Bunner v. State

William W. Bunner, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 87A04-1603-CR-521

COURT OF APPEALS OF INDIANA

November 22, 2016

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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

Ivan A. Arnaez

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

Appeal from the Warrick Circuit Court

The Honorable Greg A. Granger, Judge

Trial Court Cause No. 87C01-1508-F2-324

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, William Bunner (Bunner), appeals his convictions for two Counts of dealing in methamphetamine, Level 2 and Level 3 felonies, Ind. Code § 35-48-4-1.1(a)(1), (2)(e)(2); -(d)(1); two Counts of possession of methamphetamine, Level 4 and Level 5 felonies, I.C. § 35-48-4-6.1 (a)(c)(2); -(b)(1); maintaining a common nuisance, a Level 6 felony, I.C. § 35-48-4-13(b)(2); resisting law enforcement, a Level 6 felony, I.C. § 35-44.1-3-1(a)(3), (b)(1)(A); and possession of paraphernalia, a Class C misdemeanor, I.C. § 35-48-4-8.3(b)(1).

[2] We affirm.

ISSUES

[3] Bunner raises two issues on appeal, which we restate as follows:

(1) Whether there was sufficient evidence to establish jurisdiction or venue in Warrick County; and

(2) Whether the trial court abused its discretion in admitting certain testimony.

FACTS AND PROCEDURAL HISTORY

[4] Bunner and Theresa Ritchie (Ritchie) were in a relationship for several years. Around the end of 2014, Ritchie resided with Bunner in his trailer-home at 2833 Old State Road 66 in Newburg, Warrick County, Indiana. By August of 2015, Ritchie moved out of Bunner's trailer and relocated across the street to Jane Schmitt's (Schmitt) house. Because Ritchie was in an on and offrelationship with Bunner, occasionally, Bunner spent some nights with Ritchie at Schmitt's house. Bunner had keys to Schmitt's house.

[5] In January of 2015, the Warrick County Sheriff's Department was investigating Bunner for dealing in methamphetamine. On two different occasions, the officers utilized a confidential informant. Prior to each of the drug buys, phone calls were made to Bunner by the confidential informant to set up the transaction. In the early morning of August 11, 2015, while it was still dark outside, Bunner entered Schmitt's home and woke up Ritchie. Bunner informed Ritchie that he had put some items in the bathroom and mentioned something about an ear box. Bunner also entered Schmitt's bedroom and said something to her. Both women went back to sleep and Bunner was not in the house when they woke up the next morning. Later that morning, several officers from the Warrick County Sheriff's Department arrived at Bunner's trailer to execute a search warrant. Bunner was not home, but the officers detained two other individuals.

[6] When Detective Greg Flowers (Detective Flowers) initially arrived at Bunner's trailer, he observed a gold Ford Ranger parked outside Schmitt's house. However, when he exited Bunner's trailer to get some supplies from his vehicle to continue with his search, he saw that the gold Ford Ranger was no longer there. Over the radio, Detective Flowers heard Detective Tim Pierce (Detective Pierce) state that "he was travelling east bound on State Road 66 behind a gold Ford Ranger." (Tr. p. 51). Detective Flowers abandoned the search and left to track the Ford Ranger. Because there was a lot of radio traffic, DetectiveFlowers lost track of Detective Pierce's trail, so he turned his vehicle around and started driving back to Bunner's trailer. Moments later, Detective Flowers saw Bunner, who was driving the gold Ford Ranger, pass him in the opposite direction. Detective Flowers observed that Bunner was yelling something and motioning his hand up and down. Detective Pierce was following behind with his lights and siren activated. Upon seeing this, Detective Flowers spun his vehicle around and again joined in the chase. Bunner eventually stopped his vehicle in a driveway. However, instead of staying inside his vehicle, Bunner exited and started walking toward Detective Pierce who was also exiting his vehicle. Detective Pierce drew his gun, pointed it toward Bunner, and ordered him to lie down on the ground. Bunner refused to comply; instead, Bunner continued approaching Detective Pierce while hollering insults. With the assistance of Detective Flowers and another officer, Bunner eventually complied and was subsequently detained.

