Timothy Blackwell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Timothy Blackwell appeals his Level 2 felony dealing in methamphetamine conviction and habitual offender adjudication. Blackwell raises three issues for our review, which we reorder and restate as:

I. Whether Blackwell's arrest violated his rights under Article 1, Section 11 of the Indiana Constitution;

II. Whether the trial court abused its discretion when it instructed the jury on the elements of dealing in methamphetamine; and,

III. Whether there was a fatal variance between the charging information alleging that Blackwell was a habitual offender and the evidence presented at trial.

[2] We affirm.

Facts and Procedural History

[3] On November 13, 2020, Indiana State Trooper Brad Smith conducted a Department of Transportation compliance inspection of a commercial car hauler on Interstate 70 in Hendricks County. During his inspection Trooper Smith reviewed the driver's paperwork on each of the cars being transported. He also observed a 1984 Corvette in poor condition on the hauler. Trooper Smith believed the vehicle was not worth much based on its condition and thought it was odd that someone would pay $1,350 to ship it from California to Indiana. The driver of the car hauler advised the trooper that the Corvette's engine did not run and that some of the usual paperwork accompanying a transported car was missing. Based on these facts, the trooper requested assistance from State Trooper Matthew Wilson, who was a K-9 officer.

[4] Trooper Wilson ran his canine partner around the trailer, and the canine alerted to the odor of drugs in the Corvette. Thereafter, the officers searched the vehicle and found packages of suspected narcotics in a compartment behind the seats. A ten-pound package produced a positive field test result for methamphetamine. The officers thought that a second package contained four pounds of cocaine, but the substance was later determined to be fentanyl.

[5] The officers seized most of the drugs and placed them in the trunk of Trooper Wilson's squad car. However, they took smaller samples, placed them in new evidence bags, and placed those bags in the compartment in the Corvette where the drugs had been found originally. The officers also obtained a warrant enabling them to place a GPS device on the Corvette. The officers then instructed the car hauler driver to deliver the Corvette to an auto-auction facility in Plainfield as previously arranged.

[6] The officers called the phone number listed on the bill of lading associated with the Corvette to notify that person that the vehicle had been delivered to the auction facility. Shortly thereafter, Blackwell arrived, paid the car hauler driver, and arranged for a tow truck to transport the Corvette to an address on Gladstone Avenue in Indianapolis. Blackwell used a false name when he signed the paperwork for the Corvette. The tow truck driver transported the Corvette to the Gladstone Avenue address and unloaded it there. The residence at that address belonged to one of Blackwell's relatives.

[7] Trooper Wilson followed Blackwell after he left the auction facility. Blackwell drove his own vehicle to his home address on Euclid Avenue, which was near the Gladstone Avenue address. Blackwell pulled into his driveway but then seconds later pulled back out onto Euclid Avenue heading south. He then turned left on 32nd Street. Although he did not observe any traffic violations, Trooper Wilson initiated a traffic stop. The officer placed Blackwell under arrest and advised him of his Miranda rights. After that advisement, Blackwell made incriminating statements to law enforcement officers.

[8] The State charged Blackwell with Level 2 felony dealing in cocaine and Level 2 felony dealing in methamphetamine. The State later amended the count alleging dealing in cocaine to Level 2 felony dealing in a narcotic drug, i.e., fentanyl. The State also alleged that Blackwell was a habitual offender.

[9] Blackwell filed a motion to suppress the incriminating statements he made after his arrest. Blackwell claimed that he was illegally seized in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. He also argued that his custodial statements should have been suppressed pursuant to the Fifth Amendment and Article 1, Section 14. The trial court denied Blackwell's motion. Thereafter, the court gave Blackwell permission to file an interlocutory appeal.

