MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                      Jan 17 2019, 10:18 am
court except for the purpose of establishing
                                                                                    CLERK
the defense of res judicata, collateral                                         Indiana Supreme Court
                                                                                   Court of Appeals
estoppel, or the law of the case.                                                    and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
William T. Myers                                            Curtis T. Hill, Jr.
Grant County Public Defender                                Attorney General of Indiana
Marion, Indiana
                                                            Kelly A. Loy
                                                            Supervising Deputy Attorney
                                                            General
                                                            Indianapolis, Indiana


                                             IN THE
     COURT OF APPEALS OF INDIANA

John Blake Pattison,                                        January 17, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-1595
        v.                                                  Appeal from the Grant Superior
                                                            Court
State of Indiana,                                           The Honorable Jeffrey D. Todd,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause Nos.
                                                            27D01-1704-F3-7
                                                            27D01-1706-F6-3321




1
 Pattison does not raise any issues for appellate review in 27D01-1706-F6-332, therefore, we only address his
contentions in 27D01-1704-F3-7.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1595 | January 17, 2019                        Page 1 of 8
      Bradford, Judge.



                                          Case Summary
[1]   In 2017, Detective Sargent Joshua Zigler was conducting an ongoing

      investigation of John Blake Pattison. In April of 2017, Pattison sold 0.88 grams

      of methamphetamine to Detective Zigler’s confidential informant (“CI”).

      Twelve days later, a search warrant was executed on Pattison’s residence, and

      police discovered, inter alia, approximately 1.2 grams of methamphetamine,

      handguns, digital scales, sandwich baggies and rubber bands, and various drug

      paraphernalia. The State charged Pattison with Level 3 felony dealing in

      methamphetamine, Level 5 felony dealing in methamphetamine, Level 6 felony

      maintaining a common nuisance, and Class C misdemeanor possession of

      paraphernalia. Pattison moved for severance of the Level 5 felony dealing in

      methamphetamine charge, which motion was denied by the trial court. On

      January 30, 2018, a jury found Pattison guilty as charged. Pattison contends

      that the trial court erred by denying severance and that there was insufficient

      evidence to convict him of Level 3 felony dealing in methamphetamine.

      Because we disagree, we affirm.



                            Facts and Procedural History
[2]   In 2017, Detective Zigler, director of the Joint Effort Against Narcotics Team

      Drug Task Force (“JEAN Team”), was conducting an ongoing investigation of

      Pattison. On April 7, 2017, Detective Zigler’s CI completed a controlled buy

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1595 | January 17, 2019   Page 2 of 8
      with Pattison, in which he sold the CI 0.88 grams of methamphetamine for

      $300.


[3]   On April 15, 2017, during a traffic stop, officers placed a GPS tracker on

      Pattison’s vehicle pursuant to a search warrant obtained by Detective Zigler.

      On April 19, 2017, a search warrant was executed at Pattison’s residence. At

      Pattison’s residence, police discovered approximately 1.2 grams of

      methamphetamine, approximately 0.81 grams located inside the residence and

      0.42 grams located in the garage. Police also discovered three handguns, two

      digital scales, two money counters, sandwich baggies and rubber bands, mobile

      phones, surveillance equipment, and various drug paraphernalia. That same

      day, Pattison was arrested at a nearby gas station and during a search of his

      person, police recovered a one-hundred-dollar bill that was used in the April 7,

      2017, controlled buy between Pattison and Detective Zigler’s CI.


[4]   On April 28, 2017, the State charged Pattison with Count I, Level 3 felony

      dealing in methamphetamine; Count II, Level 4 felony dealing in

      methamphetamine; Count III, Level 6 felony maintaining a common nuisance;

      and Count IV, Class C misdemeanor possession of paraphernalia. On October

      11, 2017, the State filed an amended Count II, Level 5 felony dealing in

      methamphetamine. On January 5, 2018, Pattison moved to sever Count II,

      which resulted from the April 7, 2017, controlled buy from Counts I, III, and

      IV, which resulted from the April 19, 2017, search of his residence. On January

      17, 2018, the trial court denied Pattison’s motion, finding that



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1595 | January 17, 2019   Page 3 of 8
              [w]hile the acts allegedly occurred over a period of twelve days,
              the charges arose out of a series of acts which were connected,
              and or detected by police by reason of a continuing surveillance
              of the Defendant. Furthermore, severance as requested by the
              Defendant is not necessary to promote a fair determination of the
              Defendant’s guilt or innocence.


      Appellant’s App. Vol. II p. 12. On January 30, 2018, a jury found Pattison

      guilty as charged. Pattison was sentenced to eight years with three years

      suspended on Count I, two years on Count II, 180 days on Count III, and thirty

      days on Count IV, all of those sentences to be served concurrently.


                                 Discussion and Decision

                                               I. Severance
[5]   Pattison contends that the trial court erred by failing to sever Count II, Level 5

      felony dealing in methamphetamine. Indiana Code section 35-34-1-11(a)

      provides that


              [w]henever two (2) or more offenses have been joined for trial in
              the same indictment or information solely on the ground that
              they are of the same or similar character, the defendant shall
              have a right to a severance of the offenses. In all other cases the
              court, upon motion of the defendant or the prosecutor, shall
              grant a severance of offenses whenever the court determines that
              severance is appropriate to promote a fair determination of the
              defendant’s guilt or innocence of each offense considering:

                       (1) the number of offenses charged;

                       (2) the complexity of the evidence to be offered; and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1595 | January 17, 2019   Page 4 of 8
                       (3) whether the trier of fact will be able to distinguish the
                           evidence and apply the law intelligently as to each
                           offense.


