MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    May 08 2020, 8:59 am
regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian Demarko Walton,                                    May 8, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2529
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1809-F2-18



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2529 | May 8, 2020                       Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Brian Walton (Walton), appeals his conviction for

      conspiracy to deal in a narcotic drug, a Level 2 felony, Ind. Code §§ 35-48-4-

      1(a)(2), -(e)(2); 35-41-5-2.


[2]   We affirm.


                                                   ISSUE
[3]   Walton presents the court with one issue, which we restate as: Whether the

      State proved beyond a reasonable doubt that he conspired to deal in a narcotic

      drug.


                      FACTS AND PROCEDURAL HISTORY
[4]   In August of 2018, Walton was dealing heroin and fentanyl in South Bend,

      Indiana. Walton spent time almost every day at his friend Hakim Smith’s

      (Smith) apartment at the Laurelwood Apartment complex in South Bend. The

      South Bend Police Department (SBPD) became aware of the possibility that

      Walton was dealing illegal substances when he began using a telephone number

      that had been previously used by a drug distribution ring already known to

      police. The SBPD began to investigate Walton and monitor his activities.


[5]   On August 23, 2018, the SBPD made a controlled buy of .38 grams of a

      heroin/fentanyl mix from Walton. After the controlled buy, Walton drove to

      Smith’s apartment complex, parked in front of the entrance to Smith’s

      apartment, and entered the building. Subsequently, the SBPD acquired a so-

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2529 | May 8, 2020   Page 2 of 9
      called “ping warrant” that permitted them to track the movement of Walton’s

      cell phone.


[6]   On August 29, 2018, the SBPD made another controlled buy of .37 grams of a

      heroin/fentanyl mixture from Walton. On September 12, 2018, the SBPD

      made a third controlled buy of .30 grams of fentanyl from Walton. Through a

      social media platform, the SBPD became aware that Walton planned to travel

      to Chicago to purchase more illegal substances to sell in South Bend. On

      September 13, 2018, Walton’s cell phone was tracked making a round trip from

      South Bend to Chicago, eventually returning to Smith’s apartment.


[7]   On September 13, 2018, officers of the SBPD Drug Investigations Unit

      procured and served a search warrant on Smith’s home. On the kitchen

      counter of Smith’s small apartment was a plate containing 34.69 grams of

      fentanyl and a bag containing several smaller bags of fentanyl amounting to

      9.06 grams. Razor blades, a scale, small ziplock bags, baggies, sleeping pills

      commonly mixed with illegal substances, a pill grinder, and latex gloves were

      also found in the kitchen. When officers entered Smith’s apartment, Walton

      was in the living room, three to four steps away from the fentanyl in the

      kitchen. Smith was coming out of a back bedroom when officers encountered

      him. A cell phone found on Walton had the number used to arrange the

      controlled buys that had taken place on August 23, August 29, and September

      12, 2018.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2529 | May 8, 2020   Page 3 of 9
[8]   After the search warrant was served, Walton was taken into custody and was

      questioned by officers in a video-recorded interview. Walton told the officers

      that Smith was the only person he knew in South Bend. Walton initially denied

      knowing that Smith was dealing drugs but later in the interview told the officers

      that Smith would call someone in Chicago and then go up there to get drugs.

      When asked “when you go up to Chicago and pick up that dope what’s the

      most dope you’ve seen at that guy’s house” Walton responded “I only went up

      there with him a couple of times” and “it was never in a house.” (Exh. 30,

      14:23-14:45). Walton admitted that he and Smith had driven to Chicago earlier

      in the day and returned immediately to South Bend. An officer asked Walton,

      “So you didn’t go with him when he picked up his dope?” Walton responded,

      “No, no! What I’m saying was when I was with him he gotten his stuff he

      dropped me off at my house…” (Exh. 30, 17:02-17:30). Walton and the

      officers discussed the possibility of him making controlled buys for law

      enforcement from the Chicago drug source. Walton informed the officers,

      “You gotta understand. I came in on something that was already going. They

      had set rates, set pays . . .” (Exh. 30, 29:57-30:09). Walton told the officers

      that he had learned how the existing drug operation worked from seeing other

      people do it and that he “just went with the rotation, which was foolish of me,

      but I did it.” (Exh. 30, 30:36-53). Walton never told the officers that he had

      procured the drugs he sold during the controlled buys from a supplier in South

      Bend named Doc.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2529 | May 8, 2020   Page 4 of 9
[9]    On September 19, 2018, the State filed an Information, charging Walton with

       three Counts of Level 5 felony dealing in a narcotic drug, one Count of Level 4

       felony dealing in a narcotic drug, one Count of Level 2 felony dealing in a

       narcotic drug, and one Count of Level 2 felony conspiracy to commit dealing in

       a narcotic drug. On June 18, 2019, the trial court convened Walton’s three-day

       jury trial. Prior to the commencement of trial, the State dismissed the Level 4

       felony dealing charge. Officers of the SBPD Drug Investigations Unit testified

       that the amounts of fentanyl found in Smith’s apartment were not amounts

       typically possessed by users and that the razor blades, the scale, small ziplock

       bags and baggies, sleeping pills, pill grinder, and latex gloves are items used to

       measure and package drugs for sale. Walton testified on his own behalf.

       Walton denied that he had driven to Chicago on September 13, 2018, with

       Smith or that he had bought drugs in Chicago with Smith. Walton stated that

       he had procured his heroin and fentanyl from a source in South Bend who went

       by the name Doc. Walton acknowledged saying in this police interview that he

       had joined a drug operation that was already set up, but he denied that Smith

       was part of that operation.


