MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                            Jun 13 2018, 8:44 am
regarded as precedent or cited before any
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
Donald R. Shuler                                         Curtis T. Hill, Jr.
Barkes Kolbus Rife & Shuler, LLP                         Attorney General of Indiana
Goshen, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Enedeo Rodriguez, Jr.,                                   June 13, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1707-CR-1607
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Plaintiff.                                      Christofeno, Judge
                                                         Trial Court Cause No.
                                                         20C01-1611-F2-31



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018              Page 1 of 42
                                             Case Summary
[1]   Enedeo Rodriguez, Jr., appeals his convictions and thirty-two-year sentence for

      Level 2 felony dealing in methamphetamine and Level 5 felony corrupt

      business influence. We affirm.


                                                    Issues
[2]   The issues before us are as follows:


              I.      whether Rodriguez was improperly denied a fast and
                      speedy trial;


              II.     whether the trial court erred in denying Rodriguez’s
                      motion for severance;


              III.    whether sufficient evidence exists to support Rodriguez’s
                      convictions;


              IV.     whether the trial court’s instructions to the jury resulted in
                      fundamental error; and


              V.      whether Rodriguez’s thirty-two-year sentence is
                      inappropriate given the nature of his offenses and his
                      character.


                                                     Facts
[3]   In 2016, Elkhart County Interdiction Covert Enforcement (“ICE”), working

      with other state and federal law enforcement agencies, received a tip that

      Alejandro Nava Rodriguez (“Nava”) was dealing methamphetamine.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 2 of 42
      Investigators began monitoring and conducting hand-to-hand purchases1 from

      Nava, and his associates, Luis Jaquez and Jorge Moreida. Investigators

      suspected that the three men were methamphetamine dealers and that they

      were working with a nearby supplier. Using the “buying through” technique,

      investigators placed large orders intended to “force [the dealers] to go to [their]

      supplier” and to lead investigators to the source of the methamphetamine. Tr.

      Vol. III pp. 183-84. Investigators obtained court orders that allowed for

      wiretaps, pen registers, and “pings,” which provided GPS location data for each

      investigative subject’s cell phone.


[4]   Rodriguez resided in New Paris and owned R&R Auto (“R&R”), an auto

      repair and resale business in Elkhart. Video surveillance frequently captured

      Moreida at R&R; he would later testify that he worked there occasionally,

      despite not being on the company’s payroll. Wire surveillance also revealed

      that Moreida and Rodriguez telephoned each other frequently and used

      language that investigators believed to be coded references to

      methamphetamine.


[5]   On April 18, 2016, investigators conducted a hand-to-hand purchase of

      methamphetamine from Nava. Nava initially met with an undercover officer to

      hash out the terms of the deal, drove to Jaquez’s house, and then delivered a




      1
        Undercover investigator UC 323 testified as to the distinction between a “controlled buy” and a “hand-to-
      hand” purchase as follows: “A controlled purchase is with the use of a confidential informant, and a hand-
      to-hand purchase is any time a[n] undercover officer purchase[s] hand-to-hand from a person.” Tr. Vol. IV p.
      98.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018            Page 3 of 42
      quarter pound of methamphetamine to the undercover officer. In all,

      investigators conducted five hand-to-hand purchases from Nava and two from

      Jaquez. They “were trying to determine whether Mr. Jaquez . . . was above or

      below Nava” in the drug operation’s hierarchy. Tr. Vol. III p. 198.


[6]   On June 29, 2016, investigators conducted a hand-to-hand purchase of four

      ounces of methamphetamine from Moreida for $4,000. On August 23, 2016,

      an undercover officer (“UC 3749”) went to Moreida’s house and agreed to buy

      an additional half-pound of methamphetamine for $6,400. Moreida told UC

      3749 “that he could make it happen; [but that] it would have to be later in that

      day.” Tr. Vol. IV p. 23. Afterwards, wire surveillance revealed that Moreida

      telephoned Rodriguez, drove to meet him in Elkhart, and that the men drove

      together to Rodriguez’s house in New Paris, remaining there only briefly.

      Moreida then dropped Rodriguez off at R&R and delivered one-half pound of

      methamphetamine to UC 3749.


[7]   On September 10, 2016, wire surveillance of Nava and Jaquez’s cell phone

      conversations revealed “that they were out” of methamphetamine. Tr. Vol. III

      p. 203. Thereafter, GPS data revealed that Rodriguez drove seventy miles to Fort

      Wayne, remained there for only twenty minutes, and returned to Elkhart. While

      Rodriguez was en route back to Elkhart, investigators overheard Jaquez and

      Moreida saying “that the meth, or the dope, or the onions, or whatever they were

      calling it that day, was coming, [and] it was close. So, [investigators] kind of put

      two and two together.” Id. at 204.



      Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 4 of 42
[8]   Investigators were in concealed positions outside Rodriguez’s house when he

      returned home. They watched as he backed his truck up to his garage, removed

      a cardboard box from the truck bed, and carried the box into the garage.

      Approximately twenty minutes later, Rodriguez replaced the same box on his

      truck bed and covered it with a heavy blanket. An investigator followed in an

      unmarked car as Rodriguez drove to Jaquez’s house, backed up his truck to

      Jaquez’s garage, removed the blanket, and carried the box into Jaquez’s garage.

      Rodriguez left within ten minutes. After Rodriguez left, the wire surveillance

      team alerted the on-site surveillance team that Nava was now en route to Jaquez’s

      house. Nava arrived soon thereafter, remained onsite only briefly, and then

      drove to see Juan Rivera, from whom investigators conducted several hand-to-

      hand purchases during this investigation. Id. at 214.


[9]   On October 22, 2016, UC 3749 conducted a hand-to-hand purchase of

      methamphetamine from Moreida. On October 28, 2016, while he was at R&R

      Auto, Moreida sent a text message to UC 3749 and offered to sell him more

      methamphetamine. For this hand-to-hand purchase, in addition to wire

      surveillance and an on-site surveillance unit, investigators also enlisted

      helicopter surveillance support with video recording capacity. On-site

      undercover investigators observed as Moreida negotiated with UC 3749.

      Rodriguez was present for the negotiation, and both men appear in the

      helicopter surveillance video of the transaction. Moreida and UC 3749 agreed

      on an $11,000 price for one pound of methamphetamine.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 5 of 42
[10]   Rodriguez and Moreida then drove to Rodriguez’s house, remaining there

       briefly, during which time Rodriguez retrieved an item, believed to be a digital

       scale from a vehicle, before re-entering the house. The men then drove to a cell

       phone store in Elkhart. Rodriguez went into the store, while Moreida

       proceeded to deliver the methamphetamine to UC 3749 at a nearby dry-

       cleaning establishment. Afterwards, Moreida picked up Rodriguez.


[11]   By now, investigators suspected that Rodriguez was a major methamphetamine

       supplier: Moreida had both called Rodriguez and received several phone calls

       from Rodriguez around the time of transactions; Moreida had “trip[ped]” to

       Rodriguez, whose travel patterns and conduct suggested that he may be a

       supplier to Jaquez, Nava, and Moreida; and Rodriguez “was physically present

       or near” at the time of two hand-to-hand purchases coordinated by Moreida. Tr.

