      MEMORANDUM DECISION
                                                                              FILED
      Pursuant to Ind. Appellate Rule 65(D),                             Jun 29 2018, 6:36 am

      this Memorandum Decision shall not be                                   CLERK
      regarded as precedent or cited before any                           Indiana Supreme Court
                                                                             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
      R. Patrick Magrath                                       Curtis T. Hill, Jr.
      Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
      Madison, Indiana
                                                               Lyubov Gore
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Robert L. Moore,                                         June 29, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A01-1711-CR-2767
              v.                                               Appeal from the Dearborn
                                                               Superior Court
      State of Indiana,                                        The Honorable Jonathan N.
      Appellee-Plaintiff.                                      Cleary, Judge
                                                               Trial Court Cause No.
                                                               15D01-1605-F4-0026



      Mathias, Judge.

[1]   Robert L. Moore (“Moore”) was found guilty in the Dearborn Superior Court

      of Level 4 felony conspiracy to commit dealing in a narcotic drug weighing at

      least one gram, Level 5 felony dealing in a narcotic drug, and was adjudicated
      Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018        Page 1 of 10
      an habitual offender. The trial court sentenced Moore to an aggregate term of

      twenty-eight years executed in the Department of Correction (“DOC”). Moore

      appeals and raises the following issues, which we restate as:


              I. Whether the State presented sufficient evidence to support
              Moore’s conviction for dealing in a narcotic drug; and


              II. Whether the State presented sufficient evidence to establish
              that Moore conspired to deal at least one gram of a narcotic drug.


[2]   We affirm in part, reverse in part and remand for proceedings consistent with

      this opinion.


                                 Facts and Procedural History
[3]   On May 13, 2016, Trevor Adkins (“Adkins”) was arrested on an outstanding

      warrant for possession of heroin in Dearborn County, Indiana. Adkins

      volunteered to contact drug dealers he had purchased from in the past to assist

      police officers who conduct controlled drug buys.


[4]   Later that same day, Adkins voluntarily contacted a heroin dealer who was

      later identified as Kevin Sanders (“Sanders”). The Greendale Police

      Department orchestrated the logistics of the controlled buy, and Adkins relayed

      that information to Sanders. Adkins and Sanders agreed to meet at Party at

      Trav’s Fireworks (“Trav’s”).


[5]   Officer Dustin Hatfield (“Officer Hatfield”) drove Adkins to Trav’s in his

      personal vehicle, a blue Ford F-150 (“Ford”). Prior to arriving at Trav’s, officers


      Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018   Page 2 of 10
      searched the Ford to ensure that there were no illegal substances or other

      contraband in the vehicle. The officers also conducted a pat-down search of

      Adkins to “make sure he had no money or contraband on his person[.]” Tr.

      Vol. I, p. 83.


[6]   Upon arriving at Trav’s, the officer transporting Adkins requested that the meet-

      up location be changed “due to officer safety” because “it was dark, the lighting

      [at Trav’s] was poor[.]” Id. at 25. Adkins asked Sanders to meet him at

      Ameristop’s parking lot, which shared a parking lot with Trav’s but had better

      lighting. Sanders called Atkins on the way to Ameristop and informed Adkins

      that he was lost and needed to stop and get gas. Adkins agreed to meet Sanders

      at a Shell Gas Station which was approximately two-tenths of a mile from the

      Ameristop. Id. at 28. Sanders told Adkins to look for a white Camaro.


[7]   Officer Hatfield “observed only one white [Camaro] in the parking lot[,]” and

      he parked his truck directly in front of the Camaro. Id. at 30. He was able to see

      the driver and passenger in the Camaro, and Adkins identified the passenger as

      Sanders. Before Adkins exited the Ford, he and Officer Hatfield watched

      Sanders climb into the back seat of the Camaro. Adkins then approached the

      Camaro, entered the vehicle, and sat in the front passenger seat. Officer

      Hatfield had a clear view of Adkins and the driver, who was later identified as

      Moore. The officer saw Moore give Adkins an unidentifiable object and

      watched Adkins hand Moore the $200 buy money. As they had planned,

      Adkins signaled to Officer Hatfield when the transaction was complete.



      Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018   Page 3 of 10
       Thereafter, Adkins gave Officer Hatfield a clear plastic bag containing a white

       substance that was later identified as fentanyl.


[8]    Three officers approached the Camaro after Adkins purchased the fentanyl

       from Moore. As Officer Hatfield removed Moore from the driver’s seat, the

       money Adkins gave to Moore fell from his lap. Sanders and Moore were

       immediately arrested, and the officers searched the vehicle. During the vehicle

       search, the officers found a rock-like substance wrapped in brown paper in the

       backseat.


[9]    The two substances were submitted to a testing lab, and both were identified as

       fentanyl. The clear bag of fentanyl weighed 0.76 gram, and the rock-like

       substance contained 0.25 gram of fentanyl. The aggregate weight of fentanyl

       found in Moore’s possession was 1.01 grams. On May 16, 2016, the State

       charged Moore with Level 4 felony conspiracy to commit dealing in a narcotic

       weighing at least one gram, and Level 5 felony dealing in a narcotic drug. The

       State also alleged that Moore is an habitual offender.