[10] On July 24, 2023, our court issued a memorandum decision affirming the trial court's denial of Blackwell's motion to suppress. Our court concluded that Blackwell's arrest was supported by probable cause and observed that Blackwell acknowledges that he “picked up the Corvette and paid to transport it to the house on Gladstone [Avenue]” but argues that these circumstances would not “warrant a person of reasonable caution to believe that [he] knew there was a large amount of drugs hidden within it” or that he intended to take possession of the drugs, emphasizing that he never personally took physical control of the car, nor did he have it towed to his house. Blackwell maintains that the police did not have “any evidence connecting [him] to the Gladstone home or to the actual drugs in the car,” and, without that, “the police did not have probable cause that he intended to take possession of the drugs rather than just transport a car for someone else.” We are unpersuaded by these arguments.

During the inspection of the transport vehicle on I-70, officers became suspicious about the Corvette based on various observed criminal indicators, the officer's conversation with the driver, and the paperwork produced for the Corvette. A K-9 alerted to the presence of drugs, and the Corvette was searched, resulting in the discovery of pounds of methamphetamine and cocaine. Blackwell was at ADESA to accept the Corvette when the transport arrived. He paid the transport driver, and the Corvette was placed on a tow truck that Blackwell had arranged to come to ADESA and take the Corvette to an address on Gladstone [Avenue], which was in close proximity to his own residence. Blackwell and the tow truck left ADESA at the same time and headed to the same vicinity. A local drug interdiction detective working with ISP recognized Blackwell from previous encounters with or surveillance of him. We agree with the State that, on these facts, a person of reasonable caution in the officers’ position could have concluded that Blackwell knowingly took possession and control over the Corvette that he knew had drugs concealed within it. That is, we find that the totality of the circumstances establish a fair probability of criminal activity.

Blackwell v. State, No. 22A-CR-2677, 2023 WL 4700659, at *4 (Ind. Ct. App. July 24, 2023) (mem.) (record citations and footnote omitted). Our court also determined that Blackwell had waived his Article 1, Section 11 claim because he had failed to argue the totality of the circumstances test promulgated in Litchfield v. State. See id. at *3 n.3 (citing Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)). Our court also concluded that Blackwell had been adequately advised of his Miranda rights and “voluntarily chose to engage in an interview with police without asserting those rights.” Id. at *7.

[11] Blackwell's jury trial commenced on June 11, 2024. Blackwell objected to the admission of the incriminating statements he made to the officers after his arrest. The trial court admitted the statements into evidence over his objection. Blackwell also unsuccessfully challenged the trial court's preliminary and final instructions describing the elements of the offense of dealing in methamphetamine. The jury found Blackwell not guilty of dealing in a narcotic drug but guilty of Level 2 felony dealing in methamphetamine.

[12] After the jury's guilty verdict, trial on the habitual offender allegation commenced. Blackwell requested a directed verdict and argued that the State had failed to prove that he had committed the prior offenses specified in the charging information. The trial court denied his motion, and the jury found that Blackwell was a habitual offender.

[13] Blackwell now appeals.

I. Under the totality of the circumstances, Trooper Wilson's decision to arrest Blackwell was reasonable and did not violate Article 1, Section 11 of the Indiana Constitution.

[14] Citing Article 1, Section 11 of the Indiana Constitution, Blackwell claims that it was unreasonable under the totality of the circumstances for Trooper Wilson to initiate a traffic stop to arrest him.¹ And relying on that argument, Blackwell claims that the trial court abused its discretion when it admitted his incriminating statements to law enforcement obtained as a result of his arrest. See Wright v. State, 108 N.E.3d 307, 313 (Ind. 2018) (explaining that “[r]ooted deeply within Indiana constitutional law lies the principle that when the police obtain evidence by way of an unreasonable search or seizure the evidence is excluded at the defendant's trial”).

[15] Blackwell initially challenged the admission of this evidence through a motion to suppress, but he now appeals following a completed trial.² Our standard of review is well settled:

“The trial court has broad discretion to rule on the admissibility of evidence.” Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017) (citation omitted). Ordinarily, we review evidentiary rulings for an abuse of discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances. Id. But when a challenge to an evidentiary ruling is based “on the constitutionality of the search or seizure of evidence, it raises a question of law that we review de novo.” Id.