       Vol. IV p. 20. Investigators also suspected that Rodriguez was transporting

       methamphetamine in R&R’s vehicles and conducted surveillance on R&R “for

       several weeks” during the investigation. Tr. Vol. III p. 216.


[12]   Investigators executed a federal search warrant at Rodriguez’s house on

       November 2, 2016.2 Rodriguez, his wife, and a young child were present when

       the search warrant was executed. The November 2, 2016 search yielded a

       significant quantity of methamphetamine in the basement, along with a

       measuring cup, two digital scales, two vacuum sealing machines, large,




       2
           The police also recovered documents that indicated Rodriguez owned or resided in the house.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018               Page 6 of 42
       industrial resealable bags, bulk quantities of cellophane, a cutting agent, and at

       least six cell phones. Investigators also recovered methamphetamine crystals

       and smoking devices from Rodriguez’s garage and 240 grams of

       methamphetamine and a large supply of resealable bags from the stereo speaker

       of a truck that was parked outside Rodriguez’s house.


[13]   On November 8, 2016, the State charged Rodriguez with Level 2 felony dealing

       in methamphetamine and Level 5 felony corrupt business influence. 3 As to the

       latter, the State alleged that Rodriguez, Nava, Rivera, Jaquez, and Moreida

       engaged in a pattern of racketeering activity and aided and abetted one another

       to deal, attempt to deal, or conspire to deal methamphetamine.


[14]   At his initial hearing on November 10, 2016, and after the trial court granted

       his request for a public defender, Rodriguez moved orally for a speedy trial,

       which motion was denied so Rodriguez could consult with his counsel. The

       trial court stated,


                THE COURT: Now, Mr. Rodriguez, with respect to a motion
                for an early trial under the trial rules, which people refer to as a
                fast and speedy trial, that is a motion that has to be made by your
                attorney. So talk to your attorney about whether or not that is in
                your best interest to do that. He or she will make that
                determination on your behalf after consulting with you.




       3
        As to Count II, the State charged the five co-defendants jointly. Trial was initially set for Jaquez on March
       20, 2017, and for the remaining four defendants on April 3, 2017. See Tr. Vol. II pp. 30-31.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018               Page 7 of 42
                                                           *****


               THE DEFENDANT: I’m still requesting a fast and speedy trial.


                                                      *****


               THE COURT: -- that’s fine. And I’m denying your request for
               two reasons: Number one, it’s not in writing; and number two, I
               can’t accept a request from you. It has to come through your
               attorney.


       Tr. Vol. II pp. 10-11.


[15]   On November 16, 2016, despite being represented by counsel, Rodriguez

       submitted, pro se, a letter to the trial court in which he requested a fast and

       speedy trial. The following day, Rodriguez’s appointed counsel entered his

       appearance. At a hearing on December 8, 2016, Rodriguez’s counsel opposed

       his speedy trial request and asked the trial court to withdraw the motion.4

       Rodriguez asked to be heard and the following colloquy ensued:


               THE COURT: Your attorney has spoken to you about this case.
               Is that correct?


               THE DEFENDANT: Yes, Your Honor.




       4
        The trial court noted that counsel for Rodriguez was still awaiting discovery; cited the likelihood that
       extensive discovery needed to be undertaken regarding the corrupt business influence charge; and noted that
       counsel needed additional time to prepare a defense.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018             Page 8 of 42
        THE COURT: And without going into the substance of what
        you spoke about, did he explain to you the possible pitfalls if he
        is required to proceed to trial within 70 days of the filing -- of
        your filing of the fast and speedy trial?


        THE DEFENDANT: Yes, Your Honor.


        THE COURT: And you understand that if I grant your fast and
        speedy trial that your attorney may or may not be prepared to
        proceed to trial?


        THE DEFENDANT: Yes, Your Honor.


        THE COURT: And you understand that because we’re having
        this discussion now, and if you are convicted and you are going
        to raise the argument of ineffective assistance of counsel that that
        will probably -- even if he is ineffective -- it will probably be
        upheld due to the fact that we’re having this discussion now.
        And I’m explaining to you that if you want your fast and speedy
        trial that it will be placed within 70 days of November l6 of 2016.


        THE DEFENDANT: Yes, Your Honor.


        THE COURT: And that if your attorney is not ready to proceed
        to trial, I will not grant you a continuance. Do you understand
        that?


        THE DEFENDANT: Yes, Your Honor.


        THE COURT: And so then we will proceed to a jury trial. If
        you are convicted at that jury trial that one of the possible
        remedies or appeal routes will be foregone by you because of
        your decision today.


Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 9 of 42
               THE DEFENDANT: Yes, Your Honor.


               THE COURT: And do you still wish to have a fast and speedy
               trial?


               THE DEFENDANT: Yes, Your Honor.


               THE COURT: So you understand that you are forcing your
               attorney to be prepared in this case, and he may not have all the
               information he needs to either protect your assets from being
               forfeited to the State of Indiana. Do you understand that?


               THE DEFENDANT: Yes, Your Honor.


               THE COURT: And you are willing to place your assets and/or
               your liberty in jeopardy to proceed with a fast and speedy [trial?]


               THE DEFENDANT: Yes, Your Honor.


       Id. at 17-19. Rodriguez’s counsel reiterated his view that Rodriguez was

       “making a decision that [wa]s clearly against his best interest” and asked that

       the motion be denied. Id. at 19. The trial court struck Rodriguez’s request as a

       pro se filing after appointment of counsel and, in the alternative, denied it.


[16]   Although the timing is unclear from the record, Rodriguez and Moreida

       exchanged letters in jail. Rodriguez urged Moreida to reject the State’s plea

       offer and to take the fall, in exchange for everyone “accept[ing] . . . and car[ing]

       for [him].” Id. at 131. Moreida perceived Rodriguez’s letters as threatening.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 10 of 42
       State’s Ex. 9; see Tr. Vol. II p. 128 (“In prison don’t worry [about] fighting, it’s

       the gossip that will kill you.”).


[17]   On March 7, 2017, the State filed a motion to consolidate, seeking to join

       Rodriguez’s trial with that of Nava, who was to be tried on June 5, 2017. The

       trial court denied the motion; however, at a hearing on March 30, 2017, the

       trial court advised that Rodriguez’s jury trial, slated for April 3, 2017, was

       unlikely to proceed as scheduled because another matter was scheduled ahead

       of his. The trial court also noted that discovery was still “ongoing.” 5 Id. at 37.

       The trial court advised Rodriguez that his counsel needed additional time to

       review newly-disclosed evidence and that the court’s calendar would not allow

       for trial on April 3, 2017. Subsequently, Rodriguez’s jury trial was continued to

       June 5, 2017 due to court congestion and to allow counsel time to review

       newly-disclosed evidence.


[18]   At a hearing on March 30, 2017, the following colloquy ensued:


                THE COURT: I just want to make sure that you -- that the
                State’s turned over what it has and what it knows so that Mr.
                Soldato and Mr. Rodriguez can get ready for trial. Now, you
                know, the first thing that comes up, Mr. Rodriguez, is Mr.
                Soldato and you need time to go over this.




