MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Apr 22 2015, 10:21 am Memorandum Decision shall not be regarded as precedent or cited before any 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 Michael R. Fisher Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Smith, April 22, 2015
Appellant-Defendant, Court of Appeals Case No. 49A05-1409-CR-440 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven R. Eichholtz, Appellee-Plaintiff. Judge
Cause No. 49G20-1307-FA-43290
Najam, Judge.
Statement of the Case [1] Robert Smith appeals his conviction for dealing in cocaine, as a Class A felony,
following a jury trial. He presents a single issue for our review, namely,
Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-440| April 22, 2015 Page 1 of 6 whether the State presented sufficient evidence to support his conviction. We
affirm.
Facts and Procedural History [2] On July 2, 2013, Smith was driving a pickup truck in Indianapolis when
Indianapolis Metropolitan Police Officer Christopher Shaw initiated a traffic
stop of Smith’s truck. Smith had a female passenger in his truck. Before
Officer Shaw exited his patrol vehicle, Smith exited the truck and started
walking towards the officer. Officer Shaw immediately exited his vehicle and
told Smith to get back into the pickup truck, but Smith did not comply and
continued walking towards Officer Shaw. Officer Shaw then drew his firearm,
pointed it at Smith, and ordered Smith to get back into his truck. Smith did not
comply, and he reached into his truck while standing outside of it. Officer
Shaw then called for backup, and he ordered Smith to show him his hands.
Officer Shaw ordered Smith a second time to show him his hands, but Smith
did not comply. Instead, Smith got back into his truck.
[3] Officer Josh Walters arrived at the scene, and he and Officer Shaw ordered
Smith out of the truck. Officer Shaw then conducted a pat-down search of
Smith, and Officer Shaw attempted to place Smith in handcuffs. After some
difficulty, the officers eventually secured the handcuffs on Smith’s wrists.
While Officer Shaw talked to Smith’s female passenger, Officer Walters saw
Smith get “his hands around his waist and . . . into one of his pockets with the
fingertips of his right hand.” Tr. at 116. Officer Walters grabbed Smith’s arms
and pushed them back behind him. And Officer Walters saw “part of a clear Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-440| April 22, 2015 Page 2 of 6 plastic baggie . . . sticking out of the top of the pocket[.]” Id. at 117. Officer
Walters pulled that baggie out of Smith’s pocket and saw that it contained a
powdery white substance. Smith “continued to fidget and attempt to get into
other pockets,” and “another plastic baggie” emerged from the top of another
pocket in Smith’s pants. Id. at 118-19. That baggie contained “multiple
baggies” containing “a hard white rock-like substance” that the officers
suspected was crack cocaine.1 Id. at 119. The officers found a total of 8.6141
grams of cocaine and $750 in cash on Smith’s person.
[4] The State charged Smith with dealing in cocaine, as a Class A felony;
possession of cocaine, as a Class C felony; and resisting law enforcement, as a
Class A misdemeanor. A jury found Smith guilty as charged. The trial court
entered judgment of conviction for dealing in cocaine, as a Class A felony, and
resisting law enforcement, as a Class A misdemeanor. And the trial court
sentenced Smith to an aggregate term of thirty years with ten years suspended.
This appeal ensued.
Discussion and Decision [5] Smith contends that the State presented insufficient evidence to support his
dealing in cocaine conviction.2 Our standard of review for sufficiency of the
evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).
1 The officers found two kinds of cocaine in Smith’s pockets—powder cocaine and crack cocaine. 2 Smith does not appeal his resisting law enforcement conviction.
Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-440| April 22, 2015 Page 3 of 6 In reviewing the sufficiency of the evidence, we examine only the probative evidence and reasonable inferences that support the verdict. We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.
Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted)
(internal quotation marks omitted).
[6] To prove dealing in cocaine, as a Class A felony, the State was required to show
that Smith knowingly or intentionally possessed, with intent to deliver, three
grams or more of cocaine. Ind. Code § 35-48-4-1. Smith does not deny that he
possessed more than three grams of cocaine. Smith contends only that the State
failed to prove that he had the intent to deliver cocaine. We cannot agree.
