MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 13 2019, 7:43 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven E. Ripstra Curtis T. Hill, Jr. Ripstra Law Office Attorney General of Indiana Jasper, Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Sixto Cotto, March 13, 2019 Appellant-Defendant, Court of Appeals Case No. 74A04-1711-CR-2608 v. Appeal from the Spencer Circuit Court State of Indiana, The Honorable Jonathan A. Dartt, Appellee-Plaintiff. Judge Trial Court Cause No. 74C01-1702-F5-54
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 1 of 16 Statement of the Case [1] Sixto Cotto (“Cotto”) appeals, following a jury trial, his two convictions for
Level 5 felony dealing in methamphetamine.1 Cotto argues that: (1) the trial
court abused its discretion when it admitted into evidence his cell phone and
three text messages found on it; (2) his two dealing in methamphetamine
convictions violate the continuous crime doctrine; and (3) there was insufficient
evidence to support his two convictions. Concluding that any alleged error in
the admission of the challenged evidence constituted harmless error, that his
convictions do not violate the continuous crime doctrine, and that the evidence
was sufficient, we affirm his two convictions.
[2] We affirm.
Issues 1. Whether the trial court abused its discretion in its admission of evidence.
2. Whether Cotto’s two dealing in methamphetamine convictions violate the continuous crime doctrine.
3. Whether sufficient evidence supports Cotto’s two convictions.
1 I.C. § 35-48-4-1.1. The jury also found Cotto guilty of Level 6 felony possession of methamphetamine; however, the trial court merged that conviction into one of Cotto’s dealing convictions and did not enter judgment.
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 2 of 16 Facts [3] Cotto and Nicholas Polen (“Polen”) worked at Kimball International (“the
Kimball plant”) in Santa Claus, Indiana. In December 2016, Polen, who was
on probation from a manufacturing methamphetamine conviction, had a
positive drug screen for methamphetamine. Polen told his probation officer
that he had gotten the methamphetamine from Cotto, and he offered to work
with the police as a confidential informant. Thereafter, Spencer County Sheriff
Deputy Kelli Reinke (“Deputy Reinke”) spoke with Polen about making a
controlled buy of methamphetamine from Cotto.
[4] In February 2017, Polen and Cotto made arrangements to meet at Stones Motel
in Dale, Indiana (“the motel”) where Polen could purchase an “eight-ball”2 of
methamphetamine from Cotto for $250.00. (Tr. Vol. 3 at 124). They also
planned for Cotto to “front” another eight-ball of methamphetamine. (Tr. Vol.
3 at 124).
[5] On February 16, 2017, Deputy Reinke met with Polen at a barn near the motel.
Deputy Reinke searched Polen’s vehicle and person to ensure that he had no
controlled substances. Deputy Reinke also installed a video recording device
and an audio recording device in Polen’s truck. Polen and Deputy Reinke then
drove toward the motel. Polen parked at the motel, while Deputy Reinke
2 Deputy Reinke testified that an eight-ball of methamphetamine is equivalent to one-eighth of an ounce and weighs around 3.5 grams.
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 3 of 16 parked in a nearby parking lot where she observed the scene at the motel with
binoculars and was able to see and recognize Cotto. At the motel, Cotto
walked up to Polen’s truck and handed Polen a cigarette carton that contained a
baggie with one eight-ball of methamphetamine. Polen left and drove to the
meeting point with Deputy Reinke, who then searched Polen’s truck and
person. Polen gave Deputy Reinke the cigarette carton containing the baggie of
methamphetamine, which weighed 3.26 grams.
[6] Thereafter, Deputy Reinke and Polen made plans for a second controlled buy,
and Polen arranged to purchase a second eight-ball of methamphetamine from
Cotto on February 23, 2017. However, the transaction did not occur because of
a supply issue.
[7] On February 24, 2017, Cotto and Polen were working the late shift at the
Kimball factory. Cotto walked up to Polen and handed him an eight-ball of
methamphetamine that was wrapped in plastic and a paper towel. Cotto did
not ask Polen for any payment. Around 1:00 a.m., Polen texted Deputy Reinke
to tell her that Cotto had given him some methamphetamine. Later that
morning, Polen met Deputy Reinke at the probation office, and he gave her the
methamphetamine that he had received from Cotto. The methamphetamine
weighed 3.19 grams.
