MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                          FILED
precedent or cited before any court except for the
                                                                 Nov 17 2016, 7:55 am
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.                          CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Glenn A. Grampp                                        Gregory F. Zoeller
Evansville, Indiana                                    Attorney General of Indiana
                                                       Jodi Kathryn Stein
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana

                                                       Breanna Heilicher
                                                       Certified Legal Intern
                                                       Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Tory D. Ward,                                              November 17, 2016

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           82A01-1512-CR-2280

        v.                                                 Appeal from the Vanderburgh
                                                           Superior Court

State of Indiana,                                          The Hon. Robert J. Pigman, Judge
                                                           Trial Court Cause No. 82D03-1506-
Appellee-Plaintiff.
                                                           F2-3447




Bradford, Judge.




Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 1 of 8
                                          Case Summary
[1]   On October 30, 2015, Appellant-Defendant Tory D. Ward was found guilty,

      following a jury trial, of Level 2 felony dealing in methamphetamine and Level

      2 felony dealing in a schedule 1 controlled substance, ethylone. Ward,

      however, was found not guilty of Level 5 felony trafficking with an inmate.

      Ward appeals his convictions, contending that the evidence is insufficient to

      sustain his convictions. Concluding that the evidence is sufficient to sustain

      both convictions, we affirm.



                            Facts and Procedural History
[2]   Around May 27, 2015, Jordan Best met Ward and between that date and the

      day of the arrest, June 13, 2015, the two sold methamphetamine together. On

      June 8, 2015, Best and Ward left for Texas along with Erin Lance, another

      dealer for Ward. Best was told that they were going to Texas to get more

      methamphetamine to sell because their supply had run out. Lance was given a

      similar reason for going to Texas in that they were going to network and “check

      out some prices and basically just trying to bring stuff back.” Tr. p. 267. The

      three of them stayed with Ward’s family while in Texas. At one point, Ward




      Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 2 of 8
      returned to his family’s house with an ounce of MDMA1 and “Molly”2 for him,

      Best, and Lance to try. Tr. p. 410-11.


[3]   On June 13, 2015, the trio left Texas and stopped at Ward’s sister’s house

      before returning to Evansville. When Ward got back in the car from his sister’s

      house he had four ounces of “Molly.” As the trio approached Evansville, they

      were stopped by police. At this point, Ward threw the “Molly” on Lance’s lap

      and “demanded her to take it.” Tr. p. 416. Lance hid the drugs in her pants,

      but when a female police officer approached to search her, Lance gave the

      police the drugs. Additionally, there was a K-9 officer that indicated the

      presence of drugs in the vehicle. After the stop, Best and Ward were taken to

      the Vanderburgh County jail. At the jail, Ward was searched by Corrections

      Officer Jeremy Elliot. During the search, Elliot found a bag “between [Ward’s]

      buttocks” that contained about twenty-six grams of a white crystal substance.

      Tr. p. 351.


[4]   Rebecca Nickless, a Forensic Scientist with the Indiana State Police Lab,

      analyzed the drugs involved in this case. She found that the bag of drugs

      retrieved from Ward’s person, labeled as State’s Exhibit #1, contained ethylone




      1
        “3,4-methylenedioxy-methamphetamine (MDMA) is a synthetic drug that alters mood and perception
      (awareness of surrounding objects and conditions).” It is more commonly called Ecstacy or Molly.
      DrugFacts–MDMA (Ecstacy/Molly), DRUGFACTS,
      https://www.drugabuse.gov/publications/drugfacts/mdma-ecstasymolly (last visited Nov. 1, 2016).
      2
       “Molly, experts say, contains all [or pure] MDMA in a crystalline powder contained in a capsule.”
      What is Molly? Why is it Dangerous?, NBC NEWS, http://www.nbcnews.com/health/health-news/what-
      molly-why-it-dangerous-n311291 (last visited Nov. 3, 2016).

      Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 3 of 8
      and had a net weight of 23.38 grams. State’s Exhibits #2 and #3, the drugs

      found on Lance, were analyzed as well. State’s Exhibit #2 was ethylone and

      had a net weight of 111.37 grams. Finally, State’s Exhibit #3 contained pills

      made from methamphetamine and weighed over 10 grams which was more

      than is required under law to meet the statutory elements.3 Tr. p. 385-86.


[5]   On June 15, 2015, the Appellee, the State of Indiana (“the State”), charged

      Ward with Level 2 felony dealing in methamphetamine, Level 2 felony dealing

      in a schedule 1 controlled substance, ethylone, and Level 5 felony trafficking

      with an inmate.


[6]   Following trial, the jury found Ward guilty of Level 2 felony dealing in

      methamphetamine and Level 2 felony dealing in a schedule 1 controlled

      substance, ethylone, but not guilty of Level 5 felony trafficking with an inmate.

      On November 24, 2015, the trial court sentenced Ward to an aggregate

      sentence of twenty-six years of incarceration.



