Enedeo Rodriguez, Jr. v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jun 13 2018, 8:44 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald R. Shuler Curtis T. Hill, Jr.
Barkes Kolbus Rife & Shuler, LLP Attorney General of Indiana
Goshen, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Enedeo Rodriguez, Jr., June 13, 2018
Appellant-Defendant, Court of Appeals Case No.
20A03-1707-CR-1607
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Michael A.
Appellee-Plaintiff. Christofeno, Judge
Trial Court Cause No.
20C01-1611-F2-31
Barnes, Judge.
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Case Summary
[1] Enedeo Rodriguez, Jr., appeals his convictions and thirty-two-year sentence for
Level 2 felony dealing in methamphetamine and Level 5 felony corrupt
business influence. We affirm.
Issues
[2] The issues before us are as follows:
I. whether Rodriguez was improperly denied a fast and
speedy trial;
II. whether the trial court erred in denying Rodriguez’s
motion for severance;
III. whether sufficient evidence exists to support Rodriguez’s
convictions;
IV. whether the trial court’s instructions to the jury resulted in
fundamental error; and
V. whether Rodriguez’s thirty-two-year sentence is
inappropriate given the nature of his offenses and his
character.
Facts
[3] In 2016, Elkhart County Interdiction Covert Enforcement (“ICE”), working
with other state and federal law enforcement agencies, received a tip that
Alejandro Nava Rodriguez (“Nava”) was dealing methamphetamine.
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Investigators began monitoring and conducting hand-to-hand purchases1 from
Nava, and his associates, Luis Jaquez and Jorge Moreida. Investigators
suspected that the three men were methamphetamine dealers and that they
were working with a nearby supplier. Using the “buying through” technique,
investigators placed large orders intended to “force [the dealers] to go to [their]
supplier” and to lead investigators to the source of the methamphetamine. Tr.
Vol. III pp. 183-84. Investigators obtained court orders that allowed for
wiretaps, pen registers, and “pings,” which provided GPS location data for each
investigative subject’s cell phone.
[4] Rodriguez resided in New Paris and owned R&R Auto (“R&R”), an auto
repair and resale business in Elkhart. Video surveillance frequently captured
Moreida at R&R; he would later testify that he worked there occasionally,
despite not being on the company’s payroll. Wire surveillance also revealed
that Moreida and Rodriguez telephoned each other frequently and used
language that investigators believed to be coded references to
methamphetamine.
[5] On April 18, 2016, investigators conducted a hand-to-hand purchase of
methamphetamine from Nava. Nava initially met with an undercover officer to
hash out the terms of the deal, drove to Jaquez’s house, and then delivered a
1
Undercover investigator UC 323 testified as to the distinction between a “controlled buy” and a “hand-to-
hand” purchase as follows: “A controlled purchase is with the use of a confidential informant, and a hand-
to-hand purchase is any time a[n] undercover officer purchase[s] hand-to-hand from a person.” Tr. Vol. IV p.
98.
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quarter pound of methamphetamine to the undercover officer. In all,
investigators conducted five hand-to-hand purchases from Nava and two from
Jaquez. They “were trying to determine whether Mr. Jaquez . . . was above or
below Nava” in the drug operation’s hierarchy. Tr. Vol. III p. 198.
[6] On June 29, 2016, investigators conducted a hand-to-hand purchase of four
ounces of methamphetamine from Moreida for $4,000. On August 23, 2016,
an undercover officer (“UC 3749”) went to Moreida’s house and agreed to buy
an additional half-pound of methamphetamine for $6,400. Moreida told UC
3749 “that he could make it happen; [but that] it would have to be later in that
day.” Tr. Vol. IV p. 23. Afterwards, wire surveillance revealed that Moreida
telephoned Rodriguez, drove to meet him in Elkhart, and that the men drove
together to Rodriguez’s house in New Paris, remaining there only briefly.
Moreida then dropped Rodriguez off at R&R and delivered one-half pound of
methamphetamine to UC 3749.
[7] On September 10, 2016, wire surveillance of Nava and Jaquez’s cell phone
conversations revealed “that they were out” of methamphetamine. Tr. Vol. III
p. 203. Thereafter, GPS data revealed that Rodriguez drove seventy miles to Fort
Wayne, remained there for only twenty minutes, and returned to Elkhart. While
Rodriguez was en route back to Elkhart, investigators overheard Jaquez and
Moreida saying “that the meth, or the dope, or the onions, or whatever they were
calling it that day, was coming, [and] it was close. So, [investigators] kind of put
two and two together.” Id. at 204.
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[8] Investigators were in concealed positions outside Rodriguez’s house when he
returned home. They watched as he backed his truck up to his garage, removed
a cardboard box from the truck bed, and carried the box into the garage.
Approximately twenty minutes later, Rodriguez replaced the same box on his
truck bed and covered it with a heavy blanket. An investigator followed in an
unmarked car as Rodriguez drove to Jaquez’s house, backed up his truck to
Jaquez’s garage, removed the blanket, and carried the box into Jaquez’s garage.
Rodriguez left within ten minutes. After Rodriguez left, the wire surveillance
team alerted the on-site surveillance team that Nava was now en route to Jaquez’s
house. Nava arrived soon thereafter, remained onsite only briefly, and then
drove to see Juan Rivera, from whom investigators conducted several hand-to-
hand purchases during this investigation. Id. at 214.
[9] On October 22, 2016, UC 3749 conducted a hand-to-hand purchase of
methamphetamine from Moreida. On October 28, 2016, while he was at R&R
Auto, Moreida sent a text message to UC 3749 and offered to sell him more
methamphetamine. For this hand-to-hand purchase, in addition to wire
surveillance and an on-site surveillance unit, investigators also enlisted
helicopter surveillance support with video recording capacity. On-site
undercover investigators observed as Moreida negotiated with UC 3749.
Rodriguez was present for the negotiation, and both men appear in the
helicopter surveillance video of the transaction. Moreida and UC 3749 agreed
on an $11,000 price for one pound of methamphetamine.
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[10] Rodriguez and Moreida then drove to Rodriguez’s house, remaining there
briefly, during which time Rodriguez retrieved an item, believed to be a digital
scale from a vehicle, before re-entering the house. The men then drove to a cell
phone store in Elkhart. Rodriguez went into the store, while Moreida
proceeded to deliver the methamphetamine to UC 3749 at a nearby dry-
cleaning establishment. Afterwards, Moreida picked up Rodriguez.
[11] By now, investigators suspected that Rodriguez was a major methamphetamine
supplier: Moreida had both called Rodriguez and received several phone calls
from Rodriguez around the time of transactions; Moreida had “trip[ped]” to
Rodriguez, whose travel patterns and conduct suggested that he may be a
supplier to Jaquez, Nava, and Moreida; and Rodriguez “was physically present
or near” at the time of two hand-to-hand purchases coordinated by Moreida. Tr.
