Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
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:
DANIEL J. MOORE GREGORY F. ZOELLER
Lasynski & Moore Attorney General of Indiana
Lafayette, Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
FILED
Feb 14 2012, 9:41 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
MICHAEL T. HACKWORTH, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1106-CR-526
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Thomas H. Busch, Judge
Cause No. 79D02-1008-FA-21
February 14, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Michael T. Hackworth (Hackworth), appeals his conviction
for two Counts of dealing in cocaine as Class A felonies, Ind. Code § 35-48-4-1, and for
being an habitual offender, I.C. § 35-50-2-8.
We affirm.
ISSUES
Hackworth raises two issues on appeal, which we restate as follows:
(1) Whether there was sufficient evidence that Hackworth committed two Counts
of dealing in cocaine as Class A felonies; and
(2) Whether the trial court erred when it allowed the State to file a belated habitual
offender charge against him.
FACTS AND PROCEDURAL HISTORY
Natalie Lovett (Lovett) worked as an undercover police officer for the Lafayette
Police Department. On June 17, 2010, Lovett was introduced to Hackworth and two
other females in reference to purchasing crack cocaine. Hackworth asked Lovett if she
could drive him to Danville, Illinois in order to purchase cocaine, but Lovett declined his
request. Following this meeting, though, Hackworth called Lovett, and she returned his
call on June 29, 2010. Lovett recorded the June 29 phone call in which she asked
Hackworth for a “bill,” which is a slang term for one hundred dollars worth of cocaine.
Hackworth told her that he had that amount of cocaine available to sell, and they arranged
an exchange to occur that same day at an apartment located at 2012 Banstead Court in
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Lafayette, Indiana. Lovett fitted herself with a body wire and met Hackworth at the
apartment to make the exchange.
When Lovett arrived at the apartment, Hackworth first asked Lovett if she wanted
a “swing,” which is a slang term for smoking cocaine. (Transcript p. 48). Lovett
declined his offer and handed him her money. In exchange, Hackworth spit two plastic
knotted baggies out of his mouth and gave them to her. Lovett returned to her office and
determined that the baggies weighed 0.7 grams and tested positive for cocaine.
Half an hour later, Lovett called Hackworth again, asking if he had another bill.
Hackworth did not have the bill immediately available but called someone else and
obtained it. Hackworth subsequently arranged to meet Lovett near a local Village Pantry.
When Lovett reached the store, Hackworth walked up to her car and spit two plastic
baggies out of his mouth in exchange for one hundred dollars. Lovett returned to her
office and found that the substance in the plastic baggie again tested positive for cocaine.
On July 19, 2010, Lovett contacted Hackworth asking for another bill of cocaine.
Lovett drove to Ironwood Apartments in Lafayette, picked up Hackworth, and then drove
to 18th Street and Perrine Avenue. This location was about 515 feet from Stonecrest
Apartments, 670 feet from Murdock Elementary School, and within 1,000 feet of a park.
The school was closed and not in session, but approximately 29 children lived within
1,000 feet of the exchange, and approximately three to five children lived in Stonecrest
Apartments. The park was closed, and no one saw children in the park.
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Hackworth did not have the cocaine, so Lovett gave him one hundred dollars and
he exited the vehicle to obtain the drugs from someone else. Hackworth returned to
Lovett’s car after approximately five minutes and gave her a plastic baggie out of his
mouth. Lovett drove Hackworth back to Ironwood Apartments and returned to her office
to field test the substance in the plastic baggie. She determined that it was positive for
cocaine and weighed 0.6 grams.
On August 9, 2010, Detective Bradley Curwick (Detective Curwick) of the
Tippecanoe County Drug Task Force contacted Hackworth, stating that he was dating
Lovett and that he wanted Hackworth to “help [him] out.” (State’s Exhibit 18a).
Hackworth called Lovett to verify Detective Curwick’s story, then returned Detective
Curwick’s call and arranged to sell him a bill of cocaine near the Banstead Court
Apartments.
The exchange took place at the intersection of 17th Street and Underwood Street,
less than 1,000 feet away from Banstead Court Apartments. On the date of the exchange,
August 9, 2010, approximately 22 children lived in the apartments. After the exchange,
Detective Curwick and Hackworth split up and went separate ways. Officers Brian
Gossard (Officer Gossard) and Brandon Withers (Officer Withers) observed Hacksworth
walk back toward his apartment from their vehicle, then exited their vehicle, identified
themselves as police, and ordered him to the ground. Hackworth ran away, but the
Officers caught up with him and knocked him to the ground. While on the ground,
Hackworth clenched his fist. Officer Gossard kept Hackworth’s hand pinned out of fear
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that he would attempt to destroy evidence. After the Officers handcuffed Hackworth,
they opened his fist and found the money from the transaction.
