Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 1 of 28

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

Kimberly A. Jackson

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kenneth Lee Neville, Jr.,

Appellant-Defendant/Cross-Appellee,

v.

State of Indiana,

Appellee-Plaintiff/Cross-Appellant.

July 25, 2017

Court of Appeals Case No.

49A02-1606-CR-1447

Appeal from the 

Marion Superior Court

The Honorable

James Kevin Snyder, 

Judge Pro Tempore

Trial Court Cause No.

49G20-1410-F3-49424

Kirsch, Judge.
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[1] Following a jury trial, Kenneth Lee Neville, Jr. (“Neville”) was convicted of 

Level 3 felony dealing in a narcotic drug,1 Level 4 felony unlawful possession of 

a firearm by a serious violent felon,2 Level 5 felony possession of a narcotic 

drug,3 and Class C misdemeanor operating a motor vehicle without ever 

receiving a license,4 and he was adjudicated to be a habitual offender.5 The trial 

court vacated Neville’s convictions for unlawful possession of a firearm by a 

serious violent felon and for possession of a narcotic drug based on double 

jeopardy concerns. Neville appeals and raises the following two restated issues:

I. Whether the trial court abused its discretion when it admitted 

evidence obtained during a traffic stop of a vehicle Neville was 

driving without a license; and

II. Whether the State presented sufficient evidence to convict 

him of dealing in a narcotic drug.

The State cross-appeals and raises the following restated issue:

III. Whether the trial court erred when it vacated Neville’s 

conviction for unlawful possession of a firearm by a serious 

violent felon.

 

1

See Ind. Code § 35-48-4-1(a)(2).

2

See Ind. Code § 35-47-4-5(c).

3

See Ind. Code 35-48-4-6(a).

4

See Ind. Code § 9-24-18-1.

5

See Ind. Code § 35-50-2-8.
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[2] We affirm.

Facts and Procedural History

[3] Around 7:30 p.m. on October 23, 2014, Indianapolis Metropolitan Police 

Department Detective Sergeant Brady Ball (“Detective Ball”) was seated in his 

marked police vehicle, surveilling a home associated with an individual named 

Joey Milton (“Milton”), who was a person of interest in a homicide 

investigation. Detective Ball was parked several blocks away from the home

and observed the home through binoculars. Detective Ball saw two men who 

generally fit Milton’s physical description, along with a female and three 

children, get into a car parked in the driveway at the residence and drive away. 

Detective Ball followed the vehicle.

[4] Detective Ball attempted to check the license plate of the vehicle, a Lincoln, but 

there was a tinted cover over the paper license plate, and he could not see the

expiration date or some of the letters or numbers on the license plate due to the 

tinting and because it was nighttime and headlights bounced off the plate. At 

some point, Detective Ball’s car was stopped behind the Lincoln at an 

intersection, and he attempted to run a computer search on what he thought 

were the letters and numbers on the Lincoln’s license plate but found that he 

did not have the correct letters and numbers in his search. Because the license 

plate was not visible, Detective Ball initiated a traffic stop of the Lincoln, which

pulled into a gas station, and Detective Ball pulled in behind it. Detective Ball 

exited his vehicle and when he was about five or six feet from the Lincoln, he 

could see the license plate and he radioed it to dispatch. He then walked to the 
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Lincoln and made contact with the driver, Neville, and noted to Neville and the 

occupants that he stopped the Lincoln because it had a tinted cover on the 

license plate, making it not visible. In the front passenger seat was Neville’s

girlfriend, Amanda Lee (“Lee”), and in the back seat was Milton, who is 

Neville’s brother. Three minor children were also in the car. 

[5] Detective Ball asked Neville for his driver’s license, and Neville responded that 

he did not have one and had never applied for one, but he provided Detective 

Ball with an identification card. Detective Ball learned that Lee and Milton 

also did not possess a driver’s license. Neville and Lee told Detective Ball that 

the car belonged to Lee. Lee explained that she had purchased the car recently 

and that it had come from the dealer with the tinted plate cover. Detective Ball 

asked Neville to step out of the vehicle. Detective Ball showed Neville the 

tinted plate cover, and at Detective Ball’s instruction, Neville sat on the back 

bumper of the Lincoln as Detective Neville returned to his police vehicle.

[6] Detective Ball conducted a search on the information he had received and 

confirmed that Neville never had a license and that Milton was the person that 

the Violent Crimes Unit was investigating for a homicide. Detective Ball 

confirmed that the license plate belonged to a vehicle owned by Lee and was 

registered to her at the address Detective Ball had been surveilling. Detective Ball 

asked for backup officers. 
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[7] After backup officers arrived, Detective Ball handcuffed Neville’s hands behind 

his back.

6

 In the process of removing items from Neville’s pockets, Detective 

Ball felt the exterior of Neville’s pants in the pockets and crotch area, and he 

detected lumps that Detective Ball believed to be “dope.” Tr. Vol. III at 703; 

State’s Ex. 2 at 16:03. After advising Neville that he was going to retrieve the 

lumps that he had felt, Detective Ball reached down the front of Neville’s pants 

and pulled from under his scrotum area and in his underwear a package of what 

he at that time believed to be a package of cocaine and a package of heroin. 

