Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018 Page 1 of 12

ATTORNEY FOR APPELLANT

Mark K. Leeman

Leeman Law Office

Logansport, 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

Jacob Lee Silvers,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 7, 2018

Court of Appeals Case No.

18A-CR-1126

Appeal from the Cass Superior 

Court

The Honorable James K. 

Muehlhausen, Judge

Trial Court Cause No.

09D01-1711-F6-433

Vaidik, Chief Judge.

Case Summary

[1] Jacob Lee Silvers was convicted of several drug-related crimes. He now 

appeals, arguing that the trial court erred in denying his motion to continue the 
Court of Appeals of Indiana | Opinion 18A-CR-1126 | December 7, 2018 Page 2 of 12

trial and that the evidence is insufficient to support two of his convictions. The 

State concedes that the evidence is insufficient to support one of the 

convictions. Although we reverse that conviction and remand for resentencing, 

we affirm the trial court on the other issues.

Facts and Procedural History

[2] In October 2017, Silvers and Rachelle Gerhart were romantically involved and 

regularly used drugs together, including heroin, methamphetamine, and 

marijuana. On October 31, Rachelle, driving her silver Pontiac Grand Am, and 

Silvers picked up Dustin Ecklebeck, and the trio drove to Kokomo to purchase 

heroin from Dustin’s dealer. After purchasing the heroin, Rachelle and Silvers 

dropped off Dustin at his house. As they dropped him off, Silvers’s mother,

Michelle (who was staying at Dustin’s house), ran out of the house yelling at 

them not to leave her because her boyfriend (Scott Powers) had just called the 

police. Tr. Vol. II p. 193. Silvers ordered Rachelle, who was preparing a 

needle to inject herself with heroin, to drive away without his mother; however, 

he changed his mind and told Rachelle to wait on her. When Michelle got in 

the car, she was “frantic.” Id. 

[3] At about the same time, Cass County Sheriff’s Deputy Scott Turney received a 

dispatch to be on the lookout for a silver Pontiac Grand Am. Shortly 

thereafter, Deputy Turney passed a silver Pontiac Grand Am. As he passed the 

car, the three occupants—two females and one male—all stared at him, which 

was unusual. When Rachelle, Silvers, and Michelle saw the brake lights on the 
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police car illuminate, Silvers and Michelle ordered Rachelle to “hurry up and 

go.” Id. at 194. Deputy Turney radioed another officer in the area, Detective 

Thomas Heflin, that the Grand Am had just passed him and that he was going 

to turn around to catch up to it. Detective Heflin positioned himself to 

intercept the car and waited. Soon thereafter, Detective Heflin observed the

Grand Am abruptly pull into a Quonset hut (a semi-circle building made of 

sheet metal, commonly used during World War II). Detective Heflin pulled in 

behind the car and activated his emergency lights. Silvers exited the front 

passenger-side door and fled on foot but was soon apprehended. 

[4] The Grand Am was searched, and numerous items were found, including a 

burnt marijuana cigarette in the front passenger-side door and a blue plastic 

straw with white residue in the center console (Exhibit 5). Officers also found a 

Ziploc bag containing brown residue (Exhibit 12) and a spoon (Exhibit 8) in 

Rachelle’s purse as well as a rock of heroin on her person (Exhibit 6). It was 

later determined that Exhibit 5 contained heroin, Exhibit 6 contained heroin 

and cocaine, and Exhibit 12 contained heroin. Ex. 18 (lab results). 

[5] The State ultimately charged Silvers with Count 1: Level 6 felony possession of 

cocaine (for the heroin that also contained cocaine, Exhibit 6), Count 2: Class 

A misdemeanor resisting law enforcement, Count 3: Class B misdemeanor 

possession of marijuana, Count 4: Class B misdemeanor visiting a common 

nuisance, Count 5: Class C misdemeanor possession of paraphernalia (straw or 

spoon), and Count 6: Level 6 felony possession of a narcotic drug (heroin). 
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[6] Silvers was in the Cass County Jail while awaiting trial. On the morning of 

