Court of Appeals of Indiana | Memorandum Decision 15A01

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### 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.

A TTORNEY FOR A PPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana A TTORNEY S FOR A PPELLEE 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 Ca se No. 15A01

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- 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 f

elony conspiracy to commit dealing in a narcotic drug weighing at least one gram, Level 5 felony dealing in a narcotic drug, and was adjudicatedCourt of Appeals of Indiana | Memorandum Decision 15A01

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a n 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 f

ollowing 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 leas t 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 p ossession of heroi n in Dearborn County , Indiana. Adkins volunteered to contact drug dealers he had purchase d 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 D epartment 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, officersCourt of Appeals of Indiana | Memorandum Decision 15A01

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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 mee t
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 Ame ristop and informed Adkins that he was lost and needed to stop and get gas. Adkins agreed to meet Sanders at a S hell 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] O f ficer 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 exit ed 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. O fficer Hatfield had a clear view of Adkins and the driver , who was later identified as Moore. The officer saw Moore give Adkins a n 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.Court of Appeals of Indiana | Memorandum Decision 15A01

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Thereafter , Adkins gave Officer Hatfield a clear plastic bag containing a white substance that was later identified as fentanyl.

[8] T hree officers approached the Camaro after Adkins purchased the fentanyl from Moore

. As O fficer Hatfield removed Moore from the driver’s seat , th e money Adkins gave to Moore fe ll 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 substanc e wrapped in brown paper in the backseat

.

[9] The two substance s 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 nar cotic drug. The State also alleged that Moore is an habitual offender.

[10] On Octob er 5, 2017, a two

- day ben ch trial was held. The chemist who performed the preliminary and conclusive testing testified that there was a margin of error of ± 0.02 g ram per each sample of fentanyl . Tr. Vol. I, p. 180. The chemist agreed with the trial court t hat “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 . a t 227.Court of Appeals of Indiana | Memorandum Decision 15A01

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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, t he 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 complication s . 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, a nd five years fo r the Level 5 fe lony 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] Mo ore 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 i nferences supporting the judgme nt , and “must affirm ‘if the probative evidence and reasonable inferences drawn from the evidence c ould have allowed aCourt of Appeals of Indiana | Memorandum Decision 15A01

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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. S ufficient 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 i ntent 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 n arcotic.” Appellant’s Br. at 12 . Specifically, Moore argues that Adkins ar range d 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 ignore s Officer Hatfield’s testimony that he saw Adkins hand Moore $200 and t hen watched Moore hand an ite m 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 Ha tfield 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.Court of Appeals of Indiana | Memorandum Decision 15A01

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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 act ual or constructive posses sion. 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. denie d.

[16] The evidence established that Moore had the intent and capability to maintain

con trol 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 o ur supr eme court has explained that “p roof 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 ite ms in question.” Davenport v. State , 464 N.E. 2d 1302, 1307 (Ind. 1984) , cert. denied ; s ee also State v. Emry , 753 N.E. 2d 19, 22 (Ind. Ct. App. 2001). Furthermore, Moore’s participation in the controlled buy establishe d his knowledge and possession of the f entanyl.

[17] Moore’s claim that he merely agreed to give Sanders a ri d e 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 thatCourt of Appeals of Indiana | Memorandum Decision 15A01

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the Stat e presented suff

icient evidence to prove that Moore committed Level 5 f elony 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 ano ther 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 lea st one gram of fentanyl. 1 See Ind . Code §§ 35

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- 5

- 2; 35

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- 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 dru gs 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] I n 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

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- 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 t he car should not have been included in the to tal weight used to convict him . Appellan t’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 w ill not address this issue.Court of Appeals of Indiana | Memorandum Decision 15A01

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reasonable inference that the element of t he weight has been established

. 3 More recently, t he 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 fentan yl 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 fent anyl is between 0.97 and 1.05 grams. 4 The State presented circumstantial evidence that Moore knew he was deliver ing 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 N either 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 no te that the chemist’s final report was not submitted as part of the record before us.Court of Appeals of Indiana | Memorandum Decision 15A01

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that the evidence was insufficient to support Moore’s Level 4 felony conviction for conspir acy to commit dealing in a narcotic drug weighing at least one gram

. 

### Conclusion

[21] Under these f

acts and circumstances , we conclude that t he evidence is sufficient to support Moore’s conviction for Level 5 felony dealing in a narcotic drug

. But with regard t o 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 comm it dealing in a narcotic drug as a Level 5 felony, and to impose a new sentence accordingly

. 5

[22] Affirmed in part, r eversed in part, and remanded.

Riley, J., and May, J., concur.

5 Because we reverse and remand for resentencing, we wi ll not address Moore’s claim that his sentence is inappropriate in light of the nature of the offense and his character.