Antonio A. Burgos, Sr. v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
Apr 25 2013, 9:35 am
regarded as precedent or cited before any
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:
JEFFREY G. RAFF GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTONIO A. BURGOS, SR., )
)
Appellant-Defendant, )
)
vs. ) No. 02A04-1209-CR-461
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D04-1108-FD-1039
April 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Antonio Burgos, Sr. appeals his conviction for class D felony Possession of
Marijuana. 1 Burgos presents as the sole issue on appeal the sufficiency of the evidence
supporting his conviction.
We affirm.
On July 26, 2011, a United States Postal Inspector in Fort Wayne, Andrew Gottfried,
received information from postal inspectors in McAllen, Texas, regarding a suspicious
express mail package. The relatively large package was allegedly being sent from an address
in McAllen by an Able Salinas to an Oscar Salinas at an apartment in Fort Wayne. The
inspectors in McAllen investigated and found that the address from which the package was
purportedly sent was a law firm, the employees of which had no knowledge of any Able
Salinas.
Inspector Gottfried received the package in Fort Wayne around 7:00 a.m. on July 27.
Upon investigation of the addressee, Gottfried determined that no Oscar Salinas resided at
the residence in question, or anywhere else in Fort Wayne. Rather, Burgos was the current
resident of record at this address. Following a K-9 alert on the package, Gottfried sought and
obtained a federal search warrant for the package.
Gottfried and Corporal James Gasvoda of the Allen County Police Department
executed the warrant around noon. Inside the package, they discovered a cooler that
contained various non-perishable food items. Upon further investigation, they observed that
the interior lining of the cooler had been altered. Underneath the liner, they discovered six
1
Ind. Code Ann. § 35-48-4-11 (West, Westlaw current with all 2012 legislation).
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heat-sealed packages, each containing approximately a pound of marijuana. Gottfried and
Gasvoda then decided to attempt a controlled delivery after repackaging everything.
Gasvoda and other officers surveilled the area while Gottfried, dressed as a postal
employee, took the package to the address listed thereon at approximately 2:00 p.m.
Gottfried knocked on the door of the apartment, and Burgos answered. Gottfried asked
Burgos if he was Oscar Salinas, and Burgos responded affirmatively. Gottfried then set the
package down and asked Burgos to sign the postal delivery form. Burgos signed the express
mail mailing label with the name Oscar Salinas and accepted the package.
Police maintained surveillance while a search warrant was obtained for Burgos’s
residence. Within an hour, police executed a search warrant. Burgos was the only individual
at the residence when the warrant was executed, and the package was located inside his
apartment. Burgos had not opened it. Burgos denied knowledge of the contents of the
package and indicated that he had agreed to accept it for a friend named Manuel. He could
not further identify Manuel, and Burgos indicated that he did not know anyone by the name
Oscar Salinas.
Officers searched Burgos’s apartment and found a drawer in the kitchen with used
plastic baggies, some of which had their corners torn off. Also in this drawer was a digital
scale with a green plant material on it that tested positive for marijuana. Officers also seized
rolling papers and an empty box of cigarillos, which are often used to make marijuana blunts.
On August 2, 2011, the State charged Burgos with possession of marijuana in excess
of thirty grams, a class D felony. The case proceeded to jury trial on July 3, 2012, with
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Burgos representing himself. The jury found Burgos guilty as charged, and the court
subsequently sentenced him to eight months in prison.
On appeal, Burgos challenges the sufficiency of the evidence. He acknowledges that
his conduct “raises questions about what he knew” and is “suspicious.” Appellant’s Brief at
4. He appears to argue, however, that he could not be convicted because he did not open the
package after it was delivered. Accordingly, Burgos claims that the State failed to establish
that he knew the package contained marijuana.
Our standard of review for challenges to the sufficiency of the evidence is well settled.
When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Henley
v. State, 881 N.E.2d 639, 652 (Ind. 2008). “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.Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). Further, when the evidence is
circumstantial, as it is here, it is not necessary that every reasonable hypothesis of innocence
be overcome. Jernigan v. State, 612 N.E.2d 609, 613 (Ind. Ct. App. 1993) (“a verdict upon
which reasonable men may differ will not be set aside”), trans. denied.
In order to convict Burgos, the State had to prove he had knowledge of the nature of
the marijuana and its presence. See Jernigan v. State, 612 N.E.2d 609. “A person engages in
conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability
that he is doing so.” Ind. Code Ann. § 35-41-2-2(b) (West, Westlaw current with all 2012
legislation). “Because knowledge is a mental state of the actor, the trier of fact must resort to
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reasonable inferences based on the examination of the surrounding circumstances to
reasonably infer its existence.” Jernigan v. State, 612 N.E.2d at 613.
In Jernigan, we found that surrounding circumstances sufficiently established
knowing possession of cocaine, despite the fact that the defendant had not opened the
package he received during the controlled delivery. In so holding, we observed:
Jernigan called the post office twice trying to locate the parcel. When it was
delivered he acknowledged he was the addressee and he had been waiting for
the package to arrive. Once he received the package, Jernigan left his house
with the unopened package and drove off rapidly. This and the other evidence
previously mentioned in this opinion raises a reasonable inference Jernigan
knew what the package contained. There was substantial evidence having
probative value from which the jury could find beyond a reasonable doubt, as
it did, Jernigan was guilty of possession of cocaine with intent to deliver.
Id. The other relevant evidence appears to have been that Jernigan knew the unique package
identification number when he called to check on the package and that the return address on
the package was fictitious.
In the instant case, the attendant circumstances also support a reasonable inference
that Burgos had knowledge of the nature of the contents of the package. Burgos knowingly
accepted an express package from Texas for which he was waiting alone in his apartment.
The package was mailed from a fictitious sender to Burgos’s address, with a fictitious name
used for the addressee. Upon delivery of the package, Burgos falsely identified himself as
the fictitious addressee, signed that name on the mailing label, and accepted the package
containing over six pounds of marijuana. Further, the subsequent search of his apartment
revealed a drawer in his kitchen filled with drug paraphernalia, trace amounts of marijuana,
and a digital scale.
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In light of the above evidence it was well within the province of the jury to infer that
Burgos had knowledge of the contents of the package. Therefore, we reject Burgos’s
sufficiency challenge.
Judgment affirmed.
ROBB, C.J., and CRONE, J., concur.
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