Bruce Ashby v. State of Indiana (mem. dec.)

Citation: Not availableDocket: 39A01-1610-CR-2341

Court: Indiana Court of Appeals; August 4, 2017; Indiana; State Appellate Court

Original Court Document: View Document

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Bruce Ashby appeals his conviction for attempted dealing in a narcotic drug, classified as a Level 2 felony, following a bench trial. The court affirms the conviction and addresses three primary issues raised by Ashby: 

1. The trial court's determination that a prior ruling on a motion to suppress was res judicata.
2. Allegations of an abuse of discretion regarding the admission of certain evidence.
3. The sufficiency of evidence supporting the conviction.

On August 6, 2015, a local citizen, Harry Mercer, approached the Madison Police Department, reporting that a man named Bruce had attempted to sell him prescription pills. Mercer did not know Ashby’s last name but provided details such as his residence on Lincoln Avenue and his ankle monitor status due to house arrest for prior drug offenses. Detective Simpson confirmed Ashby’s identity through a photograph provided to Mercer.

Mercer communicated with Ashby via text about purchasing pills, and the detectives used a spoofing software to connect a call to Ashby, posing as Mercer. They monitored further interactions between Mercer and Ashby, eventually witnessing Ashby in a location agreed upon for the exchange. The detectives recorded their encounter with Ashby, which contributed to the evidence against him.

Detective Simpson inquired if Ashby was under house arrest, to which Ashby confirmed. Detective Wallace then called Ashby’s cell phone, which rang in front of them. Simpson informed Ashby that they had information about him selling pills. When asked if he had any pills, Ashby denied it, but a search revealed nineteen round white pills in a pack of cigarettes in his left back pocket. After being read his Miranda rights, Ashby stated he was selling the pills for five dollars each to help a friend with cancer. The detectives confiscated Ashby’s cell phone, but he invoked his Pirtle rights, refusing consent for a search. He was handcuffed and taken to jail, where the phone was later searched pursuant to a warrant, revealing relevant text messages and call records.

Ashby was charged with attempted dealing in a narcotic drug and dealing in a narcotic drug, both classified as Level 2 felonies. He filed a motion to suppress the evidence, claiming it was unlawfully obtained due to the lack of a search warrant or justification for a warrantless search, but the trial court denied this motion after a hearing. Ashby subsequently sought to certify the denial for an interlocutory appeal, which the court granted; however, the appeals court declined jurisdiction.

During the bench trial on August 1, 2017, Ashby was found guilty as charged. The trial court merged the convictions and sentenced him to twenty years executed for attempted dealing in a narcotic drug. Ashby appealed, asserting that the trial court erred in ruling that further consideration of his motion to suppress was barred by res judicata. At the trial's start, the court confirmed the suppression motion had been denied and that the appeals court had not addressed it. Ashby renewed his objection to the evidence's admission, but the court maintained that the suppression issues were res judicata based on prior proceedings, ultimately denying his motion again.

The trial court incorrectly applied res judicata to Ashby’s motion to suppress, as pretrial rulings on such motions are not considered final judgments and can be modified. However, this error was deemed harmless since Ashby preserved his objection to the evidence's admission, and he did not demonstrate how the error impacted his substantial rights, making reversal unnecessary. 

Ashby argues that the warrantless search of his person violated the Fourth Amendment. While he initially contested the evidence's admission through a motion to suppress, he now questions its admissibility at trial, framing it as a potential abuse of discretion by the trial court. The court has broad discretion regarding evidence admissibility, and a reversal occurs only if the ruling contradicts the facts and affects substantial rights. When constitutional challenges arise regarding search and seizure, the review shifts to a de novo standard.

The Fourth Amendment protects against unreasonable searches and seizures, generally requiring a warrant based on probable cause. Evidence obtained in violation of this principle is typically inadmissible unless an exception applies, with the burden on the State to demonstrate that such an exception exists.

A search incident to a lawful arrest is permissible under the Fourth Amendment, as established in Fentress v. State. An individual is deemed under arrest when their freedom is interrupted by law enforcement, and a lack of formal notification does not negate the validity of a search if probable cause exists. Probable cause is determined by whether a reasonable person would believe the suspect committed a crime based on the officer's knowledge at the time of the arrest. Subjective beliefs of officers regarding probable cause are legally irrelevant. 

In Ashby’s case, he argued that detectives lacked probable cause prior to the search that led to the seizure of prescription pills, asserting that they needed to find the pills first. However, Mercer, a concerned citizen, reported Ashby’s attempt to sell him prescription pills containing oxycodone, providing corroborating details. Mercer confirmed Ashby’s identity in a photo and communicated with him under the detectives’ direction to arrange a purchase. Upon arriving at the location, detectives verified Ashby’s identity using a third-party calling device and confirmed his intent to sell the pills through phone calls. 

Given the information from Mercer and the detectives’ observations, there was probable cause to arrest Ashby for attempted dealing in a narcotic drug. The absence of formal arrest notification did not invalidate the search, which was lawful due to probable cause. Consequently, the seizure of the prescription pills adhered to Fourth Amendment standards, and the trial court correctly admitted the evidence.

Regarding sufficiency of evidence, Ashby contended that the State did not prove he possessed the required ten grams of oxycodone for a Level 2 felony conviction. Testimony from a forensic scientist confirmed that one of the seized pills weighed 0.56 grams and contained oxycodone, but this was insufficient to meet the conviction threshold.

Cline visually examined remaining pills, identifying them as potentially containing oxycodone and acetaminophen based on their markings, color, size, and shape, but did not confirm their actual contents. The total weight of these pills was recorded at 10.02 grams. Ashby contended that the State failed to prove he possessed at least ten grams of oxycodone, claiming that evidence only supported possession of one tablet weighing 0.56 grams. The court disagreed, affirming that sufficient evidence indicated Ashby attempted to deliver at least ten grams of a narcotic drug. 

The court's review process emphasized considering only probative evidence and reasonable inferences while not reassessing the evidence or credibility of witnesses. Under Indiana law, possession with intent to deliver a narcotic drug classified in schedule I or II is a Level 5 felony, escalating to a Level 2 felony if the drug amount is at least ten grams. An attempt to commit a crime is classified similarly to the intended crime. 

Ashby had agreed to sell twenty oxycodone pills and was found with nineteen pills, one of which tested positive for oxycodone. Cline's analysis determined the total weight of the pills, including one weighing 0.56 grams and the remaining eighteen totaling 10.02 grams, amounted to 10.58 grams in total. As a result, the court concluded that the evidence was sufficient to prove Ashby's possession of at least ten grams of a narcotic drug. 

The trial court’s error regarding Ashby’s motion to suppress was deemed harmless, and the evidence obtained during his arrest was properly admitted. The court upheld Ashby’s conviction for Level 2 felony attempted dealing in a narcotic drug, affirming the trial court's judgment.