Vol. IV p. 20. Investigators also suspected that Rodriguez was transporting
methamphetamine in R&R’s vehicles and conducted surveillance on R&R “for
several weeks” during the investigation. Tr. Vol. III p. 216.
[12] Investigators executed a federal search warrant at Rodriguez’s house on
November 2, 2016.2 Rodriguez, his wife, and a young child were present when
the search warrant was executed. The November 2, 2016 search yielded a
significant quantity of methamphetamine in the basement, along with a
measuring cup, two digital scales, two vacuum sealing machines, large,
2
The police also recovered documents that indicated Rodriguez owned or resided in the house.
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industrial resealable bags, bulk quantities of cellophane, a cutting agent, and at
least six cell phones. Investigators also recovered methamphetamine crystals
and smoking devices from Rodriguez’s garage and 240 grams of
methamphetamine and a large supply of resealable bags from the stereo speaker
of a truck that was parked outside Rodriguez’s house.
[13] On November 8, 2016, the State charged Rodriguez with Level 2 felony dealing
in methamphetamine and Level 5 felony corrupt business influence. 3 As to the
latter, the State alleged that Rodriguez, Nava, Rivera, Jaquez, and Moreida
engaged in a pattern of racketeering activity and aided and abetted one another
to deal, attempt to deal, or conspire to deal methamphetamine.
[14] At his initial hearing on November 10, 2016, and after the trial court granted
his request for a public defender, Rodriguez moved orally for a speedy trial,
which motion was denied so Rodriguez could consult with his counsel. The
trial court stated,
THE COURT: Now, Mr. Rodriguez, with respect to a motion
for an early trial under the trial rules, which people refer to as a
fast and speedy trial, that is a motion that has to be made by your
attorney. So talk to your attorney about whether or not that is in
your best interest to do that. He or she will make that
determination on your behalf after consulting with you.
3
As to Count II, the State charged the five co-defendants jointly. Trial was initially set for Jaquez on March
20, 2017, and for the remaining four defendants on April 3, 2017. See Tr. Vol. II pp. 30-31.
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*****
THE DEFENDANT: I’m still requesting a fast and speedy trial.
*****
THE COURT: -- that’s fine. And I’m denying your request for
two reasons: Number one, it’s not in writing; and number two, I
can’t accept a request from you. It has to come through your
attorney.
Tr. Vol. II pp. 10-11.
[15] On November 16, 2016, despite being represented by counsel, Rodriguez
submitted, pro se, a letter to the trial court in which he requested a fast and
speedy trial. The following day, Rodriguez’s appointed counsel entered his
appearance. At a hearing on December 8, 2016, Rodriguez’s counsel opposed
his speedy trial request and asked the trial court to withdraw the motion.4
Rodriguez asked to be heard and the following colloquy ensued:
THE COURT: Your attorney has spoken to you about this case.
Is that correct?
THE DEFENDANT: Yes, Your Honor.
4
The trial court noted that counsel for Rodriguez was still awaiting discovery; cited the likelihood that
extensive discovery needed to be undertaken regarding the corrupt business influence charge; and noted that
counsel needed additional time to prepare a defense.
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THE COURT: And without going into the substance of what
you spoke about, did he explain to you the possible pitfalls if he
is required to proceed to trial within 70 days of the filing -- of
your filing of the fast and speedy trial?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you understand that if I grant your fast and
speedy trial that your attorney may or may not be prepared to
proceed to trial?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you understand that because we’re having
this discussion now, and if you are convicted and you are going
to raise the argument of ineffective assistance of counsel that that
will probably -- even if he is ineffective -- it will probably be
upheld due to the fact that we’re having this discussion now.
And I’m explaining to you that if you want your fast and speedy
trial that it will be placed within 70 days of November l6 of 2016.
THE DEFENDANT: Yes, Your Honor.
THE COURT: And that if your attorney is not ready to proceed
to trial, I will not grant you a continuance. Do you understand
that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And so then we will proceed to a jury trial. If
you are convicted at that jury trial that one of the possible
remedies or appeal routes will be foregone by you because of
your decision today.
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THE DEFENDANT: Yes, Your Honor.
THE COURT: And do you still wish to have a fast and speedy
trial?
THE DEFENDANT: Yes, Your Honor.
THE COURT: So you understand that you are forcing your
attorney to be prepared in this case, and he may not have all the
information he needs to either protect your assets from being
forfeited to the State of Indiana. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you are willing to place your assets and/or
your liberty in jeopardy to proceed with a fast and speedy [trial?]
THE DEFENDANT: Yes, Your Honor.
Id. at 17-19. Rodriguez’s counsel reiterated his view that Rodriguez was
“making a decision that [wa]s clearly against his best interest” and asked that
the motion be denied. Id. at 19. The trial court struck Rodriguez’s request as a
pro se filing after appointment of counsel and, in the alternative, denied it.
[16] Although the timing is unclear from the record, Rodriguez and Moreida
exchanged letters in jail. Rodriguez urged Moreida to reject the State’s plea
offer and to take the fall, in exchange for everyone “accept[ing] . . . and car[ing]
for [him].” Id. at 131. Moreida perceived Rodriguez’s letters as threatening.
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State’s Ex. 9; see Tr. Vol. II p. 128 (“In prison don’t worry [about] fighting, it’s
the gossip that will kill you.”).
[17] On March 7, 2017, the State filed a motion to consolidate, seeking to join
Rodriguez’s trial with that of Nava, who was to be tried on June 5, 2017. The
trial court denied the motion; however, at a hearing on March 30, 2017, the
trial court advised that Rodriguez’s jury trial, slated for April 3, 2017, was
unlikely to proceed as scheduled because another matter was scheduled ahead
of his. The trial court also noted that discovery was still “ongoing.” 5 Id. at 37.
The trial court advised Rodriguez that his counsel needed additional time to
review newly-disclosed evidence and that the court’s calendar would not allow
for trial on April 3, 2017. Subsequently, Rodriguez’s jury trial was continued to
June 5, 2017 due to court congestion and to allow counsel time to review
newly-disclosed evidence.
[18] At a hearing on March 30, 2017, the following colloquy ensued:
THE COURT: I just want to make sure that you -- that the
State’s turned over what it has and what it knows so that Mr.
Soldato and Mr. Rodriguez can get ready for trial. Now, you
know, the first thing that comes up, Mr. Rodriguez, is Mr.
Soldato and you need time to go over this.
5
The State acknowledged that it had received new documentation from the ATF “at the last minute” and
that it had submitted the materials, consisting of sixty pages “plus four or six discs worth of . . . video and
some kind of telephonic surveillance” to counsel for Rodriguez. Tr. Vol. II pp. 38, 39.
