Sebastian Durstock v. State of Indiana

FILED
Dec 04 2018, 7:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sebastian Durstock, December 4, 2018
Appellant-Defendant, Court of Appeals Case No.
15A01-1711-CR-2718
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff Humphrey, Judge
Trial Court Cause No.
15C01-1705-F2-7
Tavitas, Judge.
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 1 of 15
Case Summary
[1] Sebastian Durstock appeals his conviction for dealing in a narcotic drug, a
Level 2 felony. This case involves the analysis of the Fourth Amendment and
exceptions to the warrant requirement. We affirm. 1
Issues
[2] Durstock raises three issues, which we restate as:
I. Whether the trial court abused its discretion by admitting
evidence found during a pat down search of Durstock.
II. Whether the evidence is sufficient to sustain Durstock’s
conviction for dealing in a narcotic drug, a Level 2 felony.
III. Whether Durstock’s sentence is inappropriate.
Facts
[3] On the morning of January 13, 2017, Officer David Schwarz of the
Lawrenceburg Police Department was dispatched to an apartment in
Lawrenceburg regarding an unconscious female, later identified as Chyanne
Thompson. Emergency medical services arrived at the same time as Officer
Schwarz. They discovered Candy Gaylord giving Thompson chest
1
Oral argument was held in this matter on November 13, 2018, at Ivy Tech Community College –
Columbus. We thank counsel for their presentations and Ivy Tech Community College – Columbus for its
hospitality.
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 2 of 15
compressions. Given Thompson’s symptoms, Officer Schwarz suspected that
Thompson had overdosed on opiates.
[4] As the emergency medical personnel were assisting Thompson, Officer
Schwarz heard water running in the bathroom. Officer Schwarz saw Durstock
leave the bathroom and sit on the couch in the living room. Officer Schwarz
talked to Gaylord and learned that Gaylord was the resident of the apartment.
Gaylord gave Officer Bill Lynam permission to search the bathroom of the
apartment, where he located a brown backpack. Gaylord and Durstock denied
that the backpack belonged to them, and Gaylord gave the officer permission to
search the backpack. Officer Lynam discovered a loaded handgun wrapped in
a wet bandana, digital scales, men’s clothing, and men’s deodorant.
[5] Durstock appeared to be “nervous and shaking and sweaty.” Tr. Vol. II p. 102.
After learning of the firearm, Officer Troy Cochran decided to perform a pat
down search of Durstock for officer safety. Officer Cochran asked Durstock if
Durstock “had anything that we needed to be concerned about.” Id. at 103.
Durstock removed a lighter, cigarettes, a cell phone, and lip balm from his
pockets. Durstock put his hand in one of his pockets and removed his hand
without removing anything from his pocket. Durstock’s movements made
Officer Schwarz suspicious, and he asked Durstock to stand for a pat down for
weapons.
[6] Officer Schwarz felt a “tubular object” in Durstock’s pocket that was
“consistent with being a syringe.” Id. at 62. Officer Schwarz removed the item
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 3 of 15
from Durstock’s pocket and found that it was, in fact, a syringe. Officer
Schwarz then arrested Durstock for possession of a hypodermic syringe. See
Ind. Code § 16-42-19-18. Durstock was placed in handcuffs, and Officer
Schwarz performed a search incident to the arrest. Officer Schwarz found
several items in Durstock’s pockets, including three bullets and a black bag that
contained $331 in cash, rolling papers, and a plastic bag containing a white
powder. The white powder was later identified as 6.06 grams of fentanyl.
[7] After several amendments, the State ultimately charged Durstock with dealing
in a narcotic drug, a Level 2 felony; possession of a narcotic drug, a Level 4
felony; and possession of a narcotic drug, a Level 5 felony. At Durstock’s jury
trial, Durstock objected to the admission of evidence found during the pat down
search, and the trial court overruled the objection. 2 During the jury trial,
several recorded jail telephone calls made by Durstock were admitted into
evidence. In one of the calls, Durstock stated that he had been “hustling,”
which a detective testified was slang for dealing. Ex. 45. The jury found
Durstock guilty as charged.
[8] Due to double jeopardy concerns, the trial court entered judgment of conviction
only on dealing in a narcotic drug, a Level 2 felony. The trial court sentenced
2
At the jury trial, Durstock presented an “oral motion to suppress,” and the trial court held a hearing on the
motion to suppress outside the presence of the jury. Tr. Vol. II pp. 48-49. The trial court denied the motion.
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 4 of 15
Durstock to seventeen and one-half years with two and one-half years
suspended to probation. Durstock now appeals.
