MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 22 2016, 8:36 am
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
Jeffrey E. Stratman Gregory F. Zoeller
Aurora, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lamocres A. Johnson, January 22, 2016
Appellant-Defendant, Court of Appeals Case No.
15A04-1501-CR-2
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No.
15C01-1310-FB-42
Mathias, Judge.
[1] Lamocres A. Johnson (“Johnson”) was convicted in Dearborn Circuit Court of
Class B felony dealing in a narcotic drug and Class B felony conspiracy to
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commit dealing in a narcotic drug. The trial court vacated the conspiracy
conviction on double jeopardy grounds and sentenced Johnson to sixteen years
incarceration. On appeal, Johnson presents three issues, which we reorder and
restate as:
I. Whether the State presented sufficient evidence to support Johnson’s
convictions;
II. Whether Johnson’s convictions for both dealing in a narcotic drug and
conspiracy to deal constitute double jeopardy; and
III. Whether the trial court abused its discretion in denying Johnson’s
motion to sever his trial from that of his co-defendant.
[2] We affirm.
Facts and Procedural History
[3] On October 29, 2013, Johnson and Joshua Comer (“Comer”) went to the home
of Andrea White (“White”) in Covington, Kentucky, near Cincinnati. White
was a friend of Johnson but did not know Comer. Johnson introduced Comer
to White and asked her if she could drive them to Indiana. Johnson and Comer
needed White to drive because she had a valid driver’s license. Johnson stated
that they needed a ride “[t]o go hit a lick.” Tr. p. 465. The two men offered
White twenty dollars and some marijuana, but White was hesitant and
declined. They then upped their offer to forty dollars and some marijuana, and
White agreed.
[4] Comer had been in contact with Nick Beetz (“Beetz”) who, unbeknownst to
Comer, Johnson, or White, was an undercover detective for the Lawrence
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Police Department. Beetz had arranged to purchase heroin from Comer that
afternoon at 2:30 p.m. Comer called Beetz at approximately 2:15 p.m. to
arrange a location for the transaction, and Beetz chose the parking lot of a fast-
food restaurant, which was already under police surveillance.
[5] Beetz arrived at the parking lot in his unmarked car at approximately 2:22 p.m.
While he waited for Comer to arrive, he had several telephone conversations
with Comer regarding when he would arrive. Two calls came from Comer’s
phone number, but a man other than Comer spoke with Beetz. This man told
Beetz where he and Comer were in relation to the destination and their
estimated time of arrival.
[6] White’s vehicle arrived at the chosen destination a few minutes past three
o’clock. White was driving, Johnson was in the front passenger seat, and
Comer was in the rear seat behind Johnson. Beetz exited his vehicle and
approached White’s vehicle and handed Comer $600 in cash. Comer then
handed Beetz what was later identified to be heroin, wrapped in a piece of
paper. During the transaction, Beetz commented that Comer was late. Johnson
told Beetz that it was Johnson’s fault that they were late. After the transaction
was complete, Beetz returned to his vehicle, and White drove away. Shortly
thereafter, the police stopped White’s car and arrested all three occupants.
[7] On October 31, 2013, the State filed an eleven-count charging information
against Johnson, Comer, White, and another defendant. Four of these counts
named Johnson: Count VI, Class B felony dealing in a narcotic drug; Count
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VII, Class B felony conspiracy to deal in a narcotic drug; Count IX, Class A
misdemeanor possession of marijuana; Count X, Class A misdemeanor
possession of paraphernalia; and Count XI, Class D felony maintaining a
common nuisance.
[8] A jury trial began on June 2, 2014. On the second day of trial, Johnson agreed
to plead guilty to the misdemeanor charges but still contested the felony
charges. The trial proceeded on the remaining charges, but ended in a mistrial
on June 6, 2014.
[9] On August 21, 2014, prior to the beginning of the second trial, Johnson filed a
motion to sever his trial from that of his co-defendants. The trial court held a
hearing on this motion on September 22, 2014, and denied the motion by an
order entered one week later.
[10] A second jury trial commenced on October 10, 2014. The jury found Johnson
guilty of both Class B felony charges, i.e., dealing in a narcotic drug and
conspiracy to deal in a narcotic drug. On December 4, 2014, the trial court
entered its order sentencing Johnson to sixteen years on the conviction for Class
B felony dealing in a narcotic drug. The court vacated the conviction for
conspiracy to commit dealing in a narcotic drug “to avoid double jeopardy.”
Appellant’s App. p. 468. The court also sentenced Johnson to concurrent terms
of one year on each of the misdemeanor convictions. Johnson now appeals.
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I. Sufficiency of the Evidence
[11] Johnson claims that the State presented insufficient evidence to support his
conviction for dealing in a narcotic drug. When reviewing claims of insufficient
evidence, we apply our well-settled standard of review: we will neither reweigh
the evidence nor judge the credibility of the witnesses; instead, we respect the
exclusive province of the jury to weigh any conflicting evidence. McHenry v.