       5
         The State acknowledged that it had received new documentation from the ATF “at the last minute” and
       that it had submitted the materials, consisting of sixty pages “plus four or six discs worth of . . . video and
       some kind of telephonic surveillance” to counsel for Rodriguez. Tr. Vol. II pp. 38, 39.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018                  Page 11 of 42
        THE DEFENDANT: Yes, Your Honor.


        THE COURT: Do you agree with that?


        THE DEFENDANT: Yes. But in -- in that same thing, what do
        you mean by time? Like, a continuance time? Or . . . .


        THE COURT: Well, I don’t think you’re going to be able to go
        over that by Monday. Number one, I don’t think your case is
        going to go to trial Monday.


                                               *****


        THE COURT: But number two, I don’t think you’re going to be
        ready. You know, you have to discuss that with Mr. Soldato. I --
        I just know that getting that amount of information that he hasn’t
        reviewed you, it -- it occurs to the Court, Mr. Rodriguez, you
        might want to review that with your counsel before you were in
        court and that was the first time that you’re hearing the evidence.


        THE DEFENDANT: Yes, Your Honor.


        THE COURT: I -- I’m not -- I’m not giving you legal advice, and
        I’m not telling you what to do. I am suggesting that I want to
        make sure you get a fair trial, Mr. Rodriguez.


                                               *****


        THE COURT: And it -- and it seems to me that if the first time
        you’re hearing the evidence is when you’re seated at that very
        seat and a jury is in that box, that's not going to give you a fair
        trial.


Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 12 of 42
        THE DEFENDANT: Your Honor, with all due respect, I know -
        - I know what I did do and what I didn’t do, and I’m ready for
        trial.


        THE COURT: I -- I don’t want you to say anything like -- like --
        you’re represented by counsel, and I don’t want you to blurt
        something out that you’re going to regret, Mr. Rodriguez.


        THE DEFENDANT: Okay.


        THE COURT: Okay. I don’t want to give you the idea that I’m
        trying to suggest you start talking about things.


        THE DEFENDANT: No. I -- I’m just ready for trial. I’m just
        ready for trial.


        THE COURT: Okay. You do understand that if another case
        goes to trial on Monday, you won’t go to trial. You do
        understand that?


                                               *****


        THE COURT: And then we would reset your case. You do
        understand that?


        THE DEFENDANT: Okay.


        THE COURT: Okay.


        THE DEFENDANT: Until -- until when? Or...




Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 13 of 42
        THE COURT: I would have to look at the Court’s calendar, but
        I would imagine -- I believe it’s June 5.


                                               *****


        MR. SOLDATO: I think Mr. Rodriguez’s one concern is that --
        and I’ve explained to him it’s the Court’s prerogative on when it
        resets the trial to. But he would if -- he would ask for an earlier
        trial date, if possible, before the June date.


        THE COURT: Well, I will go this far, Mr. Rodriguez; I will
        consider that. The problem I think you’ve got is this: That, as
        you are well aware, this is a busy court. And so the problem is,
        you know, we’re setting these trials. It isn’t just one or two cases
        that are getting set on a trial date. It’s 15 or more. So the
        problem is when you start looking at it -- at a time before June 5,
        let -- let me tell you what I’m trying to do so accommodate you.
        And I don’t know for certain that it’s that June 5 date, but I think
        that was one of the dates where -- where when the Court was
        looking at things. . . . So when you’re taking into account, you
        know, how upset you’re going to be with what’s going on, I’m
        already trying to move you up because I know you want to have
        a sooner trial date. Okay? That’s why I suggested the June 5
        date. I’ll look at the others, but the trouble is if you get put on
        one of those other dates, Mr. Rodriguez, and your case doesn’t
        go because other cases do, the same thing is going to happen that
        happened on Monday. You know, another case goes, your case
        doesn’t go, you get put further down the line. That’s why the
        Court was suggesting June 5.


        THE DEFENDANT: Okay.


                                               *****



Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 14 of 42
        THE DEFENDANT: Okay. Are you going release me on my
        own recognizance?


        THE COURT: No, I’m not.6


        THE DEFENDANT: Okay.


        THE COURT: I’m not. I’m not. And -- and the other thing that
        I would suggest is: You’ve got counsel, and you need to work
        through your counsel with the Court. When -- when you write
        the Court letters --


        THE DEFENDANT: Yes.


        THE COURT: -- you need to understand the Court can’t act on
        those letters. I can’t do anything about that because you’re --
        because you’re represented by counsel, you need to work through
        your counsel with the Court. And right now, you’ve got a lot to
        do. You’ve got a lot to do because you’ve got a lot discovery to
        go through to get ready for trial. I know you’ve indicated you’re
        ready. I would suspect that Mr. Soldato is going to want to get
        your take on some of that evidence.


                                                  *****


        THE COURT: . . .[R]ight now, your case is scheduled for April
        3rd for trial. Now, if the other case goes, your case isn’t going.
        I’m telling you that flat out because I want you to know that.
        And it’ll get continued, and I’ll look down the road and I’ll try
        and pick a date when I think you’re going to get fit in. My



6
  At his bond reduction hearing on December 8, 2016, the trial court determined that Rodriguez was a flight
risk.

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018            Page 15 of 42
               recollection June 5 was that date, which -- which would -- if you
               moved for a speedy trial right now, would be right around the
               speedy trial time, I would also add.


                                                      *****


               THE COURT: Okay. Mr. Rodriguez, when you were in court --


               THE DEFENDANT: Yes.


               THE COURT: -- you acknowledged the trial setting. I don’t
               think you’re listening to what the Court’s saying. You said you
               wanted it set April 3rd, and the Court set it April 3 and you said
               that was okay. And now you want to blame your attorney that it
               was set April 3rd. That’s not fair and that’s not right.


                                                      *****


               THE COURT: -- you’re getting what you bargained for. You
               wanted a trial April 3rd, and that’s what you’re going to get if the
               other case does not go to trial on April 3rd. If the other case goes
               to trial on April 3rd, which right now it is, then guess what?
               Your case is going to get continued by congestion. . . .


       Id. at 39-46.


[19]   On April 13, 2017, counsel made the following record regarding Rodriguez’s

       objection to the June 5, 2017 trial date being outside the seventy-day speedy

       trial period:


               MR. SOLDATO: . . . . Today, we are acknowledging the June
               5th trial date, but Mr. Rodriguez, personally, is objecting because

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 16 of 42
        it is outside of 70 days. And I’ll -- I’ll explain why I’m making
        that request now, if I might.


        On November 10th when Mr. Rodriguez had his initial hearing,
        he orally requested a speedy trial. Magistrate denied the speedy
        trial because public defender was about to be appointed. And
        Magistrate Osterday instructed Mr. Rodriguez to discuss that
        issue with counsel, which turned out to be myself. So at the next
        hearing, which was December 8th, 2016, we took up the issue of
        the early trial.


        Now, in--between the initial hearing and the December 8th
        hearing, Mr. Rodriguez had written a -- and filed a motion for
        early trial on his own without my approval or consent. At the
        December 8th hearing, we took up the issue. I requested that the
        Court withdraw Mr. Rodriguez -- his filing for the speedy trial
        because I did not think, given the extent of discovery, I could be
        ready for trial within 70 days.