Analysis
I. Admission of Evidence
[9] Durstock argues that the trial court erred by denying his motion to suppress.
However, because Durstock appeals from a completed jury trial, the issue is
more appropriately framed as whether the trial court properly admitted the
evidence at trial. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). “The general
admission of evidence at trial is a matter we leave to the discretion of the trial
court.” Id. at 259-60. “We review these determinations for abuse of that
discretion and reverse only when admission is clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial
rights.” Id. at 260.
[10] Durstock argues that the pat down search was improper because the officers
had no reasonable suspicion that Durstock was armed and dangerous. The
Fourth Amendment to the United States Constitution protects citizens against
unreasonable searches and seizures by prohibiting them without a warrant
supported by probable cause. 3 U.S. Const. amend. IV. “The fundamental
purpose of the Fourth Amendment to the United States Constitution is to
protect the legitimate expectations of privacy that citizens possess in their
3
Durstock makes no argument under the Indiana Constitution.
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 5 of 15
persons, their homes, and their belongings.” Taylor v. State, 842 N.E.2d 327,
330 (Ind. 2006). This protection has been “extended to the states through the
Fourteenth Amendment.” Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). “As
a deterrent mechanism, evidence obtained in violation of this rule is generally
not admissible in a prosecution against the victim of the unlawful search or
seizure absent evidence of a recognized exception.” Clark, 994 N.E.2d at 260.
“When a search is conducted without a warrant, the State has the burden of
proving that an exception to the warrant requirement existed at the time of the
search.” Bradley, 54 N.E.3d at 999.
[11] In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), the United States Supreme
Court permitted a:
reasonable search for weapons for the protection of the police
officer, where he has reason to believe that he is dealing with an
armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime. The officer
need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others
was in danger. And in determining whether the officer acted
reasonably in such circumstances, due weight must be given, not
to his inchoate and unparticularized suspicion or ‘hunch,’ but to
the specific reasonable inferences which he is entitled to draw
from the facts in light of his experience.
Terry, 392 U.S. at 27, 88 S. Ct. at 1883 (internal citations and footnote omitted);
see also Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001).
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 6 of 15
[12] Durstock argues that the officers had “no reasonable suspicion that Durstock
was armed and dangerous” and that the “pat-down of Durstock was illegal and
any evidence obtained as a result should have been suppressed.” Appellant’s
Br. p. 13. The State argues that the pat down was proper because: (1) officers
had indications that Durstock was involved in drug activity and was acting
nervous; (2) a loaded handgun was found in a backpack in the restroom, where
Durstock had recently been; (3) the backpack also contained men’s clothing;
and (4) Gaylord, the apartment’s female resident, denied ownership of the
backpack.
[13] Under the circumstances, we conclude that a reasonably prudent man would be
warranted in the belief that his safety was potentially in danger, and we cannot
say that the pat down search violated the Fourth Amendment. The officers
were aware that a loaded handgun had been found wrapped in a wet bandana
in a backpack in the restroom, which Durstock had recently occupied. The
backpack contained men’s clothing, and the female resident of the apartment
denied ownership of the backpack. Durstock, who was acting strangely, was
the only male in the apartment. The officers were reasonably concerned that
the weapon belonged to Durstock and that their safety was in jeopardy. The
pat down search was proper. See, e.g., Johnson v. State, 38 N.E.3d 658, 663 (Ind.
Ct. App. 2015) (holding that a pat down search for weapons was proper where
the defendant kept placing his hand in his pocket and refused an officer’s
multiple commands to remove his hand from his pocket), trans. denied.
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 7 of 15
[14] Durstock next argues that, even if the pat down was proper, the removal of the
syringe from his pocket was improper. “The purpose of a protective search
authorized by Terry ‘is not to discover evidence of a crime, but rather to allow
the officer to pursue his investigation without fear of violence.’” Clanton v.
State, 977 N.E.2d 1018, 1025 (Ind. Ct. App. 2012) (quoting Minnesota v.
Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2136 (1993)). “During this
limited search, an officer is permitted to remove an item that feels like a weapon
from an individual’s outer clothing to determine whether the item is in fact a
weapon.” Id. “In addition, the ‘plain-feel doctrine’ approved by Dickerson
permits an officer to remove non-weapon contraband during a Terry frisk if the
contraband is detected during an initial patdown for weapons and if the
incriminating nature of the contraband is immediately ascertained by the
officer.” Id. (citing Harris v. State, 878 N.E.2d 534, 538-39 (Ind. Ct. App. 2007),
trans. denied).
