Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jun 24 2014, 8:58 am 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:
BRUCE W. GRAHAM GREGORY F. ZOELLER Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana ANDREW FALK Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ANTONIO MCCASTER, ) ) Appellant-Defendant, ) ) vs. ) No. 79A04-1311-CR-544 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-1302-FA-2
June 24, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge STATEMENT OF THE CASE
Antonio McCaster appeals from his conviction of one count of dealing in cocaine1
as a Class A felony,2 and his habitual offender determination, contending that there was
insufficient evidence to support his conviction for dealing in cocaine, and that there was
insufficient evidence to support the trial court’s finding that he was an habitual offender.
Consistent with our standard of review, however, we affirm McCaster’s conviction and
habitual offender determination.
FACTS AND PROCEDURAL HISTORY
Lafayette Police Department Detective Jason Walters, who was also assigned to the
Tippecanoe County Drug Task Force, received information that a person, who could be
reached at cell phone number 312-771-1487,3 might be selling cocaine. Walters contacted
the person using that cell phone number and arranged to meet him at Bar Barry Liquor
Store located at 1601 Main Street, Lafayette, Indiana. That location, which was selected
by the suspect, was within 1000 feet of several family housing complexes and a public
park. The two agreed that Walters would purchase $100 worth of cocaine.
Lafayette Police Department Detective Natalie Lovett, who was also assigned to the
Tippecanoe County Drug Task Force, conducted surveillance of the controlled buy, and
Lafayette Police Department Officer Michael Barthelemy and Lafayette Police Department
1 Ind. Code § 35-48-4-1(b)(3)(B)(iii) (2006). 2 The jury also found McCaster guilty of possession of cocaine as a Class B felony, but no judgment was entered on that verdict. 3 The telephone number was registered to an individual named Amanda Burton. Detective Walters did not know if Burton had ever been asked why a telephone registered to her would be used in drug transactions.
2 Detective Jared Sowders were assigned to the area as part of the rapid action team, whose
function was to help the undercover officer as needed. Prior to the controlled buy, the buy
money was photographed, and Walters was fitted with a body wire to allow the audio
portion of the transaction to be heard by other members of the team.
After the surveillance team members took their places, Walters went to the location
of the controlled buy. Shortly after arriving there, Walters and Lovett observed two black
males walking toward Walters’ car. McCaster was wearing a black or dark tee shirt and
jean shorts, wore his hair in corn rows, and had tattoos down his left arm. The other
individual was wearing a white tee shirt and shorts. The controlled buy took place after
9:00 p.m., and although it was twilight, Walters had a clear view of McCaster. McCaster
opened the passenger door of Walters’ vehicle, sat down, and spit two small baggies into
his hand. He gave them to Walters, who then gave McCaster $100.
McCaster left Walters’ vehicle and headed toward the side of Bar Barry Liquor
Store. Walters told the other officers that McCaster had exited his vehicle and passed along
a brief description of McCaster. Lovett videotaped both the transaction and McCaster
walking away from Walters’ vehicle. After hearing that McCaster had exited Walters’
vehicle, Sowders observed a black male coming around the corner of Bar Barry Liquor
Store. Barthelemy also saw McCaster, whom he recognized, along with the individual
wearing the white tee shirt coming around the corner seconds after hearing Walters indicate
that the controlled buy was completed.
Barthelemy was familiar with McCaster and McCaster’s family from patrolling the
city for over eight years. Barthelemy had met them numerous times and was aware that
3 McCaster lived near 14th and Alabama Street, a location in the same area as the controlled
buy. Barthelemy notified the other detectives that he had identified the suspect as
McCaster. After viewing the video recording made by Lovett, Barthelemy recognized
McCaster as the person who had entered and exited Walters’ vehicle.
McCaster was not arrested immediately after the controlled buy because the officers
hoped to identify others working with him. Walters left the scene, field tested the substance
McCaster had sold to him, and determined that it was cocaine. Walters viewed a
photograph of McCaster later that evening and recognized him as the person from whom
he had purchased the cocaine. Subsequent lab tests verified that the substance in one of
the baggies, weighing .23 grams, was cocaine.
The State charged McCaster with one count of dealing in cocaine as a Class A
felony, one count of possession of cocaine as a Class B felony, and two separate
informations alleging in one that McCaster was an habitual substance offender and that he
was an habitual offender in the other.
At the conclusion of McCaster’s jury trial, he was found guilty of both dealing in
cocaine and possession of cocaine. McCaster waived his right to a jury trial on the habitual
offender phase of his trial. During that phase of the trial, the State presented evidence that
McCaster had a conviction for delivery of a controlled substance in cause number
97CR0500901, armed robbery in cause number 97CR1651201, and possession of a
controlled substance in cause number 00CR0855601. Each of those convictions were from
4 the State of Illinois.4 The trial court found that McCaster had been convicted under those
cause numbers and determined that McCaster was an habitual offender. McCaster now
appeals.
