MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                        Dec 11 2019, 8:03 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Brooklyn, Indiana                                        Attorney General of Indiana

                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Cole Searcy,                                      December 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-593
        v.                                               Appeal from the Rush Superior
                                                         Court
State of Indiana,                                        The Honorable Brian D. Hill,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         70D01-1804-F4-307



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019                 Page 1 of 12
                                                     Case Summary


[1]   Jeremy Cole Searcy appeals his convictions for dealing in methamphetamine, a

      level 4 felony, unlawful possession of a syringe, and maintaining a common

      nuisance, both level 6 felonies. Searcy contends that the trial court erred in

      denying his motion for a mistrial because it improperly admitted his videotaped

      statement into evidence in violation of Indiana Evid. Rule 404(b), which placed

      him in a position of grave peril. Searcy also claims that his conviction for

      maintaining a common nuisance must be vacated in light of double jeopardy

      concerns under Article 1, Section 14 of the Indiana Constitution.


[2]   We reverse.


                                             Facts & Procedural History


[3]   On March 5, 2018, a confidential informant (CI) contacted Rushville Police

      Department detectives and advised them that she could purchase

      methamphetamine from Searcy. In response, Detective Alex Shaver instructed the

      CI to contact Searcy and arrange for the purchase of an eight ball 1 of

      methamphetamine.


[4]   The CI contacted Searcy and the two agreed on a plan. Immediately prior to the

      controlled buy, Detective Shaver met the CI and searched her pursuant to police




         1
             An eight ball is approximately 3.5 grams of methamphetamine.


         Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019   Page 2 of 12
      department procedure. The CI was then equipped with audio and video recording

      devices and $150 in cash that had been photocopied.


[5]   Detective Shaver drove the CI to a local park to meet Searcy. At some point

      during the drive, Searcy telephoned the CI. Detective Shaver overheard Searcy tell

      the CI that he was near the park and ask if she wanted to buy additional drugs

      because he had his “plug” 2 with him. Transcript at 160. The CI declined and told

      Searcy that she only needed the eight ball.


[6]   While at the park, Detective Shaver watched the CI as she approached Searcy’s

      2014 Chevy Malibu. The CI leaned toward Searcy’s driver’s side window and

      handed him the cash. When Searcy asked the CI if she wanted to sample the

      methamphetamine, she responded, “not right now. Not while my kids are

      awake.” State’s Exhibit 9. Searcy then handed the CI a cigarette pack and told her

      that the methamphetamine was inside.


[7]   Sergeant Josh Brinson, a deputy with the Rush County Sheriff’s Department, was

      also at the park. He observed the CI walk way from Searcy’s car and approach his

      vehicle. Once inside, the CI handed Sergeant Brinson the cigarette pack. Sergeant

      Brinson opened the pack and found the methamphetamine.


[8]   Following the controlled buy, Searcy drove away and police officers noticed that

      he failed to signal his intention to change lanes numerous times. Sheriff’s Deputy




         2
             Detective Shaver testified that a “plug” commonly refers to the drug dealer’s source. Transcript at 160.


         Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019                     Page 3 of 12
      Doug Keith initiated a traffic stop after observing these violations. Before Searcy

      came to a complete stop, Gary Smith, the front seat passenger, ran from the

      vehicle. Sergeant Keith arrested Searcy and another officer apprehended Smith.

      Juanita Owens was identified as a backseat passenger in Searcy’s vehicle.


[9]   Upon searching the car, officers located a digital scale, a plastic baggie that

      contained a crystal like substance, and a bag of hypodermic syringes. Smith was

      found in possession of a loaded hypodermic syringe, Suboxone, a controlled

      substance, and methamphetamine when he was searched at the jail. Searcy had

      eight dollars of the buy money that had been provided to the CI, and Owens

      possessed seventy dollars of the marked money. At some point, Searcy told

      Sergeant Keith that he was “just here to do a deal for somebody.” Id. At 211.

      Searcy also provided a videotaped statement to the detectives that contained

      references to past prison sentences and prior criminal offenses.


