MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Jan 15 2019, 8:32 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie Boots Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Lyubov Gore
Michael C. Borschel Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Hendricks, January 15, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1036
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable James Snyder,
Appellee-Plaintiff. Master Commissioner
Trial Court Cause No.
49G20-1703-F2-8485
Darden, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 1 of 12
Statement of the Case
[1] James Hendricks appeals from his convictions of one count of Level 2 felony
1
dealing in a narcotic drug, and one count of Class A misdemeanor resisting law
2
enforcement. He also challenges his sentence. We affirm.
Issues
[2] Hendricks presents the following issues for our review:
I. Did the trial court commit reversible error by convicting
Hendricks of dealing a narcotic drug when there was a
challenge to the evidence supporting the element of
possession?
II. Was Hendricks’ sentence inappropriate in light of the
nature of the offense and the character of the offender?
Facts and Procedural History
[3] Sometime prior to March of 2017, the Indianapolis Metropolitan Police
Department received information that narcotics were being sold out of a house
located at 405 South McClure Street in Marion County, Indiana. Thereafter,
several citizen complaints were made to IMPD about the activities at that same
home. Officers with the narcotics division conducting surveillance at that
1
Ind. Code § 35-48-4-1(a)(1), -(e)(1) (2016).
2
Ind. Code § 35-44.1-3-1(a) (2016).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 2 of 12
location observed activity at the house that confirmed their suspicions of
criminal activity there.
[4] Next, officers with the narcotics division applied for and were granted a search
warrant for the home in question. Relying on the assistance of the SWAT
Team, a Flex Team (officers who can stop a vehicle if the target of an
investigation leaves before the SWAT Team arrives), and other law
enforcement officers, IMPD officers served the search warrant on the home
sometime in the early afternoon of March 2, 2017.
[5] Before conducting the search, the house and the two occupants were secured.
During the search officers found paraphernalia and narcotics, which included
methamphetamine, heroin, and cocaine in the house. The two occupants of the
house were also interviewed. As a result, officers learned that an individual
would be arriving at the back door of the house “to make a delivery.” Tr. Vol.
II, p. 65. After learning that information, the officers stationed their vehicles
away from the home and conducted visual surveillance from nearby. Several
officers, however, remained hidden inside the house. Detective Steven Spears,
who was not in his uniform, waited inside for the expected individual to arrive
at the back doorway of the house. Other officers, who were wearing clothing
identifying themselves as law enforcement, waited and observed in the detached
garage.
[6] Around twenty minutes later, Hendricks arrived at the house in a black Lexus
and parked the vehicle in the driveway. He exited his vehicle, went to the back
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 3 of 12
door of the house, and knocked. Detective Cooper observed that Hendricks
had a calm demeanor as he approached–“like someone coming to visit a
house.” Id. at 100. Detective Spears answered the knock at the door and
invited him in. Upon seeing Detective Spears, Hendricks just looked surprised
and almost immediately began running away from the back of the house.
[7] Detective Spears quickly yelled, “Police, police, stop,” and pursued Hendricks.
Id. at 67. Several officers in identifiable police outerwear, including Detectives
Garland Cooper and John Wallace, who had been stationed in the garage,
joined the pursuit and they, along with Detective Jake Tranchant, ordered
Hendricks to stop. Hendricks, however, continued to run away from the
officers.
[8] Hendricks ran past his vehicle, which remained in the driveway. While
running through the front yard of the house, Hendricks tripped over some
decorative edging stones, and, according to Detective Cooper, did a “barrel
roll” and fell down in the yard. Id. at 90. When Hendricks fell, Detective
Cooper observed a plastic baggie containing a whitish substance fall out of the
pocket of Hendricks’ hoodie. Hendricks jumped up and resumed running from
law enforcement. Detective Spears was able to catch up to Hendricks and
pushed him to the ground. Hendricks continued to resist arrest by crawling to
the street, but he was handcuffed and taken into custody.
[9] Detective Tranchant recovered $240.00 from Hendricks’ right pocket of his
pants. Detective Spears located a digital scale on the ground where Hendricks
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 4 of 12
fell and a plastic baggie containing suspected narcotics that had fallen out of
Hendricks’ hoodie. At the spot where Hendricks fell for the second time before
being apprehended, officers located a red air freshener can containing a baggie
with suspected narcotics inside. None of these items were wet, although the
grass around the items was wet from rain which had previously fallen. Officers
subsequently testified that these items had not been there thirty minutes earlier
when they arrived at the house.
[10] The substances inside the baggies were later tested and found to be 24.0495
grams of fentanyl and 11.5592 grams of fentanyl, respectively.
