Andre Hairston v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 15, 2013
• Docket: 02A05-1211-CR-601
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be Jul 15 2013, 6:05 am 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: ATTORNEYS FOR APPELLEE:

MARK A. THOMA GREGORY F. ZOELLER Leonard, Hammond, Thoma & Terrill Attorney General of Indiana Fort Wayne, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ANDRE HAIRSTON, ) ) Appellant-Defendant, ) ) vs. ) No. 02A05-1211-CR-601 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D06-1104-FB-90

July 15, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge Andre Hairston appeals his two convictions for dealing cocaine as class B

felonies. Hairston raises one issue, which we restate as whether the evidence is sufficient

to sustain his convictions. We affirm.

FACTS AND PROCEDURAL HISTORY

In April 2011, a confidential informant (the “C.I.”) worked with the Fort Wayne

Police to conduct two controlled buys of crack cocaine from Hairston. On April 20,

2011, the C.I. and Fort Wayne Police Detective Jamie Masters met at the C.I.’s

apartment, and the C.I. called Hairston, who the C.I. knew as “Dray.” Transcript at 82.

The C.I. and Hairston agreed to meet in the parking lot of the C.I.’s apartment complex

about ten or fifteen minutes later. Detective Masters searched the C.I., placed an

electronic monitoring and recording device on her, and gave her pre-recorded buy money

in the amount of $100. Detective Masters worked with other officers so that the C.I.

could be viewed at all times. Sergeant Mark Walters performed pre-buy surveillance of

an apartment at which the police believed Hairston was living. Detective Masters

advised Sergeant Walters via radio that the C.I. had placed a call to Hairston.

Approximately ten minutes after receiving Detective Masters’s message, Sergeant

Walters observed Hairston exit the apartment, enter a black Ford Explorer, and begin to

drive. Sergeant Walters ran the license plate numbers of the Explorer and confirmed that

the vehicle was registered to Hairston. Sergeant Walters observed that Hairston was the

only person inside the Explorer and followed the vehicle to the parking lot of the C.I.’s

apartment complex. Sergeant Walters did not follow the Explorer into the parking lot as

Detective Darrick Engleman was there ahead of time and had previously set up

2 surveillance of the parking lot. Sergeant Walters advised Detective Engleman that

Hairston was traveling toward the parking lot, and Detective Engleman observed the

black Ford Explorer pull into the lot.

After Hairston arrived in the parking lot, the C.I. walked outside, stood outside

Hairston’s vehicle, and gave Hairston the money. Hairston handed the C.I. two packages

of crack cocaine, and the C.I. returned to the apartment complex, gave the cocaine to

Detective Masters, and was again searched by Detective Masters. About five minutes

later, Hairston called the C.I. and stated that he had given the C.I. too much of the drug,

and the C.I. took the smaller of the two packages of cocaine back out to Hairston.

The following day, the police wished to conduct a second controlled buy and place

Hairston under arrest.1 Detective Masters showed the C.I. a photo array, told her that the

photo of the person she knew as Dray may or may not be present in the array, and asked

her if she recognized anybody, and the C.I. immediately identified Hairston as the person

who had sold her crack cocaine the previous day. The C.I. then called Hairston to

purchase additional crack cocaine. Detective Masters searched the C.I. and gave her pre-

recorded buy money in the amount of $100. Like the previous day, Sergeant Walters set

up surveillance of Hairston’s apartment.

About five minutes after being informed that the C.I. had called Hairston, Sergeant

Walters observed Hairston and another person exit Hairston’s apartment, Hairston enter

the driver’s seat of the Explorer, and the other person enter the passenger side of the

vehicle. Sergeant Walters followed Hairston’s vehicle to the parking lot of the C.I.’s 1 Sergeant Walters testified that police “were going to dub him” and that “Dub is short for double B,” which was a “buy/bust” where the police “were going to buy the narcotics off of the suspect and then . . . take him down” and “going to arrest him as soon as he left the scene.” Transcript at 146. 3 apartment complex. Like the previous day, Detective Engleman again observed

Hairston’s vehicle arrive at the lot. The C.I. met Hairston at his vehicle and handed him

the $100 of buy money, and Hairston handed the C.I. a package of crack cocaine.

Detective Masters performed a search of the C.I. and obtained the cocaine.

Hairston drove away from the parking lot of the C.I.’s apartment complex in the

black Ford Explorer, and Detective Mark Brown, who was in uniform, initiated a traffic

stop. With the assistance of other officers, Detective Brown placed Hairston and the

passenger in custody and searched the Explorer. Detective Brown “located a crack or a

little hole in the center console” which was “not part of the vehicle” and discovered the

pre-recorded buy money inside. Id. at 180. The substance recovered from the first

controlled buy was found to contain cocaine base and had a net weight of 1.09 grams, and

the substance recovered from the second controlled buy was found to contain cocaine

base and had a net weight of 1.10 grams.