State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the probative
evidence and reasonable inferences supporting the verdict, and we will affirm if
the probative evidence and reasonable inferences drawn therefrom could have
allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt. Id.
[12] Johnson claims the evidence was insufficient to support his conviction for
dealing in a narcotic drug. We note that the State argued at trial that Johnson
was guilty under a theory of accomplice liability, both in the prosecution’s
closing argument and its jury instruction on accomplice liability. See Tr. p. 583
(prosecution’s closing arguments); Appellant’s App. p. 216 (jury instruction on
accomplice liability). Thus, to convict Johnson, the State was required to prove
that he knowingly or intentionally aided, induced, or caused another person
(Comer) to deliver a narcotic drug (heroin). See Ind. Code § 35-48-4-1(a)(1)(C)
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(defining the crime of dealing in a narcotic drug); Ind. Code § 35-41-2-4
(defining accomplice liability).1
[13] Johnson argues that the State failed to prove the element of his intent. That is,
he claims no evidence supports a reasonable inference that he knew Comer was
travelling to Indiana to deliver heroin. He notes that White testified that she did
not know that Comer planned to deliver heroin and posits that he therefore also
had no knowledge. We disagree.
[14] First, White’s declared state of mind is not dispositive of Johnson’s state of
mind. Further, the jury was not required to credit White’s testimony regarding
even her personal lack of knowledge, let alone infer Johnson’s state of mind
from that testimony. More importantly, evidence from which the jury could
reasonably infer that Johnson knew that White planned to deliver heroin was
presented. Johnson brought Comer to White, who did not know Comer, to get
a ride to Indiana to “hit a lick.” Although this phrase is often associated with
robbery or theft, see Turner v. State, 953 N.E.2d 1039, 1043-44 (Ind. 2011),
testimony in the present case indicated that the term can more generically mean
“to profit or to gain from some sort of illegal means.” Tr. p. 470, 530; see also
United States v. Taylor, 522 F.3d 731, 735 (7th Cir. 2008) (where witness testified
that defendant told her that they were on their way to “hit a lick,” which she
explained meant that the defendant was going to sell drugs).
1
We refer to the version of the statutes in effect at the time Johnson committed the offense.
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[15] When White was hesitant, Johnson and Comer bribed her with both money
and marijuana. Moreover, evidence that Johnson had spoken with White in the
past regarding whether she used heroin was presented. In addition, the heroin
delivered to Beetz was wrapped in paper similar to the marijuana found on
Johnson’s person when he was arrested. From all of this evidence, the jury
could reasonably conclude that Johnson knew that Comer needed a ride to
Indiana to deliver heroin.
[16] Furthermore, under the accomplice theory of liability, evidence from which the
jury could conclude that Johnson aided Comer in delivering the heroin was
presented. First, Johnson helped Comer secure their transportation to Indiana.
White did not know Comer and insisted on Johnson coming with them on the
trip. Also, Beetz testified that he spoke to another man on calls coming from
Comer’s phone while they were on their way to meet Beetz. This man informed
Beetz of their location and when they expected to arrive. As Johnson was the
only other man in the car, and Beetz testified that the man on the phone
sounded like Johnson, the jury could reasonably conclude that Beetz spoke with
Johnson on the phone. Based upon his securing White’s help with the
transportation, and his telephone conversations with Beetz, the jury could
reasonably conclude that Johnson aided Comer in delivering the heroin to
Beetz in Indiana.
[17] In short, the State presented evidence sufficient to support Johnson’s conviction
for Class B felony dealing in heroin under a theory of accomplice liability.
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II. Double Jeopardy
Johnson also claims that his convictions for dealing in a narcotic drug and
conspiracy to commit dealing in a narcotic drug constitute double jeopardy.
However, because the trial court explicitly vacated Johnson’s conviction for
conspiracy on double jeopardy grounds, Johnson’s appellate claim of double
jeopardy has no basis.2 See Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct.
App. 2013) (noting that vacating conviction constituting double jeopardy cures
the double jeopardy problem).
III. Separate Trial Motion
[18] Lastly, Johnson argues that the trial court abused its discretion in denying his
motion to sever his trial from that of his co-defendants. Johnson claims that he
should have been tried separately because of the amount of evidence against his
co-defendant Comer and because the admission of certain out-of-court
statements by Comer violated his right to cross-examination protected by the
Sixth Amendment.
[19] Several defendants may be joined in a single prosecution. Lee v. State, 684
N.E.2d 1143, 1147 (Ind. 1997) (citing Ind. Code § 35-34-1-9). However, upon
motion by the defendant, the trial court may order a separate trial “whenever
2
Johnson recognizes that the trial court vacated his conviction for conspiracy on double jeopardy grounds
but argues that if we overturn his conviction for dealing, he might still be subject to a conviction on the
conspiracy charge. However, because we have held that sufficient evidence supports his conviction for
dealing, this is not a concern.
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the court determines that a separate trial is necessary to protect a defendant’s
right to a speedy trial or is appropriate to promote a fair determination of the
guilt or innocence of a defendant.” Id. (quoting Ind. Code § 35-34-1-11(b)). The
trial court generally has discretion to grant or deny a motion for separate trials.
