William McCormick v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 23, 2016
• Docket: 27A02-1601-CR-88
• Status: Published

Opinion

MEMORANDUM DECISION FILED Aug 23 2016, 7:32 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court

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 Evan K. Hammond 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

William McCormick, August 23, 2016 Appellant-Defendant, Court of Appeals Case No. 27A02-1601-CR-88 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff Kenworthy, Judge Trial Court Cause Nos. 27D02-1303-FB-30 and 27D02- 1204-FD-90

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 27A02-1601-CR-88 | August 23, 2016 Page 1 of 6 Case Summary [1] William McCormick appeals his conviction for class B felony dealing in a

schedule II controlled substance. The sole issue presented for our review is

whether the State presented sufficient evidence to sustain the conviction.

Finding the evidence sufficient, we affirm.

Facts and Procedural History [2] On September 28, 2012, Marion Police Department Detectives Jason Thomas

and Mark Stefanatos were working as part of the JEAN Team Drug Task

Force. A confidential informant (‘CI”) contacted supervising Detective

Stefanatos and told him that McCormick would sell the CI pills. The CI was

given purchase money and paired with Detective Thomas, an undercover

officer, to make a controlled buy. Detective Thomas fitted himself with

electronic surveillance equipment before accompanying the CI to the address of

the apartment where McCormick lived. Detective Stefanatos positioned

himself at a gas station across the street from the building so that he could

observe.

[3] When Detective Thomas and the CI arrived at the address, they encountered

McCormick out in front of the building. McCormick stated that “he knew”

Detective Thomas. Tr. at 14. Detective Thomas told McCormick that he did

not think that they knew each other and asked McCormick what his name was.

McCormick replied, “Bill McCormick,” and showed Detective Thomas an I.D.

card with his name and picture. Id. The CI and McCormick entered

Court of Appeals of Indiana | Memorandum Decision 27A02-1601-CR-88 | August 23, 2016 Page 2 of 6 McCormick’s apartment while Detective Thomas stayed on the sidewalk.

Although the door of the apartment remained open, Detective Thomas “could

not see them the whole time, but [he] did see Mr. McCormick handing

something to the informant.” Id. at 15.

[4] Detective Thomas and the CI subsequently left and met Detective Stefanatos at

a prearranged meeting place. The CI gave Detective Stefanatos pills that he

had purchased from McCormick. He gave Detective Stefanatos five oblong

yellow pills with a “V” inscribed on one side and “36/01” on the other. Id. at

45-46; State’s Ex. 3. Detective Stefanatos then asked Detective Thomas if he

would feel comfortable making a second purchase from McCormick. Detective

Thomas agreed to go back with the CI to make another purchase from

McCormick. Detective Stefanatos gave Detective Thomas twenty dollars to

make the second purchase.

[5] When Detective Thomas and the CI arrived back at McCormick’s building,

they again met McCormick outside on the sidewalk. The CI asked McCormick

if he had any more of the pills that he had sold to them earlier. McCormick

initially stated that he did not but then immediately stated that he did, as

though he had been joking with the CI about not having any. Both Detective

Thomas and the CI followed McCormick into his apartment. Detective

Thomas informed McCormick that he had twenty dollars, and McCormick told

Detective Thomas that he could buy four ten-milligram yellow “Norcos.” Tr.

at 19. Detective Thomas gave McCormick a $20 bill, and McCormick handed

him four oblong shaped yellow pills with a “V” on one side and “36/10” on the

Court of Appeals of Indiana | Memorandum Decision 27A02-1601-CR-88 | August 23, 2016 Page 3 of 6 other. Id. at 49; State’s Ex. 2. Detective Thomas and the CI then left and

returned to the prearranged meeting place to give Detective Stefanatos the pills.

[6] The State subsequently charged McCormick with class B felony dealing in a

schedule II controlled substance. Following a trial, the jury found McCormick

guilty as charged. This appeal ensued.

Discussion and Decision [7] McCormick challenges the sufficiency of the evidence to support his conviction.

When reviewing a claim of insufficient evidence, we neither reweigh the

evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind.

2015). We look to the evidence and reasonable inferences drawn therefrom that

support the verdict and will affirm if there is probative evidence from which a

reasonable factfinder could have found the defendant guilty beyond a

reasonable doubt. Id. In short, if the testimony believed by the trier of fact is

enough to support the verdict, then the reviewing court will not disturb the

conviction. Id. at 500.

[8] To prove that McCormick committed class B felony dealing in a schedule II

controlled substance, the State was required to prove that McCormick

knowingly or intentionally delivered a controlled substance, pure or

adulterated, classified in schedule II. See Ind. Code § 35-48-4-2(a). Indiana

Code Section 35-48-2-6(b)(1)(K) classifies hydrocodone as a schedule II

controlled substance.

Court of Appeals of Indiana | Memorandum Decision 27A02-1601-CR-88 | August 23, 2016 Page 4 of 6 [9] McCormick’s sole assertion on appeal is that the State provided insufficient

evidence to prove the identity of the drug that he sold as hydrocodone. It is

well settled that “the identity of a drug can be proven by circumstantial

evidence.” Clifton v. State, 499 N.E.2d 256, 258 (Ind. 1986). Indeed, “[t]he

opinion of someone sufficiently experienced with the drug may establish its

identity, as may other circumstantial evidence.” Vasquez v. State, 741 N.E.2d

1214, 1216 (Ind. 2001).

[10] Here, both Detectives Thomas and Stefanatos identified the pills sold by

McCormick as hydrocodone. Detective Thomas testified that, in his experience

in prior drug investigations, he had seen hydrocodone pills just like the ones

sold to him by McCormick. He further stated that he verified the identity of the

pills by looking them up on “drugs.com” and in the “Drug Bible.” Tr. at 20.

Similarly, Detective Stefanatos testified that he was personally familiar with the

appearance of hydrocodone pills based upon his training and prior experience,

and that he also confirmed the identification of the pills sold by McCormick on

drugs.com. Moreover, McCormick himself referred to the pills as “Norcos,”

which Detective Thomas recognized as the brand name for pills containing

hydrocodone and acetaminophen. Id. at 19. 1 This evidence was more than

sufficient to prove the identity of the drug that McCormick sold as

hydrocodone. See, e.g., Halsema v. State, 823 N.E.2d 668, 673 n.1 (Ind. 2005)

1 As noted by the State, the actual pills delivered by McCormick were admitted into evidence, as was the entry from drugs.com for acetaminophen and hydrocodone bitartrate, which provided a visual depiction of the pills.

Court of Appeals of Indiana | Memorandum Decision 27A02-1601-CR-88 | August 23, 2016 Page 5 of 6 (holding that testimony of officer trained to identify methamphetamine was

alone sufficient evidence that substance at issue was methamphetamine); Boggs

v. State, 928 N.E.2d 855, 865 (Ind. Ct. App. 2010) (holding that testimony of

officers trained and experienced in identifying drug was alone sufficient

evidence of identity of drug), trans. denied. We conclude that the State presented

sufficient evidence to support McCormick’s conviction. Therefore, we affirm.

[11] Affirmed.

Kirsch, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A02-1601-CR-88 | August 23, 2016 Page 6 of 6