                                                                          FILED
                                                                      Dec 04 2018, 7:38 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Madison, Indiana                                          Attorney General of Indiana
                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sebastian Durstock,                                       December 4, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          15A01-1711-CR-2718
        v.                                                Appeal from the Dearborn Circuit
                                                          Court
State of Indiana,                                         The Honorable James D.
Appellee-Plaintiff                                        Humphrey, Judge
                                                          Trial Court Cause No.
                                                          15C01-1705-F2-7



Tavitas, Judge.




Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018                   Page 1 of 15
                                              Case Summary
[1]   Sebastian Durstock appeals his conviction for dealing in a narcotic drug, a

      Level 2 felony. This case involves the analysis of the Fourth Amendment and

      exceptions to the warrant requirement. We affirm. 1


                                                     Issues
[2]   Durstock raises three issues, which we restate as:


              I.       Whether the trial court abused its discretion by admitting
                       evidence found during a pat down search of Durstock.

              II.      Whether the evidence is sufficient to sustain Durstock’s
                       conviction for dealing in a narcotic drug, a Level 2 felony.

              III.     Whether Durstock’s sentence is inappropriate.


                                                      Facts
[3]   On the morning of January 13, 2017, Officer David Schwarz of the

      Lawrenceburg Police Department was dispatched to an apartment in

      Lawrenceburg regarding an unconscious female, later identified as Chyanne

      Thompson. Emergency medical services arrived at the same time as Officer

      Schwarz. They discovered Candy Gaylord giving Thompson chest




      1
       Oral argument was held in this matter on November 13, 2018, at Ivy Tech Community College –
      Columbus. We thank counsel for their presentations and Ivy Tech Community College – Columbus for its
      hospitality.

      Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018                Page 2 of 15
      compressions. Given Thompson’s symptoms, Officer Schwarz suspected that

      Thompson had overdosed on opiates.


[4]   As the emergency medical personnel were assisting Thompson, Officer

      Schwarz heard water running in the bathroom. Officer Schwarz saw Durstock

      leave the bathroom and sit on the couch in the living room. Officer Schwarz

      talked to Gaylord and learned that Gaylord was the resident of the apartment.

      Gaylord gave Officer Bill Lynam permission to search the bathroom of the

      apartment, where he located a brown backpack. Gaylord and Durstock denied

      that the backpack belonged to them, and Gaylord gave the officer permission to

      search the backpack. Officer Lynam discovered a loaded handgun wrapped in

      a wet bandana, digital scales, men’s clothing, and men’s deodorant.


[5]   Durstock appeared to be “nervous and shaking and sweaty.” Tr. Vol. II p. 102.

      After learning of the firearm, Officer Troy Cochran decided to perform a pat

      down search of Durstock for officer safety. Officer Cochran asked Durstock if

      Durstock “had anything that we needed to be concerned about.” Id. at 103.

      Durstock removed a lighter, cigarettes, a cell phone, and lip balm from his

      pockets. Durstock put his hand in one of his pockets and removed his hand

      without removing anything from his pocket. Durstock’s movements made

      Officer Schwarz suspicious, and he asked Durstock to stand for a pat down for

      weapons.


[6]   Officer Schwarz felt a “tubular object” in Durstock’s pocket that was

      “consistent with being a syringe.” Id. at 62. Officer Schwarz removed the item


      Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 3 of 15
      from Durstock’s pocket and found that it was, in fact, a syringe. Officer

      Schwarz then arrested Durstock for possession of a hypodermic syringe. See

      Ind. Code § 16-42-19-18. Durstock was placed in handcuffs, and Officer

      Schwarz performed a search incident to the arrest. Officer Schwarz found

      several items in Durstock’s pockets, including three bullets and a black bag that

      contained $331 in cash, rolling papers, and a plastic bag containing a white

      powder. The white powder was later identified as 6.06 grams of fentanyl.


