MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 31 2020, 9:08 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Marietto V. Massillamany Curtis T. Hill, Jr.
Erica Guernsey Attorney General
Massillamany Jeter & Carson LLP
Fishers, Indiana Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jay R. Smithhart, July 31, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2840
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Andrew R.
Appellee-Plaintiff Hopper, Judge
Trial Court Cause No.
48C03-1903-F2-726
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 1 of 11
Case Summary
[1] Police stopped a car in which Jay R. Smithhart was a passenger, searched the
car without a warrant, and found drugs and paraphernalia. Smithhart was
charged with and found guilty of several drug-related offenses. On appeal,
Smithhart argues that the trial court erred in admitting evidence obtained from
the car. We affirm.
Facts and Procedural History
[2] On March 22, 2019, Elwood Police Department Canine Officer Matt Mills
stopped a car for failing to dim its high-beam headlights. Officer Mills
approached the car and asked the driver, Britleigh Wood, and the front-seat
passenger, Smithhart, for identification. Neither Wood nor Smithhart had a
driver’s license. The officer returned to his vehicle and gave their personal
information to dispatch; the BMV database did not indicate that Wood had a
valid license. Sergeant Marcus Shoppell arrived to assist Officer Mills, and they
asked Wood and Smithhart to exit the car. Officer Mills walked his canine
toward the car. The canine pulled the officer toward the driver’s side, placed
his head on the driver’s seat, and alerted to the scent of illegal drugs. Officer
Mills asked Wood and Smithhart “if there was anything in the vehicle that [he]
needed to be made aware of.” Tr. Vol. 2 at 132. They said no, and the officers
searched the car.
[3] Officer Mills found a plastic baggie on the driver’s seat that contained what
appeared to be methamphetamine. At that point, the officer detained Wood
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 2 of 11
and Smithhart. Officer Mills also found a loaded handgun in the driver’s-side
door pocket and a black zippered bag on the back seat. The officer opened the
bag and saw small baggies containing chunks that field-tested positive for
methamphetamine. The bag also contained syringes, cut straws with residue,
three digital scales, packages of suboxone sublingual strips, and baggies both
with and without residue. Sergeant Shoppell found a floral zippered bag on the
front passenger’s-side floorboard. The sergeant opened the bag and found a
credit or debit card bearing Wood’s name, syringes, and baggies that contained
what was later confirmed to be methamphetamine and heroin. The officers
also found two cell phones in the car, one of which was later linked to
Smithhart and forensically examined. Officer Mills learned that the car did not
belong to either Wood or Smithhart.
[4] The State ultimately charged Smithhart with level 2 felony dealing in
methamphetamine, level 3 felony possession of methamphetamine, level 5
felony dealing in a narcotic drug (heroin), level 6 felony possession of a narcotic
drug (heroin), level 6 felony unlawful possession of a syringe, level 6 felony
maintaining a common nuisance, class A misdemeanor possession of a
controlled substance (suboxone), and class C misdemeanor possession of
paraphernalia. The State also alleged that Smithhart was a habitual offender.
Smithhart filed a motion to suppress the evidence seized from the car. The trial
court held a hearing and issued an order denying the motion. After a trial, the
jury found Smithhart guilty of both dealing in and possession of
methamphetamine, possession of a narcotic drug, unlawful possession of a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 3 of 11
syringe, and possession of a controlled substance, and acquitted him of the
remaining charges. Smithhart waived jury trial on the habitual charge. The
trial court found him to be a habitual offender and sentenced him to forty years.
Smithhart now appeals.
Discussion and Decision
Section 1 – Smithhart has no standing to challenge the search
of the car under the Indiana Constitution.
[5] Smithhart first contends that the trial court erred in admitting the evidence
seized from the car; he makes a separate argument regarding the evidence
seized from the two zippered bags found in the car, which we address below.
He claims that the search of the car violated Article 1, Section 11 of the Indiana
Constitution, which provides,
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
Evidence obtained in violation of this provision is generally inadmissible at
trial; the principal purpose of the exclusionary rule is to deter violations of
constitutional rights. Anderson v. State, 961 N.E.2d 19, 32 (Ind. Ct. App. 2012),
trans. denied. “Generally, evidentiary rulings are reviewed for an abuse of
discretion and reversed when admission is clearly against the logic and effect of
the facts and circumstances.” Curry v. State, 90 N.E.3d 677, 683 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 4 of 11
2017), trans. denied (2018). “However, when a challenge to an evidentiary
ruling is predicated on the constitutionality of a search or seizure of evidence, it
raises a question of law that is reviewed de novo.” Id. We may affirm a trial
court’s evidentiary ruling on any theory supported by the evidence. Satterfield v.
State, 33 N.E.3d 344, 352 (Ind. 2015).