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THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you agree with that?
THE DEFENDANT: Yes. But in -- in that same thing, what do
you mean by time? Like, a continuance time? Or . . . .
THE COURT: Well, I don’t think you’re going to be able to go
over that by Monday. Number one, I don’t think your case is
going to go to trial Monday.
*****
THE COURT: But number two, I don’t think you’re going to be
ready. You know, you have to discuss that with Mr. Soldato. I --
I just know that getting that amount of information that he hasn’t
reviewed you, it -- it occurs to the Court, Mr. Rodriguez, you
might want to review that with your counsel before you were in
court and that was the first time that you’re hearing the evidence.
THE DEFENDANT: Yes, Your Honor.
THE COURT: I -- I’m not -- I’m not giving you legal advice, and
I’m not telling you what to do. I am suggesting that I want to
make sure you get a fair trial, Mr. Rodriguez.
*****
THE COURT: And it -- and it seems to me that if the first time
you’re hearing the evidence is when you’re seated at that very
seat and a jury is in that box, that's not going to give you a fair
trial.
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THE DEFENDANT: Your Honor, with all due respect, I know -
- I know what I did do and what I didn’t do, and I’m ready for
trial.
THE COURT: I -- I don’t want you to say anything like -- like --
you’re represented by counsel, and I don’t want you to blurt
something out that you’re going to regret, Mr. Rodriguez.
THE DEFENDANT: Okay.
THE COURT: Okay. I don’t want to give you the idea that I’m
trying to suggest you start talking about things.
THE DEFENDANT: No. I -- I’m just ready for trial. I’m just
ready for trial.
THE COURT: Okay. You do understand that if another case
goes to trial on Monday, you won’t go to trial. You do
understand that?
*****
THE COURT: And then we would reset your case. You do
understand that?
THE DEFENDANT: Okay.
THE COURT: Okay.
THE DEFENDANT: Until -- until when? Or...
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THE COURT: I would have to look at the Court’s calendar, but
I would imagine -- I believe it’s June 5.
*****
MR. SOLDATO: I think Mr. Rodriguez’s one concern is that --
and I’ve explained to him it’s the Court’s prerogative on when it
resets the trial to. But he would if -- he would ask for an earlier
trial date, if possible, before the June date.
THE COURT: Well, I will go this far, Mr. Rodriguez; I will
consider that. The problem I think you’ve got is this: That, as
you are well aware, this is a busy court. And so the problem is,
you know, we’re setting these trials. It isn’t just one or two cases
that are getting set on a trial date. It’s 15 or more. So the
problem is when you start looking at it -- at a time before June 5,
let -- let me tell you what I’m trying to do so accommodate you.
And I don’t know for certain that it’s that June 5 date, but I think
that was one of the dates where -- where when the Court was
looking at things. . . . So when you’re taking into account, you
know, how upset you’re going to be with what’s going on, I’m
already trying to move you up because I know you want to have
a sooner trial date. Okay? That’s why I suggested the June 5
date. I’ll look at the others, but the trouble is if you get put on
one of those other dates, Mr. Rodriguez, and your case doesn’t
go because other cases do, the same thing is going to happen that
happened on Monday. You know, another case goes, your case
doesn’t go, you get put further down the line. That’s why the
Court was suggesting June 5.
THE DEFENDANT: Okay.
*****
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THE DEFENDANT: Okay. Are you going release me on my
own recognizance?
THE COURT: No, I’m not.6
THE DEFENDANT: Okay.
THE COURT: I’m not. I’m not. And -- and the other thing that
I would suggest is: You’ve got counsel, and you need to work
through your counsel with the Court. When -- when you write
the Court letters --
THE DEFENDANT: Yes.
THE COURT: -- you need to understand the Court can’t act on
those letters. I can’t do anything about that because you’re --
because you’re represented by counsel, you need to work through
your counsel with the Court. And right now, you’ve got a lot to
do. You’ve got a lot to do because you’ve got a lot discovery to
go through to get ready for trial. I know you’ve indicated you’re
ready. I would suspect that Mr. Soldato is going to want to get
your take on some of that evidence.
*****
THE COURT: . . .[R]ight now, your case is scheduled for April
3rd for trial. Now, if the other case goes, your case isn’t going.
I’m telling you that flat out because I want you to know that.
And it’ll get continued, and I’ll look down the road and I’ll try
and pick a date when I think you’re going to get fit in. My
6
At his bond reduction hearing on December 8, 2016, the trial court determined that Rodriguez was a flight
risk.
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recollection June 5 was that date, which -- which would -- if you
moved for a speedy trial right now, would be right around the
speedy trial time, I would also add.
*****
THE COURT: Okay. Mr. Rodriguez, when you were in court --
THE DEFENDANT: Yes.
THE COURT: -- you acknowledged the trial setting. I don’t
think you’re listening to what the Court’s saying. You said you
wanted it set April 3rd, and the Court set it April 3 and you said
that was okay. And now you want to blame your attorney that it
was set April 3rd. That’s not fair and that’s not right.
*****
THE COURT: -- you’re getting what you bargained for. You
wanted a trial April 3rd, and that’s what you’re going to get if the
other case does not go to trial on April 3rd. If the other case goes
to trial on April 3rd, which right now it is, then guess what?
Your case is going to get continued by congestion. . . .
Id. at 39-46.
[19] On April 13, 2017, counsel made the following record regarding Rodriguez’s
objection to the June 5, 2017 trial date being outside the seventy-day speedy
trial period:
MR. SOLDATO: . . . . Today, we are acknowledging the June
5th trial date, but Mr. Rodriguez, personally, is objecting because
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it is outside of 70 days. And I’ll -- I’ll explain why I’m making
that request now, if I might.
On November 10th when Mr. Rodriguez had his initial hearing,
he orally requested a speedy trial. Magistrate denied the speedy
trial because public defender was about to be appointed. And
Magistrate Osterday instructed Mr. Rodriguez to discuss that
issue with counsel, which turned out to be myself. So at the next
hearing, which was December 8th, 2016, we took up the issue of
the early trial.
Now, in--between the initial hearing and the December 8th
hearing, Mr. Rodriguez had written a -- and filed a motion for
early trial on his own without my approval or consent. At the
December 8th hearing, we took up the issue. I requested that the
Court withdraw Mr. Rodriguez -- his filing for the speedy trial
because I did not think, given the extent of discovery, I could be
ready for trial within 70 days.
Over my objection, Mr. Rodriguez continuously asserted that he
wanted to be tried within 70 days at that hearing. Judge Cataldo
. . . denied the early trial. Mr. Rodriguez, all along, as the Court
is well aware, has consistently maintained that he wants to be
tried within 70 days, over even my objection.
