Matt D. Neace v. State of Indiana

In early April 2013, Indiana State Police Sergeant Paul Andry was conducting

an investigation involving Neace. During the investigation, Sergeant Andry

contacted Leah Ewen, who Sergeant Andry suspected had recently been in

contact with Neace. On April 17, Sergeant Andry and Ewen met at Ewen’s

place of employment. At the meeting, Ewen admitted to using

methamphetamine, providing prescription pills to Neace in exchange for

methamphetamine, purchasing pseudoephedrine and other supplies to assist

Neace in the manufacturing of methamphetamine, and witnessing Neace

manufacture methamphetamine. Ewen agreed to assist Sergeant Andry in

locating Neace.

The next day, Ewen—at Sergeant Andry’s direction—began communicating

with Neace via text messaging. Ewen and Neace agreed Neace would provide

a “g” of what both Ewen and Sergeant Andry assumed would be

methamphetamine in exchange for Ewen providing prescription pills and a box

of pseudoephedrine. State’s Exhibit B-14. Ewen and Neace further agreed to

meet at a Family Dollar in New Salisbury, Indiana.

[4] Prior to the exchange, Sergeant Andry searched Ewen’s vehicle and Indiana

State Police Trooper Katrina Smith searched Ewen’s person. No cash or

methamphetamine was discovered in Ewen’s vehicle or on Ewen’s person.

Sergeant Andry explained the plan: “The plan was for [Ewen] to, whenever

Matt got in the car with her, was for her to tell him that the pills and the box of

pseudoephedrine was [sic] in the trunk.” Transcript at 187. Once the pair

exited the vehicle, the police would surround the vehicle and arrest Neace.

[5] After the search, Ewen followed Sergeant Andry to the Family Dollar. The trip

to the Family Dollar took two minutes and Sergeant Andry never lost sight of

Ewen or her vehicle. Upon arrival, Ewen backed the car into a parking spot on

the side of the store as instructed by Sergeant Andry. As they waited, Ewen

recognized Neace drive past the Family Dollar in a green vehicle. Ewen

notified Sergeant Andry, and Sergeant Andry then witnessed the green vehicle

“park next to a silver Escalade that was parked at the Dairy Dip[,]” which was

an ice cream shop near the Family Dollar. A male exited the green vehicle and

entered the Escalade. The Escalade then drove to the Family Dollar and

parked next to Ewen. The police observed Neace exit the Escalade and sit in



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the front passenger seat of Ewen’s vehicle. Thereafter, both Neace and Ewen

exited the vehicle and approached the vehicle’s trunk. At that point, the police

moved in and arrested Neace. The police discovered a bag of

methamphetamine and thirty dollars in cash in the vehicle’s cup holder, and in

Neace’s pocket, a spoon with residue. Police concluded the spoon was

“consistent with drug paraphernalia used to heat up a drug then use it with a

hypodermic needle.” Id. at 121. Afterwards, Sergeant Andry spoke to the

occupants in the green vehicle, who were identified as Amber Collier and Sarah

Bright. They stated they had seen Neace in possession of methamphetamine

much earlier in the day, but they did not know whether he possessed

methamphetamine when he met with Ewen.

[6] The State charged Neace with Count I dealing in methamphetamine, a Class B

felony; Count II possession of methamphetamine, a Class D felony; Count III

possession of paraphernalia, a Class A misdemeanor; and Count IV visiting a

common nuisance, a Class B misdemeanor.1 The State also charged Neace

with being an habitual offender. The State subsequently filed a “Notice to

Introduce 404(b) Evidence,” stating it believed Ewen would testify Neace sold

methamphetamine by way of exchanging methamphetamine for

pseudoephedrine. In addition, the State believed Sergeant Andry would testify

he sought Neace’s whereabouts because Neace had a warrant out for his arrest



1 The State dismissed Count IV before trial. In addition, the State later dismissed the habitual offender enhancement.



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and because Sergeant Andry received information that Neace was

manufacturing and/or selling methamphetamine. Neace filed a motion in

limine to exclude evidence of Neace’s prior alleged misconduct, including his

criminal history, prior arrests, and warrants issued under other cause numbers.

At the hearing on Neace’s motion, the State explained it did not intend to

introduce evidence of Neace’s criminal history, prior arrests, and warrants

issued under other cause numbers unless necessary for rebuttal purposes. The

trial court granted Neace’s motion in that regard.

[7] At trial, the State called several witnesses, including Sergeant Andry and Ewen.

At the conclusion of evidence, the jury found Neace not guilty of dealing in

methamphetamine, but guilty of possession of methamphetamine and

possession of paraphernalia. This appeal ensued.

