Robert L. Moore v. State of Indiana (mem. dec.) ( 2018 )


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  •       MEMORANDUM DECISION
    FILED
    Pursuant to Ind. Appellate Rule 65(D),                             Jun 29 2018, 6:36 am
    this Memorandum Decision shall not be                                   CLERK
    regarded as precedent or cited before any                           Indiana Supreme Court
    Court of Appeals
    and Tax Court
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    R. Patrick Magrath                                       Curtis T. Hill, Jr.
    Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
    Madison, Indiana
    Lyubov Gore
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Robert L. Moore,                                         June 29, 2018
    Appellant-Defendant,                                     Court of Appeals Case No.
    15A01-1711-CR-2767
    v.                                               Appeal from the Dearborn
    Superior Court
    State of Indiana,                                        The Honorable Jonathan N.
    Appellee-Plaintiff.                                      Cleary, Judge
    Trial Court Cause No.
    15D01-1605-F4-0026
    Mathias, Judge.
    [1]   Robert L. Moore (“Moore”) was found guilty in the Dearborn Superior Court
    of Level 4 felony conspiracy to commit dealing in a narcotic drug weighing at
    least one gram, Level 5 felony dealing in a narcotic drug, and was adjudicated
    Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018        Page 1 of 10
    an habitual offender. The trial court sentenced Moore to an aggregate term of
    twenty-eight years executed in the Department of Correction (“DOC”). Moore
    appeals and raises the following issues, which we restate as:
    I. Whether the State presented sufficient evidence to support
    Moore’s conviction for dealing in a narcotic drug; and
    II. Whether the State presented sufficient evidence to establish
    that Moore conspired to deal at least one gram of a narcotic drug.
    [2]   We affirm in part, reverse in part and remand for proceedings consistent with
    this opinion.
    Facts and Procedural History
    [3]   On May 13, 2016, Trevor Adkins (“Adkins”) was arrested on an outstanding
    warrant for possession of heroin in Dearborn County, Indiana. Adkins
    volunteered to contact drug dealers he had purchased from in the past to assist
    police officers who conduct controlled drug buys.
    [4]   Later that same day, Adkins voluntarily contacted a heroin dealer who was
    later identified as Kevin Sanders (“Sanders”). The Greendale Police
    Department orchestrated the logistics of the controlled buy, and Adkins relayed
    that information to Sanders. Adkins and Sanders agreed to meet at Party at
    Trav’s Fireworks (“Trav’s”).
    [5]   Officer Dustin Hatfield (“Officer Hatfield”) drove Adkins to Trav’s in his
    personal vehicle, a blue Ford F-150 (“Ford”). Prior to arriving at Trav’s, officers
    Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018   Page 2 of 10
    searched the Ford to ensure that there were no illegal substances or other
    contraband in the vehicle. The officers also conducted a pat-down search of
    Adkins to “make sure he had no money or contraband on his person[.]” Tr.
    Vol. I, p. 83.
    [6]   Upon arriving at Trav’s, the officer transporting Adkins requested that the meet-
    up location be changed “due to officer safety” because “it was dark, the lighting
    [at Trav’s] was poor[.]” Id. at 25. Adkins asked Sanders to meet him at
    Ameristop’s parking lot, which shared a parking lot with Trav’s but had better
    lighting. Sanders called Atkins on the way to Ameristop and informed Adkins
    that he was lost and needed to stop and get gas. Adkins agreed to meet Sanders
    at a Shell Gas Station which was approximately two-tenths of a mile from the
    Ameristop. Id. at 28. Sanders told Adkins to look for a white Camaro.
    [7]   Officer Hatfield “observed only one white [Camaro] in the parking lot[,]” and
    he parked his truck directly in front of the Camaro. Id. at 30. He was able to see
    the driver and passenger in the Camaro, and Adkins identified the passenger as
