MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                          Mar 12 2019, 10:07 am

court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David M. Payne                                          Curtis T. Hill, Jr.
Ryan & Payne                                            Attorney General of Indiana
Marion, Indiana
                                                        Sierra A. Murray
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Martin Morales,                                         March 12, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2230
        v.                                              Appeal from the Grant Superior
                                                        Court
State of Indiana,                                       The Honorable Jeffrey D. Todd,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        27D01-1706-F2-12



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019               Page 1 of 11
                               Case Summary and Issues
[1]   Following a jury trial, Martin Morales was convicted of two counts of dealing

      in methamphetamine, a Level 3 felony and a Level 5 felony. The trial court

      imposed an aggregate sentence of twelve years to be served at the Indiana

      Department of Correction. On appeal, Martin raises two issues for our review:

      (1) whether the State presented sufficient evidence to sustain Morales’

      conviction of dealing in methamphetamine, a Level 3 felony, and (2) whether

      the State presented sufficient evidence to sustain Morales’ conviction of dealing

      in methamphetamine, a Level 5 felony. Concluding the State presented

      sufficient evidence on both counts, we affirm.



                            Facts and Procedural History
[2]   On June 23, 2017, the Grant County J.E.A.N. (Joint Effort Against Narcotics)

      team was conducting surveillance of a rural area when they observed the

      occupants of a van engage a male driving a moped in a suspected drug deal.

      Police later identified the driver of the moped as Morales. See Transcript at

      106-07, 126. Police conducted a traffic stop of the van and one of its

      passengers, M.W., was found to be in possession of methamphetamine.


[3]   M.W. informed police that he had purchased the methamphetamine from an

      individual he knew simply as “Clown.” Tr. at 95. M.W. later identified

      “Clown” as Morales at trial. See id. Pursuant to an agreement to avoid

      prosecution by acting as a confidential informant, M.W. contacted Morales and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019   Page 2 of 11
      arranged to purchase additional methamphetamine that evening. Police

      provided M.W. with $120 in marked currency and both audio and video

      recording devices. Detective Josh Zigler, a member of the J.E.A.N. team,

      drove M.W. to a location near where police had conducted surveillance earlier

      that the day.


[4]   As Detective Zigler and M.W. arrived at the predetermined location, Detective

      Zigler saw Morales, whom he recognized from prior police encounters,

      standing by the side of the road attempting to get their attention. Morales

      instructed Detective Zigler to pull onto a property consisting of a trailer, a small

      bus, and a garage, and to park in the yard in front of the trailer. M.W. exited

      the vehicle and walked with Morales out of the sight of Detective Zigler. After

      completing the purchase, M.W. returned to the vehicle with 0.96 grams of a

      substance later confirmed to be methamphetamine. Detective Zigler and M.W.

      then left the property and police requested a search warrant.


[5]   While waiting on a search warrant to be issued for the property, police observed

      a vehicle approach the trailer and park in the yard. The vehicle’s passenger, a

      woman later identified as Lanelle Ralston, briefly entered the trailer and

      returned to the vehicle. Police conducted a traffic stop on the vehicle as it

      attempted to leave the area and Ralston was found to be in possession of

      methamphetamine. Ralston stated that she had purchased the

      methamphetamine from Shannon Hall and had watched her weigh it on a scale

      inside the trailer. Soon thereafter, police executed a search warrant on the

      property. Morales and Hall were found in the living room of the trailer where

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019   Page 3 of 11
      they were both taken into custody. A search of Morales’ person revealed $572,

      $120 of which was later identified as the marked currency from M.W. See

      Exhibits, Volume 3 at 21, Exhibit 13.


[6]   Police located a “black zipper type bag” containing a glass jar in the master

      bedroom of the trailer. Tr. at 112. Inside the glass jar, 9.86 grams of

      methamphetamine were divided into four plastic bags. Police also found 0.27

      grams of methamphetamine on top of a nearby dresser. The search of the

      bedroom also revealed scales; plastic baggies, some of which were torn into

      smaller pieces consistent with common drug dealing techniques; and a spoon,

      knife, and an “aluminum foil boat which is used to smoke methamphetamine.”

      Id. at 160. Police found a glass smoking pipe and several additional scales in

      the living room.


[7]   Hall and Morales were transported to the Grant County Jail. Morales agreed to

      be interviewed by Detective Zigler and, following a Miranda warning, Morales

      admitted to using and possessing methamphetamine and that he sometimes

      sold methamphetamine to support his use. See Exhibits, Vol. 3 at 24, Exhibit

      16; Tr. at 60. Detective Zigler had worn a backwards hat during the controlled

      buy and when he put his hat on backwards during the interview, Morales

      stated, “you were in that black truck.” Id; Tr. at 61.


