MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 12 2019, 10:07 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David M. Payne Curtis T. Hill, Jr.
Ryan & Payne Attorney General of Indiana
Marion, Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Martin Morales, March 12, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2230
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey D. Todd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D01-1706-F2-12
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Martin Morales was convicted of two counts of dealing
in methamphetamine, a Level 3 felony and a Level 5 felony. The trial court
imposed an aggregate sentence of twelve years to be served at the Indiana
Department of Correction. On appeal, Martin raises two issues for our review:
(1) whether the State presented sufficient evidence to sustain Morales’
conviction of dealing in methamphetamine, a Level 3 felony, and (2) whether
the State presented sufficient evidence to sustain Morales’ conviction of dealing
in methamphetamine, a Level 5 felony. Concluding the State presented
sufficient evidence on both counts, we affirm.
Facts and Procedural History
[2] On June 23, 2017, the Grant County J.E.A.N. (Joint Effort Against Narcotics)
team was conducting surveillance of a rural area when they observed the
occupants of a van engage a male driving a moped in a suspected drug deal.
Police later identified the driver of the moped as Morales. See Transcript at
106-07, 126. Police conducted a traffic stop of the van and one of its
passengers, M.W., was found to be in possession of methamphetamine.
[3] M.W. informed police that he had purchased the methamphetamine from an
individual he knew simply as “Clown.” Tr. at 95. M.W. later identified
“Clown” as Morales at trial. See id. Pursuant to an agreement to avoid
prosecution by acting as a confidential informant, M.W. contacted Morales and
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arranged to purchase additional methamphetamine that evening. Police
provided M.W. with $120 in marked currency and both audio and video
recording devices. Detective Josh Zigler, a member of the J.E.A.N. team,
drove M.W. to a location near where police had conducted surveillance earlier
that the day.
[4] As Detective Zigler and M.W. arrived at the predetermined location, Detective
Zigler saw Morales, whom he recognized from prior police encounters,
standing by the side of the road attempting to get their attention. Morales
instructed Detective Zigler to pull onto a property consisting of a trailer, a small
bus, and a garage, and to park in the yard in front of the trailer. M.W. exited
the vehicle and walked with Morales out of the sight of Detective Zigler. After
completing the purchase, M.W. returned to the vehicle with 0.96 grams of a
substance later confirmed to be methamphetamine. Detective Zigler and M.W.
then left the property and police requested a search warrant.
[5] While waiting on a search warrant to be issued for the property, police observed
a vehicle approach the trailer and park in the yard. The vehicle’s passenger, a
woman later identified as Lanelle Ralston, briefly entered the trailer and
returned to the vehicle. Police conducted a traffic stop on the vehicle as it
attempted to leave the area and Ralston was found to be in possession of
methamphetamine. Ralston stated that she had purchased the
methamphetamine from Shannon Hall and had watched her weigh it on a scale
inside the trailer. Soon thereafter, police executed a search warrant on the
property. Morales and Hall were found in the living room of the trailer where
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they were both taken into custody. A search of Morales’ person revealed $572,
$120 of which was later identified as the marked currency from M.W. See
Exhibits, Volume 3 at 21, Exhibit 13.
[6] Police located a “black zipper type bag” containing a glass jar in the master
bedroom of the trailer. Tr. at 112. Inside the glass jar, 9.86 grams of
methamphetamine were divided into four plastic bags. Police also found 0.27
grams of methamphetamine on top of a nearby dresser. The search of the
bedroom also revealed scales; plastic baggies, some of which were torn into
smaller pieces consistent with common drug dealing techniques; and a spoon,
knife, and an “aluminum foil boat which is used to smoke methamphetamine.”
Id. at 160. Police found a glass smoking pipe and several additional scales in
the living room.
[7] Hall and Morales were transported to the Grant County Jail. Morales agreed to
be interviewed by Detective Zigler and, following a Miranda warning, Morales
admitted to using and possessing methamphetamine and that he sometimes
sold methamphetamine to support his use. See Exhibits, Vol. 3 at 24, Exhibit
16; Tr. at 60. Detective Zigler had worn a backwards hat during the controlled
buy and when he put his hat on backwards during the interview, Morales
stated, “you were in that black truck.” Id; Tr. at 61.
[8] On June 29, 2017, the State charged Morales with Count I, dealing in
methamphetamine, a Level 2 felony, which requires possession with the intent
to deliver at least ten grams of methamphetamine. See Ind. Code § 35-48-4-
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1.1(a)(2), (e)(1). Morales was also charged with Counts II and III, dealing in
methamphetamine, both Level 4 felonies, which require knowingly or
intentionally delivering at least one gram, but less than five grams, of
methamphetamine. See Ind. Code § 35-48-4-1.1(a)(1), (c)(1). On July 24, 2018,
the State dismissed Count III and amended Count II to a Level 5 felony, which
requires knowingly or intentionally delivering methamphetamine, but does not
require a specific amount. See Ind. Code § 35-48-4-1.1(a)(1).
[9] The case proceeded to a trial on July 30, 2018. On August 1, a jury found
Morales guilty of dealing methamphetamine as a Level 3 felony, a lesser
included offense of Count I requiring possession with intent to deliver at least
five grams but less than ten grams of methamphetamine. See Ind. Code § 35-48-
4-1.1(a)(2), (d)(1). The jury also found Morales guilty of Count II, dealing
methamphetamine as a Level 5 felony. On August 30, the trial court sentenced
Morales to twelve years at the Indiana Department of Correction for the Level
3 felony and four years for the Level 5 felony, to be served concurrently.
