Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018 Page 1 of 15

ATTORNEY FOR APPELLANT

R. Patrick Magrath

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caryn N. Szyper

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Sebastian Durstock,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 4, 2018

Court of Appeals Case No.

15A01-1711-CR-2718

Appeal from the Dearborn Circuit 

Court

The Honorable James D. 

Humphrey, Judge

Trial Court Cause No.

15C01-1705-F2-7

Tavitas, Judge.
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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.
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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 
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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. 
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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.
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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). 
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[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. 
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[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. 
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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 
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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.” 
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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).
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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 
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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, 
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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 
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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.