Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019 Page 1 of 15

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

Ronald K. Smith

Public Defender

Muncie, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Supervising Deputy 

Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

James Willie Tabb,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 4, 2019

Court of Appeals Case No.

18A-CR-1886

Appeal from the Delaware Circuit 

Court

The Honorable Thomas A. 

Cannon, Jr., Judge

Trial Court Cause No. 

18C05-1605-F2-4 

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1886 | June 4, 2019 Page 2 of 15

Case Summary and Issues

[1] Following a jury trial, James Tabb was convicted of three counts of dealing in a 

narcotic drug—one Level 2 felony and two Level 4 felonies. He was sentenced 

to twenty-nine and one-half years with six years suspended to probation. On 

appeal of his convictions, Tabb raises two issues: 1) whether the trial court 

abused its discretion when it admitted evidence found following a police stop; 

and 2) whether the evidence was sufficient to support his convictions. 

Concluding the trial court did not err and the evidence is sufficient, we affirm.

Facts and Procedural History

[2] On April 19 and April 25, 2016, a confidential informant (“CI”) working for the 

Muncie Police Department (“MPD”) arranged to buy heroin from Michelle 

Knight. The CI informed MPD that Knight “was who we were gonna buy off 

of but [Knight] gets her dope from . . . a subject . . . that she only knows . . . as 

James and that he drives a blue van.” Transcript of Evidence, Volume I at 80. 

Knight was a heroin addict who purchased heroin “[p]robably every other day 

or so, sometimes every day, sometimes every other day[.]” Tr., Vol. II at 107. 

Knight purchased heroin from Tabb for herself and she would sometimes act as 

a “go between” for Tabb and other buyers. Id. at 109.

[3] On April 19, the CI called Knight and asked if Knight could “get a fifty” of 

heroin for her, meaning fifty dollars’ worth of heroin. Id. at 112-13. Knight 

called Tabb and asked him to bring the heroin to her. The CI came to Knight’s 
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apartment to await the delivery and drove Knight to a nearby gas station where 

Knight bought a soda. They then returned to the parking lot of Knight’s 

apartment until a blue van arrived. When Tabb arrived, Knight “got in the

van[,] . . . [Tabb] handed [a bag] to me, . . . I took what I wanted out of it and 

sealed it back, and then I got out of the van and gave it” to the CI. Id. at 116.

Officer Bret Elam was conducting surveillance of the controlled buy and he 

observed that while Knight and the CI waited in the parking lot for Tabb to 

arrive, several other people were milling about the area. When the van pulled 

in, those people lined up at the passenger side window. After Knight left the 

van, the people in line “would go to the window and as they would walk away 

from the window the next person would go to the window[.]” Tr., Vol. I at 

206. Officer Elam contacted his supervisor who was going to stop the van 

when it left the parking lot, but the supervisor got a flat tire and the stop was 

never made.

[4] On April 25, the CI again called Knight and asked if she could get some heroin. 

The CI told MPD that Knight would have to get the heroin from someone else 

as before. Knight contacted Tabb and was directed to come to his house. The 

CI picked up Knight and they went to Tabb’s house where they saw Tabb and 

his associate, William Jackson, carrying grocery bags back and forth from a 

blue van. Officer Elam and Officer Keith Benbow were conducting surveillance 

of the controlled buy and also saw Tabb moving between the van and the 

house. When Tabb was done, he and Knight got into the van, Tabb handed her 

a bag of heroin, Knight handed him money, took her cut of heroin out of the 
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bag, and returned to the CI to give her the bag. Knight and the CI then drove 

back to Knight’s apartment. Following the April 25 controlled buy, Officer 

Tyler Swain and other MPD officers spoke with Knight several times about 

acting as a confidential informant against Tabb. 

[5] In the early morning of May 6, Tabb and Jackson drove from Muncie to 

Chicago and picked up George Neloms, another associate of Tabb’s. Neloms 

had known Tabb for about thirty years and Jackson for about one year. The 

three first stopped at a spot Neloms knew as a place to buy or sell drugs because 

he had bought drugs there before. Tabb exited the van and Neloms saw Tabb 

speak to a man from whom Neloms had purchased drugs in the past. Tabb 

then returned to the van, poured some heroin onto a plate, crushed it, and cut it 

with another substance. The three men snorted the heroin that Tabb prepared

before leaving. They then drove to Muncie, stopping at a gas station along the 

way to get gas and snacks and snort more heroin.