[15] Durstock argues that the “tube” detected by the officer was not immediately
ascertainable as contraband. The State contends that the officer immediately
realized that the tubular object was a syringe and that the removal of the object
from Durstock’s pocket was proper. We agree with the State. The officer
testified that he felt a “tubular object” in Durstock’s pocket that was “consistent
with being a syringe.” Tr. Vol. II p. 62. The syringe’s identity was immediately
apparent to the officer based on its shape, and the officer’s warrantless seizure
of the syringe was justified under the plain feel doctrine. See, e.g., Wright v.
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 8 of 15
State, 766 N.E.2d 1223, 1234 (Ind. Ct. App. 2002) (holding that the officer’s
seizure of rock cocaine was justified under the plain feel doctrine).
[16] Because the removal of the item from Durstock’s pocket was permissible, the
officers properly arrested Durstock for possession of a syringe. The possession
of a hypodermic syringe is a Level 6 felony. See Ind. Code § 16-42-19-18. One
exception to the warrant requirement is the search incident to arrest, which
permits “a search of the arrestee’s person and the area within his or her
control.” Clark, 994 N.E.2d at 261 n.10. Accordingly, once a person is
arrested, officers are not required to obtain a warrant before conducting a
further search of the arrestee’s person. This search incident to Durstock’s arrest
resulted in the officers finding the fentanyl and cash in Durstock’s pocket. We
conclude that the officers’ discovery of the fentanyl and cash in Durstock’s
pocket did not violate the Fourth Amendment, and the trial court properly
admitted the evidence.
[17] In sum, the pat down search, the removal of the syringe under the plain feel
doctrine, and the search incident to arrest, are exceptions to the warrant
requirement of the Fourth Amendment. The evidence obtained was properly
admitted.
II. Sufficiency of the Evidence
[18] Durstock challenges the sufficiency of the evidence with respect to his
conviction for dealing in a narcotic, a Level 2 felony. When there is a challenge
to the sufficiency of the evidence, “[w]e neither reweigh evidence nor judge
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 9 of 15
witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016) (citing
Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), reh’g denied, cert. denied, 475 U.S.
1031, 106 S. Ct. 1241 (1986)), reh’g denied, cert. denied, 137 S. Ct. 1082 (2017).
Instead, “we ‘consider only that evidence most favorable to the judgment
together with all reasonable inferences drawn therefrom.’” Id. (quoting Bieghler,
481 N.E.2d at 84). “We will affirm the judgment if it is supported by
‘substantial evidence of probative value even if there is some conflict in that
evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also McCallister v. State,
91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though there was conflicting
evidence, it was “beside the point” because that argument “misapprehend[s]
our limited role as a reviewing court”). Further, “[w]e will affirm the
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind.
2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).
[19] Durstock was convicted of dealing in a narcotic drug, a Level 2 felony, which is
governed by Indiana Code Section 35-48-4-1. At the time of Durstock’s
offense, the State was required to prove that Durstock knowingly possessed
with intent to deliver “a narcotic drug, pure or adulterated, classified in
schedule I or II,” and that “the amount of the drug involved is at least five (5)
grams but less than ten (10) grams and an enhancing circumstance applies.”
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 10 of 15
Ind. Code § 35-48-4-1(a)(2), (e)(2). 4 One enhancing circumstance occurs when
the “person committed the offense while in possession of a firearm.” I.C. § 35-
48-1-16.5(2).
[20] Durstock challenges only whether the State proved an intent to deliver.
Indiana Code Section 35-48-4-1(b) provides:
A person may be convicted of an offense under subsection (a)(2)
only if:
(1) there is evidence in addition to the weight of the drug that the
person intended to manufacture, finance the manufacture of,
deliver, or finance the delivery of the drug; or
(2) the amount of the drug involved is at least twenty-eight (28)
grams.
The fentanyl here weighed slightly over six grams. Consequently, the State was
required to show “evidence in addition to the weight of the drug that [Durstock]
intended to . . . deliver . . . the drug.” I.C. § 35-48-4-1(b). “Intent, being a
mental state, can only be established by considering the behavior of the relevant
actor, the surrounding circumstances, and the reasonable inferences to be
drawn therefrom.” Richardson v. State, 856 N.E.2d 1222, 1227 (Ind. Ct. App.
4
Amended by Pub. L. No. 252-2017, § 21 (eff. July 1, 2017).
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 11 of 15
2006), trans. denied. Circumstantial evidence showing possession with intent to
deliver may support a conviction. Id.