During this time, Neville protested that Detective Ball was in his pants, and 

stated that he felt violated and that Detective Ball was violating his 

constitutional rights. Neville suggested that Detective Ball had no authority to 

search him and asked repeatedly why it was necessary for Detective Ball to 

touch him, stating, “You stopped me for driving.” Detective Ball replied, “I 

did, and I’m arresting you for driving.” State’s Ex. 2 at 18:36.

[8] Detective Ball placed the narcotics on the trunk of the Lincoln, and he then 

looked inside the vehicle and popped open an armrest on the driver’s side door 

and found a loaded handgun. Neville told Detective Ball that it was not his car, 

and he did not know the gun was there. Detective Ball told Neville, “You’re 

going to jail,” read him his Miranda rights, and told Neville that he was under 

 

6 At or near this time, other officers removed Milton from the car and handcuffed him. 
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arrest. Id. at 23:33-24:47. Neville’s wallet contained $1,243 in cash. Police 

seized the cash and towed the vehicle.

[9] In October 2014, the State charged Neville with Count I, dealing in a narcotic 

drug while in possession of a firearm, a Level 3 felony; Count II, unlawful 

possession of a firearm by a serious violent felon, a Level 4 felony; Count III, 

possession of a narcotic drug and a firearm, a Level 5 felony; and Count IV,

operating a motor vehicle without ever receiving a license, a Class C 

misdemeanor. In March 2016, the State added a habitual offender count.

[10] In March 2016, Neville filed a Motion to Suppress – Traffic Stop (“Motion to 

Suppress”), alleging that the traffic stop violated his rights under the Fourth 

Amendment and Article I, Section 11 of the Indiana Constitution.

7

 Neville 

contended that the search of his person and the vehicle were not valid because 

(1) the stop was not valid, and (2) he was not arrested until after the searches, so 

the searches were not incident to his arrest. 

[11] At a hearing on the Motion to Suppress, Detective Ball acknowledged that the 

traffic stop was “pretextual” and was related to the residence, as he had been 

surveilling the home and watched the two men get in the vehicle and leave. Tr. 

Vol. III. at 689. He also testified that the license plate had a tinted cover, it was 

dark outside, and he could not read the license plate until he was out of his 

vehicle and standing five or six feet from it at the gas station. He testified that 

 

7 Neville also filed a Motion to Suppress Statements, which he later withdrew.
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Neville was driving the car, that he did not have, and had never had, a driver’s 

license, and that no adult in the car had a driver’s license. Detective Ball 

testified that after getting Neville’s identification, he returned to his police car 

and called dispatch with the information. He stated that he decided to arrest 

Neville for operating a motor vehicle without a license, and he requested back 

up assistance. 

[12] During Detective Ball’s testimony at the hearing, the State presented an audio 

recording of the traffic stop, taken by Detective Ball (the Audio Recording”). 

State’s Ex. 2. When the assisting officers arrived, Detective Ball can be heard 

telling them that Neville was “arrestable” and that he intended to “hook him 

up,” meaning arrest him, to gain access to the car. State’s Ex. 2 at 14:39-42; Tr. 

Vol. III at 743. Detective Ball can be heard instructing Neville to face the 

Lincoln and place his hands on the truck, and handcuffing sounds are audible. 

Detective Ball stated that he felt lumps, not part of Neville’s body, and he 

advised Neville that he was going to retrieve what he felt. The tape reveals 

Neville’s repeated protests of Detective Ball’s search of him and Detective Ball’s 

responses. Later, Detective Ball told Lee that her car was going to be towed, 

and Lee stated that she did not know about the drugs or the handgun and that 

they did not belong to her. 

[13] Detective Ball testified that, in searching Neville, he reached down the front of 

Neville’s pants, not the back of Neville’s pants as Neville alleged, and he 

retrieved the bag of what he believed to be narcotics and placed them on the 

trunk of the Lincoln. He then looked in the Lincoln and found inside the 
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driver’s side door armrest a handgun. He told Neville that he was under arrest 

and read the Miranda rights to him. 

[14] Defense called several witnesses at the hearing: Lee; Neville’s sister, Kentia 

Neville (“Kentia”), who arrived at the scene during the search, and Neville. 

Lee videotaped with her cell phone some of the search, which happened at the 

back of the Lincoln, from her position in the front seat of the car. That video 

was admitted into evidence over the State’s objection. Defense Ex. C. Kentia 

testified that she saw Neville being searched when she arrived at the gas station.

[15] The trial court issued an order, denying the motion to suppress:

1. The Defendant was stopped and detained as a result of a valid

traffic stop on October 23, 2014.

2. Detective Sergeant Brady Ball followed a tan Lincoln vehicle 

driven by Defendant and attempted to run the temporary paper 

plate affixed to the rear of the vehicle; however, Detective 

Sergeant Ball, who testified under oath, was unable to read the 

numbers or expiration date on the paper plate due to a tinted 

plate cover obstructing his view.

3. That this obstruction violated I.C. 9-18-2-26 and gave 

Detective Sergeant Ball a valid reason to stop the vehicle, despite 

the admitted pretextual nature of the stop.

4. Despite the absence of averments in Defendant’s Motion to 

Suppress-Traffic Stop alleging an unlawful search of Defendant’s 

person, the parties agreed to hear further evidence during the 

May 17, 2016, hearing as to the validity of the search of 

Defendant’s person following the traffic stop.
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5. Upon validly stopping the tan Lincoln, the Defendant was 

found in the driver’s seat and had never received a driver’s 

license; this gave Detective Sergeant Ball probable cause to arrest 

Defendant for a crime.