        Over my objection, Mr. Rodriguez continuously asserted that he
        wanted to be tried within 70 days at that hearing. Judge Cataldo
        . . . denied the early trial. Mr. Rodriguez, all along, as the Court
        is well aware, has consistently maintained that he wants to be
        tried within 70 days, over even my objection.


        Obviously, this June 5th trial date is outside of that 70 days. I
        understand that I have asked not to be tried within 70 days,
        personally, in this case. But I think Mr. Rodriguez’s argument
        that he wants to preserve, if this case were to be appealed, is that
        that request for trial within 70 days should be a right that is
        personal to him. He shouldn’t be able to be trumped by defense
        counsel on that issue.


        So that’s a long way of saying, Your Honor, we’re
        acknowledging the trial date. But Mr. Rodriguez, personally,

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 17 of 42
        wants to continue objecting because he has asserted from day one
        that he should have had a speedy trial in this case. Thank you.


        THE COURT: Okay. Mr. Soldato and Mr. Rodriguez, I think
        that was a long way of saying you now acknowledge that your
        case is set for trial June 5, 2017, at 8:30 a.m. Is the Court correct
        in that?


        MR. SOLDATO: That’s correct.


        THE COURT: Mr. Rodriguez, is that correct?


        THE DEFENDANT: Yes.


                                               *****


        THE COURT: Okay. So now, let’s get back to it. You
        understand your case is set for trial June 5, 2017, at 8:30 a.m.
        Correct?


        THE DEFENDANT: Correct.


Id. at 48-51. The trial court added,


        I can tell you this, and I think I told you this last time. I think
        you have a better chance of your case going to trial June 5 than
        you did April 3, and it turns out the Court was right on that
        because there was another case . . . on April 3rd, which is why
        you got bumped to June 5. Okay?


Id. at 52. The judge added that, because Rodriguez’s codefendants were all

slated for trial on June 5, 2017, “[I]t’s more likely that June 5 date may go[.]”

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 18 of 42
       Id. at 53. Thus, the trial court scheduled trial for June 5, 2017. At a hearing on

       May 11, 2017, Rodriguez agreed that the trial date complied with his speedy

       trial request.


[20]   On May 16, 2017, Rodriguez’s counsel also filed a motion to sever the counts

       in the information, arguing that Rodriguez would suffer prejudice as to count I

       if the jury heard evidence on count II. Counsel asked that the counts be tried

       separately. After a hearing on June 1, 2017, the trial court denied Rodriguez’s

       motion to sever counts for trial, finding “a sufficient connection [between

       counts I and II] to allow the State to go forward” and concluded that through

       “extensive voir dire of the prospective jurors, . . . arguments by [defense

       counsel], [and] . . . more detailed specific jury instructions,” Rodriguez would

       suffer no prejudice. Id. at 86.


[21]   On June 5 and 6, 2017, Rodriguez and Nava were tried by jury simultaneously.7

       Law enforcement witnesses testified to the foregoing facts. UC 382 testified

       about “certain language and jargon” and common practices of drug dealers. Id.

       at 191; Tr. Vol. IV p. 36. He testified as follows regarding the drug interdiction

       tactic known as “trip[ping]”:


               So, when you get to the more medium to higher level dealers,
               what they do is they will do whatever they can to avoid being in



       7
         As to Nava, the State’s charging information alleged the following offenses: Counts I to V, five counts of
       Level 2 felony dealing in methamphetamine; and Count VI, level 5 felony corrupt business influence. By the
       time of trial, Moreida, Jaquez, and Rivera had entered plea agreements with the State.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018            Page 19 of 42
               possession of a large amount of meth, or controlled substance at
               one time. And, often times, they don’t want to have both the
               meth and money in one spot, which leads to getting to robbed,
               especially, if you’ve been dealing for a long time, people know
               you, your pattern. So, what they’ll do is they will not hold the
               meth at their home and often times they’ll come to it by location,
               make sure you have the money, or take the money, and trip to
               somewhere else to get the meth and then bring it back. A lot of
               times they believe it insulates them from holding the meth on
               them. Also, it eliminates traffic at their house, so, if a drug dealer
               lives in one location, he doesn’t want all of his customers coming
               to and from. . . . So, they do the best they can to avoid that. So,
               they do it away, another location, and they keep the dope and the
               money separate, which causes them, or forces them to trip, a lot
               more back and forth.


       Tr. Vol. III p. 186-87.


[22]   Moreida testified on behalf of the State. At the time, he had entered a guilty

       plea and was awaiting sentencing. He testified that Rodriguez, who was friends

       with his older brother, had approached him and asked to meet at Rodriguez’s

       house in New Paris. Rodriguez then “asked for [Moreida’s] help” in selling

       methamphetamine and asked to store methamphetamine at Moreida’s house.

       Tr. Vol. IV p. 113. Moreida also testified that he and Rodriguez sold “[m]eth

       and drugs” together for approximately one and one-half years until their arrests

       for the instant offenses. Id. He testified further that there was a hierarchy in the

       drug dealing operation, consisting of Jaquez at the top, then Nava, Rodriguez,

       and himself in the drug dealing operation. He testified that he occasionally

       worked at R&R and that the men transported methamphetamine in the wheels

       of R&R’s vehicles. He testified that he began to use and became addicted to

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 20 of 42
       methamphetamine after he joined the drug dealing operation. He also testified

       that he suffered an overdose, but that Rodriguez would not take him to a

       hospital for fear of being arrested.


[23]   Moreida testified that Rodriguez supplied the methamphetamine for the hand-

       to-hand transactions on August 23 and October 28, 2016. On each occasion, he

       testified, the men had driven together to New Paris to pick up

       methamphetamine from “a little room where everything’s done at . . . a little

       wooden desk” in Rodriguez’s basement. Id. at 119. He testified further that

       when a buyer wanted a larger quantity of methamphetamine, he went to

       Rodriguez “[b]ecause that was my higher [up].” Id. at 118. He testified that,

       before making methamphetamine deliveries, he routinely dropped Rodriguez

       elsewhere beforehand, “[s]o [Rodriguez] wouldn’t be seen [.]” Id. at 117.


[24]   Moreida testified that, after they were arrested, Rodriguez sent letters warning

       him not to testify; telling him he “could always back out of [his] plea bargain”;

       “if [he] d[id]n’t testify, [he] would be okay, looked out for . . . . [I]f [he] d[id] . .

       . it’d be the other way around”; to “watch [his] back”; and “if [he] t[ook] the

       blame that . . . everybody w[ould] accept [him] [and he] . . . wouldn’t need

       nothing [sic] ….” Id. at 127, 130, 131. Moreida testified that, because he and

       his codefendants were incarcerated in the same cell block in advance of trial, he

       feared for his life, should they learn that he was a cooperating State’s witness.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 21 of 42
[25]   After the State presented its case-in-chief, Nava and Rodriguez rested. In its

       preliminary as well as final instructions, the trial court instructed the jury as

       follows regarding the dealing in methamphetamine charge:


               Before you may convict the defendant, the State must
               have proved each of the following elements beyond a reasonable
               doubt:

               1. the defendant;

               2. possessed, with intent to deliver;

               3. methamphetamine;

               4. and the amount of the drug involved was at least ten (10)
                  grams.

