Lacy v. State

• Decision Date: 21 October 2015
• Docket Number: No. 79A05–1412–CR–590.,79A05–1412–CR–590.
• Parties: Eric D. LACY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

41 N.E.3d 308 (Table)

Eric D. LACY, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 79A05–1412–CR–590.

Court of Appeals of Indiana.

Oct. 21, 2015.

Bruce W. Graham, Graham Law Firm P.C., Lafayette, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

Kirsch

, Judge.

[1] Eric D. Lacy was convicted after a jury trial of possession of methamphetamine¹ as a Class B felony, auto theft² as a Class D felony, illegal drug lab³ as a Class C felony, possession of a schedule IV controlled substance⁴ as a Class C felony, possession of a syringe⁵ as a Class D felony, possession of paraphernalia⁶ as a Class A misdemeanor, conspiracy to commit burglary⁷ as a Class B felony, conspiracy to commit theft⁸ as a Class D felony, burglary⁹ as a Class C felony, and two counts of theft,¹⁰ each as a Class D felony, and was adjudicated a habitual offender.¹¹ He appeals raising the following restated issues for our review:

I. Whether the trial court abused its discretion in admitting evidence discovered in violation of the Fourth Amendment to the United States Constitution and Article 1, section 11 of the Indiana Constitution

;

II. Whether the trial court abused its discretion when it denied Lacy's motion to sever the charges for trial;

III. Whether sufficient evidence was presented to support Lacy's conviction for possession of a syringe; and

IV. Whether the trial court erred in allowing the State to amend the habitual offender charging information.

[2] We affirm in part and reverse in part.

Facts and Procedural History

[3] On October 7, 2013, Lafayette Police Department Officer John Wells (“Officer Wells”) responded to a report of an auto theft at St. Elizabeth Hospital in Lafayette, Indiana. Officer Wells spoke with Nancy Billue (“Billue”), who was visiting her fiancé at the hospital and had driven his red Ford Focus and parked it in the hospital parking garage. Billue had fallen asleep in the visiting area, and when she woke up, she realized that her jacket and the car keys had been taken. Billue went to the parking garage and discovered that the Ford Focus had been stolen. After speaking with Billue, Officer Wells spoke with the hospital security staff, who reviewed the video surveillance footage showing two individuals, later identified as Lacy and Feslie Carr (“Carr”), entering the hospital and checking the clothing of people who were sleeping in the hospital's common areas. With the assistance of hospital security, Officer Wells recovered two bicycles that had been abandoned in the bushes near one of the hospital's entrances. Officer Wells entered information about the Ford Focus into the computer databases as a stolen vehicle.

[4] A few days later, Lacy came into contact with Brian Williamson (“Williamson”), whom Lacy had met when both men were incarcerated in the Fountain County Jail. Lacy asked if he and Carr could stay in Williamson's apartment for a couple of days. The apartment was located at 1723 Greenbush Street in Lafayette and was within 1,000 feet of St. Lawrence School, Linwood Elementary School, and Linwood Park. Williamson rented the apartment from ERE Lafayette, LLC (“ERE”) under a lease that prohibited him from allowing other people to occupy the apartment or altering the premises. State's Ex. 39. Williamson had moved out of the apartment and told Lacy that he and Carr could stay at the apartment for a couple of days.

[5] After allowing them to stay at his apartment, Williamson noticed that Lacy and Carr were moving all of their property into the apartment and that they had changed the locks on the apartment. At that point, Williamson wanted them to leave, but did not know how to get them out of the apartment because they appeared “dead set on them not leaving.” Tr. at 225. Although Williamson was no longer living in the apartment primarily, he continued to keep some personal property there, including a moped, a television, a dresser, and some tools. Williamson also visited the apartment while Lacy and Carr were living there to smoke methamphetamine. Williamson observed Lacy and Carr driving a red Ford Focus and rode with Lacy occasionally.

[6] Both Lacy and Carr were methamphetamine users and manufacturers. They used the Ford Focus to drive to stores to obtain the ingredients and supplies needed to manufacture methamphetamine, and they also drove the car to rural locations in Tippecanoe County to manufacture methamphetamine outdoors. Lacy and Carr needed money to buy methamphetamine or the ingredients and supplies necessary to manufacture it.

