Ricardo Ortiz v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 29, 2017
• Docket: 20A03-1606-CR-1458
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 29 2017, 8:52 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ricardo Ortiz, March 29, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1606-CR-1458 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry C. Appellee-Plaintiff Shewmaker, Judge Trial Court Cause No. 20C01-0712-FA-69

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 1 of 11 Case Summary [1] Ricardo Ortiz appeals his convictions for possession of cocaine and marijuana.

He challenges the validity of the search warrant that led to the discovery of the

drugs and, in the alternative, the sufficiency of the evidence that he was in

possession of the drugs. We affirm.

Facts and Procedural History [2] On December 5, 2007, a “cooperating source” (CS) told an undercover officer

with the Elkhart County Interdiction and Covert Enforcement (ICE) Unit that

they could buy cocaine from Rafael Dejesus (who was known to the CS as “Pa

Ping”). The undercover officer and the CS went to Dejesus’ house in Goshen

and conducted a controlled buy of 4.4 grams of cocaine.

[3] Five days later, on December 10, 2007, the undercover officer had the CS call

Dejesus and say that the undercover officer wanted to buy cocaine. Dejesus

told them to come back to his house, where he explained to the CS that he did

not have any cocaine but that they could “follow him to his guy’s house where

he can pick up the quarter ounce.” Appellant’s App. Vol. II p. 140. The

undercover officer and the CS followed Dejesus to a neighborhood in Elkhart

and parked behind him. Dejesus pointed to the house he was going to, and the

CS gave him cash for the buy. The undercover officer then watched as Dejesus

walked toward the house he had pointed to. A few minutes later, the

undercover officer saw Dejesus returning from the area of the house. The

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 2 of 11 undercover officer watched as Dejesus handed a bag of cocaine to the CS, who

then handed it to the undercover officer.

[4] On December 13, 2007, the undercover officer had the CS call Dejesus again

and tell him that they wanted to buy more cocaine. Dejesus “advised that he

did not have any cocaine but was going to the same house as last time to pick

up.” Id. The undercover officer and the CS met Dejesus at the same location

and gave him $260 in previously photocopied ICE Unit cash. The undercover

officer watched as Dejesus, who was wearing a red jacket and blue jeans,

walked toward the same house and approached a sliding glass door. Another

officer was nearby conducting surveillance and saw a man wearing a red jacket

and blue jeans walk to the sliding door and knock, a person inside the house

look through the blinds, the man enter the garage of the house through a side

access door, and the same man exit the same door a few minutes later and

begin walking back to where the undercover officer was parked. Id. at 141.

The undercover officer also saw Dejesus walking back from the area of the

house. Dejesus handed a bag of cocaine to the CS, who immediately handed it

to the undercover officer.

[5] Later that same night, the undercover officer filed an Affidavit for Search

Warrant seeking authorization to search the house Dejesus went to during the

second and third meetings. The affidavit recounted all of the events described

above and stated the undercover officer’s belief that Dejesus “obtains powder

cocaine” from the house. Id. at 139-41. Still the same night, a magistrate

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 3 of 11 issued the warrant, and the undercover officer and others went to the house to

conduct a search at approximately 10:25 p.m.

[6] At the house, officers knocked on the door but received no response. They then

forced their way in and found Ortiz and a woman in the master bedroom. In

the top drawer of a dresser in the master bedroom, officers found a set of digital

scales inside a CD case, two small plastic baggies, and five documents bearing

the name “Ricardo Ortiz,” “Ricardo Ortiz Cotto,” or “Ricardo O Cotto,” all

but one of which included the address of the house. In the bottom drawer,

officers found a plastic bag containing approximately fourteen grams of

cocaine. The officers also found a pair of men’s pants on the floor, another pair

hanging in the master bedroom closet, and $735 in a box in the same closet.

$100 of the $735 was buy money the undercover officer had given Dejesus

earlier that day. In the master bathroom, accessible only through the master

bedroom, officers found two plastic bags containing a total of approximately

forty-two grams of marijuana in the pocket of a robe, as well as an open box of

plastic sandwich bags. Another box of sandwich bags was found in a gap at the

top of the stairs leading to the basement.

[7] The week after the search, the State charged Ortiz with possession of three

grams or more of cocaine with intent to deliver, a Class A felony, and

possession of more than thirty grams of marijuana, a Class D felony. In

October 2008, Ortiz moved to suppress all evidence obtained as a result of the

search, challenging the magistrate’s decision to issue the warrant. After a short

hearing and written briefing by the parties, the trial court denied Ortiz’s motion,

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 4 of 11 finding that the undercover officer’s affidavit provided a “substantial basis” for

issuing the warrant. Id. at 110.

