Jonas Jackson v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 22 2016, 8:49 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Brooklyn, Indiana Attorney General of Indiana

Matthew Elliot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jonas Jackson, December 22, 2016 Appellant-Defendant, Court of Appeals Case No. 33A05-1606-CR-1501 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Mary G. Willis, Appellee-Plaintiff. Judge Trial Court Cause No. 33C01-1506-F4-6

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 33A05-1606-CR-1501 | December 22, 2016 Page 1 of 9 [1] Jonas Jackson appeals his conviction for dealing in a narcotic drug as a level 5

felony. Jackson raises one issue which we revise and restate as whether the

evidence is sufficient to sustain his conviction for dealing in a narcotic drug as a

level 5 felony. We affirm.

Facts and Procedural History

[2] On June 3, 2015, the Henry County Drug Task Force and New Castle Police

executed a search warrant at a house in New Castle, Indiana, where alleged

methamphetamine sales were taking place. Police detained two people in the

downstairs bathroom and two people, including Jackson, in the upstairs attic

which had been turned into a bedroom. Jackson had been staying in the

upstairs bedroom for a couple of days at the time of the search.

[3] On the floor underneath or directly next to Jackson, police discovered several

small baggies, one of which contained 2.78 grams of heroin, another of which

contained 0.23 grams of methamphetamine, and another which contained six

tablets: one white tablet containing clonazepam, four blue tablets containing

Xanax, and one green tablet containing oxycodone. Police discovered a cell

phone belonging to Jackson on the bed, and a plastic bag containing empty

small plastic baggies, a backpack containing several boxes of syringes and

additional empty baggies, and two digital scales near the bed. Police also found

cash totaling $1,196 in Jackson’s pocket. The cash was in a wad in his pocket

and consisted of bills in small denominations.

Court of Appeals of Indiana | Memorandum Decision 33A05-1606-CR-1501 | December 22, 2016 Page 2 of 9 [4] On June 4, 2015, the State charged Jackson with: Count I, dealing in the

controlled substance heroin as a level 4 felony; Count II, dealing in

methamphetamine as a level 5 felony; Count III, dealing in the narcotic drug

oxycodone as a level 5 felony; Count IV, possession of the controlled substance

clonazepam as a class A misdemeanor; and Count 5, possession of

paraphernalia as a class A misdemeanor. The State later dismissed the charge

of possession of paraphernalia. At Jackson’s jury trial, the trial court admitted

a number of messages which were recovered from his cell phone. State’s

Exhibit 10 contains the following messages between Jackson and a person

named Charlee Mariah:

[Charlee Mariah:] i understand i heard you picked up again. im sorry jonas. now im worried. i just want you to do good.

[Jackson:] I didn’t pick up like that I started sailing again cause I have been broke

[Charlee Mariah:] oh i thought you were doin the slow[1] again

[Jackson:] He’ll no I was dealing speed to make money

[Charlee Mariah:] I see, well that’s not good either. . . .

State’s Exhibit 10.

1 The investigator testified that the term “slow” means “a pain pill or heroin or something that’s going to slow, slow you down rather than speed you up like a stimulant.” Transcript at 80.

Court of Appeals of Indiana | Memorandum Decision 33A05-1606-CR-1501 | December 22, 2016 Page 3 of 9 [5] State’s Exhibit 11 contains the following text messages between Jackson and his

girlfriend:

[Jackson’s Girlfriend:] Hey baby how much 4 the subs the chic i work w is dying n wants sum.

[Jackson:] Honey u Should probably Now how much i love u and how u make me feel like little kid when. Im around, u. You have to know how much u make Me want to b a better man have a good day at work and tell her 25. I usually charge 30 love u tell her I have boi to 20.[2] A ticket

[Jackson’s Girlfriend:] 20 a bag?

[Jackson:] yeah

[Jackson’s Girlfriend:] I love u sleepy head.

State’s Exhibit 11.