Obviously, this June 5th trial date is outside of that 70 days. I
understand that I have asked not to be tried within 70 days,
personally, in this case. But I think Mr. Rodriguez’s argument
that he wants to preserve, if this case were to be appealed, is that
that request for trial within 70 days should be a right that is
personal to him. He shouldn’t be able to be trumped by defense
counsel on that issue.
So that’s a long way of saying, Your Honor, we’re
acknowledging the trial date. But Mr. Rodriguez, personally,
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wants to continue objecting because he has asserted from day one
that he should have had a speedy trial in this case. Thank you.
THE COURT: Okay. Mr. Soldato and Mr. Rodriguez, I think
that was a long way of saying you now acknowledge that your
case is set for trial June 5, 2017, at 8:30 a.m. Is the Court correct
in that?
MR. SOLDATO: That’s correct.
THE COURT: Mr. Rodriguez, is that correct?
THE DEFENDANT: Yes.
*****
THE COURT: Okay. So now, let’s get back to it. You
understand your case is set for trial June 5, 2017, at 8:30 a.m.
Correct?
THE DEFENDANT: Correct.
Id. at 48-51. The trial court added,
I can tell you this, and I think I told you this last time. I think
you have a better chance of your case going to trial June 5 than
you did April 3, and it turns out the Court was right on that
because there was another case . . . on April 3rd, which is why
you got bumped to June 5. Okay?
Id. at 52. The judge added that, because Rodriguez’s codefendants were all
slated for trial on June 5, 2017, “[I]t’s more likely that June 5 date may go[.]”
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Id. at 53. Thus, the trial court scheduled trial for June 5, 2017. At a hearing on
May 11, 2017, Rodriguez agreed that the trial date complied with his speedy
trial request.
[20] On May 16, 2017, Rodriguez’s counsel also filed a motion to sever the counts
in the information, arguing that Rodriguez would suffer prejudice as to count I
if the jury heard evidence on count II. Counsel asked that the counts be tried
separately. After a hearing on June 1, 2017, the trial court denied Rodriguez’s
motion to sever counts for trial, finding “a sufficient connection [between
counts I and II] to allow the State to go forward” and concluded that through
“extensive voir dire of the prospective jurors, . . . arguments by [defense
counsel], [and] . . . more detailed specific jury instructions,” Rodriguez would
suffer no prejudice. Id. at 86.
[21] On June 5 and 6, 2017, Rodriguez and Nava were tried by jury simultaneously.7
Law enforcement witnesses testified to the foregoing facts. UC 382 testified
about “certain language and jargon” and common practices of drug dealers. Id.
at 191; Tr. Vol. IV p. 36. He testified as follows regarding the drug interdiction
tactic known as “trip[ping]”:
So, when you get to the more medium to higher level dealers,
what they do is they will do whatever they can to avoid being in
7
As to Nava, the State’s charging information alleged the following offenses: Counts I to V, five counts of
Level 2 felony dealing in methamphetamine; and Count VI, level 5 felony corrupt business influence. By the
time of trial, Moreida, Jaquez, and Rivera had entered plea agreements with the State.
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possession of a large amount of meth, or controlled substance at
one time. And, often times, they don’t want to have both the
meth and money in one spot, which leads to getting to robbed,
especially, if you’ve been dealing for a long time, people know
you, your pattern. So, what they’ll do is they will not hold the
meth at their home and often times they’ll come to it by location,
make sure you have the money, or take the money, and trip to
somewhere else to get the meth and then bring it back. A lot of
times they believe it insulates them from holding the meth on
them. Also, it eliminates traffic at their house, so, if a drug dealer
lives in one location, he doesn’t want all of his customers coming
to and from. . . . So, they do the best they can to avoid that. So,
they do it away, another location, and they keep the dope and the
money separate, which causes them, or forces them to trip, a lot
more back and forth.
Tr. Vol. III p. 186-87.
[22] Moreida testified on behalf of the State. At the time, he had entered a guilty
plea and was awaiting sentencing. He testified that Rodriguez, who was friends
with his older brother, had approached him and asked to meet at Rodriguez’s
house in New Paris. Rodriguez then “asked for [Moreida’s] help” in selling
methamphetamine and asked to store methamphetamine at Moreida’s house.
Tr. Vol. IV p. 113. Moreida also testified that he and Rodriguez sold “[m]eth
and drugs” together for approximately one and one-half years until their arrests
for the instant offenses. Id. He testified further that there was a hierarchy in the
drug dealing operation, consisting of Jaquez at the top, then Nava, Rodriguez,
and himself in the drug dealing operation. He testified that he occasionally
worked at R&R and that the men transported methamphetamine in the wheels
of R&R’s vehicles. He testified that he began to use and became addicted to
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methamphetamine after he joined the drug dealing operation. He also testified
that he suffered an overdose, but that Rodriguez would not take him to a
hospital for fear of being arrested.
[23] Moreida testified that Rodriguez supplied the methamphetamine for the hand-
to-hand transactions on August 23 and October 28, 2016. On each occasion, he
testified, the men had driven together to New Paris to pick up
methamphetamine from “a little room where everything’s done at . . . a little
wooden desk” in Rodriguez’s basement. Id. at 119. He testified further that
when a buyer wanted a larger quantity of methamphetamine, he went to
Rodriguez “[b]ecause that was my higher [up].” Id. at 118. He testified that,
before making methamphetamine deliveries, he routinely dropped Rodriguez
elsewhere beforehand, “[s]o [Rodriguez] wouldn’t be seen [.]” Id. at 117.
[24] Moreida testified that, after they were arrested, Rodriguez sent letters warning
him not to testify; telling him he “could always back out of [his] plea bargain”;
“if [he] d[id]n’t testify, [he] would be okay, looked out for . . . . [I]f [he] d[id] . .
. it’d be the other way around”; to “watch [his] back”; and “if [he] t[ook] the
blame that . . . everybody w[ould] accept [him] [and he] . . . wouldn’t need
nothing [sic] ….” Id. at 127, 130, 131. Moreida testified that, because he and
his codefendants were incarcerated in the same cell block in advance of trial, he
feared for his life, should they learn that he was a cooperating State’s witness.
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[25] After the State presented its case-in-chief, Nava and Rodriguez rested. In its
preliminary as well as final instructions, the trial court instructed the jury as
follows regarding the dealing in methamphetamine charge:
Before you may convict the defendant, the State must
have proved each of the following elements beyond a reasonable
doubt:
1. the defendant;
2. possessed, with intent to deliver;
3. methamphetamine;
4. and the amount of the drug involved was at least ten (10)
grams.
If the State failed to prove each of
these elements beyond a reasonable doubt, you should find the
Defendant, ENEDEO RODRIGUEZ, JR., not guilty of Dealing
in Methamphetamine, a Level 2 Felony charged in Count I.
