Frank M. Hancock v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Jul 29 2016, 8:31 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
James C. Spencer Gregory F. Zoeller
Dattilo Law Office Attorney General of Indiana
Madison, Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Frank M. Hancock, July 29, 2016
Appellant-Defendant, Court of Appeals Case No.
39A05-1511-CR-1973
v. Appeal from the Jefferson Superior
Court
State of Indiana, The Honorable Fred H. Hoying,
Appellee-Plaintiff Senior Judge
Trial Court Cause No.
39D01-1409-F6-840
Vaidik, Chief Judge.
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Case Summary
[1] Following a jury trial, Frank Hancock was convicted of Level 6 felony
possession of a narcotic drug and Class A misdemeanor possession of a
synthetic drug. In this direct appeal, Hancock argues that his trial counsel was
ineffective for failing to challenge the admission of the drugs at trial. He also
argues that the evidence is insufficient to support his conviction for possession
of a narcotic drug because the State failed to establish that the pill found on his
person contained a schedule II, rather than a schedule III, controlled substance.
Because we find that the drugs were admissible, Hancock’s ineffectiveness
claim fails. In addition, because the pill contained hydrocodone, a schedule II
controlled substance, the evidence is sufficient to support his conviction for
possession of a narcotic drug. We therefore affirm the trial court.
Facts and Procedural History
[2] On September 28, 2014, Officer Aaron Watson of the Madison Police
Department saw Hancock driving a maroon Kia. Although Officer Watson
suspected that Hancock’s driving privileges were suspended, he did not stop
Hancock at that time because he was off-duty.
[3] The next day, September 29, 2014, while on duty, Officer Watson checked and
verified that Hancock’s driving privileges were suspended. According to Officer
Watson, around midnight he saw the same maroon Kia pass by, and he
followed it until it parked in front of the house Officer Watson knew to be
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Hancock’s residence. Officer Watson then stopped his police cruiser in the
middle of the street next to the Kia without activating the emergency lights.
Hancock exited the car from the driver’s door. Hancock then walked toward
Officer Watson, and the two of them met in the street, between the Kia and the
police cruiser.
[4] Officer Watson asked Hancock whether he had a valid driver’s license, and
Hancock said no. Officer Watson called dispatch and confirmed that Hancock
did not have a driver’s license. During this process, Officer Watson smelled
what he believed to be the odor of marijuana coming from Hancock and from
inside the Kia, so he asked Hancock for permission to search the car. Hancock
refused. Officer Watson then called a police canine unit. A drug-sniffing dog
arrived, sniffed the exterior of the car, and gave a positive alert for the presence
of drugs. At this point, Officer Watson arrested Hancock for driving while
suspended and put him in his patrol car. Officers then searched the car and
found two hand-rolled, partially burnt cigarettes. A field test was positive for
marijuana.
[5] Hancock was transported to the Jefferson County Jail and preliminarily booked
on charges of driving while suspended and possession of marijuana. During the
booking process, a white pill was found in Hancock’s right pocket.
[6] The Indiana State Police Laboratory later tested one of the cigarettes and the
white pill. The forensic scientist concluded that the cigarette contained XLR11,
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a synthetic cannabinoid commonly known as “spice.” Tr. p. 75-76.1 The
forensic scientist also concluded that the white pill contained hydrocodone.
[7] The State charged Hancock with Count I: Level 6 felony possession of a
narcotic drug (hydrocodone); Count II: Class A misdemeanor possession of a
synthetic drug (XLR11); and Count III: Class A misdemeanor driving while
suspended. At trial, Hancock testified that he was not driving before Officer
Watson pulled up in front of his house; rather, he walked from his house to the
car, turned the engine on, and sat in the driver’s seat to smoke.
[8] The jury found Hancock guilty of Counts I and II, but it was split three to three
on Count III, which was declared a mistrial. The court sentenced Hancock to
an aggregate term of two years, with one year executed and one year suspended
to supervised probation.
