Ivan Gonzalez v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 8, 2013
• Docket: 43A03-1207-CR-334
• Status: Unpublished

Opinion

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 Mar 08 2013, 8:28 am establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

J. BRAD VOELZ GREGORY F. ZOELLER Warsaw, Indiana Attorney General of Indiana

RICHARD D. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

IVAN GONZALEZ, ) ) Appellant-Defendant, ) ) vs. ) No. 43A03-1207-CR-334 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE KOSCIUSKO CIRCUIT COURT The Honorable Rex L. Reed, Judge Cause No. 43C01-1202-FA-114

March 8, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge Ivan Gonzalez appeals his convictions for two counts of intimidation as class D

felonies and visiting a common nuisance as a class B misdemeanor. Gonzalez raises

three issues which we consolidate and restate as whether the evidence is sufficient to

sustain his convictions. We affirm.

The facts most favorable to Gonzalez’s convictions follow. At around 2:00 or

2:30 a.m. on February 26, 2012, Debbie Servan was at her home near Warsaw, Indiana,

when she heard “a sharp rapping” at her door, and when she went to answer her door she

“heard somebody on the other side saying, help me, help me” and that “he’s shooting at

me.” Transcript at 133-134. Servan called 911.

Deputy Donald McCune with the Kosciusko County Sheriff’s Department

responded to the 911 call and arrived at Servan’s residence. Deputy McCune spoke with

the man who knocked at Servan’s residence, whom he identified as Fernando Cruz, and

Cruz stated that he had left a residence “to the west” where men named Baldemar Robles,

or “Baldo,” and his brother-in-law Gonzalez lived, because people were shooting at him.

Id. at 145. Deputy McCune was familiar with Robles and Gonzalez and wanted Cruz to

confirm that he came from the residence the Kosciusko County Drug Task Force had

been surveilling for approximately six months. Deputy McCune contacted Detective

Paul Heaton, who also was familiar with Robles and Gonzalez, and the three men met at

a church down the road. Cruz stated to Detective Heaton that he had been invited to a

party by Robles and, while at the party, people started accusing him of being a police

informant, the situation became physical, and they threatened to tie him up and “make a

piñata out of him” but he was able to flee. Id. at 178. Cruz then directed Detective

2 Heaton to the residence, and when they returned and confirmed for Deputy McCune that

Cruz had in fact been at the correct residence, Deputy McCune decided to call more

officers to the scene and proceed to the home.

Upon arriving and pulling into the driveway, Deputy McCune observed Robles

urinating, and Robles turned, headed for the garage, opened it, said something in Spanish,

and stood in the doorway. Deputy McCune then asked Robles to step inside the garage

so that they could talk about what happened with Cruz. Upon entering, Deputy McCune

observed a number of people inside and a plastic CD case with a white crystal-like

substance on it which field-tested positive for cocaine, and a razor blade which is used for

breaking the substance down into a powder. Robles told Deputy McCune that they were

simply having a party and that he did not know anything about what Cruz had told

Deputy McCune.

Deputy McCune observed Gonzalez sitting in an upright position with his hood

pulled up and his hands folded, and when Deputy McCune stated that he intended to

obtain a search warrant for the premises, Gonzalez rose to his feet and said that his ID

was in the house and that he would go inside to retrieve it. Deputy McCune told

Gonzalez that he was not allowed to leave the garage which upset Gonzalez, Deputy

McCune “put [his] hand out to stop him,” and they “had a little moment where [they]

squared off with one another.” Id. at 149-150. Gonzalez then told Deputy McCune that

he knew where he lived, which Deputy McCune perceived as a threat and placed him in

fear because he has a wife and child who live with him. Deputy McCune obtained a

search warrant and began arresting people including Gonzalez, and when Gonzalez was

3 in handcuffs with Detective Heaton he stated to Deputy McCune in an aggressive fashion

that “you’ve f’d with the wrong people and you’re on the list, stuff of that nature” which

also placed Deputy McCune in fear of physical harm to himself or his family due to the

fact that “[t]he drug world is violent by nature.” Id. at 152.

Gonzalez also told Detective Heaton when he was transporting Gonzalez to the

responding units that “you f---ed with the wrong person” and that “I’ll see you around.

You’re on the list. You know, I’ll be out soon.” Id. at 184-185. Detective Heaton

believed the statement to be a threat which was credible due to his familiarity with

Gonzalez, and he was fearful for his children and wife that Gonzalez might retaliate in

some fashion.