Johnson v. State, 157 N.E.3d 1199, 1203 (Ind. 2020).

[16] To determine whether Blackwell's warrantless arrest violated Article 1, Section 11, we must evaluate the reasonableness of the police conduct under the totality of the circumstances. See Litchfield, 824 N.E.2d at 359. Whether a seizure was reasonable focuses on the actions of the officer, rather than on the defendant's reasonable expectation of privacy, and “turn[s] on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs.” Id.

[17] Addressing the second factor first, we observe that the degree of intrusion was high because “there are few intrusions more severe than an arrest.” See Govan v. State, 116 N.E.3d 1165, 1175 (Ind. Ct. App. 2019), trans. denied. However, the remaining two factors weigh in favor of concluding that Blackwell's warrantless arrest was reasonable under the totality of the circumstances.

[18] Trooper Wilson had a high degree of suspicion that Blackwell was involved in trafficking narcotics. Blackwell concedes that the law enforcement officers had a high degree of suspicion to believe that a crime had occurred but argues that the officers did not have a high degree of suspicion that Blackwell was involved. First, law enforcement officers established that the Corvette was being used to transport pounds of methamphetamine and suspected cocaine, which was later determined to be fentanyl. An officer called the number provided for delivery of the Corvette when the car hauler reached the delivery location. Blackwell responded to the call, paid for the Corvette's transport, and arranged for the Corvette to be towed to an address near his own residence. From this information, Trooper Wilson reasonably believed that Blackwell was involved in transporting the illegal substances.

[19] The extent of law enforcement needs was also high. Trooper Wilson reasonably believed that Blackwell was involved in transporting illegal substances to the Indianapolis area. Given the quantities involved, the trooper also reasonably believed that Blackwell intended to sell the drugs to persons in the community. Our courts have held that law enforcement needs are high when investigating and curtailing drug trafficking. See Austin v. State, 997 N.E.2d 1027, 1036 (Ind. 2013); McKinney v. State, 212 N.E.3d 697, 708 (Ind. Ct. App. 2023), trans. denied.

[20] For all of these reasons, Trooper Wilson's decision to arrest Blackwell was reasonable under the totality of the circumstances. Because Blackwell's warrantless arrest did not violate Article 1, Section 11 of the Indiana Constitution, the trial court properly admitted the post-arrest statements he made to law enforcement officers.

II. The trial court's error in instructing the jury was not reversible error.

[21] Next, Blackwell argues that the trial court abused its discretion when it tendered preliminary and final jury instructions misstating the elements the State had to prove to convict him of dealing in methamphetamine.

“The purpose of a jury instruction ‘is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.’ ” Ramirez v. State, 174 N.E.3d 181, 199 (Ind. 2021) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)). We review a trial court's jury instructions for an abuse of discretion. Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015). “An abuse of discretion arises when the instruction is erroneous and the instructions taken as a whole misstate the law or otherwise mislead the jury.” Id. at 484-85. In reviewing a trial court's decision to give or refuse a tendered jury instruction, we consider: “(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.” Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002). “Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case.” Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (quoting Whitney v. State, 750 N.E.2d 342, 344 (Ind. 2001)).

Albert v. State, 193 N.E.3d 1040, 1042 (Ind. Ct. App. 2022), trans. denied; see also Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015) (explaining that an instructional error will not warrant reversal unless the instructions, as a whole, prejudice the defendant's substantial rights by misleading the jury).

[22] The trial court gave the following preliminary and final instructions describing the elements of dealing in methamphetamine:

The crime of Dealing in Methamphetamine is defined by statute as follows:

A person who knowingly or intentionally possesses with intent to deliver methamphetamine, pure or adulterated, commits Dealing in Methamphetamine. The crime is a level 2 felony if the amount of the drug involved is at least 10 grams.

