Shalee C. Dowell v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 23, 2023
• Docket: 19A-CR-02623
• Status: Published

Opinion

FILED Mar 23 2023, 8:33 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Theodore E. Rokita Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Indianapolis, Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Shalee C. Dowell, March 23, 2023 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2623 v. Appeal from the Perry County Circuit Court State of Indiana, The Honorable Karen Werner, Appellee-Plaintiff Special Judge Trial Court Cause No. 62C01-1805-F2-361

Opinion by Judge May Chief Judge Altice and Judge Riley concur.

May, Judge.

Court of Appeals of Indiana | Opinion 19A-CR-2623 | March 23, 2023 Page 1 of 9 [1] In this procedurally anomalous circumstance, where appellate counsel

determined pages of the transcript were missing after the completion of Shalee

C. Dowell’s direct appeal, we reopened the direct appeal and permitted counsel

to raise any new issues revealed in the pages of transcript that had been missing.

As a result of counsel’s review, Dowell now challenges the sufficiency of the

State’s evidence that she committed Level 2 felony dealing in

methamphetamine. 1 The State cross-appeals to challenge our reopening of the

case for supplemental briefing. For reasons explained more fully below, we

affirm.

Facts and Procedural History [2] In our earlier opinion, we stated the facts relevant to that appeal, which are also

pertinent here:

On May 2, 2018, officers initiated a traffic stop on a gold Oldsmobile Alero after observing the vehicle drive “left of center.” Three people were in the car. Dowell was the driver, and the passengers were Christopher Wiseman and James Tucker. The officers decided to remove all of the vehicle’s occupants in order to conduct a K9 open air sniff of the vehicle.

When Dowell exited the vehicle, Officer Jason Shadwick noticed she was acting “unusually nervous.” While Officer Shadwick was handing Dowell’s driver’s license and registration to another officer, he noticed her “trying to place a stainless vial into the

1 Ind. Code § 35-48-4-1.1(e).

Court of Appeals of Indiana | Opinion 19A-CR-2623 | March 23, 2023 Page 2 of 9 back of her pants.” Officer Shadwick intercepted the vial because “[t]hrough [his] years and experience, those are commonly used for controlled substances.” Officer Shadwick also removed a cell phone from Dowell’s back pocket.

Next, Officer Daymion Marsh went to the passenger side of the car and asked Tucker to exit the vehicle. When Tucker did so, Officer Marsh observed a “[c]lear Ziploc bag containing several other Ziploc bags ... [that] contained a crystal substance” on the passenger floorboard of the vehicle. Officer Marsh testified that, based on his training and experience, the packaging and quantity indicated the substance was prepared for “[d]ealing purposes.” The substance was later tested and determined to be 16 grams of methamphetamine, in individual portions of 2.83-3.55 grams. Officers arrested Dowell, Tucker, and Wiseman.

Dowell v. State, 155 N.E.3d 1284, 1285-6 (Ind. Ct. App. 2020) (internal citations

to the record omitted). Several text messages between Wiseman and Dowell

contained language consistent with drug dealing, and Wiseman admitted the

messages were about Dowell selling methamphetamine to his friend at work.

In the texts, Dowell indicated she could sell Wiseman’s friend a “ball.” (Tr.

Vol. II at 215.) Wiseman reported a “ball” meant an “8-ball” which was

“three-and-a-half grams of meth.” (Id.) Dowell also communicated with

another unidentified person via text message and told that person, “My car got

repoed so I’ll be in a gold alero.” (Ex. Vol. I at 69) (errors in original). Finally,

Dowell called sister Shianne from jail and asked Shianne to dispose of certain

drug-related items, which Shianne disposed after finding the items where

Dowell said they would be.