[11] The State charged Hendricks with one count of Level 2 felony dealing in a
narcotic drug, one count of Level 4 felony possession of a narcotic drug, and
one count of Class A misdemeanor resisting law enforcement. At the
conclusion of Hendricks’ jury trial, he was found guilty as charged. For double
jeopardy reasons, the trial court entered judgment of conviction on only one
count of Level 2 felony dealing in a narcotic drug and one count of Class A
misdemeanor resisting law enforcement. The trial court sentenced Hendricks to
concurrent terms of twenty-five years in the Department of Correction for the
Level 2 felony, and three hundred sixty-five days for the Class A misdemeanor.
Those sentences, however, were ordered to be served consecutive to a sentence
entered in another case. Hendricks now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 5 of 12
Discussion and Decision
I. Sufficiency of the Evidence
[12] Hendricks’ sole challenge to the sufficiency of the evidence is that the State did
not prove, beyond a reasonable doubt, that he possessed the fentanyl recovered
by law enforcement and used to support his conviction of Level 2 felony dealing
in a narcotic drug. Our standard of review, which follows, is well settled.
When an appeal raises a sufficiency of evidence challenge, we do
not reweigh the evidence or judge the credibility of witnesses, we
respect a fact-finder’s exclusive province to weigh conflicting
evidence. We consider only the probative evidence and the
reasonable inferences that support the verdict. We will affirm if
the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt.
Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (internal quotations and
citations omitted).
[13] “It is therefore not necessary that the evidence ‘overcome’ every reasonable
hypothesis of innocence.” Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
“We will only reverse a conviction when reasonable persons would not be able
to form inferences as to each material element of the offense.” Griffin v. State,
945 N.E.2d 781, 783 (Ind. Ct. App. 2011). The testimony of a single
eyewitness is sufficient to sustain a conviction. Hubbard v. State, 719 N.E.2d
1219, 1120 (Ind. 1999).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 6 of 12
[14] To prove that Hendricks committed dealing in a narcotic drug as a Level 2
felony, the State was required to show beyond a reasonable doubt that
Hendricks possessed with the intent to deliver cocaine or a narcotic drug, pure
or adulterated, classified in schedule I or II, and the amount of the drug was at
least ten grams. Ind. Code § 35-48-4-1(a)(2), -(e)(1). Fentanyl is a schedule II
controlled substance. Ind. Code § 35-48-2-6(c) (2015).
[15] During the trial, testimony from law enforcement officers revealed that an
3
amount of fentanyl, which previously had not been present near the street in
the front yard of the address under surveillance, was recovered by law
enforcement at the spot where Hendricks fell for the second time; and, another
baggie, which Detective Cooper saw fall from Hendricks’ hoodie as he did a
barrel roll near the front of the house, was admitted in evidence as State’s
Exhibit 18. It contained a white substance which was identified and weighed as
24.0495 grams of fentanyl.
[16] Alone, Detective Cooper’s testimony that he observed the baggie containing
24.0495 grams of fentanyl fall from Hendricks’ hoodie was sufficient to sustain
Hendricks’ conviction. See Hubbard, 719 N.E.2d at 1120. Further, digital scales
were found in the same area. The baggie containing the fentanyl was dry
outside even though officers testified about trying to avoid stepping into puddles
of water from rainy weather during their chase.
3
This substance was identified and labeled as State’s Exhibit 19, containing 11.5592 grams of fentanyl.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 7 of 12
[17] In sum, the occupants of the drug house informed law enforcement officers that
an individual would be arriving at the house to make a delivery. Hendricks
arrived at the house as indicated, but was startled by the presence of Detective
Spears, an individual he did not know or expect to be there. After officers
ordered Hendricks to stop, he continued running and a baggie of fentanyl was
observed falling out of his hooded sweatshirt as he tripped and did a barrel roll
in the front yard. Digital scales were also found near that baggie. The baggie
was dry outside although the grass was wet. At least one officer testified about
trying to avoid stepping in puddles of water as they chased Hendricks. An
additional amount of fentanyl was located near the spot where Hendricks fell
the second time and was apprehended by police. Two hundred and forty
dollars was recovered from the pocket of Hendricks’ pants. There is sufficient
evidence that Hendricks possessed at least ten grams of fentanyl with the intent
to deliver it to the low-level dealers in the house such that his conviction should
be affirmed.