Discussion and Decision

I. Admission of Evidence

A. Standard of Review

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

on appeal, we will only disturb the ruling if it appears the trial court abused its

discretion. Ealy v. State, 685 N.E.2d 1047, 1049-50 (Ind. 1997). “To preserve

an issue regarding the admission of evidence for appeal, the complaining party

must have made a contemporaneous objection to the introduction of the

evidence at trial.” Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct. App. 2002),



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trans. denied. Here, Neace concedes he did not preserve the alleged error for

review because he failed to object to the evidence at the time it was offered.

[9] In such circumstances, however, a reviewing court may disregard the

defendant’s waiver and reverse the defendant’s conviction if he has

demonstrated the existence of fundamental error. Purifoy v. State, 821 N.E.2d

409, 412 (Ind. Ct. App. 2005), trans. denied. “The ‘fundamental error’ rule is

extremely narrow, and applies only when the error constitutes a blatant

violation of basic principles, the harm or potential for harm is substantial, and

the resulting error denies the defendant fundamental due process.” Id. In other

words, the fundamental error rule requires a defendant “show greater prejudice

than ordinary reversible error because no objection has been made.” Id.

B. Challenged Testimony

[10] Neace argues the trial court committed fundamental error in allowing the State

to elicit testimony from Ewen and Sergeant Andry in violation of Indiana

Evidence Rule 404(b). “Evidence Rule 404(b) specifically bars the admission of

evidence of other crimes, wrongs, or bad acts allegedly committed by the

defendant to prove the defendant’s character, and forbids the use of this kind of

evidence to show that the defendant acted in a manner consistent with that

character.” Wilhelmus v. State, 824 N.E.2d 405, 414 (Ind. Ct. App. 2005). At

trial, the State called Ewen as its first witness. Ewen testified on direct

examination she was originally interviewed by Sergeant Andry on April 17 as

to her alleged “crimes surrounding methamphetamine[.]” Tr. at 29. The State



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did not elicit testimony pertaining to Neace’s alleged prior misconduct. In fact,

it seems the State specifically stopped Ewen from giving testimony that would

likely violate Rule 404(b):

[State:] And when [Sergeant Andry] questioned you, what did you do? [Ewen:] I told him the truth [State:] And what was the truth? [Ewen:] That I had pur -- [State:] Actually, I move to strike that question, Judge.

Id. at 30.

[11] On cross-examination, defense counsel also questioned Ewen about her

conversation with Sergeant Andry, but specifically asked Ewen what crimes she

confessed to Sergeant Andry. Ewen testified she told Sergeant Andry that she

previously assisted Neace in the manufacturing of methamphetamine, sold

Neace prescription pills, sold methamphetamine, and used methamphetamine.

Moreover, defense counsel asked Ewen if Neace was the only individual she

assisted in the manufacturing of methamphetamine, and Ewen stated, “Like in

this situation or at the time period, yes, he was the only one.” Id. at 59.

Finally, defense counsel asked if Ewen used methamphetamine daily, and if so,

who she was receiving the methamphetamine from, to which Ewen responded,

“I was getting it from Matt only around that time.” Id. at 61. On re-direct,

Ewen testified she used methamphetamine with Neace “all the time” and the

pair got their methamphetamine because Neace “cooked it.” Id. at 70. In

addition, Ewen stated she would assist Neace in the manufacturing of



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methamphetamine by purchasing the necessary supplies, and Neace cooked

methamphetamine “a couple of days before [he] got arrested.” Id. at 72.

[12] The State also called Sergeant Andry. On direct, Sergeant Andry testified, “So

when I interviewed [Ewen] she indicated to me that she had provided

pseudoephedrine to Matt Neace to cook meth with. And that she had been

present and had actually purchased other precursors and had been present with

him when me [sic] manufactured.” Id. at 202. On cross-examination, defense

counsel asked Sergeant Andry why the police did not set up any video or audio

surveillance to record the controlled buy. Sergeant Andry stated he did not

believe video or audio surveillance was necessary because Sergeant Andry knew

he was going to arrest Neace as soon as he saw him. We note this testimony

alludes to some prior alleged misconduct. In addition, the following exchange

occurred:

[Defense:] And what crime did she confess to you again? [Sergeant Andry:] She confessed to helping buy precursors, to helping Matt manufacture meth, . . . to purchasing Sudafed and some other chemicals for them to manufacture. All that was done in about a 2-month period right there. [Defense:] Did she admit to selling illegal pain pills? [Sergeant Andry:] Oh, yes. She did. She admitted to me -- One of the first things she was [sic] that Matt likes prescription pills and he will meet me because I’ll trade him prescription pills for meth. And so that was basically the whole premiss [sic] behind the meeting. [Defense:] Did you talk to anybody in the (inaudible) that Matt Neace had been in when he – before he got into Leah’s vehicle? [Sergeant Andry:] Yes, I did. [Defense:] Who did you speak with?



