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

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
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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
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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
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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.
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[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
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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.
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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.
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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.
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