[7]   After several amendments, the State ultimately charged Durstock with dealing

      in a narcotic drug, a Level 2 felony; possession of a narcotic drug, a Level 4

      felony; and possession of a narcotic drug, a Level 5 felony. At Durstock’s jury

      trial, Durstock objected to the admission of evidence found during the pat down

      search, and the trial court overruled the objection. 2 During the jury trial,

      several recorded jail telephone calls made by Durstock were admitted into

      evidence. In one of the calls, Durstock stated that he had been “hustling,”

      which a detective testified was slang for dealing. Ex. 45. The jury found

      Durstock guilty as charged.


[8]   Due to double jeopardy concerns, the trial court entered judgment of conviction

      only on dealing in a narcotic drug, a Level 2 felony. The trial court sentenced




      2
       At the jury trial, Durstock presented an “oral motion to suppress,” and the trial court held a hearing on the
      motion to suppress outside the presence of the jury. Tr. Vol. II pp. 48-49. The trial court denied the motion.

      Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018                       Page 4 of 15
       Durstock to seventeen and one-half years with two and one-half years

       suspended to probation. Durstock now appeals.


                                                     Analysis
                                            I. Admission of Evidence

[9]    Durstock argues that the trial court erred by denying his motion to suppress.

       However, because Durstock appeals from a completed jury trial, the issue is

       more appropriately framed as whether the trial court properly admitted the

       evidence at trial. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). “The general

       admission of evidence at trial is a matter we leave to the discretion of the trial

       court.” Id. at 259-60. “We review these determinations for abuse of that

       discretion and reverse only when admission is clearly against the logic and

       effect of the facts and circumstances and the error affects a party’s substantial

       rights.” Id. at 260.


[10]   Durstock argues that the pat down search was improper because the officers

       had no reasonable suspicion that Durstock was armed and dangerous. The

       Fourth Amendment to the United States Constitution protects citizens against

       unreasonable searches and seizures by prohibiting them without a warrant

       supported by probable cause. 3 U.S. Const. amend. IV. “The fundamental

       purpose of the Fourth Amendment to the United States Constitution is to

       protect the legitimate expectations of privacy that citizens possess in their




       3
           Durstock makes no argument under the Indiana Constitution.


       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 5 of 15
       persons, their homes, and their belongings.” Taylor v. State, 842 N.E.2d 327,

       330 (Ind. 2006). This protection has been “extended to the states through the

       Fourteenth Amendment.” Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). “As

       a deterrent mechanism, evidence obtained in violation of this rule is generally

       not admissible in a prosecution against the victim of the unlawful search or

       seizure absent evidence of a recognized exception.” Clark, 994 N.E.2d at 260.

       “When a search is conducted without a warrant, the State has the burden of

       proving that an exception to the warrant requirement existed at the time of the

       search.” Bradley, 54 N.E.3d at 999.


[11]   In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), the United States Supreme

       Court permitted a:


               reasonable search for weapons for the protection of the police
               officer, where he has reason to believe that he is dealing with an
               armed and dangerous individual, regardless of whether he has
               probable cause to arrest the individual for a crime. The officer
               need not be absolutely certain that the individual is armed; the
               issue is whether a reasonably prudent man in the circumstances
               would be warranted in the belief that his safety or that of others
               was in danger. And in determining whether the officer acted
               reasonably in such circumstances, due weight must be given, not
               to his inchoate and unparticularized suspicion or ‘hunch,’ but to
               the specific reasonable inferences which he is entitled to draw
               from the facts in light of his experience.


       Terry, 392 U.S. at 27, 88 S. Ct. at 1883 (internal citations and footnote omitted);

       see also Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001).




