Snow v. State

137 N.E.3d 965

Ernest Ray SNOW, Jr., Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 19A-CR-949

Court of Appeals of Indiana.

FILED November 27, 2019

Rehearing Denied February 13, 2020

Attorney for Appellant: Zachary J. Stock, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana

Najam, Judge.

Statement of the Case

[1] Ernest Ray Snow, Jr. appeals his convictions following a jury trial for burglary, as a Level 5 felony; theft, as a Level 5 felony; conversion, as a Level 5 felony; and auto theft, as a Level 6 felony; and his sentence enhancements for committing a felony while a member of a criminal organization and for being a habitual offender. Snow presents three issues for our review:

1. Whether the trial court erred when it admitted evidence that law enforcement officers had seized pursuant to a search of his residence.

2. Whether the State presented sufficient evidence to support his convictions.

3. Whether the criminal organization enhancement violates the prohibition against double jeopardy.

[2] We also address sua sponte whether the trial court's judgment of conviction and sentencing order erroneously lists Snow's convictions.

[3] We affirm and remand with instructions.

Facts and Procedural History

[4] On May 6, 2017, a friend of Snow's introduced him to Robert Fields, a forklift operator at Ingram Micro, a company that distributes mobile devices, including Fitbits and Fitbit accessories. Snow drove a gold-colored Ford F350 truck that day. Fields was interested in buying shoes from Snow, so they exchanged phone numbers. Early the next morning, Snow called Fields, and he told Fields that he would give Fields ten pairs of shoes in exchange for information about security at an Ingram Micro warehouse. Fields described the two "older" people who provided security for the warehouse, and Fields told Snow the "trailer number" for a trailer loaded with Fitbits parked outside the warehouse. Tr. Vol. 2 at 234.

[5] During the early morning hours of May 8, a semi-tractor was stolen from a facility in Plainfield, and that semi-tractor was used to steal the trailer full of Fitbits from Ingram Micro. When Scott Sunderman, an Ingram Micro security manager, learned of the missing trailer, he notified some "off-duty" officers with the Plainfield Police Department, and Sunderman "headed around town" to investigate himself. Id. at 141. The trailer was equipped with a GPS tracking device, and the company that owned the trailer accessed the data for that device, which showed that the trailer had been parked at 3524 Shadeland Avenue between 2:30 and 5:15 a.m. on May 8. The trailer was ultimately found abandoned and empty, and someone had disabled the GPS tracking device.

[6] The next morning, Sunderman drove to the area of 3524 Shadeland Avenue, and he obtained a nearby hotel's exterior surveillance video showing the semi-tractor driving the trailer full of Fitbits to that address, where several businesses are located. After watching the video, Sunderman notified law enforcement about the possible location where the Fitbits had been unloaded. And Sunderman decided to "continue to sit on the location." Id. at 146. Dan Marshall, the director of security for Ingram Micro, joined Sunderman.

[7] At some point, Sunderman and Marshall saw a man arrive at 3524 Shadeland Avenue in a "gold F350 pickup" truck. Id. The man was making several trips between the truck and a business at that address, Caldwell Automotive, carrying boxes that looked like the ones containing the Fitbits from Ingram Micro. Plainfield police officers then obtained a search warrant for Caldwell Automotive. During their subsequent search of the premises, officers found multiple boxes containing Fitbits and Fitbit accessories. Officers also talked to Gregory Street, who leases the premises immediately adjacent to Caldwell Automotive. Street provided the officers with surveillance footage of the exterior of the building from the morning of May 8. That footage showed people moving boxes from the parked trailer into Caldwell Automotive. Street recognized one of the men on the footage as one of his employees, Randy Price. Plainfield Police Department Detective Brian Bugler interviewed Price, who stated that a man named "Snow" had organized the heist and was one of the three to five men who had moved the boxes from the trailer into Caldwell Automotive. Appellant's App. Vol. 2 at 34.

