MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 18 2019, 7:00 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael P. Quirk Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana
Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles C. Clock, June 18, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2855 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Plaintiff. Cannon, Jr., Judge Trial Court Cause No. 18C05-1804-F4-17
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 1 of 7 [1] Charles C. Clock appeals his convictions by jury of Level 4 felony dealing in 1 2 methamphetamine and Level 4 felony dealing in a narcotic drug. One issue is
raised on appeal: did the State present sufficient evidence to support a finding
of guilt? We affirm.
[2] The facts favorable to the conviction are that the Muncie Police Narcotics Unit
(“MPNU”) entered into an agreement with a confidential informant (“CI”) to
conduct two controlled buys from Clock after receiving information that he
might be dealing in methamphetamine. The CI first arranged to purchase
methamphetamine from Clock on January 22, 2018 at Clock’s residence.
MPNU Officers, Sergeant Bret Elam and Sergeant Michael Nickens, completed
pre- and post-buy procedures to be sure that she was not in possession of “any
controlled substances, money, or weapons.” Tr. Vol. II, p. 10. The officers
equipped the CI with an audio-video recording device and handed her cash that
they had previously photocopied to track any sale.
[3] Sgt. Elam then drove the CI to Clock’s residence. The CI walked straight into
the residence and addressed Clock by his name, “Chucky.” Id. at 169. Clock
then sold methamphetamine to the CI for $40 of the photocopied cash. The CI
returned directly to Sgt. Elam’s car to turn over the recording device, left-over
photocopied cash, and a baggie containing a substance. The substance was
1 Ind. Code § 35-48-4-1.1 (2017). 2 Ind. Code § 35-48-4-1 (2017).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 2 of 7 later identified as methamphetamine. Upon review of the recording, Sgt.
Nickens was also able to identify Clock’s voice during the transaction. The
recording also revealed Clock’s negotiation regarding price and the
arrangement of a future sale with the CI.
[4] The second sale took place on February 7, 2018. The officers and the CI
followed the same controlled buy processes. Clock sold what was later
confirmed as heroin to the CI for $20 of photocopied cash. Sgt. Nickens both
auditorily and visually identified Clock, who was wearing a red hoodie, as
being present. Again, Clock is heard discussing the sale of the drug with the CI.
[5] About an hour following the second sale, the Muncie Police Department
conducted a traffic stop on a vehicle being driven by Clock. Officer Joseph
Winkle made contact with Clock, who wore a red hoodie underneath a jacket.
Clock was searched and two $20 bills were found on his person. The serial
number on one of the bills matched the serial number of a bill the CI used in the
purchase of the heroin. A loaded .22 caliber handgun was also found in Clock’s
vehicle. Clock was released but was subsequently arrested on March 29, 2018.
[6] The State charged Clock with three counts: Count I, dealing in
methamphetamine, as a Level 5 felony; Count II, dealing in a narcotic drug, as
a Level 5 felony; and Count III, unlawful possession of a firearm by a serious
violent felon, as a Level 4 felony. A jury trial was held in two phases. In phase
one, the jury convicted Clock on Counts I and II; and acquitted him of Count
III. In phase two, the jury found that Clock’s prior convictions for dealing in
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 3 of 7 methamphetamine enhanced Counts I and II to Level 4 felonies. The trial
court then sentenced Clock to an aggregate sentence of six years. This appeal
followed.
[7] Clock contends the evidence was insufficient to sustain his convictions of
dealing in methamphetamine and dealing in a narcotic drug. He does not
dispute that a CI, working with the MPNU, engaged in two controlled buys
involving methamphetamine and heroin. Specifically, Clock only claims the
State did not provide sufficient evidence to prove he was the dealer.
[8] Our standard of review for challenges to the sufficiency of evidence supporting
a criminal conviction is well settled.
When reviewing a claim that the evidence introduced at trial was insufficient to support a conviction, we consider only the probative evidence and reasonable inferences that support the trial court’s finding of guilt. We likewise consider conflicting evidence in the light most favorable to the trial court’s finding. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. Instead, we will affirm the conviction unless no reasonable trier of fact could have found the elements of the crime beyond a reasonable doubt.
Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011) (citations omitted). We neither
reweigh the evidence nor assess the credibility of witnesses when considering a
challenge of sufficiency. Turner v. State, 953 N.E.2d 1039 (Ind. 2011).
[9] On Count I, the State charged Clock with dealing in methamphetamine, a
Level 4 felony. Indiana Code section 35-48-4-1.1(1)(A) states: “(a) A person
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 4 of 7 who: (1) knowingly or intentionally: (A) delivers . . . methamphetamine, pure
or adulterated; . . . commits dealing in methamphetamine.” “Delivery” is
defined as “(1) an actual or constructive transfer from one [ ] person to another
of a controlled substance . . . ; or (2) the organizing or supervising of an activity
described in subdivision (1). Ind. Code § 35-48-1-11 (1990).