    Sanders. Before Adkins exited the Ford, he and Officer Hatfield watched
    Sanders climb into the back seat of the Camaro. Adkins then approached the
    Camaro, entered the vehicle, and sat in the front passenger seat. Officer
    Hatfield had a clear view of Adkins and the driver, who was later identified as
    Moore. The officer saw Moore give Adkins an unidentifiable object and
    watched Adkins hand Moore the $200 buy money. As they had planned,
    Adkins signaled to Officer Hatfield when the transaction was complete.
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    Thereafter, Adkins gave Officer Hatfield a clear plastic bag containing a white
    substance that was later identified as fentanyl.
    [8]    Three officers approached the Camaro after Adkins purchased the fentanyl
    from Moore. As Officer Hatfield removed Moore from the driver’s seat, the
    money Adkins gave to Moore fell from his lap. Sanders and Moore were
    immediately arrested, and the officers searched the vehicle. During the vehicle
    search, the officers found a rock-like substance wrapped in brown paper in the
    backseat.
    [9]    The two substances were submitted to a testing lab, and both were identified as
    fentanyl. The clear bag of fentanyl weighed 0.76 gram, and the rock-like
    substance contained 0.25 gram of fentanyl. The aggregate weight of fentanyl
    found in Moore’s possession was 1.01 grams. On May 16, 2016, the State
    charged Moore with Level 4 felony conspiracy to commit dealing in a narcotic
    weighing at least one gram, and Level 5 felony dealing in a narcotic drug. The
    State also alleged that Moore is an habitual offender.
    [10]   On October 5, 2017, a two-day bench trial was held. The chemist who
    performed the preliminary and conclusive testing testified that there was a
    margin of error of ±0.02 gram per each sample of fentanyl. Tr. Vol. I, p. 180.
    The chemist agreed with the trial court that “if you [took] the total net weight
    you would [] actually be somewhere then between” 0.97 to 1.05 grams. Id. at
    185. Moore’s counsel argued that because of the margin of error, the evidence
    was insufficient to prove a weight of at least one gram. Id. at 227.
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    [11]   The court disagreed and found Moore guilty of Level 4 felony conspiracy to
    deal a narcotic drug weighing at least one gram and Level 5 felony dealing in a
    narcotic drug, and found that Moore is an habitual offender. At Moore’s
    sentencing hearing on October 25, 2017, the court considered Moore’s criminal
    history an aggravating factor. The court found as a mitigating factor Moore’s
    medical conditions, specifically, his significant, chronic cardiac and vascular
    complications. The trial court sentenced Moore to serve an aggregate term of
    twenty-eight years executed in the DOC; specifically, the court sentenced
    Moore to serve a concurrent term of ten years for the Level 4 felony conspiracy
    to commit dealing in a narcotic drug weighing at least one gram, and five years
    for the Level 5 felony dealing in a narcotic drug. For the habitual offender
    adjudication, Moore’s sentence was enhanced by eighteen years. Moore now
    appeals.
    Discussion and Decision
    [12]   Moore argues that the State presented insufficient evidence to support his
    convictions for dealing in a narcotic and conspiracy to commit dealing in a
    narcotic drug weighing at least one gram. When considering a challenge to the
    sufficiency of evidence to support a conviction, we respect the factfinder’s
    exclusive province to weigh conflicting evidence, and we therefore neither
    reweigh the evidence nor judge witness credibility. McHenry v. State, 
    820 N.E.2d 124
    , 126 (Ind. 2005). We consider only the probative evidence and reasonable
    inferences supporting the judgment, and “must affirm ‘if the probative evidence
    and reasonable inferences drawn from the evidence could have allowed a
    Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018   Page 5 of 10
    reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.’”
    