Before you may convict the Defendant, the State must prove each of the following elements beyond a reasonable doubt:

1. The Defendant

2. Knowingly or intentionally possessed, with intent to deliver,

3. Methamphetamine, and

4. The amount of the drug involved was at least 10 grams.

Appellant's App. Vol. 2, pp. 200, 212 (emphasis added); see also Tr. Vol. 2, pp. 199-200.

[23] Blackwell observes that, pertinent to the charges in this case, Indiana Code section 35-48-4-1.1 defines dealing in methamphetamine as:

(a) A person who ․

(2) possesses, with intent to:

(A) deliver; or

(B) finance the delivery of;

methamphetamine, pure or adulterated; commits dealing in methamphetamine.

Therefore, he objected to the instruction because the instruction contained a “knowingly or intentionally” mens rea element not included in Indiana Code section 35-48-4-1.1. The charges, which were also read to the jury, also included the “knowingly or intentionally” mens rea. Appellant's App. Vol. 2, p. 198.

[24] Blackwell argues that he has been convicted of a crime that does not exist in the Indiana Code, and, in support of that argument, he relies on Jackson v. State, 84 N.E.3d 706 (Ind. Ct. App. 2017), aff'd in relevant part and vacated in part by 105 N.E.3d 1081 (Ind. 2018). In that case, the defendant argued that his criminal gang enhancement charge was not consistent with the language of Indiana Code section 35-50-2-15(b)(1). Id. at 710. That statute required the State to prove, in pertinent part, that Jackson was “knowingly or intentionally ․ a member of a criminal organization ․” Id. (citing I.C. § 35-50-2-15(b)(1)). The State's original charging information tracked the language of the statute, but three days before trial, the State was allowed to amend the charge to read that Jackson “ ‘was a known member of a criminal gang ․’ ” Id. (record citation omitted).

[25] On appeal, we agreed with Jackson's argument that the trial court committed fundamental error when it allowed the State to amend the criminal gang enhancement allegation. Id. at 713-14. We explained that

the amended charge omits a material element from the statute, namely, the mens rea. And the amended charge adds an element that is not within the statute, namely, that Jackson was “a known member” of a criminal gang. Appellant's App. Vol. II at 97.

As a result of those changes, the amended charge is substantially different from the statutory language and carries a wholly different meaning. For example, under the language of the State's amended charge, the State needed only to show that someone believed Jackson to be a member of a criminal gang. But the Indiana Code demands that Jackson knowingly or intentionally was a member of a gang. I.C. § 35-50-2-15(b)(1). Thus, it is not enough under the statute that some third parties might have believed Jackson to be a member of a gang; Jackson's membership must have been real and the result of his knowing or intentional conduct. In other words, being a known member of a gang is not equivalent to knowingly or intentionally being a member of a gang. The amended charge did not state an allegation under the criminal gang enhancement statute.

Id. at 711-12 (footnote omitted). Ultimately, our court concluded that, “[i]n its operation and effect, the amended charge poisoned the well as it skewed the evidence and argument and caused the defendant to be tried for and defend against an offense that does not exist under the statute.” Id. at 714.

[26] Here, the charges and the instructions tendered to the jury do not track the language of Indiana Code section 35-48-4-1.1(a).³ But taking Blackwell's argument to its logical conclusion, we would have to conclude that a person could be convicted under section 35-48-4-1.1(a) if the person's possession of methamphetamine was not knowing or intentional. This would yield an absurd result given the State's burden to prove beyond a reasonable doubt that the person possessed methamphetamine with intent to deliver or finance the delivery of methamphetamine. I.C. § 35-48-4-1.1(a); see also Pigott v. State, 219 N.E.3d 808, 811 (Ind. Ct. App. 2023). The trial court also tendered an instruction to the jury defining actual and constructive possession. Appellant's App. Vol. 2, p. 218. That instruction provided, in pertinent part, that “[a] person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it.” Id. (emphases added). Finally, unlike the defendant in Jackson, Blackwell does not claim that the discrepancy between the statutory language and the instructions affected the presentation of his evidence and/or defense. For all of these reasons, we reject Blackwell's argument that the jury instructions allowed the jury to find him guilty of a non-existent crime, and Blackwell has not established reversible error in this regard.