[6] State’s Exhibit 12 contains the following messages between Jackson and a

person named Jeremiah:

[Jeremiah:] Cant dont have a phone

[Jackson:] Can um move sum n for me[3]

[Jeremiah:] Yes inow some people

[Jeremiah:] where u at

2 The investigator testified that the term “boi” is “a street level name for heroin.” Transcript at 84. 3 When asked about this language, the investigator testified that “[h]e’s wanting to know if he can move some drugs for him.” Transcript at 86.

Court of Appeals of Indiana | Memorandum Decision 33A05-1606-CR-1501 | December 22, 2016 Page 4 of 9 [Jackson:] K town

State’s Exhibit 12.

[7] State’s Exhibit 13 contains the following messages between Jackson and a

person named Josh:

[Josh:] I was wondering if your n Fort Wayne or if we could hook up today.

[Jackson:] I’m in fort Wayne but for what I might drive if it’s worth it

[Josh:] Whole...[4]

[Jackson:] I only have a half of the pink[5] and its cost more but way better and that’s hard to do

[Josh:] Damage?

[Josh:] Lol

[Jackson:] It’s 8[6] bro sorry I paid so much for this but u will see the difference but if u need me to spot u some of the cash I can but I will need it tomm or Sun sorry

[Josh:] Done

[Jackson:] When do u want it can I wait till day light or do u want it tonight

4 The investigator testified that, “[d]uring a trade, a whole means one gram.” Transcript at 91. 5 The investigator testified that “when he says pink, it’s pink methamphetamine, sometimes stronger than ice, the normal ice we see.” Transcript at 91. 6 The investigator testified that “the 8 is Eighty Dollars ($80).” Transcript at 91.

Court of Appeals of Indiana | Memorandum Decision 33A05-1606-CR-1501 | December 22, 2016 Page 5 of 9 [Josh:] I’m out but I don’t care. Daylights good . . . .

State’s Exhibit 13.

[8] Ryan Black, another occupant of the house, testified that he told police that he

had seen all the cash and knew Jackson was dealing, and that the upstairs

bedroom was a place where people would use controlled substances and drugs

on a regular basis. The jury found Jackson guilty on all counts as charged. The

court sentenced him to ten years on Count I, five years each on Counts II and

III, and one year on Count IV, all to be served concurrently for an aggregate

term of ten years.

Discussion

[9] The issue is whether the evidence is sufficient to sustain Jackson’s conviction

for dealing in a narcotic drug as a level 5 felony under Count III. 7 When

reviewing claims of insufficiency of the evidence, we do not reweigh the

evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the

reasonable inferences therefrom that support the verdict. Id. We will affirm the

conviction if there exists evidence of probative value from which a reasonable

trier of fact could find the defendant guilty beyond a reasonable doubt. Id.

7 Jackson does not challenge his convictions for dealing in heroin as a level 4 felony, dealing in methamphetamine as a level 5 felony, or possession of schedule IV controlled substance clonazepam as a class A misdemeanor.

Court of Appeals of Indiana | Memorandum Decision 33A05-1606-CR-1501 | December 22, 2016 Page 6 of 9 [10] Jackson asserts that the State failed to prove beyond a reasonable doubt that he

intended to deal when he was found in possession of a single pill of oxycodone.

He argues that the State “failed to present any testimony that ‘subs’ referred to

oxycodone” and that “it is reasonable to infer, given the conversation, that

Jackson’s girlfriend was referring to suboxone, and not oxycodone.”

Appellant’s Brief at 9. He argues he was not found in possession of suboxone at

the time of his arrest.

[11] The State points out that Jackson does not dispute that the State demonstrated

that he possessed oxycodone and that the cell phone conversations presented by

the State were circumstantial evidence indicating Jackson intended to deal

oxycodone. It argues that “it is reasonable to infer ‘subs’ referred to a substitute

for heroin,” that “oxycodone could easily be considered a ‘substitute’ drug for

heroin,” and that, “[g]iven that [Jackson] possessed oxycodone, but not

suboxone, this would be the more reasonable inference.” Appellee’s Brief at 11-

12. The State also argues that it is not necessary for the State to prove exactly

what Jackson meant in his text message to establish his intent, the jury was

permitted to examine the surrounding circumstances and reasonable inferences

to determine intent, police found $1,196 in small bills and multiple unused

small zip-lock baggies, and that Black told police he knew Jackson was dealing.