I.
McCaster claims that the evidence is insufficient to sustain his conviction for
dealing in cocaine.
Our standard of review with regard to sufficiency claims is well settled. In reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence or judge the credibility of the witnesses. We will consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom and will affirm if the evidence and those inferences constitute substantial evidence of probative value to support the judgment. A conviction may be based upon circumstantial evidence alone. Reversal is appropriate only when reasonable persons would not be able to form inferences as to each material element of the offense.
Lainhart v. State, 916 N.E.2d 924, 939 (Ind. Ct. App. 2009) (internal citations omitted).
In order to establish that McCaster had committed dealing in cocaine, the State was
required to prove beyond a reasonable doubt that McCaster knowingly or intentionally
delivered cocaine to another person within 1000 feet of a family housing complex. Ind.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jun 24 2014, 8:58 am 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:
BRUCE W. GRAHAM GREGORY F. ZOELLER Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana ANDREW FALK Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ANTONIO MCCASTER, ) ) Appellant-Defendant, ) ) vs. ) No. 79A04-1311-CR-544 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-1302-FA-2
June 24, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge STATEMENT OF THE CASE
Antonio McCaster appeals from his conviction of one count of dealing in cocaine1
as a Class A felony,2 and his habitual offender determination, contending that there was
insufficient evidence to support his conviction for dealing in cocaine, and that there was
insufficient evidence to support the trial court’s finding that he was an habitual offender.
Consistent with our standard of review, however, we affirm McCaster’s conviction and
habitual offender determination.
FACTS AND PROCEDURAL HISTORY
Lafayette Police Department Detective Jason Walters, who was also assigned to the
Tippecanoe County Drug Task Force, received information that a person, who could be
reached at cell phone number 312-771-1487,3 might be selling cocaine. Walters contacted
the person using that cell phone number and arranged to meet him at Bar Barry Liquor
Store located at 1601 Main Street, Lafayette, Indiana. That location, which was selected
by the suspect, was within 1000 feet of several family housing complexes and a public
park. The two agreed that Walters would purchase $100 worth of cocaine.
Lafayette Police Department Detective Natalie Lovett, who was also assigned to the
Tippecanoe County Drug Task Force, conducted surveillance of the controlled buy, and
Lafayette Police Department Officer Michael Barthelemy and Lafayette Police Department
1 Ind. Code § 35-48-4-1(b)(3)(B)(iii) (2006). 2 The jury also found McCaster guilty of possession of cocaine as a Class B felony, but no judgment was entered on that verdict. 3 The telephone number was registered to an individual named Amanda Burton. Detective Walters did not know if Burton had ever been asked why a telephone registered to her would be used in drug transactions.
2 Detective Jared Sowders were assigned to the area as part of the rapid action team, whose
function was to help the undercover officer as needed. Prior to the controlled buy, the buy
money was photographed, and Walters was fitted with a body wire to allow the audio
portion of the transaction to be heard by other members of the team.
After the surveillance team members took their places, Walters went to the location
of the controlled buy. Shortly after arriving there, Walters and Lovett observed two black
males walking toward Walters’ car. McCaster was wearing a black or dark tee shirt and
jean shorts, wore his hair in corn rows, and had tattoos down his left arm. The other
individual was wearing a white tee shirt and shorts. The controlled buy took place after
9:00 p.m., and although it was twilight, Walters had a clear view of McCaster. McCaster
opened the passenger door of Walters’ vehicle, sat down, and spit two small baggies into
his hand. He gave them to Walters, who then gave McCaster $100.
McCaster left Walters’ vehicle and headed toward the side of Bar Barry Liquor
Store. Walters told the other officers that McCaster had exited his vehicle and passed along
a brief description of McCaster. Lovett videotaped both the transaction and McCaster
walking away from Walters’ vehicle. After hearing that McCaster had exited Walters’
vehicle, Sowders observed a black male coming around the corner of Bar Barry Liquor
Store. Barthelemy also saw McCaster, whom he recognized, along with the individual
wearing the white tee shirt coming around the corner seconds after hearing Walters indicate
that the controlled buy was completed.
Barthelemy was familiar with McCaster and McCaster’s family from patrolling the
city for over eight years. Barthelemy had met them numerous times and was aware that
3 McCaster lived near 14th and Alabama Street, a location in the same area as the controlled
buy. Barthelemy notified the other detectives that he had identified the suspect as
McCaster. After viewing the video recording made by Lovett, Barthelemy recognized
McCaster as the person who had entered and exited Walters’ vehicle.
