Zachary Nicholas Whitus, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Zachary Nicholas Whitus appeals the finding that he is an habitual offender. We affirm.

Facts and Procedural History

[2] On August 7, 2024, Lafayette Police Officer Steven Ceballos-Olivas received a dispatch regarding a residential entry and information from an officer who was already at the scene regarding a moped leaving the area. Officer Ceballos-Olivas observed a moped with two people that “went from the roadway onto the sidewalk” and initiated a traffic stop. Transcript Volume II at 39. At some point, Lafayette Police Officer Breighton Phillips arrived at the scene. The moped's driver identified himself as “Zachary Whitus,” and an officer obtained his “ID.” Id. at 65. Whitus gave Officer Ceballos-Olivas consent to search him, and Officer Ceballos-Olivas noticed a baggie containing a crystal-like rock substance he recognized as methamphetamine on the ground next to his left foot and right next to the front wheel of the moped. Later testing revealed that the substance was methamphetamine.

[3] On August 7, 2024, the State charged Whitus with possession of methamphetamine as a level 6 felony under cause number 79D05-2408-F6-689 (“Cause No. 689”). On November 1, 2024, the State alleged that Whitus was an habitual offender. Specifically, the State alleged that Whitus was convicted of: possession of marijuana as a level 6 felony on July 24, 2017, in the Clay Circuit Court under cause number 11C01-1504-F6-254 (“Cause No. 254”); armed robbery as a level 3 felony on or about January 12, 2018, in Tippecanoe County under cause number 79C01-1710-F3-25 (“Cause No. 25”); and possession of methamphetamine as a level 6 felony on or about March 8, 2023, in Tippecanoe County under cause number 79D05-2301-F6-30 (“Cause No. 30”).

[4] Meanwhile, on August 7, 2024, the State filed a petition to revoke probation in Cause No. 30. On August 30, 2024, the State filed another petition to revoke probation in Cause No. 30.

[5] On November 14, 2024, the court held a jury trial in Cause No. 689 at which Whitus appeared with counsel. The State presented the testimony of multiple witnesses including Officer Ceballos-Olivas and Officer Phillips. It also introduced and the court admitted a recording taken from Officer Phillips's body camera. The jury found Whitus guilty of possession of methamphetamine as a level 6 felony.

[6] Whitus waived his right to a jury trial for the habitual offender phase. The prosecutor moved to incorporate the exhibits from the first phase of the trial, and the court granted the motion. The State introduced and the court admitted certified public records of prior convictions. Specifically, State's Exhibit 15 related to Cause No. 25, and State's Exhibit 16 related to Cause No. 30. State's Exhibit 14 related to Cause No. 254 and consisted of the charging information, an Information and Summons, an amended charging information, an affidavit for probable cause, and an abstract of judgment. The charging information, Information and Summons, and amended information in Cause No. 254 listed Whitus's date of birth as August 16, 1994, while the “Affidavit for Probable Cause” referenced “Zachary Whitus DOB 9/22/1988.” Exhibits Volume III at 35.

[7] With respect to State's Exhibit 14, Whitus's counsel argued:

Affidavit for probable cause indicates the State requests a warrant for the immediate arrest of the Defendant Zachary Whitus. Date of birth 9/22/1988. And that's signed by this Zachary Clap, deputy prosecuting attorney. So that identifying information doesn't jive with the Zachary that we have here in this courtroom.

Transcript Volume II at 139. The court took the habitual offender enhancement under advisement and later found the allegation to be true.

[8] On December 17, 2024, the court entered an order under Cause Nos. 689 and 30. With respect to Cause No. 689, the court sentenced Whitus to 365 days for possession of methamphetamine as a level 6 felony and enhanced the sentence by 1,095 days. With respect to Cause No. 30, the court took judicial notice of the jury verdict in Cause No. 689, found the probation violation to be true, and stated that “[f]or each of the petitions to revoke probation in [Cause No. 30]; 30 days on each is ordered revoked and ordered served in the Tippecanoe County Jail, and then probation terminated and filed closed, and consecutive to the sentence in [Cause No. 689] and Circuit Court.” Appellant's Appendix Volume II at 14.

Discussion

[9] Whitus argues that the evidence submitted by the State was insufficient to prove that he was the person convicted in Clay County in Cause No. 254. He asserts that the defendant “in Clay County was named both Zachary Whitus and Zachary Nicholas Whitus.” Appellant's Brief at 9 (citing Exhibits Volume III at 30-37). He points out that State's Exhibit 14 mentions two different birth dates, one of which does not match his birth date. He does not challenge the sufficiency of the evidence with respect to his prior convictions under Cause Nos. 25 and 30.