6. Therefore, the subsequent search of Defendant’s person was 

lawful incident to his arrest for that crime.

7. Thus, any and all items seized from the Defendant’s person are

admissible into evidence.

Appellant’s App. Vol. II at 91-92. The trial court also denied Neville’s motion to 

reconsider.

[16] Neville re-asserted his motion to suppress Neville’s statements prior to the start 

of trial. During the course of trial, Neville objected to the admission of 

evidence arising from the alleged illegal traffic stop and unconstitutional 

searches. The trial court overruled the objections and renewed its denial of the 

motion to suppress evidence from the traffic stop. Tr. Vol. I at 171. When the 

State attempted to introduce the gun found during the search of the Lincoln, the 

trial court conducted a supplemental suppression hearing outside the presence 

of the jury, and the trial court again denied Neville’s motion to suppress. Tr.

Vol. II at 276, 303.

[17] Forensic testimony was presented that the bags retrieved from Neville during 

the traffic stop contained 4.16 grams of heroin and 24.29 grams of Doxylamine, 

an anti-histamine that is often used to “cut” controlled substances. Tr. Vol. I at 
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220-21, 229; Tr. Vol. II at 350-51; State’s Exs. 16, 17, 18. Neville’s DNA was 

found on the gun. Tr. Vol. II at 396.

[18] The jury found Neville guilty on Counts I through IV. Neville waived his right 

to have a jury determine his status as a serious violent felon and habitual 

offender. After hearing evidence, the trial court found Neville to be a serious 

violent felon and a habitual offender. Based on the jury’s finding that Neville

unlawfully possessed a firearm, the trial court found Neville committed 

possession of a firearm by a serious violent felon. Tr. Vol. III at 615. At the

sentencing hearing, the trial court vacated the conviction for possession of a 

firearm by a serious violent felon, due to double jeopardy concerns.

8

 Id. at 671; 

Appellant’s App. Vol. II at 22-25. It imposed an eleven-year sentence for dealing 

in a narcotic drug, enhanced by ten years for the habitual offender finding, and 

a concurrent sixty-day sentence for operating a vehicle without ever receiving a 

license. Neville now appeals.

Discussion and Decision

I. Admissibility of Evidence

[19] Neville claims that the traffic stop and ensuing searches violated his federal and 

state constitutional rights and that the trial court erred when it denied his 

motion to suppress and, thereafter, admitted into evidence the items found 

 

8 The trial court also vacated Neville’s conviction for possession of a narcotic drug, as a lesser-included 

offense of the dealing conviction. Tr. Vol. III at 671. The trial court’s decision to vacate the possession 

conviction is not at issue in this appeal. 
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during the searches. Because Neville’s case proceeded to trial, where he 

renewed his objection to the admissibility of the seized evidence, his appeal “is 

better framed as a request to review the trial court’s ruling on its admissibility.” 

Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). A trial court has broad 

discretion to rule on the admissibility of the evidence. Jarrell v. State, 818 

N.E.2d 88, 91 (Ind. Ct. App. 2004), trans. denied. We review its rulings “for 

abuse of that discretion and reverse only when admission is clearly against the 

logic and effect of the facts and circumstances, and the error affects a party’s 

substantial rights.” Guilmette, 14 N.E.3d at 40. When an appellant’s challenge 

to such a ruling is predicated on an argument that impugns the constitutionality 

of the search or seizure of the evidence, it raises a question of law, and we 

consider that question de novo. Id. at 40-41 (citing Kelly v. State, 997 N.E.2d 

1045, 1050 (Ind. 2013)).

[20] Neville claims that the traffic stop was illegal and that all evidence arising from 

that stop was inadmissible, and “[e]ven if the traffic stop was not illegal, the 

searches and seizures were.” Appellant’s Br. at 17. He raises claims under the 

Fourth Amendment and Article I, Section 11 of the Indiana Constitution. The 

purpose of the Fourth Amendment is to protect the privacy and property

interests of individuals from unreasonable searches and seizures. Rush v. State, 

881 N.E.2d 46, 50 (Ind. Ct. App. 2008). The protections of the Fourth 

Amendment have been extended to the states through the Fourteenth 

Amendment. Wilson v. State, 966 N.E.2d 1259, 1263 (Ind. Ct. App. 2012), 

trans. denied. Evidence obtained in violation of a defendant’s Fourth 
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Amendment rights may not be introduced against him at trial. Id. A traffic 

stop is a seizure under the Fourth Amendment, so police must possess 

reasonable suspicion that a traffic law has been violated or other criminal 

activity is taking place. Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003). 

Generally, a search or seizure may only be conducted pursuant to a lawful 

warrant. Wilson, 966 N.E.2d at 1263. Because warrantless searches are per se 

unreasonable, the State bears the burden of establishing that a warrantless 

search falls within one of the well-delineated exceptions to the warrant 

requirement. Johnson v. State, 766 N.E.2d 426, 432 (Ind. Ct. App. 2002), trans. 

denied. A search incident to arrest is one such exception. Black v. State, 810 

N.E.2d 713, 715 (Ind. 2004).