[8] The following day, the court held a status conference and set a trial date of

August 3, 2009. Ortiz was present and acknowledged that date, but he did not

appear for trial, and he was tried in absentia. Over the renewed objection of

Ortiz’s attorney, the State was allowed to present the drugs and other evidence

found during the search. The jury found Ortiz guilty as charged, and the court

issued a warrant for his arrest. Ortiz was finally arrested in early 2016, and the

court sentenced him to serve twenty-eight years in prison.

[9] Ortiz now appeals.

Discussion and Decision [10] Ortiz raises two issues on appeal. First, he argues that the undercover officer’s

affidavit was insufficient to support the issuance of a search warrant, that the

magistrate therefore erred by issuing the warrant, and that the trial court

therefore should not have allowed the State to rely on the evidence found

during the search. In the alternative, he contends that the State’s evidence is

insufficient to prove that he possessed the drugs.

I. Search Warrant [11] Pursuant to the United States Constitution, the Indiana Constitution, and

Indiana Code section 35-33-5-1, a court can issue a warrant only “upon

probable cause.” In the search-warrant context, this requires the judge or

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 5 of 11 magistrate “to make a practical, commonsense decision whether, given all the

circumstances set forth in the affidavit there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” Jaggers v. State, 687

N.E.2d 180, 181 (Ind. 1997) (formatting altered). When a defendant later

challenges the issuance of a search warrant, the reviewing court (first the trial

court, then the appellate court if there is an appeal) must give significant

deference to the judge’s or magistrate’s determination and decide only whether

there was a “substantial basis” for concluding that probable cause existed, that

is, whether reasonable inferences drawn from the totality of the evidence

support that conclusion. Id. at 181-82.

[12] Ortiz’s argument is that (1) the undercover officer’s belief (and the magistrate’s

conclusion) that there was probably cocaine in the house was based on Dejesus’

representations that he was obtaining cocaine from the house and (2) the

affidavit did not establish Dejesus’ reliability. Ortiz maintains that it is

“reasonable to think that [Dejesus] had drugs on his person the entire time.”

Appellant’s Br. p. 15. The implication, of course, is that Dejesus was simply

trying to mislead the undercover officer and the CS and/or frame the occupants

of the house. There are several flaws in Ortiz’s theory.

[13] First, the undercover officer’s belief that there was cocaine in the house was not

based solely on Dejesus’ representations. On December 10, the undercover

officer personally observed Dejesus point to the house, walk toward the house,

and return with a bag of cocaine. On December 13, the undercover officer

again personally observed Dejesus approach the house and return with a bag of

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 6 of 11 cocaine. On the latter occasion, another officer conducting surveillance

personally observed a man matching Dejesus’ description knock on the door of

the house, enter the garage, emerge from the garage a few minutes later, and

walk back toward the undercover officer (Ortiz does not challenge the other

officer’s reliability). These facts strongly corroborate Dejesus’ representations

regarding the origin of the cocaine.

[14] Second, the controlled buy at Dejesus’ house on December 5 demonstrates that

Dejesus would provide cocaine directly when he had it. In other words, as the

State puts it, Dejesus “had no reason to drive to another city on two occasions

to purportedly obtain cocaine if he actually had cocaine to sell to [the

undercover officer].” Appellee’s Br. p. 22.

[15] Third, we see no reason why Dejesus would lie about having to obtain cocaine

from the house. It is not as if Dejesus was insulating himself from criminal

liability by going through a third party; he was still the ultimate deliveryman.

Ortiz fails entirely to articulate a reason why Dejesus would want to mislead

the undercover officer and the CS or to falsely incriminate the occupants of the

house.

[16] In addition to attacking Dejesus’ reliability, Ortiz emphasizes the fact that the

second and third buys were not “controlled” in the traditional sense, that is,

Dejesus was not cooperating with law enforcement and was not searched or

interviewed before or after the buys. He cites our decision in Mills v. State,

where we held that “where the controls are adequate, the affiant’s personal

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 7 of 11 observation of a ‘controlled buy’ may suffice as grounds for a finding of

probable cause.” 379 N.E.2d 1023, 1026, 177 Ind. App. 432, 435 (1978). But

that merely means that observation of a controlled buy is one way of

establishing probable cause in drug-dealing cases; we certainly did not hold that

it is the only way.

