MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                           Feb 15 2019, 9:06 am
the defense of res judicata, collateral
                                                                            CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Derick W. Steele                                         Curtis T. Hill, Jr.
Raquet, Vandenbosch & Steele                             Attorney General of Indiana
Kokomo, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Roberts,                                         February 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1321
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                         Trial Court Cause No.
                                                         34D01-1611-F2-1153



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1321 | February 15, 2019               Page 1 of 7
                                          Case Summary
[1]   In an exchange of text messages from October 21, 2016, through October 29,

      2016, Jeffery Roberts agreed to sell Olivia Windlow a total of 5.7 grams of

      heroin. The State charged Roberts with Level 2 felony conspiracy to commit

      dealing in a narcotic drug and alleged him to be a habitual offender. On April 6,

      2018, a jury found Roberts guilty as charged, and he was sentenced to fifty

      years of incarceration. Roberts contends that (1) the evidence was insufficient to

      sustain his conviction, (2) the trial court invaded the province of the jury, and

      (3) the trial court erred by denying the admission of Windlow’s jail records.

      Because we disagree, we affirm.



                            Facts and Procedural History
[2]   Between October 21, 2016, through October 29, 2016, Roberts agreed, in an

      exchange of text messages, to sell Windlow a total of 5.7 grams of heroin. On

      three occasions during that time, Mark McNew accompanied Windlow to

      collect the heroin and gave her money to purchase his share. Once at the

      meeting location, Windlow would exit McNew’s vehicle, and she and Roberts

      would enter Roberts’s vehicle where he dealt her heroin. Upon completion of

      the drug transactions, Windlow and McNew would leave and divide the heroin

      up accordingly. On October 29, 2016, Windlow was found dead on her

      bathroom floor, the result of a drug overdose. Police discovered a package

      containing a powdery substance lying on the bathroom sink and a syringe in



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1321 | February 15, 2019   Page 2 of 7
      Windlow’s hand. An autopsy confirmed heroin toxicity as Windlow’s cause of

      death.


[3]   On November 3, 2016, the State charged Roberts with Level 2 felony dealing in

      a narcotic drug and alleged him to be a habitual offender. The State amended

      the Level 2 felony dealing in a narcotic drug charge to Level 2 felony

      conspiracy to commit dealing in a narcotic drug and added charges of Level 4

      felony dealing in narcotic drug and Level 5 felony reckless homicide. On April

      6, 2018, a jury trial was held, at which the State sought an enhanced penalty

      based on Roberts’s prior conviction in addition to the amended charges. The

      jury found Roberts guilty as charged, except for the Level 4 felony dealing in

      narcotic drug and Level 5 felony reckless homicide charges, which were

      dismissed by the State after jury deadlock. On May 24, 2018, the trial court

      sentenced Roberts to an aggregate sentence of fifty years of incarceration.



                                 Discussion and Decision
                               I. Sufficiency of the Evidence
[4]   Roberts contends that the State produced insufficient evidence to support his

      conviction for Level 2 felony conspiracy to commit dealing in a narcotic drug.

      Specifically, Roberts contends that the evidence was insufficient because the

      State failed to show the actual measured weight of the heroin or demonstrate

      that the quantity of the heroin was so large as to permit a reasonable inference

      that the element of weight had been established. When reviewing the

      sufficiency of evidence to support a conviction, we consider only probative
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1321 | February 15, 2019   Page 3 of 7
      evidence and reasonable inferences supporting the factfinder’s decision. Young

      v. State, 973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans. denied. It is the role

      of the factfinder, not ours, to assess witness credibility and weigh the evidence.

      Id. We will affirm a conviction unless “no reasonable fact-finder could find the

      elements of the crime proven beyond a reasonable doubt.” Id. A person

      commits Level 2 felony dealing in a narcotic drug if the person knowingly or

      intentionally delivered heroin and the amount of heroin involved was at least

      five grams but less than ten grams and an enhancing circumstance applied

      (“Level 2 felony dealing”). Indiana Code § 35-48-4-1(e)(2); Ind. Code § 35-48-2-

      4(c). A prior conviction for dealing in a controlled substance qualifies as an

      enhancing circumstance. Ind. Code § 35-48-1-16.5(1). In this case, the State did

      not charge Roberts with Level 2 felony dealing but, rather, with Level 2 felony

      conspiracy to commit dealing in a narcotic drug. Thus, to convict Roberts, the

      State was required to establish that Roberts intended to and agreed with

      Windlow to commit Level 2 felony dealing and either Roberts or Windlow

      performed an overt act in furtherance of the agreement. Ind. Code § 35-41-5-2.