[21] Notwithstanding the textual similarity of Article I, Section 11 of the Indiana 

Constitution to that of the federal Fourth Amendment, Section 11 is interpreted 

separately and independently from Fourth Amendment jurisprudence. State v. 

Washington, 898 N.E.2d 1200, 1205-06 (Ind. 2008). Our Supreme Court has 

explained:

The purpose of [Section 11] is to protect those areas of life that 

Hoosiers consider private from unreasonable police activity. The 

Indiana Constitution may protect searches that the federal 

Constitution does not. Section 11 should be applied to protect 

people from unreasonable search and seizure. When police 

conduct is challenged as violating this section, the burden is on 

the State to show that the search was reasonable under the 

totality of the circumstances. The determination of the 

reasonableness of a search and seizure under the Indiana 

Constitution turns on a balance of: 1) the degree of concern, 
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suspicion, or knowledge that a violation has occurred, 2) the 

degree of intrusion the method of search or seizure imposes on 

the citizen’s ordinary activities, and 3) the extent of law 

enforcement needs. 

Id. (citations and quotation omitted).

A. Traffic Stop

[22] Indiana Code section 9-18-2-26 requires license plates to be displayed in a 

position so as to be “clearly visible,” “maintained free from foreign materials 

and in a condition to be clearly legible,” and “not obstructed or obscured by . . . 

accessories, or other opaque objects.” Ind. Code § 9-18-2-26(b)(3)-(5). Indiana 

Code section 9-32-6-11(f) imposes the same requirements on temporary license 

plates. 

[23] Detective Ball testified that he followed the Lincoln for a mile or more to the 

gas station and could not clearly see the letters and numbers and the expiration 

date on the plate due to the tinted plate cover, which no one disputes was on 

the Lincoln. Detective Ball stated that at one point he attempted to conduct a 

license plate search, somewhat guessing at the letters or numbers, but the search

was unsuccessful, since he did not have the correct information. The record 

before us indicates that the tinted cover of the Lincoln’s license plate 

contravened the requirements of Indiana Code section 9-18-2-26. Therefore,

Detective Ball was entitled to stop the Lincoln. See State v. Quirk, 842 N.E.2d 

334, 340 (Ind. 2006) (police officers may stop vehicle when they observe minor 

traffic violations).
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[24] Neville contends that the traffic stop was illegal because, although Detective 

Ball stopped the vehicle for the tinted plate, his stop was pretextual, as his 

intention was to stop the vehicle and speak to Milton, who was being 

investigated for homicide. As Neville, acknowledges, pretextual stops are not 

per se unreasonable, but are subject to greater scrutiny. See Turner v. State, 862 

N.E.2d 695, 700 (Ind. Ct. App. 2007). Neville’s claim, at its core, is that 

Detective Ball’s testimony, regarding his inability to view the plate’s 

information, was not credible. Neville notes that Detective Ball acknowledged 

that he could read the plate when he was out of his vehicle and walking to the 

Lincoln and that a picture taken by the evidence technician at the scene, 

admitted as Defendant’s Exhibit A, illustrates that the plate was visible. 

However, both of those circumstances are from the vantage point of a person 

standing five or so feet from the car, and thus not the same conditions as 

Detective Ball, or anyone else, driving behind the Lincoln. Neville also 

suggests that Detective Ball was not credible, given that he conceded that he 

was surveilling the house and followed the car intending to stop it if he saw a 

traffic violation, in order to speak to Milton. Neville’s arguments are a request 

for us to reweigh the evidence, which we may not do on appeal. Lundquist v. 

State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005). Furthermore, our courts 

have recognized that there is “nothing unreasonable in permitting an officer, 

who may have knowledge or suspicion of unrelated criminal activity . . . to 

nevertheless respond to an observed traffic violation.” Mitchell v. State, 745 

N.E.2d 775, 787 (Ind. 2001); see also Herron v. State, 991 N.E.2d 165, 170-71 

(Ind. Ct. App. 2013) (officers are permitted to stop vehicle when they observe
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traffic infraction, even if officers have independent motive of furthering 

unrelated criminal investigation), trans. denied; Jackson v. State, 785 N.E.2d 615, 

619 (Ind. Ct. App. 2003) (if there is objectively justifiable reason for traffic stop 

then stop is valid “whether or not the police officer would have otherwise made 

the stop but for the ulterior suspicions or motives”), trans. denied. We find that, 

here, the traffic stop was constitutional under both the Fourth Amendment and 

Article I, Section 11.

B. Searches

[25] Neville next contends that even if the stop was valid, the search of Neville, and 

then the car, were not. He claims that the searches violated both the Fourth 

Amendment and Article I, Section 11 of the Indiana Constitution. We address 

each constitutional argument in turn. 

[26] Incident to a lawful arrest, police “may conduct a warrantless search of the 

arrestee’s person.” Gibson v. State, 733 N.E.2d 945, 953 (Ind. Ct. App. 2000). 

An arrest is lawful if it is supported by probable cause. Fentress v. State, 863 

N.E.2d 420, 423 (Ind. Ct. App. 2007)). “The amount of evidence necessary to 

meet the probable cause requirement for a warrantless arrest incident to a 

lawful arrest, is determined on a case-by-case basis, and is less than the level of 

proof necessary to establish guilt beyond a reasonable doubt.” Ross v. State, 844 

N.E.2d 537, 542 (Ind. Ct. App. 2006).