II. Inappropriate Sentence
[18] Hendricks argues that his sentence is inappropriate in light of the nature of the
offense and the character of the offender. The sentencing range for a Level 2
felony is a fixed term of imprisonment between ten and thirty years with the
advisory sentence being seventeen and one-half years. Ind. Code § 35-50-2-4.5
(2013). The sentencing range for a Class A misdemeanor is a fixed term of not
more than one year of imprisonment. Ind. Code § 35-50-3-2 (1977). Hendricks
received concurrent sentences of three hundred sixty-five days for the Class A
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 8 of 12
misdemeanor conviction and twenty-five years for the Level 2 felony
conviction. Those sentences were ordered to be served consecutive to a
sentence imposed in another cause of action.
[19] Our Supreme Court has stated the following about our role in the appellate
review of sentences.
Even where a trial court has not abused its discretion in
sentencing, the Indiana Constitution authorizes independent
appellate review and revision of a trial court’s sentencing
decision. Appellate courts implement this authority through
Indiana Appellate Rule 7(B), which provides that we may revise
a sentence if after due consideration of the trial court’s decision
we find the sentence is inappropriate in light of the nature of the
offense and the character of the offender.
Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016) (internal citations and
quotations omitted). “The defendant bears the burden of persuading the Court
that [his] sentence is inappropriate.” Phipps, 90 N.E.3d at 1198.
[20] Case law further instructs that “[s]entencing is principally a discretionary
function in which the trial court’s judgment should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such
deference should prevail unless overcome by compelling evidence portraying in
a positive light the nature of the offense (such as accompanied by restraint,
regard, and lack of brutality) and the defendant’s character (such as substantial
virtuous traits or persistent examples of good character).” Stephenson v. State, 29
N.E.3d 111, 122 (Ind. 2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 9 of 12
[21] “[W]hether we regard a sentence as appropriate 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 factors that come to light in a given
case.” Cardwell, 895 N.E.2d at 1224. “The principal role of appellate review
should be to attempt to leaven the outliers, and identify some guiding principles
for trial courts and those charged with improvement of the sentencing statutes,
but not to achieve a perceived ‘correct’ result in each case.” Id. at 1225.
[22] In light of the nature of his offenses, we observe that Hendricks was on
supervised release for a federal court conviction for felony possession of a
weapon when he committed the instant offense–possession of thirty-six grams
of fentanyl. Although the State was required only to show that Hendricks
possessed at least ten grams of fentanyl to sustain his conviction, the evidence
established that he possessed three times that amount, an amount Detective
Shaffer characterized as commonly attributable to a “mid-level dealer.” Tr.
Vol. II, p. 174. Hendricks appeared at the drug house to deliver a large quantity
of drugs to those who could be characterized as low-level drug dealers and/or
drug addicts. Methamphetamine, heroin, and cocaine were found in the house
in addition to fentanyl.
[23] Hendricks ran from police officers, even after being ordered to stop, until he
was finally apprehended by Detective Spears. Digital scales were found in the
front yard at the spot where Hendricks first fell. After his apprehension,
Hendricks was found to be in possession of a large amount of cash–$240.00–a
reasonable indicator of drug dealing.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 10 of 12
[24] Hendricks argues that he should be resentenced to the advisory sentence–three
years–for a Level 5 felony, based on his self-serving admission that he only
agreed to deliver .4 grams of fentanyl. Appellant’s Br. p. 15. We are not
persuaded that his sentence is inappropriate on this ground.
[25] As for the character of the offender, we observe that Hendricks’ criminal record
is a poor reflection on his character. Hendricks has six prior arrests, including
one for murder, and two prior felony convictions. Hendricks was on supervised
release for a felony conviction in his federal case when he committed the
offenses related to this appeal.
[26] Hendricks had a prior membership in a gang known as the Vice Lords and
continues to associate with members of active gangs. Although Hendricks’
prior convictions involve acts of violence and crimes involving weapons, his
current criminal offenses merely appear to be a change in direction of
criminality in other areas. Hendricks’ past and present criminal history
demonstrates a continued disregard for law and order in a civilized society.
[27] Hendricks has been engaged in illegal drug use for almost two decades and has
refused to take advantage of opportunities for treatment. He admitted he used
heroin on the date of the instant offenses. Even though not all of those acts
were reduced to a judgment, a trial court may consider evidence of prior crimes
to support the finding that the defendant has a history of criminal activity.
Bailey v. State, 763 N.E.2d 998, 1004 (Ind. 2002). Hendricks has failed to carry
his burden of persuading us that his sentence is inappropriate on this ground.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 11 of 12
Conclusion
[28] Based on the foregoing, we conclude that there was sufficient evidence to
support the jury’s verdict and that the sentence imposed by the trial court was
not inappropriate in light of the nature of the offense and the character of the
offender.
[29] Affirmed.
Najam, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1036 | January 15, 2019 Page 12 of 12