[9] Hancock now appeals.
Discussion and Decision
[10] Hancock raises two issues. First, he argues that trial counsel was ineffective.
Second, he contends that the evidence is insufficient to support his conviction
for possession of a narcotic drug.
1
Synthetic cannabinoids are compounds designed to mimic the psychoactive properties of marijuana, first
reported in the United States in 2008. Tiplick v. State, 43 N.E.3d 1259, 1261 (Ind. 2015).
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I. Ineffective Assistance of Trial Counsel
[11] Hancock first contends that his trial counsel was ineffective because she failed
to challenge the admission of the spice and hydrocodone. We review claims of
ineffective assistance of trial counsel under the two-prong test articulated in
Strickland v. Washington, 466 U.S. 668 (1984). Pruitt v. State, 903 N.E.2d 899,
905-06 (Ind. 2009), reh’g denied. To satisfy the first prong, the defendant must
show that trial counsel’s performance fell below an objective standard of
reasonableness based on prevailing professional norms, “committing errors so
serious that the defendant did not have the counsel guaranteed by the Sixth
Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g denied.
To satisfy the second prong, the defendant must show prejudice: “a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different.” Id. A reasonable probability is one that is sufficient to
undermine confidence in the outcome. Overstreet v. State, 877 N.E.2d 144, 152
(Ind. 2007). In order to prove ineffective assistance of counsel due to failure to
challenge the admission of evidence, the defendant must demonstrate
“prejudicial failure to raise an objection that the trial court would have been
required to sustain. Otherwise stated, if the trial court overruled the objection,
it would have committed error, and the error would have had a prejudicial
effect.” Stephenson v. State, 864 N.E.2d 1022, 1035 (Ind. 2007), reh’g denied.
[12] Hancock argues that trial counsel should have challenged the discovery of the
spice and hydrocodone because his “original detainment” was illegal, thereby
invalidating the subsequent searches that led to the discovery of the spice and
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hydrocodone. Appellant’s Br. p. 8. An officer may conduct a brief
investigatory stop of an individual when, based on the totality of the
circumstances, the officer has a reasonable, articulable suspicion that criminal
activity is afoot. J.B. v. State, 30 N.E.3d 51, 55 (Ind. Ct. App. 2015). The
investigatory stop, also known as a Terry stop, is a lesser intrusion on the person
than an arrest and may include a request to see identification and inquiry
necessary to confirm or dispel the officer’s suspicions. Id. Reasonable
suspicion is determined on a case by case basis. Id. The reasonable-suspicion
requirement is met where the facts known to the officer at the moment of the
stop, together with the reasonable inferences from such facts, would cause an
ordinarily prudent person to believe criminal activity has occurred or is about to
occur. Id.
[13] Here, Officer Watson testified that he saw Hancock driving a maroon Kia the
day before the arrest. He also testified that the next day he verified that
Hancock’s driving privileges were suspended, observed the same maroon Kia
drive by, followed the Kia to where he knew Hancock lived, and saw Hancock
exit the car from the driver’s door. This testimony would support a conclusion
that Officer Watson had a reasonable suspicion that Hancock was driving
without a license and therefore properly stopped and questioned him.