[27] Here, Neville does not deny that his act of driving without a license gave 

Detective Ball probable cause to arrest him for that offense. Rather, Neville’s
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claim is that Detective Ball did not arrest him until after Detective Ball had 

retrieved the drugs from Neville’s underwear, and thus the search was not 

incident to his arrest. We disagree. Detective Ball handcuffed Neville, emptied 

Neville’s pockets, and felt two large lumps in his groin that Detective Ball 

believed was not Neville’s body, but was, instead, “dope.” Tr. Vol. III at 703; 

State’s Ex. 2 at 16:03. Detective Ball advised Neville, “I’m gonna get the dope 

out of your pants.” State’s Ex. 2 at 16:07. When Neville expressed to Detective 

Ball that he did not have the authority to retrieve the drugs, Detective Ball 

stated, “I’m arresting you for driving.” State’s Ex. 2 at 18:36. 

[28] Neville notes that it was after taking the drugs from Neville’s underwear and 

after finding the gun that Detective Ball told Neville, “You’re going to jail,” 

read Miranda rights to Neville, and stated “You’re under arrest.” State’s Ex. 2 at 

23:22-24:46. He argues that, therefore, Detective Ball did not arrest Neville

until after he seized the items, and, consequently, the search was not incident to 

arrest, or, stated differently, the search preceded the arrest. However, the 

Audio Recording reveals that Detective Ball advised Neville that he was going 

to retrieve the drugs from Neville’s pants, and in response to Neville’s protests 

that Detective Ball did not have the authority to do so, Detective Ball told 

Neville, “I’m arresting you for driving.” State’s Ex. 2 at 18:36. 

[29] Moreover, as Neville acknowledges, “[O]fficers do not need to inform an 

accused that he is under arrest for him to actually be under arrest[.]” Appellant’s 

Br. at 28 (citing Fentress, 863 N.E.2d at 423). as “the determination of whether 

a defendant is under lawful arrest depends on whether the officer has probable 
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cause to arrest the person.” Appellant’s Br. at 28 (citing Fentress, 863 N.E.2d at 

423). Under Indiana law, “‘So long as probable cause exists to make an arrest, 

the fact that a suspect was not formally placed under arrest at the time of the 

search incident thereto will not invalidate the search.’” Sebastian v. State, 726 

N.E.2d 827, 830 (Ind. Ct. App. 2000) (quoting Santana v. State, 679 N.E.2d 

1355, 1360 (Ind. Ct. App. 1997)), trans. denied. Probable cause for an arrest 

exists if at the time of the arrest the officer has knowledge of facts and 

circumstances which would warrant a man of reasonable caution to believe the 

suspect has committed the criminal act in question. Fentress, 863 N.E.2d at 420. 

On appeal, Neville claims that he “was not under arrest at the time of the 

search of his person because no reasonable man would believe he had 

committed the traffic offense of which he had been accused.” Appellant’s Br. at 

29. We are not persuaded, as it is undisputed that Neville was driving a vehicle 

with a tinted license plate cover, which Detective Ball testified prevented him 

from viewing the plate’s information, and Neville was driving the car without 

ever having a license. Detective Ball had probable cause for an arrest, and 

although Neville suggests that Detective Ball’s goal was to further investigate 

Milton regarding a murder, Detective Ball’s subjective desire to do so does not 

invalidate Neville’s arrest. We find Detective Ball’s conduct was a valid search 

incident to arrest and did not violate the Fourth Amendment.

9

 

9 Neville also claims that the search of the Lincoln was “equally unconstitutional,” explaining that because 

the discovery of the drugs occurred during an illegal search, there was no probable cause for a warrantless 
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[30] Neville also asserts that the search was invalid under the Indiana Constitution. 

As stated, the legality of a search under the Indiana Constitution “turns on an 

evaluation of the police conduct under the totality of the circumstances.” 

Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). Neville argues that 

Detective Ball used the traffic stop as a pretext to further an investigation of 

Milton, handcuffed Neville, searched him, and “only later advised Neville that 

he was being arrested[.]” Appellant’s Br. at 34. Neville also argues that the 

search of Neville’s person and genital area was “intrusive” and substantial, and 

that the minor driving offenses were not significant and did not justify Detective 

Ball’s actions, arguing, “The record contains no evidence as to why such 

extreme measures were needed simply to ask Milton questions.” Id. at 35. 

Therefore, he claims, the circumstances of the search were unreasonable under 

the Indiana Constitution. We disagree.

[31] After learning that Neville did not possess a driver’s license, nor did any of the 

adult occupants, Detective Ball asked Neville to step out of the car. Detective 

Ball handcuffed Neville, checked Neville’s pockets, and detected large lumps in 

Neville’s front crotch area, which he recognized as not being part of Neville’s 

body and which he suspected to be “dope.” He told Neville that he was going 

to remove the suspected drugs, and Neville said he would remove it himself, a 

proposition that Detective Ball declined. Neville asserted to Detective Ball that 

 

search of the vehicle. Appellant’s Br. at 31. Because we find that the drugs were discovered in a valid search 

incident to arrest, the officers had probable cause to search the vehicle.
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he did not have authority to search Neville and go into his pants, to which 

Detective Ball stated, “I’m arresting you for driving.” State’s Ex. 2 at 18:36. 