[8]   On June 29, 2017, the State charged Morales with Count I, dealing in

      methamphetamine, a Level 2 felony, which requires possession with the intent

      to deliver at least ten grams of methamphetamine. See Ind. Code § 35-48-4-


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019   Page 4 of 11
       1.1(a)(2), (e)(1). Morales was also charged with Counts II and III, dealing in

       methamphetamine, both Level 4 felonies, which require knowingly or

       intentionally delivering at least one gram, but less than five grams, of

       methamphetamine. See Ind. Code § 35-48-4-1.1(a)(1), (c)(1). On July 24, 2018,

       the State dismissed Count III and amended Count II to a Level 5 felony, which

       requires knowingly or intentionally delivering methamphetamine, but does not

       require a specific amount. See Ind. Code § 35-48-4-1.1(a)(1).


[9]    The case proceeded to a trial on July 30, 2018. On August 1, a jury found

       Morales guilty of dealing methamphetamine as a Level 3 felony, a lesser

       included offense of Count I requiring possession with intent to deliver at least

       five grams but less than ten grams of methamphetamine. See Ind. Code § 35-48-

       4-1.1(a)(2), (d)(1). The jury also found Morales guilty of Count II, dealing

       methamphetamine as a Level 5 felony. On August 30, the trial court sentenced

       Morales to twelve years at the Indiana Department of Correction for the Level

       3 felony and four years for the Level 5 felony, to be served concurrently.

       Morales now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[10]           When reviewing the sufficiency of the evidence needed to
               support a criminal conviction, we neither reweigh the evidence
               nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003,
               1005 (Ind. 2009). “We consider only the evidence supporting the
               judgment and any reasonable inferences that can be drawn from

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019   Page 5 of 11
               such evidence.” Id. We will affirm if there is substantial
               evidence of probative value such that a reasonable trier of fact
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied. The

       evidence need not overcome every hypothesis of innocence; rather, the

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

       support the verdict.” Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007).


                               II. Sufficiency of the Evidence
                      A. Count I: Dealing in Methamphetamine,
                                  a Level 3 Felony
[11]   First, Morales challenges his conviction of dealing in methamphetamine, a

       Level 3 felony, contending only that the State failed to present sufficient

       evidence to prove that he possessed the methamphetamine found in the

       bedroom of the trailer. See Appellant’s Brief at 14 (“The element being

       challenged under Issue #1 is whether Morales possessed the methamphetamine

       found in the bedroom of the trailer.”)


[12]   Indiana Code section 35-48-4-1.1 provides:


               (a) A person who:

                       (1) knowingly or intentionally:

                                (A) delivers; or

                                (B) finances the delivery of;


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019   Page 6 of 11
                                methamphetamine, pure or adulterated; or

                       (2) possesses, with intent to:

                                (A) deliver; or

                                (B) finance the delivery of;

                                methamphetamine, pure or adulterated;

               commits dealing in methamphetamine, a Level 5 felony, except
               as provided in subsections (b) through (e).

               ***

               (d) The offense is a Level 3 felony if:

                       (1) the amount of the drug involved is at least five (5)
                       grams but less than ten (10) grams; or

                       (2) the amount of the drug involved is at least one (1) gram
                       but less than five (5) grams and an enhancing circumstance
                       applies.


[13]   A conviction for a drug offense may be supported by actual or constructive

       possession. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on

       reh’g, 685 N.E.2d 698 (Ind. 1997). Where, as here, the State seeks to prove a

       defendant possessed contraband prior to its discovery, the State utilizes the

       theory of constructive possession. Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct.

       App. 2018), trans. denied. Constructive possession involves actual knowledge of

       the presence of the contraband along with the intent and capability to maintain

       dominion and control over it. Washington v. State, 902 N.E.2d 280, 288 (Ind.

       Ct. App. 2009), trans. denied. Furthermore:


               In cases where the defendant has exclusive possession over the
               premises on which the contraband is found, an inference is

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019   Page 7 of 11
               permitted that the defendant knew of its presence and was
               capable of controlling it. When possession is nonexclusive,
               however, additional circumstances must be present to support the
               inference that the defendant intended to maintain dominion and
               control over the contraband and that the defendant had actual
               knowledge of its presence and illegal character. Such additional
               circumstances include, but are not limited to, the following: (1)
               incriminating statements by the defendant, (2) attempted flight or
               furtive gestures, (3) location of substances like drugs in settings
               that suggest manufacturing, (4) proximity of the contraband to
               the defendant, (5) location of the contraband within the
               defendant’s plain view, and (6) the mingling of the contraband
               with other items owned by the defendant.