[7] In Love v. State, 741 N.E.2d 789, 792 (Ind. Ct. App. 2001), we observed that,
“[b]ecause intent is a mental state, triers of fact generally must resort to the reasonable inferences arising from the surrounding circumstances to determine whether the requisite intent exists.” McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct. App. 1993), trans. denied. “Circumstantial evidence showing possession with intent to deliver may support a conviction. Possessing a large amount of a narcotic substance is circumstantial evidence of intent to deliver. The more narcotics a person possesses, the stronger the inference that he intended to deliver it and not consume it personally.” Berry v. State, 574 N.E.2d 960, 963 (Ind. Ct. App. 1991) (citations omitted), trans. denied.
[8] However, Smith points out that
Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-440| April 22, 2015 Page 4 of 6 the Indiana Legislature amended [Indiana Code Section] 35-48-4- 1, effective July 1, 2014, to provide [as follows]:
(c) A person may be convicted of an offense under subsection (a)(2) only if there is evidence in addition to the weight of the drug that the person intended to manufacture, finance the manufacture of, deliver or finance the delivery of the drug.
Appellant’s Br. at 8. And Smith contends that, “[a]lthough the offense here was
alleged to have occurred prior to the effective date of July 1, 2014, this
amendment is important because, as this was a remedial statute intended to
cure a defect in a prior statute, it should be given retroactive application.” Id.
We cannot agree.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Apr 22 2015, 10:21 am Memorandum Decision shall not be regarded as precedent or cited before any 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 Michael R. Fisher Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Smith, April 22, 2015
Appellant-Defendant, Court of Appeals Case No. 49A05-1409-CR-440 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven R. Eichholtz, Appellee-Plaintiff. Judge
Cause No. 49G20-1307-FA-43290
Najam, Judge.
Statement of the Case [1] Robert Smith appeals his conviction for dealing in cocaine, as a Class A felony,
following a jury trial. He presents a single issue for our review, namely,
Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-440| April 22, 2015 Page 1 of 6 whether the State presented sufficient evidence to support his conviction. We
affirm.
Facts and Procedural History [2] On July 2, 2013, Smith was driving a pickup truck in Indianapolis when
Indianapolis Metropolitan Police Officer Christopher Shaw initiated a traffic
stop of Smith’s truck. Smith had a female passenger in his truck. Before
Officer Shaw exited his patrol vehicle, Smith exited the truck and started
walking towards the officer. Officer Shaw immediately exited his vehicle and
told Smith to get back into the pickup truck, but Smith did not comply and
continued walking towards Officer Shaw. Officer Shaw then drew his firearm,
pointed it at Smith, and ordered Smith to get back into his truck. Smith did not
comply, and he reached into his truck while standing outside of it. Officer
Shaw then called for backup, and he ordered Smith to show him his hands.
Officer Shaw ordered Smith a second time to show him his hands, but Smith
did not comply. Instead, Smith got back into his truck.
[3] Officer Josh Walters arrived at the scene, and he and Officer Shaw ordered
Smith out of the truck. Officer Shaw then conducted a pat-down search of
Smith, and Officer Shaw attempted to place Smith in handcuffs. After some
difficulty, the officers eventually secured the handcuffs on Smith’s wrists.
While Officer Shaw talked to Smith’s female passenger, Officer Walters saw
Smith get “his hands around his waist and . . . into one of his pockets with the
fingertips of his right hand.” Tr. at 116. Officer Walters grabbed Smith’s arms
and pushed them back behind him. And Officer Walters saw “part of a clear Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-440| April 22, 2015 Page 2 of 6 plastic baggie . . . sticking out of the top of the pocket[.]” Id. at 117. Officer
Walters pulled that baggie out of Smith’s pocket and saw that it contained a
powdery white substance. Smith “continued to fidget and attempt to get into
other pockets,” and “another plastic baggie” emerged from the top of another
pocket in Smith’s pants. Id. at 118-19. That baggie contained “multiple
baggies” containing “a hard white rock-like substance” that the officers
suspected was crack cocaine.1 Id. at 119. The officers found a total of 8.6141
grams of cocaine and $750 in cash on Smith’s person.
[4] The State charged Smith with dealing in cocaine, as a Class A felony;
possession of cocaine, as a Class C felony; and resisting law enforcement, as a
Class A misdemeanor. A jury found Smith guilty as charged. The trial court
entered judgment of conviction for dealing in cocaine, as a Class A felony, and
resisting law enforcement, as a Class A misdemeanor. And the trial court
sentenced Smith to an aggregate term of thirty years with ten years suspended.