March 5, 2018, the day before the jury trial was set to begin, the Cass County 

jail commander gave the deputy prosecutor an updated recording of Silvers’s 

jail calls on CD. When the deputy prosecutor began listening to the calls, he 

recognized defense counsel’s voice. The deputy prosecutor turned off the 

recording and went to the Cass County Prosecutor. After consulting the 

Indiana Prosecuting Attorneys Council, the State requested a hearing, which

was held later that day. During the hearing, the deputy prosecutor told the trial 

court that when he started listening to the first call on the CD, he recognized 

defense counsel’s voice “within a few seconds.” Tr. Vol. II p. 5. He then 

“immediately” stopped the recording and moved on to the second call. He 

listened to a “few seconds” of that call and again recognized defense counsel’s 

voice. Id. He then stopped the recording. The deputy prosecutor told the trial 

court that he heard “nothing of substance relating to the case” and that he 

wanted to give the CD, which was the only copy that he was aware of, to the 

trial court for safekeeping. Id. The trial court told the parties that since it had 

heard nothing that appeared to affect the trial, the matter would be more fully 

addressed at trial the next day. Later that night, Silvers filed a motion to 

dismiss the charges based on the State’s “outrageous conduct” in recording 

protected attorney-client conversations. Appellant’s App. Vol. II p. 86. 

[7] The next day, the parties met for a continued hearing as well as for a hearing on 

Silvers’s motion to dismiss. In addition, Silvers orally requested a continuance 

so that he could depose the jail commander, “anybody else at the jail that’s 
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listening to these conversations,” and “everyone at the prosecutor’s office who 

may have listened to this.” Tr. Vol. II p. 15. The State then presented evidence 

of how conversations are recorded in the Cass County Jail. First, an inmate 

can place a phone call in the cell pod; these phone calls are recorded (unless the 

phone call is to an attorney who has asked the jail to have his/her phone 

number blocked from recording). Second, there is a public visitation room, 

where visitors can see the inmates through plexiglass and talk to them using a 

phone; these calls, which are set up for ten minutes, are audio recorded. Last, 

there is an attorney meeting room where attorneys can privately meet with their 

clients; these conversations are not audio recorded. 

[8] Regarding the specifics of this case, the jail commander testified under oath that 

on the morning of Monday, March 5, he “pulled” Silvers’s calls from Friday 

through the weekend and gave them to the deputy prosecutor. Id. at 32. He 

verified that the CD was not blank by clicking on the first file. As soon as he 

heard the advisement that the call may be recorded, he stopped the CD and did 

not listen to any more. Id. at 33, 38. He did not listen to any of the substance

of the calls. Id. at 39. The assistant jail commander—the only other person 

with access to the system that records the calls—testified under oath that in 

helping the prosecutor’s office figure out in this case the wording of the

advisements for each type of call, he listened to the CD up to the point where 

the advisement started and then “hit stop.” Id. at 53. He also did not listen to 

any of the substance of the calls. Id. Defense counsel cross-examined both 

witnesses. In addition, the State admitted an affidavit from the deputy 
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prosecutor, who said that he “did not hear anything substantively about the 

case during the few seconds the recording was played” and that he “stopped the 

playback immediately upon recognizing the defense attorney was on the call.” 

Ex. 1A. The deputy prosecutor also said that he has “no specific knowledge of 

any other person listening to the CD in question. Neither [his] co-counsel nor 

other individuals in the Cass County Prosecutor’s Office have listened to the 

CD.” Id. 

[9] At the end of the hearing, the trial court denied Silvers’s motions to dismiss and 

to continue:

[The jail commander] and [assistant jail commander] are the only 

two at the jail that would have had an opportunity to hear it, 

both of them denied hearing it. [T]hen it was transmitted to [the 

deputy prosecutor], I have his affidavit saying that he didn’t 

listen to it and nobody else in the Prosecutor’s office listened to 

it. So what’s left? 

Tr. Vol. II p. 58. 

[10] The jury trial then began, and Silvers was found guilty as charged. The day 

after trial ended, the parties, pursuant to a stipulation reached before the case 

was submitted to the jury, returned to the courtroom so that the State could 

introduce evidence to supplement the record regarding the jail recordings. Tr. 

