MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
this Memorandum Decision shall not be                                 Jan 15 2019, 8:32 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie Boots                                            Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
Michael C. Borschel                                      Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

James Hendricks,                                         January 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1036
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable James Snyder,
Appellee-Plaintiff.                                      Master Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1703-F2-8485



Darden, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019               Page 1 of 12
                                            Statement of the Case
[1]   James Hendricks appeals from his convictions of one count of Level 2 felony
                                               1
      dealing in a narcotic drug, and one count of Class A misdemeanor resisting law
                           2
      enforcement. He also challenges his sentence. We affirm.


                                                         Issues
[2]   Hendricks presents the following issues for our review:


                 I.        Did the trial court commit reversible error by convicting
                           Hendricks of dealing a narcotic drug when there was a
                           challenge to the evidence supporting the element of
                           possession?


                 II.       Was Hendricks’ sentence inappropriate in light of the
                           nature of the offense and the character of the offender?


                                    Facts and Procedural History
[3]   Sometime prior to March of 2017, the Indianapolis Metropolitan Police

      Department received information that narcotics were being sold out of a house

      located at 405 South McClure Street in Marion County, Indiana. Thereafter,

      several citizen complaints were made to IMPD about the activities at that same

      home. Officers with the narcotics division conducting surveillance at that




      1
          Ind. Code § 35-48-4-1(a)(1), -(e)(1) (2016).
      2
          Ind. Code § 35-44.1-3-1(a) (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019   Page 2 of 12
      location observed activity at the house that confirmed their suspicions of

      criminal activity there.


[4]   Next, officers with the narcotics division applied for and were granted a search

      warrant for the home in question. Relying on the assistance of the SWAT

      Team, a Flex Team (officers who can stop a vehicle if the target of an

      investigation leaves before the SWAT Team arrives), and other law

      enforcement officers, IMPD officers served the search warrant on the home

      sometime in the early afternoon of March 2, 2017.


[5]   Before conducting the search, the house and the two occupants were secured.

      During the search officers found paraphernalia and narcotics, which included

      methamphetamine, heroin, and cocaine in the house. The two occupants of the

      house were also interviewed. As a result, officers learned that an individual

      would be arriving at the back door of the house “to make a delivery.” Tr. Vol.

      II, p. 65. After learning that information, the officers stationed their vehicles

      away from the home and conducted visual surveillance from nearby. Several

      officers, however, remained hidden inside the house. Detective Steven Spears,

      who was not in his uniform, waited inside for the expected individual to arrive

      at the back doorway of the house. Other officers, who were wearing clothing

      identifying themselves as law enforcement, waited and observed in the detached

      garage.


[6]   Around twenty minutes later, Hendricks arrived at the house in a black Lexus

      and parked the vehicle in the driveway. He exited his vehicle, went to the back


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019   Page 3 of 12
      door of the house, and knocked. Detective Cooper observed that Hendricks

      had a calm demeanor as he approached–“like someone coming to visit a

      house.” Id. at 100. Detective Spears answered the knock at the door and

      invited him in. Upon seeing Detective Spears, Hendricks just looked surprised

      and almost immediately began running away from the back of the house.


[7]   Detective Spears quickly yelled, “Police, police, stop,” and pursued Hendricks.

      Id. at 67. Several officers in identifiable police outerwear, including Detectives

      Garland Cooper and John Wallace, who had been stationed in the garage,

      joined the pursuit and they, along with Detective Jake Tranchant, ordered

      Hendricks to stop. Hendricks, however, continued to run away from the

      officers.


[8]   Hendricks ran past his vehicle, which remained in the driveway. While

      running through the front yard of the house, Hendricks tripped over some

      decorative edging stones, and, according to Detective Cooper, did a “barrel

      roll” and fell down in the yard. Id. at 90. When Hendricks fell, Detective

      Cooper observed a plastic baggie containing a whitish substance fall out of the

      pocket of Hendricks’ hoodie. Hendricks jumped up and resumed running from

      law enforcement. Detective Spears was able to catch up to Hendricks and

      pushed him to the ground. Hendricks continued to resist arrest by crawling to

      the street, but he was handcuffed and taken into custody.


[9]   Detective Tranchant recovered $240.00 from Hendricks’ right pocket of his

      pants. Detective Spears located a digital scale on the ground where Hendricks


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019   Page 4 of 12
       fell and a plastic baggie containing suspected narcotics that had fallen out of

       Hendricks’ hoodie. At the spot where Hendricks fell for the second time before

       being apprehended, officers located a red air freshener can containing a baggie

       with suspected narcotics inside. None of these items were wet, although the

       grass around the items was wet from rain which had previously fallen. Officers

       subsequently testified that these items had not been there thirty minutes earlier

       when they arrived at the house.


[10]   The substances inside the baggies were later tested and found to be 24.0495

       grams of fentanyl and 11.5592 grams of fentanyl, respectively.