[6] Also on May 6, Knight again met with Officer Swain. While they were 

together, Knight received a phone call indicating a shipment of heroin was 

coming into Muncie. Knight did not provide information about who was 

bringing the drugs or when. Nonetheless MPD wanted to set up a controlled 

buy using Knight as the CI, but “if we could not get a controlled buy we were at 

least going to attempt a traffic stop of the shipment.” Tr., Vol. I at 98. Officer 

Elam went to a location near Knight’s apartment to conduct surveillance while 

Officer Swain attempted to pull together a controlled buy. “At that particular 

point the only plan we had was we’d just go see who it was [bringing the 
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heroin], what they were driving, and go from there[.]” Id. at 212. As Officer 

Swain drove to Knight’s residence, he saw a blue van drive by and relayed that 

information by police radio. Officer Elam then saw the blue van arrive in the 

parking lot at Knight’s apartment. Knight got into Tabb’s van, secured some 

heroin, and exited. As before, a line of people formed on the passenger side 

when the van pulled in. When the blue van drove away, Officer Elam lost sight 

of it. Other officers who had been called to the area located the van and Officer 

Howell, who was the only officer involved who was in uniform and driving a 

marked car, conducted a traffic stop.

[7] Officer Howell approached the driver’s side of the van and Officer Benbow, 

who was wearing his police identification on a lanyard around his neck, went to 

the front passenger window. As Officer Swain approached the van from the 

passenger side, he saw through tinted windows movement in the back seat: “I 

could tell it was somebody had made a real furtive movement kind of down[.]” 

Id. at 110. Officer Benbow also saw both the driver and the backseat passenger 

put their hands down toward the floor despite orders to keep their hands where 

officers could see them. Officer Swain stepped onto the van’s side rail and 

banged on the backseat side window with his firearm telling the person within 

to show his or her hands. The van sped off with Officer Swain still standing on 

the side rail. Officer Swain, holding onto the luggage rack, slid toward the front 

of the van and was “banging on that window as hard as [he could] to get him to 

stop,” but at a certain point, feeling endangered, he opened fire, shooting out 

the front passenger side window. Id. at 132. Jackson, who was driving, was hit 
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in the arm by the gunfire. The van swerved and Officer Swain was thrown 

from side of the van. 

[8] In the meantime, the other officers were in pursuit of the fleeing van. As 

Jackson turned a corner, Neloms tumbled out of the van, along with some 

items from the van. Officer Benbow stopped his pursuit of the van to attend to 

him, finding Neloms’ wallet, a phone, various other personal items, and three 

bags of heroin in the grass near him. The heroin weighed nearly thirty grams. 

Neloms admitted to Officer Benbow that he had recently used heroin but 

denied that the heroin found nearby was his. Instead, Neloms said, the drugs in 

the van were controlled solely by Tabb, who had purchased and distributed it. 

[9] Jackson brought the van to a stop in the middle of the street and he and Tabb 

abandoned the van, leaving it running with the doors open. Officer Elam and 

Officer Howell chased after Tabb, telling him numerous times to get on the 

ground and show his hands. Instead, Tabb tried to hide behind a parked car. 

Officer Elam took Tabb to the ground with a front kick and handcuffed him. 

Officer Howell later found Jackson, bleeding from his arm, propped up against 

the wall of a nearby house. With MPD having secured the van’s occupants, the 

Indiana State Police (“ISP”) were called to the scene. ISP Crime Scene 

Investigator Kris Martin took pictures of the scene, specifically of the area 

around where the van was abandoned and Neloms was found on the ground. 

On May 7, ISP Officer John Petro, pursuant to a search warrant, searched the 

blue van which had been towed from the scene. He found more heroin divided 

into individual bags, a pill crusher, and baggies.
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[10] The State charged Tabb with Count 1, dealing in a narcotic drug as a Level 2 

felony and Count 2, possession of a narcotic drug as a Level 3 felony, for the 

events of May 6; Count 3, dealing in a narcotic drug as a Level 5 felony for the 

April 19 controlled buy; and Count 4, dealing in a narcotic drug as a Level 5 

felony for the April 25 controlled buy. The State also filed a notice of intent to 

seek an enhanced penalty on Counts 3 and 4 due to a prior conviction.