Under Indiana law, probable cause for a lawful arrest supports a “full search” of 

the arrested person for weapons or concealed evidence. Garcia v. State, 47 

N.E.3d 1196, 1200 (Ind. 2016). An intrusive search to secure and identify an 

unknown physical object discovered on an arrestee is not unreasonable, 

“provided that it is not extreme or patently abusive.” Edwards v. State, 759 

N.E.2d 626, 629 (Ind. 2001). We reject Neville’s claims that Detective Ball did 

not give any indication of arrest until after he had retrieved the drugs and that 

the record does not indicate any need to search him. Appellant’s Br. at 35. We 

also find that the search was not unduly intrusive, where the evidence most 

favorable to the verdict is that Detective Ball while wearing a glove reached into 

the front of Neville’s pants and retrieved a baggie from inside Neville’s 

underwear and in his groin area, and Neville’s genitals were not exposed. We 

find that under the totality of circumstances the search of Neville was not 

unreasonable and did not violate the protections of the Indiana Constitution.

[32] Accordingly, for the reasons set forth above, the trial court did not abuse its 

discretion when it admitted the evidence obtained during the search of Neville 

and the car he was driving.

II. Sufficiency of the Evidence

[33] Neville asserts that the evidence was not sufficient to convict him of dealing in a 

narcotic drug. Our standard of review with regard to sufficiency claims is well 
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settled. In reviewing a sufficiency of the evidence claim, this court does not 

reweigh the evidence or judge the credibility of the witnesses. Wilson, 966 

N.E.2d at 1265. We consider only the evidence most favorable to the verdict 

and the reasonable inferences drawn therefrom and affirm if the evidence and 

those inferences constitute substantial evidence of probative value to support 

the verdict. Id. A conviction may be based upon circumstantial evidence alone. 

Id. The evidence need not be sufficient to overcome every reasonable 

hypothesis of innocence. Craig v. State, 730 N.E.2d 1262, 1266 (Ind. 2000). We

affirm a conviction if the probative evidence and reasonable inferences drawn 

from that evidence could have allowed a reasonable trier of fact to find the 

defendant guilty beyond a reasonable doubt. Drane v. State, 867 N.E.2d 144, 

147 n.4 (Ind. 2007).

[34] To convict Neville of Level 3 felony dealing in a narcotic drug as charged, the 

State was required to prove that he knowingly possessed between one and five 

grams of heroin with the intent to deliver the heroin while in possession of a 

firearm. Ind. Code §§ 35-48-4-1(a)(2), 35-48-1-16.5. Neville’s argument, in 

addition to the claim that the heroin and firearm were illegally seized and 

wrongfully admitted at trial, is that there was insufficient evidence that he 

intended to deliver the drug. Id. at 40-41. A conviction for possession of a drug 

with intent to deliver it may be supported by either direct or circumstantial

evidence. Wilson, 966 N.E.2d at 1266. Intent involves a person’s state of mind, 

and a factfinder may infer its existence from the surrounding circumstances. Id.
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[35] Under Indiana law, “possessing a large amount of a narcotic substance is 

circumstantial evidence of intent to deliver,” which supports the inference that 

the person intended to deliver it and not consume it personally. Davis v. State, 

791 N.E.2d 266, 270 (Ind. Ct. App. 2003), trans. denied. Detective Gregory 

Kessie (“Detective Kessie”) a narcotics investigator with Indianapolis 

Metropolitan Police Department, who has been involved in thousands of 

narcotics investigations, testified to the differences between what users are often 

found with as opposed to dealers. He stated that users often just carry small 

amounts of money, enough to purchase a small amount of heroin, such as .10 

grams for $10 or .20 grams for $20, and the narcotics found on the user are thus 

packaged in small amounts, whereas the dealer generally has narcotics 

packaged in bulk fashion, and they carry larger amounts of cash. Tr. Vol. II at 

348-49. He testified that, in his experience, he had not encountered a person 

who possessed four grams of heroin strictly for personal use. Id. at 361. He 

also explained that the slang term “cut” means a powdered substance which 

can be mixed with the pure narcotics in order to “stretch the product” and make 

more money and that a person who was strictly a user would want a pure 

product and have no reason to want to dilute it. Id. at 350-51. Detective Kessie 

indicated that a cutting agent could be any powdered substance that could be 

made to appear similar in consistency to the illegal substance and could include 

baby formula, muscle powder, or antihistamine. He testified that users, as 

opposed to dealers, often are found to carry paraphernalia used to ingest the 

drugs. Tr. Vol. II at 347. Detective Kessie also stated that it was common for a 
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narcotics dealer to carry a firearm, to protect their product or themselves. Id. at 

349. 

[36] Neville urges that police found “no tools of the drug trade” such as scales, 

plastic baggies, ledgers, or multiple cell phones, either on him or in the Lincoln. 

Appellant’s Br. at 41. However, the substances that Detective Ball found on 

Neville were over four grams of heroin and twenty-four grams of Doxylamine, 

a legal antihistamine. The police also found a handgun in the armrest of the 

driver’s side door, where Neville was seated, and he had over $1200 in his 

wallet. The handgun was found to have his DNA on it. As the State points 

out, no paraphernalia that would be used to ingest the heroin was found on 

Neville or in the Lincoln, the absence of which could have been used to infer 

dealing rather than using the drugs. See O’Neal v. State, 716 N.E.2d 82, 90 (Ind. 