[6] As a threshold matter, the State asserts that Smithhart does not have standing to
challenge the search of the car. In Campos v. State, 885 N.E.2d 590 (Ind. 2008),
the Indiana Supreme Court considered whether the passenger of a vehicle may
challenge a search of the vehicle under Article 1, Section 11. Based on its
determination that “federal precedent addressing standing of a passenger
asserting an interest in a searched vehicle is equally applicable under the
Indiana Constitution[,]” 1 the court agreed with the Tenth Circuit Court of
Appeals that “[w]here the defendant offers sufficient evidence indicating that he
has permission of the owner to use the vehicle, the defendant plainly has a
reasonable expectation of privacy in the vehicle and standing to challenge the
search of the vehicle.” Id. at 598, 599 (quoting United States v. Rubio-Rivera, 917
F.2d 1271, 1275 (10th Cir. 1990)). The court noted that “[t]he only evidence in
1
Although Article 1, Section 11 of the Indiana Constitution and the Fourth Amendment to the United States
Constitution are virtually identical, Indiana courts generally have interpreted Section 11 separately and
independently. J.G. v. State, 93 N.E.3d 1112, 1123 (Ind. Ct. App. 2018), trans. denied. “A Fourth
Amendment analysis turns on whether the subject has a reasonable expectation of privacy, whereas a Section
11 analysis ‘turns on whether the police conduct was reasonable under the totality of the circumstances.’” Id.
(quoting Carpenter v. State, 18 N.E.3d 998, 1001-02 (Ind. 2014)). Smithhart does not challenge the legality of
the traffic stop under either Section 11 or the Fourth Amendment, and he does not challenge the legality of
the search of the car under the Fourth Amendment.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 5 of 11
the record regarding the ownership of the car” came from Campos, the
passenger, and Santiago, the driver; both men told the officer who stopped and
searched the car that the car belonged to Campos’s brother, and Campos said
that he had permission to use it. Id. at 599. Because the State produced no
evidence that the car was not owned by Campos’s brother “or that Campos did
not have permission to use it[,]” the court held that “Campos [had] standing to
challenge the search of the car.” Id.
[7] In this case, however, Smithhart offered no evidence that the owner of the car
in which he was a passenger had given him permission to use it. Smithhart
contends that no such evidence was required because permission was not at
issue. But Campos indicates that permission is always at issue when a passenger
challenges the legality of a vehicle search, 2 and that it is the defendant’s burden
to present evidence on that issue if the State does not.3 It is axiomatic that
“[t]he State has the burden to demonstrate that the measures it used to seize
information or evidence were constitutional.” Curry, 90 N.E.3d at 683. But
that burden is contingent on the defendant establishing a legal basis for
2
In Jackson v. State, 890 N.E.2d 11, 17 (Ind. Ct. App. 2008), the court addressed a passenger’s challenge to
the search of a car and noted that “permission to use the car did not appear to be at issue below[,]” perhaps
because the trial was held before our supreme court decided Campos.
3
We note that the State argued at the suppression hearing that Smithhart did not have standing to challenge
the search of the car because he was a passenger, and it specifically raised permission as an issue in the
proposed findings that it submitted to the trial court. See Appellant’s App. Vol. 2 at 63 (“The evidence at the
hearing was that neither the driver nor the defendant were [sic] the owner of the vehicle. There was no
testimony that either had permission to be using the vehicle.”). And in its order denying the motion to
suppress, the trial court noted that Smithhart did not “provide any information as to his approved use of the
vehicle.” Id. at 82.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 6 of 11
challenging the constitutionality of those measures in the first place, and
Smithhart failed to establish that basis here.
Section 2 – Smithhart has no standing to challenge the search
of the bags under either the United States Constitution or the
Indiana Constitution.
[8] Smithhart also contends that the trial court erred in admitting the evidence
seized from the two bags found in the car, claiming that the warrantless
searches violated both the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution. Smithhart
has no standing to make these claims. 4 “Fourth Amendment and Article 1,
Section 11 rights are personal rights that may not be asserted vicariously.”
Lewis v. Putnam Cty. Sheriff’s Dep’t, 125 N.E.3d 655, 658 (Ind. Ct. App. 2019).
“[A] defendant has no constitutional right to challenge the search or seizure of
another person’s property.” Chappel v. State, 591 N.E.2d 1011, 1016 (Ind.
1992). In its order denying Smithhart’s motion to suppress, the trial court noted
that Smithhart “did not claim any of the possessions in the vehicle nor did he
assert any interest in them.” Appellant’s App. Vol. 2 at 82. Smithhart made no
claims of ownership at trial, and Sergeant Shoppell testified that both Smithhart
4
“As this court has noted before, the United States Supreme Court has rejected the rubric of ‘standing,’ and
determined that the definition of Fourth Amendment rights is ‘more properly placed within the purview of
substantive Fourth Amendment law than within that of standing.’” Jackson, 890 N.E.2d at 15 n.1 (quoting
Willis v. State, 780 N.E.2d 423, 427 (Ind. Ct. App. 2002)). “In contrast, analysis under Article 1, Section 11
of the Indiana Constitution has retained a ‘standing’ requirement.” Id. For ease of discussion, we use
“standing” with respect to both the Fourth Amendment and Article 1, Section 11.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 7 of 11
and Wood claimed that the floral bag “was not their bag[.]” Tr. Vol. 2 at 115.