      Accordingly, “if offenses are joined solely because they are of same or similar

      character, the defendant has an automatic right to have counts tried separately,

      and the trial court has no discretion to deny the defendant’s motion for

      severance.” Pardo v. State, 585 N.E.2d 692, 693 (Ind. Ct. App. 1992). When

      offenses are not joined solely because they are of the same or similar character,

      however, Indiana Code section 35-34-1-11(a) gives the trial court discretion in

      determining whether severance should be granted. Chambers v. State, 540 N.E.2d

      600, 602 (Ind. 1989), abrogated on other grounds by Fajardo v. State, 859 N.E.2d

      1201 (Ind. 2007). Thus in cases involving the latter, severance is generally

      within the sound discretion of the trial court and clear error must be

      demonstrated for this court to interfere. Id.


[6]   The trial court correctly concluded that Pattison’s offenses were not joined

      solely because they were of the same or similar character but, rather, because

      they arose out of a series of connected acts. The evidence clearly demonstrates

      that these offenses were detected by Detective Zigler and the JEAN Team as

      part of their ongoing investigation into Pattison’s drug-dealing activity. See

      Chambers, 540 N.E.2d at 602 (concluding that denial of severance was proper

      even though the acts occurred over a period of time, because they were clearly

      detected by police through continuous surveillance of appellant and one of his

      customers, which provided ample evidence for the trial court to determine that


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1595 | January 17, 2019   Page 5 of 8
      the drug-related offenses grew out of appellant’s single intention to deal drugs).

      Therefore, the decision of whether to sever Pattison’s charges was within the

      trial court’s discretion. The record demonstrates that there were only four drug-

      related charges and that the evidence was not so complex that it would hinder

      the jury’s ability to understand and apply it to the law intelligently, nor does

      Pattison contest otherwise. Therefore, Pattison has failed to demonstrate that

      the trial court’s denial of severance was an abuse of discretion.


                              II. Sufficiency of the Evidence
[7]   Pattison contends that the State produced insufficient evidence to support his

      conviction for Level 3 felony dealing in methamphetamine. When reviewing

      the sufficiency of evidence to support a conviction, this court considers only

      probative evidence and reasonable inferences supporting the factfinder’s

      decision. Young v. State, 973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans.

      denied. It is the role of the factfinder, not this court, to assess witness credibility

      and weigh the evidence. Id. This court will affirm a conviction unless “no

      reasonable fact-finder could find the elements of the crime proven beyond a

      reasonable doubt.” Id. To convict Pattison of Level 3 felony dealing in

      methamphetamine, the State had to establish that Pattison possessed, with the

      intent to deliver, methamphetamine and that the amount of the

      methamphetamine involved was at least one gram but less than five grams and

      an enhancing circumstance applied. See Ind. Code § 35-48-4-1.1(a)(2); Ind.

      Code § 35-48-4-1.1(d)(2). Possessing a firearm while dealing in

      methamphetamine qualifies as an enhancing circumstance. Ind. Code § 35-48-

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1595 | January 17, 2019   Page 6 of 8
      1-16.5(2). Additionally, the State had to establish that “there [was] evidence in

      addition to the weight of the drug that [Pattison] intended to deliver or finance

      the delivery of the drug.” Ind. Code § 35-48-1-16.5(b). “Intent is a mental state,

      and the trier of fact often must infer its existence from surrounding

      circumstances when determining whether the requisite intent exists.” Goodner v.

      State, 685 N.E.2d 1058, 1062 (Ind. 1997).


[8]   We conclude that the State produced ample evidence to establish that Pattison

      possessed 1.2 grams of methamphetamine with the intent to deliver. During the

      search of Pattison’s residence, police discovered approximately 1.2 grams of

      methamphetamine. Police also discovered three handguns (two which were

      loaded), digital scales, money counters, sandwich baggies and rubber bands,

      mobile telephones, surveillance equipment, and drug paraphernalia. Detective

      Zigler testified that these items are often kept together so that drugs can be

      packaged quickly and weighed. Moreover, the State presented evidence that

      only twelve days prior to the execution of the search warrant on Pattison’s

      residence, he dealt approximately 0.88 grams of methamphetamine to Detective

      Zigler’s CI. Pattison argues that the methamphetamine found in the living room

      was for his personal use only and that the quantity of methamphetamine that

      was found in the garage was not sufficient to convict him of Level 3 felony

      dealing in methamphetamine. Pattison, however, did not testify to this factual

      assertion at trial and, even if he had, the jury would not have been required to

      believe it. Pattison’s argument is merely an invitation for us to reweigh the

      evidence which we will not do. Young, 973 N.E.2d at 1226. The State produced


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1595 | January 17, 2019   Page 7 of 8
      sufficient evidence to allow the factfinder to conclude that Pattison committed

      Level 3 felony dealing in methamphetamine.


[9]   The judgment of trial court is affirmed.


      Bailey, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1595 | January 17, 2019   Page 8 of 8