       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 6 of 15
[12]   Durstock argues that the officers had “no reasonable suspicion that Durstock

       was armed and dangerous” and that the “pat-down of Durstock was illegal and

       any evidence obtained as a result should have been suppressed.” Appellant’s

       Br. p. 13. The State argues that the pat down was proper because: (1) officers

       had indications that Durstock was involved in drug activity and was acting

       nervous; (2) a loaded handgun was found in a backpack in the restroom, where

       Durstock had recently been; (3) the backpack also contained men’s clothing;

       and (4) Gaylord, the apartment’s female resident, denied ownership of the

       backpack.


[13]   Under the circumstances, we conclude that a reasonably prudent man would be

       warranted in the belief that his safety was potentially in danger, and we cannot

       say that the pat down search violated the Fourth Amendment. The officers

       were aware that a loaded handgun had been found wrapped in a wet bandana

       in a backpack in the restroom, which Durstock had recently occupied. The

       backpack contained men’s clothing, and the female resident of the apartment

       denied ownership of the backpack. Durstock, who was acting strangely, was

       the only male in the apartment. The officers were reasonably concerned that

       the weapon belonged to Durstock and that their safety was in jeopardy. The

       pat down search was proper. See, e.g., Johnson v. State, 38 N.E.3d 658, 663 (Ind.

       Ct. App. 2015) (holding that a pat down search for weapons was proper where

       the defendant kept placing his hand in his pocket and refused an officer’s

       multiple commands to remove his hand from his pocket), trans. denied.




       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 7 of 15
[14]   Durstock next argues that, even if the pat down was proper, the removal of the

       syringe from his pocket was improper. “The purpose of a protective search

       authorized by Terry ‘is not to discover evidence of a crime, but rather to allow

       the officer to pursue his investigation without fear of violence.’” Clanton v.

       State, 977 N.E.2d 1018, 1025 (Ind. Ct. App. 2012) (quoting Minnesota v.

       Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2136 (1993)). “During this

       limited search, an officer is permitted to remove an item that feels like a weapon

       from an individual’s outer clothing to determine whether the item is in fact a

       weapon.” Id. “In addition, the ‘plain-feel doctrine’ approved by Dickerson

       permits an officer to remove non-weapon contraband during a Terry frisk if the

       contraband is detected during an initial patdown for weapons and if the

       incriminating nature of the contraband is immediately ascertained by the

       officer.” Id. (citing Harris v. State, 878 N.E.2d 534, 538-39 (Ind. Ct. App. 2007),

       trans. denied).


[15]   Durstock argues that the “tube” detected by the officer was not immediately

       ascertainable as contraband. The State contends that the officer immediately

       realized that the tubular object was a syringe and that the removal of the object

       from Durstock’s pocket was proper. We agree with the State. The officer

       testified that he felt a “tubular object” in Durstock’s pocket that was “consistent

       with being a syringe.” Tr. Vol. II p. 62. The syringe’s identity was immediately

       apparent to the officer based on its shape, and the officer’s warrantless seizure

       of the syringe was justified under the plain feel doctrine. See, e.g., Wright v.




       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 8 of 15
       State, 766 N.E.2d 1223, 1234 (Ind. Ct. App. 2002) (holding that the officer’s

       seizure of rock cocaine was justified under the plain feel doctrine).


[16]   Because the removal of the item from Durstock’s pocket was permissible, the

       officers properly arrested Durstock for possession of a syringe. The possession

       of a hypodermic syringe is a Level 6 felony. See Ind. Code § 16-42-19-18. One

       exception to the warrant requirement is the search incident to arrest, which

       permits “a search of the arrestee’s person and the area within his or her

       control.” Clark, 994 N.E.2d at 261 n.10. Accordingly, once a person is

       arrested, officers are not required to obtain a warrant before conducting a

       further search of the arrestee’s person. This search incident to Durstock’s arrest

       resulted in the officers finding the fentanyl and cash in Durstock’s pocket. We

       conclude that the officers’ discovery of the fentanyl and cash in Durstock’s

       pocket did not violate the Fourth Amendment, and the trial court properly

       admitted the evidence.