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[Sergeant Andry:] I spoke with Amber Cole Collier and Sarah Bright, who were in the green Cadillac that we secured at the Dairy Dip across the road. [Defense:] Did either Sarah or Amber say they saw Matt Neace in possession of methamphetamine on April 18, 2013? [Sergeant Andry:] That’s a no. I’m thinking. [Defense:] That’s okay. [Sergeant Andry:] Actually, yes, but it was not in the afternoon. It would have been probably 1:00 or 2:00 o’clock that morning. That’s the . . . problem with the question.

Id. at 222-24.

[13] On appeal, Neace contends Ewen’s and Sergeant Andry’s testimony was

improper under Rule 404(b) because the testimony created “a substantial risk

that the jury would convict [Neace] solely on an inference of bad character and

that he had a tendency to commit crimes.” Appellant’s Brief at 9. Specifically,

Neace argues the State elicited testimony from Ewen indicating Neace

manufactured methamphetamine, used methamphetamine daily, and cooked

methamphetamine a few days before being arrested; and, in addition, the State

elicited testimony from Sergeant Andry indicating he intended to arrest Neace

as soon as he could locate him, Ewen assisted Neace in manufacturing

methamphetamine, and Neace possessed methamphetamine just prior to the

controlled buy. The State argues Neace is precluded from relief because Neace

invited any error in the admission of the evidence in his own cross-examination

of the witnesses, and even if Neace did not invite error, the error was not

fundamental. We agree with the State.



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[14] It is well-settled that a defendant may “open the door” to the admission of

evidence otherwise inadmissible under the rules of evidence. See Jackson v.

State, 728 N.E.2d 147, 152 (Ind. 2000). Grounded in estoppel, the doctrine of

invited error provides “a party may not take advantage of an error that she

commits, invites, or which is the natural consequence of her own neglect or

misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). In other words,

“[d]efendants cannot complain of errors that they induced the trial court to

make; a party may not invite error and then rely on such error as a reason for

reversal, because error invited by the complaining party is not reversible error.”

Berry v. State, 574 N.E.2d 960, 963 (Ind. Ct. App. 1991), trans. denied.

[15] Here, although the State did elicit the testimony of which Neace complains, it

was on re-direct. Neace’s own attorney first elicited the vast majority of the

challenged testimony. For example, Ewen testified on cross-examination she

assisted Neace in the manufacturing of methamphetamine, sold Neace

prescription pills, and received methamphetamine from only Neace at the time

of the controlled buy. In addition, Sergeant Andry subsequently testified on

cross-examination he planned on arresting Neace as soon as he could locate

him, Ewen confessed to assisting Neace in the manufacturing of

methamphetamine, and Neace possessed methamphetamine earlier that day.

By eliciting such testimony, defense counsel opened the door for the State to

elicit testimony relevant to the same, including how often Ewen used

methamphetamine with Neace, how Ewen assisted Neace in the manufacturing

of methamphetamine, and how Ewen received the methamphetamine. At no



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point did defense counsel object to, or move to strike, the testimony given by

Ewen or Sergeant Andry on the basis the testimony violated Rule 404(b).

[16] We note the record indicates Neace’s attorney attempted to take advantage of

testimony regarding Ewen’s methamphetamine use, while hoping to keep

testimony regarding Neace’s involvement in Ewen’s methamphetamine use

from the jury. See Appellant’s Br. at 12 (“Ewen’s credibility was at issue. Ewen

further admitted she had been a daily drug user . . . . She admitted to Sgt.

Andry that she committed numerous crimes . . . .”). Such a strategy invited

error and we will not allow Neace to now argue the error supports reversal. See

Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995).

II. Sufficiency of Evidence

A. Standard of Review

[17] When reviewing the sufficiency of the evidence needed to support a criminal

conviction, we neither reweigh evidence nor judge witness credibility. Smart v.

State, 40 N.E.3d 963, 966 (Ind. Ct. App. 2015). Rather, we consider only the

evidence supporting the judgment and any reasonable inferences that can be

drawn from such evidence. Id. We will affirm a conviction unless “no

reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt.” Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citation

omitted).



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B. Possession of Methamphetamine

[18] Neace contends the evidence is insufficient to support his conviction for

possession of methamphetamine. To prove Neace committed Class D felony

possession of methamphetamine, the State was required to prove Neace

knowingly or intentionally possessed methamphetamine without a prescription.

Ind. Code § 35-48-4-6.1(a) (2006). Although Neace argues the State charged

him with only actual possession and it failed to meet its burden, the State may

prove the defendant either actually or constructively possessed

methamphetamine. See, e.g., Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct.

App. 2009), trans. denied. Constructive possession occurs when somebody has

the intent and capability to maintain dominion and control over the item. Id.

