Andrew D. Rodgers v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 30, 2019
• Docket: 19A-CR-1331
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Dec 30 2019, 10:03 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Law Office of Attorney General of Indiana Christopher G. Walter, P.C. Samuel J. Dayton Nappanee, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Andrew D. Rodgers, December 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1331 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Michael A. Appellee-Plaintiff Christofeno, Judge Trial Court Cause No. 20C01-1705-F4-21

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019 Page 1 of 6 [1] Andrew Rodgers appeals his conviction for Level 6 Felony Maintaining a

Common Nuisance,1 arguing that the evidence is insufficient. Finding the

evidence sufficient, we affirm.

Facts [2] In the spring of 2017, undercover Elkhart City Police Officer UC 382 was

conducting an investigation that led them2 to 1702 Prairie Street. During the

investigation, UC 382 and other officers observed two types of traffic in and out

of the residence:

There was one gentleman [later identified as Rodgers] that would always come up, and you could tell that he was keying into the door, unlocking it; and when he would leave, he would turn around and make a motion like he was locking the door. The other type of traffic . . . [was] people coming up to the door and almost knocking and standing, like they were waiting for someone inside to come let them in, like they didn’t have ownership in [the] home, they were just visiting. And [the officers] saw quite a bit of that traffic that would come and go pretty quickly.

Tr. Vol. II p. 201-02. The visits were “very short,” lasting from two to ten

minutes. Id. at 202.

1 Ind. Code § 35-45-1-5(c). 2 The name and gender of UC 382 remain confidential.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019 Page 2 of 6 [3] On May 12, 2017, UC 382 and other officers executed a search warrant of 1702

Prairie Street. Rodgers was one of two people found inside. He was in his

bedroom, which was upstairs in the residence. He had two cell phones in his

pocket and a third cell phone near the bed. Near the foot of the bed, the officers

found a green tote that contained, among other things, a marijuana grinder with

a “green residue or plant-like residue or broken down leafy residue” and a box

of sandwich baggies. Id. at 80. On or near the floor, the officers found a baggie

corner. Testing later revealed that the baggie corner contained residue of

Pentylone, commonly referred to as “bath salts.” Id. at 158.

[4] The officers also found a plastic shopping bag “full of discarded sandwich bags

with at least one to two missing corners” near the bedroom door. Id. at 81.3

Several of these baggies contained a white residue, which testing later revealed

to be cocaine residue. Additionally, the officers found Swisher Sweet wrappers

and cigarillo wrappers mixed up with an “organic-looking,” “plant-like

material.” Id. at 85. The officers determined that this material was consistent

with the innards of cigarillos that had been extracted and not burned. The

officers also found a small yellow bag containing a green leafy substance, which

the officers determined to be marijuana based upon the substance’s visual

appearance and odor.

3 The State introduced evidence showing that baggie corners are common tools used to package illegal drugs. Tr. Vol. II p. 80-81, 119.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019 Page 3 of 6 [5] On May 17, 2017, the State charged Rodgers with multiple felonies, which it

later amended to the following charges: Level 6 felony possession of cocaine,

Level 6 felony maintaining a common nuisance, and Class B misdemeanor

possession of marijuana. Following a jury trial, the jury found Rodgers guilty

of maintaining a common nuisance and not guilty of the other two charges. On

May 16, 2019, the trial court sentenced Rodgers to a fully suspended sentence

of two and one-half years. Rodgers now appeals.

Discussion and Decision [6] Rodgers’s sole argument on appeal is that the evidence is insufficient to support

his conviction. When reviewing the sufficiency of the evidence to support a

conviction, we must consider only the probative evidence and reasonable

inferences supporting the conviction and will neither assess witness credibility

nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We

will affirm unless no reasonable factfinder could find the elements of the crime

proved beyond a reasonable doubt. Id.

[7] To convict Rodgers of Level 6 felony maintaining a common nuisance, the

State was required to prove beyond a reasonable doubt that he knowingly or

intentionally maintained a building, structure, vehicle, or other place that was

used to unlawfully use, manufacture, keep, offer for sale, sell, deliver, or finance

the delivery of a controlled substance or an item of drug paraphernalia.

I.C. § 35-45-1-5(c). Rodgers does not dispute that the bedroom belonged to him

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019 Page 4 of 6 or that he acted with the requisite intent. Instead, he challenges the evidence

demonstrating that his bedroom met the definition of a common nuisance.

[8] The State presented the following evidence regarding items found in Rodgers’s

bedroom:

• Officers found forty to forty-five baggies missing at least one corner; some of the baggies were missing two corners. Given the evidence that baggie corners are common tools used to package illegal drugs, those missing corners imply that the baggies had been used to package between forty to ninety units of illegal drugs. • Officers found a marijuana grinder (containing a green, plant-like substance), empty cigarillo boxes, empty Swisher Sweet and cigarillo wrappers, and discarded tobacco. It is common for people to buy Swisher Sweets, cut them open, remove the tobacco, and pack them with the drug of choice. Tr. Vol. II p. 85. • Officers found multiple baggies, some of which bore a white residue, later revealed to be cocaine. • Officers found a baggie corner containing Pentylone—i.e., bath salts— residue. • Officers found a baggie containing what they determined to be marijuana based on its appearance and odor. • Officers observed multiple people coming to Rodgers’s house to make brief visits lasting from two to ten minutes. While a single short visit “doesn’t mean a whole lot,” when it occurs “systematically over the course of several days,” it is a “sign of drug activity or drug distribution coming and going from that home.” Id. at 202. • Rodgers had two cell phones in his pocket and a third by his bed. The State presented evidence that drug dealers often use multiple cell phones, as opposed to law-abiding citizens, who would typically maintain only one cell phone.

We find that the evidence showing the presence of drug residue, drug

paraphernalia, and indices of drug dealing and distribution is sufficient to allow

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019 Page 5 of 6 a reasonable juror to infer that Rodgers was using his bedroom to use,

manufacture, keep, offer for sale, sell, deliver, or finance the delivery of a

controlled substance or an item of drug paraphernalia. See Davis v. State, 791

N.E.2d 266, 270 (Ind. Ct. App. 2003) (holding that convictions may be

sustained based on circumstantial evidence alone if the evidence supports a

reasonable inference of guilt).

[9] Rodgers seems to suggest that because the jury found him not guilty of

possession of cocaine and marijuana, it is inconsistent that the jury found him

guilty of maintaining a common nuisance. But it is well established that

“inconsistent verdicts are permissible and not subject to appellate review[.]”

Beattie v. State, 924 N.E.2d 643, 644 (Ind. 2010). Therefore, this argument is

unavailing.

[10] We find the evidence sufficient to support Rodgers’s conviction for Level 6

felony maintaining a common nuisance.

[11] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019 Page 6 of 6