Ct. App. 1999) (evidence sufficient to infer intent to deal narcotics where 

defendant, who was searched after being arrested in course of traffic stop, was 

found in possession of relatively large quantity of drugs, handgun, and $1,128 

in cash, but not in possession of items associated with dealing such as pager, 

scales, or transaction notes), trans. denied. Based on the record before us, we 

find that the evidence presented at trial was sufficient from which the jury could

have inferred that Neville intended to deliver the heroin.

III. Serious Violent Felon Conviction

[37] The State asserts as a cross-appeal the claim that the trial court erred when it 

vacated Neville’s conviction for unlawful possession of a firearm by a serious 
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violent felon (“UPFSVF”) and that the conviction should be reinstated. Neville 

maintains that the trial court properly vacated his UPFSVF conviction because, 

otherwise, he would be punished multiple times for the same act, which is 

prohibited under Indiana law.

10

[38] “The double jeopardy clause . . . of the Indiana Constitution ‘was intended to 

prevent the state from being able to proceed against a person twice for the same 

criminal transgression.’” Duncan v. State, 23 N.E.3d 805, 814 (Ind. Ct. App. 

2014) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)), trans. denied. 

Conviction of two or more offenses violates the double jeopardy clause of the 

Indiana Constitution “if, with respect to either the statutory elements of the 

challenged crimes or the actual evidence used to convict, the essential elements 

of one challenged offense also establish the essential elements of another 

challenged offense.” Calvert v. State, 930 N.E.2d 633, 641 (Ind. Ct. App. 2010)

(quoting Richardson, 717 N.E.2d at 49) (emphasis in original). Under the actual 

evidence test, the defendant must show that the evidentiary facts establishing 

the elements of one offense also establish all of the elements of the second 

offense. Vandergriff v. State, 812 N.E.2d 1084, 1086 (Ind. Ct. App. 2004) (citing

Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)), trans. denied. “[E]ven if ‘each 

 

10 Neville asserts, as a preliminary matter, that the State was not permitted to pursue the cross-appeal claim 

because vacating a conviction is not expressly identified in Indiana Code section 35-38-4-2 as a matter that 

the State may appeal, and he asks us to not consider the cross-appeal. The State responds that, under Indiana 

law, it may challenge by way of cross-appeal an erroneous sentencing decision – here, an alleged “erroneous 

refusal to impose a conviction and sentence on a lawful jury verdict[.]” State’s Reply Br. at 5. We agree with 

the State that it may pursue their cross-appeal of the trial court’s sentencing decision, and we address the 

cross-appeal on its merits. 
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charge utilizes the same factual event,’ no constitutional violation will be found 

if the second offense ‘requires additional evidentiary facts establishing the 

essential elements.’” Vandergriff, 812 N.E.2d at 1086-87. 

[39] Here, the State charged Neville in Count I with Level 3 dealing in a narcotic 

drug and in Count II with Level 4 unlawful possession of a firearm as a serious 

violent felon. To convict Neville of dealing in a narcotic drug as charged, the 

State was required to prove that Neville (1) knowingly possessed between one 

and five grams of heroin, (2) with the intent to deliver, (3) while in possession of 

a firearm. Ind. Code §§ 35-48-4-1(a)(2), 35-48-1-16.5. With respect to the 

charge of unlawful possession of a firearm by a serious violent felon, the State 

was required to prove that Neville was (1) a serious violent felon, (2) who 

knowingly or intentionally, (3) possessed a firearm. See Ind. Code § 35-47-4-

5(c).

[40] The State argues, and Neville does not appear to disagree, that his convictions 

on Counts I and II do not violate either the actual evidence test or the statutory 

elements test, and, therefore, there was no constitutional double jeopardy 

violation under Richardson. However, Neville correctly observes that “[e]ven 

where no constitutional violation has occurred, multiple convictions may 

nevertheless violate the ‘rules of statutory construction and common law that 

are often described as double jeopardy, but are not governed by the 

constitutional test set forth in Richardson.’” Appellant’s Reply Br. at 16-17; 

Vandergriff, 812 N.E.2d at 1088 (quoting Pierce v. State, 761 N.E.2d 826, 830 

(Ind. 2002)). That is, our courts have recognized that, in addition to 
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constitutional double jeopardy, other categories of double jeopardy based on 

statutory construction and common law prohibit multiple convictions or 

punishments for the same crime. Calvert, 930 N.E.2d at 642 (citing Guyton v. 

State, 771 N.E.2d 1141, 1143 (Ind. 2002)). 

[41] As explained by our colleague in Vandergriff, “these rules fall under broader 

categories set forth by Justice Sullivan in his concurring opinion in Richardson”

and include the following: 

(1) “Conviction and punishment for a crime which is a lesserincluded offense of another crime for which the defendant has 

been convicted and punished;” (2) “Conviction and punishment 

for a crime which consists of the very same act as another crime 

for which the defendant has been convicted and punished;” (3) 

“Conviction and punishment for a crime which consists of the 

very same act as an element of another crime for which the 

defendant has been convicted and punished;” (4) “Conviction 

and punishment for an enhancement of a crime where the 

enhancement is imposed for the very same behavior or harm as 

another crime for which the defendant has been convicted and 

punished;” and (5) “Conviction and punishment for the crime of 

conspiracy where the overt act that constitutes an element of the 

conspiracy charge is the very same act as another crime for which 

the defendant has been convicted and punished.”