Neace argues the evidence is insufficient because the only evidence showing

Neace possessed methamphetamine came from Ewen’s testimony, which

Neace claims was incredibly dubious. We disagree.

[19] First, Neace had the capability to maintain dominion and control over the

methamphetamine. “To prove capability, the State must show that the

defendant is able to reduce the contraband to her personal possession.” K.F. v

State, 961 N.E.2d 501, 510 (Ind. Ct. App. 2012), trans. denied. Here, Neace sat

in the front passenger seat, and the methamphetamine was discovered in the

vehicle’s central cup holder, within Neace’s reach. See Lampkins v. State, 682

N.E.2d 1268, 1275 (Ind. 1997) (holding a defendant had the capability to

maintain dominion and control over cocaine discovered in another person’s

vehicle, where the cocaine was found underneath the seat in which defendant



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had been sitting and easily within the defendant’s reach), modified on reh’g on

other grounds, 685 N.E.2d 698 (Ind. 1997). Therefore, the evidence was

sufficient from which the jury could infer Neace had the capability to maintain

dominion and control over the methamphetamine.

[20] Second, Neace had the intent to maintain dominion and control over the

methamphetamine.

To prove the intent element, the State must demonstrate the defendant’s knowledge of the presence of the contraband. This knowledge may be inferred from either the exclusive dominion and control over the premises containing the contraband or, if the control is non-exclusive, evidence of additional circumstances that point to the defendant’s knowledge of the presence of the contraband. These additional circumstances may include incriminating statements by the defendant; flight or furtive gestures; defendant’s proximity to the contraband; the contraband being in plain view; or the location of the contraband in close proximity to items owned by the defendant.

K.F., 961 N.E.2d at 510 (citations omitted). Because Neace did not have

exclusive dominion and control over Ewen’s vehicle, we examine whether

additional circumstances point to Neace’s knowledge of the presence of

methamphetamine.

[21] After being contacted by Ewen, Neace texted Ewen stating he had “sum good”

and could give Ewen a “g” of what both Ewen and Sergeant Andry believed

would be methamphetamine. State’s Exhibits B-8, B-14. Prior to the exchange,

officers searched Ewen’s person and vehicle; no methamphetamine was



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discovered. When Neace arrived at the Family Dollar, Officers witnessed

Neace sit in the front passenger seat of Ewen’s vehicle, which was in close

proximity to where the methamphetamine was discovered in plain view.

Sergeant Andry testified when Neace was arrested, Neace made incriminating

statements:

[State:] Did he say anything to you . . . . [Sergeant Andry:] Mr. Neace said to me, “I gave you a pretty good run.” And I said, -- [State:] Did he say anything about Leah to you? [Sergeant Andry:] Yes. [State:] And what did he say about Leah to you? [Sergeant Andry:] He said, “You wouldn’t have caught me without her.”

Tr. at 204. Although not an additional circumstance stated above, we note

when the police arrested Neace, Neace was in possession of drug paraphernalia.

The evidence is sufficient to show Neace had the intent to maintain dominion

and control over the methamphetamine.

[22] Finally, we note Ewen’s testimony that Neace placed the methamphetamine in

the vehicle’s cup holder was not incredibly dubious. The incredible dubiosity

rule allows a reviewing court to “impinge on the jury’s responsibility to judge

the credibility of the witnesses only when it has confronted inherently

improbable testimony . . . .” Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015)

(citations and internal quotation marks omitted). In other words, “[a]pplication

of this rule is rare and the standard to be applied is whether the testimony is so

incredibly dubious or inherently improbable that no reasonable person could



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believe it.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). In Moore, our

supreme court described the appropriate scope of the rule, which requires: “1) a

sole testifying witness; 2) testimony that is inherently contradictory, equivocal,

or the result of coercion; and 3) a complete absence of circumstantial evidence.”

27 N.E.3d at 756. If all three factors are not present, application of the

incredible dubiosity rule is precluded. Id. at 758. As detailed in the paragraph

above, there is not a complete absence of circumstantial evidence in the present

case. Therefore, we conclude Ewen’s testimony is not so “inherently

improbable that no reasonable person could believe it.” Love, 761 N.E.2d at

810.

[23] Taking into account Ewen’s testimony, Neace’s proximity to

methamphetamine discovered in plain view, Neace’s possession of drug

paraphernalia, and Neace’s incriminating statements, we conclude the evidence

was sufficient to prove beyond a reasonable doubt Neace constructively

possessed methamphetamine.

We conclude the trial court did not commit fundamental error in admitting

Ewen’s and Sergeant Andry’s testimony mentioning Neace’s prior misconduct,

and the evidence was sufficient to support Neace’s conviction for possession of

methamphetamine. Accordingly, we affirm Neace’s convictions.



Affirmed.