Tr. Vol. V pp. 109, 129. The trial court defined “possess” and “possession”;
however, it did not define “possessed, with intent to deliver.”
[26] The jury found Rodriguez guilty as charged. At his June 29, 2017 sentencing
hearing, the trial court found, as aggravating circumstances, the following: (1)
Rodriguez’s prior criminal history; (2) he was on federal probation when he
committed the instant offenses; (3) his record of violating supervised release and
violating probation; (4) his extensive drug and alcohol abuse; (5) his use of
methamphetamine until his arrest; (6) the probation department’s finding that
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he had a moderate risk to reoffend; (7) his threats to a cooperating witness
against him; (8) he dealt methamphetamine at his house where a young child
was present; and (9) he had not been deterred from criminal activity despite
ample opportunities to conform his behavior. The trial court found the
following mitigating circumstances: his lack of violent criminal history; the
absence of guns or weapons in his home; he spent his drug dealing income on
his five children; and his apologies to his children and to the trial court. The
trial court sentenced Rodriguez to twenty-seven years on the Level 2 felony and
five years on the Level 5 felony, suspended four years to probation, and ordered
the sentences to be served consecutively. Rodriguez now appeals.
Analysis
I. Speedy Trial
[27] Rodriguez contends that the trial court improperly denied him a fast and speedy
trial. The State counters that because Rodriguez was represented by counsel
when he requested a speedy trial, the trial court acted within its discretion to
strike and deny Rodriguez’s pro se request.
[28] Both the U.S. and Indiana Constitutions protect the right of an accused to a
speedy trial. U.S. Const. amend. VI; Ind. Const. art. 1, § 12. “The speedy trial
right is a fundamental principle of constitutional law that has been zealously
guarded by our courts.” Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012)
(internal quotations omitted). Indiana Criminal Rule 4(B)(1) generally
implements the constitutional right of an accused to a speedy trial and provides:
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If any defendant held in jail on an indictment or an affidavit shall
move for an early trial, he shall be discharged if not brought to
trial within seventy (70) calendar days from the date of such
motion . . . .
Ind. Crim. R. 4(B)(1), emphasis added. The rule then lists conditions that
excuse the failure to bring a defendant to trial within that time frame. Cundiff,
967 N.E.2d at 1028. In reviewing Criminal Rule 4(B) claims, we review factual
findings under the clearly erroneous standard. Austin v. State, 997 N.E.2d 1027,
1040 (Ind. 2013). We review questions of law de novo. Id. at 1039.
[29] Our supreme court has stated that once counsel is appointed, a defendant
speaks to the court through counsel. Underwood v. State, 722 N.E.2d 828, 832
(Ind. 2000). “When a defendant is represented by counsel, it is within the trial
court’s discretion to entertain or strike pro se motions.” Vance v. State, 620
N.E.2d 687, 689 (Ind. 1993).
[30] Here, Rodriguez requested appointment of pauper counsel at his initial hearing
on November 10, 2016; the trial court granted his motion. He subsequently
moved orally for a speedy trial, which motion was denied so that he could
confer with his counsel. Rodriguez again requested a speedy trial in a pro se
letter to the trial court on November 16, 2016. Defense counsel asked the trial
court to withdraw Rodriguez’s request for a speedy trial on December 8, 2016,
citing ongoing discovery and the need for additional time in which to prepare a
defense. The trial court struck Rodriguez’s request as a pro se filing after
appointment of counsel and, in the alternative, denied it. The record is clear
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that defense counsel for Rodriguez never pursued an early trial on Rodriguez’s
behalf. Under the foregoing circumstances, we find that requiring the trial court
“to respond to both Rodriguez and his counsel would have effectively created a
hybrid representation to which Rodriguez was not entitled.” See Underwood,
722 N.E.2d at 832. Because Rodriguez’s requests for speedy trial were made
after appointment of counsel, the trial court was not required to respond.
Rodriguez has not established that the trial court improperly denied him a fast
and speedy trial.
[31] Additionally, we note that criminal Rule 4 and subsequent interpretations have
recognized that court congestion and other exigent circumstances may justify a
reasonable delay beyond the seventy-day period. See Loyd v. State, 272 Ind. 404,
408, 398 N.E.2d 1260, 1265, cert. denied. The record here reveals that the trial
court’s continuance and application of the court congestion exception were
factually supported. Although Rodriguez and his counsel made an extensive
record as to his desire for a speedy trial on April 3, 2017, the trial court
cautioned of various risks—ongoing discovery, inadequate preparation time for
defense counsel, and the likelihood that another matter would trump
Rodriguez’s April 3, 2017 jury trial.8 The record further reveals that the trial
court sought to accommodate Rodriguez, while also urging him to heed the
[1] 8
Not only did another jury trial displace Rodriguez’s on the trial court’s April 3, 2017 calendar but, as the
trial court later explained, the defendant in that case entered a plea on the morning of trial, when a jury was
already impaneled and “ready to go.” Tr. Vol. II pp. 53-54.
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advice of his counsel. The record also reveals that, absent a continuance,
Rodriguez and his counsel would have been at a considerable disadvantage
without adequate time to review newly-disclosed, incriminating surveillance
and documentary evidence. Further still, Rodriguez was initially to be tried
with four codefendants—most of whom were already scheduled for jury trial on
June 5, 2017, which was the alternate trial date that the trial court proposed to
Rodriguez.9 Lastly, we note that the continuance period—from April 2, 2017 to
June 5, 2017—was relatively short, at less than two months. See Criminal Rule
4(C) (allowing continuance of trial for “a reasonable time”). Based upon the
foregoing, we conclude that the trial court’s continuance of Rodriguez’s jury
trial for reasons of court congestion and its handling of Rodriguez’s speedy trial
request was not clearly erroneous.
II. Motion to Sever
[32] Rodriguez argues that counts I and II were joined solely because they were of a
similar character and that he was entitled to severance as a matter of right. We
review arguments that a trial court improperly denied a motion to sever as a
matter of right de novo. Booker v. State, 790 N.E.2d 491, 494 (Ind. Ct. App.
2003). If the defendant was not entitled to severance as a matter of right, the
trial court has discretion whether to grant severance, and we will review the
trial court’s decision for an abuse of discretion. Ben-Yisrayl v. State, 690 N.E.2d
9
With the exception of Nava, each of Rodriguez’s codefendants ultimately entered guilty pleas before the
June 5, 2017 jury trial setting.
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1141, 1146 (Ind.1997), cert. denied. We will reverse for an abuse of discretion
“only upon a showing of clear error.” Id. (quoting Davidson v. State, 558 N.E.2d
1077, 1083 (Ind. 1990)).