    Id.
     (quoting Tobar v. State, 
    740 N.E.2d 109
    , 111–12 (Ind. 2000)).
    I. Sufficient Evidence of Dealing
    [13]   To convict Moore of Level 5 felony dealing in a narcotic drug, the State was
    required to prove beyond a reasonable doubt that Moore possessed fentanyl
    with intent to deliver. See 
    Ind. Code § 35-48-4-1
    ; Appellant’s App. Vol. II, p.
    125. Here, Moore contends that the State failed to provide sufficient evidence to
    prove that he “agreed to or participated in the sale or distribution of a narcotic.”
    Appellant’s Br. at 12. Specifically, Moore argues that Adkins arranged to
    purchase the fentanyl through Sanders, and only Sanders occupied the backseat
    where the brown rock-like substance (later identified as fentanyl) was found.
    Thus, Moore claims that the State proved that only Sanders possessed the
    fentanyl.
    [14]   Moore ignores Officer Hatfield’s testimony that he saw Adkins hand Moore
    $200 and then watched Moore hand an item to Adkins. It is reasonable to infer
    that Moore gave Adkins the clear plastic bag that contained 0.76 gram of
    fentanyl. Adkins then signaled to Officer Hatfield that the transaction was
    complete. Further, upon removing Moore from the Camaro, Office Hatfield
    saw the “buy money” fall from Moore’s lap. This evidence establishes that
    although Adkins arranged to purchase heroin from Sanders, Moore was an
    active participant in the drug deal.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018   Page 6 of 10
    [15]   Moreover, Moore constructively possessed both the clear bag of fentanyl and
    the fentanyl found in the backseat. A conviction for possession of a controlled
    substance may rest upon proof of either actual or constructive possession. Britt
    v. State, 
    810 N.E.2d 1077
    , 1082 (Ind. Ct. App. 2004). Evidence of constructive
    possession is sufficient where the State proves that the defendant had both the
    intent and capability to maintain dominion and control over the contraband.
    Hardister v. State, 
    849 N.E.2d 563
    , 573 (Ind. 2006). “A substance can be
    possessed jointly by the defendant and another without any showing that the
    defendant had actual physical control thereof.” Godar v. State, 
    643 N.E.2d 12
    ,
    14 (Ind. Ct. App. 1994), trans. denied.
    [16]   The evidence established that Moore had the intent and capability to maintain
    control and dominion over the fentanyl. Although the State did not prove that
    Moore owned the Camaro, he drove the car from Ohio to Lawrenceburg,
    Indiana, and had a possessory interest in the vehicle as the driver. And our
    supreme court has explained that “proof of a possessory interest in the premises
    in which the illegal drugs are found is adequate to show the capability to
    maintain control and dominion over the items in question.” Davenport v. State,
    