[11] During the trial, the State called Officer Swain as its first witness. When he 

reached the point in his testimony that the MPD had stopped the blue van on 

May 6, Tabb objected “to any further testimony concerning the traffic stop or 

anything that happened as a result of this traffic stop, I don’t believe at this 

point that it’s supported by probable cause, at this point there is no indication 

whatsoever that criminal activity—there was reasonable suspicion of criminal 

activity at this time, . . . and that therefore it would be a violation of the – of my 

client’s fourth amendment rights to be free of unreasonable search and 

seizure[.]” Tr., Vol. I at 104-05. The trial court overruled the objection as 

premature, but the trial court noted the defense’s continuing objection to that 

issue. Nonetheless, the defense stated “no objection” each time an item found 

in or near the van was introduced into evidence. See, e.g., id. at 147-49 (State 

offers heroin found near road into evidence); id. at 150-51 (State offers 

laboratory report identifying heroin); id. at 178 (State offers heroin found in 

van); and id. at 178-79 (State offers pill crusher).

[12] The jury returned verdicts of guilty on Counts 1, 3, and 4 but was unable to 

reach a verdict as to Count 2, the possession of a narcotic drug charge. The 
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trial court declared a mistrial as to that count. Tabb then admitted to the 

allegation that he had a prior felony conviction for dealing in a narcotic drug 

and the trial court entered judgment of conviction on Counts 3 and 4 as Level 4 

felonies. Tabb was sentenced to a total of twenty-nine and one-half years. He 

now appeals his convictions. Additional facts will be provided as necessary.

Discussion and Decision

I. Admission of Evidence1

A. Standard of Review

[13] A trial court has broad discretion in ruling on the admissibility of evidence, and 

we review the admission of evidence for an abuse of discretion. Guilmette v. 

State, 14 N.E.3d 38, 40 (Ind. 2014). We will reverse only when admission of 

the evidence is clearly against the logic and effect of the facts and circumstances 

before the court and the error affects a party’s substantial rights. Id. The

ultimate determination of the constitutionality of a search or seizure is a 

question of law that we consider de novo. Carpenter v. State, 18 N.E.3d 998, 

1001 (Ind. 2014). However, we do give deference to the trial court’s 

determination of the facts, which will be overturned only if clearly erroneous. 

 

1 Tabb phrases his issue as whether the trial court erred in denying his “Motion to Suppress the fruits of a 

search resulting from the stop of a motor vehicle[.]” Brief of Defendant-Appellant at 4. However, as noted 

by the trial court when Tabb objected to the introduction of certain evidence during the trial, Tabb did not file 

a pre-trial motion to suppress. See Transcript of Evidence, Volume I at 107 (Tabb’s counsel affirming the trial 

court’s recollection that no motion to suppress had been filed). The issue is therefore whether the trial court 

erred in admitting that evidence at trial.
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Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008). Therefore, we do not reweigh 

the evidence, but consider conflicting evidence most favorably to the trial 

court’s decision. Id.

B. Evidence Arising from the Stop

[14] Tabb argues the trial court erred in admitting evidence obtained as a result of 

the traffic stop on May 6, 2016. Specifically, he argues that the police “lacked 

probable cause to detain Tabb and to search the vehicle in which he was a 

passenger.” Br. of Defendant-Appellant at 8.

[15] Tabb’s objection at trial was that the police did not have reasonable suspicion to 

stop the van in which he was a passenger and that all evidence procured after 

the unreasonable stop should be excluded. See Tr., Vol. I at 104-05. On appeal, 

Tabb seems to have changed tack, as he cites Arizona v. Gant, 556 U.S. 332 

(2009), for the proposition that the search of the van was unreasonable because 

he “was secured and not within reaching distance of a passenger compartment 

at the time of the search.” Br. of Defendant-Appellant at 9. Gant is

distinguishable. 