               If the State failed to prove each of
               these elements beyond a reasonable doubt, you should find the
               Defendant, ENEDEO RODRIGUEZ, JR., not guilty of Dealing
               in Methamphetamine, a Level 2 Felony charged in Count I.


       Tr. Vol. V pp. 109, 129. The trial court defined “possess” and “possession”;

       however, it did not define “possessed, with intent to deliver.”


[26]   The jury found Rodriguez guilty as charged. At his June 29, 2017 sentencing

       hearing, the trial court found, as aggravating circumstances, the following: (1)

       Rodriguez’s prior criminal history; (2) he was on federal probation when he

       committed the instant offenses; (3) his record of violating supervised release and

       violating probation; (4) his extensive drug and alcohol abuse; (5) his use of

       methamphetamine until his arrest; (6) the probation department’s finding that

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 22 of 42
       he had a moderate risk to reoffend; (7) his threats to a cooperating witness

       against him; (8) he dealt methamphetamine at his house where a young child

       was present; and (9) he had not been deterred from criminal activity despite

       ample opportunities to conform his behavior. The trial court found the

       following mitigating circumstances: his lack of violent criminal history; the

       absence of guns or weapons in his home; he spent his drug dealing income on

       his five children; and his apologies to his children and to the trial court. The

       trial court sentenced Rodriguez to twenty-seven years on the Level 2 felony and

       five years on the Level 5 felony, suspended four years to probation, and ordered

       the sentences to be served consecutively. Rodriguez now appeals.


                                                     Analysis
                                                I.      Speedy Trial

[27]   Rodriguez contends that the trial court improperly denied him a fast and speedy

       trial. The State counters that because Rodriguez was represented by counsel

       when he requested a speedy trial, the trial court acted within its discretion to

       strike and deny Rodriguez’s pro se request.


[28]   Both the U.S. and Indiana Constitutions protect the right of an accused to a

       speedy trial. U.S. Const. amend. VI; Ind. Const. art. 1, § 12. “The speedy trial

       right is a fundamental principle of constitutional law that has been zealously

       guarded by our courts.” Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012)

       (internal quotations omitted). Indiana Criminal Rule 4(B)(1) generally

       implements the constitutional right of an accused to a speedy trial and provides:


       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 23 of 42
               If any defendant held in jail on an indictment or an affidavit shall
               move for an early trial, he shall be discharged if not brought to
               trial within seventy (70) calendar days from the date of such
               motion . . . .


       Ind. Crim. R. 4(B)(1), emphasis added. The rule then lists conditions that

       excuse the failure to bring a defendant to trial within that time frame. Cundiff,

       967 N.E.2d at 1028. In reviewing Criminal Rule 4(B) claims, we review factual

       findings under the clearly erroneous standard. Austin v. State, 997 N.E.2d 1027,

       1040 (Ind. 2013). We review questions of law de novo. Id. at 1039.


[29]   Our supreme court has stated that once counsel is appointed, a defendant

       speaks to the court through counsel. Underwood v. State, 722 N.E.2d 828, 832

       (Ind. 2000). “When a defendant is represented by counsel, it is within the trial

       court’s discretion to entertain or strike pro se motions.” Vance v. State, 620

       N.E.2d 687, 689 (Ind. 1993).


[30]   Here, Rodriguez requested appointment of pauper counsel at his initial hearing

       on November 10, 2016; the trial court granted his motion. He subsequently

       moved orally for a speedy trial, which motion was denied so that he could

       confer with his counsel. Rodriguez again requested a speedy trial in a pro se

       letter to the trial court on November 16, 2016. Defense counsel asked the trial

       court to withdraw Rodriguez’s request for a speedy trial on December 8, 2016,

       citing ongoing discovery and the need for additional time in which to prepare a

       defense. The trial court struck Rodriguez’s request as a pro se filing after

       appointment of counsel and, in the alternative, denied it. The record is clear


       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 24 of 42
       that defense counsel for Rodriguez never pursued an early trial on Rodriguez’s

       behalf. Under the foregoing circumstances, we find that requiring the trial court

       “to respond to both Rodriguez and his counsel would have effectively created a

       hybrid representation to which Rodriguez was not entitled.” See Underwood,

       722 N.E.2d at 832. Because Rodriguez’s requests for speedy trial were made

       after appointment of counsel, the trial court was not required to respond.

       Rodriguez has not established that the trial court improperly denied him a fast

       and speedy trial.


[31]   Additionally, we note that criminal Rule 4 and subsequent interpretations have

       recognized that court congestion and other exigent circumstances may justify a

       reasonable delay beyond the seventy-day period. See Loyd v. State, 272 Ind. 404,

       408, 398 N.E.2d 1260, 1265, cert. denied. The record here reveals that the trial

       court’s continuance and application of the court congestion exception were

       factually supported. Although Rodriguez and his counsel made an extensive

       record as to his desire for a speedy trial on April 3, 2017, the trial court

       cautioned of various risks—ongoing discovery, inadequate preparation time for

       defense counsel, and the likelihood that another matter would trump

       Rodriguez’s April 3, 2017 jury trial.8 The record further reveals that the trial

       court sought to accommodate Rodriguez, while also urging him to heed the




[1]    8
         Not only did another jury trial displace Rodriguez’s on the trial court’s April 3, 2017 calendar but, as the
       trial court later explained, the defendant in that case entered a plea on the morning of trial, when a jury was
       already impaneled and “ready to go.” Tr. Vol. II pp. 53-54.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018                Page 25 of 42
       advice of his counsel. The record also reveals that, absent a continuance,

       Rodriguez and his counsel would have been at a considerable disadvantage

       without adequate time to review newly-disclosed, incriminating surveillance

       and documentary evidence. Further still, Rodriguez was initially to be tried

       with four codefendants—most of whom were already scheduled for jury trial on

       June 5, 2017, which was the alternate trial date that the trial court proposed to

       Rodriguez.9 Lastly, we note that the continuance period—from April 2, 2017 to

       June 5, 2017—was relatively short, at less than two months. See Criminal Rule

       4(C) (allowing continuance of trial for “a reasonable time”). Based upon the

       foregoing, we conclude that the trial court’s continuance of Rodriguez’s jury

       trial for reasons of court congestion and its handling of Rodriguez’s speedy trial

       request was not clearly erroneous.


                                               II.      Motion to Sever

[32]   Rodriguez argues that counts I and II were joined solely because they were of a

       similar character and that he was entitled to severance as a matter of right. We

       review arguments that a trial court improperly denied a motion to sever as a

       matter of right de novo. Booker v. State, 790 N.E.2d 491, 494 (Ind. Ct. App.