[21] Durstock argues that the evidence is insufficient to show that he intended to
deliver the fentanyl. We conclude that Durstock’s argument is merely a request
to reweigh the evidence, which we cannot do. The State presented evidence
that Durstock admitted in a recorded jail call that he was “hustling,” which a
detective testified was slang for dealing. Ex. 45. The evidence of the recorded
call along with evidence that Durstock was in possession of digital scales, a
handgun, and $331 in cash are sufficient to demonstrate that Durstock intended
to deliver the fentanyl. Accordingly, the evidence is sufficient to sustain
Durstock’s conviction for dealing in a narcotic drug, a Level 2 felony.
III. Inappropriate Sentence
[22] Next, Durstock argues that his sentence is inappropriate. Indiana Appellate
Rule 7(B) provides that we may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, we find that the sentence “is
inappropriate in light of the nature of the offense and the character of the
offender.” McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018). The defendant
bears the burden to persuade this court that his or her sentence is inappropriate.
Phipps v. State, 90 N.E.3d 1190, 1198 (Ind. 2018). Indiana’s flexible sentencing
scheme allows trial courts to tailor an appropriate sentence to the circumstances
presented, and the trial court’s judgment “should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). The principal
role of appellate review is to attempt to “leaven the outliers.” Shoun v. State, 67
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 12 of 15
N.E.3d 635, 642 (Ind. 2017). Whether we regard a sentence as inappropriate at
the end of the day turns on “our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Cardwell, 895 N.E.2d at 1224.
[23] In determining whether a sentence is inappropriate, we look to the statutory
ranges established for the classification of the relevant offense. Durstock was
convicted of a Level 2 felony. The sentence for a Level 2 felony ranges from
ten years to thirty years, with an advisory sentence of seventeen and one-half
years. Ind. Code § 35-50-2-4.5. Here, the trial court imposed an advisory
sentence of seventeen and one-half years with two and one-half years suspended
to probation.
[24] Durstock argues that his criminal history was minimal, he struggled with
addiction, and he had the support of his family. Durstock also contends that
his involvement “in the criminal enterprise was extremely minimal” and
claimed that the fentanyl belonged to Thompson. Appellant’s Br. p. 18.
[25] The nature of the offense is that Durstock was in Gaylord’s apartment when
Thompson overdosed and required police and emergency medical services to
respond. Durstock’s backpack was found in the bathroom of the apartment,
and the backpack contained a loaded handgun wrapped in a wet bandana and
digital scales. When officers performed a pat down search of Durstock, they
found a syringe in his pocket and arrested him. In a search incident to the
arrest, the officers also located several additional items in Durstock’s pockets,
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 13 of 15
including three bullets and a black bag that contained $331 in cash, rolling
papers, and a plastic bag containing a white powder. The white powder was
later identified as 6.06 grams of fentanyl. In a recorded jail telephone call in
May 2017, Durstock admitted to a friend that he had been “hustling” with
Thompson, which a detective testified was slang for dealing. Ex. 45. During
Durstock’s testimony, he admitted that the gun belonged to him.
[26] A review of Durstock’s character reveals that twenty-three-year-old Durstock
pleaded guilty to domestic battery, a Class A misdemeanor, in 2012. Durstock
failed to appear at a review hearing on that charge, and a warrant was issued for
his arrest.
[27] Durstock dropped out of high school in the tenth grade and has a six-year-old
child. Durstock claims that he has never been ordered to pay child support.
Durstock noted that he started using methamphetamine six years ago and was a
daily user. He also advised that he used marijuana a couple times each week
and previously used heroin on a daily basis. Durstock was unemployed at the
time of his arrest.
[28] At sentencing, the trial court noted that Durstock’s testimony and statements to
the officers conflicted with other evidence and his own statements in the
recorded jail telephone calls. The trial court found that Durstock’s “dishonesty
in these proceedings and with investigating officers” reflected “on his lack of
remorse for his actions in this matter . . . .” Tr. Vol. II p. 128. The trial court
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 14 of 15
believed that Durstock “actually delivered the fentanyl to Ms. Thompson,
which resulted in her overdose.” Id.
[29] Given the significant amount of fentanyl that Durstock possessed, his
possession of the handgun, his substance abuse, and the trial court’s statements
on Durstock’s dishonesty and lack of remorse, we cannot say that the advisory
sentence, which the trial court imposed here, was inappropriate.
Conclusion
[30] The trial court properly admitted evidence of the fentanyl found in Durstock’s
pocket. The evidence is sufficient to sustain Durstock’s conviction, and his
sentence is not inappropriate. We affirm.
[31] Affirmed.
Bailey, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 15 of 15