III. The variance between the prior conviction listed in the habitual offender allegation and the evidence presented at trial was not fatal.

[27] Finally, Blackwell argues that we should reverse the habitual offender adjudication because there is a fatal variance between the charging information and the proof presented at trial.⁴ The purpose of a charging information is to advise the defendant of the particular crime being alleged so that he can prepare his defense. Myers v. State, 510 N.E.2d 1360, 1366 (Ind. 1987). A variance is an essential difference between the charging instrument and the proof presented at trial. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999). But a variance between the charging information and the evidence admitted at trial will not be fatal to a conviction unless the defendant can show that he was misled in the preparation and maintenance of his defense. See, e.g., Martin v. State, 528 N.E.2d 461, 465 (Ind. 1988); Harmon v. State, 518 N.E.2d 797, 798 (Ind. 1988).

[28] Pursuant to Indiana Code section 35-50-2-8, and pertinent to this appeal, “[t]he state may seek to have a person sentenced as a habitual offender for a felony by alleging ․ that the person has accumulated” two prior unrelated felony convictions and at least one of the prior convictions is not a Level 6 felony or Class D felony. The State alleged that Blackwell was a habitual offender because he was convicted of two Level 6 felonies and the following unrelated offense at issue here:

On or about 02/06/2005, Defendant committed the felony offense of Possession of Cocaine or a Narcotic Drug, Class C Felony. On or about 09/13/2005, Defendant was convicted and sentenced of the same under cause number 49G50-0209-FB-227864 ․

Appellant's App. Vol. 2, p. 60.

[29] To prove the Class C felony, the State relied on Exhibits 18 and 19. See Tr. Vol. 2, pp. 230-33; Ex. Vol., pp. 24-30. Exhibit 18 contained a charging information under nearly the same cause number listed in the habitual offender allegation.⁵ However, that charging information does not match the allegation in the habitual offender charge. The charging information in Exhibit 18 alleged that on September 5, 2002, Blackwell committed Class B felony possession of cocaine. Ex. Vol., p. 25. The State also submitted an abstract of judgment dated September 13, 2005. But the court issued that abstract of judgment to modify Blackwell's sentence for the Class B felony in case number 49G20-0209-FB- 227864. Id. at 24. The abstract lists September 13, 2005, as the “modification date” and notes that Blackwell was originally sentenced for Class B felony possession of cocaine or a narcotic drug on October 28, 2003. Id. In the sentencing comments, the abstract notes “probation revoked. Cause #05019125 is consecutive to this cause.”⁶ Id. The State also submitted Exhibit 19, which is the arrest report for offenses committed by Blackwell on September 5, 2002. On that date, he was arrested in Indianapolis for possession of cocaine on school property, dealing in cocaine, and possession of marijuana on school property.

[30] Without question, there is a variance between the charging information and the proof presented at trial. The State did not prove that Blackwell was convicted of C felony possession of cocaine or a narcotic drug on September 13, 2005, as alleged in the habitual offender count. Instead, the State proved that Blackwell was convicted of B felony possession of cocaine on October 28, 2003, and that, on September 13, 2005, Blackwell's probation was revoked and his sentence on that conviction was modified.

[31] But we must also consider whether Blackwell was misled in the preparation and maintenance of his defense. See Martin, 528 N.E.2d at 465. During trial, Blackwell objected to admission of State's Exhibit 18, the abstract of judgment for the sentence modification on the Class B felony because of the variance between the charging information and the information supplied by Exhibit 18. Tr. Vol. 2., pp. 222-23. Blackwell also moved for a directed verdict on the habitual offender allegation because of the variance between the charge and the proof presented at trial. Id. at 225.