       2003). If the defendant was not entitled to severance as a matter of right, the

       trial court has discretion whether to grant severance, and we will review the

       trial court’s decision for an abuse of discretion. Ben-Yisrayl v. State, 690 N.E.2d




       9
        With the exception of Nava, each of Rodriguez’s codefendants ultimately entered guilty pleas before the
       June 5, 2017 jury trial setting.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018           Page 26 of 42
       1141, 1146 (Ind.1997), cert. denied. We will reverse for an abuse of discretion

       “only upon a showing of clear error.” Id. (quoting Davidson v. State, 558 N.E.2d

       1077, 1083 (Ind. 1990)).


[33]   We initially note that the trial court instructed the jury “to consider the

       evidence as it may apply to each count individually and separately from the

       other counts.” App. Vol. II p. 132. We further note that a jury is presumed to

       have followed the trial court’s admonishments, and when the jury is properly

       instructed, we presume they followed such instructions. Francis v. State, 758

       N.E.2d 528, 532 (Ind. 2001); Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015


[34]   Where offenses have been joined because the defendant’s underlying acts are

       connected together or constitute parts of a single scheme or plan, we review the

       trial court’s decision on severance for an abuse of discretion. Pierce v. State, 29

       N.E.3d 1258, 1264 (Ind. 2015). Indiana Code Section 35-34-1-9(a) provides

       that:


               …[T]wo (2) or more offenses may be joined in the same
               indictment or information, with each offense stated in a separate
               count, when the offenses:


               (1) are of the same or similar character, even if not part of a
               single scheme or plan; or


               (2) are based on the same conduct or on a series of acts
               connected together or constituting parts of a single scheme or
               plan.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 27 of 42
       Subsection 9(a)(1) refers to the nature of the charged offenses, and subsection

       9(a)(2) refers to the operative facts underlying those charges. Pierce v. State, 29

       N.E.3d 1258, 1265 (Ind. 2015).


[35]   The defendant shall have the right to severance of the offenses “[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[.]” Ind. Code § 35-34-1-11.


               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


               (3) whether the trier of fact will be able to distinguish the
               evidence and apply the law intelligently as to each offense.


       Id.


[36]   In Harvey v. State, 719 N.E.2d 406, 408 (Ind. Ct. App. 1999), the defendant was

       charged in connection with two robberies that were committed mere days apart.

       During each robbery, one robber—the taller of the men—pistol-whipped the

       victims, while the shorter man assisted. Noting that robberies inherently share

       certain similarities, a panel of this court deemed the facts “sufficient to show a

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 28 of 42
       ‘series of acts connected together’ induced by the common motive to rob” and

       determined that Harvey was not entitled to severance as matter of right. Id. at

       409.


[37]   Here, in denying the motion to sever, the trial court found a sufficient

       connection between counts I and II to justify allowing the State to go forward.

       The yearlong investigation exposed the inner workings of a drug dealing

       operation in which Nava, Jaquez, Rivera, Moreida, and Rodriguez acted,

       independently and in concert, to obtain, exchange, package, transport, and sell

       methamphetamine. Through coordination, coded telephone calls, trips to each

       other’s houses, Rodriguez’s quick-turnaround jaunts to New Paris and Fort

       Wayne to obtain more methamphetamine, use of R&R’s vehicles for drug

       transport, and pre-arranged security measures for the senior dealers in the

       hierarchy, the four men conducted their drug business, induced by their

       common motive to deal methamphetamine.


[38]   As we did in Harvey, we conclude that the foregoing evidence was sufficient to

       show a series of acts connected together or constituting parts of a single scheme

       or plan, induced by a common motive to deal methamphetamine. Rodriguez

       has not demonstrated that the trial court’s denial of his motion for severance

       was an abuse of discretion.


                                       III.    Sufficiency of the Evidence

[39]   Rodriguez argues that insufficient evidence exists to support his convictions.

       When reviewing the sufficiency of the evidence needed to support a criminal


       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 29 of 42
       conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

       supporting the judgment and any reasonable inferences that can be drawn from

       such evidence.” Id. We will affirm if there is substantial evidence of probative

       value such that a reasonable trier of fact could have concluded the defendant

       was guilty beyond a reasonable doubt. Id.


                            A. Level 2 Felony Dealing in Methamphetamine

[40]   Rodriguez argues that the State failed to present “evidence … that [he] was ever

       seen in actual possession of methamphetamine” or that he had the requisite

       intent to deliver methamphetamine. Appellant’s Br. p. 34.


[41]   To convict a defendant of Level 2 felony dealing in methamphetamine, the

       State is required to prove the following:


                (a) A person who:


               ...


               (2) possesse[d], with intent to:


               ...


               (C) deliver


               ...




       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 30 of 42
               methamphetamine, pure or adulterated; commit[ted] 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.


       I.C. § 35-48-4-1.1.


[42]   Here, the State presented witness testimony distinguishing between recreational

       drug users and drug dealers. An undercover officer testified that dealers

       generally possess large quantities of the drug as well as supplies needed to

       weigh, distribute, package, store, and transport the drugs. Here, investigators

       recovered methamphetamine from Rodriguez’s basement and from his truck

       speaker. They also found a cutting agent, digital scales, industrial resealable

       bags, cellophane in bulk quantities, and numerous cell phones. Reasonable

       inferences that Rodriguez possessed methamphetamine with intent to deliver

       may be drawn from the considerable amount of methamphetamine and drug

       dealing paraphernalia, i.e., digital scales, cutting agent, countless resealable

       baggies, vacuum sealers, etc., that were found in his basement (consistent with
       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 31 of 42
       Moreida’s testimony) and hidden in the speaker of his truck, where the State

       presented evidence that the house and truck contained proof of his ownership.

       See Enamorado v. State, 534 N.E.2d 740, 742-43 (Ind. 1989); McGuire v. State, 613

       N.E.2d 861, 864 (Ind. Ct. App. 1993) (Circumstantial evidence of intent to

       deliver, such as possession of a large quantity of drugs, scales, plastic bags, and

       other paraphernalia, can support a conviction.).

[43]   The State also presented evidence that investigators intercepted and recorded a

       telephone conversation in which Nava and Jaquez mentioned being out of

       methamphetamine, which complaint coincided with Rodriguez’s quick trip to

       Fort Wayne and immediate return, after which Nava and Jaquez rendezvoused

       with him and were once again fully stocked with methamphetamine.

[44]   Additionally, Moreida testified as follows: to fill larger orders for

       methamphetamine, he obtained additional drugs from Rodriguez; he

       telephoned Rodriguez and traveled to Rodriguez’s home to retrieve

       methamphetamine immediately before making deliveries on August 23 and

       October 22, 2016; Rodriguez used R&R’s vehicles to conceal and transport

       large quantities of methamphetamine; Rodriguez was safely ensconced nearby

       during two of Moreida’s deals with undercover investigator(s), having both

       supplied the methamphetamine and having had Moreida take him a safe

       distance away until the deal was done, as was customary in the operation.

       Based on the foregoing, we conclude that the State presented sufficient evidence

       to support Rodriguez’s conviction for Level 2 felony dealing in

       methamphetamine.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 32 of 42
                             B. Level 5 Felony Corrupt Business Influence

[45]   To convict Rodriguez of Level 5 felony corrupt business influence, the State

       was required to prove that he, along with Moreida, Jaquez, Rivera, and Nava,

       “while employed by or associated with an enterprise, knowingly conducted or

       otherwise participated in the activities of that enterprise through a pattern of

       racketeering activity.” App. Vol. II p. 108; I.C. §§ 35-46-6-2(2); 35-41-2-4.


