Shannon L. Houchin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Case Summary

[1] In April of 2022, Shannon Houchin was found to be in possession of 38.07 grams of methamphetamine and 23.45 grams of fentanyl. Houchin was subsequently charged with, and convicted of, Level 2 felony dealing in methamphetamine, Level 2 felony dealing in a narcotic drug, Level 3 felony possession of methamphetamine, and Level 4 felony possession of a narcotic drug. At sentencing, the trial court merged the possession convictions into the dealing convictions and sentenced Houchin to an aggregate thirty-year term, with five years suspended to probation.

[2] On appeal, Houchin contends that the trial court abused its discretion in admitting certain evidence and that his possession convictions violate the prohibitions against double jeopardy. For its part, the State contends that the trial court did not abuse its discretion in admitting the challenged evidence but concedes that the case should be remanded with instructions for the trial court to vacate the possession convictions. Because we agree with the State, we affirm in part, reverse in part, and remand to the trial court with instructions to vacate Houchin's convictions for Level 3 felony possession of methamphetamine and Level 4 felony possession of a narcotic drug.

Facts and Procedural History

[3] Around 6:00 p.m. on April 3, 2022, then-Sergeant Jason Kerberg ¹ of the Floyd County Sherrif's Department was on duty when he received a call from his wife who reported that a blue SUV “was following behind her driving erratically.” Tr. Vol. II p. 164. After locating the SUV, Sergeant Kerberg “watched it pull into the bay” of a car wash. Tr. Vol. II p. 164. One of the occupants then exited the vehicle and bay, walked to a nearby Taco Bell, and went inside for several minutes before exiting without any food. Once the occupant re-entered the SUV, the SUV left the car wash bay without being washed. Sergeant Kerberg observed the SUV pull out of the bay and proceed to a McDonald's parking lot. Two men exited the vehicle and went into the McDonald's before re-entering the SUV and moving it “a couple spots over, [and] park[ing] again in the McDonald's parking lot[.]” Tr. Vol. II p. 167. Sergeant Kerberg alerted then-Officer Noah Pollert ² of the Floyd County Police Department of what he deemed to be suspicious activity of the SUV.

[4] A short time later, Officer Pollert observed the SUV eastbound on Interstate 64. Officer Pollert did not follow the SUV or initiate a traffic stop at that time. Later that evening, Officer Pollert observed the SUV on U.S. Highway 150 and, after observing “several traffic infractions[,]” initiated a traffic stop. Officer Pollert observed that, before the SUV stopped, its two occupants “were moving around” making “back-and-forth furtive movements.” Tr. Vol. II p. 213. Both of the occupants, Christopher Fleenor and Houchin, “appeared pretty nervous.” Tr. Vol. II p. 214. Officer Pollert observed a metal cap or thimble with “a liquid, powdery substance” inside. Tr. Vol. II p. 214.

[5] In an effort to “mitigate the risk of a vehicle pursuit[,]” Officer Pollert had the driver, Fleenor, exit the SUV first. Tr. Vol. II p. 214. At some point, Floyd County Sheriff's Deputy Joseph Tuma arrived to assist Officer Pollert. As Houchin exited from the passenger seat of the SUV, Deputy Tuma observed that Houchin “dropped a small plastic corner baggie out of his hand onto the ground next to” the SUV. Tr. Vol. II p. 182. Houchin then “kicked it under the edge of the” SUV. Tr. Vol. II p. 182. Deputy Tuma observed that the baggie “was filled with a brown powdery substance” that was consistent with illegal drugs. Tr. Vol. II p. 182. As Officer Pollert and Deputy Tuma were preparing to transport Fleenor and Houchin to the jail, they noticed that “there were two plastic baggies sticking out [of] the bottom of” Houchin's left pant leg, with a crystal-like substance inside. Tr. Vol. II p. 183. “Fleenor asked Houchin what the bags were, and he replied meth[.]” Tr. Vol. II p. 186.

[6] Once at the jail, law enforcement performed a strip search of Houchin. When Houchin's boxers were removed, “a bag fell out and landed on the ground. [Houchin] then attempted to step on it to hide it.” Tr. Vol. III p. 26. Houchin was also found to be in possession of three syringes that had been “located inside the groin region of his pants.” Tr. Vol. II p. 237. Forensic testing later confirmed that two of the bags recovered from Houchin's person contained a total of 38.07 grams of methamphetamine and the other two contained a total of 23.45 grams of fentanyl. The State charged Houchin with Level 2 felony dealing in methamphetamine, Level 2 felony dealing in a narcotic drug, Level 3 felony possession of methamphetamine, and Level 4 felony possession of a narcotic drug.

[7] At trial, Officer Pollert detailed his education, training, and experience involving drug-related cases, stating that he had received sixty hours of training in interdiction and narcotics investigations and had been involved with twenty-five to thirty investigations involving fentanyl and more than fifty investigations involving methamphetamine. Officer Pollert testified that, based on his training and experience, a drug user is only likely to possess drugs weighing between “one tenth of a gram” and three-and-one-half grams of the drug. Tr. Vol. II p. 201. Officer Pollert further testified, over Houchin's objection, that, again based on his training and experience, the “lowest quantity” a drug dealer might possess is about seven grams. Tr. Vol. II p. 203. Officer Pollert explained that “[s]o your general drug user possesses the drug that they purchased for themselves. It's a small amount. What we encounter in law enforcement large quantities of drugs packaged in separate bags. It's consistent with the dealing and delivering of that product.” Tr. Vol. II p. 204. Officer Pollert also testified that neither the quantity of methamphetamine nor the amount of fentanyl at issue in this case was a typical amount for a drug user to possess.