[8] After additional investigation by law enforcement implicated Snow in the theft of the Fitbits from Ingram Micro, officers obtained a search warrant for Snow's residence. When officers executed that warrant, they found seven Fitbits and Fitbit accessories. The Fitbits were identified as having been stolen from Ingram Micro. Officers also obtained warrants to search Snow's cell phone, and they read text messages implicating Snow in the heist.

[9] The State charged Snow with burglary, as a Level 5 felony; theft, as a Level 5 felony; conversion, as a Level 5 felony; and auto theft, as a Level 6 felony.¹ The State also alleged that Snow committed these offenses while he was a member of a criminal organization and that he was a habitual offender. The trial court held a trifurcated trial, and the jury found Snow guilty as charged at the conclusion of each phase.

[10] In its judgment of conviction and sentencing order, the trial court erroneously entered judgment on two counts of burglary, as Level 5 felonies; theft, as a Level 5 felony; and conversion, as a Level 5 felony. The trial court did not enter judgment of conviction on the auto theft count. And the trial court sentenced Snow as follows: concurrent five-year sentences for the two burglary convictions and the theft conviction; a two-year sentence for conversion, to be served consecutive to the other counts; five years for the criminal organization enhancement; and two years for the habitual offender enhancement. Thus, Snow's aggregate sentence is fourteen years executed. This appeal ensued.

Discussion and Decision

Issue One: Search Warrant

[11] Snow contends that the trial court erred when it admitted evidence seized by law enforcement officers during the search of his residence. Snow's argument that the search of his residence violated his constitutional rights raises "questions of law that we review de novo ." Redfield v. State , 78 N.E.3d 1104, 1106 (Ind. Ct. App. 2017) (quotation marks omitted), trans. denied .

[12] On appeal, Snow maintains that the search of his residence was illegal because the search warrant lacked probable cause. We cannot agree. Rather, we conclude that the evidence supports the trial court's determination that sufficient probable cause supported the search warrant. In any event, even if we assume for the sake of argument that Snow is correct and there was no probable cause to support the search warrant, "[t]he lack of probable cause does not automatically require the suppression of evidence obtained during a search conducted pursuant to a warrant." Jackson v. State , 908 N.E.2d 1140, 1143 (Ind. 2009). Indeed, "the exclusionary rule does not require the suppression of evidence obtained in reliance on a defective search warrant if the police relied on the warrant in objective good faith." Id.

[13] Accordingly, to establish reversible error, Snow must demonstrate both the lack of probable cause and the inapplicability of the good faith exception. But, in his appellant's brief, Snow only asserts that the search warrant lacked probable cause. He makes no argument that the good faith exception does not apply. And his attempt to make an argument on the good faith exception for the first time in his reply brief is unavailing. "The law is well settled that grounds for error may only be framed in an appellant's initial brief and if addressed for the first time in the reply brief, they are waived." Monroe Guar. Ins. Co. v. Magwerks Corp. , 829 N.E.2d 968, 977 (Ind. 2005).

[14] There are two situations where the good faith exception does not apply. Jackson , 908 N.E.2d at 1143. Those include situations where "the magistrate is misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth" or situations where "the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. (quotation marks omitted).

[15] As Snow has not addressed good faith in his lead brief on appeal, he has not directed us to any evidence in the record, or made any argument, that the magistrate was misled by information in the affidavit that Detective Bugler knew or should have known was false. See Ind. Appellate Rule 46(A)(8)(a). Neither does he assert that the warrant was so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable. See id. And it is not this Court's place to make arguments for a party on appeal. See Thacker v. Wentzel , 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). Accordingly, Snow has not met his burden on appeal to demonstrate that the trial court erred when it admitted as evidence items seized pursuant to the search of his residence.

Issue Two: Sufficiency of the Evidence

[16] Snow next contends that the State presented insufficient evidence to support his convictions.² Our standard of review on a claim of insufficient evidence is well settled:

For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

Love v. State , 73 N.E.3d 693, 696 (Ind. 2017).

[17] To prove that Snow...