MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Jun 18 2019, 7:00 am
court except for the purpose of establishing
the defense of res judicata, collateral                                         CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael P. Quirk                                         Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles C. Clock,                                        June 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2855
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas A.
Appellee-Plaintiff.                                      Cannon, Jr., Judge
                                                         Trial Court Cause No.
                                                         18C05-1804-F4-17



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019                      Page 1 of 7
[1]   Charles C. Clock appeals his convictions by jury of Level 4 felony dealing in
                                  1                                                   2
      methamphetamine and Level 4 felony dealing in a narcotic drug. One issue is

      raised on appeal: did the State present sufficient evidence to support a finding

      of guilt? We affirm.


[2]   The facts favorable to the conviction are that the Muncie Police Narcotics Unit

      (“MPNU”) entered into an agreement with a confidential informant (“CI”) to

      conduct two controlled buys from Clock after receiving information that he

      might be dealing in methamphetamine. The CI first arranged to purchase

      methamphetamine from Clock on January 22, 2018 at Clock’s residence.

      MPNU Officers, Sergeant Bret Elam and Sergeant Michael Nickens, completed

      pre- and post-buy procedures to be sure that she was not in possession of “any

      controlled substances, money, or weapons.” Tr. Vol. II, p. 10. The officers

      equipped the CI with an audio-video recording device and handed her cash that

      they had previously photocopied to track any sale.


[3]   Sgt. Elam then drove the CI to Clock’s residence. The CI walked straight into

      the residence and addressed Clock by his name, “Chucky.” Id. at 169. Clock

      then sold methamphetamine to the CI for $40 of the photocopied cash. The CI

      returned directly to Sgt. Elam’s car to turn over the recording device, left-over

      photocopied cash, and a baggie containing a substance. The substance was




      1
          Ind. Code § 35-48-4-1.1 (2017).
      2
          Ind. Code § 35-48-4-1 (2017).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019       Page 2 of 7
      later identified as methamphetamine. Upon review of the recording, Sgt.

      Nickens was also able to identify Clock’s voice during the transaction. The

      recording also revealed Clock’s negotiation regarding price and the

      arrangement of a future sale with the CI.


[4]   The second sale took place on February 7, 2018. The officers and the CI

      followed the same controlled buy processes. Clock sold what was later

      confirmed as heroin to the CI for $20 of photocopied cash. Sgt. Nickens both

      auditorily and visually identified Clock, who was wearing a red hoodie, as

      being present. Again, Clock is heard discussing the sale of the drug with the CI.


[5]   About an hour following the second sale, the Muncie Police Department

      conducted a traffic stop on a vehicle being driven by Clock. Officer Joseph

      Winkle made contact with Clock, who wore a red hoodie underneath a jacket.

      Clock was searched and two $20 bills were found on his person. The serial

      number on one of the bills matched the serial number of a bill the CI used in the

      purchase of the heroin. A loaded .22 caliber handgun was also found in Clock’s

      vehicle. Clock was released but was subsequently arrested on March 29, 2018.


[6]   The State charged Clock with three counts: Count I, dealing in

      methamphetamine, as a Level 5 felony; Count II, dealing in a narcotic drug, as

      a Level 5 felony; and Count III, unlawful possession of a firearm by a serious

      violent felon, as a Level 4 felony. A jury trial was held in two phases. In phase

      one, the jury convicted Clock on Counts I and II; and acquitted him of Count

      III. In phase two, the jury found that Clock’s prior convictions for dealing in


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019   Page 3 of 7
      methamphetamine enhanced Counts I and II to Level 4 felonies. The trial

      court then sentenced Clock to an aggregate sentence of six years. This appeal

      followed.


[7]   Clock contends the evidence was insufficient to sustain his convictions of

      dealing in methamphetamine and dealing in a narcotic drug. He does not

      dispute that a CI, working with the MPNU, engaged in two controlled buys

      involving methamphetamine and heroin. Specifically, Clock only claims the

      State did not provide sufficient evidence to prove he was the dealer.


[8]   Our standard of review for challenges to the sufficiency of evidence supporting

      a criminal conviction is well settled.


              When reviewing a claim that the evidence introduced at trial was
              insufficient to support a conviction, we consider only the
              probative evidence and reasonable inferences that support the
              trial court’s finding of guilt. We likewise consider conflicting
              evidence in the light most favorable to the trial court’s finding. It
              is therefore not necessary that the evidence overcome every
              reasonable hypothesis of innocence. Instead, we will affirm the
              conviction unless no reasonable trier of fact could have found the
              elements of the crime beyond a reasonable doubt.


      Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011) (citations omitted). We neither

      reweigh the evidence nor assess the credibility of witnesses when considering a

      challenge of sufficiency. Turner v. State, 953 N.E.2d 1039 (Ind. 2011).


[9]   On Count I, the State charged Clock with dealing in methamphetamine, a

      Level 4 felony. Indiana Code section 35-48-4-1.1(1)(A) states: “(a) A person


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019   Page 4 of 7
       who: (1) knowingly or intentionally: (A) delivers . . . methamphetamine, pure

       or adulterated; . . . commits dealing in methamphetamine.” “Delivery” is

       defined as “(1) an actual or constructive transfer from one [ ] person to another

       of a controlled substance . . . ; or (2) the organizing or supervising of an activity

       described in subdivision (1). Ind. Code § 35-48-1-11 (1990).


[10]   We agree the State has presented sufficient evidence to prove each element of

       the offense beyond a reasonable doubt on Count I. The MPNU began

       investigating Clock after receiving information that he was dealing in controlled

       substances.


[11]   The first controlled buy resulted in the purchase of methamphetamine. The

       officers screened the CI with pre- and post-buy procedures which were much

       more extensive than our courts require in such situations. See, e.g., Vaughn v.

       State, 13 N.E.3d 873 (Ind. Ct. App. 2005) (a pat-down search of the CI or buyer

       is sufficient, and a strip search or complete cavity search is not necessary)

       (citations omitted), trans. denied. Since officers of the narcotics unit could not

       follow the CI into Clock’s residence, she was equipped with a recording device.

       In Vaughn, a conviction based largely on evidence from two controlled buys

       was upheld. The court assuaged concerns of the use of a CI where the

       surveilling officers lost sight of the CI and dealer during the sale. The court

       explained that “proper procedure permitted the jury to reasonably infer that

       Vaughn sold the cocaine to the CI.” 13 N.E.3d at 889. In addition to the

       procedures, the jury was aware the CI was dropped off at Clock’s residence and

       returned directly to MPNU officers with a substance later identified as

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019   Page 5 of 7
       methamphetamine. The CI also returned with $40 less photocopied cash than

       she entered with.


[12]   The recordings made during the sale are also instructive. The CI addressed

       Clock by his name, and an officer recognized Clock’s distinctive voice. Clock is

       heard negotiating a price for the methamphetamine and discussing a future sale

       with the CI. A jury, using the information above, could find beyond a

       reasonable doubt that Clock dealt in methamphetamine.


[13]   On Count II, the State charged Clock with dealing in a narcotic drug, a Level 4

       felony. Indiana Code section 35-48-4-1 states: “(a) A person who: (1)

       knowingly or intentionally . . . (C) delivers . . . cocaine or a narcotic drug, pure

       or adulterated, classified in schedule I or II . . . ; commits dealing in cocaine or

       a narcotic drug.” Delivery is defined the same as above. Ind. Code § 35-48-1-

       11.


[14]   The CI arranged a second controlled buy on February 7, 2018 for the purchase

       of methamphetamine. The same pre- and post-buy procedures were followed

       as in the first controlled purchase; and the CI was again equipped with

       photocopied cash and video recording equipment. The CI entered Clock’s

       residence in the same manner as the first buy. Again, an officer recognized

       Clock’s conspicuous voice negotiating over the type and cost of drugs available

       for sale. When the CI asked Clock to purchase heroin, Clock responded,

       “that’s what it’s there for,” and asked if he could use an old baggie that “already

       had dope in it.” St. Ex. 8.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019   Page 6 of 7
[15]   A properly conducted controlled buy will permit an inference that Clock had

       prior possession of the heroin. Vaughn, 13 N.E.3d at 888. The evidence allows

       for a reasonable conclusion that Clock engaged in the transaction despite the

       actual exchange of heroin for money not being captured on video. However,

       Clock himself was recorded on video during the transaction wearing a red

       hoodie. When Clock was pulled over in a traffic stop later that same evening,

       he was wearing a red hoodie and had one of the photocopied $20 bills on his

       person that matched the serial number of the original. This evidence would

       lead a jury to conclude beyond a reasonable doubt that Clock was dealing in a

       narcotic drug.


[16]   Clock notes other people were present at his residence during the transactions

       and claims one of them could have sold the controlled substances to the CI.

       This claim is ultimately a request to reweigh the evidence to confirm some

       other “hypothesis of innocence,” which we cannot do. Gray, 957 N.E.2d at

       174; see also Turner, 953 N.E.2d at 1059. For the foregoing reasons, we

       conclude that the evidence was sufficient to support the convictions.


[17]   Judgment affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2855 | June 18, 2019   Page 7 of 7