Id. However, the trial court must grant severance of trials where defenses are
mutually antagonistic and the acceptance of one defense precludes the acquittal
of the other. Id. Upon appellate review, the trial court’s decision is measured by
what actually occurred at trial rather than what is alleged in the motion. Id.
[20] Johnson does not contend that his defense was mutually antagonistic to
Comer’s defense such that the trial court was required to grant his motion for
separate trials. Instead, he argues that the “mountain” of direct evidence against
Comer was improperly used by the State to implicate his own guilt simply
based on his association with Comer and his presence at the scene. We
disagree. As discussed above, evidence from which the jury could reasonably
infer that Johnson knew that Comer was traveling to Indiana to sell heroin was
presented, and the evidence also indicated that Comer aided in this transaction.
The fact that Comer’s guilt might have been easier to prove did not require the
trial court to grant separate trials. See Lee, 684 N.E.2d at 1147 (noting that when
one defendant implicates another it does not require separate trials and further
noting that no constitutional right to be protected from damaging evidence
exists) (citing Castro v. State 580 N.E2d 232, 235 (Ind. 1991)). Since the State
argued that Johnson was guilty under a theory of aiding Comer, the evidence
against Comer was directly relevant to the issue of Johnson’s guilt.
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[21] The brunt of Johnson’s argument is that the admission of Comer’s out-of-court
statements denied him the right to confront the witnesses against him because
Comer exercised his right not to testify at trial. This, Johnson claims, prevented
him from cross-examining Comer. Johnson argues that this runs afoul of both
the Sixth Amendment, as interpreted in Bruton v. United States, 391 U.S. 123
(1968), and Indiana Code section 35-34-1-11.
[22] In Bruton, the United States Supreme Court held that in a joint trial, admission
of one defendant’s confession that implicates another defendant is a violation of
the second defendant’s Sixth Amendment right to confront witnesses. Fayson v.
State, 726 N.E.2d 292, 294 (Ind. 2000) (citing Bruton, 391 U.S. at 124-26).
Because the confessing defendant cannot be required to take the stand, the
result is a denial of the other defendant’s right to cross-examine the confessing
defendant. Id. (citing Bruton, 391 U.S. at 137). Subsequent case law has clarified
that the Bruton rule is applicable only if the out-of-court statements by one
defendant “facially incriminate” another defendant. Id. (citing Richardson v.
Marsh, 481 U.S. 200, 211 (1987)).
[23] Indiana Code section 35-34-1-11(b) provides:
Whenever two (2) or more defendants have been joined for trial
in the same indictment or information and one (1) or more
defendants move for a separate trial because another defendant
has made an out-of-court statement which makes reference to the
moving defendant but is not admissible as evidence against him,
the court shall require the prosecutor to elect:
(1) a joint trial at which the statement is not admitted into
evidence;
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(2) a joint trial at which the statement is admitted into
evidence only after all references to the moving defendant
have been effectively deleted; or
(3) a separate trial for the moving defendant.
This section has been described by our supreme court as a codification of the
Bruton rule. See Small v. State, 736 N.E.2d 742, 745 n.5 (Ind. 2000); Houchin v.
State, 581 N.E.2d 1228, 1233 (Ind. 1991).3
[24] Johnson claims that the admission of audiotapes made of Comer’s telephone
calls with Beetz constitutes a violation of the Bruton rule and Indiana Code
section 35-34-1-11(b) because it was an out-of-court statement made by Comer
about which he was unable to cross-examine Comer. We disagree.
[25] To be subject to the Bruton rule or Indiana Code section 35-34-1-11(b), the out-
of-court statement must have referred to the defendant. See Fayson, 726 N.E.2d
at 294 (citing Richardson, 481 U.S. at 211) (noting that to be subject to Bruton
rule, the co-defendant’s out-of-court statement must facially incriminate the
defendant); I.C. § 35-34-1-11(b) (requiring that co-defendant’s out-of-court
statement “make[] reference to the moving defendant”).
[26] Here, the out-of-court statements at issue—Comer’s telephone calls with
Beetz—did not make reference to Johnson at all, much less facially incriminate
him. Accordingly, neither the Bruton rule or section 35-34-1-11(b) were
3
Houchin was later overruled in part on other grounds by Smith v. State, 581 N.E.2d 1228, 1246 n.11 (Ind.
1997).
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implicated, and the trial court did not abuse its discretion in denying Johnson’s
request for a separate trial.
Conclusion
[27] The State presented sufficient evidence to establish that Johnson knowingly
aided Comer in the delivery of heroin. Because the trial court vacated Johnson’s
conviction for conspiracy to commit dealing, no double jeopardy issues are
relevant to his conviction for dealing. Finally, the trial court did not abuse its
discretion by denying Johnson’s motion for a separate trial.
[28] Affirmed.
Kirsch, J., and Brown, J., concur.
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Lamocres A. Johnson v. State of Indiana (mem. dec.)
Combined Opinion