[16] In Gant, the defendant was arrested for driving with a suspended license, 

handcuffed, and secured in the back of a police car. Police officers then 

searched his car and found drugs in the pocket of a jacket located on the 

backseat. The State offered as a justification for the warrantless search that it 

was a search incident to arrest. The Supreme Court rejected that argument in 

part because the defendant could not have accessed his car to retrieve weapons 
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or conceal evidence at the time of the search. Id. at 335. The Court also noted 

that although “circumstances unique to the automobile context justify a search 

incident to arrest when it is reasonable to believe that evidence of the offense of 

arrest might be found in the vehicle[,]” that possibility did not justify the search 

in Gant because police could not expect to find evidence of driving while 

suspended in the passenger compartment of his car. Id. (citing Thornton v. 

United States, 541 U.S. 615, 632 (2004)). Thus, the search of the defendant’s car 

was unreasonable. Id. at 351; see also Hathaway v. State, 906 N.E.2d 941, 945

(Ind. Ct. App. 2009) (citing Gant in holding warrantless search of defendant’s 

vehicle was unreasonable when the stop was premised on failing to properly 

signal a turn and having windows that were tinted too dark and the driver was 

out of the car and under arrest for driving while suspended when the search was 

conducted because there was no need to search the car to find and preserve 

evidence connected to the crime of driving while suspended), trans. denied. 

[17] Here, the stop was initiated on the suspicion that the occupants were dealing 

drugs out of the van and it was therefore reasonable to believe the van 

contained evidence of that offense. But the more crucial distinction between 

this case and Gant is that the on-site search in this case was limited to items 

found in open view on the ground around the scene; the search of the van was 

conducted a day later pursuant to a search warrant.2

 

2 Officer Petro clearly stated at trial that “[o]n the following day, on May 7, 2016, I served a search warrant 

on a vehicle that was located at the second crime scene[.]” Tr., Vol. I at 167. The “second crime scene” he 
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[18] As for the stop itself, the Fourth Amendment permits an officer to “stop and 

briefly detain a person for investigative purposes if the officer has a reasonable 

suspicion supported by articulable facts that criminal activity may be afoot, 

even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 

(1989) (internal quotation omitted). Here, the police had reasonable suspicion 

supported by articulable facts that criminal activity might be afoot on May 6. A 

CI working with MPD told officers that her contact was Knight but that Knight 

gets her drugs from someone named James who drives a blue van. On two 

occasions prior to May 6, officers surveilling a controlled buy saw Knight enter 

a blue van and exit with heroin that she passed on to the CI. On one of those 

occasions, officers saw a line of people form at the blue van and after Knight 

left the van, those people went one at a time to the window for a few seconds 

and when they walked away, the next person stepped up to the window. On 

May 6, officers learned from Knight that a shipment of heroin was headed to 

Muncie. A short time later, officers saw the blue van pull into Knight’s parking 

lot, saw Knight get into and out of the van, and again saw a line of people form 

at the passenger side, like when “the ice cream truck pulls in, the whole 

neighborhood flocks to the van.” Tr., Vol. I at 212. Thus, the stop immediately 

after the van left the parking lot was supported by reasonable suspicion, as the 

facts known to the officers at the time of the stop, “together with the reasonable 

 

referred to was the scene where the van had been abandoned in the street on May 6 and had been 

photographed by Officer Martin on that date. However, neither party in its brief acknowledges that a search 

warrant was procured for the search of the van or addresses how that impacts the analysis.
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inferences arising from such facts, would cause an ordinarily prudent person to 

believe that criminal activity has occurred or is about to occur.” State v. 

Gladney, 793 N.E.2d 264, 268 (Ind. Ct. App. 2003), trans. denied. In other 

words, the information available to the police at the time of the stop caused 

them to reasonably believe the van was being used to store and deal drugs.

[19] During the stop, the occupants of the van did not comply with police orders, 

officers saw furtive movements within the van, and the van ultimately drove

away. When the van finally came to a stop, Tabb ran away and tried to hide. 