[8] On February 27, 2017, Deputy Reinke obtained an arrest warrant for Cotto.
That same day, Deputy Reinke and other deputies went to a country road
leading to the entrance of the Kimball factory to wait for Cotto as he arrived for
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 4 of 16 work. When they stopped Cotto, he parked his car in the roadway. The
“registration plates” on Cotto’s car were registered to a different vehicle. (App.
Vol. 3 at 71). The deputies impounded Cotto’s vehicle “due to it being in the
roadway” and because of the improper plate. (Tr. Vol. 3 at 71). Deputy Reinke
served the arrest warrant, patted down Cotto, and found $766.00 in Cotto’s
pocket. The deputies placed Cotto in a police car and ran a canine officer
around his vehicle, and the canine alerted on the driver’s side door. The
deputies searched Cotto’s vehicle and seized a cell phone, a trac phone, an
iPod, two prescription bottles, four capsules, a backpack with a laptop inside,
and two composition notebooks containing names and phone numbers.
Deputy Reinke later obtained a search warrant for a Cotto’s cell phone, and the
police obtained some text messages from his phone.
[9] The State ultimately charged Cotto with Count 1, Level 5 felony dealing in
methamphetamine (for the February 16, 2017 delivery of methamphetamine);
Count 2, Level 6 felony possession of methamphetamine (based on the
February 16 incident); and Count 3, Level 5 felony dealing in
methamphetamine (for the February 24, 2017 delivery of methamphetamine).3
The State also charged Cotto, in a separate cause, 74C01-1703-F6-58 (“the F6-
58 cause”), with a Level 6 felony offense stemming from the items found during
3 The State initially charged Cotto under separate cause numbers for these three charges. Count 1 and 2 were charged in one cause, 74C01-1702-F5-54, and Count 3 was charged in another cause, 74C01-1703-F5-74. The State later sought and was granted permission to join the two causes.
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 5 of 16 the search of his vehicle when the police executed the arrest warrant on
February 27. 4
[10] On June 19-21, 2017, the trial court held a three-day jury trial. On the morning
of trial, Cotto made an oral motion to suppress evidence of the cell phone or
text messages. Cotto had filed a motion to suppress in the F6-58 cause and
wanted to incorporate that motion into this cause. 5 The trial court then held a
hearing on Cotto’s motion to suppress prior to commencing the trial, and
Deputy Reinke testified to the details of the search as set forth above. She also
testified that the sheriff’s department had a policy for doing an inventory search.
The trial court denied Cotto’s suppression motion.
[11] During the trial, Deputy Reinke and Polen testified regarding the facts
surrounding Cotto’s two deliveries of methamphetamine to Polen on February
16 and February 24.6 The video and audio recordings of the controlled buy
were admitted into evidence and played for the jury. Additionally, the State
moved to admit into evidence Cotto’s cell phone (State’s Exhibit 28) and
photographs of three text messages that were on Cotto’s phone (State’s Exhibits
4 The record before us does not indicate the exact charge that was filed in the F6-58 cause. 5 In the F6-58 cause, Cotto had moved to suppress “[a]ny property, observations, statements” that had been obtained during the February 27, 2017 search of his vehicle. (App. Vol. 2 at 44). In that motion, Cotto argued that the search violated his rights under the Fourth Amendment of the United States Constitution and Article 1, § 11 of the Indiana Constitution. More specifically, he asserted that the officers lacked probable cause for the search, that the search was not a proper inventory search, and that the search was unreasonable under the totality of the circumstances. 6 Prior to trial, Cotto filed a motion to reveal the identity of the confidential informant. The trial court held a hearing and granted Cotto’s motion. Thus, Polen testified at trial.
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 6 of 16 29-33).7 The three texts were sent from Polen to Cotto. One of the texts was
dated February 13, and the two others were dated February 24. The February
13 text message provided: “Got your $, need same asap if possible” (State’s
Ex. 33) (lack of punctuation in original). The first February 24 text message
had a time stamp of “9:35” and provided: “U have some linda problem with
me or what?” (State’s Ex. 32). The second February 24 text message, which
had a time stamp of “10:17[,]” provided as follows: “I have cash on me for one
tonight, ol boy said he come up whatever time I want him to with $ tomorrow.