In the garage, Sergeant Mike Mulligan located ten to twelve pounds of marijuana

contained in “numerous” bags in the back of a white car which was parked in the garage

and was not in working condition. Id. at 157. Deputy McCune also observed a

“marijuana smoking pipe,” a “jeweler’s bag” containing a white crystal-like substance

which he believed to be cocaine, and a set of small digital scales containing white residue

which are commonly used in the drug trade, in the garage, along with bottles of hard

liquor and beer. Id. at 156. Detective Heaton observed a pill grinder containing

marijuana, a plastic bag containing a white powder substance, and large digital scales

which are used for weighing heavier quantities of marijuana, as well as a statue and a

candle depicting “La Santa Muerte,” which is “[t]he drug traffickers’ god” along with

“pictures of Ivan Gonzalaz [sic] and Baldemar Robles to the left of that as well as a

money tree” which, Detective Heaton knew based upon his training and experience was

4 significant because it was used as a “protector of drug traffickers and, you know, take

care of their family.” Id. at 201.

Detective Heaton recovered from the kitchen a “corner baggie that was pulled off”

and was next to a “white bottle” which he recognized as a way drug traffickers package

drugs. Id. at 202. In the bedroom, Detective Heaton recovered two knives with white

powder on them and more digital scales, as well as white powder on a table which he

believed to be cocaine. Underneath the bed, Detective Heaton recovered a bag

containing cocaine and a little over half a pound of marijuana. He recovered cocaine

from a bag in the heel of a shoe, as well as several documents containing Gonzalez’s

name from a dresser drawer. Also, taped to the back of the bedroom closet door was a

“drug ledger.” Id. at 206. Inside the closet was a purse containing $4,667.00. Detective

Heaton searched a Lincoln Navigator which he had previously witnessed Gonzalez

driving on several occasions and recovered a large amount of currency from the center

console. Also, currency and a “Tupperware” container with a large amount of rice and

three bags of a white substance which Officer Brad Kellar believed were one ounce

increments of cocaine, were recovered from another vehicle, a Saturn Vue, parked at the

residence. Id. at 267. Currency was recovered from other places in the residence as well,

and all totaled, around $26,000.00 was recovered from the search of the property.

On February 28, 2012, the State filed information charging Gonzalez with crimes

including dealing in cocaine more than three grams as a class A felony, possession of

cocaine in excess of three grams as a class C felony, dealing in marijuana in an amount in

excess of thirty grams as a class C felony, and three counts of intimidation as class D

5 felonies. On March 13, 2012, the State filed a motion to consolidate its cases against

Gonzalez, Louis Juarez, Ruby Gonzalez, Aaron Drumm, and Robles, Gonzalez filed a

motion objecting to the State’s motion for consolidation on March 16, 2012, and on April

3, 2012, the court denied the State’s motion. On May 3, 2012, the State filed an amended

information charging Gonzalez with Count I, possession of cocaine as a class D felony;

Count II, intimidation against Cruz as a class D felony; Count III, intimidation against

Detective Heaton as a class D felony; Count IV, intimidation against Deputy McCune as

a class D felony; Count V, visiting a common nuisance as a class B misdemeanor; and

Count VI, neglect of a dependent as a class C felony.

On May 9, 2012, the court commenced a jury trial at which evidence consistent

with the foregoing was presented. On May 11, 2012, the third day of trial, the jury found

Gonzalez guilty of Counts III, IV, and V and not guilty of Counts I, II, and VI. On June

7, 2012, the court held a sentencing hearing and sentenced Gonzalez to two and one-half

years on each of Counts III and IV and 180 days on Count V, all to be served

concurrently. Thus, Gonzalez was sentenced to an aggregate term of two and one-half

years in the Department of Correction.

The issue is whether the evidence is sufficient to sustain Gonzalez’s convictions

for intimidation and visiting a common nuisance. When reviewing the sufficiency of the

evidence needed to support a criminal conviction, we neither reweigh evidence nor judge

witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider

only the evidence supporting the judgment and any reasonable inferences that can be

drawn from such evidence.” Id. We will affirm if there is substantial evidence of

6 probative value such that a reasonable trier of fact could have concluded the defendant

was guilty beyond a reasonable doubt. Id. It is well established that “circumstantial

evidence will be deemed sufficient if inferences may reasonably be drawn that enable the

trier of fact to find the defendant guilty beyond a reasonable doubt.” Pratt v. State, 744

N.E.2d 434, 437 (Ind. 2001). We address Gonzalez’s convictions for (A) intimidation;

and (B) visiting a common nuisance, separately.

