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.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAULA M. SAUER GREGORY F. ZOELLER Danville, Indiana Attorney General of Indiana
NICOLE M. SCHUSTER Deputy Attorney General
FILED Indianapolis, Indiana
Dec 11 2012, 9:49 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
BRADLEY S. SATER, ) ) Appellant-Defendant, ) ) vs. ) No. 32A04-1204-CR-182 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable David H. Coleman, Judge Cause No. 32D02-1012-FA-2
December 11, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge STATEMENT OF THE CASE
Bradley Sater appeals his convictions for Class A felony dealing in
methamphetamine, Ind. Code § 35-48-4-1.1 (2006), and Class C felony possession of
methamphetamine, Ind. Code § 35-48-4-6.1 (2006). We affirm the dealing conviction
and remand with instructions to vacate the possession conviction.
ISSUES
Sater raises two issues, which we restate as:
I. Whether the evidence is sufficient to sustain his convictions.
II. Whether his convictions violate double jeopardy principles.
FACTS AND PROCEDURAL HISTORY
Joshua Shumaker worked as a confidential informant to get his pending Class B
felony drug charge reduced to a Class D felony. In July 2010, Shumaker met Detective
Timothy Wells of the United Drug Task Force at the Plainfield Police Department to
prepare for a controlled buy of methamphetamine from Sater. Detective Wells searched
Shumaker and his vehicle and found no contraband. He then outfitted Shumaker with an
audio/video recording device and gave him $550 in prerecorded buy money.
Detective Wells followed Shumaker to the Plainfield home of Sater’s parents.
Sater met Shumaker outside in the driveway, and they went through the garage and into
the house. Inside, Shumaker gave Sater the buy money, and Sater gave him a plastic bag
containing 6.62 grams of methamphetamine. Sater was holding a meth pipe and asked
Shumaker to smoke with him. Shumaker was in the house for about five to seven
minutes. Other than Sater, he did not see anyone else in the residence.
2 After Shumaker left the house, he met Detective Wells at a nearby carwash.
Detective Wells took the bag of methamphetamine from Shumaker. Again, he searched
Shumaker and his vehicle and found no other contraband. Shumaker gave Detective
Wells a statement detailing his purchase from Sater.
In December 2010, the State charged Sater with Class A felony dealing in
methamphetamine and Class C felony possession of methamphetamine. At trial,
Detective Wells and Shumaker testified for the State, and the recording of the drug
transaction was admitted into evidence and played to the jury. Sater testified in his own
defense. He admitted that he was the person on the recording but claimed that he was
holding a bag of marijuana and a marijuana pipe, not a bag of methamphetamine and a
meth pipe. He also claimed that there were two other people in the house and that
Shumaker must have obtained the methamphetamine from one of those people. No other
witnesses testified for the defense.
The jury found Sater guilty as charged. The trial court entered judgments of
conviction on both jury verdicts, merged the possession conviction into the dealing
conviction, and sentenced Sater to twenty-five years for the dealing conviction. Sater
now appeals.
DISCUSSION AND DECISION
I. SUFFICIENCY OF THE EVIDENCE
Sater contends that the evidence is insufficient to sustain his convictions. In
reviewing a sufficiency of the evidence claim, we do not reweigh the evidence or assess
the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010).
3 Rather, we look to the evidence and reasonable inferences drawn therefrom that support
the verdicts. Id. We affirm the convictions if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.
In cases involving a controlled buy such as that presented here, the adequacy of
the control goes to the weight of the evidence and credibility of the witnesses presented,
which we may not reweigh. Heyen v. State, 936 N.E.2d 294, 302 (Ind. Ct. App. 2010),
trans. denied. In addition, a conviction in a drug case may be sustained upon the
testimony of an informant alone. Haynes v. State, 431 N.E.2d 83, 85 (Ind. 1982).
To convict Sater of possession of methamphetamine as charged here, the State had
to prove beyond a reasonable doubt that Sater knowingly possessed three grams or more
of methamphetamine without a valid prescription or order of a practitioner acting in the
course of the practitioner’s professional practice. Appellant’s App. p. 11; see Ind. Code §
35-48-4-6.1(a), (b)(1)(A). To convict Sater of dealing in methamphetamine as charged
here, the State had to prove beyond a reasonable doubt that Sater knowingly delivered
three grams or more of methamphetamine. Appellant’s App. p. 10; see Ind. Code § 35-
48-4-1.1(a)(1)(C), (b)(1).
