Schalk v. State

943 N.E.2d 427, 2011 Ind. App. LEXIS 348, 2011 WL 682342
CourtIndiana Court of Appeals
DecidedFebruary 28, 2011
DocketNo. 53A01-1005-CR-210
StatusPublished
Cited by2 cases

This text of 943 N.E.2d 427 (Schalk v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schalk v. State, 943 N.E.2d 427, 2011 Ind. App. LEXIS 348, 2011 WL 682342 (Ind. Ct. App. 2011).

Opinion

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

David E. Schalk appeals his conviction for Attempted Possession of Marijuana, as a Class A misdemeanor, following a bench trial. Schalk, an attorney, arranged a drug buy with a State witness. His ostensible purpose was to prove that the witness, a confidential informant, was actively dealing drugs and, thus, to discredit the witness who was scheduled to testify against his client at trial. Schalk contends that his conduct did not constitute a criminal offense because he was acting only in the defense of his client, that he did not intend to take possession of the drugs but only to deliver the drugs to law enforcement or the court for use at his client’s trial, and, further, that his conduct was no different than that of prosecutors, police officers and confidential informants when they plan and execute a controlled drug buy. Schalk asserts numerous grounds for error with a common theme, namely, that his conduct was lawful and that the evidence was insufficient to support his conviction.

We affirm.

FACTS AND PROCEDURAL HISTORY

In June 2007, Schalk was representing Chad Pemberton, who had been charged with dealing in methamphetamine, as a Class A felony. Pemberton’s charge stemmed from a sale of methamphetamine he had made to a confidential informant working with police. Schalk learned that Brandon Hyde was the confidential informant. Because Pemberton believed that Hyde continued to deal drugs while working with police, Schalk sought to obtain proof of his dealing in order to impeach his credibility at trial.

Schalk discussed with Pemberton’s mother the idea of proving that Hyde was still dealing drugs. Schalk then asked Pemberton’s sister, a minor, whether she or someone she knew might purchase marijuana from Hyde and record the transaction. Schalk recommended purchasing a large quantity of drugs to make the impeachment evidence more “reliable.” Transcript 52. When Pemberton’s sister declined to help, Pemberton suggested that his friends Lisa Edwards and Roger Grubb might be willing to participate in a drug buy with Hyde.

Leslie spoke "with Edwards about the plan, and Pemberton spoke with Edwards and Grubb to convince them to talk with Schalk. Edwards then spoke with Schalk several times, and Schalk assured her that the plan for Edwards and Grubb to buy marijuana from Hyde was “legit” and that none of them would get into trouble. Transcript at 45. On June 25, Schalk telephoned Edwards and Grubb, and the three subsequently met at a restaurant in El-lettsville. Schalk gave Edwards a voice recorder to use during the buy, and he told her to buy a “felony amount” of marijuana from Hyde. Transcript at 69. Schalk wrote down the serial numbers from $200 [429]*429in bills and gave the buy money to Edwards.

Shortly after the meeting in Ellettsville, Edwards left Schalk a voice mail message that the drug buy had been completed. However, instead of buying $200 worth of marijuana, Edwards and Grubb bought only $50 worth of marijuana from Hyde, and the pair spent the rest of the money on gas and food. And before Edwards and Grubb met with Schalk to deliver the marijuana and return the voice recorder, Grubb decided to keep the marijuana. Edwards also deleted the recording of the drug transaction with Hyde.

When Edwards and Grubb met with Schalk, they brought a rolled up newspaper and represented that the marijuana they had purchased from Hyde was inside the newspaper. Schalk refused to take possession of the newspaper alleged to contain marijuana, and he instructed Edwards and Grubb to keep it until he could find a law enforcement officer to take possession of it. Edwards and Grubb subsequently smoked all of the marijuana they had purchased from Hyde.

In the meantime, Schalk attempted to contact six or seven law enforcement officers in an effort to find someone who would take possession of the marijuana that Edwards and Grubb had purchased from Hyde. Transcript at 117. Schalk was unsuccessful in those attempts. He eventually reached Chief Deputy Prosecutor Robert Miller at home and reported that he had arranged the drug buy, had provided the buy money, and that the transaction was complete. Schalk asked Miller for “advice on how he should deal with the disposition” of the marijuana, and Miller advised Schalk to contact Sheriffs Deputy Jerry Reed “to make a report.” State’s Exhibit 1 at 9, 13. But Schalk was unable to reach Deputy Reed by telephone.

The day following the drug buy, Schalk obtained reimbursement from Pemberton’s mother for the buy money, which she thought was for the cost of depositions. The same day, Schalk also “petitioned the Court [in Pemberton’s criminal proceeding] to take custody” of the marijuana Edwards and Grubb had purchased from Hyde for use “in the upcoming Pemberton trial.”1 State’s Exhibit 4. Apparently, Schalk believed that if the contraband was turned over to law enforcement or to the court, a crime would not have been committed. On June 26 or 27, Miller contacted the Monroe County Sheriffs Department to report Schalk’s involvement in the scheme to buy marijuana from Hyde. After an investigation, Detective Shawn Karr filed an affidavit of probable cause, and the State charged Schalk with conspiracy to possess marijuana, a Class D felony.

Schalk filed various motions to dismiss the charge against him, which the trial court denied. The State ultimately amended the charge to attempted possession of marijuana, a Class A misdemeanor, after Schalk waived his right to a trial by jury. Following a bench trial, the trial court found Schalk guilty as charged, entered a judgment of conviction, and sentenced Schalk to three months, all suspended to non-supervised probation. This appeal ensued.

DISCUSSION AND DECISION

Schalk summarizes his argument on appeal as follows: “David Schalk’s providing cash for the purchase of marijuana was never in dispute, and that is the basis [430]*430of his conviction for attempted possession of marijuana. The issues presented pertain to the legality — or lack thereof — of Schalk’s actions.” Brief of Appellant at 7. Schalk’s primary contention is that, as a defense attorney, he is “on the same legal footing as the prosecuting attorneys, other police officers, and confidential informants planning and executing controlled buys.” Id. at 8. Thus, he reasons that his conduct did not constitute a criminal offense. We think not.

When the sufficiency of the evidence to support a conviction is challenged, we neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind.2005). It is the job of the fact-finder to determine whether the evidence in a particular case sufficiently proves each element of an offense, and we consider conflicting evidence most favorably to the trial court’s ruling. Id. at 906.

To prove attempted possession of marijuana, as a Class A misdemeanor, the State was required to prove that Schalk knowingly or intentionally took a substantial step toward possessing marijuana. See Ind.Code § 35-48-4-11

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Related

In re Schalk
985 N.E.2d 1092 (Indiana Supreme Court, 2013)

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Bluebook (online)
943 N.E.2d 427, 2011 Ind. App. LEXIS 348, 2011 WL 682342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schalk-v-state-indctapp-2011.