[7] In the beginning of October, Carr contacted Jason Martin (“Martin”), with whom she had previously lived for several years in his home on Stair Road in Tippecanoe County. Although they had separated in 2007, Martin still had the same employment and work schedule as when he lived with Carr. On October 10, 2013, Martin returned home from work and found his shed had been broken into by cutting the lock Martin kept on the door. Several tools were stolen from the shed, including a router, router bits, a jigsaw, and a circular saw; a generator was also stolen from the shed. Martin contacted the Tippecanoe County Sheriff's Department, and a deputy came to take a report of the burglary.

[8] On October 15, 2013, Martin returned home from work and found his home had been broken into by shoving the door with such force that the door frame was dislodged. The home was ransacked inside, and many items were stolen, including two guitars, amplifiers, a television, two computers, and jewelry. Martin noticed that some photographs had been pulled out of a cabinet, particularly photographs of a cat that had been purchased when he and Carr were living together. Martin reported this burglary to the Sheriff's Department, and based on the photographs, he told the police that he suspected Carr of being involved in the burglary.

[9] On the morning of October 18, 2013, Lafayette Police Department Officer Thomas Davidson (“Officer Davidson”) was on routine patrol when he received a dispatch of an anonymous report that Lacy and Carr were driving a stolen red Ford Focus in the area of 18th Avenue and Greenbush Street in Lafayette. Officer Davidson and several other officers went to the location. There, Officer Davidson saw a female in a red Ford Focus at 1723 Greenbush Street. Officer Davidson observed that the female's appearance matched the description of Carr in the computer system. Carr had parked the Ford Focus and turned off the motor. Officer Davidson approached the car and asked Carr for dher name. After Carr identified herself by name and date of birth, Officer Davidson had her step out of the car. When she did so, Officer Davidson noticed Carr had a glass pipe between her legs. Officer Davidson then performed a pat down on Carr and handcuffed her. He also took the keys in Carr's possession.

[10] Although the license plate number listed for the Ford Focus did not match the plate number on the car, the vehicle identification number matched that of the Ford Focus stolen from Billue on October 7. Officer Davidson observed that the car was filled with several items including a television and several guitars. Officer Thomas Bordenet (“Officer Bordenet”) and Officer Stephen Pierce (“Officer Pierce”) of the Lafayette Police Department also arrived at the scene and determined that the vehicle registration for the car was registered to Billue's fiancé, Richard Snyder. Carr told the officers that she and Lacy lived in Apartment 1 at 1723 Greenbush Street and that Lacy was asleep inside the apartment. Officer Pierce knocked on the door of the apartment, but there was no answer.

[11] About an hour and a half after the police encountered Carr in the Ford Focus, a neighbor called Karrie Moore (“Moore”), the property manager for ERE, and informed her that the police were at the Greenbush Street apartments. Moore took the master keys to the apartments and drove over to the address. When she arrived, she saw the officers standing near the Ford Focus behind the apartment. Moore approached the officers, introduced herself as the property manager, and informed the officers that Williamson was the tenant of Apartment 1 and not Lacy and Carr. The officers had Moore look at Carr to see if Moore could recognize her as the tenant, but Moore could not. Moore called the owner of the building, and he told Moore that he wanted Lacy and Carr escorted out of the apartment as they were not on the lease. Moore told Officer Pierce that Carr's key to the apartment should be turned over to Moore since Carr was not on the lease, and the officer retrieved the key and gave it to Moore.

[12] Moore asked the officers what she could do to remove Lacy and Carr from the apartment. They told her they could not enter the apartment without a warrant, but that, as the property manager, she could enter the apartment. Moore, accompanied by Officers Davidson, Bordenet, and Pierce, went to the apartment's door and knocked and shouted “management.” Tr. at 248. She tried to enter with the master key, but it did not work, so she tried the key she had received from Officer Pierce that had been taken from Carr. Moore was able to unlock the door with this key, and after opening the door, she took one or two steps into the apartment and shouted, “management.” Id. The officers stayed outside on the porch and did not enter the apartment. Moore heard someone moving around who said that he would be there in a minute. Moore stepped back outside the apartment at that time.

[13] Lacy came to the door and exited the apartment. Williamson was called to the apartment and arrived shortly thereafter. Officer Bordenet presented Williamson with a consent to search form and requested permission to search the apartment. Williamson signed the form and gave his consent to search the apartment. Lacy was also presented with a consent to search form,...