[12] At the time of the offense, Ind. Code § 35-48-4-1 provided in part that “[a]

person who . . . possesses, with intent to . . . deliver . . . a narcotic drug, pure or

adulterated, classified in schedule I or II . . . commits dealing in . . . a narcotic

drug, a Level 5 felony . . . .” (Subsequently amended by Pub. L. No. 44-2016, §

Court of Appeals of Indiana | Memorandum Decision 33A05-1606-CR-1501 | December 22, 2016 Page 7 of 9 2 (eff. July 1, 2016)). Ind. Code § 35-48-2-6 provides that oxycodone is

classified in schedule II. See Ind. Code § 35-48-2-6(a), (b)(1)(O). “A person

engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his

conscious objective to do so.” Ind. Code § 35-41-2-2. The element of intent

can be inferred from examining the surrounding circumstances and the

reasonable inferences to be drawn therefrom. Turner v. State, 878 N.E.2d 286,

295 (Ind. Ct. App. 2007), trans. denied. In Count III, the State alleged that, on

or about June 3, 2015, Jackson “did possess, with intent to deliver, oxycodone,

pure or adulterated, a Narcotic Drug listed in Schedule II Ind. Code § 35-48-2-

6(a)(b)(1)(O).” Appellant’s Appendix at 18.

[13] The evidence establishes that Jackson was in possession of a small zip-lock bag

which contained six tablets including a tablet having the active ingredient of

oxycodone. Jackson does not dispute that he was in possession of the

oxycodone. The jury, in determining whether Jackson possessed the

oxycodone with intent to deliver, was able to consider the surrounding

circumstances and reasonable inferences drawn from the surrounding

circumstances. See Turner, 878 N.E.2d at 295. The jury was able to consider

the text messages between Jackson and his girlfriend as well as the other

messages recovered from Jackson’s phone. The record further reveals that

Black indicated that he had told police that he had seen all the cash and knew

Jackson was dealing and that the upstairs bedroom was a place where people

would use controlled substances and drugs on a regular basis. In addition, the

State presented testimony that police found $1,196 in small denominations in a

Court of Appeals of Indiana | Memorandum Decision 33A05-1606-CR-1501 | December 22, 2016 Page 8 of 9 wad in Jackson’s pocket. An officer testified that, “in narcotics purchases . . . ,

someone’s using or selling, they’re going to have short denominations of cash

or currency.” Transcript at 127. He explained that short denominations meant

“[t]ens, twenties, fives, ones, dollar bills.” Id. at 128. Further, the State

presented evidence that Jackson was found to be in possession of numerous

unused small zip-lock baggies. A police investigator testified that, in his

training and experience, “subjects use these to put narcotics in and they use –

they’ll often have these to repackage the narcotics as they’re breaking them

down into smaller amounts for resale.” Transcript at 60. Jackson was also

discovered in possession of numerous syringes, and the investigator testified

that it is extremely common for drug dealers to have buyers first use the product

before they leave. Police also discovered two digital scales near the other items.

[14] While the jury could have made different inferences from the evidence, we

cannot say that the inference made by the jury was unreasonable. We conclude

that the State presented evidence of a probative nature from which a jury could

find beyond a reasonable doubt that Jackson committed the crime of dealing in

the narcotic drug oxycodone as a level 5 felony under Count III.

Conclusion

[15] For the foregoing reasons, we affirm Jackson’s conviction for dealing in the

narcotic drug oxycodone as a level 5 felony.

[16] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 33A05-1606-CR-1501 | December 22, 2016 Page 9 of 9