He might take everybit of what u told me last nigh” (State’s Exs. 29-31)
(misspellings, grammar errors, and lack of punctuation in original).
[12] Cotto objected to the admission of the cell phone and the texts. The State told
the trial court that it sought to admit the text messages only to show that Polen
had communicated with Cotto around the time of the two deliveries and that it
was not being offered to “prove the contents” or the “truth of the matter
asserted.” (Tr. Vol. 4 at 26). Cotto responded that there was no dispute about
whether Polen had contacted Cotto. The trial court overruled Cotto’s objection
and admitted the exhibits into evidence.
[13] Cotto’s trial defense was that he had been set up by Polen because Polen was
trying to gain leniency with his probation violation. He argued to the jury that
Polen had a hidden baggie of methamphetamine, either in his car or on his
7 During the trial, the State referred to two text messages. Our review of the exhibits reveals that there were three text messages.
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 7 of 16 person, that Deputy Reinke had failed to detect during her search before the
February 16 controlled buy. Cotto also suggested that Polen had also provided
the methamphetamine on February 24 and had claimed that Cotto had given it
to him. The jury deliberated for thirty minutes and found Cotto guilty as
charged.
[14] At sentencing, Cotto argued that his convictions constituted a single episode of
criminal conduct under INDIANA CODE § 35-50-1-2.8 The trial court rejected
Cotto’s argument and found, in relevant part, that:
[T]here were two (2) distinct drug transactions on which the jury found Defendant guilty. They were on different dates eight (8) days apart (February 16, 2017 and February 24, 2017), at different locations (Stones Motel in Dale, Indiana and Kimball International in Santa Claus, IN), and were under different circumstances (one was a controlled buy with law-enforcement where money was exchanged for drugs and the other was where drugs were fronted by the Defendant directly to the informant without money being paid).
(App. Vol. 2 at 27). The trial court imposed a six (6) year sentence for each of
his Level 5 felony dealing in methamphetamine convictions and ordered them
to be served consecutively. Cotto now appeals.
8 INDIANA CODE § 35-50-1-2(b) provides that an “episode of criminal conduct means offenses or a connected series of offenses that are closely related in time, place, and circumstance.”
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 8 of 16 Decision [15] Cotto argues that: (1) the trial court abused its discretion by admitting into
evidence the cell phone and text messages; (2) his two Level 5 felony dealing in
methamphetamine convictions violate the continuous crime doctrine; and (3)
there was insufficient evidence to support his two convictions. We will review
each argument in turn.
1. Admission of Evidence
[16] Cotto first challenges the admission of evidence at his jury trial.9 In his
appellate brief, Cotto refers generally to the evidence seized from the search of
his car—which included a cell phone and three text messages that were later
extracted pursuant to a search warrant; an iPod; drug tablets and capsules; a
laptop; and notebooks containing names and phone numbers—and the
evidence seized from the search of his person—which was $766 in cash. He
asserts that “all this evidence” was introduced at trial, that he objected to it, and
that the trial court abused its discretion by admitting it. (Cotto’s Br. 8). Cotto
is apparently confused because most of this evidence was not even offered at
trial. The only evidence offered and admitted, over Cotto’s objection, were the
9 Cotto raised this issue as a challenge to the trial court’s denial of his motion to suppress. However, because Cotto is appealing following a trial, the issue presented is more appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 9 of 16 three text messages and the cell phone. Thus, we focus our analysis to his
challenge to the admission of the text messages and cell phone.
[17] Cotto argues that three text messages found on his cell phone should not have
been admitted into evidence because they were obtained as a result of a
warrantless search of his vehicle, which was in violation of his Fourth
Amendment rights.10 The State contends that the seizure was proper under
either the inventory search exception or the automobile exception.
[18] The admission and exclusion of evidence falls within the sound discretion of
the trial court, and we review the admission of evidence only for an abuse of
discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,
871 (Ind. 2012), reh’g denied.
