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
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                          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
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              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
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