[10]   The jury found Walton guilty of the three Level 5 felony dealing charges and

       the conspiracy charge but not-guilty of the Level 2 felony dealing charge. On

       July 18, 2019, the trial court sentenced Walton to three years for each of the

       Level 5 felony dealing convictions and to seventeen and one-half years for the

       conspiracy to deal conviction, all to be served concurrently.


[11]   Walton now appeals. Additional facts will be provided as necessary.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2529 | May 8, 2020   Page 5 of 9
                               DISCUSSION AND DECISION
                                             I. Standard of Review

[12]   Walton challenges the evidence supporting his conviction for conspiracy to deal

       in a narcotic drug. It is well-established that when we review the sufficiency of

       the evidence to support a conviction, we consider only the probative evidence

       and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d

       144, 146 (Ind. 2007). It is not our role as an appellate court to assess witness

       credibility or to weigh the evidence. Id. We will affirm the conviction unless

       no reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt. Id.


                                        II. Sufficiency of the Evidence

[13]   The State alleged that Walton committed conspiracy to deal in a narcotic drug

       as follows:


               On or about September l3, 2018 in St. Joseph County, State of
               Indiana, [Walton], with the intent to commit Dealing in a
               Narcotic Drug, did agree with one or more other persons,
               including [Smith], to commit the crime of Dealing in a Narcotic
               Drug in an amount of at least ten (10) grams, and [Walton] or
               one of those other persons did commit an overt act in furtherance
               of the agreement, to wit: acquired possession of a narcotic drug.


       (Appellant’s App. Vol. II, p. 167). In order to procure a conviction for a

       conspiracy crime, the State must allege and prove that either the person, or the

       person with whom he agreed to commit a felony, performed an overt act in

       furtherance of the agreement. I.C. § 35-41-5-2(a)-(b). Thus, in order to prove

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2529 | May 8, 2020   Page 6 of 9
       the offense as charged, the State was required to prove that Walton agreed with

       one or more persons, including Smith, to deal a narcotic drug and that Walton

       or one of those other persons acquired possession of a narcotic drug in

       furtherance of that agreement.


[14]   Walton argues that the evidence did not support the existence of a conspiracy to

       deal narcotics because the State merely produced evidence that he was

       associated with Smith and not that they had an agreement to deal in narcotics,

       as alleged in the Information. In order to make its case for a conspiracy, the

       State was not required to prove the existence of a formal, explicit agreement.

       Wallace v. State, 722 N.E.2d 910, 913 (Ind. Ct. App. 2000). “The agreement can

       be inferred from circumstantial evidence, including overt acts of the parties in

       furtherance of the criminal act.” Id. The evidence supports a conspiracy

       conviction if it shows that the minds of the parties met “understandingly to

       bring about an intelligent and deliberate agreement to commit the offense.”

       Simmons v. State, 828 N.E.2d 449, 454 (Ind. Ct. App. 2005) (quotation omitted).

       Like the other elements of a conspiracy, the State may prove the existence of an

       agreement with direct or circumstantial evidence. Id. However, evidence of a

       mere association with a co-conspirator will not support the existence of an

       agreement and a conviction for conspiracy. Id.


[15]   Here, the evidence showed much more than a mere association amongst

       Walton, Smith, and their co-conspirators. Walton and Smith had grown up

       together, were together almost every day, and were both dealing drugs in South

       Bend. Walton was using the same phone number law enforcement had

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2529 | May 8, 2020   Page 7 of 9
       previously linked to a drug distribution network, and he admitted in his police

       interview that he had joined up with an ongoing, established drug dealing

       operation. Walton, who law enforcement knew from social media was

       planning to go to Chicago to purchase drugs, also admitted that he and Smith

       had driven to Chicago earlier in the day on September 13, 2018, so that Smith

       could purchase drugs, which Walton stated he had done with Smith a “couple

       of times” in the past. (Exh. 30, 14:23-14:45). Although Walton denied at trial

       that Smith was part of the drug-dealing operation Walton had joined, in its role

       as fact-finder, the jury was free to reject that denial. This is especially true in

       light of Walton’s alternate explanation for the source of the drugs he dealt

       during the controlled buys, a supplier named Doc in South Bend who Walton

       had never mentioned during his police interview. Evidence that Walton had

       joined an existing drug dealing operation that included Smith and that he and

       Smith went to Chicago on September 13, 2018, to purchase drugs supported the

       jury’s reasonable inference that Walton was part of an on-going agreement

       among the members of the drug-dealing operation and Smith to deal drugs and

       that he and Smith performed an overt act, acquiring possession of drugs in

       Chicago, in furtherance of that agreement.


[16]   Walton also argues that the State did not prove that he constructively possessed

       the fentanyl found during the execution of the search warrant on September 13,

       2018. This argument misses the mark because the overt act the State charged in

       the conspiracy Count was not Walton’s possession of the fentanyl but his act of

       acquiring possession of drugs, which we have already determined was


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2529 | May 8, 2020   Page 8 of 9
       supported by the evidence produced at trial that he and Smith purchased drugs

       in Chicago on September 13, 2018. Therefore, we do not address Walton’s

       constructive possession argument further.


                                             CONCLUSION
[17]   Based on the foregoing, we conclude that the State proved beyond a reasonable

       doubt that Walton agreed with his co-conspirators to deal in narcotics and that

       he performed an overt act in furtherance of that agreement.


[18]   Affirmed.


[19]   Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2529 | May 8, 2020   Page 9 of 9