[19] We need not, however, determine whether the trial court abused its discretion
by admitting the text messages and cell phone into evidence because even if it
was erroneous to admit the evidence, any error was harmless. “The improper
admission of evidence is harmless error when the conviction is supported by
10 Cotto also generally asserts that the search violated his rights under Article 1, § 11 of the Indiana Constitution. He, however, makes no cogent argument nor provides an independent analysis regarding the reasonableness of the search under our state constitution. Accordingly, he has waived any challenge to the admission of the evidence based on the Indiana Constitution. See Ind. Appellate Rule 46(A)(8); Abel v. State, 773 N.E.2d 276, 278 n. 1 (Ind. 2002) (holding that the defendant had waived any state constitutional claim where he presented no authority or independent analysis supporting a separate standard under the state constitution).
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 10 of 16 substantial independent evidence of guilt as to satisfy the reviewing court that
there is no substantial likelihood that the questioned evidence contributed to the
conviction.” Cook v. State, 734 N.E.2d 563, 569 (Ind. 2000), reh’g denied. See
also Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014) (“If we are satisfied the
conviction is supported by independent evidence of guilt such that there is little
likelihood the challenged evidence contributed to the verdict, the error is
harmless.”).
[20] Here, Cotto was charged with two counts of dealing in methamphetamine by
delivering it. The text messages from Polen to Cotto were not presented to
provide evidence of Cotto’s actual deliveries. There was, however, substantial
independent evidence that Cotto delivered methamphetamine to Polen on two
different occasions. Deputy Reinke and Polen provided testimony regarding
Cotto’s first methamphetamine delivery on February 16, 2017 at the motel.
This first delivery was from a controlled buy, and the State admitted the video
and audio recordings of the controlled buy. Additionally, Polen testified
regarding Cotto’s second methamphetamine delivery on February 24, 2017 at
the Kimball plant. Polen testified that he and Cotto were at work when Cotto
gave him the baggie of methamphetamine. Polen contacted Deputy Reinke and
later gave her the methamphetamine that Cotto had delivered to him. Based on
our review of the record and the evidence supporting Cotto’s convictions, we
are satisfied that there is no substantial likelihood that the challenged evidence
contributed to jury’s verdicts and, therefore, conclude that the admission of the
evidence was harmless error.
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 11 of 16 2. Continuous Crime Doctrine
[21] Cotto contends that his two convictions for dealing in methamphetamine
violate the continuous crime doctrine.11
[22] “The continuous crime doctrine is a rule of statutory construction and common
law” and “applies only where a defendant has been charged multiple times with
the same ‘continuous’ offense.” Hines v. State, 30 N.E.3d 1216, 1219, 1220 (Ind.
2015). The doctrine “establishes that actions that are sufficient to constitute
separate criminal offenses may be so compressed in terms of time, place,
singleness of purpose, and continuity of action as to constitute a single
transaction.” Pugh v. State, 52 N.E.3d 955, 970 (Ind. Ct. App. 2016), trans.
denied. “‘The doctrine involves those instances where a defendant’s conduct
amounts to only a single, chargeable crime such that the State is prevented from
charging a defendant twice for the same offense.’” Id. “The continuous crime
doctrine does not seek to reconcile the double jeopardy implications of two
distinct chargeable crimes; rather, it defines those instances where a defendant’s
conduct amounts only to a single chargeable crime.” Hines, 30 N.E.3d at 1219.
Our review of the continuous crime doctrine “‘requires a fact-sensitive
analysis.’” Heckard v. State, -- N.E.3d --, No. 18A-CR-1376, 2019 WL 510370,
11 Our Court has explained that “Indiana case law alternates between ‘continuing’ crime doctrine and ‘continuous’ crime doctrine.” Flores v. State, 114 N.E.3d 522, 523 n.2 (Ind. Ct. App. 2018). Because our supreme court has referred to it as the “continuous” crime doctrine, so too shall we. See id. (citing Hines v. State, 30 N.E.3d 1216 (Ind. 2015)).
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 12 of 16 *7 (Ind. Ct. App. Feb. 11, 2019) (quoting Gomez v. State, 56 N.E.3d 697, 703
(Ind. Ct. App. 2016)).