A. Intimidation

The offense of intimidation is governed by Ind. Code § 35-45-2-1, which provides

in part that “[a] person who communicates a threat to another person, with the intent . . .

that the other person be placed in fear of retaliation for a prior lawful act . . . commits

intimidation, a Class A misdemeanor,” and “the offense is a . . . Class D felony if . . . (B)

the person to whom the threat is communicated . . . is a law enforcement officer . . . .” A

“threat” is “an expression, by words or action, of an intention to . . . unlawfully injure the

person threatened or another person, or damage property; [or] commit a crime . . . .” Ind.

Code § 35-45-2-1(c). “Whether a communication is a threat is an objective question for

the trier of fact.” Ajabu v. State, 677 N.E.2d 1035, 1041 (Ind. Ct. App. 1997), trans.

denied. Intent is generally determined from a consideration of the defendant’s conduct

and the natural and usual consequences of such conduct, and the trier of fact must usually

resort to reasonable inferences based upon an examination of the surrounding

circumstances. Hendrix v. State, 615 N.E.2d 483, 484-485 (Ind. Ct. App. 1993) (citing

Metzler v. State, 540 N.E.2d 606, 609 (Ind. 1989)).

7 Gonzalez argues that the State failed to prove the elements of either of his

intimidation convictions. He asserts that his “actions did not constitute a threat” because

they do not fit within the definition of threat in Ind. Code § 35-45-2-1(c) and they “were

never connected at trial with an intent to place the officers in fear, nor did the State argue

that to the jury.” Appellant’s Brief at 8. Gonzalez argues that the statements at issue

were not specified in the charging information, and accordingly “one may only

speculate” which statements “were the threats relied upon by the jury to convict

Gonzalez.” Id. at 9. He also argues that the jury was again asked to speculate regarding

the “prior lawful act” by the officers relating to Gonzalez’s statements. Id. at 10.

The State argues that it introduced evidence demonstrating that Gonzalez made

threatening statements to Deputy McCune in response to the officer detaining him, and

again after Gonzalez had been handcuffed, and he threatened Detective Heaton in

response to being handcuffed and escorted to a squad car. The State argues that both

officers indicated in their testimony that they “were familiar with [Gonzalez] and took his

threats as serious threats toward themselves and their respective families.” Appellee’s

Brief at 12.

To the extent that Gonzalez argues that he did not threaten either officer or intend

to place the officers in fear, our review of the record reveals that Gonzalez told Deputy

McCune that he knew where he lived and soon after stated in an aggressive fashion that

“you’ve f’d with the wrong people and you’re on the list, stuff of that nature.” Transcript

at 152. Deputy McCune testified at trial that these statements placed him in fear of

physical harm to himself and his family due to the fact that “[t]he drug world is violent

8 by nature.” Id. Gonzalez also told Detective Heaton that “you f---ed with the wrong

person” and that “I’ll see you around. You’re on the list. You know, I’ll be out soon.”

Id. at 184-185. Detective Heaton testified that, based upon his familiarity with Gonzalez,

he believed the statement to be a credible threat to the safety of his children and his wife

and was made fearful for their safety. Thus, these statements could be interpreted, and

indeed were interpreted by the officers, as indications that Gonzalez intended to visit the

officers’ homes and harm the officers or their families, and accordingly they were

sufficient to prove that Gonzalez’s words were a “threat.” Gonzalez’s arguments on

appeal are an invitation to reweigh the evidence, which we will not do. Jordan v. State,

656 N.E.2d 816, 817 (Ind. 1995), reh’g denied.

As noted by Gonzalez, “the State must establish that the legal act occurred prior to

the threat and that the defendant intended to place the victim in fear of retaliation for that

act.” Casey v. State, 676 N.E.2d 1069, 1072 (Ind. Ct. App. 1997). Here, the evidence

most favorable to the verdicts reveals that Deputy McCune prevented Gonzalez from

leaving the garage which upset Gonzalez, and the two men “had a little moment where

[they] squared off with one another.” Transcript at 149-150. Gonzalez was subsequently

placed in handcuffs and, in retaliation for being placed in handcuffs and being led to a

vehicle for transport, made the statements to both officers about being on “the list” and

that they were becoming involved with the wrong person or people. This evidence is

sufficient to support the jury’s conclusion that Gonzalez’s threats were intended to place

the officers in fear of retaliation for a prior lawful act.