812 N.E.2d at 1088 (citing Richardson, 717 N.E.2d at 55-56 (Sullivan, J., 

concurring)).

[42] Here, Neville maintains that the trial court did not err when it vacated his 

UPFSVF conviction because his UPFSVF conviction and his dealing while in 

possession of a firearm conviction were based upon the same act or the “very 
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same behavior” – namely the presence of the handgun in the car he was driving.

This court faced a similar situation in Calvert v. State, where Calvert was 

convicted for possessing a firearm as a serious violent felon and possessing a 

sawed-off shotgun. 930 N.E.2d at 642. The Calvert court found that the two 

convictions “were established by proof of one and the same act: his 

constructive possession of the sawed-off shotgun in the vehicle he was driving,” 

and that even if the convictions did not amount to constitutional double 

jeopardy, “Calvert’s convictions fall under the common law category of double 

jeopardy” that proscribes “[c]onviction and punishment for a crime which 

consists of the very same act as an element of another crime for which the 

defendant has been convicted and punished.” 930 N.E.2d at 642 (emphasis in 

original). Because “Calvert’s conviction of possessing a sawed-off shotgun was 

based on the very same act—his having the sawed-off shotgun in his vehicle—

which formed an essential element of possession of a firearm by a serious 

violent felon[,]” this court reversed and remanded with instruction to vacate 

that conviction and sentence.11 Id. at 642-43.

 

11 In reaching its decision, the Calvert court discussed Alexander v. State, 772 N.E.2d 476, 479 (Ind. Ct. App. 

2002), trans. denied, where the court determined that convictions for unlawful possession of a firearm by a 

serious violent felon and carrying a handgun without a license violated the actual evidence test of the Indiana 

double jeopardy analysis and constituted double jeopardy. See also Jarrell v. State, 818 N.E.2d 88, 93 (Ind. Ct. 

App. 2004) (convictions for possession of firearm by serious violent felon and carrying a handgun without a 

license violated double jeopardy principles, where evidence of constructive possession of handgun found 

under seat during traffic stop was used to prove essential element of possession of firearm by serious violent 

felon and all essential elements of carrying a handgun without a license.)
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[43] In support of its position that the UPFSVF should be reinstated, the State cites 

to Guyton v. State, among other cases. In Guyton, the defendant was convicted 

of both murder and carrying a handgun without a license. 771 N.E.2d at 1143. 

Our Supreme Court found no double jeopardy violation because “‘[c]arrying 

the gun along the street was one crime and using it was another.’” Id. (quoting

Mickens v. State, 742 N.E.2d 927, 931 (Ind. 2001)). We find that Guyton is 

distinguishable, because, here, as in Calvert, Neville’s constructive possession of 

the handgun in the Lincoln was used to convict him for multiple offenses. 

[44] In this case, Neville’s charge for dealing in a narcotic drug was elevated from a 

Level 4 to a Level 3 based on the allegation that Neville possessed a firearm. In 

Duncan, a defendant’s resisting law enforcement conviction was elevated from 

Class A misdemeanor to Class D felony based on an allegation that he “drew or 

used a deadly weapon” while fleeing. 23 N.E.3d at 817. On appeal, Duncan 

asserted that his convictions of attempted battery by means of a deadly weapon, 

resisting law enforcement, and pointing a firearm violated double jeopardy 

principles under the actual evidence test. The Duncan court recognized that 

“[e]ven if we assume there is no double jeopardy violation under the actualevidence test, . . . ‘we have long adhered to a series of rules of statutory 

construction and common law that are often described as double jeopardy, but 

are not governed by the constitutional test set forth in Richardson,’” one of 

which prohibits “[c]onviction and punishment for an enhancement of a crime 

where the enhancement is imposed for the very same behavior or harm as 

another crime for which the defendant has been convicted and punished.” 23 
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N.E.3d at 817 (quoting Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)). 

It continued, “Thus, if we determine that Duncan was convicted and punished 

for the enhancement of resisting law enforcement based on the same behavior 

or harm that forms the basis of his attempted battery by means of a deadly 

weapon conviction, a double jeopardy violation has occurred.” Id. The Duncan

court determined that a double jeopardy violation had occurred in that case 

because the defendant was convicted and punished for the enhancement of 

resisting law enforcement based on “the very same act” – i.e., he fired a gun at 

the officer – that formed the basis of his attempted battery by means of deadly 

weapon conviction. Id. at 818. The Duncan court vacated the defendant’s 

resisting law enforcement conviction based on drawing or using a deadly 

weapon and reduced that conviction to a Class A misdemeanor. Id. at 819.

[45] We conclude that Neville was convicted and punished for the enhancement of 

dealing in a narcotic drug based on the same behavior or harm that forms the 

basis of his UPFSVF conviction, having a handgun in the car. We find that the 

trial court did not err when it vacated Neville’s UPFSVF conviction.12

[46] Affirmed. 

Mathias, J., and Altice, J., concur.

 

12 Neville alternatively asserts that it was not error for the trial court to vacate his UPFSVF conviction 

because the State failed to prove that he is the same person identified in the documents as having been 

convicted of robbery and thus failed to present sufficient evidence that he was a serious violent felon. 

Because we resolve the issue on other grounds, we do not reach Neville’s sufficiency argument.