Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any               Jan 22 2015, 6:20 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

DAVID M. JORDAN                                 GREGORY F. ZOELLER
J. CLAYTON MILLER                               Attorney General of Indiana
Jordan Law, LLC
Richmond, Indiana                               ERIC P. BABBS
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MALCOLM L. RUSSELL,                             )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 89A01-1312-CR-563
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE WAYNE SUPERIOR COURT
                        The Honorable Charles K. Todd, Jr., Judge
                             Cause No. 89D01-1111-FA-26



                                     January 22, 2015

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Malcolm Russell appeals his convictions for class A felony Dealing in Cocaine 1

and Class D felony Possession of Marijuana.2 Russell argues that the trial court erred

when it allowed physical evidence of cocaine and marijuana to be admitted into evidence.

He also challenges the sufficiency of the evidence supporting his conviction for dealing

in cocaine. Concluding that the trial court did not err in admitting the cocaine and

marijuana and finding sufficient evidence to support Russell’s conviction, we affirm.

                                           FACTS

          On November 1, 2011, Richmond Police Department Officers Scott Crull and

James Mastriano were patrolling the south side of Indianapolis, searching for a murder

suspect. The officers spotted an individual who appeared to match the description of the

murder suspect driving a red GMC truck. Officer Crull followed the individual, who

appeared nervous and looked over his shoulder at Officer Crull. Officer Mastriano also

followed. At some point, while passing through a construction zone, the individual drove

his truck left of center, crossing the double yellow line.

          Officer Crull then initiated a traffic stop and ordered the individual to exit his

truck and walk towards the officers. The individual complied and was identified as

Russell. The officers detected the smell of marijuana, and one of them asked Russell if

he had been smoking marijuana. Russell answered that he had smoked marijuana about

an hour previously. Officer Mastriano then approached Russell’s truck and noticed that it


1
    Ind. Code § 35-48-4-1.
2
    I.C. § 35-48-4-11.
                                               2
too smelled of marijuana. Officer Mastriano returned to where Russell and Officer Crull

were standing. As he walked back towards the two men, Officer Mastriano noticed that

the pocket of Russell’s sweatshirt was hanging open. When he stood beside Russell,

Officer Mastriano could see inside Russell’s pocket, which contained a clear plastic

baggie holding an off-white substance. Suspecting that the substance was crack cocaine,

Officer Mastriano asked Russell, “[i]s that dope in your pocket[?]” Tr. p. 55-56, 228,

253. Russell removed the plastic baggie from his sweatshirt pocket and handed it to

Officer Mastriano. The baggie was later found to contain crack cocaine.

       Russell was arrested, and a subsequent search revealed 213.5 grams of marijuana

in the bed of the truck, $360 on Russell’s person, and $60 in the truck. The crack cocaine

in the plastic baggie was in “cookie” form and totaled 41.83 grams. The truck was

registered to Russell’s girlfriend, but Russell had been seen by another officer driving a

truck of the same make, model, and year, less than three months earlier. Russell was not

read his Miranda rights. Miranda v. Arizona, 384 U.S. 436 (1966).

       On November 3, 2011, the State charged Russell with class A felony dealing in

cocaine, class C felony possession of cocaine, class D felony possession of marijuana,

and class D felony dealing in marijuana. The State also alleged that Russell was a

habitual offender.

       Russell filed a motion to suppress, and on October 3, 2013, the trial court issued

an order suppressing certain statements made by Russell, but denying the suppression of

the physical evidence: the cocaine and marijuana.

                                            3
      Russell’s two-day jury trial began on October 29, 2013, and, on October 30, 2013,

the jury found him guilty as charged. In a bifurcated hearing held outside the presence of

the jury, Russell admitted to being a habitual substance offender. A sentencing hearing

was held on December 3, 2013. The trial court vacated the convictions for possession of

cocaine and dealing in marijuana. It sentenced Russell to thirty-five years for the dealing

in cocaine conviction, with an additional five years for the habitual offender

enhancement, and it sentenced Russell to two years for possession of marijuana. The

sentences were ordered to run concurrently for an aggregate sentence of forty years.

Russell now appeals.

                            DISCUSSION AND DECISION

      Russell argues that the trial court erred when it admitted the cocaine and marijuana

into evidence. He maintains that both were physical evidence inextricably bound to a

statement unlawfully obtained and, as such, should have been suppressed. At the outset,

we note that Russell frames the issue as whether the trial court erred by denying his

motion to suppress. This Court has determined that unless a defendant seeks an

interlocutory appeal, “the issue is more appropriately framed as whether the trial court

abused its discretion by admitting evidence at trial.” Washington v. State, 784 N.E.2d

584, 587 (Ind. Ct. App. 2003).

      This distinction is significant as it determines the standard of review on appeal.

When considering the denial of a motion to suppress, this Court does not reweigh the

evidence and considers conflicting evidence most favorable to the trial court's ruling.

                                            4
Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). However, this Court also

considers the uncontested evidence favorable to the defendant. Id. Conversely, when

reviewing the admissibility of evidence, we will reverse only when a trial court abused its

discretion. Id. An abuse of discretion occurs when a decision is clearly against the logic

and effect of the facts and circumstances before the court. Id. Accordingly, unless the

defendant pursues an interlocutory appeal, permitting us to review a denial of a motion to

suppress, we may not consider the uncontested evidence favorable to the defendant. Id.

Here, Russell did not seek an interlocutory appeal of the trial court’s denial of his motion

to suppress. Therefore, the issue is whether the trial court erred by admitting the cocaine

and marijuana into evidence.

       The trial court suppressed certain statements Russell made during the custodial

interrogation due to the officer’s failure to provide Russell with Miranda warnings, but

Russell argues that the trial court erred when it did not also suppress the cocaine and

marijuana as the physical fruits of those statements. Miranda, 384 U.S. 436. To support

this contention, Russell relies on State v. Linck, 708 N.E.2d 60 (Ind. Ct. App. 1999). In

Linck, a panel of this Court held that physical evidence that is inextricably bound to a

defendant’s statements obtained in violation of Miranda is required to be suppressed as

fruit of the poisonous tree. Id. at 66. However, in our holding in Linck, we noted that

the United States Supreme Court had not yet addressed this issue. Id.

       In the interim, the United States Supreme Court has addressed this issue. In

United States v. Patane, 542 U.S. 630, 633-24, it held that failure to give a suspect

                                             5
Miranda warnings does not require suppression of the physical fruits of a suspect’s

unwarned but voluntary statements. Furthermore, in Hirshey v. State, 852 N.E.2d 1008,

1015 (Ind. Ct. App. 2006), this Court recognized that the physical fruit of a statement

obtained in violation of Miranda need not be suppressed. We held that, “Miranda only

requires suppression of statements, not physical evidence. Hirshey has cited no cases

indicating that the Indiana Constitution requires a different result.” Id. (internal citations

omitted).     See also Delatorre v. State, 903 N.E.2d 506, 508 (Ind. Ct. App. 2009)

(“Moreover, we note that even if Delatorre’s statement had been obtained in violation of

Miranda, the gun would not have to be suppressed.”). Therefore, we find that the trial

court did not err in admitting the cocaine and marijuana into evidence.

        Russell also maintains that there is not enough evidence to support his conviction

for dealing in cocaine.3 When reviewing challenges to the sufficiency of the evidence,

we do not reweigh the evidence or judge the credibility of the witnesses. Bond v. State,

925 N.E.2d 773, 781 (Ind. Ct. App. 2010), trans. denied. Rather, we consider only the

evidence most favorable to the verdict and the reasonable inferences drawn therefrom,

and we will affirm if the evidence and those inferences constitute substantial evidence of

probative value to support the verdict.               Id.    Reversal is appropriate only when a



3
  Russell also argues in his brief that the evidence at trial was insufficient to support an inference that he
possessed marijuana with the intent to deliver. However, the trial court vacated Russell’s conviction for
dealing in marijuana. Appellant’s App. p. 44. While Russell’s conviction for possession of marijuana
stands, he does not argue that there was insufficient evidence to allow a jury to find that he possessed the
marijuana, only that there was insufficient evidence of his intent to deliver it, and, therefore, we need not
address his argument.
                                                      6
reasonable trier of fact would not be able to form inferences as to each material element

of the offense. Id.

       With regard to dealing in cocaine, Russell argues that there was insufficient

evidence to allow the jury to determine that Russell intended to deliver the cocaine to any

person. In order to prove the dealing in cocaine conviction, the State was required to

prove that Russell possessed the cocaine with the intent to 1) manufacture, 2) finance the

manufacture of, 3) deliver, or 4) finance the delivery of the cocaine. Ind. Code § 35-48-

4-1(a)(2). Russell does not deny that he possessed the cocaine; he argues only that there

was not sufficient evidence to show intent to deliver.

       As intent is a mental state, absent an admission, the trier of fact must resort to

reasonable inferences based upon an examination of the surrounding circumstances to

determine whether, from the person’s conduct and the natural consequences thereof, a

showing or inference of intent to commit that conduct exists. Stokes v. State, 801 N.E.2d

1263, 1272 (Ind. Ct. App. 2004). Upon appellate review, such evidence does not have to

overcome every reasonable hypothesis of innocence but need only generate a reasonable

inference of guilt. Id. Possession of a large quantity of drugs, money, plastic bags, and

other paraphernalia is circumstantial evidence of intent to deliver. Wilson v. State, 754

N.E.2d 950, 957 (Ind. Ct. App. 2001).         Furthermore, the more narcotics a person

possesses, the stronger the inference that he intended to deliver it and not consume it

personally. Id.



                                             7
       Here, Russell was in possession of 41.83 grams of cocaine. Tr. p. 202. At trial,

Officer Crull testified that, in his experience, cocaine users consumed about one to three

grams of cocaine in a twenty-four-hour period and a gram of cocaine costs approximately

$100. Id. at 141-42. Thus, the jury could infer that the amount of cocaine Russell

possessed was more than the amount typically possessed for personal use. Furthermore,

the jury heard testimony regarding the shape and condition of the cocaine. Officer

Mastriano testified that the cocaine in Russell’s possession was in the form of “cookies.”

Id. p. 228. This indicated that the cocaine had been mixed with another element and

water and then cooked. Id. Officer Mastriano testified that the cocaine in Russell’s

possession was still wet, and that cocaine that has been mixed into cookie form will

eventually harden. Id. at 229. Officer James Branum also testified, explaining that

“cookies” are “a wholesale way of packaging [cocaine]” and “typically that will get cut

up or broke[n] up and sold out in a retail fashion.” Id. at 287-68. We find that a

reasonable jury could conclude, based on the above evidence, that Russell possessed the

cocaine with the intent to deliver.

       The judgment of the trial court is affirmed.

MAY, J., and BARNES, J., concur.




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