decision to exclude the prior inconsistent statement was harmless.


                                    Issue Four: Merger of Convictions

[19]   Finally, we consider whether the trial court erred when it entered Williams’

       convictions. In its judgment of conviction, the court entered judgment against

       Williams both for Count 1, dealing in cocaine as a Level 2 felony, and for

       Count 2, possession of cocaine as a Level 5 felony. Likewise, in its amended

       sentencing order, the court recognized that it had entered its judgment of

       conviction against Williams on both of those counts. However, the court then

       stated that “[t]he sentence on Count 2 is merged with the sentence on Count 1.”

       Appellant’s App. Vol. 2 at 118.


[20]   Such language is not sufficient to protect the defendant from double jeopardy.

       As we have explained:


       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 12 of 14
               If a trial court does not formally enter a judgment of conviction
               on a [finding] of guilty, then there is no requirement that the trial
               court vacate the “conviction,” and merger is appropriate.
               Townsend v. State, 860 N.E.2d 1268, 1270 (Ind. Ct. App. 2007)
               (quoting Green v. State, 856 N.E.2d 703, 704 (Ind. 2006)).
               However, if the trial court does enter judgment of conviction on a
               [guilty finding], then simply merging the offenses is insufficient
               and vacation of the offense is required. See id.; Green, 856 N.E.2d
               at 704; Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008)
               (where trial court entered judgments of conviction on jury’s
               verdicts of guilty for dealing and conspiracy, then later merged
               the convictions for double jeopardy reasons, such merging
               without also vacating the conspiracy conviction was insufficient
               to cure the double jeopardy violation).


       Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013).


[21]   For the same reasons, we conclude that the language used in the trial court’s

       judgment here was insufficient, and we remand with instructions for the court

       to vacate Williams’ conviction under Count 2 for possession of cocaine, as a

       Level 5 felony.


                                                    Conclusion

[22]   In sum, we affirm the trial court on the issues raised by Williams on appeal.

       However, we reverse the trial court’s “merger” of Williams’ sentences under

       Count 1 and Count 2, and we remand with instructions for the trial court to

       vacate Williams’ conviction under Count 2.


[23]   Affirmed in part, reversed in part, and remanded with instructions.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 13 of 14
Robb, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 34A02-1709-CR-2220 | April 5, 2018   Page 14 of 14
