Shawn D. Harbert v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 14, 2016
• Docket: 27A04-1505-CR-334
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jan 14 2016, 6:02 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 Tia R. Brewer Gregory F. Zoeller Grant County Public Defender Attorney General of Indiana Marion, Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Shawn D. Harbert, January 14, 2016

Appellant-Defendant, Court of Appeals Case No. 27A04-1505-CR-334 Appeal from the Grant Superior v. Court. The Honorable Jeffrey Todd, Judge. State of Indiana, Cause No. 27D01-1410-FB-44

Appellee-Plaintiff.

Barteau, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 27A04-1505-CR-334 | January 14, 2016 Page 1 of 6 Statement of the Case [1] Shawn D. Harbert appeals from his conviction of Class B felony dealing in 1 cocaine. We affirm.

Issue [2] The sole issue Harbert raises for our review is whether there is sufficient

evidence to support his conviction.

Facts and Procedural History [3] On February 13, 2014, Detective Mark Stefanatos of the Grant County

J.E.A.N. Team Drug Task Force informed other J.E.A.N. Team detectives he

had received information from a confidential informant, Jacob Larkey, about a

possible controlled drug buy. Larkey stated that he could arrange for an

undercover officer to purchase one gram of cocaine for $100 from an individual

named “Steve” at a Circle K convenience store in Marion, Indiana. Larkey

would be the introducing party in the controlled buy.

[4] J.E.A.N. Team Detective Leland Smith arranged to meet Larkey to conduct the

buy. J.E.A.N. Team Detective Josh Ziegler immediately headed to the location

of the controlled buy in order to examine the area and establish a vantage point

1 Ind. Code § 35-48-4-1(a) (2006).

Court of Appeals of Indiana | Memorandum Decision 27A04-1505-CR-334 | January 14, 2016 Page 2 of 6 to record the transaction from across the street. Two other detectives went to

the location to establish surveillance.

[5] Meanwhile, Detective Smith gathered audio visual recording devices from the

J.E.A.N. Team office to record and monitor the controlled buy. He also

photocopied the buy money. While he was preparing for the buy, Detective

Smith was notified that he needed to leave the office quickly because people

were already waiting at the location of the controlled buy. After reaching the

front of the Circle K, Detective Smith noticed a reddish Jeep that was backed

into a parking spot almost directly in front of the store, and a man was sitting

inside.

[6] Detective Smith exited his vehicle, and walked toward the convenience store’s

doors, until he recognized and greeted Larkey, who was standing next to the

open passenger-side door of the Jeep. Harbert was seated in the driver’s seat.

Detective Smith leaned in the passenger side of the Jeep as Larkey rested on the

seat facing the back with his legs out of the vehicle. Larkey asked Harbert,

“[D]o you got the shit so I can sell it to him?” Tr. p. 50. Harbert’s right arm

was extended upwards toward the rear of the Jeep and his left hand was cupped

and near the steering wheel, resting on his leg. Larkey extended his empty,

open hand. Harbert’s left hand was momentarily out of view behind Larkey’s

zippered jacket. However, Harbert’s right hand came down into view toward

the area of Larkey’s open right hand, which was briefly obscured, and the

center console. Harbert’s empty right hand then immediately extended toward

Smith, and Larkey’s open right hand held what appeared to be a baggie

Court of Appeals of Indiana | Memorandum Decision 27A04-1505-CR-334 | January 14, 2016 Page 3 of 6 containing a substance. Larkey slid the baggie across the passenger seat to

Detective Smith, who handed $100 in cash to Harbert and picked up the baggie.

[7] Subsequent testing revealed that the substance inside the baggie was .4 grams of

pure cocaine. Harbert told Detective Smith to keep it in his pocket, and Smith

complied. As Larkey moved away from the Jeep, Detective Smith asked for

Harbert’s phone number, but Harbert refused. The entire transaction was

concluded in a matter of seconds.

[8] Harbert immediately left the Circle K. Detective Smith recited Harbert’s license

plate number so that it could be recorded. Detective Ziegler, who had observed

and recorded the controlled buy from across the street, followed Harbert and

also obtained the license plate number. Larkey and Detective Smith got into

Detective Smith’s vehicle where they discussed Harbert’s identity—a man

Larkey believed was named Steve—and arranged for Larkey to provide

Detective Stefanatos with Harbert’s telephone number.

[9] The State charged Harbert with dealing in cocaine as a Class B felony, and a

jury found Harbert guilty of that charge. The trial court sentenced Harbert to

eleven years, with six years executed and five years suspended to probation.

Harbert now appeals.

Discussion and Decision [10] Harbert challenges the sufficiency of the evidence to support his conviction.

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, Court of Appeals of Indiana | Memorandum Decision 27A04-1505-CR-334 | January 14, 2016 Page 4 of 6 817 (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.

[11] The State was required to establish beyond a reasonable doubt that Harbert

knowingly or intentionally possessed with intent to deliver cocaine. Ind. Code

§ 35-48-4-1.

[12] Harbert argues that there is insufficient evidence to support his conviction,

contending the evidence only shows a transaction between Larkey and

Detective Smith, but no involvement on Harbert’s part with the cocaine. In

particular, Harbert claims that the only evidence of his involvement was

Detective Smith’s testimony. He also argues that Larkey should have been

patted down prior to the buy to establish that the cocaine did not come from

him. Harbert’s argument is a request to reweigh the evidence, a task we will

not undertake. Jordan, 656 N.E.2d at 817.

[13] The audio visual recording of the controlled buy established that Larkey asked

Harbert if he had the cocaine for sale to Detective Smith. Harbert’s right arm

was extended upwards toward the rear of the Jeep and his left hand was cupped

and near the steering wheel, resting on his leg. Larkey extended his empty,

open hand. Harbert’s left hand was momentarily out of view behind Larkey’s

zippered jacket. However, Harbert’s right hand came down into view toward

the area of Larkey’s open hand, which was briefly obscured, and the center

Court of Appeals of Indiana | Memorandum Decision 27A04-1505-CR-334 | January 14, 2016 Page 5 of 6 console. Harbert’s empty right hand then immediately extended toward Smith,

and Larkey’s open right hand came into view appearing to hold a baggie

containing a substance. Larkey slid the baggie across the passenger seat to

Detective Smith, who handed $100 in cash to Harbert and picked up the baggie.

Harbert told Smith to keep it, meaning the baggie, in his pocket, and Smith

complied. When asked, Harbert did not give Smith his telephone number.

Testing of the substance identified it as cocaine. There is sufficient evidence to

support Harbert’s conviction.

[14] A verdict may be affirmed based solely on circumstantial evidence if that

circumstantial evidence supports a reasonable inference of guilt. Maul v. State,

731 N.E.2d 438, 439 (Ind. 2000). The evidence presented at trial supports a

reasonable inference of guilt. Harbert presented his version of the events to the

jury, but they chose to disbelieve it.

Conclusion [15] In light of the foregoing, we affirm the trial court’s decision.

[16] Affirmed.

Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A04-1505-CR-334 | January 14, 2016 Page 6 of 6