[33] We initially note that the trial court instructed the jury “to consider the
evidence as it may apply to each count individually and separately from the
other counts.” App. Vol. II p. 132. We further note that a jury is presumed to
have followed the trial court’s admonishments, and when the jury is properly
instructed, we presume they followed such instructions. Francis v. State, 758
N.E.2d 528, 532 (Ind. 2001); Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015
[34] Where offenses have been joined because the defendant’s underlying acts are
connected together or constitute parts of a single scheme or plan, we review the
trial court’s decision on severance for an abuse of discretion. Pierce v. State, 29
N.E.3d 1258, 1264 (Ind. 2015). Indiana Code Section 35-34-1-9(a) provides
that:
…[T]wo (2) or more offenses may be joined in the same
indictment or information, with each offense stated in a separate
count, when the offenses:
(1) are of the same or similar character, even if not part of a
single scheme or plan; or
(2) are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme or
plan.
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Subsection 9(a)(1) refers to the nature of the charged offenses, and subsection
9(a)(2) refers to the operative facts underlying those charges. Pierce v. State, 29
N.E.3d 1258, 1265 (Ind. 2015).
[35] The defendant shall have the right to severance of the offenses “[w]henever two
(2) or more offenses have been joined for trial in the same indictment or
information solely on the ground that they are of the same or similar
character[.]” Ind. Code § 35-34-1-11.
In all other cases the court, upon motion of the defendant or the
prosecutor, shall grant a severance of offenses whenever the court
determines that severance is appropriate to promote a fair
determination of the defendant’s guilt or innocence of each
offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the
evidence and apply the law intelligently as to each offense.
Id.
[36] In Harvey v. State, 719 N.E.2d 406, 408 (Ind. Ct. App. 1999), the defendant was
charged in connection with two robberies that were committed mere days apart.
During each robbery, one robber—the taller of the men—pistol-whipped the
victims, while the shorter man assisted. Noting that robberies inherently share
certain similarities, a panel of this court deemed the facts “sufficient to show a
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‘series of acts connected together’ induced by the common motive to rob” and
determined that Harvey was not entitled to severance as matter of right. Id. at
409.
[37] Here, in denying the motion to sever, the trial court found a sufficient
connection between counts I and II to justify allowing the State to go forward.
The yearlong investigation exposed the inner workings of a drug dealing
operation in which Nava, Jaquez, Rivera, Moreida, and Rodriguez acted,
independently and in concert, to obtain, exchange, package, transport, and sell
methamphetamine. Through coordination, coded telephone calls, trips to each
other’s houses, Rodriguez’s quick-turnaround jaunts to New Paris and Fort
Wayne to obtain more methamphetamine, use of R&R’s vehicles for drug
transport, and pre-arranged security measures for the senior dealers in the
hierarchy, the four men conducted their drug business, induced by their
common motive to deal methamphetamine.
[38] As we did in Harvey, we conclude that the foregoing evidence was sufficient to
show a series of acts connected together or constituting parts of a single scheme
or plan, induced by a common motive to deal methamphetamine. Rodriguez
has not demonstrated that the trial court’s denial of his motion for severance
was an abuse of discretion.
III. Sufficiency of the Evidence
[39] Rodriguez argues that insufficient evidence exists to support his convictions.
When reviewing the sufficiency of the evidence needed to support a criminal
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conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. 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. Id.
A. Level 2 Felony Dealing in Methamphetamine
[40] Rodriguez argues that the State failed to present “evidence … that [he] was ever
seen in actual possession of methamphetamine” or that he had the requisite
intent to deliver methamphetamine. Appellant’s Br. p. 34.
[41] To convict a defendant of Level 2 felony dealing in methamphetamine, the
State is required to prove the following:
(a) A person who:
...
(2) possesse[d], with intent to:
...
(C) deliver
...
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methamphetamine, pure or adulterated; commit[ted] dealing in
methamphetamine, a Level 5 felony, except as provided in
subsections (b) through (e).
(b) A person may be convicted of an offense under subsection
(a)(2) only if:
(1) there is evidence in addition to the weight of the drug that the
person intended to manufacture, finance the manufacture of,
deliver, or finance the delivery of the drug.
...
(e) The offense is a Level 2 felony if: (1) the amount of the drug
involved is at least ten (10) grams.
I.C. § 35-48-4-1.1.
[42] Here, the State presented witness testimony distinguishing between recreational
drug users and drug dealers. An undercover officer testified that dealers
generally possess large quantities of the drug as well as supplies needed to
weigh, distribute, package, store, and transport the drugs. Here, investigators
recovered methamphetamine from Rodriguez’s basement and from his truck
speaker. They also found a cutting agent, digital scales, industrial resealable
bags, cellophane in bulk quantities, and numerous cell phones. Reasonable
inferences that Rodriguez possessed methamphetamine with intent to deliver
may be drawn from the considerable amount of methamphetamine and drug
dealing paraphernalia, i.e., digital scales, cutting agent, countless resealable
baggies, vacuum sealers, etc., that were found in his basement (consistent with
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Moreida’s testimony) and hidden in the speaker of his truck, where the State
presented evidence that the house and truck contained proof of his ownership.
See Enamorado v. State, 534 N.E.2d 740, 742-43 (Ind. 1989); McGuire v. State, 613
N.E.2d 861, 864 (Ind. Ct. App. 1993) (Circumstantial evidence of intent to
deliver, such as possession of a large quantity of drugs, scales, plastic bags, and
other paraphernalia, can support a conviction.).
[43] The State also presented evidence that investigators intercepted and recorded a
telephone conversation in which Nava and Jaquez mentioned being out of
methamphetamine, which complaint coincided with Rodriguez’s quick trip to
Fort Wayne and immediate return, after which Nava and Jaquez rendezvoused
with him and were once again fully stocked with methamphetamine.
[44] Additionally, Moreida testified as follows: to fill larger orders for
methamphetamine, he obtained additional drugs from Rodriguez; he
telephoned Rodriguez and traveled to Rodriguez’s home to retrieve
methamphetamine immediately before making deliveries on August 23 and
October 22, 2016; Rodriguez used R&R’s vehicles to conceal and transport
large quantities of methamphetamine; Rodriguez was safely ensconced nearby
during two of Moreida’s deals with undercover investigator(s), having both
supplied the methamphetamine and having had Moreida take him a safe
distance away until the deal was done, as was customary in the operation.
Based on the foregoing, we conclude that the State presented sufficient evidence
to support Rodriguez’s conviction for Level 2 felony dealing in
methamphetamine.