McCaster was not arrested immediately after the controlled buy because the officers
hoped to identify others working with him. Walters left the scene, field tested the substance
McCaster had sold to him, and determined that it was cocaine. Walters viewed a
photograph of McCaster later that evening and recognized him as the person from whom
he had purchased the cocaine. Subsequent lab tests verified that the substance in one of
the baggies, weighing .23 grams, was cocaine.
The State charged McCaster with one count of dealing in cocaine as a Class A
felony, one count of possession of cocaine as a Class B felony, and two separate
informations alleging in one that McCaster was an habitual substance offender and that he
was an habitual offender in the other.
At the conclusion of McCaster’s jury trial, he was found guilty of both dealing in
cocaine and possession of cocaine. McCaster waived his right to a jury trial on the habitual
offender phase of his trial. During that phase of the trial, the State presented evidence that
McCaster had a conviction for delivery of a controlled substance in cause number
97CR0500901, armed robbery in cause number 97CR1651201, and possession of a
controlled substance in cause number 00CR0855601. Each of those convictions were from
4 the State of Illinois.4 The trial court found that McCaster had been convicted under those
cause numbers and determined that McCaster was an habitual offender. McCaster now
appeals.
I.
McCaster claims that the evidence is insufficient to sustain his conviction for
dealing in cocaine.
Our standard of review with regard to sufficiency claims is well settled. In reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence or judge the credibility of the witnesses. We will consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom and will affirm if the evidence and those inferences constitute substantial evidence of probative value to support the judgment. A conviction may be based upon circumstantial evidence alone. Reversal is appropriate only when reasonable persons would not be able to form inferences as to each material element of the offense.
Lainhart v. State, 916 N.E.2d 924, 939 (Ind. Ct. App. 2009) (internal citations omitted).
In order to establish that McCaster had committed dealing in cocaine, the State was
required to prove beyond a reasonable doubt that McCaster knowingly or intentionally
delivered cocaine to another person within 1000 feet of a family housing complex. Ind.
Code § 35-48-4-1(b)(3)(B)(iii) (2006). The evidence most favorable to the jury’s verdict
reveals that Walters met McCaster at a previously determined location, which was within
1000 feet of a family housing complex, and which was chosen by McCaster. McCaster
entered Walters’ vehicle, gave him baggies of cocaine, received $100 from Walters, and
4 Without objection from McCaster, fingerprints taken from McCaster at the Tippecanoe County Jail were compared with the fingerprint cards from the prior Illinois arrests leading to the convictions. McCaster was charged in that name and under the name Demetrius Evans. An Indiana State Police fingerprint analyst confirmed that the fingerprints from all four fingerprint cards were McCaster’s.
5 then left. Walters told the other detectives that the controlled buy had concluded, that
McCaster was out of his vehicle, and gave them a brief description of the suspect.
McCaster walked toward the side of Bar Barry Liquor. Lovett recorded both the
transaction and McCaster walking away from Walters’ vehicle.
After hearing that the transaction had concluded, Sowders saw a black male coming
around the corner of Bar Barry Liquor. Barthelemy also observed McCaster, whom he
recognized, along with the individual wearing the white tee shirt coming around the corner
seconds after hearing that the transaction was completed. Barthelemy was familiar with
McCaster and his family and knew that he lived near the location of the controlled buy.
Barthelemy passed along his identification of McCaster as the suspect. Barthelemy
confirmed that identification after viewing the video tape recorded by Lovett. Walters,
who had a clear view of McCaster, viewed a photograph of McCaster later that evening
and immediately recognized McCaster as the person who sold the cocaine to him.
Walters’ field testing of the substance contained in one of the baggies he had
purchased from McCaster produced a positive result for cocaine. Subsequent testing of the
substance in the baggies revealed that one of the baggies, weighing .23 grams, contained
cocaine.
McCaster’s main contention with respect to the sufficiency of the evidence is that
the State failed to establish his identity as the person who sold the cocaine to Walters.
McCaster argues that the State should have considered surveillance video from the liquor
store, or should have contacted the owner of the cell phone used to arrange the transaction.
McCaster claims that he could not be identified in the video tape recorded by Lovett, and
6 that the officers’ identification of him is deficient because it was almost dark at the time of
the transaction. Many of these claims, however, are an invitation to reweigh the evidence,
a task we are forbidden to undertake given our standard of review. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). Resolution of the other claims—failure to review the liquor
store surveillance tape and failure to contact Burton, the owner of the cell phone—is not
necessary to our review of whether the State proved its case against McCaster. Sufficient
evidence supports McCaster’s conviction.
II.