[10] On   April 13, 2018, the state charged Searcy with Count I, dealing in

      methamphetamine, a Level 4 felony, and Count II possession of

      methamphetamine, a Level 6 felony. Thereafter, on January 3, 2019, the State

      charged Searcy with Count III, unlawful possession of a syringe, and Count IV,

      maintaining a common nuisance, both Level 6 felonies.


[11] On   April 16, 2018, Searcy filed a motion for discovery and a “Request for Rule 404

      and 405 Evidence.” Appendix Vol. II at 20. The motion requested, inter alia, that

      the State produce any and all recorded or written statements made by Searcy, and

      to set forth the general nature of other crimes, wrongs, or acts of Searcy or any


          Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019   Page 4 of 12
   witness that the State intended to offer for any purpose at trial. Searcy also

   requested that the State set forth the specific Evid. R. 404(b) exception that it

   would rely upon for the admission of such evidence. Finally, Searcy requested that

   the State provide him with specific instances of conduct that it would use in cross-

   examination regarding character evidence.


[12] The   trial court granted the motion, and Searcy subsequently filed a motion in

   limine on December 27, 2018, indicating that he believed that the State knew of

   evidence of other alleged misconduct that included, but was not limited to, arrests,

   convictions, or pending cases. Searcy further asserted that he was aware of no

   legitimate purpose for admitting such evidence, and that the State should be

   precluded from mentioning or referring to such evidence in the jury’s presence.


[13] The   trial court granted Searcy’s motion in limine, which provided that the State

   and its witnesses were to “refrain from making any reference whatsoever . . . at any

   . . . time during the trial in any manner without first obtaining permission of the

   Court . . . concerning . . . [a]ny misconduct prior or subsequent, charged or

   uncharged, including any criminal convictions, or other prior bad acts of . . .

   Searcy.” Appendix Vol. II at 55.


[14] The   State responded to Searcy’s motion for discovery on January 3, 2019,

   indicating that it intended to use Searcy’s “prior criminal acts that were shown on

   the criminal record that it had previously submitted . . . for all purposes allowable

   under [the] law.” Id. at 65. The State also indicated that it would use Searcy’s




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019   Page 5 of 12
   prior arrests and convictions to rebut his testimony and evidence of good character

   that might be offered.


[15] Searcy’s    jury trial commenced on January 15, 2019. At the close of the State’s

   case-in-chief, it sought to admit Searcy’s videotaped statement into evidence.

   Searcy lodged an objection on the grounds of hearsay and further commented that

   “there [is] a motion in limine on file that it may very well violate.” Transcript Vol.

   III at 21-22. The State acknowledged that the interview contained “incriminating

   statements,” yet it was unaware of “any specific thing that would violate the

   motion in limine.” Id. at 22. The trial court noted Searcy’s continuing objection

   and allowed Searcy’s videotaped statement to be played for the jury.


[16] At   various points during the videotape, the jury learned of an outstanding warrant

   for Searcy because he had violated probation in another case, that Searcy abused

   controlled substances, smoked marijuana, used methamphetamine the day before

   his arrest and on other occasions, and used suboxone on the day of arrest. The

   videotape also revealed that Searcy was being investigated by the drug task force in

   another case, that he had spent nearly seventeen years in prison over the years, and

   that he vowed to continue abusing illegal substances if he was released from jail.


[17] At   the conclusion of the video, Searcy moved for a mistrial outside of the jury’s

   presence. Searcy argued that the information in the recording repeatedly violated

   the motion in limine because it contained improper references to “all kinds of

   behavior,” including assertions that Searcy was “high.” Transcript Vol. III at 50.




          Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019   Page 6 of 12
    Searcy also pointed out that the State had failed to request permission from the

    trial court before offering the alleged improper Evid. R. 404(b) evidence.


