Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018 Page 1 of 10

MEMORANDUM DECISION

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, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert L. Moore,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 29, 2018

Court of Appeals Case No.

15A01-1711-CR-2767

Appeal from the Dearborn 

Superior Court

The Honorable Jonathan N. 

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 meetup 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.