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B. Level 5 Felony Corrupt Business Influence
[45] To convict Rodriguez of Level 5 felony corrupt business influence, the State
was required to prove that he, along with Moreida, Jaquez, Rivera, and Nava,
“while employed by or associated with an enterprise, knowingly conducted or
otherwise participated in the activities of that enterprise through a pattern of
racketeering activity.” App. Vol. II p. 108; I.C. §§ 35-46-6-2(2); 35-41-2-4.
[46] First, we must determine whether [Rodriguez] was associated
with an “enterprise,” which is defined, among other things, as “a
union, an association, or a group, whether a legal entity or
merely associated in fact.” I.C. § 35-45-6-1(c)(2). “[T]he
hallmark of an enterprise is structure . . . . A RICO enterprise is
an ongoing group of persons ‘associated through time, joined in
purpose, and organized in a manner amenable to hierarchical or
consensual decision-making.’” Additionally, because a RICO
enterprise is more than a group who got together to commit a
pattern of racketeering activity, there should be sufficient
evidence to infer that the group is an “‘organization with a
structure and goals separate from the predicate acts themselves.’”
See Purvis v. State, 87 N.E.3d 1119, 1126 (Ind. Ct. App. 2017) (internal citations
and quotations omitted).
[47] Here, the State presented the following evidence that Rodriguez, Moreida,
Jaquez, Rivera, and Nava actively participated in a drug dealing enterprise with
the goal of selling methamphetamine: (1) Rodriguez recruited Moreida into the
group of dealers in which Rodriguez was at the higher end of the hierarchy; (2)
there was significant coordination between the five men, (i.e., Rodriguez sold
methamphetamine with Jaquez; Moreida sold methamphetamine for
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Rodriguez; and Rodriguez supplied the dealers with methamphetamine); (3)
Rodriguez waited nearby as Moreida completed transactions on August 23 and
October 22, 2016; (4) the dealers maintained regular contact via coded text
messages and telephone calls and frequented each other’s houses and/or
Rodriguez’s place of business, R&R; and (6) undercover investigators made
hand-to-hand purchases of methamphetamine from Moreida (four times), Nava
(five times), and Jaquez (two times);
[48] Although investigators did not buy methamphetamine directly from Rodriguez,
the State presented the following evidence of his role as a/the supplier to the
drug dealing operation: on August 23 and October 28, 2016, Moreida
telephoned, met with, and “trip[ped]” to retrieve methamphetamine from
Rodriguez’s house before completing methamphetamine transactions;
Rodriguez used R&R’s vehicles to transport large quantities of
methamphetamine; Rodriguez traveled between his codefendants’ houses and
to other cities shortly before methamphetamine transactions; investigators
found more than 240 grams of methamphetamine, as well as a cutting agent, a
measuring cup, drug paraphernalia, industrial resealable bags, digital scales,
vacuum sealing machines, and a bulk quantity of cellophane used in packaging
drugs for resale in Rodriguez’s house. See McGuire, 613 N.E.2d at 864.
[49] Based on the foregoing, the State presented sufficient evidence that Rodriguez
was associated with an “enterprise” with a structure and goals separate from the
predicate acts. See Purvis, 87 N.E.3d at 1126; see Waldon v. State, 829 N.E.2d
168, 176-77 (Ind. Ct. App. 2005) (holding there was sufficient evidence of a
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RICO enterprise where the defendant “was the ringleader of a group of
individuals organized to carry out crime”), disapproved on other grounds in Jackson
v. State, 50 N.E.2d 767, 775 (Ind. 2016).
[50] Next, we must determine whether Rodriguez engaged in “racketeering
activity,” which means “to commit, to attempt to commit, to conspire to
commit a violation of, or aiding and abetting in a violation” of any of the listed
offenses. It is undisputed that racketeering activity includes dealing in
methamphetamine. See I.C. § 35-45-6-1(e)(29).
[51] Third, we consider whether the dealers’ behavior amounted to a “pattern of
racketeering activity,” which is defined as “engaging in at least two (2) incidents
of racketeering activity that have the same or similar intent, result, accomplice,
victim, or method of commission, or that are otherwise interrelated by
distinguishing characteristics that are not isolated incidents . . . .” I.C. § 35-45-
6-1(d).
[T]he statute does not apply to sporadic or disconnected criminal
acts. Thus, although failure to prove continuity [of the acts] is
not necessarily fatal to a corrupt business influence conviction—
since it is not a separate element in the statute—the State must
still demonstrate that the criminal incidents were in fact a
“pattern” and not merely “isolated” incidents. And evidence of a
degree of continuity or threat of continuity is certainly helpful in
establishing the necessary “pattern.”
Purvis, 87 N.E.2d at 1127 (quoting Jackson v. State, 50 N.E.3d 767, 775-76 (Ind.
2016).
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[52] Here, the State established that the drug dealers’ crimes were neither isolated
nor sporadic by presenting evidence of the interrelated nature of their activities,
including the methamphetamine transactions involving Rodriguez and Moreida
on August 23 and October 22, 2016; the dealers’ coordinated operating
practices; the frequency, extent, and nature of their interactions; and that their
drug transactions followed similar patterns and timeframes and were completed
with the same intent, which was to sell methamphetamine.
[53] Based on the foregoing, we find that the State presented sufficient evidence to
support Rodriguez’s conviction for Level 5 felony corrupt business influence.
IV. Jury Instruction
[54] Rodriguez argues that, in instructing the jury, the trial court “failed to give a
separate instruction on intent to deliver” and “effectively misled the jury on the
law regarding [the] charged offense.” Appellant’s Br. p. 40.
With no separate instruction, and the coupl[ing] of intent to
deliver with possession in listing the necessary elements of the
charged offense, the jury was giv[en] the impression that if they
found [Rodriguez] had constructive possession of the
methamphetamine … then . . . he [necessarily] also had the
requisite intent to deliver . . . .
Id. Because defense counsel failed to object, Rodriguez asserts that the alleged
error in instructing the jury constituted fundamental error.
[55] Our Supreme Court set out the applicable standard of review as follows:
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Because instructing the jury is a matter within the sound
discretion of the trial court, we will reverse a trial court’s decision
to tender or reject a jury instruction only if there is an abuse of
that discretion. We determine whether the instruction states the
law correctly, whether it is supported by record evidence, and
whether its substance is covered by other instructions. “Jury
instructions are to be considered as a whole and in reference to
each other; error in a particular instruction will not result in
reversal unless the entire jury charge misleads the jury as to the
law in the case.”
Where, as here, the defendant failed to preserve an alleged
instructional defect, the objection is waived, and reversal is
warranted only in instances of fundamental error. “Error is
fundamental if it is ‘a substantial blatant violation of basic
principles’ and where, if not corrected, it would deny a defendant
fundamental due process.” This exception to the general rule
requiring a contemporaneous objection is narrow, providing
relief only in “egregious circumstances” that made a fair trial
impossible.
Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (internal citations omitted).
