MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Dec 29 2017, 8:31 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Nicole A. Zelin                                         Curtis T. Hill, Jr.
Pritzke & Davis, LLP                                    Attorney General of Indiana
Greenfield, Indiana                                     Angela Sanchez
                                                        Lee M. Stoy, Jr.
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher M. Beaty,                                   December 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        30A05-1706-CR-1366
        v.                                              Appeal from the Hancock Circuit
                                                        Court
State of Indiana,                                       The Honorable Richard D. Culver,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        30C01-1701-F4-204



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A05-1706-CR-1366 | December 29, 2017            Page 1 of 7
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Christopher M. Beaty (Beaty), appeals his conviction for

      dealing in methamphetamine, a Level 4 felony, Ind. Code § 35-48-4-

      1.1(a)(1),(c)(1); possession of methamphetamine, a Level 6 felony, I.C. § 35-48-

      4-6.1(a); and visiting a common nuisance, a Class B misdemeanor, I.C. § 35-45-

      1-5(a)(3),(b).


[2]   We reverse and remand.


                                                   ISSUE
[3]   Beaty raises two issues on appeal, one of which we find dispositive and which

      we restate as follows: Whether the State presented sufficient evidence to

      support Beaty’s conviction for dealing in methamphetamine as a Level 4 felony.


                       FACTS AND PROCEDURAL HISTORY
[4]   On January 25, 2017, Sarah Gustin (Gustin) was introduced to Beaty through a

      mutual friend. They spent time together the next day, and on January 27, 2017,

      Gustin drove Beaty to the outskirts of Greenfield, Hancock County, Indiana, in

      order to meet one of his friends regarding “[a] [m]eth deal.” (Tr. p. 81). The

      friend, identified simply as “Taylor,” got into Gustin’s vehicle, and the trio

      drove to the southside of Indianapolis “[t]o pick up the [m]eth.” (Tr. pp. 82,

      84). Gustin parked her vehicle in the parking lot of a pharmacy, and Beaty

      instructed her to wait there as he exited the vehicle and walked further down

      the street. Twenty minutes later, Beaty returned to the vehicle with “a rock of

      [m]eth.” (Tr. p. 86). Beaty “split [the rock] in half” and gave one half—i.e.,
      Court of Appeals of Indiana | Memorandum Decision 30A05-1706-CR-1366 | December 29, 2017   Page 2 of 7
      supposedly a gram of methamphetamine—to Taylor in exchange for $100.00.

      (Tr. p. 86). Beaty kept the other half. Gustin drove Taylor home, then she and

      Beaty drove to a house located at 375 Mount Street in Greenfield. Once again,

      Gustin waited in her vehicle while Beaty went inside, purportedly so that he

      could “weigh out the amount [of methamphetamine] that he had kept.” (Tr. p.

      88).


[5]   At that time, it just so happened that the Hancock County Sheriff’s Department

      and the Greenfield Police Department planned to execute a narcotics search

      warrant at the Mount Street house. Approximately five or six people, including

      Beaty, were inside at the time the officers entered and were placed under arrest.

      An officer searched Beaty and recovered “a gray piece of plastic which

      contained [a] crystal type substance which later field tested positive for

      [methamphetamine].” (Tr. p. 124). Laboratory testing subsequently confirmed

      the substance was methamphetamine, weighing “1.01 grams plus or minus .02

      gram to a 95% degree of confidence.” (Tr. p. 181). Outside, police officers

      spoke with Gustin and, with her consent, searched her vehicle, where they

      retrieved Beaty’s cell phone. The content of the messages downloaded from

      Beaty’s phone indicated that he was involved in procuring various types of

      drugs for multiple people.


[6]   On January 30, 2017, the State filed an Information, charging Beaty with Count

      I, dealing in methamphetamine, a Level 4 felony, I.C. § 35-48-4-1.1(a)(1),(c)(1);

      Count II, possession of methamphetamine, a Level 6 felony, I.C. § 35-48-4-

      6.1(a); and Count III, visiting a common nuisance, a Class B misdemeanor,

      Court of Appeals of Indiana | Memorandum Decision 30A05-1706-CR-1366 | December 29, 2017   Page 3 of 7
      I.C. § 35-45-1-5(a)(3),(b). On March 9, 2017, Beaty informed the trial court that

      he desired to proceed pro se, and he demanded a speedy trial. The trial court

      directed Beaty’s previously-appointed attorney to act as standby counsel. On

      May 9, 2017, the trial court conducted a jury trial. At the close of the evidence,

      the jury returned guilty verdicts on all Counts. On June 2, 2017, the trial court

      held a sentencing hearing. The trial court sentenced Beaty to ten years for

      dealing in methamphetamine, two and one-half years for possession of

      methamphetamine, and 180 days for visiting a common nuisance—all to be

      executed concurrently in the Indiana Department of Correction.


[7]   Beaty now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   Beaty claims that the State presented insufficient evidence to support his

      conviction for dealing in methamphetamine as a Level 4 felony. Our standard

      of reviewing claims of sufficiency of the evidence is well settled. Our court

      considers only the probative evidence and reasonable inferences supporting the

      verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied.