Court of Appeals of Indiana | Opinion 19A-CR-2623 | March 23, 2023 Page 3 of 9 [3] On May 6, 2018, the State charged Dowell with Level 2 felony dealing in

methamphetamine, Level 4 felony possession of methamphetamine, 2 and Level

6 felony maintaining a common nuisance. 3 The State later added a charge of

Level 6 felony obstruction of justice. 4 After a three-day jury trial, the jury

returned a verdict of guilty as to all charges. The trial court dismissed the Level

4 felony possession of methamphetamine conviction based on double jeopardy

concerns. The trial court sentenced Dowell to twenty years for Level 2 felony

dealing in methamphetamine, one-and-one-half years for Level 6 felony

maintaining a common nuisance, and one-and-one-half years for Level 6 felony

obstruction of justice. The trial court ordered the sentences to be served

consecutive to one another for an aggregate sentence of twenty-three years.

[4] In her first direct appeal, Dowell argued the State did not present sufficient

evidence she committed Level 6 felony maintaining a common nuisance

because “the State did not prove that she used her vehicle more than one time

to possess or deal methamphetamine.” Dowell, 155 N.E.3d at 1286-7. We

reversed Dowell’s conviction of Level 6 felony maintaining a common nuisance

because “the State proved Dowell used the gold Alero only on May 2, 2018, to

transport drugs for sale. That single instance of use is not sufficient to prove

Dowell committed Level 6 felony maintaining a common nuisance.” Id. at

2 Ind. Code § 35-48-4-6(c). 3 Ind. Code § 35-45-1-5(c). 4 Ind. Code § 35-44.1-2-2(a).

Court of Appeals of Indiana | Opinion 19A-CR-2623 | March 23, 2023 Page 4 of 9 1287. We issued our opinion on Dowell’s direct appeal on October 23, 2020.

Neither the State nor Dowell petitioned for rehearing or for transfer to our

Indiana Supreme Court, and the opinion was certified on December 18, 2020.

[5] On July 27, 2021, Dowell filed a pro se petition for post-conviction relief.

Deputy State Public Defender Adam Carter filed his appearance on Dowell’s

behalf. On March 17, 2022, Dowell’s mother, Stephanie Thompson, contacted

Dowell’s appellate counsel, Cara Schaefer Weineke, to inform her a portion of

the trial transcript from Dowell’s trial, specifically Thompson’s testimony, was

missing from the record submitted on appeal. Weineke confirmed Thompson’s

assertion.

[6] On March 31, 2022, via appellate counsel Weineke, Dowell petitioned this

court to reassume jurisdiction of her case, order the trial court to prepare the

missing portion of the transcript, and allow Dowell to file a supplemental brief

“to raise any issues that were not previously raised and whose merits were

augmented by inclusion of the missing portions of the transcript.” (Appellant’s

Verified Petition to Reassume Jurisdiction and to Reopen Case for

Supplemental Briefing at 5.) The State did not respond. On April 22, 2022, we

granted Dowell’s petition.

Discussion and Decision

Court of Appeals of Indiana | Opinion 19A-CR-2623 | March 23, 2023 Page 5 of 9 1. Reassumption of Jurisdiction and Supplemental Briefing5 [7] The State asserts we “should vacate the order allowing Dowell to reopen her

direct appeal because there is no authority supporting the extraordinary relief of

providing her a second direct appeal without first obtaining post-conviction

relief.” (Br. of Appellee at 11.) However, the State did not respond to Dowell’s

petition asking us to reassume jurisdiction and allow supplemental briefing.

After we granted Dowell’s petition on April 22, 2022, the State did not ask us to

reconsider our decision. The State did not respond to Dowell’s motion asking

this court to stay the proceedings in order to allow Dowell to request the

missing portions of the transcript from the trial court. After we granted

Dowell’s motion to stay, the State did not ask us to reconsider our decision.

The State did not respond to Dowell’s motion to compel the trial court to issue

an order certifying completion of clerk’s record. After we granted that motion

on September 1, 2022, the State did not ask us to reconsider our decision.

[8] Plainly put, the State had multiple opportunities to assert its objection to this

court’s course of action, but the State failed to do so. Therefore, the State has

waived any challenge to our decision to reassume jurisdiction of Dowell’s direct

appeal and permit supplemental briefing. See, e.g., State v. Barlow, 181 Ind. App.