On August 16, 2010, the Stated filed an Information charging Hackworth with
Count I, dealing in cocaine, a Class A felony, I.C. § 35-48-4-1; Count II, possession of
cocaine, a Class B felony, I.C. § 35-48-4-6; Count III, dealing in cocaine, a Class A
felony, I.C. § 35-48-4-1; Count IV, possession of cocaine, a Class B felony, I.C. § 35-48-
4-6; Count V, dealing in cocaine, a Class B felony, I.C. § 35-48-4-1; Count VI,
possession of cocaine, a Class D felony, I.C. § 35-48-4-6; Count VII, dealing in cocaine,
a Class A felony, I.C. § 35-48-4-1; Count VIII, possession of cocaine, a Class B felony,
I.C. § 35-48-4-6; and Count IX, resisting law enforcement, a Class A misdemeanor, I.C.
§ 35-44-3-3. On September 9, 2010, the State filed a notice of its intention to file an
habitual offender enhancement as Count X. On November 9, 2010, the Stated filed
Count X, alleging that Hackworth was an habitual offender pursuant to I.C. § 35-50-2-8.
Then, on February 4, 2011, the State amended Count X. On February 21, 2011, the State
also filed the following amended Counts: Count I, unlawful sale of a legend drug, a
Class D felony, I.C. § 16-42-19-11; Count II, possession of a legend drug, a Class D
felony, I.C. § 16-42-19-13; Count III, dealing in cocaine, a Class B felony, I.C. § 35-48-
4-1; Count IV, possession of cocaine, a Class D felony, I.C. § 35-48-4-6; Count V,
dealing in cocaine, a Class A felony, I.C. § 35-48-4-1; Count VI, possession of cocaine, a
Class B felony, I.C. § 35-48-4-6; Count VII, dealing in cocaine, a Class A felony, I.C. §
35-48-4-1; and Count VIII, possession of cocaine, a Class B felony, I.C. § 35-48-4-6.
5
On April 5-7, 2011, a jury trial was held. At the conclusion of the trial,
Hackworth was found guilty as charged, and the trial court entered judgments against him
on Counts I, III, V, VII, and IX. Next, the trial court addressed Hackworth’s habitual
offender charge in a bifurcated phase of the proceedings. Hackworth waived his right to
a jury trial, and the trial court found him to be an habitual offender. On May 18, 2011,
the trial court sentenced Hackworth to three years imprisonment for Count I, twenty years
for Count III, thirty-five years for Count V, thirty-five years for Count VII, and one year
for Count IX, with sentences to run concurrently. The trial court also enhanced
Hackworth’s sentence by thirty years for Hackworth’s habitual offender charge, for a
total of sixty-five years imprisonment with ten years suspended.
Hackworth now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
Hackworth first contends that the State did not provide sufficient evidence to
convict him of two Counts of dealing in cocaine as Class A felonies instead of Class B
felonies. Both Counts were enhanced to Class A felonies because of the allegation that
the offenses occurred within 1,000 feet of a school or a family housing complex. To
convict a defendant of dealing in cocaine, the State must prove that the defendant
(1) knowingly or intentionally:
(A) manufacture[d];
(B) finance[d] the manufacture of;
(C) deliver[ed]; or
(D) finance[d] the delivery of;
cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II.
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I.C. § 35-48-4-1. To enhance that offense to a Class A felony, the State must prove that
the defendant “manufactured, delivered, or financed the delivery of the drug: . . . (B) in,
on, or within one thousand (1,000) feet of: (i) school property; (ii) a public park; (iii) a
family housing complex; or (iv) a youth program center.” I.C. § 35-48-4-1. However, a
defendant may raise a defense to such an allegation if he or she was only “briefly in, on
or within one thousand (1,000) feet of school property, a public park, a family housing
complex, or a youth program center; and [] no person under eighteen (18) years of age at
least three (3) years junior to the [defendant] was in, on, or within one thousand (1,000)
feet of the school property, public park, family housing complex, or youth program center
at the time of the offense.” I.C. § 35-48-4-16.
In reviewing a sufficiency of the evidence claim, this court does not reweigh the
evidence or judge the credibility of witnesses. Perez v. State, 872 N.E.2d 208, 213 (Ind.
Ct. App. 2007), trans. denied. In addition, we only consider the evidence most favorable
to the verdict and the reasonable inferences stemming from that evidence. Id. We will
only reverse a conviction when reasonable persons would not be able to form inferences
as to each material element of the offense. Id. at 212-13.