[17]   In sum, the pat down search, the removal of the syringe under the plain feel

       doctrine, and the search incident to arrest, are exceptions to the warrant

       requirement of the Fourth Amendment. The evidence obtained was properly

       admitted.


                                       II. Sufficiency of the Evidence

[18]   Durstock challenges the sufficiency of the evidence with respect to his

       conviction for dealing in a narcotic, a Level 2 felony. When there is a challenge

       to the sufficiency of the evidence, “[w]e neither reweigh evidence nor judge


       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 9 of 15
       witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016) (citing

       Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), reh’g denied, cert. denied, 475 U.S.

       1031, 106 S. Ct. 1241 (1986)), reh’g denied, cert. denied, 137 S. Ct. 1082 (2017).

       Instead, “we ‘consider only that evidence most favorable to the judgment

       together with all reasonable inferences drawn therefrom.’” Id. (quoting Bieghler,

       481 N.E.2d at 84). “We will affirm the judgment if it is supported by

       ‘substantial evidence of probative value even if there is some conflict in that

       evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also McCallister v. State,

       91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though there was conflicting

       evidence, it was “beside the point” because that argument “misapprehend[s]

       our limited role as a reviewing court”). Further, “[w]e will affirm the

       conviction unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind.

       2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[19]   Durstock was convicted of dealing in a narcotic drug, a Level 2 felony, which is

       governed by Indiana Code Section 35-48-4-1. At the time of Durstock’s

       offense, the State was required to prove that Durstock knowingly possessed

       with intent to deliver “a narcotic drug, pure or adulterated, classified in

       schedule I or II,” and that “the amount of the drug involved is at least five (5)

       grams but less than ten (10) grams and an enhancing circumstance applies.”




       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 10 of 15
       Ind. Code § 35-48-4-1(a)(2), (e)(2). 4 One enhancing circumstance occurs when

       the “person committed the offense while in possession of a firearm.” I.C. § 35-

       48-1-16.5(2).


[20]   Durstock challenges only whether the State proved an intent to deliver.

       Indiana Code Section 35-48-4-1(b) provides:


                  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


                  (2) the amount of the drug involved is at least twenty-eight (28)
                  grams.


       The fentanyl here weighed slightly over six grams. Consequently, the State was

       required to show “evidence in addition to the weight of the drug that [Durstock]

       intended to . . . deliver . . . the drug.” I.C. § 35-48-4-1(b). “Intent, being a

       mental state, can only be established by considering the behavior of the relevant

       actor, the surrounding circumstances, and the reasonable inferences to be

       drawn therefrom.” Richardson v. State, 856 N.E.2d 1222, 1227 (Ind. Ct. App.




       4
           Amended by Pub. L. No. 252-2017, § 21 (eff. July 1, 2017).


       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018    Page 11 of 15
       2006), trans. denied. Circumstantial evidence showing possession with intent to

       deliver may support a conviction. Id.


[21]   Durstock argues that the evidence is insufficient to show that he intended to

       deliver the fentanyl. We conclude that Durstock’s argument is merely a request

       to reweigh the evidence, which we cannot do. The State presented evidence

       that Durstock admitted in a recorded jail call that he was “hustling,” which a

       detective testified was slang for dealing. Ex. 45. The evidence of the recorded

       call along with evidence that Durstock was in possession of digital scales, a

       handgun, and $331 in cash are sufficient to demonstrate that Durstock intended

       to deliver the fentanyl. Accordingly, the evidence is sufficient to sustain

       Durstock’s conviction for dealing in a narcotic drug, a Level 2 felony.


                                         III. Inappropriate Sentence

[22]   Next, Durstock argues that his sentence is inappropriate. Indiana Appellate

       Rule 7(B) provides that we may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, we find that the sentence “is

       inappropriate in light of the nature of the offense and the character of the

       offender.” McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018). The defendant

       bears the burden to persuade this court that his or her sentence is inappropriate.