This appeal ensued.
Discussion and Decision [5] Smith contends that the State presented insufficient evidence to support his
dealing in cocaine conviction.2 Our standard of review for sufficiency of the
evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).
1 The officers found two kinds of cocaine in Smith’s pockets—powder cocaine and crack cocaine. 2 Smith does not appeal his resisting law enforcement conviction.
Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-440| April 22, 2015 Page 3 of 6 In reviewing the sufficiency of the evidence, we examine only the probative evidence and reasonable inferences that support the verdict. We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.
Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted)
(internal quotation marks omitted).
[6] To prove dealing in cocaine, as a Class A felony, the State was required to show
that Smith knowingly or intentionally possessed, with intent to deliver, three
grams or more of cocaine. Ind. Code § 35-48-4-1. Smith does not deny that he
possessed more than three grams of cocaine. Smith contends only that the State
failed to prove that he had the intent to deliver cocaine. We cannot agree.
[7] In Love v. State, 741 N.E.2d 789, 792 (Ind. Ct. App. 2001), we observed that,
“[b]ecause intent is a mental state, triers of fact generally must resort to the reasonable inferences arising from the surrounding circumstances to determine whether the requisite intent exists.” McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct. App. 1993), trans. denied. “Circumstantial evidence showing possession with intent to deliver may support a conviction. Possessing a large amount of a narcotic substance is circumstantial evidence of intent to deliver. The more narcotics a person possesses, the stronger the inference that he intended to deliver it and not consume it personally.” Berry v. State, 574 N.E.2d 960, 963 (Ind. Ct. App. 1991) (citations omitted), trans. denied.
[8] However, Smith points out that
Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-440| April 22, 2015 Page 4 of 6 the Indiana Legislature amended [Indiana Code Section] 35-48-4- 1, effective July 1, 2014, to provide [as follows]:
(c) A person may be convicted of an offense under subsection (a)(2) only if there is evidence in addition to the weight of the drug that the person intended to manufacture, finance the manufacture of, deliver or finance the delivery of the drug.
Appellant’s Br. at 8. And Smith contends that, “[a]lthough the offense here was
alleged to have occurred prior to the effective date of July 1, 2014, this
amendment is important because, as this was a remedial statute intended to
cure a defect in a prior statute, it should be given retroactive application.” Id.
We cannot agree.
[9] As Smith correctly notes, this provision became effective on July 1, 2014, as
part of our General Assembly’s overhaul of our criminal code pursuant to P.L.
158-2013 and P.L. 168-2014. It was not in effect at the time Smith committed
his offenses in this matter. Despite Smith’s assertion to the contrary on appeal,
there is no question that the current version of Indiana Code Section 35-48-4-1
does not apply to him. I.C. § 1-1-5.5-21 (“The general assembly does not intend
the doctrine of amelioration . . . to apply to any SECTION of P.L. 158-2013 or
P.L. 168-2014”); see also Marley v. State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014)
(“It is abundantly clear . . . that the General Assembly intended the new
criminal code to have no effect on criminal proceedings for offenses committed
Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-440| April 22, 2015 Page 5 of 6 prior to the enactment of the new code.”), trans. denied. Smith’s contention that
the new version of the law should apply here is without merit.
[10] The State presented evidence that Smith possessed 8.6141 grams of cocaine,
and Officer Joshua Harpe testified that a typical “heavy user” of cocaine would
ingest two to three grams per day and that “it’s not common” for a cocaine user
to buy more than a day’s worth of cocaine at one time. Tr. at 186. Officer
Harpe also testified that “[i]t’s not common” to find a user “who was using two
kinds of cocaine[, powder and crack,] at the same time.” Id. at 178. Finally,
Officer Harpe testified that the large sum of cash found in Smith’s wallet and
the fact that he had no paraphernalia used for ingesting either powder or crack
cocaine was consistent with dealing in cocaine. We hold that the State
presented sufficient evidence to prove that Smith possessed more than three
grams of cocaine with intent to deliver. See Love, 741 N.E.2d at 792.
[11] Affirmed.
Baker, J., and Friedlander, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-440| April 22, 2015 Page 6 of 6