Hackworth argues that he did raise the defense and that there was not sufficient
evidence to support his conviction for dealing in cocaine as a Class A felony rather than a
Class B felony. In support of his argument, Hackworth directs us to Harrison v. State,
901 N.E.2d 635 (Ind. Ct. App. 2009), trans. denied. In Harrison, an undercover officer
conducted an investigation at the Wheeler Mission in Indianapolis in response to
7
complaints that a woman was dealing cocaine near the mission. Id. at 637-38. The
officer asked Harrison if he knew where the woman was and then told Harrison that he
was looking for $20 worth of cocaine. Id. at 638. Harrison told the officer that he could
help him out and then walked a block away from the Wheeler Mission and gave the
officer two bags of cocaine in exchange for $20. Id. Harrison was later convicted of
dealing cocaine within 1,000 feet of a public park as the exchange had occurred within
703 feet of University Park in Indianapolis. Id.
On appeal, Harrison argued that the State had failed to introduce sufficient
evidence that he was within 1,000 feet of a public park at the time of the transaction. Id.
at 639. We reversed Harrison’s conviction for Class A dealing in cocaine and remanded
with instructions for the trial court to reduce the conviction to a Class B felony and
resentence Harrison. Id. at 643. Our reasoning was that the jury could reasonably infer
that Harrison was only briefly within 1,000 feet of the park because even though the
entire undercover operation took thirty minutes—beginning at the Wheeler Mission—and
Harrison walked with the undercover officer to a point 703 feet from University Park, the
State did not prove that Wheeler Mission was within 1,000 feet of University Park. Id.
Accordingly, the State did not establish the length of time that Harrison was actually
within 1,000 feet of University Park. Id.
The supreme court addressed a similar issue in Griffin v. State, 925 N.E.2d 344
(Ind. 2010). Griffin was pushing a moped down the middle of the street at 2:15 a.m.
when he was stopped by an officer investigating moped thefts. Id. at 345. The officer
8
attempted to move the moped off of the road and observed a plastic bag containing a
white cake rocklike substance that was later determined to be 0.77 grams of cocaine. Id.
The officer’s stop occurred immediately adjacent to a chain link fence surrounding an
elementary school, but the officer did not see any children at that time on or near the
property. Id. Griffin was arrested and convicted of possession of cocaine within 1,000
feet of school property. Id.
Griffin appealed his conviction, and the supreme court clarified that the definition
of “briefly” varies according to the purpose of the defendant’s presence within the 1,000
foot proscribed zone. Id. at 349. Specifically,
when a defendant’s presence in the proscribed zone is primarily for a
purpose other than illicit drug activity, the risk to children is smaller and the
word “briefly” could encompass a greater duration of time. One example
of this would be the traversing within a proscribed area without tarrying but
while in concealed, illegal possession of drugs. On the other hand, when
the principal purpose of the defendant’s presence in the zone is to actively
engage in criminal drug activity, especially if such activity is visible to any
children, even a relatively short intrusion into the proscribed zone would be
more than “brief” and thus should not excuse the defendant from the
enhancement.
Id. Based on this standard, the Griffin court concluded that Griffin’s presence within
1,000 feet of the school was brief, as his primary purpose was to push the moped down
the street rather than to commit illicit drug activity; also, the court noted that his criminal
activities would not have been visible to children if they had been present. Id. at 350.
In light of Harrison and Griffin, we agree with the trial court that the State
provided sufficient evidence that Hackworth’s presence within 1,000 feet of an
elementary school, a public park, and a family housing complex was not “brief” during
9
his third and fourth drug transactions. Unlike Harrison, the State here established the
length of time each drug exchange occurred within the 1,000 foot proscribed zone. With
respect to the third transaction, Hackworth directed Lovett to drive to 18th Street and
Perrine Avenue, which was an intersection located 515 feet from Stonecrest Apartments,
a family housing complex; 670 feet from Murdock Elementary School; and within 1,000
feet of a public park. Hackworth initiated the drug exchange by taking $100 from Lovett,
then directed Lovett to wait for him in that location while he obtained the drugs.
Hackworth was gone for approximately four to five minutes and returned to the car to
complete the drug transaction. As the purpose of this entire exchange was to actively
engage in criminal drug activity, we recognize the supreme court’s interpretation that
even a relatively short intrusion into the proscribed zone can be more than “brief” in light
of I.C. § 35-48-4-16(b). Therefore, we conclude that five minutes, although a short
amount of time, was not “brief.” Thus, there was sufficient evidence that Hackworth
committed dealing in cocaine as a Class A felony with respect to his third drug
transaction.
Likewise, Hackworth dealt cocaine in a five-minute drug exchange within 1,000
feet of a family housing complex during his fourth drug exchange. Hackworth does not
dispute that the transaction was approximately five minutes long, that the Banstead Court
Apartments is a family housing complex, or that his primary purpose was to engage in
illicit drug activity. Accordingly, we conclude that five minutes was not “brief” for the
purposes of interpreting I.C. § 35-48-4-16(b), using the same reasoning as above.
