MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Jun 23 2017, 8:35 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


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

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronnie L. Brown,                                         June 23, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1701-CR-124
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable John M. Fieck,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         18C04-1608-F4-57



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-124 | June 23, 2017            Page 1 of 9
[1]   Ronnie Brown was convicted of two counts of dealing in cocaine within 500

      feet of a public park as Level 4 felonies and one count of possession of

      marijuana as a Class B misdemeanor. On appeal, Brown presents two issues

      for our review:


              1. Did the State present sufficient evidence to rebut Brown’s
              entrapment defense?


              2. Did the State present sufficient evidence to prove that Brown
              was dealing cocaine within 500 feet of a public park?


[2]   We affirm.


                                       Facts & Procedural History


[3]   After receiving information from a confidential informant (CI), several officers

      with the Delaware County Sheriff’s Department began to investigate Brown on

      suspicion of dealing in controlled substances. During the afternoon of August

      8, 2016, officers met with the CI at a prearranged location. The CI placed a

      phone call to Brown with the plan being “to go to meet with Ronnie Brown and

      purchase sixty dollars worth of crack.” Transcript Vol. 2 at 210. Brown and the

      CI agreed to meet at a residence on East 8th Street in Muncie. Prior to leaving

      to meet up with Brown, the CI was searched and no weapons or contraband

      were found. The CI was then given sixty dollars in cash that had been

      photocopied and he was fitted with audio and video recording devices.

      Undercover officer Timothy Mitchell drove the CI to the buy location.



      Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-124 | June 23, 2017   Page 2 of 9
[4]   During the drive, the CI explained to Officer Mitchell that he had spoken to

      Brown earlier and confirmed that Brown was going to have cocaine to sell.

      They also discussed how the controlled-buy would take place, with the CI

      conducting the transaction as he normally did—that is, by calling Brown when

      he arrived to say he was “coming up the alley” next to the house on East 8th

      Street. State’s Exhibit 1. As Officer Mitchell approached that location, the CI

      called Brown and said, “Hey man, I’m pulling up.” Id. Brown responded that

      he would be there in five minutes.


[5]   The CI said he would wait, and approximately ten minutes later, Brown parked

      his vehicle next to the house and exited the car. The CI got out of Officer

      Mitchell’s car and approached a table in the corner of the yard where Brown

      was standing. Officer Mitchell observed the back yard, but his view of the table

      was obscured. The CI handed Brown the sixty dollars that he had been given to

      make the purchase. The CI then sat at the table and Brown walked back to his

      car. Brown stood briefly beside his car and then walked back to the table and

      sat down. Underneath the table, Brown removed three rocks of cocaine from a

      small plastic bag and then, above the table, placed the cocaine in the CI’s hand.

      The CI then stood up, told Brown he would call him later, and returned to

      Officer Mitchell’s vehicle. When the CI got into the vehicle, he handed the

      cocaine he purchased from Brown to Officer Mitchell.


[6]   Two days later, officers arranged a second controlled buy of cocaine from

      Brown. The officers used the same CI and followed the same procedures as

      used in the first sale—the CI phoned Brown to set up the sale and then the CI

      Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-124 | June 23, 2017   Page 3 of 9
      was searched to ensure the absence of contraband, fitted with recording devices,

      and provided with cash that had been recorded. In the phone call to Brown, the

      CI said, “Just trying to get something. You good?” State’s Exhibit 20. After

      Brown affirmatively responded, the CI indicated that he wanted to get “a

      sixty,” and Brown agreed. Id. An officer testified that only mentioning a dollar

      amount was consistent with typical drug transactions in that they typically

      involve “limited talk” about the details of the sale. Transcript Vol. 2 at 172.


[7]   Officer Mitchell again drove the CI and parked the vehicle in the same location

      on East 8th Street. The CI contacted Brown and told him he had arrived. The

      CI then exited Officer Mitchell’s vehicle and as he approached the house,

      Brown exited the back door. Brown and the CI walked over to the same table

      in the yard where the transaction had occurred two days prior. As he neared

      the table, Brown asked the CI, “How much you need[?]” and the CI responded

      “Sixty.” Id. at 232; see also State’s Exhibit 20. The CI then handed Brown sixty

      dollars and Brown handed cocaine to the CI. The CI returned to Officer

      Mitchell’s vehicle and gave him the purchased cocaine.


[8]   Based on these two controlled buys, officers obtained a search warrant for the

      home on East 8th Street. When officers arrived to execute the search warrant,

      Brown was found outside the house smoking marijuana and in possession of

      another marijuana cigarette. Inside the house, police found several digital




      Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-124 | June 23, 2017   Page 4 of 9
       scales, glass smoking instruments, and mail addressed to Brown at that

       address.1


[9]    Additionally, Officer Mitchell testified that he made a measurement from the

       location where the drug transactions took place to a nearby public park, Heekin

       Park, using a computer software known as New World Maps. Using an aerial

       view of the area, Officer Mitchell determined that the distance from the

       transaction location and the park was 476 feet. Officer Mitchell made a second

       measurement using Google Maps, which resulted in a measurement of around

       480 feet between the transaction location and the park.