In sum, Smithhart’s argument is a nonstarter. 5
Section 3 – Smithhart has failed to establish that the trial court
abused its discretion in admitting cell phone screenshots.
[9] Finally, Smith argues that the trial court erred in admitting State’s Exhibits 19
through 83, claiming that they should have been excluded pursuant to Indiana
Evidence Rule 404(b). At trial, Smith did not object to Exhibits 19 through 26
on Rule 404(b) grounds, so his argument is waived as to those exhibits. See
Washington v. State, 808 N.E.2d 617, 625 (Ind. Ct. App. 2004) (“[A]s a general
rule, a party may not present an argument or issue on appeal unless the party
raised that argument or issue before the trial court. In such circumstances the
argument is waived.”) (citation omitted).
[10] Exhibits 27 through 83 are screenshots of text conversations with over a dozen
different persons on various dates that were extracted from one of the cell
phones found in the car in which Smithhart was a passenger; the phone was
accessed using a passcode that was divulged during a jailhouse phone
conversation between the incarcerated Smithhart and a third party. One of the
incoming texts addresses the recipient as “Jay,” State’s Ex. 34, and one of the
outgoing texts states, “This Jay bro[.]” State’s Ex. 60. Anderson Police
5
Smithhart also raises arguments regarding his motion to suppress, which are moot because he is appealing
after a completed trial. See Godby v. State, 949 N.E.2d 416, 420 n.12 (Ind. Ct. App. 2011) (explaining that a
motion to suppress does not preserve an argument for appeal), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 8 of 11
Department Detective Keith Gaskill testified that the slang-filled conversations
indicate that the phone’s owner facilitated numerous sales of illegal drugs,
including methamphetamine and heroin. Smithhart objected to the exhibits
based on Evidence Rule 404(b), which provides in relevant part that “[e]vidence
of a crime, wrong, or other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with
the character[,]” but it “may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” The trial court overruled the objection and
admitted the exhibits.
[11] “When addressing the admissibility of evidence under Rule 404(b), a trial court
must utilize a two-prong analysis.” Scalissi v. State, 759 N.E.2d 618, 623 (Ind.
2001). “First, the trial court must assess whether the evidence has some
relevancy to a matter at issue other than the defendant’s propensity to commit
the charged act. Second, the trial court must weigh the probative value of the
evidence against its prejudicial effect, pursuant to Indiana Evidence Rule 403.”
Id. Rule 403 provides, “The court may exclude relevant evidence[ 6] if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue
6
“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in determining the action.” Ind. Evidence Rule 401.
Relevant evidence is admissible unless a constitution, statute, or rule provides otherwise, and irrelevant
evidence is inadmissible. Ind. Evidence Rule 402.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 9 of 11
delay, or needlessly presenting cumulative evidence.” The inquiry is not
whether the evidence is prejudicial, since all relevant evidence is inherently
prejudicial in a criminal case; rather, the inquiry is whether the evidence is
unfairly prejudicial. Cadiz v. State, 683 N.E.2d 597, 600 (Ind. Ct. App. 1997).
“When determining the likely unfair prejudicial impact, courts will look for the
dangers that the jury will substantially overestimate the value of the evidence or
that the evidence will arouse or inflame the passions or sympathies of the jury.”
Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct. App. 2014), trans. denied. “A trial
court’s evidentiary rulings are presumptively correct, and the ‘defendant bears
the burden on appeal of persuading us that the court erred in weighing [unfair]
prejudice and probative value under Evid. R. 403.’” Rivera v. State, 132 N.E.3d
5, 12 (Ind. Ct. App. 2019) (quoting Anderson v. State, 681 N.E.2d 703, 706 (Ind.
1997)), trans. denied (2020).
[12] Smithhart contends that the exhibits relate only to his propensity to commit the
charged acts of dealing methamphetamine and heroin, the latter of which he
was acquitted. We disagree. The State points out that Smithhart’s trial strategy
“appeared to center around his denial that he possessed any of the illicit
substances and paraphernalia, or—in the alternative—that if he did possess
those items, he did not have any intent to deliver.” Appellee’s Br. at 28. See Tr.
Vol. 3 at 179 (Smithhart’s closing argument: “[I]f you find that what was find
[sic] in that vehicle that night – was jointly possessed by both Britleigh Wood
and Jay Smithhart – possibly possession is it. But intent to deliver I think the
State is having a hard time.”). The exhibits indicate that Smithhart had a ready
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 10 of 11
customer base for the methamphetamine and heroin that were found in the car,
and thus they are probative of his intent to deal, rather than merely possess,
those substances. The exhibits are clearly prejudicial, but Smithhart has failed
to persuade us that their considerable probative value is substantially
outweighed by the danger of unfair prejudice, i.e., that the trial court abused its
discretion in admitting the exhibits. Therefore, we affirm.
[13] Affirmed.
Bailey, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2840| July 31, 2020 Page 11 of 11