       Id. (citations omitted). Because Morales’ possession of the trailer was non-

       exclusive, we must consider whether the State presented evidence of additional

       circumstances sufficient to support Morales’ conviction under a theory of

       constructive possession. We conclude that it did.


[14]   First, Morales made incriminating statements during the police interview

       following his arrest in the form of admitting to using and possessing

       methamphetamine and that he sometimes sold methamphetamine to support

       his use. See Tr. at 60; Exhibits, Vol. 3 at 24, Exhibit 16. Morales also stated

       that he recognized Detective Zigler from the controlled buy. Second, Morales

       became “visibly agitated” as police entered the trailer prompting an officer to

       disregard Hall in order to first detain Morales. Tr. at 132. Third, police

       discovered most of the methamphetamine divided into four separate baggies

       along with scales and additional plastic baggies, some of which were torn into

       smaller pieces consistent with common drug dealing techniques. This evidence

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019   Page 8 of 11
       is sufficient to demonstrate a drug manufacturing setting. See Ind. Code § 35-

       48-1-18(1)(A) (defining the manufacture of a controlled substance in relevant

       part as “the production, preparation, propagation, compounding, conversion,

       or processing of a controlled substance, either directly or indirectly by

       extraction from substances of natural origin . . . and includes any packaging or

       repackaging of the substance”) (emphasis added). And fourth, although Morales

       was detained in the living room of the trailer and methamphetamine was found

       in the master bedroom, given the small size of the trailer, Morales was still in

       close proximity to the methamphetamine and in even closer proximity to

       paraphernalia, such as a glass smoking pipe and several additional scales found

       in the living room.


[15]   Beyond presenting at least some evidence of four of the six examples of

       additional circumstances from Washington listed above, the State presented

       other evidence on which the jury could have reasonably relied regarding

       constructive possession. See 902 N.E.2d at 288. In particular, Morales was

       arrested on the same property and in close physical and temporal proximity to

       the location of the controlled buy, from which Morales was still in possession of

       the marked currency, and the bedroom was the only location on the property

       where methamphetamine was found. Such evidence supports a reasonable

       inference that the small amount of methamphetamine sold to the confidential

       informant was derived from the larger amount of methamphetamine found in a

       drug manufacturing setting and separated into four individual plastic bags.

       And, despite evidence that Hall also sold methamphetamine that same evening,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019   Page 9 of 11
       Detective Zigler explained that it is common for people to share stashes of

       drugs. Tr. at 85. We conclude that the totality of this additional evidence was

       sufficient to support a conviction under a theory of constructive possession.


                     B. Count II: Dealing in Methamphetamine,
                                  a Level 5 Felony
[16]   Next, Morales challenges his conviction of dealing in methamphetamine, a

       Level 5 felony, again alleging the State failed to present sufficient evidence to

       sustain his conviction. To the extent we can discern Morales’ argument,

       Morales’ asserts that because the identity of the seller could not be reliably

       determined from police audio and video recordings of the controlled buy, the

       State therefore failed to satisfy its burden of proof as to each element of the

       crime. See Appellant’s Br. at 23.


[17]   In Steelman v. State, the defendant had contacted a confidential informant and

       informed her that he had a quarter pound of marijuana for sale. 486 N.E.2d

       523 (Ind. 1985). The confidential informant notified police and met with the

       defendant inside his trailer where he sold her the quarter pound of marijuana

       for $120. Despite the fact that audio of the transaction was “ninety percent

       inaudible; and . . . erased[,]” our supreme court held the evidence was “more

       than sufficient to support this conviction.” Id. at 524, 525.


[18]   As Morales himself admits, he was identified by both M.W. and Detective

       Zigler as the individual who participated in the controlled buy and he was

       subsequently taken into custody in possession of the $120 of marked currency.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019   Page 10 of 11
       See Appellant’s Br. at 23. Regardless of whether his identity could be reliably

       determined from audio and video records of the controlled buy, we conclude

       this evidence was sufficient to support his conviction.



                                              Conclusion
[19]   For the reasons set forth above, we conclude there was substantial evidence of

       probative value such that a reasonable trier of fact could have concluded

       Morales was guilty beyond a reasonable doubt of both counts of dealing in

       methamphetamine. We therefore affirm.


[20]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2230 | March 12, 2019   Page 11 of 11