                                Discussion and Decision
[7]   On appeal, Ward argues that the evidence is insufficient to sustain his

      convictions for Level 2 felony dealing in methamphetamine and Level 2 felony

      dealing in a schedule 1 controlled substance, ethylone, because the State failed




      3
       There was a variance in the weight of the drugs when weighed, at least 10.16 grams and possibly as
      much as 10.68 grams. This variance was attributed to uncertainty in the balance of the scale.

      Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016    Page 4 of 8
      to prove that he had actual or constructive possession of the drugs that were

      found on Lance’s person. Additionally, Ward argues that the evidence is

      insufficient to sustain a conviction of Level 2 felony dealing in a schedule 1

      controlled substance, ethylone, because it was not proven that the chemicals

      present in State’s Exhibit #1, which was found “between [Ward’s] buttocks”

      were prohibited by law. Tr. p. 351.


              When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting verdict. It is the
              fact-finder’s role, not that of appellate courts, to assess witness
              credibility and weigh the evidence to determine whether it is
              sufficient to support a conviction. To preserve this structure, when
              appellate courts are confronted with conflicting evidence, they
              must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The evidence
              is sufficient if an inference may reasonably be drawn from it to
              support the verdict.

      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). “In essence, we assess only whether the verdict could be

      reached based on reasonable inferences that may be drawn from the evidence

      presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

      original).


[8]   Indiana Code section 35-48-4-1.1(a)(2) provides, in relevant part, as follows:


              (a) A person who:
                    …
                    (2) possesses, with intent to:

      Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 5 of 8
                      …
                           (C) deliver
                           …
              methamphetamine, pure or adulterated; commits dealing in
              methamphetamine, a Level 5 felony, except as provided in subsections
              (b) through (e).

              (b) A person may be convicted of an offense under subsection (a)(2) only
              if:
                      (1) there is evidence in addition to the weight of the drug that the
                      person intended to manufacture, finance the manufacture of,
                      deliver, or finance the delivery of the drug.
                      …
              (e) The offense is a Level 2 felony if: (1) the amount of the drug involved
              is at least ten (10) grams.

[9]   Indiana Code section 35-48-4-2(a)(2) provides, in relevant part, as follows:


              (a) A person who:
                     …
                     (2) possesses, with intent to:
                     …
                            (C) deliver
                            …
              a controlled substance, pure or adulterated, classified in schedule I, II, or
              III, except marijuana, hash oil, hashish, salvia, or a synthetic drug;
              commits dealing in a schedule I, II, or III controlled substance, a Level 6
              felony, except as provided in subsections (b) through (f).

              (b) A person may be convicted of an offense under subsection (a)(2) only
              if:
                      (1) there is evidence in addition to the weight of the drug that the
                      person intended to manufacture, finance the manufacture of,
                      deliver, or finance the delivery of the drug; or
                      …
              (f) The offense is a Level 2 felony if: (1) the amount of the drug involved
              is at least twenty-eight (28) grams.




      Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 6 of 8
                                     A. Possession of Drugs
[10]   Ward argues that the evidence is insufficient to prove he had actual or

       constructive possession of the drugs which were found on Lance’s person

       during the search of the vehicle. In support of this argument, Ward claims that

       the State did not obtain any of Ward’s fingerprints from the drugs or obtain a

       statement from him indicating that he even knew of the drugs’ presence.

       However, all of the testamentary evidence indicates that the drugs were brought

       into the car by Ward and that he threw them on Lance when they were pulled

       over by the police. This is supported by testimony from both Lance and Best,

       who were in the backseat of the car at the time.


[11]   In this case, it is not necessary to reach constructive possession and delve into

       the various elements required to find such. Based on the facts as found by the

       jury, Ward had actual possession of the drugs in question. Both Lance and Best

       testified that Ward brought the drugs into the car. In addition, Lance and Best

       testified that when they were stopped by the police Ward dropped the drugs on

       Lance’s lap and demanded that she hide them. Finally, the drugs found

       “between [Ward’s] buttocks” provide additional support for a reasonable

       inference that Ward knew of the other drugs that were found in the car, namely

       methamphetamine and ethylone. Tr. p. 351.


                           B. Chemical Makeup of Substance
[12]   In challenging his conviction of Level 2 felony dealing in a schedule 1

       controlled substance, ethylone, Ward claims that the State did not prove that

       Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 7 of 8
       the chemicals present in that item were prohibited on schedule 1 of the

       controlled substances. We disagree.


[13]   During trial, Nickless testified that she had tested the drugs in question and

       found them to contain ethylone. She testified that ethylone is classified as a

       Schedule 1 drug under the synthetic drugs provision of the statute. Tr. p. 373.

       This testimony is sufficient to support a reasonable inference that Ward was

       dealing in a schedule 1 controlled substance, ethylone, and so it is enough to

       support the conviction.


[14]   The judgment of the trial court is affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 8 of 8
