Nelson J. Waller v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 16 2020, 6:25 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stanley L. Campbell Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nelson J. Waller, January 16, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2122
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D04-1812-F5-396
Brown, Judge.
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[1] Nelson J. Waller appeals his convictions for two counts of dealing in cocaine or
a narcotic drug as level 5 felonies. We affirm.
Facts and Procedural History
[2] Fort Wayne Police Detective Craig Wise began investigating narcotics in 1994
and has been involved in thousands of such investigations, which include the
use of confidential informants to conduct undercover controlled purchases.
[3] On September 28, 2017, he made arrangements with a confidential informant
(the “CI”) to conduct a controlled purchase at a gas station. Prior to the
purchase, he searched the CI, fit him with a properly-working electronic
transmitting device, provided him with $100, and drove him to the location. A
white Malibu with a male black driver pulled into the gas station, the CI
approached the vehicle, returned, and re-entered Detective Wise’s vehicle.
After about five minutes, Waller arrived in a second white Malibu, parked one
pump over from Detective Wise’s vehicle, and entered the gas station building
while wearing a blue hoodie and tan pants. The CI followed Waller inside.
The pair “just stepped inside” the door, and the CI handed Waller the money.
Transcript Volume I at 50. Within sight of Detective Wise, who was listening
to the transmission, Waller shared with the CI that, when he tried to enter the
first white Malibu, he had “freaked out” Waller’s supplier, who Waller was
meeting “to get it from.” Id. Waller instructed the CI to wait in Waller’s
vehicle while he went “to go get into the other white Malibu.” Id. A few
minutes later, Waller entered his vehicle and explained to the CI that he had
wanted “to leave when he was in the door” and “go somewhere to cut it up”
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because he did not “really like to do this in the car.” Id. at 51. After exiting
Waller’s vehicle, the CI returned to Detective Wise’s vehicle with a small
plastic package containing fentanyl and placed it in a cup so that the detective
did not have to touch it.
[4] On October 10, 2017, Detective Wise met the CI, searched him to ensure he did
not have any weapons, guns, money, or drugs, wired him with a properly-
working electronic transmitting device, and provided him with $100 of
prerecorded buy money. He drove the CI to a specified location. When they
arrived, Waller stood beside a white Malibu. The CI met Waller in front of
Detective Wise’s vehicle, Waller handed him a package containing fentanyl,
and he gave Waller the money. The CI returned the package to Detective
Wise, and they drove away.
[5] The State charged Waller with two counts of dealing in cocaine or a narcotic
drug as level 5 felonies. At the jury trial, Detective Wise testified to the use of
confidential informants, explained controlled purchases, detailed the pre-
purchase procedure of searching confidential informants for money and drugs
and wiring them with electronic transmitting devices, and described the post-
purchase process of receiving the drugs. He testified about the first controlled
purchase and indicated that he knew about Waller’s comment to the CI after
receiving the money because he was “listening on the seven radio, listening to
the conversation.” Id. at 50. He indicated that the CI did not have any
narcotics when he exited the vehicle, had narcotics when he re-entered it, and
was in the line of sight while the electronic device was transmitting. He
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testified that he was listening to the transmission “while everything was going
on.” Id. at 52. When asked how close the second white Malibu was to his
vehicle, he stated “[f]rom me to you,” he indicated that he could clearly identify
the male driving that vehicle, and he pointed to Waller when asked to point to
the individual who sold drugs to the CI that day. Id. at 56. The court admitted
an audio recording from the first controlled purchase as State’s Exhibit 1 and
published it to the jury. It admitted the fentanyl purchased that day as State’s
Exhibit 2, and the parties stipulated that it weighed .27 grams.
[6] Detective Wise testified about the second controlled purchase, indicated that it
occurred in the open and that he could see Waller through the front windshield,
and when asked about the distance from where Waller stood to Detective
Wise’s vehicle, stated “[a]bout where you are.” Id. at 60. He answered
affirmatively when asked if he searched the CI and knew that the CI did not
have any contraband on him and when asked if all the CI had on him was the
$100 of prerecorded buy money. He testified that, after the controlled buy, the
CI had a baggie of suspected fentanyl and did not have the money. The court
admitted an audio recording from the second purchase as State’s Exhibit 3 and
published it to the jury. It admitted the fentanyl purchased that day as State’s
Exhibit 4, and the parties stipulated that it weighed .38 grams.
[7] The jury found Waller guilty as charged, and the court sentenced him to five
years, with two years suspended, for each count to be served concurrently.
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Discussion
[8] The issue is whether the evidence is sufficient to sustain Waller’s convictions.
When reviewing claims of insufficiency of the evidence, we do not reweigh the
evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,
817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable
inferences therefrom that support the verdict. Id. The conviction will be
affirmed if there exists evidence of probative value from which a reasonable jury
could find the defendant guilty beyond a reasonable doubt. Id.
[9] Ind. Code § 35-48-4-1 provides that a person who “knowingly or intentionally .
. . delivers . . . cocaine or a narcotic drug, pure or adulterated, classified in
schedule I or II” commits dealing in cocaine or a narcotic drug, a level 5 felony.
[10] Waller maintains that, absent the testimony of the CI that he delivered the
drugs which were turned over to Detective Wise, there was not sufficient
evidence to sustain his convictions. He contends that Detective Wise did not
actually see any delivery take place despite his testimony that the October 10,
2017 transaction occurred in front of his car as he was watching.
[11] The State responds that the evidence of the properly conducted controlled buys
was sufficient to prove Waller’s crimes without needing testimony from the
confidential informant and that, in looking at the totality of the evidence,
sufficient probative evidence existed by which a reasonable fact-finder could
have found Waller guilty. It argues that, because the CI was under constant
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and complete surveillance, Detective Wise had first-hand knowledge of what he
heard and observed while the transactions took place.
[12] The record reveals that Detective Wise searched the CI before each controlled
purchase to ensure that he did not have any contraband or narcotics. After
meeting with Waller and providing him with prerecorded purchase money, the
CI returned to Detective Wise with fentanyl on both occasions. As the
controlled purchases were being conducted, the CI wore a properly-working
electronic transmitting device and remained within Detective Wise’s sight.
Detective Wise was able to see or hear him at all times. Based upon our review
of the testimony and evidence as set out above and in the record, we conclude
that the State presented evidence of a probative nature from which a trier of fact
could find beyond a reasonable doubt that Waller dealt in cocaine or narcotic
drugs.
[13] For the foregoing reasons, we affirm Waller’s convictions.
[14] Affirmed.
Baker, J., and Riley, J., concur.
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