    464 N.E.2d 1302
    , 1307 (Ind. 1984), cert. denied; see also State v. Emry, 
    753 N.E.2d 19
    , 22 (Ind. Ct. App. 2001). Furthermore, Moore’s participation in the
    controlled buy established his knowledge and possession of the fentanyl.
    [17]   Moore’s claim that he merely agreed to give Sanders a ride is simply a request
    to reweigh the evidence and credibility of the witnesses, which we will not do.
    McHenry v. State, 820 N.E.2d at 126. For all of these reasons, we conclude that
    Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018   Page 7 of 10
    the State presented sufficient evidence to prove that Moore committed Level 5
    felony dealing in a narcotic drug.
    II. Sufficient Evidence of the Weight of the Fentanyl
    [18]   To convict Moore of Level 4 felony conspiracy to commit dealing in a narcotic
    drug, the State was required to prove beyond a reasonable doubt that Moore
    agreed with another person to commit dealing in a narcotic, and that he or the
    person he agreed with took an overt act in furtherance of the conspiracy to
    deliver at least one gram of fentanyl.1 See 
    Ind. Code §§ 35-41-5-2
    ; 35-48-4-1; see
    also Appellant’s App. Vol. II, p. 14. Moore argues that the State failed to prove
    beyond a reasonable doubt that the aggregate weight of the drugs was at least
    one gram because the State’s own expert testified “there was reasonable doubt
    as to the aggregate weight.”2 Appellant’s Br. at 14.
    [19]   In Halsema v. State, 
    823 N.E.2d 668
    , 674 (Ind. 2005) our supreme court held
    that the State may establish the weight element of a drug offense in one of two
    ways: (1) by offering evidence of the actual, measured weight of the drugs, or
    (2) by demonstrating that the quantity of the drugs is so large as to permit a
    1
    Indiana Code Section 35-48-4-1 provides that dealing in a narcotic drug is a Level 5 felony, except as
    provided in subsections (b) through (e). The pertinent exception here is subsection (c), which provides that
    “the offense is a Level 4 felony if: (1) the amount of the drug involved is at least one (1) gram but less than
    five (5) grams[.]”
    2
    Moore also argues that the drugs found in the backseat of the car should not have been included in the total
    weight used to convict him. Appellant’s Br. at 13–14. But since we conclude that the State has failed to prove
    beyond a reasonable doubt that the aggregate weight of the fentanyl was at least one gram, we will not
    address this issue.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018                 Page 8 of 10
    reasonable inference that the element of the weight has been established.3 More
    recently, the court reiterated that “only direct evidence, not circumstantial
    evidence, may sustain a weight enhancement.” Buelna v. State, 
    20 N.E.3d 137
    ,
    148 (Ind. 2014).
    [20]   Here, the State offered testimony from a chemist who testified that the two
    packages of fentanyl had an aggregate weight of 1.01 grams. Tr. Vol. I, p. 185.
    However, the chemist also testified that there is a margin of error of ±0.02
    grams per each sample. 
    Id. at 180
    . Therefore, based on the expert testimony, the
    precise aggregate weight of the fentanyl is between 0.97 and 1.05 grams.4 The
    State presented circumstantial evidence that Moore knew he was delivering one
    gram because Adkins agreed to purchase one gram for $200, but circumstantial
    evidence is not sufficient to sustain a weight enhancement. See Buelna, 20 N.E.
    3d at 137. Therefore, the State failed to present evidence to prove beyond a
    reasonable doubt that the aggregate weight of the fentanyl was at least one
    gram. See Drane v. State, 
    867 N.E.2d 144
    , 146 (Ind. 2007) (stating we will affirm
    the conviction, unless no reasonable fact-finder could conclude the elements of
    the crime were proven beyond a reasonable doubt). For these reasons, we find
    3
    Neither party argues that the quantity of drugs is so large as to permit a reasonable inference to establish the
    element of weight.
    4
    During trial, the chemist referenced hand-written notes, and counsel stated these “hand written notes that
    are finalized in a report” were provided to defense counsel. Tr. Vol. I, p. 167. However, we note that the
    chemist’s final report was not submitted as part of the record before us.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018                 Page 9 of 10
    that the evidence was insufficient to support Moore’s Level 4 felony conviction
    for conspiracy to commit dealing in a narcotic drug weighing at least one gram.
    Conclusion
    [21]   Under these facts and circumstances, we conclude that the evidence is sufficient
    to support Moore’s conviction for Level 5 felony dealing in a narcotic drug. But
    with regard to the conspiracy charge, we conclude that the State failed to prove
    beyond a reasonable doubt that the weight of the fentanyl was at least one
    gram. Therefore, we remand this case to the trial court with instructions to
    enter judgment for conspiracy to commit dealing in a narcotic drug as a Level 5
    felony, and to impose a new sentence accordingly.5
    [22]   Affirmed in part, reversed in part, and remanded.
    Riley, J., and May, J., concur.
    5
    Because we reverse and remand for resentencing, we will not address Moore’s claim that his sentence is
    inappropriate in light of the nature of the offense and his character.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018           Page 10 of 10
    

Document Info

Docket Number: 15A01-1711-CR-2767

Filed Date: 6/29/2018

Precedential Status: Precedential

Modified Date: 6/29/2018