Both flight and furtive gestures are suspicious behaviors. See Person v. State, 764 

N.E.2d 743, 748 (Ind. Ct. App. 2002) (noting unprovoked flight upon noticing 

the police is certainly suggestive of wrongdoing) (quoting Illinois v. Wardlow, 

528 U.S. 119, 125 (2000)), trans. denied; Walls v. State, 714 N.E.2d 1266, 1267 

(Ind. Ct. App. 1999) (noting furtive movements, among other things, are 

suspicious behaviors), trans. denied. And finally, when Neloms was thrown 

from the van, bags of heroin fell out with him. Officers had probable cause at 

that point to believe the van contained additional contraband. And yet, they 

waited to search the van until the next day after procuring a warrant. Neither 

the stop nor the search violated Tabb’s Fourth Amendment rights.3

 

3 Tabb briefly invokes Article 1, section 11 of the Indiana Constitution in his brief, but as he made no state 

constitutional argument at trial, he has waived any such argument on appeal. See Negash v. State, 113 N.E.3d 

1281, 1290 (Ind. Ct. App. 2018) (holding defendant waived state constitutional claim because “[i]t is wellsettled in Indiana that a defendant may not argue one ground for objection at trial and then raise new 

grounds on appeal”).
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II. Sufficiency of the Evidence

A. Standard of Review

[20] When reviewing the sufficiency of the evidence required to support a criminal 

conviction, we do not reweigh the evidence or judge the credibility of the 

witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider only 

the evidence supporting the verdict and any reasonable inferences that can be 

drawn therefrom. Morris v. State, 114 N.E.3d 531, 535 (Ind. Ct. App. 2018), 

trans. denied. Thus, we consider conflicting evidence most favorably to the 

verdict. Silvers v. State, 114 N.E.3d 931, 936 (Ind. Ct. App. 2018). “We will 

affirm if there is substantial evidence of probative value such that a reasonable 

trier of fact could have concluded the defendant was guilty beyond a reasonable 

doubt.” Bailey, 907 N.E.2d at 1005. It is not necessary for the evidence to 

overcome every reasonable hypothesis of innocence; it is sufficient if an 

inference may reasonably be drawn from the evidence to support the verdict. 

Silvers, 114 N.E.3d at 936.

B. Evidence of Dealing

[21] Tabb was convicted of Count 1, possessing at least ten grams of heroin with 

intent to deliver on May 6, 2016; Count 3, knowingly or intentionally delivering 

heroin on April 19, 2016; and Count 4, knowingly or intentionally delivering 

heroin on April 25, 2016. He argues the evidence was insufficient to find him 

guilty because the “only evidence directly implicating Tabb in the alleged drug 

deals of April 19 and April 25, 2016 was the vague testimony of Michelle 
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Knight,” and her testimony was inherently unreliable because she is an 

admitted drug addict and was granted leniency in her own criminal case for her 

testimony against Tabb. Br. of Defendant-Appellant at 11. He also argues the 

testimony of Neloms was vague and “replete with inconsistencies and 

contradictions.” Id. 

[22] The State’s evidence showed Tabb was in constructive possession of nearly 

thirty grams of heroin on May 6, and that he had baggies and a pill crusher for 

dividing and distributing the heroin. The evidence further showed that he 

actually did deliver some of the heroin on that date to Knight. The State’s 

evidence also showed that on April 19 and 25, he delivered heroin to Knight

that she in turn passed along to a CI. 

[23] Tabb’s argument is a request that we reweigh the evidence and find Knight and 

Neloms’ testimony lacking. However, the credibility of witnesses is left to the 

jury and we do not reweigh the evidence or judge the credibility of the witnesses 

for ourselves. See Bailey, 907 N.E.2d at 1005. Moreover, Knight’s addiction 

and her arrangement for testifying were squarely before the jury and they chose 

to credit her testimony, as is their prerogative. And as to Neloms’ allegedly 

inconsistent and contradictory testimony, to the extent Tabb is attempting to 

claim his testimony is incredibly dubious, the argument is waived as he has 

failed to develop this challenge. See Ind. Appellate Rule 46(A)(8)(a); Burnell v. 

State, 110 N.E.3d 1167, 1171 (Ind. Ct. App. 2018). Furthermore, as Neloms’ 

was not the sole witness, the incredible dubiosity rule is inapplicable. See Moore 
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v. State, 27 N.E.3d 749, 756 (Ind. 2015). The evidence produced by the State is 

sufficient to support his convictions.

Conclusion

[24] The trial court did not err in admitting evidence arising from the stop and 

search that occurred on May 6, 2016, and the State presented sufficient 

evidence to prove beyond a reasonable doubt that Tabb committed the crimes 

alleged. Tabb’s convictions are therefore affirmed.

[25] Affirmed.

Baker, J., and Najam, J., concur.