[10] We agree the State has presented sufficient evidence to prove each element of
the offense beyond a reasonable doubt on Count I. The MPNU began
investigating Clock after receiving information that he was dealing in controlled
substances.
[11] The first controlled buy resulted in the purchase of methamphetamine. The
officers screened the CI with pre- and post-buy procedures which were much
more extensive than our courts require in such situations. See, e.g., Vaughn v.
State, 13 N.E.3d 873 (Ind. Ct. App. 2005) (a pat-down search of the CI or buyer
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 18 2019, 7:00 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael P. Quirk Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana
Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles C. Clock, June 18, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2855 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Plaintiff. Cannon, Jr., Judge Trial Court Cause No. 18C05-1804-F4-17
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 1 of 7 [1] Charles C. Clock appeals his convictions by jury of Level 4 felony dealing in 1 2 methamphetamine and Level 4 felony dealing in a narcotic drug. One issue is
raised on appeal: did the State present sufficient evidence to support a finding
of guilt? We affirm.
[2] The facts favorable to the conviction are that the Muncie Police Narcotics Unit
(“MPNU”) entered into an agreement with a confidential informant (“CI”) to
conduct two controlled buys from Clock after receiving information that he
might be dealing in methamphetamine. The CI first arranged to purchase
methamphetamine from Clock on January 22, 2018 at Clock’s residence.
MPNU Officers, Sergeant Bret Elam and Sergeant Michael Nickens, completed
pre- and post-buy procedures to be sure that she was not in possession of “any
controlled substances, money, or weapons.” Tr. Vol. II, p. 10. The officers
equipped the CI with an audio-video recording device and handed her cash that
they had previously photocopied to track any sale.
[3] Sgt. Elam then drove the CI to Clock’s residence. The CI walked straight into
the residence and addressed Clock by his name, “Chucky.” Id. at 169. Clock
then sold methamphetamine to the CI for $40 of the photocopied cash. The CI
returned directly to Sgt. Elam’s car to turn over the recording device, left-over
photocopied cash, and a baggie containing a substance. The substance was
1 Ind. Code § 35-48-4-1.1 (2017). 2 Ind. Code § 35-48-4-1 (2017).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 2 of 7 later identified as methamphetamine. Upon review of the recording, Sgt.
Nickens was also able to identify Clock’s voice during the transaction. The
recording also revealed Clock’s negotiation regarding price and the
arrangement of a future sale with the CI.
[4] The second sale took place on February 7, 2018. The officers and the CI
followed the same controlled buy processes. Clock sold what was later
confirmed as heroin to the CI for $20 of photocopied cash. Sgt. Nickens both
auditorily and visually identified Clock, who was wearing a red hoodie, as
being present. Again, Clock is heard discussing the sale of the drug with the CI.
[5] About an hour following the second sale, the Muncie Police Department
conducted a traffic stop on a vehicle being driven by Clock. Officer Joseph
Winkle made contact with Clock, who wore a red hoodie underneath a jacket.
Clock was searched and two $20 bills were found on his person. The serial
number on one of the bills matched the serial number of a bill the CI used in the
purchase of the heroin. A loaded .22 caliber handgun was also found in Clock’s
vehicle. Clock was released but was subsequently arrested on March 29, 2018.
[6] The State charged Clock with three counts: Count I, dealing in
methamphetamine, as a Level 5 felony; Count II, dealing in a narcotic drug, as
a Level 5 felony; and Count III, unlawful possession of a firearm by a serious
violent felon, as a Level 4 felony. A jury trial was held in two phases. In phase
one, the jury convicted Clock on Counts I and II; and acquitted him of Count
III. In phase two, the jury found that Clock’s prior convictions for dealing in
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 3 of 7 methamphetamine enhanced Counts I and II to Level 4 felonies. The trial
court then sentenced Clock to an aggregate sentence of six years. This appeal
followed.
[7] Clock contends the evidence was insufficient to sustain his convictions of
dealing in methamphetamine and dealing in a narcotic drug. He does not
dispute that a CI, working with the MPNU, engaged in two controlled buys
involving methamphetamine and heroin. Specifically, Clock only claims the
State did not provide sufficient evidence to prove he was the dealer.
[8] Our standard of review for challenges to the sufficiency of evidence supporting
a criminal conviction is well settled.
