MEMORANDUM DECISION
ON REHEARING
May 26 2015, 9:35 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cynthia M. Carter Gregory F. Zoeller
Law Office of Cynthia M. Carter, LLC Attorney General of Indiana
Indianapolis, Indiana
Ryan D. Johanningsmeier
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas W. Burton, May 26, 2015
Appellant-Defendant, Court of Appeals Case No.
41A01-1312-CR-539
v. Appeal from the Johnson Circuit
Court
State of Indiana, The Honorable K. Mark Loyd,
Judge
Appellee-Plaintiff.
Cause No. 41C01-1305-FB-38
Brown, Judge.
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Memorandum Decision on Rehearing
[1] Thomas Burton appealed his convictions for dealing in a schedule II controlled
substance as a class B felony, aiding in dealing in methamphetamine as a class
B felony, and two counts of dealing in a schedule IV controlled substance as
class C felonies. In a memorandum decision, this court affirmed his
convictions. Burton v. State, No. 41A01-1312-CR-539 (Ind. Ct. App. January
30, 2015). Burton has petitioned for rehearing, which we now grant in part in
order to correct certain factual statements made in the memorandum decision.
[2] Specifically, Burton directs our attention to a statement in our memorandum
decision that a person named Jeremy Clark “performed the hand-to-hand drug
transaction with Burton.” Burton, slip op. at 3. The memorandum decision
should have stated that Clark “performed the hand-to-hand drug transaction
with CI-32.” We grant rehearing to correct the record for this purpose.
[3] However, to the extent that Burton argues that “[t]his is relevant and material
to the sufficiency argument,” id., we disagree because Burton was charged with
and convicted for aiding in dealing in methamphetamine as a class B felony for
the facts related to this transaction. As noted in the memorandum decision:
On March 22, 2013, CI-32 arranged to purchase methamphetamine for
$120 from Burton at the Tearman Hotel in Franklin, Indiana, and
informed Detective Wampler, who was assisted by Johnson County
Narcotics Detective Damian Katt. Detective Wampler searched CI-32
prior to conducting the transaction, and CI-32 did not have any
narcotics on his person. CI-32 was provided with $200 to purchase
methamphetamine and potentially other drugs. Burton drove a white
van into the hotel parking lot, and Jeremy Clark accompanied him in
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the front passenger seat. Burton told CI-32 to enter the driver’s-side
rear seat of the van, and CI-32 did so. Clark performed the hand-to-
hand drug transaction with [CI-32].[1] Both Detectives Wampler and
Katt observed the transaction and video-recorded it. CI-32 returned to
Detective Katt after leaving the van without leaving the sight of the
detectives and handed Detective Katt two baggies containing a
substance which the detectives identified as methamphetamine and
which field tested positive for methamphetamine. CI-32 had eighty
dollars remaining on his person.
Id. at 3-4. As discussed in the memorandum decision, Burton was charged with
aiding in dealing in methamphetamine and his challenge to the sufficiency of
the evidence related to whether the substance sold to CI-32 by Clark was
actually methamphetamine. Id. at 39. We cannot say that the mistaken
reference to Burton rather than CI-32 in our initial memorandum decision is
relevant and material to Burton’s sufficiency argument or impacted our analysis
regarding his guilt as to that charge.
[4] We grant Burton’s petition for rehearing for the limited purpose of correcting a
statement of fact and deny his petition in all other respects.
Barnes, J., and Bradford, J., concur.
1
As noted above, in the memorandum decision this court mistakenly stated that Clark performed the hand-
to-hand drug transaction with Burton.
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