Vol. III p. 6. According to the stipulation, the evidence was to be treated if it

was admitted into evidence at the time the trial court ruled on Silvers’s motions 

to dismiss and to continue. Id. at 25-26. The jail commander testified that 

upon further investigation, he learned that on Friday, March 2, defense counsel 
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went to the Cass County Jail and asked to speak with Silvers, but the attorney 

meeting room was in use at the time. Id. at 9; Ex. 31 (audio recording of 

defense counsel talking on a speaker to someone in the control room and asking 

to speak with Silvers). Defense counsel was told that he would have to use a 

phone in the public visitation room, and defense counsel agreed to talk to 

Silvers there. Tr. Vol. III p. 9; Ex. 32 (video of defense counsel meeting Silvers 

in public visitation room on Friday). Defense counsel then cross-examined the 

jail commander. Finally, the State admitted Exhibit 30, which is the CD that 

the jail commander made of Silvers’s calls. Tr. Vol. III pp. 8, 15, 24. Defense 

counsel did not object to the admission of Exhibit 30. Indeed, defense counsel 

invited the trial court to listen to Exhibit 30. Id. at 15 (defense counsel: “what 

matters is what is on the tape which you have number 30 which was between” 

defense counsel and Silvers). According to Exhibit 30, there are two calls 

between Silvers and his attorney in the public visitation room on Friday, March 

2: one starting at “14[:]39[:]28” and lasting exactly ten minutes (the longest 

each call can be due to the recording system) and the other starting at 

“14[:]49[:]41” and lasting four minutes. Ex. 30 (emphases added); see also Tr. 

Vol. II p. 45 (deputy prosecutor explaining that the CD contained ten calls, only 

two of which involved defense counsel). 

[11] A sentencing hearing was later held, and the trial court sentenced Silvers to 912 

days for Count 1, 365 days for Count 2, 180 days for Count 3, 180 days for 

Count 4, 60 days for Count 5, and 912 days for Count 6. The court ordered 
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Counts 1, 2, and 3 to be served consecutive to each other and concurrent to the 

other counts, for an aggregate term of 1457 days. 

[12] Silvers now appeals.

Discussion and Decision

[13] Silvers raises two issues on appeal. First, he contends that the trial court erred 

in denying his motion to continue. Second, he contends that the evidence is 

insufficient to support his convictions on Counts 1 and 5. 

I. Motion to Continue

[14] Silvers first contends that he was “deprived of due process when the trial court 

denied his motion for a continuance.” Appellant’s Br. p. 12. Specifically, 

Silvers argues that although the CD contains two calls between him and his 

attorney, there was only evidence admitted about one of the calls and therefore 

he was entitled to a continuance to investigate the second one. Silvers’s starting 

premise that there was only evidence admitted about one of the calls is 

incorrect. Both the jail commander and the assistant jail commander—the only 

two people with access to the system—testified that they did not listen to any of 

the calls on the CD. Silvers vigorously cross-examined both witnesses. The 

deputy prosecutor also submitted an affidavit, which provided that he did not 

listen to any substance on the CD and that no one else in the prosecutor’s office 

had listened to the CD at all. Although Silvers was not able to cross-examine 

the deputy prosecutor, he was able to make argument to the trial court and 
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respond to the deputy prosecutor’s claims. See Tr. Vol. II pp. 7-8, 13-15, 22-24; 

see also id. at 7 (defense counsel saying that he believed the deputy prosecutor 

when he said that did not listen to the calls). Moreover, according to Exhibit 

30, defense counsel had only one conversation with Silvers in the public 

visitation room on March 2. The conversation was broken up into two calls 

because of the ten-minute time limit imposed by the recording system. In other 

words, the second call was merely a continuation of the first call. Accordingly, 

because the circumstances of both calls are the same and these circumstances 

were fully explored below, Silvers was not entitled to a continuance to 

investigate the second call. 

