Carlton Hillman v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, Jan 24 2014, 9:21 am
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIC K. KOSELKE GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CARLTON HILLMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1305-CR-241
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven Eichholtz, Judge
Cause No. 49G20-1206-FA-39940
January 24, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Carlton Hillman appeals his convictions for Class A felony dealing in cocaine and
Class B felony dealing in a narcotic drug. He argues that the evidence is insufficient to
establish that he intended to deliver the cocaine and heroin he possessed when he was
arrested. Finding the evidence sufficient to sustain his convictions, we affirm.
Facts and Procedural History
On an evening in June 2012 at approximately 7:00 p.m., Detective Richard
Wilkerson and other Indianapolis Metropolitan Police Department officers, as part of a
narcotics investigation, were searching for Hillman in the vicinity of 38th Street and
Boulevard Place in Indianapolis. According to police, the area is a high-crime area known
for drug-trafficking activities. The officers eventually went to a residence at 3841
Rookwood Avenue.
When Detective Wilkerson approached the porch, before announcing his presence,
he saw Hillman. Hillman was lying on his back on the porch and his hands were over his
head with his right hand underneath the cushion of the chair closest to him.
Detective Wilkerson identified himself and commanded Hillman to show his hands.
Hillman took his right hand out from underneath the cushion and stuck it in his right pocket.
Detective Wilkerson yelled at him to take his hand out of his pocket and show his hands.
Hillman took his hand out of his pocket and stuck it back underneath the cushion. When
Detective Wilkerson again commanded Hillman to show his hands, Hillman complied.
Once Hillman was handcuffed, Detective Wilkerson went to the chair where
Hillman was placing his hand underneath the cushion. When he moved the chair cushion,
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a bag of drugs fell to the ground underneath the chair. Laboratory tests of the drugs showed
that the bag contained 21.7261 grams of crack cocaine and 1.708 grams of powdered
heroin. Ex. 12.
The officers then searched Hillman and found three cellular phones and $627 dollars
in cash in his front left pocket. The cash consisted of four $50 bills, nineteen $20 bills,
three $10 bills, three $5 bills, and two $1 bills, all folded together. The officers did not
recover any pipes or needles consistent with the use of cocaine or heroin. Moreover,
Hillman did not have any track marks on his arms, burned lips, or burned fingertips.
The State charged Hillman with Class A felony dealing in cocaine, Class C felony
possession of cocaine, Class B felony dealing in a narcotic drug, and Class D felony
possession of a narcotic drug. Appellant’s App. p. 24.
A jury trial was held. At trial, Detective Jeremy Ingram, a narcotics investigator for
over ten years, testified. He explained that drug dealers typically have multiple prepaid
cellular phones, using one for personal use and others for their drug business. According
to Detective Ingram, these prepaid phones can be disposed of easily and cannot be traced
to the drug dealer using them.
Detective Ingram also testified about the amount of money found on a drug dealer.
Generally, cocaine dealers carry money in smaller denominations, such as $20 or $10 bills.
Detective Ingram also testified that dealers will sell crack cocaine in tenth-of-gram
quantities.
Detective Ingram also explained the significance of the amount of money and
cocaine found on Hillman when he was arrested. The amount of cocaine found on Hillman
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was 21.7261 grams, or about 6.3 grams short of an ounce. According to Detective Ingram,
if Hillman had started with one ounce and sold it at $100 per gram, he would have about
$630 of cash in his possession.
Detective Ingram also testified about the characteristics of crack-cocaine and heroin
users. Crack-cocaine dealers that use the crack cocaine have burned and charred fingers,
blackened fingernails, blackened fingers, burns on the lips, and burns on the tongue.
Heroin users have “very peaked skin, loss of teeth, track marks, easily bruising from so
much use of the vein.” Tr. p. 182. Moreover, “[a] heroin user is going to want to use
several times a day. Bruising, bleeding, very poor hygiene.” Id.
According to Detective Ingram, a heroin dealer typically has a much smaller amount
of heroin than cocaine on his person because it is so addictive. Detective Ingram testified
that he has never seen a heroin user have enough money to buy several grams of heroin at
once.
In Detective Ingram’s opinion, having $627 in cash, 21.7 grams of crack cocaine,
1.7 grams of heroin, and no signs indicating personal use of crack cocaine or heroin, is
consistent with a person who is dealing in cocaine and heroin.
The jury found Hillman guilty of all charges. Id. at 244-45. The trial court entered
judgments of conviction on Class A felony dealing in cocaine and Class B felony dealing
in a narcotic drug. Id. at 246-47. The trial court sentenced Hillman to an aggregate term
of thirty years with twenty years executed in the Department of Correction and ten years
suspended to probation. Id. at 260.
Hillman now appeals.