Sater does not challenge the identification of the substance recovered from
Shumaker as methamphetamine or its weight. Instead, he claims that someone else in the
house must have sold Shumaker the methamphetamine, and that the recording only
shows Sater holding marijuana and a marijuana pipe. He points out that there is no
evidence that the police watched all entrances to the residence during the transaction;
multiple vehicles were parked at the residence at the time of the transaction, suggesting
4 other people were present; the recording showed Sater referring to seeds at the bottom of
the bag, but the recovered bag of methamphetamine contained no seeds; and the buy
money was not recovered.
These are merely requests for us to reweigh the evidence, which we may not do.
See Haynes, 431 N.E.2d at 86 (“The fact that the informant was not actually seen entering
the house was a factor for the jury to consider in weighing the evidence.”). Here,
Shumaker testified at trial that it was Sater who sold him the methamphetamine. This
testimony alone is sufficient to sustain Sater’s convictions for possession of and dealing
in methamphetamine. See Toney v. State, 715 N.E.2d 367, 368-69 (Ind. 1999)
(informant’s uncorroborated testimony alone sufficient to sustain drug conviction despite
appellant’s claim involving adequacy of control). The jury also heard Detective Wells’s
testimony and viewed and listened to the recording of the transaction, which failed to
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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.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAULA M. SAUER GREGORY F. ZOELLER Danville, Indiana Attorney General of Indiana
NICOLE M. SCHUSTER Deputy Attorney General
FILED Indianapolis, Indiana
Dec 11 2012, 9:49 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
BRADLEY S. SATER, ) ) Appellant-Defendant, ) ) vs. ) No. 32A04-1204-CR-182 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable David H. Coleman, Judge Cause No. 32D02-1012-FA-2
December 11, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge STATEMENT OF THE CASE
Bradley Sater appeals his convictions for Class A felony dealing in
methamphetamine, Ind. Code § 35-48-4-1.1 (2006), and Class C felony possession of
methamphetamine, Ind. Code § 35-48-4-6.1 (2006). We affirm the dealing conviction
and remand with instructions to vacate the possession conviction.
ISSUES
Sater raises two issues, which we restate as:
I. Whether the evidence is sufficient to sustain his convictions.
II. Whether his convictions violate double jeopardy principles.
FACTS AND PROCEDURAL HISTORY
Joshua Shumaker worked as a confidential informant to get his pending Class B
felony drug charge reduced to a Class D felony. In July 2010, Shumaker met Detective
Timothy Wells of the United Drug Task Force at the Plainfield Police Department to
prepare for a controlled buy of methamphetamine from Sater. Detective Wells searched
Shumaker and his vehicle and found no contraband. He then outfitted Shumaker with an
audio/video recording device and gave him $550 in prerecorded buy money.
Detective Wells followed Shumaker to the Plainfield home of Sater’s parents.
Sater met Shumaker outside in the driveway, and they went through the garage and into
the house. Inside, Shumaker gave Sater the buy money, and Sater gave him a plastic bag
containing 6.62 grams of methamphetamine. Sater was holding a meth pipe and asked
Shumaker to smoke with him. Shumaker was in the house for about five to seven
minutes. Other than Sater, he did not see anyone else in the residence.
2 After Shumaker left the house, he met Detective Wells at a nearby carwash.
Detective Wells took the bag of methamphetamine from Shumaker. Again, he searched
Shumaker and his vehicle and found no other contraband. Shumaker gave Detective
Wells a statement detailing his purchase from Sater.
In December 2010, the State charged Sater with Class A felony dealing in
methamphetamine and Class C felony possession of methamphetamine. At trial,
Detective Wells and Shumaker testified for the State, and the recording of the drug
transaction was admitted into evidence and played to the jury. Sater testified in his own
defense. He admitted that he was the person on the recording but claimed that he was
holding a bag of marijuana and a marijuana pipe, not a bag of methamphetamine and a
meth pipe. He also claimed that there were two other people in the house and that
Shumaker must have obtained the methamphetamine from one of those people. No other
witnesses testified for the defense.
The jury found Sater guilty as charged. The trial court entered judgments of
conviction on both jury verdicts, merged the possession conviction into the dealing
conviction, and sentenced Sater to twenty-five years for the dealing conviction. Sater
now appeals.
DISCUSSION AND DECISION
I. SUFFICIENCY OF THE EVIDENCE
Sater contends that the evidence is insufficient to sustain his convictions. In
reviewing a sufficiency of the evidence claim, we do not reweigh the evidence or assess
the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010).
3 Rather, we look to the evidence and reasonable inferences drawn therefrom that support
the verdicts. Id. We affirm the convictions if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.