[18] In   response, the State contended that the evidence was admissible because Searcy’s

    statements were voluntary, they established his knowledge of the charged offenses,

    they were relevant, and they were not being offered as evidence of guilt. The State,

    however, requested the trial court to issue a limiting instruction if it determined

    that the order on the motion in limine had been violated. The trial court denied

    Searcy’s motion for a mistrial and gave no limiting instruction. The State offered

    no further evidence and rested its case-in-chief.


[19] The   jury found Searcy guilty as charged, and the trial court entered a judgment of

    conviction on all counts. The Court subsequently vacated the methamphetamine

    possession conviction (Count II) on double jeopardy grounds. On February 11,

    2019, the trial court sentenced Searcy to the Indiana Department of Correction for

    an aggregate twelve-year term of imprisonment. Searcy now appeals.




                                             Discussion and Decision


                                                      I. Waiver


[20] Before    proceeding to the merits of this appeal, we initially address the State’s

    contention that Searcy has waived his claim of error regarding the mistrial. The

    State claims that Searcy made only a general objection at trial as to the



          Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019   Page 7 of 12
   admissibility of the videotaped statement, and the earlier grant of his motion in

   limine failed to properly preserve the issue.


[21] The   State correctly observes that a motion in limine is not a final ruling on the

   admissibility of evidence. Sharp v. State, 534 N.E.2d 708, 713 (Ind. 1989). Only

   trial objections, not motions in limine, effectively preserve claims of error for

   appellate review. See Brown v. State, 783 N.E.2d 1121, 1125 (Ind. 2003).                      The

   failure to object at trial to the admission of the evidence results in waiver of the

   error, notwithstanding a prior motion in limine. Id.                    Hence, a party must

   contemporaneously reassert the objection at trial so as to allow the trial court an

   opportunity to make a final ruling on the matter in the proper context. Vehorn v.

   State, 717 N.E.2d 869, 872 (Ind. 1999). The objection must be sufficiently specific

   to alert the trial judge fully of the legal issue. Moore v. State, 669 N.E.2d 733, 742

   (Ind. 1996).


[22] As   discussed above, the trial court granted Searcy’s pretrial motion in limine that

   prohibited the State from referencing “any misconduct prior or subsequent,

   charged or uncharged, including any criminal conviction, or other prior bad acts . .

   . of Searcy.” Appendix Vol. II at 20, 55. When the State moved to admit Searcy’s

   videotaped statement at trial, Searcy immediately objected and argued that the

   admission of the statement would violate the order on his motion in limine. In our

   view, Searcy’s specific reference to potential Evid. R. 404(b) violations in his

   objection was sufficient to preserve the claimed error for review. Thus, the State’s

   claim that Searcy has waived the issue fails.



          Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019   Page 8 of 12
                                                     II. Mistrial


[23] Proceeding      to the merits of the appeal, Searcy claims that the trial court abused its

   discretion in denying his motion for a mistrial. Specifically, Searcy argues that the

   videotaped statement was riddled with instances of prior bad acts, misconduct, and

   improper character evidence in violation of Evid. R. 404(b). Thus, given the

   quantity and incriminating quality of the statements, and the fact that the trial

   court gave no limiting instruction or admonishment, Searcy claims that the

   admission of this evidence placed him in a position of grave peril and, therefore, a

   mistrial was warranted.


[24] “A   mistrial is an ‘extreme remedy’ that should be used only when no other curative

   measure will rectify the situation.” Moore v. State, 652 N.E.2d 53, 57 (Ind. 1995).

   In reviewing the denial of a motion for a mistrial, the defendant must demonstrate

   that the conduct complained of was both in error and had a probable persuasive

   effect on the jury’s decision. Pierce v. State, 761 N.E.2d 821, 825 (Ind. 2002). More

   specifically, the appellant must establish that the questioned conduct “was so

   prejudicial and inflammatory that he was placed in a position of grave peril to

   which he should not have been subjected.” Gregory v. State, 540 N.E.2d 585, 589

   (Ind. 1989). The gravity of the peril is measured by the conduct’s probable

   persuasive effect on the jury, not the degree of impropriety of the conduct. Id. A

   trial judge’s discretion in determining whether to grant a mistrial is afforded great

   deference, because the trial judge is in the best position to gauge the surrounding

   circumstances of an event and its impact on the jury. Mickens v. State 742 N.E.2d



          Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019   Page 9 of 12
    927, 929 (Ind. 2001). Thus, we review the trial court’s decision solely for an abuse

    of discretion. Id.