      The State was also required to prove that Roberts had a prior conviction for

      dealing in a controlled substance.


[5]   The State produced ample evidence to establish that Roberts committed Level 2

      felony conspiracy to commit dealing in a narcotic drug. Officer Cody Rayls

      testified that he performed an extraction report of text messages exchanged

      between Roberts and Windlow, which revealed that from October 21, 2016,

      through October 29, 2016, Roberts agreed to sell Windlow a total of 5.7 grams


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1321 | February 15, 2019   Page 4 of 7
      of heroin and said report was admitted into evidence. Moreover, McNew

      testified to having driven Windlow to the meeting location and observing

      Roberts and Windlow enter Roberts’s vehicle in which he dealt her heroin. This

      evidence establishes that Roberts had the requisite intent, agreed to deal heroin

      to Windlow, and that both parties performed an overt act in the furtherance of

      their agreement. Last, Officer Brad Reed testified that Roberts had a prior

      conviction for dealing in a controlled substance. The evidence is therefore

      sufficient to sustain Roberts’s conviction. Turning to Roberts’s specific

      contention, the State was not required to show the actual measured weight or

      demonstrate a reasonable inference as to the weight of the heroin because this is

      not required to establish Level 2 felony conspiracy to commit dealing in a

      narcotic drug. It would have been required if the State had charged Roberts

      with Level 2 felony dealing, but it did not. Therefore, Roberts has failed to

      establish that the State presented insufficient evidence.


                                     II. Province of the Jury
[6]   Roberts contends that the trial court invaded the jury’s province by commenting

      on the weight that should have been given to McNew’s Cass County plea

      agreement in the presence of the jury. “[U]nless the court can say that, as a

      matter of law, the evidence is insufficient to sustain a verdict, the matter of

      credibility and weight are the exclusive province of the jury.” Taylor v. State, 278

      N.E.2d 273, 275 (Ind. 1972). After cross-examining McNew about his Cass

      County plea agreement, Roberts moved to admit it into evidence, and the State

      objected. During a discussion with counsel for both parties the trial court stated

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1321 | February 15, 2019   Page 5 of 7
              I think it’s pretty clear that he got no benefit in Cass County for
              testifying in this case. I think, well, I don’t think, I know, I agree
              with Mr. Byal’s opinion that they are marginally, very marginally
              relevant to show whether he got a maximum sentence or not for
              the purpose of impeachment. So we will show that Defendant’s
              C and D are admitted.


      Tr. Vol. III p. 70–71. Roberts does not claim nor does the record indicate that

      the jury ever heard the trial court’s comments. Regardless, the trial court’s

      statements did not amount to an invasion of the jury’s province but, rather, an

      explanation to the parties that the plea agreement was not being admitted as

      substantive evidence because it was not relevant to this Howard County case.

      The trial court, however, did allow the plea agreement to be admitted into

      evidence for impeachment purposes because Roberts’s trial counsel elicited

      information about the sentence McNew received in Cass County during prior

      cross-examination. There is no indication that the jury heard the trial court’s

      comments; but, even if it did, the comments did not invade the province of the

      jury. Therefore, Roberts has failed to establish that the trial court’s statements

      invaded the province of the jury.


                                 III. Windlow’s Jail Record
[7]   Roberts contends that the trial court erred by denying the admission of

      Windlow’s jail records. We review a trial court’s decision to admit or exclude

      evidence for an abuse of discretion. Baker v. State, 997 N.E.2d 67, 70 (Ind. Ct.

      App. 2013). “An abuse of discretion occurs if a trial court’s decision is clearly

      against the logic and effect of the facts and circumstances before the court.” Id.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1321 | February 15, 2019   Page 6 of 7
      Specifically, Roberts seemingly argues that he intended to use Windlow’s jail

      records to show that McNew’s testimony that Windlow was clean for 120 days

      prior to her overdose and that he spent time with her in the summer of 2016

      were false or inconsistent. However, these matters are collateral at best. Roberts

      had the opportunity to cross-examine McNew on these statements but was not

      entitled to impeach his testimony with extrinsic evidence. See Kien v. State, 782

      N.E.2d 398, 409 (Ind. Ct. App. 2003) (“A party may inquire into a collateral

      matter on cross-examination. However, the questioner is bound by the answer

      received and may not impeach the witness with extrinsic evidence unless the

      evidence would be independently admissible”), trans. denied. Therefore, we

      conclude that the trial court did not abuse its discretion by denying the

      admittance of Windlow’s jail records.


[8]   The judgment of the trial court is affirmed.


      Bailey, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1321 | February 15, 2019   Page 7 of 7
