MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                              FILED
court except for the purpose of establishing                      Mar 29 2017, 8:52 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott H. Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Ricardo Ortiz,                                           March 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1606-CR-1458
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff                                       Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-0712-FA-69



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017      Page 1 of 11
                                          Case Summary
[1]   Ricardo Ortiz appeals his convictions for possession of cocaine and marijuana.

      He challenges the validity of the search warrant that led to the discovery of the

      drugs and, in the alternative, the sufficiency of the evidence that he was in

      possession of the drugs. We affirm.



                            Facts and Procedural History
[2]   On December 5, 2007, a “cooperating source” (CS) told an undercover officer

      with the Elkhart County Interdiction and Covert Enforcement (ICE) Unit that

      they could buy cocaine from Rafael Dejesus (who was known to the CS as “Pa

      Ping”). The undercover officer and the CS went to Dejesus’ house in Goshen

      and conducted a controlled buy of 4.4 grams of cocaine.


[3]   Five days later, on December 10, 2007, the undercover officer had the CS call

      Dejesus and say that the undercover officer wanted to buy cocaine. Dejesus

      told them to come back to his house, where he explained to the CS that he did

      not have any cocaine but that they could “follow him to his guy’s house where

      he can pick up the quarter ounce.” Appellant’s App. Vol. II p. 140. The

      undercover officer and the CS followed Dejesus to a neighborhood in Elkhart

      and parked behind him. Dejesus pointed to the house he was going to, and the

      CS gave him cash for the buy. The undercover officer then watched as Dejesus

      walked toward the house he had pointed to. A few minutes later, the

      undercover officer saw Dejesus returning from the area of the house. The


      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017   Page 2 of 11
      undercover officer watched as Dejesus handed a bag of cocaine to the CS, who

      then handed it to the undercover officer.

[4]   On December 13, 2007, the undercover officer had the CS call Dejesus again

      and tell him that they wanted to buy more cocaine. Dejesus “advised that he

      did not have any cocaine but was going to the same house as last time to pick

      up.” Id. The undercover officer and the CS met Dejesus at the same location

      and gave him $260 in previously photocopied ICE Unit cash. The undercover

      officer watched as Dejesus, who was wearing a red jacket and blue jeans,

      walked toward the same house and approached a sliding glass door. Another

      officer was nearby conducting surveillance and saw a man wearing a red jacket

      and blue jeans walk to the sliding door and knock, a person inside the house

      look through the blinds, the man enter the garage of the house through a side

      access door, and the same man exit the same door a few minutes later and

      begin walking back to where the undercover officer was parked. Id. at 141.

      The undercover officer also saw Dejesus walking back from the area of the

      house. Dejesus handed a bag of cocaine to the CS, who immediately handed it

      to the undercover officer.

[5]   Later that same night, the undercover officer filed an Affidavit for Search

      Warrant seeking authorization to search the house Dejesus went to during the

      second and third meetings. The affidavit recounted all of the events described

      above and stated the undercover officer’s belief that Dejesus “obtains powder

      cocaine” from the house. Id. at 139-41. Still the same night, a magistrate



      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017   Page 3 of 11
      issued the warrant, and the undercover officer and others went to the house to

      conduct a search at approximately 10:25 p.m.

[6]   At the house, officers knocked on the door but received no response. They then

      forced their way in and found Ortiz and a woman in the master bedroom. In

      the top drawer of a dresser in the master bedroom, officers found a set of digital

      scales inside a CD case, two small plastic baggies, and five documents bearing

      the name “Ricardo Ortiz,” “Ricardo Ortiz Cotto,” or “Ricardo O Cotto,” all

      but one of which included the address of the house. In the bottom drawer,

      officers found a plastic bag containing approximately fourteen grams of

      cocaine. The officers also found a pair of men’s pants on the floor, another pair

      hanging in the master bedroom closet, and $735 in a box in the same closet.

      $100 of the $735 was buy money the undercover officer had given Dejesus

      earlier that day. In the master bathroom, accessible only through the master

      bedroom, officers found two plastic bags containing a total of approximately

      forty-two grams of marijuana in the pocket of a robe, as well as an open box of

      plastic sandwich bags. Another box of sandwich bags was found in a gap at the

      top of the stairs leading to the basement.

[7]   The week after the search, the State charged Ortiz with possession of three

      grams or more of cocaine with intent to deliver, a Class A felony, and

      possession of more than thirty grams of marijuana, a Class D felony. In

      October 2008, Ortiz moved to suppress all evidence obtained as a result of the

      search, challenging the magistrate’s decision to issue the warrant. After a short

      hearing and written briefing by the parties, the trial court denied Ortiz’s motion,

      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017   Page 4 of 11
       finding that the undercover officer’s affidavit provided a “substantial basis” for

       issuing the warrant. Id. at 110.