[32] However, Blackwell did not argue to the trial court that the variance misled him in the preparation and maintenance of his defense. And, while Blackwell states in his brief that he was misled “about what he had to defend against[,]” that is the extent of his argument. See Appellant's Br. at 42. Blackwell was still required to argue and establish that the variance misled him and affected the presentation of his defense, which he did not do. Finally, we observe that Blackwell had personal knowledge of his prior convictions. The charging information listed the case number for the Class B felony,⁷ and his sentence for that conviction was modified on the date charged. Ultimately, the State proved that Blackwell had two prior and unrelated convictions sufficient to establish that he was a habitual offender.

[33] For all of these reasons, we are not persuaded by Blackwell's claim that the variance between the pleading and proof was fatal.

Conclusion

[34] Blackwell's warrantless arrest did not violate Article 1, Section 11, and therefore, the trial court did not abuse its discretion when it admitted his post-arrest statements into evidence. Blackwell also has not established that the challenged jury instructions warrant reversal of his dealing in methamphetamine conviction. Finally, the variance between the pleading and proof on the habitual offender allegation was not fatal.

[35] Affirmed.

FOOTNOTES

1.   Blackwell attempts to raise this argument under the guise of a pretextual traffic stop. But Trooper Wilson stopped Blackwell for the purpose of arresting him. It is therefore irrelevant that the officer did not observe Blackwell commit a traffic infraction.

2.   The State claims that Blackwell waived his Article 1, Section 11 argument at trial. We do not agree. During trial, Blackwell argued that the traffic stop violated both the Fourth Amendment and Article 1, Section 11. Tr. Vol. 2, p. 100. Specifically, Blackwell claimed that there was no probable cause or reasonable suspicion to believe that he was involved in a crime when Trooper Wilson stopped him. Id. Blackwell also argued that the trooper had no reason to stop or detain Blackwell under the “totality of the circumstances.” Id.

3.   Blackwell also relies on McKinley v. State, 45 N.E.3d 25 (Ind. Ct. App. 2015), trans. denied, in which the defendant challenged an instruction that included the word “knowingly” as an element of the offense for possession of cocaine with the intent to deliver. Id. at 28. However, the precise issue raised in that appeal was whether the trial court committed fundamental error when it tendered the instruction to the jury because the “ ‘crime requires specific intent rather than mere ‘knowing’ conduct.’ ” See id. at 29 (record citation omitted). Our court concluded that the appellant had not established fundamental error, see id. at 31, and Blackwell's reliance on the case does not support his claim of reversible error.

4.   The State claims that Blackwell waived this argument by failing to present it to the trial court. We do not agree. Blackwell objected to the admission of these exhibits because the documents in the exhibits did not “match” the C felony predicate offense listed in the habitual offender allegation. Tr. Vol. 2, pp. 222-23. Blackwell also requested a directed verdict for the same reason, i.e. the evidence relied on by the State to prove the enhancement did not “match” the charging information. Id. at 225-27.

5.   The abstract of judgment lists the “court identifier” as 49G20 but the habitual offender allegation incorrectly lists the “court identifier” as 49G50. See Ind. Administrative Rule 8(B)(1). We agree with the State that this is simply a scrivener's error.

6.   After the jury trial but before sentencing, the probation department prepared the presentence investigation report, which discloses that, on February 7, 2005, Blackwell was arrested and charged with two counts of Class C felony possession of cocaine under cause number 49G20-0502-FC-19125. See Appellant's App. Vol. 3, p. 9. This appears to be the offense that caused Blackwell's probation to be revoked in the Class B felony case discussed above. Id. at 8-9.

7.   We do not believe that the scrivener's error was significant enough to prevent Blackwell from identifying the correct case number. Further, we note that Blackwell does not argue on appeal that the variance here amounted to a due process error.

Mathias, Judge.

Judges Foley and Felix concur. Foley, J., and Felix, J., concur.