[10]   On October 5, 2017, a two-day bench trial was held. The chemist who

       performed the preliminary and conclusive testing testified that there was a

       margin of error of ±0.02 gram per each sample of fentanyl. Tr. Vol. I, p. 180.

       The chemist agreed with the trial court that “if you [took] the total net weight

       you would [] actually be somewhere then between” 0.97 to 1.05 grams. Id. at

       185. Moore’s counsel argued that because of the margin of error, the evidence

       was insufficient to prove a weight of at least one gram. Id. at 227.


       Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018   Page 4 of 10
[11]   The court disagreed and found Moore guilty of Level 4 felony conspiracy to

       deal a narcotic drug weighing at least one gram and Level 5 felony dealing in a

       narcotic drug, and found that Moore is an habitual offender. At Moore’s

       sentencing hearing on October 25, 2017, the court considered Moore’s criminal

       history an aggravating factor. The court found as a mitigating factor Moore’s

       medical conditions, specifically, his significant, chronic cardiac and vascular

       complications. The trial court sentenced Moore to serve an aggregate term of

       twenty-eight years executed in the DOC; specifically, the court sentenced

       Moore to serve a concurrent term of ten years for the Level 4 felony conspiracy

       to commit dealing in a narcotic drug weighing at least one gram, and five years

       for the Level 5 felony dealing in a narcotic drug. For the habitual offender

       adjudication, Moore’s sentence was enhanced by eighteen years. Moore now

       appeals.


                                      Discussion and Decision
[12]   Moore argues that the State presented insufficient evidence to support his

       convictions for dealing in a narcotic and conspiracy to commit dealing in a

       narcotic drug weighing at least one gram. When considering a challenge to the

       sufficiency of evidence to support a conviction, we respect the factfinder’s

       exclusive province to weigh conflicting evidence, and we therefore neither

       reweigh the evidence nor judge witness credibility. McHenry v. State, 820 N.E.2d

       124, 126 (Ind. 2005). We consider only the probative evidence and reasonable

       inferences supporting the judgment, and “must affirm ‘if the probative evidence

       and reasonable inferences drawn from the evidence could have allowed a

       Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018   Page 5 of 10
       reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.’”

       Id. (quoting Tobar v. State, 740 N.E.2d 109, 111–12 (Ind. 2000)).


                                    I. Sufficient Evidence of Dealing

[13]   To convict Moore of Level 5 felony dealing in a narcotic drug, the State was

       required to prove beyond a reasonable doubt that Moore possessed fentanyl

       with intent to deliver. See Ind. Code § 35-48-4-1; Appellant’s App. Vol. II, p.

       125. Here, Moore contends that the State failed to provide sufficient evidence to

       prove that he “agreed to or participated in the sale or distribution of a narcotic.”

       Appellant’s Br. at 12. Specifically, Moore argues that Adkins arranged to

       purchase the fentanyl through Sanders, and only Sanders occupied the backseat

       where the brown rock-like substance (later identified as fentanyl) was found.

       Thus, Moore claims that the State proved that only Sanders possessed the

       fentanyl.


[14]   Moore ignores Officer Hatfield’s testimony that he saw Adkins hand Moore

       $200 and then watched Moore hand an item to Adkins. It is reasonable to infer

       that Moore gave Adkins the clear plastic bag that contained 0.76 gram of

       fentanyl. Adkins then signaled to Officer Hatfield that the transaction was

       complete. Further, upon removing Moore from the Camaro, Office Hatfield

       saw the “buy money” fall from Moore’s lap. This evidence establishes that

       although Adkins arranged to purchase heroin from Sanders, Moore was an

       active participant in the drug deal.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018   Page 6 of 10
[15]   Moreover, Moore constructively possessed both the clear bag of fentanyl and

       the fentanyl found in the backseat. A conviction for possession of a controlled

       substance may rest upon proof of either actual or constructive possession. Britt

       v. State, 810 N.E.2d 1077, 1082 (Ind. Ct. App. 2004). Evidence of constructive

       possession is sufficient where the State proves that the defendant had both the

       intent and capability to maintain dominion and control over the contraband.

       Hardister v. State, 849 N.E.2d 563, 573 (Ind. 2006). “A substance can be

       possessed jointly by the defendant and another without any showing that the

       defendant had actual physical control thereof.” Godar v. State, 643 N.E.2d 12,

       14 (Ind. Ct. App. 1994), trans. denied.


[16]   The evidence established that Moore had the intent and capability to maintain

       control and dominion over the fentanyl. Although the State did not prove that

       Moore owned the Camaro, he drove the car from Ohio to Lawrenceburg,

       Indiana, and had a possessory interest in the vehicle as the driver. And our

       supreme court has explained that “proof of a possessory interest in the premises

       in which the illegal drugs are found is adequate to show the capability to

       maintain control and dominion over the items in question.” Davenport v. State,

       464 N.E.2d 1302, 1307 (Ind. 1984), cert. denied; see also State v. Emry, 753 N.E.2d

       19, 22 (Ind. Ct. App. 2001). Furthermore, Moore’s participation in the

       controlled buy established his knowledge and possession of the fentanyl.