[46]           First, we must determine whether [Rodriguez] was associated
               with an “enterprise,” which is defined, among other things, as “a
               union, an association, or a group, whether a legal entity or
               merely associated in fact.” I.C. § 35-45-6-1(c)(2). “[T]he
               hallmark of an enterprise is structure . . . . A RICO enterprise is
               an ongoing group of persons ‘associated through time, joined in
               purpose, and organized in a manner amenable to hierarchical or
               consensual decision-making.’” Additionally, because a RICO
               enterprise is more than a group who got together to commit a
               pattern of racketeering activity, there should be sufficient
               evidence to infer that the group is an “‘organization with a
               structure and goals separate from the predicate acts themselves.’”


       See Purvis v. State, 87 N.E.3d 1119, 1126 (Ind. Ct. App. 2017) (internal citations

       and quotations omitted).


[47]   Here, the State presented the following evidence that Rodriguez, Moreida,

       Jaquez, Rivera, and Nava actively participated in a drug dealing enterprise with

       the goal of selling methamphetamine: (1) Rodriguez recruited Moreida into the

       group of dealers in which Rodriguez was at the higher end of the hierarchy; (2)

       there was significant coordination between the five men, (i.e., Rodriguez sold

       methamphetamine with Jaquez; Moreida sold methamphetamine for

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 33 of 42
       Rodriguez; and Rodriguez supplied the dealers with methamphetamine); (3)

       Rodriguez waited nearby as Moreida completed transactions on August 23 and

       October 22, 2016; (4) the dealers maintained regular contact via coded text

       messages and telephone calls and frequented each other’s houses and/or

       Rodriguez’s place of business, R&R; and (6) undercover investigators made

       hand-to-hand purchases of methamphetamine from Moreida (four times), Nava

       (five times), and Jaquez (two times);


[48]   Although investigators did not buy methamphetamine directly from Rodriguez,

       the State presented the following evidence of his role as a/the supplier to the

       drug dealing operation: on August 23 and October 28, 2016, Moreida

       telephoned, met with, and “trip[ped]” to retrieve methamphetamine from

       Rodriguez’s house before completing methamphetamine transactions;

       Rodriguez used R&R’s vehicles to transport large quantities of

       methamphetamine; Rodriguez traveled between his codefendants’ houses and

       to other cities shortly before methamphetamine transactions; investigators

       found more than 240 grams of methamphetamine, as well as a cutting agent, a

       measuring cup, drug paraphernalia, industrial resealable bags, digital scales,

       vacuum sealing machines, and a bulk quantity of cellophane used in packaging

       drugs for resale in Rodriguez’s house. See McGuire, 613 N.E.2d at 864.


[49]   Based on the foregoing, the State presented sufficient evidence that Rodriguez

       was associated with an “enterprise” with a structure and goals separate from the

       predicate acts. See Purvis, 87 N.E.3d at 1126; see Waldon v. State, 829 N.E.2d

       168, 176-77 (Ind. Ct. App. 2005) (holding there was sufficient evidence of a

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 34 of 42
       RICO enterprise where the defendant “was the ringleader of a group of

       individuals organized to carry out crime”), disapproved on other grounds in Jackson

       v. State, 50 N.E.2d 767, 775 (Ind. 2016).


[50]   Next, we must determine whether Rodriguez engaged in “racketeering

       activity,” which means “to commit, to attempt to commit, to conspire to

       commit a violation of, or aiding and abetting in a violation” of any of the listed

       offenses. It is undisputed that racketeering activity includes dealing in

       methamphetamine. See I.C. § 35-45-6-1(e)(29).


[51]   Third, we consider whether the dealers’ behavior amounted to a “pattern of

       racketeering activity,” which is defined as “engaging in at least two (2) incidents

       of racketeering activity that have the same or similar intent, result, accomplice,

       victim, or method of commission, or that are otherwise interrelated by

       distinguishing characteristics that are not isolated incidents . . . .” I.C. § 35-45-

       6-1(d).


                [T]he statute does not apply to sporadic or disconnected criminal
                acts. Thus, although failure to prove continuity [of the acts] is
                not necessarily fatal to a corrupt business influence conviction—
                since it is not a separate element in the statute—the State must
                still demonstrate that the criminal incidents were in fact a
                “pattern” and not merely “isolated” incidents. And evidence of a
                degree of continuity or threat of continuity is certainly helpful in
                establishing the necessary “pattern.”


       Purvis, 87 N.E.2d at 1127 (quoting Jackson v. State, 50 N.E.3d 767, 775-76 (Ind.

       2016).


       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 35 of 42
[52]   Here, the State established that the drug dealers’ crimes were neither isolated

       nor sporadic by presenting evidence of the interrelated nature of their activities,

       including the methamphetamine transactions involving Rodriguez and Moreida

       on August 23 and October 22, 2016; the dealers’ coordinated operating

       practices; the frequency, extent, and nature of their interactions; and that their

       drug transactions followed similar patterns and timeframes and were completed

       with the same intent, which was to sell methamphetamine.


[53]   Based on the foregoing, we find that the State presented sufficient evidence to

       support Rodriguez’s conviction for Level 5 felony corrupt business influence.


                                             IV.      Jury Instruction

[54]   Rodriguez argues that, in instructing the jury, the trial court “failed to give a

       separate instruction on intent to deliver” and “effectively misled the jury on the

       law regarding [the] charged offense.” Appellant’s Br. p. 40.


               With no separate instruction, and the coupl[ing] of intent to
               deliver with possession in listing the necessary elements of the
               charged offense, the jury was giv[en] the impression that if they
               found [Rodriguez] had constructive possession of the
               methamphetamine … then . . . he [necessarily] also had the
               requisite intent to deliver . . . .


       Id. Because defense counsel failed to object, Rodriguez asserts that the alleged

       error in instructing the jury constituted fundamental error.


[55]   Our Supreme Court set out the applicable standard of review as follows:



       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 36 of 42
               Because instructing the jury is a matter within the sound
               discretion of the trial court, we will reverse a trial court’s decision
               to tender or reject a jury instruction only if there is an abuse of
               that discretion. We determine whether the instruction states the
               law correctly, whether it is supported by record evidence, and
               whether its substance is covered by other instructions. “Jury
               instructions are to be considered as a whole and in reference to
               each other; error in a particular instruction will not result in
               reversal unless the entire jury charge misleads the jury as to the
               law in the case.”


               Where, as here, the defendant failed to preserve an alleged
               instructional defect, the objection is waived, and reversal is
               warranted only in instances of fundamental error. “Error is
               fundamental if it is ‘a substantial blatant violation of basic
               principles’ and where, if not corrected, it would deny a defendant
               fundamental due process.” This exception to the general rule
               requiring a contemporaneous objection is narrow, providing
               relief only in “egregious circumstances” that made a fair trial
               impossible.


       Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (internal citations omitted).