9 We therefore conclude that evidence of probative value exists from which the jury

could have found Gonzalez guilty beyond a reasonable doubt of intimidation as class D

felonies against Deputy McCune and Detective Heaton. See Slayton v. State, 755 N.E.2d

232, 237 (Ind. Ct. App. 2001) (holding that the evidence was sufficient to sustain the

defendant’s conviction for intimidation as a class D felony where the defendant

repeatedly told the officer that “he ‘was going to get’ him and that he had ‘better watch

[his] back’”).

B. Visiting a Common Nuisance

The offense of visiting a common nuisance is governed by Ind. Code § 35-48-4-

13(a), which provides that a “person who knowingly or intentionally visits a building,

structure, vehicle, or other place that is used by any person to unlawfully use a controlled

substance commits visiting a common nuisance[.]” “To convict a defendant of visiting a

common nuisance, the State must prove that the defendant knew the building, structure,

vehicle, or other place that he visited was used for the unlawful use of a controlled

substance.” Traylor v. State, 817 N.E.2d 611, 620 (Ind. Ct. App. 2004) (citing Hale v.

State, 785 N.E.2d 641, 643 (Ind. Ct. App. 2003)), reh’g denied, trans. denied. “[T]he

term ‘common nuisance’ as used in the statute requires proof of a continuous or recurrent

violation.” Zuniga v. State, 815 N.E.2d 197, 200 (Ind. Ct. App. 2004). Thus, the State

must show that the place visited by the defendant was used on more than one occasion for

the unlawful use of a controlled substance. Id. (citing Hale, 785 N.E.2d at 643).

Gonzalez argues that although the State “presented evidence of relatively large

amounts of drugs, including cocaine and marijuana, in the house, the garage, and

10 concealed in a car,” as well as drug paraphernalia, a ledger alleged to be consistent with a

drug dealing operation, and a large amount of cash, it “failed to present evidence that any

of these items had been used or even present on any occasion prior to February 26, 2012,

or to present any evidence that the property had been used for illegal use of controlled

substances prior to that date.” Appellant’s Brief at 12-13. The State argues that it

presented evidence of a probative value to demonstrate Gonzalez knew that the residence,

and the garage in particular, was being used for the unlawful use of a controlled

substance, including CD cases with cut marks and razor blades used to cut cocaine and

containing cocaine, zip-lock baggies containing a white powdery substance, a pill grinder

with marijuana residue, and a digital scale. The State argues that the evidence including

approximately 100 grams of cocaine, ten and one-half pounds of marijuana, pipes for

smoking marijuana, multiple digital scales, and currency totaling approximately

$26,000.00, all of which were recovered from the residence, established that it had been

used on more than one occasion for the unlawful use of illegal narcotics.

The evidence most favorable to Gonzalez’s conviction reveals that the State

established that the residence had been used more than once for unlawfully using

narcotics. As a result of the search of the property, the police recovered at least ten

pounds of marijuana, contained in numerous bags, hidden in a non-working vehicle in the

garage. A large amount of cocaine was also recovered. There were numerous digital

scales of varying sizes and containing white powder present in the garage and the

residence which the officers testified were indicative of a drug dealing operation.

Further, the officers recovered a pill grinder with marijuana residue, a marijuana smoking

11 pipe, baggies in which a corner had been removed, knives with white powder on them,

and a “drug ledger” taped to the bedroom closet door, as well as around $26,000 in cash.

Transcript at 206. Also, Detective Heaton testified that he observed a statue and a candle

depicting “La Santa Muerte,” which is “[t]he drug traffickers’ god” along with “a money

tree” which Detective Heaton knew based upon his training and experience was

significant because it was used as a “protector of drug traffickers and, you know, take

Based upon our review of the record, we conclude that evidence of probative value

exists from which the jury could have found Gonzalez guilty beyond a reasonable doubt

of visiting a common nuisance as a class B misdemeanor. See Traylor, 817 N.E.2d at

620 (holding that it was reasonable for the jury to infer from the evidence presented,

including a briefcase recovered from the garage containing a baggie of methamphetamine

and a glass pipe used for the consumption of methamphetamine, as well as “glass pipes,

some with burnt residue, in other parts of the residence,” that the “residence was used

more than once for the consumption of methamphetamine” and was therefore a common

nuisance).

For the foregoing reasons, we affirm Gonzalez’s convictions for intimidation as

class D felonies and visiting a common nuisance as a class B misdemeanor.

Affirmed.

BAILEY, J., and VAIDIK, J., concur.