Glenn Dillard v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 14, 2017
• Docket: 49A05-1706-CR-1189
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 14 2017, 10:03 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Glenn Dillard, November 14, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1706-CR-1189 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Matthew A. Appellee-Plaintiff. Tandy, Judge Pro Tem Trial Court Cause No. 49G24-1609-CM-38068

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1189 | November 14, 2017 Page 1 of 5 Case Summary [1] Glenn Dillard appeals his conviction for Class A misdemeanor dealing in

paraphernalia. He contends that the evidence is insufficient to support his

conviction. Finding sufficient evidence, we affirm.

Facts and Procedural History [2] On September 23, 2016, a narcotics unit with the Indianapolis Metropolitan

Police Department was conducting an undercover operation on the east side of

Indianapolis near 10th and Rural Streets. That night, Officer Kent Meier was

“slow rolling” eastbound on 10th Street when Dillard motioned for him to turn

around. Tr. Vol. II p. 10. After Officer Meier turned around, Dillard

approached his car and asked him what he needed. Officer Meier responded

“slow motion” (heroin) or “smoke” (marijuana). Id. at 11. Dillard said that he

could take care of Officer Meier and then jumped into the passenger seat of the

officer’s car. As Officer Meier continued westbound on 10th Street, Dillard told

him that he did not actually have those drugs with him but that he would “take

[Officer Meier] down an alley to a residence for $20 of heroin or weed.” Id. at

12. Scared of being ambushed, Officer Meier continued driving. As Officer

Meier was about to let Dillard out of his car, Dillard mentioned having some

“hard” (crack cocaine) with him. Id. Officer Meier asked him how much, and

Dillard said “a nickel,” which is about $5 worth of crack cocaine. Id. Dillard

also said he had a pipe with him and that Officer Meier could buy both for $20.

Id. at 12-13. Dillard then showed Officer Meier the pipe and said that the crack

Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1189 | November 14, 2017 Page 2 of 5 cocaine was inside. According to Officer Meier, the pipe was a “crack pipe,”

which is used to smoke crack cocaine. Id. at 13. Dillard, however, put his

thumb or finger over the top of the pipe, concealing the inside of the pipe.

Officer Meier then gave Dillard $20 in prerecorded buy money “for the pipe

and what was believed to be crack cocaine inside the pipe,” pulled over, and let

Dillard out of his car. Id. at 12. After pulling away, Officer Meier radioed

other officers, who then arrested Dillard. Upon being searched, the $20 in

prerecorded buy money was found on Dillard’s person. The pipe was tested,

and it was found to contain cocaine residue, but no measurable amount of

cocaine.

[3] Thereafter, the State charged Dillard with Class A misdemeanor dealing in

paraphernalia. Following a bench trial, Dillard was found guilty.

[4] Dillard now appeals.

Discussion and Decision [5] Dillard contends that the evidence is insufficient to support his conviction.

When reviewing the sufficiency of the evidence to support a conviction,

appellate courts must consider only the probative evidence and reasonable

inferences supporting the judgment. Sallee v. State, 51 N.E.3d 130, 133 (Ind.

2016). It is the fact-finder’s role, not that of appellate courts, to assess witness

credibility and weigh the evidence to determine whether it is sufficient to

support a conviction. Id. It is not necessary that the evidence “overcome every

Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1189 | November 14, 2017 Page 3 of 5 reasonable hypothesis of innocence.” Id. (quotation omitted). The evidence is

sufficient if an inference may reasonably be drawn from it to support the

judgment. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).

[6] In order to convict Dillard of Class A misdemeanor dealing in paraphernalia as

charged here, the State had to prove that he knowingly or intentionally

delivered an object—a pipe—that was intended, designed, or marketed to be

used primarily for ingesting, inhaling, or otherwise introducing into the human

body a controlled substance, specifically, cocaine. Ind. Code § 35-48-4-8.5;

Appellant’s App. Vol. II p. 18. Dillard claims that the evidence is insufficient to

support his conviction for dealing in paraphernalia because “the transaction

was for cocaine and it was simply packaged in the pipe . . . the same as if it

were in a baggie or a cigarette.” Appellant’s Br. p. 8; see also id. (“If the cocaine

was contained in a small piece of paper that the officer received, and the officer

then unwrapped and snorted off the paper, would that interaction constitute

dealing in paraphernalia? Certainly not . . . .”). Dillard’s argument, however,

ignores the evidence in the record. That is, although Officer Meier initially

sought to buy heroin or marijuana from Dillard, that plan changed when

Dillard told him that he did not have either one. As Officer Meier was getting

ready to let Dillard out of his car, Dillard offered to sell Officer Meier $5 worth

of crack cocaine and his crack pipe for $20. Contrary to Dillard’s argument on

appeal, the sale of the crack pipe was not “incidental” to their transaction. Id.

We therefore affirm Dillard’s conviction for Class A misdemeanor dealing in

paraphernalia.

Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1189 | November 14, 2017 Page 4 of 5 [7] Affirmed.

Mathias, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1189 | November 14, 2017 Page 5 of 5