[56]   In the virtually-identical Preliminary Instruction Number 3 and Final

       Instruction Number 4, the trial court enumerated the elements of Level 2 felony

       dealing in methamphetamine as follows:


               Before you may convict the Defendant, the State must have
               proved each of the following elements beyond a reasonable
               doubt:

               1. The Defendant;

               2. possessed, with intent to deliver


       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 37 of 42
               3. methamphetamine

               4. and the amount of the drug involved was at least ten (10)
                  grams.

               If the State failed to prove each of these elements beyond a
               reasonable doubt, you should find the Defendant, ENEDEO
               RODRIGUEZ, JR, not guilty of Dealing in Methamphetamine,
               a Level 2 Felony, Charged in Count I.


       App. Vol. II pp. 109, 129 (emphasis added).

[57]   Rodriguez correctly states that it is fundamental error for the trial court to fail to

       give an instruction setting forth all the elements of the offense. Nantz v. State,

       740 N.E.2d 1276, 1282 (Ind. Ct. App. 2001). We find no such error here,

       however. From our review of the record, by stating the second element of the

       offense as it did and separating the mens rea and the possession components,

       the trial court alerted jurors that both components of the clause comprised the

       element. Thus, the instruction’s “possessed, with intent to deliver” is the

       functional equivalent of “possessed, [and] with intent to deliver….”


[58]   Coupled with the trial court’s repeated instruction to jurors that “[if] the State

       failed to prove each of these elements beyond a reasonable doubt, you should

       find the Defendant . . . not guilty,” we cannot say that the jury was misled into

       believing that evidence that Rodriguez constructively possessed

       methamphetamine necessarily meant that he intended to deliver the

       methamphetamine. Id. at 110. As stated above, the State presented evidence

       from which the jury could reasonably and independently infer that Rodriguez


       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 38 of 42
       intended to deliver methamphetamine. See McGuire, 613 N.E.2d at 864

       (holding that possession of a large quantity of drugs, scales, plastic bags, and

       other paraphernalia is circumstantial evidence of intent to deliver). Rodriguez

       has not persuaded us that he was deprived of a fair trial as a result of the court’s

       instructions to the jury; we find no fundamental error.


                                                  V.       Sentence

[59]   Rodriguez argues that his sentence is inappropriate in light of the nature of his

       offenses and his character. We may revise a sentence if it is “inappropriate in

       light of the nature of the offense and the character of the offender.” Ind.

       Appellate Rule 7(B). Whether the reviewing court regards a sentence as

       inappropriate turns on a “sense of the culpability of the defendant, the severity

       of the crime, the damage done to others, and myriad other factors that come to

       light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

       This Court “must give ‘deference to a trial court’s sentencing decision, both

       because Rule 7(B) requires us to give due consideration to that decision and

       because we understand and recognize the unique perspective a trial court brings

       to its sentencing decisions.’” Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App.

       2013) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)).

       Rodriguez bears the burden of persuading us that his sentence is inappropriate.

       Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007).


[60]   The advisory sentence is the starting point to determine the appropriateness of a

       sentence. See Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007). The advisory sentence for a Level 2 felony is
       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 39 of 42
       seventeen and one-half years, with a minimum sentence of ten years and a

       maximum sentence of thirty years. Ind. Code § 35-50-2-4.5 (2014). Here, the

       trial court imposed an enhanced sentence of twenty-seven years for Level 2

       felony dealing in methamphetamine. The advisory sentence for a Level 5

       felony is three years, with a minimum sentence of one year and a maximum of

       six years. I.C. § 35-50-2-6 (2014). Here, the trial court imposed an enhanced

       five-year sentence for Level 5 felony corrupt business influence.


[61]   As to the nature of the offenses, Rodriguez was among the architects of and

       actively participated in a drug dealing operation in which he, Jaquez, Nava,

       Rivera, and Moreida dealt methamphetamine. Rodriguez recruited Moreida to

       sell methamphetamine for the operation and to store smaller quantities of

       methamphetamine at his house. Rodriguez obtained, packaged for sale, and

       transported methamphetamine, which he supplied to Jaquez, Nava, Rivera,

       and Moreida for their larger-scale transactions. Ranked at the higher end of the

       hierarchy, Rodriguez schemed and incorporated measures to hide his key role

       in the drug operation, including using coded language on the phone with his

       fellow dealers; using R&R’s vehicles to transport methamphetamine; shuttling

       methamphetamine between cities, vehicles, and houses; and waiting at a safe

       distance while an underling (Moreida) completed transactions. A police search

       of Rodriguez’s house and vehicle yielded more than ten times the statutory

       amount of methamphetamine required to prove Level 2 felony dealing in

       methamphetamine, as well as other evidence of dealing activity, i.e., a cutting




       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 40 of 42
       agent, digital scales, resealable bags, vacuum sealers, six to eight cell phones,

       and bulk quantities of cellophane.


[62]   With regard to his character, Rodriguez has multiple misdemeanor and felony

       convictions, including convictions for class A misdemeanor possession of

       marijuana/hash (2000), class D felony possession of marijuana/hash (2001),

       class A misdemeanor driving while suspended (2004, 2006 X 2), and conspiracy

       to possess with intent to distribute Schedule I controlled substance – marijuana

       (2006). He was incarcerated at the age of twenty-five until the age of thirty-

       three. He was on federal probation when he committed the instant offenses.


[63]   Rodriguez’s refusal to address his substance abuse also reflects poor on his

       character. The pre-sentence investigation report provides that he began using

       cocaine at age fifteen and used it regularly, with his last known cocaine use

       occurring two months before his arrest in November 2016. Rodriguez also

       reported that he used methamphetamine from October 2014 until his arrest.


[64]   The record sheds additional light on Rodriguez’s character as follows: he

       recruited his friend’s brother, Moreida, into dealing methamphetamine for him,

       and Moreida became acutely addicted to the drug. Because Rodriguez’s

       primary concern was shielding himself from prosecution, he refused to take

       Moreida to an emergency room when he suffered an overdose; enlisted

       Moreida to store methamphetamine at his house; ensured that Moreida

       assumed more risk, including making the transaction arrangements with

       prospective buyers and completing deliveries as Rodriguez waited nearby;


       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1607| June 13, 2018   Page 41 of 42
       suggested at trial that methamphetamine found in his house belonged to his

       wife; and threatened Moreida for cooperating with the State.


[65]   The yearlong investigation into area suppliers of methamphetamine revealed

       Rodriguez’s role in the drug dealing operation. Given his prior criminal

       history, extensive drug and alcohol abuse, commission of the instant offenses

       while on federal probation, unwillingness to abandon criminal activity despite

       ample opportunities to do so, his threats to a cooperating State witness, and the

       lengths he took to evade capture, we cannot say that his thirty-two-year

       sentence is inappropriate in light of the nature of his offenses and his character.


                                                 Conclusion
[66]   The trial court did not violate Rodriguez’s right to a speedy trial. Nor did it err

       in denying his motion to sever the charges against him. Sufficient evidence

       exists to support his convictions for Level 2 felony dealing in methamphetamine

       and Level 5 felony corrupt business influence. The trial court’s instructions to

       the jury did not give rise to fundamental error. Rodriguez’s sentence is not

       inappropriate. We affirm.


[67]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




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