When reviewing a claim that the evidence introduced at trial was insufficient to support a conviction, we consider only the probative evidence and reasonable inferences that support the trial court’s finding of guilt. We likewise consider conflicting evidence in the light most favorable to the trial court’s finding. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. Instead, we will affirm the conviction unless no reasonable trier of fact could have found the elements of the crime beyond a reasonable doubt.
Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011) (citations omitted). We neither
reweigh the evidence nor assess the credibility of witnesses when considering a
challenge of sufficiency. Turner v. State, 953 N.E.2d 1039 (Ind. 2011).
[9] On Count I, the State charged Clock with dealing in methamphetamine, a
Level 4 felony. Indiana Code section 35-48-4-1.1(1)(A) states: “(a) A person
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 4 of 7 who: (1) knowingly or intentionally: (A) delivers . . . methamphetamine, pure
or adulterated; . . . commits dealing in methamphetamine.” “Delivery” is
defined as “(1) an actual or constructive transfer from one [ ] person to another
of a controlled substance . . . ; or (2) the organizing or supervising of an activity
described in subdivision (1). Ind. Code § 35-48-1-11 (1990).
[10] We agree the State has presented sufficient evidence to prove each element of
the offense beyond a reasonable doubt on Count I. The MPNU began
investigating Clock after receiving information that he was dealing in controlled
substances.
[11] The first controlled buy resulted in the purchase of methamphetamine. The
officers screened the CI with pre- and post-buy procedures which were much
more extensive than our courts require in such situations. See, e.g., Vaughn v.
State, 13 N.E.3d 873 (Ind. Ct. App. 2005) (a pat-down search of the CI or buyer
is sufficient, and a strip search or complete cavity search is not necessary)
(citations omitted), trans. denied. Since officers of the narcotics unit could not
follow the CI into Clock’s residence, she was equipped with a recording device.
In Vaughn, a conviction based largely on evidence from two controlled buys
was upheld. The court assuaged concerns of the use of a CI where the
surveilling officers lost sight of the CI and dealer during the sale. The court
explained that “proper procedure permitted the jury to reasonably infer that
Vaughn sold the cocaine to the CI.” 13 N.E.3d at 889. In addition to the
procedures, the jury was aware the CI was dropped off at Clock’s residence and
returned directly to MPNU officers with a substance later identified as
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 5 of 7 methamphetamine. The CI also returned with $40 less photocopied cash than
she entered with.
[12] The recordings made during the sale are also instructive. The CI addressed
Clock by his name, and an officer recognized Clock’s distinctive voice. Clock is
heard negotiating a price for the methamphetamine and discussing a future sale
with the CI. A jury, using the information above, could find beyond a
reasonable doubt that Clock dealt in methamphetamine.
[13] On Count II, the State charged Clock with dealing in a narcotic drug, a Level 4
felony. Indiana Code section 35-48-4-1 states: “(a) A person who: (1)
knowingly or intentionally . . . (C) delivers . . . cocaine or a narcotic drug, pure
or adulterated, classified in schedule I or II . . . ; commits dealing in cocaine or
a narcotic drug.” Delivery is defined the same as above. Ind. Code § 35-48-1-
11.
[14] The CI arranged a second controlled buy on February 7, 2018 for the purchase
of methamphetamine. The same pre- and post-buy procedures were followed
as in the first controlled purchase; and the CI was again equipped with
photocopied cash and video recording equipment. The CI entered Clock’s
residence in the same manner as the first buy. Again, an officer recognized
Clock’s conspicuous voice negotiating over the type and cost of drugs available
for sale. When the CI asked Clock to purchase heroin, Clock responded,
“that’s what it’s there for,” and asked if he could use an old baggie that “already
had dope in it.” St. Ex. 8.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 6 of 7 [15] A properly conducted controlled buy will permit an inference that Clock had
prior possession of the heroin. Vaughn, 13 N.E.3d at 888. The evidence allows
for a reasonable conclusion that Clock engaged in the transaction despite the
actual exchange of heroin for money not being captured on video. However,
Clock himself was recorded on video during the transaction wearing a red
hoodie. When Clock was pulled over in a traffic stop later that same evening,
he was wearing a red hoodie and had one of the photocopied $20 bills on his
person that matched the serial number of the original. This evidence would
lead a jury to conclude beyond a reasonable doubt that Clock was dealing in a
narcotic drug.
[16] Clock notes other people were present at his residence during the transactions
and claims one of them could have sold the controlled substances to the CI.
This claim is ultimately a request to reweigh the evidence to confirm some
other “hypothesis of innocence,” which we cannot do. Gray, 957 N.E.2d at
174; see also Turner, 953 N.E.2d at 1059. For the foregoing reasons, we
conclude that the evidence was sufficient to support the convictions.
[17] Judgment affirmed.
Riley, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019 Page 7 of 7