      We do not reweigh evidence or judge the credibility of witnesses. Id. “We will

      affirm the conviction unless no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt.” Id. The evidence need not

      “overcome every reasonable hypothesis of innocence.” Id. Rather, [t]he

      evidence is sufficient if an inference may reasonably be drawn from it to support

      the verdict.” Id.


      Court of Appeals of Indiana | Memorandum Decision 30A05-1706-CR-1366 | December 29, 2017   Page 4 of 7
[9]    In order to prove the offense as charged, the State was required to establish that

       Beaty knowingly or intentionally delivered methamphetamine, and that “the

       amount of the drug involved [was] at last one (1) gram but less than five (5)

       grams.” I.C. § 35-48-4-1.1(a)(1)(C),(c)(1). Here, Beaty does not challenge that

       he delivered the methamphetamine to Taylor; rather, his sole contention is that

       the State failed to establish that the weight of the delivered methamphetamine

       was between one and five grams to warrant a Level 4 felony conviction.

       Dealing less than a gram of methamphetamine is chargeable as a Level 5

       felony. I.C. § 35-48-4-1.1(a)(1)(C).


[10]   Because the weight of the drugs enhanced the dealing offense from a Level 5

       felony to a Level 4 felony, it is an essential element that the State was required

       to prove beyond a reasonable doubt. Halsema v. State, 823 N.E.2d 668, 673

       (Ind. 2005). In order to prove the weight element of a drug or controlled

       substance, “the State must either offer evidence of its actual, measured weight

       or demonstrate that the quantity of the drugs or controlled substances is so large

       as to permit a reasonable inference that the element of weight has been

       established.” Id. at 674. Here, the State presented evidence of the actual,

       measured weight of the methamphetamine found in Beaty’s possession—which

       amounted to 1.01 grams with a margin of error of .02 grams in either direction.


[11]   To establish the weight of the methamphetamine that Beaty delivered to Taylor,

       however, the State relied on evidence indicating that Beaty and Taylor had

       specifically agreed to exchange one gram of methamphetamine for $100.00—

       the typical rate for a gram of methamphetamine—and that Beaty had “split [the

       Court of Appeals of Indiana | Memorandum Decision 30A05-1706-CR-1366 | December 29, 2017   Page 5 of 7
       methamphetamine rock] in half,” keeping slightly over one gram in his

       possession. (Tr. p. 86). The State does not contend that there was such a large

       quantity of methamphetamine that the weight could be established by inference.

       Instead, the State relies on caselaw indicating that the weight of drugs may be

       established from testimony by “those who regularly use or deal in the substance

       or developed an acute ability to assess the weight of the drugs in which they

       deal” as well as from law enforcement officers “who regularly investigate

       methamphetamine crimes to establish the weight of the final product.” Buelna

       v. State, 20 N.E.3d 137, 147-48 (Ind. 2014) (internal quotation marks omitted).

       We are unpersuaded by the State’s arguments.


[12]   “[O]nly direct evidence, not circumstantial evidence, may sustain a weight

       enhancement.” Id. at 148. Here, there is no evidence that any law enforcement

       officer observed or handled the methamphetamine that was transferred to

       Taylor to be able to testify as to its weight based on experience. Also, Beaty

       never testified regarding the weight of the methamphetamine, and the fact that

       Beaty went to the house on Mount Street in order to weigh his remaining

       methamphetamine is indicative of his lack of “an acute ability to assess the

       weight” based on his frequent use. Id. at 147. There is no evidence as to the

       methamphetamine rock’s weight prior to Beaty splitting it with Taylor, and

       there is absolutely nothing in the record to support a finding that Beaty so

       precisely split the rock in half that the portion delivered to Taylor was identical

       in weight to the 1.01 grams retained by Beaty. Thus, we conclude that the State




       Court of Appeals of Indiana | Memorandum Decision 30A05-1706-CR-1366 | December 29, 2017   Page 6 of 7
       failed to meet its burden, and Beaty’s conviction cannot stand. 1 We remand

       this case to the trial court with instructions to enter judgment for dealing in

       methamphetamine as a Level 5 felony and to impose a new sentence

       accordingly. See Halsema, 823 N.E.2d at 675-76 (directing the trial court to

       impose a sentence for lesser charge where weight of drugs was not proven to

       support enhanced charge). 2


                                               CONCLUSION
[13]   Based on the foregoing, we conclude that the State presented insufficient

       evidence to support Beaty’s Level 4 felony conviction for dealing in

       methamphetamine. We remand this matter to the trial court to enter judgment

       and resentence as a Level 5 felony.


[14]   Reversed and remanded.


[15]   Baker, J. and Brown, J. concur




       1
         We decline the State’s footnote request to elevate Beaty’s Level 6 felony conviction for possessing
       methamphetamine to a Level 4 felony for possessing methamphetamine with an intent to deliver (i.e., dealing
       between one and five grams, I.C. § 35-48-4-1.1(a)(2)(C),(c)). Whether Beaty intended to deliver the
       methamphetamine that he retained in his possession is an issue that should have been charged and presented
       to the jury for a determination.
       2
          Because we reverse and remand for resentencing, we will not address Beaty’s other claim that his sentence
       is inappropriate in light of the nature of the offense and his character.

       Court of Appeals of Indiana | Memorandum Decision 30A05-1706-CR-1366 | December 29, 2017          Page 7 of 7