[23] Here, Cotto was charged with two counts of Level 5 felony dealing in
methamphetamine, both based on the delivery of methamphetamine. We
acknowledge that he was charged with the same criminal offense; however, we
reject Cotto’s argument that his two crimes constituted the same “continuous”
offense. Two offenses are considered to be a “continuous transaction when
they are closely connected in time, place, and continuity of action.” Hines, 30
N.E.3d at 1220. Cotto’s first conviction of dealing in methamphetamine is
based on a controlled buy where Cotto delivered methamphetamine to Polen
on February 16, 2017 at a motel in Dale, while his second conviction is based
on his delivery of methamphetamine to Polen on February 24, 2017 when they
were working at the Kimball plant in Santa Claus. The fact that Cotto
delivered the same drug to the same person does not negate the fact he engaged
in two distinct crimes when he delivered the drugs on two different dates at two
different locations. Thus, Cotto’s two convictions do not violate the continuous
crime doctrine. See, e.g., Heckard, 2019 WL 510370 at *7-8 (holding that the
defendant’s two convictions did not violate the continuous crime doctrine);
Pugh, 52 N.E.3d at 971 (holding that the defendant’s crimes, which were
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 13 of 16 “separate in time” from each other did not violate the continuous crime
doctrine).12
3. Sufficiency of Evidence
[24] Cotto argues that the evidence was insufficient to support his two convictions
for Level 5 felony dealing in methamphetamine.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder would find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
12 We also reject Cotto’s contention that his two convictions violate the double jeopardy clause of the Indiana Constitution and his assertion that “the trial evidence demonstrates that Counts 1 and 3 were not established by separate and distinct facts.” (Cotto’s Br. 19). More specifically, Cotto contends that the same evidence was used to establish that he had made an “agreement” to sell two eight-balls of methamphetamine. (Cotto’s Br. 19). As the State aptly points out, “the presence or lack of any agreement between [Cotto] and Polen is irrelevant to the necessary proof for a charge of Level 5 felony dealing in methamphetamine.” (State’s Br. 23). Moreover, our review of the record reveals that there is no reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of his February 16 dealing in methamphetamine offense may have also been used to establish the essential elements of his February 24 dealing in methamphetamine offense. See Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999).
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 14 of 16 Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks
and citations omitted) (emphasis in original). Additionally, our Indiana
Supreme Court has explained that “when determining whether the elements of
an offense are proven beyond a reasonable doubt, a fact-finder may consider
both the evidence and the resulting reasonable inferences.” Thang v. State,
10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).
[25] To convict Cotto of Level 5 felony dealing in methamphetamine, as charged in
Count 1, the State was required to prove beyond a reasonable doubt that Cotto
knowingly or intentionally delivered methamphetamine on February 16, 2017.
To convict Cotto of Level 5 felony dealing in methamphetamine, as charged in
Count 3, the State was required to prove beyond a reasonable doubt that Cotto
knowingly or intentionally delivered methamphetamine on February 24, 2017.
“Delivery” is defined, in relevant part, as “an actual or constructive transfer
from one (1) person to another of a controlled substance[.]” I.C. § 35-48-1-11.
[26] Cotto contends that “[t]he State’s evidence failed to establish that it was Cotto
who transferred methamphetamine to Polen” and that “the jury’s verdicts
[were] based entirely on speculation.” (Cotto’s Br. 22). Cotto mainly challenges
Polen’s credibility and the thoroughness of Deputy Reinke’s search prior to the
controlled buy. Cotto raised these same arguments to the jury. He argued that
Polen had a hidden baggie of methamphetamine, either in his car or on his
person, that Deputy Reinke had failed to detect during her search before the
February 16 controlled buy. Cotto also suggested that Polen had also provided
the methamphetamine on February 24 and had claimed that Cotto had given it
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 15 of 16 to him. The jury rejected his arguments and found Cotto guilty of both counts
of dealing in methamphetamine.
[27] Cotto’s arguments amount to nothing more than a request to reweigh the
evidence and the jury’s assessment of credibility, which we cannot do. See
Drane, 867 N.E.2d at 146. The evidence presented at trial supports the jury’s
determination that Cotto delivered methamphetamine to Polen on February 16
and February 24. Accordingly, we affirm Cotto’s two convictions for Level 5
felony dealing in methamphetamine.
[28] Affirmed.
Vaidik, C.J., and Barnes, Sr.J., concur.
Court of Appeals of Indiana | Memorandum Decision 74A04-1711-CR-2608 | March 13, 2019 Page 16 of 16