[56] In the virtually-identical Preliminary Instruction Number 3 and Final
Instruction Number 4, the trial court enumerated the elements of Level 2 felony
dealing in methamphetamine as follows:
Before you may convict the Defendant, the State must have
proved each of the following elements beyond a reasonable
doubt:
1. The Defendant;
2. possessed, with intent to deliver
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3. methamphetamine
4. and the amount of the drug involved was at least ten (10)
grams.
If the State failed to prove each of these elements beyond a
reasonable doubt, you should find the Defendant, ENEDEO
RODRIGUEZ, JR, not guilty of Dealing in Methamphetamine,
a Level 2 Felony, Charged in Count I.
App. Vol. II pp. 109, 129 (emphasis added).
[57] Rodriguez correctly states that it is fundamental error for the trial court to fail to
give an instruction setting forth all the elements of the offense. Nantz v. State,
740 N.E.2d 1276, 1282 (Ind. Ct. App. 2001). We find no such error here,
however. From our review of the record, by stating the second element of the
offense as it did and separating the mens rea and the possession components,
the trial court alerted jurors that both components of the clause comprised the
element. Thus, the instruction’s “possessed, with intent to deliver” is the
functional equivalent of “possessed, [and] with intent to deliver….”
[58] Coupled with the trial court’s repeated instruction to jurors that “[if] the State
failed to prove each of these elements beyond a reasonable doubt, you should
find the Defendant . . . not guilty,” we cannot say that the jury was misled into
believing that evidence that Rodriguez constructively possessed
methamphetamine necessarily meant that he intended to deliver the
methamphetamine. Id. at 110. As stated above, the State presented evidence
from which the jury could reasonably and independently infer that Rodriguez
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intended to deliver methamphetamine. See McGuire, 613 N.E.2d at 864
(holding that possession of a large quantity of drugs, scales, plastic bags, and
other paraphernalia is circumstantial evidence of intent to deliver). Rodriguez
has not persuaded us that he was deprived of a fair trial as a result of the court’s
instructions to the jury; we find no fundamental error.
V. Sentence
[59] Rodriguez argues that his sentence is inappropriate in light of the nature of his
offenses and his character. We may revise a sentence if it is “inappropriate in
light of the nature of the offense and the character of the offender.” Ind.
Appellate Rule 7(B). Whether the reviewing court regards a sentence as
inappropriate turns on a “sense of the culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
This Court “must give ‘deference to a trial court’s sentencing decision, both
because Rule 7(B) requires us to give due consideration to that decision and
because we understand and recognize the unique perspective a trial court brings
to its sentencing decisions.’” Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App.
2013) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)).
Rodriguez bears the burden of persuading us that his sentence is inappropriate.
Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007).
[60] The advisory sentence is the starting point to determine the appropriateness of a
sentence. See Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007). The advisory sentence for a Level 2 felony is
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seventeen and one-half years, with a minimum sentence of ten years and a
maximum sentence of thirty years. Ind. Code § 35-50-2-4.5 (2014). Here, the
trial court imposed an enhanced sentence of twenty-seven years for Level 2
felony dealing in methamphetamine. The advisory sentence for a Level 5
felony is three years, with a minimum sentence of one year and a maximum of
six years. I.C. § 35-50-2-6 (2014). Here, the trial court imposed an enhanced
five-year sentence for Level 5 felony corrupt business influence.
[61] As to the nature of the offenses, Rodriguez was among the architects of and
actively participated in a drug dealing operation in which he, Jaquez, Nava,
Rivera, and Moreida dealt methamphetamine. Rodriguez recruited Moreida to
sell methamphetamine for the operation and to store smaller quantities of
methamphetamine at his house. Rodriguez obtained, packaged for sale, and
transported methamphetamine, which he supplied to Jaquez, Nava, Rivera,
and Moreida for their larger-scale transactions. Ranked at the higher end of the
hierarchy, Rodriguez schemed and incorporated measures to hide his key role
in the drug operation, including using coded language on the phone with his
fellow dealers; using R&R’s vehicles to transport methamphetamine; shuttling
methamphetamine between cities, vehicles, and houses; and waiting at a safe
distance while an underling (Moreida) completed transactions. A police search
of Rodriguez’s house and vehicle yielded more than ten times the statutory
amount of methamphetamine required to prove Level 2 felony dealing in
methamphetamine, as well as other evidence of dealing activity, i.e., a cutting
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agent, digital scales, resealable bags, vacuum sealers, six to eight cell phones,
and bulk quantities of cellophane.
[62] With regard to his character, Rodriguez has multiple misdemeanor and felony
convictions, including convictions for class A misdemeanor possession of
marijuana/hash (2000), class D felony possession of marijuana/hash (2001),
class A misdemeanor driving while suspended (2004, 2006 X 2), and conspiracy
to possess with intent to distribute Schedule I controlled substance – marijuana
(2006). He was incarcerated at the age of twenty-five until the age of thirty-
three. He was on federal probation when he committed the instant offenses.
[63] Rodriguez’s refusal to address his substance abuse also reflects poor on his
character. The pre-sentence investigation report provides that he began using
cocaine at age fifteen and used it regularly, with his last known cocaine use
occurring two months before his arrest in November 2016. Rodriguez also
reported that he used methamphetamine from October 2014 until his arrest.
[64] The record sheds additional light on Rodriguez’s character as follows: he
recruited his friend’s brother, Moreida, into dealing methamphetamine for him,
and Moreida became acutely addicted to the drug. Because Rodriguez’s
primary concern was shielding himself from prosecution, he refused to take
Moreida to an emergency room when he suffered an overdose; enlisted
Moreida to store methamphetamine at his house; ensured that Moreida
assumed more risk, including making the transaction arrangements with
prospective buyers and completing deliveries as Rodriguez waited nearby;
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suggested at trial that methamphetamine found in his house belonged to his
wife; and threatened Moreida for cooperating with the State.
[65] The yearlong investigation into area suppliers of methamphetamine revealed
Rodriguez’s role in the drug dealing operation. Given his prior criminal
history, extensive drug and alcohol abuse, commission of the instant offenses
while on federal probation, unwillingness to abandon criminal activity despite
ample opportunities to do so, his threats to a cooperating State witness, and the
lengths he took to evade capture, we cannot say that his thirty-two-year
sentence is inappropriate in light of the nature of his offenses and his character.
Conclusion
[66] The trial court did not violate Rodriguez’s right to a speedy trial. Nor did it err
in denying his motion to sever the charges against him. Sufficient evidence
exists to support his convictions for Level 2 felony dealing in methamphetamine
and Level 5 felony corrupt business influence. The trial court’s instructions to
the jury did not give rise to fundamental error. Rodriguez’s sentence is not
inappropriate. We affirm.
[67] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
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