[8] The jury found Houchin guilty of all four counts. The trial court recognized at sentencing that it could neither enter judgment nor impose a sentence on the possession counts because they were lesser-included offenses of the dealing counts. The court's written sentencing order indicates that a conviction was entered on all four counts and that the convictions and sentence for the possession counts were “merged” with the dealing counts. Appellant's App. Vol. II p. 164. The trial court sentenced Houchin to an aggregate thirty-year term of imprisonment, with five years suspended to probation.

Discussion and Decision

[9] Houchin contends that the trial court abused its discretion in admitting Officer Pollert's testimony regarding the amount of drugs generally possessed by a drug user as opposed to a drug dealer. He also contends that his convictions on the possession charges, which were merged into his convictions on the dealing charges, violate the prohibitions against double jeopardy.

I. Admission of Evidence

[10] “A trial court has discretion regarding the admission of evidence and its decisions are reviewed only for abuse of discretion.” Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021). “We will reverse only if the trial court's ruling was clearly against the logic and effect of the facts and circumstances before it and errors affect a party's substantial rights.” Id.

[11] Indiana Evidence Rule 704(a) provides that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable just because it embraces an ultimate issue.” However, “[w]itnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case[.]” Evid. R. 704(b). This is because the jury, not the witness, is responsible for deciding the ultimate issues in a trial, and opinion testimony concerning guilt invades the province of the jury by usurping the jury's right to determine the law and facts. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). Thus, opinion testimony may include evidence that leads to an incriminating inference, but “must stop short of the question of guilt—because under Rule 704(b) and our constitution, that is one ‘ultimate issue’ that the jury alone must resolve.” Id.

[12] In Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans. denied, we concluded that the trial court did not abuse its discretion in admitting the investigating officer's testimony, which was based on his personal experience, that “drug users generally do not have large amounts of drugs on them” and, conversely, that “drug dealers generally carry larger amounts” of drugs on them. In reaching this conclusion, we noted that the testimony “was helpful in determining the issue of intent to deliver because [the witness] established the distinct characteristics that differentiate between a drug user and a drug dealer.” Id.; see also Hape v. State, 903 N.E.2d 977, 994 (Ind. Ct. App. 2009) (providing that trooper's testimony regarding amount of drugs generally possessed for personal use was admissible as it was helpful to the determination of a fact at issue), trans. denied.

[13] In addition, we have concluded that a police officer

may offer testimony as to whether particular facts tend to be more or less consistent with dealing in drugs. However, the expert may not make conclusions as to whether the defendant is a dealer or whether the defendant had the intent to deal or deliver. Similarly, the expert may not be presented with a hypothetical set of facts which reflect the facts of the case and be asked to conclude whether a hypothetical individual is more likely a dealer or user. In essence, the expert may comment on the facts of the case, but must refrain from making any conclusions as to the defendant's intent, guilt, or innocence.

Scisney v. State, 690 N.E.2d 342, 346 (Ind. Ct. App. 1997), summarily aff'd in relevant part, 701 N.E.2d 847, 849 (Ind. 1998).

[14] Upon reviewing Officer Pollert's testimony, we conclude that Officer Pollert's testimony, which was based on his training and experience, did not address the ultimate question of Houchin's guilt, but rather was focused on the general tendencies of drug users and drug dealers. Despite Houchin's assertion to the contrary, we do not believe that Officer Pollert was asked a hypothetical question that would run afoul of Evidence Rule 704. While Officer Pollert did indicate that the amount of drugs at issue in this case were not typical of the amounts that, based on his experience and training, would generally be possessed by a mere drug user, his testimony did not specifically address the question of Houchin's guilt. The fact that Officer Pollert's testimony may have potentially supported an incriminating inference of guilt does not render it inadmissible. See Williams, 43 N.E.3d at 581. As such, we conclude that the trial court did not abuse its discretion in admitting Officer Pollert's testimony.

II. Double Jeopardy

[15] Houchin contends, and the State concedes, that “remand is necessary for the trial court to vacate, rather than merge, Houchin's convictions for possession of methamphetamine and possession of narcotics.” Appellee's Br. p. 11. “Whenever: (1) a defendant is charged with an offense and an included offense in separate counts; and (2) the defendant is found guilty of both counts; judgment and sentence may not be entered against the defendant for the included offense.” Ind. Code § 35-38-1-6. In Hardister v. State, 849 N.E.2d 563, 576 (Ind. 2006), the Indiana Supreme Court held that a charge for simply possessing a drug was a lesser-included offense of a charge for dealing that same drug. As the parties point out, the proper remedy in this case is to vacate Houchin's possession convictions instead of simply merging them into his dealing convictions. See generally Saavedra v. State, 186 N.E.3d 134, 142 (Ind. Ct. App. 2022) (providing that the proper remedy is similar cases is to vacate the lesser conviction rather than simply merging it), trans. denied. As such, we reverse the trial court's act of merging Houchin's possession convictions into his dealing convictions and remand to the trial court with instructions to instead vacate Houchin's convictions for Level 3 felony possession of methamphetamine and Level 4 felony possession of a narcotic drug.

[16] The judgment of the trial court is affirmed in part, reversed in part, and remanded to the trial court with instructions.

FOOTNOTES

1.   As of the date of trial, Kerberg had attained the rank of lieutenant.

2.   As of the date of trial, Pollert had also attained the rank of lieutenant.

Bradford, Judge.

Judges Bailey and Foley concur. Bailey, J., and Foley, J., concur.