[8]    The following day, the court held a status conference and set a trial date of

       August 3, 2009. Ortiz was present and acknowledged that date, but he did not

       appear for trial, and he was tried in absentia. Over the renewed objection of

       Ortiz’s attorney, the State was allowed to present the drugs and other evidence

       found during the search. The jury found Ortiz guilty as charged, and the court

       issued a warrant for his arrest. Ortiz was finally arrested in early 2016, and the

       court sentenced him to serve twenty-eight years in prison.

[9]    Ortiz now appeals.



                                 Discussion and Decision
[10]   Ortiz raises two issues on appeal. First, he argues that the undercover officer’s

       affidavit was insufficient to support the issuance of a search warrant, that the

       magistrate therefore erred by issuing the warrant, and that the trial court

       therefore should not have allowed the State to rely on the evidence found

       during the search. In the alternative, he contends that the State’s evidence is

       insufficient to prove that he possessed the drugs.


                                          I. Search Warrant
[11]   Pursuant to the United States Constitution, the Indiana Constitution, and

       Indiana Code section 35-33-5-1, a court can issue a warrant only “upon

       probable cause.” In the search-warrant context, this requires the judge or

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017   Page 5 of 11
       magistrate “to make a practical, commonsense decision whether, given all the

       circumstances set forth in the affidavit there is a fair probability that contraband

       or evidence of a crime will be found in a particular place.” Jaggers v. State, 687

       N.E.2d 180, 181 (Ind. 1997) (formatting altered). When a defendant later

       challenges the issuance of a search warrant, the reviewing court (first the trial

       court, then the appellate court if there is an appeal) must give significant

       deference to the judge’s or magistrate’s determination and decide only whether

       there was a “substantial basis” for concluding that probable cause existed, that

       is, whether reasonable inferences drawn from the totality of the evidence

       support that conclusion. Id. at 181-82.


[12]   Ortiz’s argument is that (1) the undercover officer’s belief (and the magistrate’s

       conclusion) that there was probably cocaine in the house was based on Dejesus’

       representations that he was obtaining cocaine from the house and (2) the

       affidavit did not establish Dejesus’ reliability. Ortiz maintains that it is

       “reasonable to think that [Dejesus] had drugs on his person the entire time.”

       Appellant’s Br. p. 15. The implication, of course, is that Dejesus was simply

       trying to mislead the undercover officer and the CS and/or frame the occupants

       of the house. There are several flaws in Ortiz’s theory.

[13]   First, the undercover officer’s belief that there was cocaine in the house was not

       based solely on Dejesus’ representations. On December 10, the undercover

       officer personally observed Dejesus point to the house, walk toward the house,

       and return with a bag of cocaine. On December 13, the undercover officer

       again personally observed Dejesus approach the house and return with a bag of

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017   Page 6 of 11
       cocaine. On the latter occasion, another officer conducting surveillance

       personally observed a man matching Dejesus’ description knock on the door of

       the house, enter the garage, emerge from the garage a few minutes later, and

       walk back toward the undercover officer (Ortiz does not challenge the other

       officer’s reliability). These facts strongly corroborate Dejesus’ representations

       regarding the origin of the cocaine.

[14]   Second, the controlled buy at Dejesus’ house on December 5 demonstrates that

       Dejesus would provide cocaine directly when he had it. In other words, as the

       State puts it, Dejesus “had no reason to drive to another city on two occasions

       to purportedly obtain cocaine if he actually had cocaine to sell to [the

       undercover officer].” Appellee’s Br. p. 22.

[15]   Third, we see no reason why Dejesus would lie about having to obtain cocaine

       from the house. It is not as if Dejesus was insulating himself from criminal

       liability by going through a third party; he was still the ultimate deliveryman.

       Ortiz fails entirely to articulate a reason why Dejesus would want to mislead

       the undercover officer and the CS or to falsely incriminate the occupants of the

       house.

[16]   In addition to attacking Dejesus’ reliability, Ortiz emphasizes the fact that the

       second and third buys were not “controlled” in the traditional sense, that is,

       Dejesus was not cooperating with law enforcement and was not searched or

       interviewed before or after the buys. He cites our decision in Mills v. State,

       where we held that “where the controls are adequate, the affiant’s personal


       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017   Page 7 of 11
       observation of a ‘controlled buy’ may suffice as grounds for a finding of

       probable cause.” 379 N.E.2d 1023, 1026, 177 Ind. App. 432, 435 (1978). But

       that merely means that observation of a controlled buy is one way of

       establishing probable cause in drug-dealing cases; we certainly did not hold that

       it is the only way.


