Thomas W. Burton v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION ON REHEARING May 26 2015, 9:35 am Pursuant to Ind. Appellate Rule 65(D), this 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 Cynthia M. Carter Gregory F. Zoeller Law Office of Cynthia M. Carter, LLC Attorney General of Indiana Indianapolis, Indiana Ryan D. Johanningsmeier Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas W. Burton, May 26, 2015

Appellant-Defendant, Court of Appeals Case No. 41A01-1312-CR-539 v. Appeal from the Johnson Circuit Court State of Indiana, The Honorable K. Mark Loyd, Judge Appellee-Plaintiff. Cause No. 41C01-1305-FB-38

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision on Rehearing 41A01-1312-CR-539 | May 26, 2015 Page 1 of 3 Memorandum Decision on Rehearing [1] Thomas Burton appealed his convictions for dealing in a schedule II controlled

substance as a class B felony, aiding in dealing in methamphetamine as a class

B felony, and two counts of dealing in a schedule IV controlled substance as

class C felonies. In a memorandum decision, this court affirmed his

convictions. Burton v. State, No. 41A01-1312-CR-539 (Ind. Ct. App. January

30, 2015). Burton has petitioned for rehearing, which we now grant in part in

order to correct certain factual statements made in the memorandum decision.

[2] Specifically, Burton directs our attention to a statement in our memorandum

decision that a person named Jeremy Clark “performed the hand-to-hand drug

transaction with Burton.” Burton, slip op. at 3. The memorandum decision

should have stated that Clark “performed the hand-to-hand drug transaction

with CI-32.” We grant rehearing to correct the record for this purpose.

[3] However, to the extent that Burton argues that “[t]his is relevant and material

to the sufficiency argument,” id., we disagree because Burton was charged with

and convicted for aiding in dealing in methamphetamine as a class B felony for

the facts related to this transaction. As noted in the memorandum decision:

On March 22, 2013, CI-32 arranged to purchase methamphetamine for $120 from Burton at the Tearman Hotel in Franklin, Indiana, and informed Detective Wampler, who was assisted by Johnson County Narcotics Detective Damian Katt. Detective Wampler searched CI-32 prior to conducting the transaction, and CI-32 did not have any narcotics on his person. CI-32 was provided with $200 to purchase methamphetamine and potentially other drugs. Burton drove a white van into the hotel parking lot, and Jeremy Clark accompanied him in Court of Appeals of Indiana | Memorandum Decision on Rehearing 41A01-1312-CR-539 | May 26, 2015 Page 2 of 3 the front passenger seat. Burton told CI-32 to enter the driver’s-side rear seat of the van, and CI-32 did so. Clark performed the hand-to- hand drug transaction with [CI-32].[1] Both Detectives Wampler and Katt observed the transaction and video-recorded it. CI-32 returned to Detective Katt after leaving the van without leaving the sight of the detectives and handed Detective Katt two baggies containing a substance which the detectives identified as methamphetamine and which field tested positive for methamphetamine. CI-32 had eighty dollars remaining on his person.

Id. at 3-4. As discussed in the memorandum decision, Burton was charged with

aiding in dealing in methamphetamine and his challenge to the sufficiency of

the evidence related to whether the substance sold to CI-32 by Clark was

actually methamphetamine. Id. at 39. We cannot say that the mistaken

reference to Burton rather than CI-32 in our initial memorandum decision is

relevant and material to Burton’s sufficiency argument or impacted our analysis

regarding his guilt as to that charge.

[4] We grant Burton’s petition for rehearing for the limited purpose of correcting a

statement of fact and deny his petition in all other respects.

Barnes, J., and Bradford, J., concur.

1 As noted above, in the memorandum decision this court mistakenly stated that Clark performed the hand- to-hand drug transaction with Burton. Court of Appeals of Indiana | Memorandum Decision on Rehearing 41A01-1312-CR-539 | May 26, 2015 Page 3 of 3