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

PAULA M. SAUER                                    GREGORY F. ZOELLER
Danville, Indiana                                 Attorney General of Indiana

                                                  NICOLE M. SCHUSTER
                                                  Deputy Attorney General

                                                                                FILED
                                                  Indianapolis, Indiana

                                                                            Dec 11 2012, 9:49 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




BRADLEY S. SATER,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )       No. 32A04-1204-CR-182
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE HENDRICKS SUPERIOR COURT
                           The Honorable David H. Coleman, Judge
                                Cause No. 32D02-1012-FA-2



                                      December 11, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


DARDEN, Senior Judge
                             STATEMENT OF THE CASE

      Bradley Sater appeals his convictions for Class A felony dealing in

methamphetamine, Ind. Code § 35-48-4-1.1 (2006), and Class C felony possession of

methamphetamine, Ind. Code § 35-48-4-6.1 (2006). We affirm the dealing conviction

and remand with instructions to vacate the possession conviction.

                                         ISSUES

      Sater raises two issues, which we restate as:

      I.     Whether the evidence is sufficient to sustain his convictions.

      II.    Whether his convictions violate double jeopardy principles.

                       FACTS AND PROCEDURAL HISTORY

      Joshua Shumaker worked as a confidential informant to get his pending Class B

felony drug charge reduced to a Class D felony. In July 2010, Shumaker met Detective

Timothy Wells of the United Drug Task Force at the Plainfield Police Department to

prepare for a controlled buy of methamphetamine from Sater. Detective Wells searched

Shumaker and his vehicle and found no contraband. He then outfitted Shumaker with an

audio/video recording device and gave him $550 in prerecorded buy money.

      Detective Wells followed Shumaker to the Plainfield home of Sater’s parents.

Sater met Shumaker outside in the driveway, and they went through the garage and into

the house. Inside, Shumaker gave Sater the buy money, and Sater gave him a plastic bag

containing 6.62 grams of methamphetamine. Sater was holding a meth pipe and asked

Shumaker to smoke with him. Shumaker was in the house for about five to seven

minutes. Other than Sater, he did not see anyone else in the residence.

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       After Shumaker left the house, he met Detective Wells at a nearby carwash.

Detective Wells took the bag of methamphetamine from Shumaker. Again, he searched

Shumaker and his vehicle and found no other contraband. Shumaker gave Detective

Wells a statement detailing his purchase from Sater.

       In December 2010, the State charged Sater with Class A felony dealing in

methamphetamine and Class C felony possession of methamphetamine.               At trial,

Detective Wells and Shumaker testified for the State, and the recording of the drug

transaction was admitted into evidence and played to the jury. Sater testified in his own

defense. He admitted that he was the person on the recording but claimed that he was

holding a bag of marijuana and a marijuana pipe, not a bag of methamphetamine and a

meth pipe. He also claimed that there were two other people in the house and that

Shumaker must have obtained the methamphetamine from one of those people. No other

witnesses testified for the defense.

       The jury found Sater guilty as charged. The trial court entered judgments of

conviction on both jury verdicts, merged the possession conviction into the dealing

conviction, and sentenced Sater to twenty-five years for the dealing conviction. Sater

now appeals.

                             DISCUSSION AND DECISION

                         I. SUFFICIENCY OF THE EVIDENCE

       Sater contends that the evidence is insufficient to sustain his convictions. In

reviewing a sufficiency of the evidence claim, we do not reweigh the evidence or assess

the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010).

                                            3
Rather, we look to the evidence and reasonable inferences drawn therefrom that support

the verdicts. Id. We affirm the convictions if there is probative evidence from which a

reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.

       In cases involving a controlled buy such as that presented here, the adequacy of

the control goes to the weight of the evidence and credibility of the witnesses presented,

which we may not reweigh. Heyen v. State, 936 N.E.2d 294, 302 (Ind. Ct. App. 2010),

trans. denied. In addition, a conviction in a drug case may be sustained upon the

testimony of an informant alone. Haynes v. State, 431 N.E.2d 83, 85 (Ind. 1982).