[17]   In light of the detailed facts stated in the undercover officer’s affidavit and the

       reasonable inferences therefrom, the magistrate was fully justified in concluding

       that there was a fair probability that contraband or evidence of a crime would

       be found in the house. See Jaggers, 687 N.E.2d at 181. We therefore affirm the

       trial court’s decision to allow the fruits of the search into evidence.1


                                  II. Sufficiency of the Evidence
[18]   Ortiz also argues that even if the search was proper, the State failed to prove

       that he was in possession of the drugs that were found. In reviewing the

       sufficiency of the evidence supporting a conviction, we consider only the

       probative evidence and reasonable inferences supporting the verdict. Wilson v.

       State, 39 N.E.3d 705, 716 (Ind. Ct. App. 2015), trans. denied. We do not

       reweigh the evidence or assess witness credibility. Id. We consider conflicting




       1
         The State also asserts that even if the search warrant had been defective, the trial court’s admission of the
       evidence would have been proper under the good-faith exception to the exclusionary rule. See Jaggers, 687
       N.E.2d at 184 (“[T]he exclusionary rule does not require the suppression of evidence obtained in reliance on
       a defective search warrant if the police relied on the warrant in objective good faith.”). We are inclined to
       agree with the State (particularly in light of Ortiz’s decision not to file a reply brief), but because we conclude
       that the search warrant was not defective, we need not address this alternative ground.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017                 Page 8 of 11
       evidence most favorably to the verdict. Id. We will affirm the conviction unless

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

       reasonable doubt. Id. It is not necessary that the evidence overcome every

       reasonable hypothesis of innocence. Id. The evidence is sufficient if an

       inference may reasonably be drawn from it to support the verdict. Id. Where,

       as here, the State does not allege actual possession, it must establish

       constructive possession. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999).

       “Constructive possession occurs when somebody has the intent and capability

       to maintain dominion and control over the item.” Id.


[19]   Turning first to the capability prong, Ortiz acknowledges that “[p]roof of a

       possessory interest in the premises where the drugs are found is adequate to

       show the capability to maintain control and dominion of the items in question.”

       Appellant’s Br. p. 18 (citing Davenport v. State, 464 N.E.2d 1302, 1307 (Ind.

       1984)). He argues, however, that the State failed to prove that he had a

       “possessory interest” in the house. We disagree. The most probative piece of

       evidence that Ortiz had a possessory interest in the house, and was not just a

       visitor, is a cable bill sent to “Ricardo Ortiz” at the address of the house. The

       fact that he was found in the master bedroom at 10:25 p.m. is also a solid

       indicator that he had a possessory interest in the house. Tellingly, Ortiz does

       not address either piece of evidence in his “capability” analysis. Also found in

       the bedroom were three documents naming “Ricardo Ortiz Cotto” or “Ricardo

       O Cotto” at the same address, along with multiple pairs of men’s pants. All of




       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017   Page 9 of 11
       this evidence supports the conclusion that Ortiz was in possession of the house

       and was therefore capable of maintaining dominion and control of the drugs.

[20]   To prove that Ortiz had the intent to do so, the State had to demonstrate his

       knowledge of the drugs. See Henderson, 715 N.E.2d at 835. Where a

       defendant’s control over the premises is non-exclusive, as was the case here

       (since there was another person found in the master bedroom with Ortiz), there

       must be “evidence of additional circumstances pointing to the defendant’s

       knowledge of the presence of the contraband.” Id. at 835-36 (quoting Woods v.

       State, 471 N.E.2d 691, 694 (Ind. 1984)). Examples of such circumstances are:

       (1) incriminating statements by the defendant, (2) attempted flight or furtive

       gestures, (3) location of substances like drugs in settings that suggest

       manufacturing, (4) proximity of the contraband to the defendant, (5) location of

       the contraband within the defendant’s plain view, and (6) the mingling of the

       contraband with other items owned by the defendant. Id.


[21]   Several such circumstances existed in this case. First, while Ortiz did not

       attempt to flee or make any furtive gestures, he did fail to answer the door when

       the officers knocked. Second, the presence of the scales and the plastic bags

       suggests drug “manufacturing,” which by statute includes “packaging or

       repackaging.” See Ind. Code § 35-48-1-18 (defining “manufacture”). Third, the

       cocaine was found in a dresser in the master bedroom and the marijuana was

       found in the master bathroom, both in close proximity to Ortiz. Fourth, the

       bags containing the marijuana were plainly visible in the pocket of a robe in the

       master bathroom, which, again, could only be accessed through the master

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1458 | March 29, 2017   Page 10 of 11
       bedroom. Fifth, the cocaine was found in a dresser that also contained mail for

       Ortiz, along with the scales and plastic bags. Sixth, in a box in the master-

       bedroom closet, officers found $100 of the buy money that had been given to

       Dejesus earlier that night. In light of these facts, we decline to disturb the jury’s

       conclusion that Ortiz had the intent to maintain dominion and control of the

       drugs.

[22]   Affirmed.

       Bradford, J., and Brown, J., concur.




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