[17]   Moore’s claim that he merely agreed to give Sanders a ride is simply a request

       to reweigh the evidence and credibility of the witnesses, which we will not do.

       McHenry v. State, 820 N.E.2d at 126. For all of these reasons, we conclude that

       Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018   Page 7 of 10
       the State presented sufficient evidence to prove that Moore committed Level 5

       felony dealing in a narcotic drug.


                       II. Sufficient Evidence of the Weight of the Fentanyl

[18]   To convict Moore of Level 4 felony conspiracy to commit dealing in a narcotic

       drug, the State was required to prove beyond a reasonable doubt that Moore

       agreed with another person to commit dealing in a narcotic, and that he or the

       person he agreed with took an overt act in furtherance of the conspiracy to

       deliver at least one gram of fentanyl.1 See Ind. Code §§ 35-41-5-2; 35-48-4-1; see

       also Appellant’s App. Vol. II, p. 14. Moore argues that the State failed to prove

       beyond a reasonable doubt that the aggregate weight of the drugs was at least

       one gram because the State’s own expert testified “there was reasonable doubt

       as to the aggregate weight.”2 Appellant’s Br. at 14.


[19]   In Halsema v. State, 823 N.E.2d 668, 674 (Ind. 2005) our supreme court held

       that the State may establish the weight element of a drug offense in one of two

       ways: (1) by offering evidence of the actual, measured weight of the drugs, or

       (2) by demonstrating that the quantity of the drugs is so large as to permit a




       1
        Indiana Code Section 35-48-4-1 provides that dealing in a narcotic drug is a Level 5 felony, except as
       provided in subsections (b) through (e). The pertinent exception here is subsection (c), which provides that
       “the offense is a Level 4 felony if: (1) the amount of the drug involved is at least one (1) gram but less than
       five (5) grams[.]”
       2
        Moore also argues that the drugs found in the backseat of the car should not have been included in the total
       weight used to convict him. Appellant’s Br. at 13–14. But since we conclude that the State has failed to prove
       beyond a reasonable doubt that the aggregate weight of the fentanyl was at least one gram, we will not
       address this issue.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018                 Page 8 of 10
       reasonable inference that the element of the weight has been established.3 More

       recently, the court reiterated that “only direct evidence, not circumstantial

       evidence, may sustain a weight enhancement.” Buelna v. State, 20 N.E.3d 137,

       148 (Ind. 2014).


[20]   Here, the State offered testimony from a chemist who testified that the two

       packages of fentanyl had an aggregate weight of 1.01 grams. Tr. Vol. I, p. 185.

       However, the chemist also testified that there is a margin of error of ±0.02

       grams per each sample. Id. at 180. Therefore, based on the expert testimony, the

       precise aggregate weight of the fentanyl is between 0.97 and 1.05 grams.4 The

       State presented circumstantial evidence that Moore knew he was delivering one

       gram because Adkins agreed to purchase one gram for $200, but circumstantial

       evidence is not sufficient to sustain a weight enhancement. See Buelna, 20 N.E.

       3d at 137. Therefore, the State failed to present evidence to prove beyond a

       reasonable doubt that the aggregate weight of the fentanyl was at least one

       gram. See Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (stating we will affirm

       the conviction, unless no reasonable fact-finder could conclude the elements of

       the crime were proven beyond a reasonable doubt). For these reasons, we find




       3
         Neither party argues that the quantity of drugs is so large as to permit a reasonable inference to establish the
       element of weight.
       4
        During trial, the chemist referenced hand-written notes, and counsel stated these “hand written notes that
       are finalized in a report” were provided to defense counsel. Tr. Vol. I, p. 167. However, we note that the
       chemist’s final report was not submitted as part of the record before us.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018                 Page 9 of 10
       that the evidence was insufficient to support Moore’s Level 4 felony conviction

       for conspiracy to commit dealing in a narcotic drug weighing at least one gram.


                                                   Conclusion
[21]   Under these facts and circumstances, we conclude that the evidence is sufficient

       to support Moore’s conviction for Level 5 felony dealing in a narcotic drug. But

       with regard to the conspiracy charge, we conclude that the State failed to prove

       beyond a reasonable doubt that the weight of the fentanyl was at least one

       gram. Therefore, we remand this case to the trial court with instructions to

       enter judgment for conspiracy to commit dealing in a narcotic drug as a Level 5

       felony, and to impose a new sentence accordingly.5


[22]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and May, J., concur.




       5
         Because we reverse and remand for resentencing, we will not address Moore’s claim that his sentence is
       inappropriate in light of the nature of the offense and his character.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1711-CR-2767 | June 29, 2018           Page 10 of 10