[25] Evid.   R. 404(b) provides that


          Evidence 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.

          (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for
          another purpose, such as proving motive, opportunity, intent, preparation, plan,
          knowledge, [or] identity.

[26] In   this case, the State asserts that Searcy’s videotaped statements were admissible

    because they established proof of Searcy’s knowledge of the charged offenses. We

    note, however, that many of Searcy’s acknowledgments and admissions, as well as

    statements made by the interviewing detective, had nothing to do with

    methamphetamine. Indeed, the jury heard evidence that there was an outstanding

    arrest warrant for Searcy on a probation violation that stemmed from a prior

    conviction, that Searcy illegally purchased and possessed suboxone and marijuana,

    and that he had spent almost seventeen years in prison. Moreover, the admission

    of the videotaped statement was offered after the State had already presented the

    majority of its evidence to establish Searcy’s guilt. In fact, the numerous

    incriminating statements, admissions, and acknowledgments on the videotape

    were the last bits of evidence that the jury heard prior to deliberating. Further, the

    trial court provided no curative measure, such as a limiting instruction that would




          Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019   Page 10 of 12
    have admonished the jury to consider the incriminating evidence only for a

    particular purpose set out in Evid. R. 404(b)(2).


[27] In   light of these circumstances, we cannot agree with the State that the probable

    persuasive effect of this evidence on the jury was minimal. Rather, it is apparent to

    us that Searcy’s videotaped statement contained numerous Evid. R. 404(b)

    violations that may have had a significant effect on the jury. Therefore, we must

    conclude that the incriminating nature of the evidence contained in the videotape

    was so prejudicial and inflammatory to Searcy that it placed him in a position of

    grave peril to which he should not have been subjected. The trial court erred in

    denying Searcy’s motion for a mistrial. Thus, his convictions must be reversed. 3




          3
           Although we reverse Searcy’s convictions for the reasons discussed above, we briefly address Searcy’s
          alternative argument for reversal, as it is likely to arise again on retrial. We agree with Searcy that his
          convictions for maintaining a common nuisance and dealing in methamphetamine would not stand in light
          of double jeopardy concerns. We find instructive this Court’s opinion in Hunter v. State, 72 N.E.3d 928, 935
          (Ind. Ct. App. 2017), trans. denied, where we vacated the defendant’s conviction for maintaining a common
          nuisance on double jeopardy grounds under the “same evidence test,” pursuant to Article 1, Section 14 of the
          Indiana Constitution. In Hunter, nothing was articulated in the charging information, the evidence at trial,
          jury instructions, or the State’s closing argument that separated the defendant’s maintaining a common
          nuisance charge from the evidence presented that was used to establish the possession and dealing in cocaine
          offenses. Thus, we concluded that there was a reasonable possibility that the jury used the same evidentiary
          facts to establish the elements of all charged offenses, and we vacated the conviction with the less severe
          penal consequences, i.e., the maintaining a common nuisance conviction.

          Our review of the record in this case establishes that there is a reasonable possibility that the jury used the
          same evidentiary facts to prove the essential elements of all charged offenses, similar to the circumstances in
          Hunter. Indeed, it is apparent that the jury “may have latched on to exactly the same facts for both
          convictions.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008) (emphasis added). Nothing was presented to
          establish Searcy’s maintaining a common nuisance charge, other than evidence that he used a vehicle when
          committing the other charged offenses. Hence, the actual evidence test would preclude Searcy’s conviction
          for maintaining a common nuisance on double jeopardy grounds. See Hunter, 72 N.E.3d at 935.




          Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019                   Page 11 of 12
[28] Judgment   reversed.


   Brown, J. and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-593 | December 11, 2019   Page 12 of 12