[15] We share Silvers’s concern that the recording procedures at the Cass County 

Jail allowed a confidential communication between an attorney and his client 

to be captured and preserved. However, the issue we must decide here is 

whether the recording prejudiced Silvers. The evidence shows that the deputy 

prosecutor quickly brought this matter to the attention of the trial court, the 

incident was explored on three separate occasions below, and there is no 

indication that anyone listened to the substance on the CD. Cf. State v. Taylor, 

49 N.E.3d 1019 (Ind. 2016) (addressing police officers’ and prosecutor’s 

eavesdropping on a criminal suspect’s pre-interrogation consultation with his 

lawyer—during which they overheard information regarding both evidence and 

strategy—and declining to adopt a remedy of blanket suppression of the 

witnesses’ testimony). We therefore affirm the trial court. 
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II. Sufficiency of the Evidence

[16] Silvers next contends that the evidence is insufficient to support his convictions 

for Level 6 felony possession of cocaine and Class C misdemeanor possession 

of paraphernalia. In reviewing the sufficiency of the evidence supporting a 

conviction, we consider only the probative evidence and reasonable inferences 

supporting the verdict. Wilson v. State, 39 N.E.3d 705, 716 (Ind. Ct. App. 

2015), trans. denied. We do not reweigh the evidence or assess witness 

credibility. Id. We consider conflicting evidence most favorably to the 

verdict. Id. We will affirm the conviction unless no reasonable fact-finder 

could find the elements of the crime proven beyond a reasonable doubt. Id. It 

is not necessary that the evidence overcome every reasonable hypothesis of 

innocence. Id. The evidence is sufficient if an inference may reasonably be 

drawn from it to support the verdict. Id.

A. Possession of Paraphernalia

[17] Silvers argues that the evidence is insufficient to prove Class C misdemeanor 

possession of paraphernalia. In order to convict Silvers of this offense, the State 

had to prove that he knowingly or intentionally possessed a straw or spoon that 

he intended to use for introducing a controlled substance into his body. 

Appellant’s App. Vol. II p. 140; see also Ind. Code § 35-48-4-8.3(b)(1). Silvers

asserts that “there is no evidence he used a straw or spoon to ingest a controlled 
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substance.” 1 Appellant’s Br. p. 17. At trial, Rachelle testified that the straw 

found in the center console (Exhibit 5) was used to snort heroin. Tr. Vol. II p. 

209. Indeed, heroin residue was found in the straw. Rachelle also testified that 

while she preferred to inject her heroin, Silvers snorted his. In fact, Rachelle 

said that after they purchased the heroin from Dustin’s dealer in Kokomo, 

Silvers “snorted” heroin using a “straw” while she drove. Id. at 206. Although 

it is true that Rachelle couldn’t say for certain whether Silvers used Exhibit 5 to 

snort the heroin, see id. at 209, the jury was entitled to believe that he did. In 

light of all the evidence, it was reasonable for the jury to infer that Silvers 

intended to use the straw to introduce heroin into his body. We therefore 

affirm his conviction on Count 5. 

B. Possession of Cocaine 

[18] Silvers next argues that the evidence is insufficient to prove Level 6 felony 

possession of cocaine because “there is no evidence that [he] knew the heroin 

[that he bought and used] also contained another controlled substance in the 

mixture.” Appellant’s Br. p. 16. The State concedes that the evidence does not 

support this conviction because there is no evidence that Silvers knew the 

heroin also contained cocaine. Appellee’s Br. p. 19. The State asks us to 

 

1 To the extent that Silvers also argues that the evidence is insufficient to prove that he possessed the straw, 

he has waived this issue for failing to provide a cogent argument supported by citations to the record and 

authority. See Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, we find that the evidence easily 

supports a finding that Silvers constructively possessed the straw, as it was found in the center console right 

next to where he was sitting before he ran from the police. 
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remand this case to the trial court for resentencing on the five remaining counts. 

See Kendrick v. State, 947 N.E.2d 509, 514 (Ind. Ct. App. 2011) (explaining that 

“where a defendant is sentenced on multiple counts, he has no legitimate 

expectation of finality in any discrete portion of the sentencing package after a 

partially successful appeal” (quotation omitted)). Silvers does not ask for a 

different remedy. We therefore remand this case to the trial court for 

resentencing. 

[19] Affirmed in part, reversed in part, and remanded.

Riley, J., and Kirsch, J., concur.