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Discussion and Decision
Hillman argues that the evidence is insufficient to sustain his convictions for Class
A felony dealing in cocaine and Class B felony dealing in a narcotic drug. When reviewing
the sufficiency of the evidence, we neither reweigh the evidence nor determine the
credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We look solely
to the evidence most favorable to the verdict together with all reasonable inferences to be
drawn therefrom. Id. A conviction will be affirmed if the probative evidence and
reasonable inferences to be drawn from the evidence could have allowed a reasonable trier
of fact to find the defendant guilty beyond a reasonable doubt. Id.Class B felony dealing in cocaine or dealing in a narcotic drug occurs when a person
possesses cocaine or a narcotic drug with the intent to deliver. Ind. Code § 35-48-4-
1(a)(2)(C). The offense is elevated to a Class A felony if the amount of the drug involved
weighs three grams or more. I.C. § 35-48-4-1(b)(1).
Hillman argues that the evidence is not sufficient to prove that he had the intent to
deliver the cocaine and heroin he possessed when he was arrested. Circumstantial evidence
of a defendant’s intent to deliver cocaine or another narcotic is sufficient to prove that
element of the offense. Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003), reh’g
denied, trans. denied. Additionally, “[t]he more narcotics a person possesses, the stronger
the inference that he intended to deliver it and not consume it personally.” Id. (quoting
Love v. State, 741 N.E.2d 789, 792 (Ind. Ct. App. 2001)).
In this case, the evidence most favorable to the verdict suggests that Hillman
possessed crack cocaine and heroin with the intent to deliver it. When Hillman was
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arrested, police officers found 21.7261 grams of cocaine, 1.708 grams of heroin, $627 in
cash, and three cellular phones.
The amount of drugs found, alone, is sufficient evidence that Hillman intended to
deliver cocaine and heroin. According to Detective Ingram, crack-cocaine dealers
generally sell an ounce, which is approximately 28 grams, of crack cocaine to various
customers. An ounce produces 140 dosage units. Tr. p. 179. Here, Hillman had in his
possession 21.726 grams.
Similarly, Detective Ingram testified that 1.708 grams of heroin would produce
between seventeen and thirty-five dosage units “without putting any type of cut or any type
of procaine or anything on it to stretch that out at all.” Id. at 185-86. According to
Detective Ingram, a heroin user generally has only two to three dosage units in their
possession at one time. Id. at 186. Hillman had approximately seventeen dosage units on
him when he was arrested. These amounts of crack cocaine and heroin are significantly
higher than the amount he would need for his own personal consumption. For this reason,
Detective Ingram concluded that Hillman intended to sell heroin rather than consume it.
Id. at 187.
Moreover, Hillman had in his possession $627 in mostly small bills. The amount
of money in Hillman’s possession was significant because Detective Ingram testified that
crack cocaine is typically sold at a rate of $100 per gram. Because Hillman had
approximately 6.3 grams less than an ounce of heroin and approximately $630 in cash in
his possession, Detective Ingram concluded that Hillman was dealing in crack cocaine.
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Hillman argues that he did not have the intent to distribute crack cocaine or heroin
because the State did not present evidence of guns, scales, baggies, or any tools that could
be used to cut crack cocaine or heroin. Appellant’s Br. p. 6-7.
However, other circumstantial evidence suggests that Hillman intended to distribute
crack cocaine and heroin. When Hillman was searched, the police found three cellular
phones on his person. According to Detective Ingram, drug dealers usually have multiple
cellular phones to separate personal phone calls from business phone calls.
Moreover, Detective Ingram testified that crack cocaine users usually have burned
and charred fingers, blackened fingernails, burns on the lips, burns on the tongue, and lost
teeth. Tr. p. 175-76. Heroin users usually have very peaked skin, loss of teeth, track marks,
bruising, bleeding, and very poor hygiene. Id. at 182. Detective Wilkerson specifically
testified that he did not notice any burned lips, burned fingertips, or track marks. Id. at 63.
Hillman did not exhibit the characteristics of someone who was using the crack cocaine or
heroin, further supporting the jury’s conclusion that he intended to distribute both crack
cocaine and heroin.
Hillman also argues that there was no evidence presented showing that he did not
have some of the characteristics of a crack-cocaine or heroin user. Appellant’s Br. p. 6-7.
Although there was no evidence regarding the condition of Hillman’s teeth or whether he
had a burnt tongue, both Detective Wilkerson and Detective Scott Wolfe specifically
testified that they did not notice any burned lips, burned fingertips, or track marks on his
arms. Id. at 63, 143. As to Hillman’s argument that he would not have had track marks if
he had ingested the heroin by snorting or smoking it, it is simply a request for this Court to
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reweigh the evidence, which we may not do. The evidence is sufficient to prove that
Hillman intended to distribute cocaine and heroin.
Affirmed.
RILEY, J., and MAY, J., concur.
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