       Phipps v. State, 90 N.E.3d 1190, 1198 (Ind. 2018). Indiana’s flexible sentencing

       scheme allows trial courts to tailor an appropriate sentence to the circumstances

       presented, and the trial court’s judgment “should receive considerable

       deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). The principal

       role of appellate review is to attempt to “leaven the outliers.” Shoun v. State, 67
       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 12 of 15
       N.E.3d 635, 642 (Ind. 2017). Whether we regard a sentence as inappropriate at

       the end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Cardwell, 895 N.E.2d at 1224.


[23]   In determining whether a sentence is inappropriate, we look to the statutory

       ranges established for the classification of the relevant offense. Durstock was

       convicted of a Level 2 felony. The sentence for a Level 2 felony ranges from

       ten years to thirty years, with an advisory sentence of seventeen and one-half

       years. Ind. Code § 35-50-2-4.5. Here, the trial court imposed an advisory

       sentence of seventeen and one-half years with two and one-half years suspended

       to probation.


[24]   Durstock argues that his criminal history was minimal, he struggled with

       addiction, and he had the support of his family. Durstock also contends that

       his involvement “in the criminal enterprise was extremely minimal” and

       claimed that the fentanyl belonged to Thompson. Appellant’s Br. p. 18.


[25]   The nature of the offense is that Durstock was in Gaylord’s apartment when

       Thompson overdosed and required police and emergency medical services to

       respond. Durstock’s backpack was found in the bathroom of the apartment,

       and the backpack contained a loaded handgun wrapped in a wet bandana and

       digital scales. When officers performed a pat down search of Durstock, they

       found a syringe in his pocket and arrested him. In a search incident to the

       arrest, the officers also located several additional items in Durstock’s pockets,


       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 13 of 15
       including three bullets and a black bag that contained $331 in cash, rolling

       papers, and a plastic bag containing a white powder. The white powder was

       later identified as 6.06 grams of fentanyl. In a recorded jail telephone call in

       May 2017, Durstock admitted to a friend that he had been “hustling” with

       Thompson, which a detective testified was slang for dealing. Ex. 45. During

       Durstock’s testimony, he admitted that the gun belonged to him.


[26]   A review of Durstock’s character reveals that twenty-three-year-old Durstock

       pleaded guilty to domestic battery, a Class A misdemeanor, in 2012. Durstock

       failed to appear at a review hearing on that charge, and a warrant was issued for

       his arrest.


[27]   Durstock dropped out of high school in the tenth grade and has a six-year-old

       child. Durstock claims that he has never been ordered to pay child support.

       Durstock noted that he started using methamphetamine six years ago and was a

       daily user. He also advised that he used marijuana a couple times each week

       and previously used heroin on a daily basis. Durstock was unemployed at the

       time of his arrest.


[28]   At sentencing, the trial court noted that Durstock’s testimony and statements to

       the officers conflicted with other evidence and his own statements in the

       recorded jail telephone calls. The trial court found that Durstock’s “dishonesty

       in these proceedings and with investigating officers” reflected “on his lack of

       remorse for his actions in this matter . . . .” Tr. Vol. II p. 128. The trial court




       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 14 of 15
       believed that Durstock “actually delivered the fentanyl to Ms. Thompson,

       which resulted in her overdose.” Id.


[29]   Given the significant amount of fentanyl that Durstock possessed, his

       possession of the handgun, his substance abuse, and the trial court’s statements

       on Durstock’s dishonesty and lack of remorse, we cannot say that the advisory

       sentence, which the trial court imposed here, was inappropriate.


                                                  Conclusion
[30]   The trial court properly admitted evidence of the fentanyl found in Durstock’s

       pocket. The evidence is sufficient to sustain Durstock’s conviction, and his

       sentence is not inappropriate. We affirm.


[31]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 15A01-1711-CR-2718 | December 4, 2018   Page 15 of 15