On April 28, 2011, the State charged Hairston with two counts of dealing cocaine

as class B felonies. On April 17, 2012, a jury trial was conducted at which the jury heard

the testimony of the C.I. and the law enforcement officers who participated in the

controlled buys. The jury found Hairston guilty on both counts as charged. The court

sentenced Hairston to concurrent terms of twelve years with eight years executed and

four years suspended to probation.2

2 This sentence is set forth on the trial court’s judgment of conviction and in the CCS. The sentencing transcript indicates that the trial court verbally stated that Hairston was sentenced to 16 years with 12 years executed. The parties state that Hairston received a sentence of twelve years with eight years executed and four years suspended to probation and do not raise any issue regarding the discrepancy. 4 DISCUSSION

The issue is whether the evidence is sufficient to sustain Hairston’s convictions.

When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence

or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995),

reh’g denied. Rather, we look to the evidence and the reasonable inferences therefrom

that support the verdict. Id. We will affirm the conviction if there exists evidence of

probative value from which a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt. Id.

The offense of dealing in cocaine as a class B felony is governed by Ind. Code §

35-48-4-1, which provides that “[a] person who . . . knowingly or intentionally . . .

delivers . . . cocaine or a narcotic drug . . . commits dealing in cocaine or a narcotic drug,

a Class B felony . . . .”

Hairston argues that the C.I.’s testimony was sufficiently lacking in credibility to

constitute probative evidence whereby a conviction on either count could be sustained.

Hairston argues that, although the C.I. indicated that her motives to work as an informant

were driven by her desire to do some good in the world, the C.I. “was contradicted in this

regard when she at first indicated that she was not being paid to work as a confidential

informant but then remembered that she had received $60.00 to serve in that capacity,”

that the C.I. acknowledged convictions for criminal conversion and for false informing,

that she acknowledged a significant benefit in that law enforcement had a warrant

recalled so that she would not be arrested, and that the C.I.’s “bias was demonstrated by

her admission to having been evicted from her apartment complex.” Appellant’s Brief at

5 12-13. Hairston further argues that no one other than the C.I. observed the transfer of the

crack cocaine from Hairston to the C.I.

The State maintains that, if the C.I.’s testimony had been uncorroborated, it would

still be sufficient to sustain Hairston’s convictions. The State argues, with respect to the

first controlled buy, that the C.I. identified Hairston in a photo array prior to trial, that

Hairston was under constant surveillance between when he left his residence driving the

black Ford Explorer that was registered to him and when he arrived in the apartment

complex parking lot, and that Sergeant Walters observed that Hairston was the only

individual inside the Explorer. With respect to the second controlled buy, the State points

out that Hairston was in possession of the buy money upon his arrest immediately

afterward, that the fact that a passenger was with Hairston does not undercut the

inference that Hairston had the buy money because he had conducted the sale, that the

money was found in a hidden compartment within Hairston’s Explorer that was not part

of the design of the vehicle, and that placement of the buy money in a hidden

compartment is furtive behavior consistent with Hairston’s consciousness that he had

completed an illicit drug sale. The State also maintains that the jury rejected Hairston’s

argument that the C.I.’s testimony lacked probative value because she had prior

convictions for unrelated acts of dishonesty or may have had a self-interested reason to

work with law enforcement. The State further contends that even if Hairston’s argument

had merit, it overlooks the corroboration of the C.I.’s testimony by the officers’

observations and that, in order for the C.I. to have been dishonest or mistaken about

Hairston’s identity, the C.I.’s testimony would have to somehow manage to be

6 coincidentally or miraculously consistent with everything seen by the four officers who

coordinated the buys.

Hairston essentially challenges the credibility of the C.I. and the testimony and

evidence at trial identifying him as the person who committed the crimes for which he

was charged. Identification testimony need not necessarily be unequivocal to sustain a

conviction. Heeter v. State, 661 N.E.2d 612, 616 (Ind. Ct. App. 1996). Elements of

offenses and identity may be established entirely by circumstantial evidence and the

logical inferences drawn therefrom. Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind.

1990). The unequivocal identification of the defendant by a witness in court, despite

discrepancies between his description of the perpetrator and the appearance of the

defendant, is sufficient to support a conviction. Emerson v. State, 724 N.E.2d 605, 610

(Ind. 2000), reh’g denied. Inconsistencies in identification testimony impact only the

weight of that testimony, because it is the jury’s task to weigh the evidence and determine

the credibility of the witnesses. Gleaves v. State, 859 N.E.2d 766, 770 (Ind. Ct. App.