[7] At Bunner's trailer, the officers recovered items associated with the sale and use of methamphetamine, including a glass plate with a white crystal-like substance on it, razor blades, glass pipes, cut straws, and several plastic bags with the corners cut off. After searching Bunner's trailer, the officers went to Schmitt's home to talk to Ritchie. Schmitt answered the door and informed the officers that they would need a warrant to search her bedroom space. Ritchie, on the other hand, invited the officers to conduct a limited search of her bedroom. During the search, Ritchie would "open up a drawer and then she'd close it real (sic) quick before [the officers] could actually look in and see [] what's goin'on." (Tr. p. 205). Because the limited search of Ritchie's bedroom did not yield anything, the officers obtained a warrant to search Schmitt's home. In the bathroom, the officers found an earwax removal kit with a brass tube, as well as a small plastic bag holding approximately 1.61 grams of methamphetamine. In and around the nightstand in Schmitt's bedroom, the officers located a plastic bag containing approximately 7.93 grams of methamphetamine, a digital scale, a coffee filter, glass pipes, approximately four grams of marijuana, a marijuana grinder, and a marijuana smoke pipe. Schmitt claimed that those items did not belong to her. In Ritchie's bedroom, the officers retrieved a cup containing several syringes.

[8] On August 12, 2015, the State filed an Information, charging Bunner with Count I, dealing in methamphetamine, Ind. Code § 35-48-4-1.1(a)(1), (d)(1), a Level 3 felony; Count II, possession of methamphetamine, I.C. § 35-48-4-6.1(a), (b)(1), a Level 5 felony; Count III, maintaining common nuisance, I.C. § 35-48-4-13(b)(2), a Level 6 felony; Count IV, resisting law enforcement, I.C. § 35-44.1-3-1(a)(3), (b)(1)(A), a Level 6 felony; Count V, possession of marijuana, I.C. § 35-48-4-11(a)(1), a Class B misdemeanor; Count VI, possession of paraphernalia, I.C. § 35-48-4-8.3(b)(1), a Class C misdemeanor; Count VII, dealing in methamphetamine, I.C. § 35-48-4-1.1(a)(1), (2)(e)(2), a Level 2 felony; Count VIII, possession of methamphetamine, I.C. § 35-48-4-6.1(a)(c)(2), a Level 4 felony; and Count IX, possession of marijuana I.C. § 35-48-4-11(a)(1), a Class A misdemeanor. In addition, the State filed an Information alleging Bunner to be an habitual substance offender. On December 21, 2015, the Stateamended Counts I and VII by altering the address of the offenses from Bunner's trailer to Schmitt's house.

[9] On January 4 through January 5, 2016, the trial court conducted a bifurcated jury trial. The first phase of the trial involved Counts I through VI. At the close of the evidence, the jury found Bunner guilty of Count I, dealing in methamphetamine, a Level 2 felony; Count II, possession of methamphetamine, a Level 5 felony; Count III, maintaining a common nuisance, a Level 6 felony; Count IV, resisting law enforcement, a Level 6 felony; and Count VI, possession of paraphernalia, a Class C misdemeanor. The jury acquitted Bunner of Count V, possession of marijuana, a Class B misdemeanor. The second phase of Bunner's trial involved Counts VII through IX and his habitual substance offender Count. Because Bunner had indicated that he would plead guilty to the remaining Counts if the jury returned guilty verdicts on Counts I through VI, the State dismissed Count IX, possession of marijuana. Accordingly, the trial court proceeded to conduct a guilty plea hearing for Counts VII and VIII. After the factual basis was established, Bunner pleaded guilty to those Counts, and to being a habitual offender. The trial court subsequently accepted Bunner's guilty plea and set a sentencing hearing for February 5, 2016.

[10] At the sentencing hearing, the trial court merged Bunner's Count I, dealing in methamphetamine, a Level 3 felony; Count II and VII, possession of methamphetamine, Level 4 and Level 5 felonies; with Count VII, dealing in methamphetamine, a Level 2 felony. Accordingly, the trial court sentencedBunner to an executed twenty-five-year sentence. Bunner's Count VII dealing in methamphetamine conviction was enhanced by fifteen years due for the habitual offender adjudication. In addition, the trial court sentenced Bunner to concurrent sentences of two years for resisting law enforcement, one year for maintaining a common nuisance, and sixty days for possession of paraphernalia. In sum, Bunner received an aggregate sentence of forty years.

[11] Bunner now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

[12] Bunner contends there was insufficient evidence to establish either jurisdiction or venue in Warrick County, Indiana. Our standard for reviewing sufficiency of the evidence claims is well settled. Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999). We do not reweigh the evidence or judge the credibility of the witnesses, and it lies within the jury's exclusive province to weigh conflicting evidence. Robinson v. State, 699 N.E.2d 1146, 1148 (Ind. 1998). We will affirm the trial court if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt....