Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                     Feb 24 2014, 9:36 am
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:

KIMMERLY A. KLEE                                GREGORY F. ZOELLER
Greenwood, Indiana                              Attorney General of Indiana

                                                ANDREW FALK
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

RICHARD WILKINS,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
               vs.                              )        No. 49A05-1306-CR-309
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Steven R. Eichholtz, Judge
                            Cause No. 49G20-1205-FB-36455


                                     FEBRUARY 24, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                   STATEMENT OF THE CASE

          Richard Wilkins (“Wilkins”) appeals his convictions for Class B felony conspiracy

to commit dealing in a narcotic drug1 and Class B felony dealing in a narcotic drug.2

          We affirm in part, reverse in part, and remand with instructions.

                                            ISSUES

      1. Whether Wilkins’ convictions for conspiracy to commit dealing and
         dealing in a narcotic drug violate the Indiana Constitution’s prohibition
         against double jeopardy.

      2. Whether the State produced sufficient evidence to prove beyond a
         reasonable doubt that Wilkins committed conspiracy to commit dealing in a
         narcotic drug and dealing in a narcotic drug.

                                            FACTS

          In April of 2012, Detective Scott Wolfe (“Detective Wolfe”) of the Indianapolis

Metropolitan Police Department (“IMPD”) received information from a confidential

informant that a man named Harry Ferguson (“Ferguson”) was selling drugs from his

apartment. Based on this information, Detective Wolfe and another police officer with

the IMPD, Sergeant Scott Brimer (“Sergeant Brimer”), arranged for the confidential

informant to make a controlled buy from Ferguson.

          On April 25, 2012, Sergeant Brimer parked in the parking lot on the south side of

Ferguson’s apartment building so that he could videotape the transaction. Meanwhile,

the confidential informant, who was with Detective Wolfe, called Ferguson. Ferguson

told the informant that he did not have any drugs available, and the informant responded


1
    Ind. Code §§ 35-48-4-1; 35-41-5-2.
2
    I.C. § 35-48-4-1.
                                                2
that he would try again the next day and that Ferguson should “try to have five of them”

for him. (Tr. 96). After this call, Sergeant Brimer videotaped a silver Cadillac driving

into the parking lot of Ferguson’s apartment building. Wilkins got out of the vehicle and

entered the building. Later, after Wilkins exited the building, the confidential informant

again called Ferguson, and Ferguson told him that he had obtained heroin for him.

       Detective Wolfe searched the confidential informant and his vehicle for drugs,

personal money, and weapons, but did not find any. He also outfitted the informant with

an audio transmitter and gave him “buy money” in the amount of fifty (50) dollars. (Tr.

33). When the informant returned from Ferguson’s apartment, he had five (5) pieces of

foil filled with a powder that later tested positive for heroin. On the audio recording of

the buy, the officers heard Ferguson state, “that’s my dude” in reference to Wilkins. (Tr.

88-89).    Subsequently, Detective Wolfe and Sergeant Brimer conducted additional

controlled buys from Ferguson on May 11, 2012 and May 22, 2012. Both times, the

officers searched the informant before and after the controlled buy, and both times

Ferguson gave the confidential informant five packets of heroin in exchange for fifty (50)

dollars.

       On May 23, 2012, the day after the third controlled buy, Detective Wolfe obtained

a search warrant and searched Ferguson’s apartment. There, he found a “digital scale

with residue” on it, syringes, and a foil packet filled with heroin, among other items. (Tr.

93). During the search, Ferguson admitted to Detective Wolfe that he sold heroin.

       That same day, Officer Luke Schmitt (“Officer Schmitt”) of the IMPD conducted

a traffic stop of Wilkins for failing to use his turn signal and for failing to yield to

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oncoming traffic. During the stop, Officer Schmitt’s canine partner performed an open

air sniff of the vehicle. When the canine gave a positive indication for the presence of

controlled substances, Officer Schmitt searched the vehicle and found a marijuana

“roach” and a blue Mentos container with white residue. (App. 28). Wilkins admitted

that he kept heroin in the Mentos container and that he had snorted it two hours earlier.

When the officers asked if Wilkins knew Ferguson, Wilkins stated that they were friends

and admitted that he sold Ferguson around thirty (30) to forty (40) packets of heroin a

day. The officers arrested Wilkins and, in a search pursuant to the arrest, found $223 in

his front pocket. They identified $20 as money from one of the controlled buys.

      On May 30, 2012, the State filed charges against Ferguson and Wilkins jointly. In

total, it alleged eleven (11) counts, but only the following were against Wilkins: Count I,

Class B felony conspiracy to commit dealing in a narcotic drug; Count II, Class B felony

dealing in a narcotic drug; Count III, Class D felony possession of a narcotic drug; Count

VIII, Class D felony possession of a narcotic drug; and Count IX, Class A misdemeanor

possession of marijuana.

      On April 29, 2013, the trial court held a bench trial for both Ferguson and Wilkins

and found Wilkins guilty of Counts I, II, and III. However, on May 14, 2013, the trial

court held a sentencing hearing and only entered a judgment of conviction against

Wilkins for Counts I and II because it held that Count III, possession of a narcotic drug,

could be included in the other Counts. In total, the trial court sentenced Wilkins to ten

years, with three years executed at the Department of Correction, three years on

community corrections, and the balance of his sentence suspended to probation. Both

                                            4
Counts were ordered to be served concurrently. Wilkins now appeals. We will provide

additional facts as necessary.



                                        DECISION

       Wilkins raises two issues on appeal. First, he argues that the State did not provide

sufficient evidence to prove beyond a reasonable doubt that he committed Class B felony

conspiracy to commit dealing and Class B felony dealing in a narcotic drug. Second, he

argues that his two convictions violate the prohibition against double jeopardy. Because

we find the second issue dispositive as to Wilkins’ Class B felony dealing in a narcotic

drug conviction, we will address Wilkins’ double jeopardy argument first instead of

addressing his arguments in the order that he raises them.

1. Double Jeopardy

       Wilkins claims that his two convictions violate Indiana’s prohibition on double

jeopardy because the same evidence was used to prove both offenses. Article I, Section

14 of the Indiana Constitution provides that “no person shall be put in jeopardy twice for

the same offense.” Two or more offenses “are the ‘same offense’ in violation of Article

I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements

of the challenged crimes or the actual evidence used to convict, the essential elements of

one challenged offense also establish the essential elements of another challenged

offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).

       Because Wilkins claims that the same evidence was used to prove both offenses,

we will focus on the second half of this standard, the actual evidence test. In Richardson,

                                             5
the Supreme Court held that under such an inquiry, we should examine the actual

evidence presented at trial to determine “whether each challenged offense was

established by separate and distinct facts.” Id. at 53. The defendant must demonstrate “a

reasonable possibility that the evidentiary facts used by the fact-finder to establish the

essential elements of one offense may also have been used to establish the essential

elements of a second challenged offense.” Id. There is no prohibition under Indiana law

against convicting a defendant of both conspiracy to commit an offense and the offense

itself. Coleman v. State, 952 N.E.2d 377, 382 (Ind. Ct. App. 2011). However, double

jeopardy rules preclude a conviction for conspiracy and the underlying offense when the

same evidence is used to prove both the overt act committed in furtherance of the

conspiracy and the commission of the underlying crime. Id.

       Under Indiana Code § 35-48-4-1, a person who “knowingly or intentionally . . .

delivers . . . cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II . .

. commits dealing in cocaine or a narcotic drug, a Class B felony.” A person conspires to

commit dealing when that person, “with intent to commit the felony, [] agrees with

another person to commit the felony.” I.C. § 35-41-5-2(a). To prove a conspiracy

charge, the State must “allege and prove that either the person or the person with whom

he agreed performed an overt act in furtherance of the agreement.” I.C. § 35-41-5-2(b).

       The State concedes that Wilkins’ convictions violated Indiana’s double jeopardy

prohibition, and we agree. With respect to the conspiracy charge, the State alleged in its

information that:



                                                6
       Harry Ferguson and Richard Wilkins, on or about between April 24 and
       April 26, 2012, did agree with each other to commit the felony of Dealing
       in a Narcotic Drug, which is to knowingly deliver to a confidential
       informant a narcotic drug, that is: heroin, classified in Schedule I of the
       Indiana Uniform Controlled Substances Act, and Harry Ferguson
       performed the following overt act in furtherance of said agreement:
       delivered heroin to a confidential informant.

(App. 30). Then, with respect to its Class B felony dealing in a narcotic drug charge, the

State alleged:

       Harry Ferguson and Richard Wilkins, on or about between April 24 and
       April 26, 2012, did knowingly deliver to a confidential informant a narcotic
       drug, that is: heroin, classified in Schedule I of the Indiana Uniform
       Controlled Substances Act.

(App. 30). As listed in these charges, it is clear that the State used the evidence of

Wilkins’ delivery of heroin to the confidential informant between April 24 and 26 to

prove both the overt act committed in furtherance of the conspiracy and the commission

of the underlying crime. Accordingly, we conclude that Wilkins’ convictions violated

double jeopardy, and we remand with instructions for the trial court to vacate his

conviction for Class B felony conspiracy to commit dealing in a narcotic drug.

2. Sufficiency of the Evidence

       Next, Wilkins argues that the State did not produce sufficient evidence to prove

beyond a reasonable doubt that he committed either Class B felony dealing in a narcotic

drug or Class B felony conspiracy to commit dealing in a narcotic drug. His primary

contention is that there was no direct evidence of his involvement in the April 24-26 drug

buy or of an agreement with Ferguson to deal heroin.          He does acknowledge the

surveillance video that recorded him in the vicinity of Ferguson’s apartment, but he


                                            7
contends that the videotaped evidence is not sufficient to support an inference that he sold

Ferguson heroin. Also, he argues that his confession that he had sold Ferguson heroin in

the past did not prove that he sold it to him on April 24-April 26, as alleged.

       The standard of review for a sufficiency of the evidence claim is that this Court

should only reverse a conviction when reasonable persons would not be able to form

inferences as to each material element of the offense. Perez v. State, 872 N.E.2d 208,

212-13 (Ind. Ct. App. 2007), trans. denied. We do not reweigh evidence or judge the

credibility of witnesses. Id. at 213. In addition, we only consider the evidence most

favorable to the verdict and the reasonable inferences stemming from that evidence. Id.

Here, we will only consider the sufficiency of the evidence for Wilkins’ dealing in a

narcotic drug conviction as we have already ordered his conspiracy conviction vacated

due to double jeopardy.

       As stated above, a person who “knowingly or intentionally . . . delivers . . .

cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II . . . commits

dealing in cocaine or a narcotic drug, a Class B felony.” I.C. § 35-48-4-1. First, we note

that although Wilkins did not sell to the confidential informant directly, the State charged

that “Harry Ferguson and Richard Wilkins, on or about between April 24 and April 26,

2012, did knowingly deliver to a confidential informant a narcotic drug . . . .” (App. 30)

(emphasis added). Indiana recognizes accomplice liability, which is not a separate crime,

but is a separate basis of liability for the already charged crime. Hampton v. State, 719

N.E.2d 803, 807 (Ind. 1999). Under this theory, one who aids, abets, or assists in a crime

is equally as culpable as the one who commits the actual crime. Id. See also I.C. § 35-41-

                                              8
2-4 (“[a] person who knowingly or intentionally aids, induces or causes another person to

commit an offense commits that offense.”). Accordingly, the State had to prove that

Wilkins aided Ferguson in dealing heroin to the confidential informant.

       We do not find either of Wilkins’ arguments persuasive because there was

additional evidence in the record to prove that he aided Ferguson in dealing heroin

besides the videotape and his confession that he had sold to Ferguson on other occasions.

Specifically, Detective Wolfe testified that before Wilkins arrived and was recorded on

videotape, Ferguson did not have any heroin available to sell, and that after Wilkins left,

Ferguson did. Further, Ferguson stated to the confidential informant “that’s my dude” in

reference to Wilkins, and when Officer Schmitt stopped Wilkins, he discovered that

Wilkins had $20 of the buy money in his pocket. (Tr. 88-89). In light of these factors,

we conclude that the State did produce sufficient evidence that Wilkins committed Class

B felony dealing in a narcotic drug.

       Affirmed in part, reversed in part, and remanded with instructions.

MATHIAS, J., and BRADFORD, J., concur.




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