[11]   The State charged Hendricks with one count of Level 2 felony dealing in a

       narcotic drug, one count of Level 4 felony possession of a narcotic drug, and

       one count of Class A misdemeanor resisting law enforcement. At the

       conclusion of Hendricks’ jury trial, he was found guilty as charged. For double

       jeopardy reasons, the trial court entered judgment of conviction on only one

       count of Level 2 felony dealing in a narcotic drug and one count of Class A

       misdemeanor resisting law enforcement. The trial court sentenced Hendricks to

       concurrent terms of twenty-five years in the Department of Correction for the

       Level 2 felony, and three hundred sixty-five days for the Class A misdemeanor.

       Those sentences, however, were ordered to be served consecutive to a sentence

       entered in another case. Hendricks now appeals.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019   Page 5 of 12
                                    Discussion and Decision
                                 I. Sufficiency of the Evidence
[12]   Hendricks’ sole challenge to the sufficiency of the evidence is that the State did

       not prove, beyond a reasonable doubt, that he possessed the fentanyl recovered

       by law enforcement and used to support his conviction of Level 2 felony dealing

       in a narcotic drug. Our standard of review, which follows, is well settled.


               When an appeal raises a sufficiency of evidence challenge, we do
               not reweigh the evidence or judge the credibility of witnesses, we
               respect a fact-finder’s exclusive province to weigh conflicting
               evidence. We consider only the probative evidence and the
               reasonable inferences that support the verdict. We will affirm if
               the probative evidence and reasonable inferences drawn from the
               evidence could have allowed a reasonable trier of fact to find the
               defendant guilty beyond a reasonable doubt.


       Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (internal quotations and

       citations omitted).


[13]   “It is therefore not necessary that the evidence ‘overcome’ every reasonable

       hypothesis of innocence.” Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).

       “We will only reverse a conviction when reasonable persons would not be able

       to form inferences as to each material element of the offense.” Griffin v. State,

       945 N.E.2d 781, 783 (Ind. Ct. App. 2011). The testimony of a single

       eyewitness is sufficient to sustain a conviction. Hubbard v. State, 719 N.E.2d

       1219, 1120 (Ind. 1999).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019   Page 6 of 12
[14]   To prove that Hendricks committed dealing in a narcotic drug as a Level 2

       felony, the State was required to show beyond a reasonable doubt that

       Hendricks possessed with the intent to deliver cocaine or a narcotic drug, pure

       or adulterated, classified in schedule I or II, and the amount of the drug was at

       least ten grams. Ind. Code § 35-48-4-1(a)(2), -(e)(1). Fentanyl is a schedule II

       controlled substance. Ind. Code § 35-48-2-6(c) (2015).


[15]   During the trial, testimony from law enforcement officers revealed that an
                                    3
       amount of fentanyl, which previously had not been present near the street in

       the front yard of the address under surveillance, was recovered by law

       enforcement at the spot where Hendricks fell for the second time; and, another

       baggie, which Detective Cooper saw fall from Hendricks’ hoodie as he did a

       barrel roll near the front of the house, was admitted in evidence as State’s

       Exhibit 18. It contained a white substance which was identified and weighed as

       24.0495 grams of fentanyl.


[16]   Alone, Detective Cooper’s testimony that he observed the baggie containing

       24.0495 grams of fentanyl fall from Hendricks’ hoodie was sufficient to sustain

       Hendricks’ conviction. See Hubbard, 719 N.E.2d at 1120. Further, digital scales

       were found in the same area. The baggie containing the fentanyl was dry

       outside even though officers testified about trying to avoid stepping into puddles

       of water from rainy weather during their chase.




       3
           This substance was identified and labeled as State’s Exhibit 19, containing 11.5592 grams of fentanyl.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019                    Page 7 of 12
[17]   In sum, the occupants of the drug house informed law enforcement officers that

       an individual would be arriving at the house to make a delivery. Hendricks

       arrived at the house as indicated, but was startled by the presence of Detective

       Spears, an individual he did not know or expect to be there. After officers

       ordered Hendricks to stop, he continued running and a baggie of fentanyl was

       observed falling out of his hooded sweatshirt as he tripped and did a barrel roll

       in the front yard. Digital scales were also found near that baggie. The baggie

       was dry outside although the grass was wet. At least one officer testified about

       trying to avoid stepping in puddles of water as they chased Hendricks. An

       additional amount of fentanyl was located near the spot where Hendricks fell

       the second time and was apprehended by police. Two hundred and forty

       dollars was recovered from the pocket of Hendricks’ pants. There is sufficient

       evidence that Hendricks possessed at least ten grams of fentanyl with the intent

       to deliver it to the low-level dealers in the house such that his conviction should

       be affirmed.