79, 80, 390 N.E.2d 1046, 1047 (1979) (a party may not sit idly by and observe

what it perceives as error, without calling it to the attention of the court, and

5 Because the State’s cross-appeal issue, if successful, would be dispositive of this appeal, we address it first.

Court of Appeals of Indiana | Opinion 19A-CR-2623 | March 23, 2023 Page 6 of 9 then “attempt to raise that error to his advantage on appeal”). Waiver

notwithstanding, to the extent our decision deviates from the Indiana Rules of

Appellate Procedure, we note Indiana Appellate Rule 1 allows this court, in its

discretion, to “permit deviation from these Rules.”

2. Sufficiency of the Evidence [9] Dowell argues the State did not present sufficient evidence she committed Level

2 felony dealing in methamphetamine. Our standard of review for claims

challenging the sufficiency of the evidence is well-settled:

Sufficiency-of-the-evidence claims ... warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility. Rather we consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.

Powell v. State, 151 N.E.3d 256, 262-63 (Ind. 2020) (internal citations omitted).

To prove Dowell committed Level 2 felony dealing in methamphetamine, the

State had to present evidence she possessed more than ten grams of pure or

adulterated methamphetamine with the intent to deliver. Ind. Code § 35-48-4-

1.1(e).

[10] Dowell asserts the State did not present sufficient evidence she knew the

methamphetamine was in her vehicle and she intended to deliver it to someone

else. She acknowledges methamphetamine packaged in such a way as to

Court of Appeals of Indiana | Opinion 19A-CR-2623 | March 23, 2023 Page 7 of 9 suggest it would be sold was found in her vehicle but contends it was

“presumably out of Dowell’s view from the driver’s seat.” (Br. of Appellant at

11.) Thus, Dowell contends, to prove she knew of the methamphetamine in her

vehicle, the State had to prove the text messages between Wiseman and

Dowell’s telephone number were sent by Dowell and not someone else.

Dowell argues she presented evidence to refute the State’s contention she sent

the text messages because, at trial, Thompson testified Tucker was typing on

Dowell’s phone during the time the text messages were exchanged with

Wiseman.

[11] Officer Marsh testified he observed methamphetamine in plain view on the

floorboard of the passenger side of Dowell’s vehicle. Officer Marsh testified the

methamphetamine was packaged in small bags that were then stored in a larger

bag. He testified such packaging, in his experience, was consistent with dealing

methamphetamine. Further, Wiseman testified he communicated with Dowell

earlier that day regarding the sale of methamphetamine. Dowell’s alternate

explanation of the identity of the person with whom Wiseman communicated

regarding the sale of methamphetamine is an invitation for us to reweigh the

evidence and judge the credibility of witnesses, which we cannot do. See Powell,

151 N.E.3d at 263 (appellate court cannot reweigh evidence or judge the

credibility of witnesses). The State’s evidence was sufficient to permit a

reasonable trier of fact to find beyond a reasonable doubt that Dowell knew

about the methamphetamine and intended to sell it to Wiseman. See, e.g.,

Durstock v. State, 113 NE.3d 1272, 1279 (Ind. Ct. App 2018) (evidence Durstock

Court of Appeals of Indiana | Opinion 19A-CR-2623 | March 23, 2023 Page 8 of 9 possessed over six grams of fentanyl and a scale, in conjunction with Durstock’s

jail phone call to a third party during which Durstock admitted selling drugs

was sufficient to prove Durstock committed Level 2 felony dealing in a narcotic

drug), trans. denied.

Conclusion [12] The State waived any challenge to our decision to reassume jurisdiction by

failing to assert any objection to the process before doing so in its appellate

brief. Waiver notwithstanding, we have discretion to permit deviation from the

Indiana Rules of Appellate Procedure. The State presented sufficient evidence

to prove Dowell committed Level 2 felony dealing in methamphetamine.

Accordingly, we affirm.

[13] Affirmed.

Altice, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Opinion 19A-CR-2623 | March 23, 2023 Page 9 of 9