[10] In reviewing a claim of insufficient evidence, we will affirm unless, considering only the evidence and reasonable inferences favorable to the judgment, and neither reweighing the evidence nor judging the credibility of the witnesses, we conclude that no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Tyson v. State, 766 N.E.2d 715, 717-718 (Ind. 2002).

[11] Ind. Code § 35-50-2-8 provides:

(a) The state may seek to have a person sentenced as a habitual offender for a felony by alleging, on one (1) or more pages separate from the rest of the charging instrument, that the person has accumulated the required number of prior unrelated felony convictions in accordance with this section.

* * * * *

(d) A person convicted of a felony offense is a habitual offender if the state proves beyond a reasonable doubt that:

(1) the person has been convicted of three (3) prior unrelated felonies; and

(2) if the person is alleged to have committed a prior unrelated:

(A) Level 5 felony;

(B) Level 6 felony;

(C) Class C felony; or

(D) Class D felony;

not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) for at least one (1) of the three (3) prior unrelated felonies and the time the person committed the current offense.

[12] In regard to the use of documents to establish the existence of prior convictions, the Indiana Supreme Court has stated:

Certified copies of judgments or commitments containing a defendant's name or a similar name may be introduced to prove the commission of prior felonies. While there must be supporting evidence to identify the defendant as the person named in the documents, the evidence may be circumstantial. If the evidence yields logical and reasonable inferences from which the finder of fact may determine beyond a reasonable doubt that it was a defendant who was convicted of the prior felony, then a sufficient connection has been shown.

Tyson, 766 N.E.2d at 718 (quoting Hernandez v. State, 716 N.E.2d 948, 953 (Ind. 1999) (citations omitted), reh'g denied).

[13] The record reveals that, while the “Affidavit for Probable Cause” under Cause No. 254 requested a “warrant for the immediate arrest of the defendant Zachary Whitus DOB 9/22/1988,” Exhibits Volume III at 35, the charging information and amended charging information under Cause No. 254 listed “Zachary Whitus” with a date of birth of August 16, 1994. Exhibits Volume III at 30, 33 (capitalization omitted). The Information and Summons in State's Exhibit 14 listed Zachary N. Whitus, listed his birth date as August 16, 1994, and described him as a white male with a height of 5’7” and weighing 140 pounds. The trial court was able to observe Whitus in the courtroom as he appeared at trial and compare him to the description provided in the Information and Summons in Cause No. 254. Further, the Information and Summons in Cause No. 254 also listed Whitus's Indiana driver's license number as 3770-15-6260. At the trial in Cause No. 689, Officer Phillips testified that one of the officers read the driver's license number from the ID provided by Whitus. The recording of Officer Phillips's body camera, which was played for the jury and incorporated into the second phase of the trial, shows Whitus handing his ID to one of the officers, and an officer reading the “OLN” numbers of “3770156260.” State's Exhibit 6 at 3:07:57-3:08:02. This number matched the number in the Information and Summons in Cause No. 254.

[14] We also note that Whitus does not challenge the sufficiency of the evidence with respect to his convictions under Cause Nos. 25 and 30. State's Exhibit 15, which relates to Cause No. 25, contains the charging information and affidavit of probable cause that listed Zachary Nicholas Whitus, his date of birth as August 16, 1994, and his “OLN” as 3770-15-6260. Exhibits Volume III at 39, 43. It also included the abstract of judgment for Cause No. 25 which listed Zachary Nicholas Whitus. State's Exhibit 16, which relates to Cause No. 30, contains the charging information and affidavit of probable cause that listed Zachary Nicholas Whitus, his date of birth as August 16, 1994, and his “OLN” as 3770-15-6260. Id. at 51, 54. It included an Incident Report listing Zachary Nicholas Whitus, his date of birth of August 16, 1994, and his ID Number as 3770156260. State's Exhibit 16 also included an abstract of judgment listing Zachary Nicholas Whitus.

[15] We conclude there was sufficient evidence from which the court could have found beyond a reasonable doubt that Whitus was an habitual offender. See Lewis v. State, 554 N.E.2d 1133, 1136-1137 (Ind. 1990) (noting that evidence of the defendant's name, date and place of birth, and physical description was sufficient to establish identification), reh'g denied; Andrews v. State, 536 N.E.2d 507, 509 (Ind. 1989) (affirming the jury's determination that the defendant was an habitual offender and observing that the jury was able to compare the descriptions contained in exhibits with “the defendant himself, present in the courtroom during the trial”).

[16] For the foregoing reasons, we affirm the trial court.

[17] Affirmed.

Brown, Judge.

Judges Bailey and Weissmann concur. Bailey, J., and Weissmann, J., concur.