[17] In light of the detailed facts stated in the undercover officer’s affidavit and the

reasonable inferences therefrom, the magistrate was fully justified in concluding

that there was a fair probability that contraband or evidence of a crime would

be found in the house. See Jaggers, 687 N.E.2d at 181. We therefore affirm the

trial court’s decision to allow the fruits of the search into evidence.1

II. Sufficiency of the Evidence [18] Ortiz also argues that even if the search was proper, the State failed to prove

that he was in possession of the drugs that were found. In reviewing the

sufficiency of the evidence supporting a conviction, we consider only the

probative evidence and reasonable inferences supporting the verdict. Wilson v.

State, 39 N.E.3d 705, 716 (Ind. Ct. App. 2015), trans. denied. We do not

reweigh the evidence or assess witness credibility. Id. We consider conflicting

1 The State also asserts that even if the search warrant had been defective, the trial court’s admission of the evidence would have been proper under the good-faith exception to the exclusionary rule. See Jaggers, 687 N.E.2d at 184 (“[T]he exclusionary rule does not require the suppression of evidence obtained in reliance on a defective search warrant if the police relied on the warrant in objective good faith.”). We are inclined to agree with the State (particularly in light of Ortiz’s decision not to file a reply brief), but because we conclude that the search warrant was not defective, we need not address this alternative ground.

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 8 of 11 evidence most favorably to the verdict. Id. We will affirm the conviction unless

no reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt. Id. It is not necessary that the evidence overcome every

reasonable hypothesis of innocence. Id. The evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict. Id. Where,

as here, the State does not allege actual possession, it must establish

constructive possession. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999).

“Constructive possession occurs when somebody has the intent and capability

to maintain dominion and control over the item.” Id.

[19] Turning first to the capability prong, Ortiz acknowledges that “[p]roof of a

possessory interest in the premises where the drugs are found is adequate to

show the capability to maintain control and dominion of the items in question.”

Appellant’s Br. p. 18 (citing Davenport v. State, 464 N.E.2d 1302, 1307 (Ind.

1984)). He argues, however, that the State failed to prove that he had a

“possessory interest” in the house. We disagree. The most probative piece of

evidence that Ortiz had a possessory interest in the house, and was not just a

visitor, is a cable bill sent to “Ricardo Ortiz” at the address of the house. The

fact that he was found in the master bedroom at 10:25 p.m. is also a solid

indicator that he had a possessory interest in the house. Tellingly, Ortiz does

not address either piece of evidence in his “capability” analysis. Also found in

the bedroom were three documents naming “Ricardo Ortiz Cotto” or “Ricardo

O Cotto” at the same address, along with multiple pairs of men’s pants. All of

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 9 of 11 this evidence supports the conclusion that Ortiz was in possession of the house

and was therefore capable of maintaining dominion and control of the drugs.

[20] To prove that Ortiz had the intent to do so, the State had to demonstrate his

knowledge of the drugs. See Henderson, 715 N.E.2d at 835. Where a

defendant’s control over the premises is non-exclusive, as was the case here

(since there was another person found in the master bedroom with Ortiz), there

must be “evidence of additional circumstances pointing to the defendant’s

knowledge of the presence of the contraband.” Id. at 835-36 (quoting Woods v.

State, 471 N.E.2d 691, 694 (Ind. 1984)). Examples of such circumstances are:

(1) incriminating statements by the defendant, (2) attempted flight or furtive

gestures, (3) location of substances like drugs in settings that suggest

manufacturing, (4) proximity of the contraband to the defendant, (5) location of

the contraband within the defendant’s plain view, and (6) the mingling of the

contraband with other items owned by the defendant. Id.

[21] Several such circumstances existed in this case. First, while Ortiz did not

attempt to flee or make any furtive gestures, he did fail to answer the door when

the officers knocked. Second, the presence of the scales and the plastic bags

suggests drug “manufacturing,” which by statute includes “packaging or

repackaging.” See Ind. Code § 35-48-1-18 (defining “manufacture”). Third, the

cocaine was found in a dresser in the master bedroom and the marijuana was

found in the master bathroom, both in close proximity to Ortiz. Fourth, the

bags containing the marijuana were plainly visible in the pocket of a robe in the

master bathroom, which, again, could only be accessed through the master

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 10 of 11 bedroom. Fifth, the cocaine was found in a dresser that also contained mail for

Ortiz, along with the scales and plastic bags. Sixth, in a box in the master-

bedroom closet, officers found $100 of the buy money that had been given to

Dejesus earlier that night. In light of these facts, we decline to disturb the jury’s

conclusion that Ortiz had the intent to maintain dominion and control of the

drugs.

[22] Affirmed.

Bradford, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017 Page 11 of 11