                                    II. Inappropriate Sentence
[18]   Hendricks argues that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender. The sentencing range for a Level 2

       felony is a fixed term of imprisonment between ten and thirty years with the

       advisory sentence being seventeen and one-half years. Ind. Code § 35-50-2-4.5

       (2013). The sentencing range for a Class A misdemeanor is a fixed term of not

       more than one year of imprisonment. Ind. Code § 35-50-3-2 (1977). Hendricks

       received concurrent sentences of three hundred sixty-five days for the Class A

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019   Page 8 of 12
       misdemeanor conviction and twenty-five years for the Level 2 felony

       conviction. Those sentences were ordered to be served consecutive to a

       sentence imposed in another cause of action.


[19]   Our Supreme Court has stated the following about our role in the appellate

       review of sentences.


               Even where a trial court has not abused its discretion in
               sentencing, the Indiana Constitution authorizes independent
               appellate review and revision of a trial court’s sentencing
               decision. Appellate courts implement this authority through
               Indiana Appellate Rule 7(B), which provides that we may revise
               a sentence if after due consideration of the trial court’s decision
               we find the sentence is inappropriate in light of the nature of the
               offense and the character of the offender.


       Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016) (internal citations and

       quotations omitted). “The defendant bears the burden of persuading the Court

       that [his] sentence is inappropriate.” Phipps, 90 N.E.3d at 1198.


[20]   Case law further instructs that “[s]entencing is principally a discretionary

       function in which the trial court’s judgment should receive considerable

       deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such

       deference should prevail unless overcome by compelling evidence portraying in

       a positive light the nature of the offense (such as accompanied by restraint,

       regard, and lack of brutality) and the defendant’s character (such as substantial

       virtuous traits or persistent examples of good character).” Stephenson v. State, 29

       N.E.3d 111, 122 (Ind. 2015).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019   Page 9 of 12
[21]   “[W]hether we regard a sentence as appropriate at the end of the day turns on

       our sense of the culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other factors that come to light in a given

       case.” Cardwell, 895 N.E.2d at 1224. “The principal role of appellate review

       should be to attempt to leaven the outliers, and identify some guiding principles

       for trial courts and those charged with improvement of the sentencing statutes,

       but not to achieve a perceived ‘correct’ result in each case.” Id. at 1225.


[22]   In light of the nature of his offenses, we observe that Hendricks was on

       supervised release for a federal court conviction for felony possession of a

       weapon when he committed the instant offense–possession of thirty-six grams

       of fentanyl. Although the State was required only to show that Hendricks

       possessed at least ten grams of fentanyl to sustain his conviction, the evidence

       established that he possessed three times that amount, an amount Detective

       Shaffer characterized as commonly attributable to a “mid-level dealer.” Tr.

       Vol. II, p. 174. Hendricks appeared at the drug house to deliver a large quantity

       of drugs to those who could be characterized as low-level drug dealers and/or

       drug addicts. Methamphetamine, heroin, and cocaine were found in the house

       in addition to fentanyl.


[23]   Hendricks ran from police officers, even after being ordered to stop, until he

       was finally apprehended by Detective Spears. Digital scales were found in the

       front yard at the spot where Hendricks first fell. After his apprehension,

       Hendricks was found to be in possession of a large amount of cash–$240.00–a

       reasonable indicator of drug dealing.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019   Page 10 of 12
[24]   Hendricks argues that he should be resentenced to the advisory sentence–three

       years–for a Level 5 felony, based on his self-serving admission that he only

       agreed to deliver .4 grams of fentanyl. Appellant’s Br. p. 15. We are not

       persuaded that his sentence is inappropriate on this ground.


[25]   As for the character of the offender, we observe that Hendricks’ criminal record

       is a poor reflection on his character. Hendricks has six prior arrests, including

       one for murder, and two prior felony convictions. Hendricks was on supervised

       release for a felony conviction in his federal case when he committed the

       offenses related to this appeal.


[26]   Hendricks had a prior membership in a gang known as the Vice Lords and

       continues to associate with members of active gangs. Although Hendricks’

       prior convictions involve acts of violence and crimes involving weapons, his

       current criminal offenses merely appear to be a change in direction of

       criminality in other areas. Hendricks’ past and present criminal history

       demonstrates a continued disregard for law and order in a civilized society.


[27]   Hendricks has been engaged in illegal drug use for almost two decades and has

       refused to take advantage of opportunities for treatment. He admitted he used

       heroin on the date of the instant offenses. Even though not all of those acts

       were reduced to a judgment, a trial court may consider evidence of prior crimes

       to support the finding that the defendant has a history of criminal activity.

       Bailey v. State, 763 N.E.2d 998, 1004 (Ind. 2002). Hendricks has failed to carry

       his burden of persuading us that his sentence is inappropriate on this ground.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019   Page 11 of 12
                                                Conclusion
[28]   Based on the foregoing, we conclude that there was sufficient evidence to

       support the jury’s verdict and that the sentence imposed by the trial court was

       not inappropriate in light of the nature of the offense and the character of the

       offender.


[29]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019   Page 12 of 12