[14] Hancock, however, claims that he was not actually driving before his encounter
with Officer Watson, that Officer Watson was lying when he testified
otherwise, and that the fact that the jury deadlocked on the driving-while-
suspended count means that the trial court would not have believed Officer
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Watson. There are several problems with Hancock’s position. First, we must
judge the decisions of Hancock’s trial counsel based on what she knew at the
time she made those decisions, not in hindsight based on the jury’s
deliberations. Second, even if the jury’s split vote on the driving-while-
suspended count were somehow relevant, we have no idea whether three jurors
voted not guilty because they disbelieved Officer Watson or for some other
reason. Third, and most importantly, even if the trial court had believed that
Officer Watson fabricated the story about following Hancock home, Hancock
does not dispute Officer Watson’s testimony that he was in the street outside
Hancock’s house when Hancock got out of the Kia and that he saw Hancock
emerge from the driver’s door of the car. These facts, taken together with the
fact that Officer Watson verified that Hancock’s driving privileges were
suspended, would have given Officer Watson reasonable suspicion that
Hancock committed driving while suspended and, therefore, authority to
conduct an investigatory stop. 2
[15] Once Officer Watson received confirmation from dispatch that Hancock did
not have a license, he had probable cause to arrest Watson for driving while
suspended. In addition, during the questioning, Officer Watson smelled the
odor of what he believed to be marijuana. When a trained and experienced
police officer detects the strong and distinctive odor of burnt marijuana coming
2
The State argued that the initial encounter was consensual; however, we do not address this issue because
we find that Officer Watson had reasonable suspicion.
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from a vehicle, the officer has probable cause to search the vehicle. State v.
Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002), trans. denied. Accordingly,
the odor of what Officer Watson believed to be marijuana gave him probable
cause to search the car. The cigarettes found during the search, therefore, were
admissible.
[16] Finally, as Hancock was lawfully arrested, the search incident to arrest
conducted at the jail was also valid. See Garcia v. State, 47 N.E.3d 1196, 1200
(Ind. 2016) (“[O]nce a lawful arrest has been made, authorities may conduct a
‘full search’ of the arrestee for weapons or concealed evidence.” (quotation
omitted)). Accordingly, the white pill found in Hancock’s pocket during this
search was also admissible.
[17] Hancock has not established that the trial court would have been required to
grant a motion to suppress or sustain an objection regarding the spice and the
pill. Therefore, trial counsel was not ineffective for failing to raise such a
challenge. See Stephenson, 864 N.E.2d at 1035.
II. Sufficiency of the Evidence
[18] Hancock next contends that the evidence is insufficient to support his
conviction for Level 6 felony possession of a narcotic drug, which requires a
schedule I or II drug. See Ind. Code § 35-48-4-6(a) (“A person who, without a
valid prescription . . ., knowingly or intentionally possesses . . . a narcotic drug
(pure or adulterated) classified in schedule I or II, commits possession of . . . a
narcotic drug, a Level 6 felony.”). Although Hancock concedes that
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hydrocodone is a schedule II drug, he claims that because the pill found in his
possession contained hydrocodone and acetaminophen, it may have been “a
Schedule III controlled substance[] according to I.C. 35-48-2-8.” Appellant’s
Br. p. 15.
[19] At trial, a forensic scientist with the Indiana State Police Laboratory testified
that the pill contained “dihydrocodeinone or hydrocodone” plus
“acetaminophen.” Tr. p. 76 (emphasis added). The scientist then clarified that
the pill contained “hydrocodone,” an opiate derivative. Id.; see also id. at 82
(confirming that the pill “tested positive for the presence of hydrocodone”). At
the time of the offenses in this case, “hydrocodone” was listed as a schedule II
drug. See Ind. Code Ann. § 35-48-2-6(b)(1)(K) (West 2012). Also at the time of
the offenses, “dihydrocodeinone,” “with one (1) or more active nonnarcotic
ingredients in recognized therapeutic amounts,” was listed as a schedule III
drug. Ind. Code Ann. § 35-48-2-8(e)(4) (West 2012). Notably, schedule III did
not list hydrocodone. Because schedule II listed hydrocodone—regardless of
whether it was combined with another nonnarcotic ingredient3—and schedule
III did not list hydrocodone, we conclude that the evidence is sufficient to
support Hancock’s conviction for Level 6 felony possession of a narcotic drug
for possessing hydrocodone, a schedule II drug.
3
Effective April 23, 2015, Section 35-48-2-6 was amended to include both “hydrocodone” and “any
hydrocodone combination product” as a schedule II drug. See P.L. 56-2015.
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[20] Affirmed.
Barnes, J., and Mathias, J., concur.
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