2007) (citing Badelle v. State, 754 N.E.2d 510 (Ind. Ct. App. 2001), trans. denied). As

with other sufficiency matters, we will not weigh the evidence or resolve questions of

credibility when determining whether the identification evidence is sufficient to sustain a

conviction. Id. Rather, we examine the evidence and the reasonable inferences

therefrom that support the verdict. Id.

The record reveals that the jury was presented with evidence regarding the

identification of Hairston. The jury heard the testimony of Detective Masters, Sergeant

Walters, Detective Engleman, Detective Brown, and the C.I. Detective Masters testified

7 that individuals oftentimes work as confidential informants after they are arrested in order

to work off charges or to be paid, but that the C.I. in this case had contacted the police

because she had exhausted all possibilities for treatment of cancer and wanted to make

amends and do something to feel better about herself. Sergeant Walters identified

Hairston in court as the person he observed in the black Ford Explorer. Detective Brown

identified Hairston in court as the person he took into custody following the second

controlled buy.

The C.I. identified Hairston in court as the person from whom she purchased the

cocaine during each of the two controlled buys. Soon after she was called to the stand,

upon questioning by the prosecutor, the C.I. testified that she had been convicted for

criminal conversion and false informing. When asked to describe her decision to become

a confidential informant, the C.I. testified that she had been treated over the last couple of

years for lymphoma and had exhausted all the traditional treatments, that she had a

history of drug addiction and alcoholism, that she “know[s] what drugs and alcohol have

done to [her],” and that she “just want[ed] to do something good with [her] life.”

Transcript at 79. She also stated that “[i]t didn’t have any bearing on any charges,” that

she “didn’t ask for any money for it,” and that she contacted the police department and

was eventually paid sixty dollars. Id.

The C.I. further testified that she provided Detective Masters with the names of

several people from whom she thought she could purchase drugs and that Hairston, who

the C.I. knew as Dray, was included among those names. With respect to the second

controlled buy, the C.I. stated that she did not know and had no conversation with the

8 person in the passenger seat of the Explorer and that the person “[d]idn’t have anything to

do with the sale.” Id. at 89. The C.I. also indicated, when questioned by the prosecutor,

that she gave a deposition in the matter and that, at the request of the prosecutor’s office,

a warrant related to the C.I.’s criminal conversion conviction was lifted.

On cross-examination, the C.I. confirmed that she had testified she was paid sixty

dollars for her work although she had indicated during her previous deposition that she

had not been compensated. Also, when asked on cross-examination if she had been

evicted from the apartment complex prior to these events, the C.I. responded

affirmatively and testified that the eviction was for having unruly guests and that the

police had been called because her boyfriend was arrested for domestic battery. Given

the testimony and the evidence presented, we cannot say that it was unreasonable for a

jury to believe the identification testimony of the C.I. presented by the State. See

Emerson, 724 N.E.2d at 610 (holding it was reasonable for a jury to believe in-court

identification testimony).

To the extent Hairston argues that the C.I.’s testimony was not credible because

she was paid for her participation in the controlled buys, that the prosecutor’s office

requested that a warrant with respect to the C.I.’s criminal conversion conviction be

lifted, and that the C.I. had convictions for criminal conversion and false informing, we

note that the C.I. was questioned before the jury regarding these issues and the jury was

able to assess the testimony of the C.I. and other evidence presented at trial and

determine the C.I.’s credibility. Hairston’s arguments regarding why the C.I. should not

9 be believed amount to an invitation that we reweigh the evidence, which we cannot do.

See Jordan, 656 N.E.2d at 817.

Based upon our review of the record, we conclude that evidence of probative value

exists from which the jury could have found that Hairston committed the charged

offenses. See Murrell v. State, 747 N.E.2d 567, 574 (Ind. Ct. App. 2001) (holding the

evidence was sufficient to support the defendant’s conviction for dealing in cocaine

where the jury weighed all evidence regarding identification and chose to believe that the

defendant was the person who sold cocaine to an undercover officer where the officer had

met the defendant two times and made an in-court identification of the defendant), reh’g

denied, trans. denied; see also Ross v. State, 908 N.E.2d 626, 630-631 (Ind. Ct. App.

2009) (holding that the evidence was sufficient to sustain the defendant’s conviction for

dealing in cocaine where a confidential informant, who did not testify at the trial,

participated in a controlled drug buy in a motel room which was monitored by police

officers with an audio and video recording device and the motel rooms and the informant

were under constant and complete surveillance).

CONCLUSION

For the foregoing reasons, we affirm Hairston’s two convictions for dealing in

cocaine as class B felonies.

Affirmed.

RILEY, J., and BRADFORD, J., concur.