In cases involving a controlled buy such as that presented here, the adequacy of
the control goes to the weight of the evidence and credibility of the witnesses presented,
which we may not reweigh. Heyen v. State, 936 N.E.2d 294, 302 (Ind. Ct. App. 2010),
trans. denied. In addition, a conviction in a drug case may be sustained upon the
testimony of an informant alone. Haynes v. State, 431 N.E.2d 83, 85 (Ind. 1982).
To convict Sater of possession of methamphetamine as charged here, the State had
to prove beyond a reasonable doubt that Sater knowingly possessed three grams or more
of methamphetamine without a valid prescription or order of a practitioner acting in the
course of the practitioner’s professional practice. Appellant’s App. p. 11; see Ind. Code §
35-48-4-6.1(a), (b)(1)(A). To convict Sater of dealing in methamphetamine as charged
here, the State had to prove beyond a reasonable doubt that Sater knowingly delivered
three grams or more of methamphetamine. Appellant’s App. p. 10; see Ind. Code § 35-
48-4-1.1(a)(1)(C), (b)(1).
Sater does not challenge the identification of the substance recovered from
Shumaker as methamphetamine or its weight. Instead, he claims that someone else in the
house must have sold Shumaker the methamphetamine, and that the recording only
shows Sater holding marijuana and a marijuana pipe. He points out that there is no
evidence that the police watched all entrances to the residence during the transaction;
multiple vehicles were parked at the residence at the time of the transaction, suggesting
4 other people were present; the recording showed Sater referring to seeds at the bottom of
the bag, but the recovered bag of methamphetamine contained no seeds; and the buy
money was not recovered.
These are merely requests for us to reweigh the evidence, which we may not do.
See Haynes, 431 N.E.2d at 86 (“The fact that the informant was not actually seen entering
the house was a factor for the jury to consider in weighing the evidence.”). Here,
Shumaker testified at trial that it was Sater who sold him the methamphetamine. This
testimony alone is sufficient to sustain Sater’s convictions for possession of and dealing
in methamphetamine. See Toney v. State, 715 N.E.2d 367, 368-69 (Ind. 1999)
(informant’s uncorroborated testimony alone sufficient to sustain drug conviction despite
appellant’s claim involving adequacy of control). The jury also heard Detective Wells’s
testimony and viewed and listened to the recording of the transaction, which failed to
demonstrate that there was anyone else in the house. It was for the jury to weigh this
evidence against Sater’s version of events. We conclude that the evidence is sufficient to
sustain Sater’s convictions.
II. DOUBLE JEOPARDY
Sater next contends that his convictions violate double jeopardy principles. A
defendant’s constitutional rights are violated when a court enters judgment twice for the
same offense, but not when a defendant is simply found guilty of a particular count.
Green v. State, 856 N.E.2d 703, 704 (Ind. 2006). A double jeopardy violation occurs
when judgments of conviction are entered and cannot be remedied by the “practical
5 effect” of concurrent sentences or by merger after conviction has been entered. Gregory
v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied.
The 6.62 grams of methamphetamine Sater sold Shumaker serve as the basis for
both the possession and dealing counts. The possession is thus a lesser included offense
of the dealing. See Micheau v. State, 893 N.E.2d 1053, 1066 (Ind. Ct. App. 2008)
(concluding that possession of methamphetamine is lesser included offense of dealing in
methamphetamine where offenses are based on same drugs), trans. denied.
The trial court entered judgments of conviction for both possession and dealing.
See Tr. p. 305 (oral sentencing statement); Appellant’s App. pp. 120 (Judgment of
Conviction, Sentencing Order, and Order of Commitment (“Judgment of Conviction”)),
121 (Felony Sentencing Order), 123 (Abstract of Judgment). Although the court merged
the possession conviction into the dealing conviction, this was not sufficient to remedy
the double jeopardy violation. We therefore remand with instructions to vacate Sater’s
conviction for possession of methamphetamine. See Gregory, 885 N.E.2d at 703
(remanding with instructions to vacate conviction for conspiracy to deal in
methamphetamine where trial court attempted to avoid double jeopardy violation by
merging that conviction with dealing in methamphetamine conviction).
CONCLUSION
For the reasons stated, we affirm Sater’s dealing conviction and remand with
instructions to vacate the possession conviction. We also direct the court to amend the
Judgment of Conviction, Felony Sentencing Order, and Abstract of Judgment to show
6 conviction only on the dealing count and to send copies of these amended documents to
the Department of Correction.
Affirmed in part and remanded with instructions.
RILEY, J., and BAILEY, J., concur.