McCaster also asserts that there is insufficient evidence to support the determination
of his status as an habitual offender. Although framed as a question involving the
sufficiency of the evidence, McCaster does not challenge the State’s proof. Instead,
McCaster claims that our Supreme Court incorrectly interpreted Indiana Code section 35-
50-2-8 (2005) in its decision in Peoples v. State, 929 N.E.2d 750 (Ind. 2010),5 and that the
statute is inapplicable to him.
As an initial matter, we observe that McCaster did not raise this issue at trial. “It is
well settled that Indiana’s appellate courts look with disfavor upon issues that are raised by
a party for the first time on appeal or in original actions without first raising the issue at
first opportunity in the trial court.” Craig v. State, 883 N.E.2d 218, 220 (Ind. Ct. App.
2008) (quoting Byrd v. State, 592 N.E.2d 690, 691 (Ind. 1992)).
5 Our Supreme Court held that a defendant’s current conviction for dealing in cocaine in the first phase of that defendant’s trial could also be counted under the habitual offender statute for use in the habitual offender phase of that defendant’s trial. Peoples, 929 N.E.2d at 754.
7 Additionally, the failure to challenge an allegedly defective charging information
by way of a motion to dismiss before trial results in waiver of the issue on appeal. Lampitok
v. State, 817 N.E.2d 630, 636 (Ind. Ct. App. 2004) (citing Buzzard v. State, 712 N.E.2d
547, 551 (Ind. Ct. App. 1999)). The State filed both an habitual substance offender
information and an habitual offender information against McCaster. Therefore, he was
aware of the State’s intention to establish his status as either an habitual substance offender
or an habitual offender by way of his prior convictions in Illinois. Because McCaster failed
to file a motion to dismiss prior to trial, his contention is arguably waived under this
reasoning as well.
Further, to the extent that McCaster seeks to have this court overrule the binding
precedent of our Supreme Court, we will not entertain this notion. As we have previously
stated,
We are bound by the decisions of our [S]upreme [C]ourt. Supreme [C]ourt precedent is binding upon us until it is changed either by that court or by legislative enactment. While Indiana Appellate Rule 65(A) authorizes this [c]ourt to criticize existing law, it is not this court’s role to “reconsider” [S]upreme [C]ourt decisions.
Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002) (internal citations omitted).
Waiver notwithstanding, under the reasoning of our Supreme Court’s opinion in
Peoples, we conclude that there was sufficient evidence to support the trial court’s
determination of McCaster’s status as an habitual offender. Indiana Code section 35-50-
2-8 provides in pertinent part as follows:
(a) Except as otherwise provided in this section, the state may seek to have a person sentenced as a habitual offender for any felony by alleging, on a page
8 separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions.
(b) The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if:
....
(3) all of the following apply:
(A) The offense is an offense under IC 16-42-19 or IC 35-48- 4. (B) The offense is not listed in section 2(b)(4) of this chapter. (C) The total number of unrelated convictions that the person has for:
(i) dealing in or selling a legend drug under IC 16-42-19-27; (ii) dealing in cocaine or a narcotic drug (IC 35- 48-4-1); (iii) dealing in a schedule I, II, III controlled substance (IC 35-48-4-2); (iv) dealing in a schedule IV controlled substance (IC 35-48-4-3); and (v) dealing in a schedule V controlled substance (IC 35-48-4-4);
does not exceed one (1).
The State alleged that McCaster was an habitual offender and an habitual substance
offender based upon three prior felony convictions: 1) delivery of a controlled substance
in 1997; 2) armed robbery in 1997; and 3) possession of a controlled substance in 2000.
McCaster’s present conviction is for dealing in cocaine as a Class A felony under Indiana
Code chapter 35-48-4. Applying the reasoning announced in Peoples to McCaster’s case,
the present drug conviction coupled with McCaster’s 1997 Illinois drug conviction does
not prohibit a finding of habitual offender status.
9 With respect to the evidence supporting the habitual offender determination, we
conclude that sufficient evidence was presented at that phase of the trial. Without
objection, the State introduced certified and authenticated records establishing that
McCaster was the individual who committed each of the qualifying offenses. Because
McCaster’s Illinois convictions were entered under two different names, again, without
objection, the State introduced evidence from an Indiana State Police fingerprint analyst
who established that the fingerprints from each of the convictions in Illinois matched
fingerprints taken from McCaster at the Tippecanoe County Jail. A defendant’s
identification can be independently established by the use of fingerprint evidence. Straub
v. State, 567 N.E.2d 87, 93 (Ind. 1991). We find no error here.
CONCLUSION
In light of the foregoing, we affirm the trial court.
BAKER, J., and BRADFORD, J., concur.