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Finally, because we have determined that Hackworth’s transactions were not
“brief,” we will not address the second prong of the defense listed in I.C. § 35-48-4-
16(b), that there were not any children on the premises during the transactions. Instead,
we conclude that there was sufficient evidence to establish beyond a reasonable doubt
that Hackworth committed two Counts of dealing in cocaine as Class A felonies.
II. Habitual Offender Charge
Next, Hackworth argues that the trial court abused its discretion when it allowed
the State to file and amend an untimely habitual offender charge against him. I.C. § 35-
34-1-5(e) states: “An amendment of an indictment or [I]nformation to include a[n]
habitual offender charge under [I.C. §] 35-50-2-8, [I.C. §] 35-50-2-8.5, or [I.C. §] 35-50-
2-10 must be made not later than ten (10) days after the omnibus date.” The trial court’s
August 16, 2010 Order set the omnibus date for October 4, 2010. However, the State did
not file its habitual offender charge until November 9, 2010. The State also filed
petitions to amend the habitual offender Count on February 4, 2011, prior to the trial, and
on April 7, 2011, just prior to the parties’ closing arguments during trial.
We cannot agree with Hackworth that the trial court abused its discretion in
allowing the belated filing of the charge. We have previously noted that the purpose of
I.C. § 35-34-1-5(e) is to allow a defendant sufficient time to prepare a defense for an
habitual offender charge. Land v. State, 802 N.E.2d 45, 53 (Ind. Ct. App. 2004), trans
denied. Towards that end, section 35-34-1-5(e) also provides that the trial court may
permit the filing of an habitual offender charge at any time before the commencement of
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trial “upon a showing of good cause.” Also, a defendant must show that he or she was
prejudiced by the belated filing. Jackson, 938 N.E.2d at 39.
Once a trial court finds good cause, we review that decision for an abuse of
discretion. Id. And abuse of discretion occurs only where the decision is clearly against
the logic and effect of the facts and circumstances. Id. The trial court is not required to
enter a specific finding concerning good cause, and we will determine that the trial court
impliedly found good cause if it permits the State to file an habitual offender Count.
Jackson v. State, 938 N.E.2d 29, 39 (Ind. Ct. App. 2010), trans. denied.
Here, Hackworth argues that the trial court never required the State to show good
cause for its belated habitual offender finding. We cannot find any support for this claim
in the transcript. Hackworth’s counsel directly raised the issue of the belated finding at
trial, and the trial court asked the State for a reply argument. In response, the State
submitted evidence that Hackworth had received notice of the State’s intent to file the
charge on September 9, 2010, prior to the omnibus date. The trial court also commented
that it “[knew] that there [had] been plea negotiations going on after the omnibus date
and subsequent to [] the filing.” (Tr. p. 418). From this evidence, it is clear that the trial
court did require the State to show good cause and did consider the issue.
In addition, we find that the State’s evidence was sufficient for a showing of good
cause. Hackworth received notice of the State’s intent to file the habitual offender charge
before the omnibus date and, therefore, had the opportunity to prepare a defense to the
charge. Also, the State filed the charge on November 9, 2010. While this filing was past
12
the October 4, 2010, omnibus date, it was still months prior to Hackworth’s April 2011
trial. Moreover, in Land we noted that evidence of ongoing plea negotiations may
constitute good cause for a belated habitual offender filing. Land, 802 N.E.2d at 53.
Thus, we conclude that there was good cause for the belated filing and it did not
prejudice Hackworth.
Hackworth also argues that the trial court abused its discretion when it allowed the
State to amend the habitual offender charge on February 4, 2011 and on April 7, 2011.
This argument is misplaced. Amendments to habitual offender charges are governed by
I.C. § 35-34-1-5(c) rather than I.C. § 35-34-1-5(e). Williams v. State, 735 N.E.2d 785
(Ind. 2000). Pursuant to I.C. § 35-34-1-5(c), “[u]pon motion of the prosecuting attorney,
the court may, at any time before, during, or after the trial, permit an amendment to the
indictment or [I]nformation in respect to any defect, imperfection, or omission in form
which does not prejudice the substantial rights of the defendant.” Hackworth failed to
present any evidence that the amendments prejudiced his substantial rights.
Instead, we conclude that the trial court did not abuse its discretion when it
allowed the State to file a belated charge that Hackworth was an habitual offender.
CONCLUSION
Based on the foregoing, we conclude that: (1) the State produced sufficient
evidence to prove beyond a reasonable doubt that Hackworth committed dealing in
cocaine as a Class A felony; and (2) the trial court did not abuse its discretion when it
allowed the State to file a belated charge that Hackworth was an habitual offender.
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Affirmed.
FRIEDLANDER, J. and MATHIAS, J. concur
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