[10]   On August 16, 2016, the State charged Brown with two counts of dealing in

       cocaine within 500 feet of a public park as Level 4 felonies, possession of

       cocaine as a Level 6 felony, maintaining a common nuisance as a Level 6

       felony, possession of marijuana as a Class B misdemeanor, and possession of

       paraphernalia as a Class C misdemeanor. A jury trial commenced on October

       24, 2016. During the trial, the State moved to dismiss the public nuisance

       charge. The jury found Brown guilty of the two counts of dealing in cocaine

       and the single count of possession of marijuana. The jury did not reach a

       verdict on the remaining counts, which were ultimately dismissed. The trial

       court subsequently sentenced Brown to an aggregate term of twenty years.

       Additional facts will be provided as necessary.




       1
           Mail addressed to Brown’s girlfriend was also found in the house.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-124 | June 23, 2017   Page 5 of 9
                                           Discussion & Decision


                                                 1. Entrapment


[11]   Brown argues that the State failed to rebut his entrapment defense. We review

       the sufficiency of the evidence presented to rebut entrapment the same as we

       review all sufficiency claims. Greisemer v. State, 26 N.E.3d 606, 608 (Ind. 2015).

       We neither reweigh the evidence nor reassess the credibility of witnesses. Id.

       Instead, we look to the probative evidence supporting the verdict and the

       reasonable inferences drawn from that evidence. Id. If we find a reasonable

       trier of fact could infer guilt beyond a reasonable doubt, we will affirm the

       conviction. Id.


[12]   Entrapment requires that the defendant’s criminal conduct be a “product of a

       law enforcement officer, or his agent, using persuasion or other means likely to

       cause the person to engage in the conduct” and that the defendant was not

       already predisposed to commit the offense. Ind. Code § 35-41-3-9. Once the

       defendant raises the defense, the State has the opportunity for rebuttal, its

       burden being to disprove one of the statutory elements beyond a reasonable

       doubt. Riley v. State, 711 N.E.2d 489, 494 (Ind. 1999). There is thus no

       entrapment if the State shows either (1) there was no police inducement, or (2)

       the defendant was predisposed to commit the crime. McGowan v. State, 674

       N.E.2d 174, 175 (Ind. 1996) (holding because entrapment is established by the

       existence of two elements, it is defeated by the nonexistence of one).




       Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-124 | June 23, 2017   Page 6 of 9
[13]   Inducement requires law enforcement’s direct participation in a crime.

       Greisemer, 26 N.E.3d at 609 (citing Shelton v. State, 679 N.E.2d 499, 502 (Ind.

       Ct. App. 1997)). To rebut the inducement element, the State must prove police

       efforts did not produce the defendant’s prohibited conduct because those efforts

       lacked “a persuasive or other force.” Id. (quoting Williams v. State, 274 Ind.

       578, 584, 412 N.E.2d 1211, 1215 (1980)). “Conduct merely affording a person

       an opportunity to commit the offense does not constitute entrapment.” I.C. §

       35-41-3-9(b).


[14]   The State’s evidence clearly demonstrated that the only persuasion Brown

       needed to sell cocaine was a phone call from a CI requesting a certain dollar

       amount. The police did nothing else to implant the idea of selling drugs in

       Brown’s head. The CI had informed the officers that he had previously

       purchased cocaine from Brown and then, in the same manner, purchased

       cocaine from Brown on August 8 and 10, 2016, while law enforcement was

       investigating Brown’s dealing activities. A reasonable jury could have found

       that police did not use such persuasive force to implant the idea of criminality

       into Brown’s mind.


[15]   Even if sufficient inducement were shown, the State’s evidence proved that

       Brown was predisposed to sell cocaine. When the CI called Brown to set up the

       two controlled buys, the CI had already established a manner of dealing with

       Brown when purchasing cocaine from him. The two controlled buys were

       executed consistent with the prior practice between Brown and the CI. Further,

       items associated with selling drugs were found during the search of the

       Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-124 | June 23, 2017   Page 7 of 9
       residence. The pre-arranged and established meeting location, the practices and

       protocols followed by the CI and Brown, and knowledge of drug terminology

       all show that Brown was predisposed to sell drugs before any police

       involvement. See Silva v. State, 410 N.E.2d 1342, 1345 (Ind. Ct. App. 1980)

       (noting that evidence of events at the time of the sale, including the defendant’s

       knowledge of drug terminology, willingness, and established protocol, is

       sufficient to sustain proof of predisposition).


[16]   The State’s evidence sufficiently rebuts any notion of entrapment.


                                                 2. Sufficiency


[17]   Brown argues that the State failed to prove the enhancement that he sold

       cocaine within 500 feet of a public park. We disagree.


[18]   The State submitted as part of State’s Exhibit 1 an aerial map with an “X”

       marking the location of where the drug transactions took place. Officer

       Mitchell explained that he measured from the back of the property on East 8th

       Street south to a sidewalk in Heekin Park. The distance between these two

       points measured 476 feet. Officer Mitchell also testified that he did an

       additional measurement using Google Maps and received a result of 480 feet.

       The picnic table at which the drug transactions took place was located in the

       back yard of the property on East 8th Street. The location of the picnic table

       was noted on the map, which made it clear that the table was located within the

       parameters Officer Mitchell used to calculate the above distances. The State



       Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-124 | June 23, 2017   Page 8 of 9
       presented sufficient evidence from which the jury could have concluded that

       Brown sold cocaine within 500 feet of a public park.


[19]   Judgment affirmed.


[20]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-124 | June 23, 2017   Page 9 of 9