       To convict Sater of possession of methamphetamine as charged here, the State had

to prove beyond a reasonable doubt that Sater knowingly possessed three grams or more

of methamphetamine without a valid prescription or order of a practitioner acting in the

course of the practitioner’s professional practice. Appellant’s App. p. 11; see Ind. Code §

35-48-4-6.1(a), (b)(1)(A). To convict Sater of dealing in methamphetamine as charged

here, the State had to prove beyond a reasonable doubt that Sater knowingly delivered

three grams or more of methamphetamine. Appellant’s App. p. 10; see Ind. Code § 35-

48-4-1.1(a)(1)(C), (b)(1).

       Sater does not challenge the identification of the substance recovered from

Shumaker as methamphetamine or its weight. Instead, he claims that someone else in the

house must have sold Shumaker the methamphetamine, and that the recording only

shows Sater holding marijuana and a marijuana pipe. He points out that there is no

evidence that the police watched all entrances to the residence during the transaction;

multiple vehicles were parked at the residence at the time of the transaction, suggesting

                                            4
other people were present; the recording showed Sater referring to seeds at the bottom of

the bag, but the recovered bag of methamphetamine contained no seeds; and the buy

money was not recovered.

       These are merely requests for us to reweigh the evidence, which we may not do.

See Haynes, 431 N.E.2d at 86 (“The fact that the informant was not actually seen entering

the house was a factor for the jury to consider in weighing the evidence.”). Here,

Shumaker testified at trial that it was Sater who sold him the methamphetamine. This

testimony alone is sufficient to sustain Sater’s convictions for possession of and dealing

in methamphetamine.       See Toney v. State, 715 N.E.2d 367, 368-69 (Ind. 1999)

(informant’s uncorroborated testimony alone sufficient to sustain drug conviction despite

appellant’s claim involving adequacy of control). The jury also heard Detective Wells’s

testimony and viewed and listened to the recording of the transaction, which failed to

demonstrate that there was anyone else in the house. It was for the jury to weigh this

evidence against Sater’s version of events. We conclude that the evidence is sufficient to

sustain Sater’s convictions.

                               II. DOUBLE JEOPARDY

       Sater next contends that his convictions violate double jeopardy principles. A

defendant’s constitutional rights are violated when a court enters judgment twice for the

same offense, but not when a defendant is simply found guilty of a particular count.

Green v. State, 856 N.E.2d 703, 704 (Ind. 2006). A double jeopardy violation occurs

when judgments of conviction are entered and cannot be remedied by the “practical



                                            5
effect” of concurrent sentences or by merger after conviction has been entered. Gregory

v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied.

      The 6.62 grams of methamphetamine Sater sold Shumaker serve as the basis for

both the possession and dealing counts. The possession is thus a lesser included offense

of the dealing. See Micheau v. State, 893 N.E.2d 1053, 1066 (Ind. Ct. App. 2008)

(concluding that possession of methamphetamine is lesser included offense of dealing in

methamphetamine where offenses are based on same drugs), trans. denied.

      The trial court entered judgments of conviction for both possession and dealing.

See Tr. p. 305 (oral sentencing statement); Appellant’s App. pp. 120 (Judgment of

Conviction, Sentencing Order, and Order of Commitment (“Judgment of Conviction”)),

121 (Felony Sentencing Order), 123 (Abstract of Judgment). Although the court merged

the possession conviction into the dealing conviction, this was not sufficient to remedy

the double jeopardy violation. We therefore remand with instructions to vacate Sater’s

conviction for possession of methamphetamine.         See Gregory, 885 N.E.2d at 703

(remanding with instructions to vacate conviction for conspiracy to deal in

methamphetamine where trial court attempted to avoid double jeopardy violation by

merging that conviction with dealing in methamphetamine conviction).

                                     CONCLUSION

      For the reasons stated, we affirm Sater’s dealing conviction and remand with

instructions to vacate the possession conviction. We also direct the court to amend the

Judgment of Conviction, Felony Sentencing Order, and Abstract of Judgment to show



                                            6
conviction only on the dealing count and to send copies of these amended documents to

the Department of Correction.

      Affirmed in part and remanded with instructions.

RILEY, J., and BAILEY, J., concur.




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