Morales now appeals.
Discussion and Decision
I. Standard of Review
[10] When reviewing the sufficiency of the evidence needed to
support a criminal conviction, we neither reweigh the 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
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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.
Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied. The
evidence need not overcome every hypothesis of innocence; rather, the
evidence is sufficient if an inference may “reasonably be drawn from it to
support the verdict.” Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007).
II. Sufficiency of the Evidence
A. Count I: Dealing in Methamphetamine,
a Level 3 Felony
[11] First, Morales challenges his conviction of dealing in methamphetamine, a
Level 3 felony, contending only that the State failed to present sufficient
evidence to prove that he possessed the methamphetamine found in the
bedroom of the trailer. See Appellant’s Brief at 14 (“The element being
challenged under Issue #1 is whether Morales possessed the methamphetamine
found in the bedroom of the trailer.”)
[12] Indiana Code section 35-48-4-1.1 provides:
(a) A person who:
(1) knowingly or intentionally:
(A) delivers; or
(B) finances the delivery of;
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methamphetamine, pure or adulterated; or
(2) possesses, with intent to:
(A) deliver; or
(B) finance the delivery of;
methamphetamine, pure or adulterated;
commits dealing in methamphetamine, a Level 5 felony, except
as provided in subsections (b) through (e).
***
(d) The offense is a Level 3 felony if:
(1) the amount of the drug involved is at least five (5)
grams but less than ten (10) grams; or
(2) the amount of the drug involved is at least one (1) gram
but less than five (5) grams and an enhancing circumstance
applies.
[13] A conviction for a drug offense may be supported by actual or constructive
possession. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on
reh’g, 685 N.E.2d 698 (Ind. 1997). Where, as here, the State seeks to prove a
defendant possessed contraband prior to its discovery, the State utilizes the
theory of constructive possession. Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct.
App. 2018), trans. denied. Constructive possession involves actual knowledge of
the presence of the contraband along with the intent and capability to maintain
dominion and control over it. Washington v. State, 902 N.E.2d 280, 288 (Ind.
Ct. App. 2009), trans. denied. Furthermore:
In cases where the defendant has exclusive possession over the
premises on which the contraband is found, an inference is
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permitted that the defendant knew of its presence and was
capable of controlling it. When possession is nonexclusive,
however, additional circumstances must be present to support the
inference that the defendant intended to maintain dominion and
control over the contraband and that the defendant had actual
knowledge of its presence and illegal character. Such additional
circumstances include, but are not limited to, the following: (1)
incriminating statements by the defendant, (2) attempted flight or
furtive gestures, (3) location of substances like drugs in settings
that suggest manufacturing, (4) proximity of the contraband to
the defendant, (5) location of the contraband within the
defendant’s plain view, and (6) the mingling of the contraband
with other items owned by the defendant.
Id. (citations omitted). Because Morales’ possession of the trailer was non-
exclusive, we must consider whether the State presented evidence of additional
circumstances sufficient to support Morales’ conviction under a theory of
constructive possession. We conclude that it did.
[14] First, Morales made incriminating statements during the police interview
following his arrest in the form of admitting to using and possessing
methamphetamine and that he sometimes sold methamphetamine to support
his use. See Tr. at 60; Exhibits, Vol. 3 at 24, Exhibit 16. Morales also stated
that he recognized Detective Zigler from the controlled buy. Second, Morales
became “visibly agitated” as police entered the trailer prompting an officer to
disregard Hall in order to first detain Morales. Tr. at 132. Third, police
discovered most of the methamphetamine divided into four separate baggies
along with scales and additional plastic baggies, some of which were torn into
smaller pieces consistent with common drug dealing techniques. This evidence
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is sufficient to demonstrate a drug manufacturing setting. See Ind. Code § 35-
48-1-18(1)(A) (defining the manufacture of a controlled substance in relevant
part as “the production, preparation, propagation, compounding, conversion,
or processing of a controlled substance, either directly or indirectly by
extraction from substances of natural origin . . . and includes any packaging or
repackaging of the substance”) (emphasis added). And fourth, although Morales
was detained in the living room of the trailer and methamphetamine was found
in the master bedroom, given the small size of the trailer, Morales was still in
close proximity to the methamphetamine and in even closer proximity to
paraphernalia, such as a glass smoking pipe and several additional scales found
in the living room.
[15] Beyond presenting at least some evidence of four of the six examples of
additional circumstances from Washington listed above, the State presented
other evidence on which the jury could have reasonably relied regarding
constructive possession. See 902 N.E.2d at 288. In particular, Morales was
arrested on the same property and in close physical and temporal proximity to
the location of the controlled buy, from which Morales was still in possession of
the marked currency, and the bedroom was the only location on the property
where methamphetamine was found. Such evidence supports a reasonable
inference that the small amount of methamphetamine sold to the confidential
informant was derived from the larger amount of methamphetamine found in a
drug manufacturing setting and separated into four individual plastic bags.
And, despite evidence that Hall also sold methamphetamine that same evening,
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Detective Zigler explained that it is common for people to share stashes of
drugs. Tr. at 85. We conclude that the totality of this additional evidence was
sufficient to support a conviction under a theory of constructive possession.
B. Count II: Dealing in Methamphetamine,
a Level 5 Felony
[16] Next, Morales challenges his conviction of dealing in methamphetamine, a
Level 5 felony, again alleging the State failed to present sufficient evidence to
sustain his conviction. To the extent we can discern Morales’ argument,
Morales’ asserts that because the identity of the seller could not be reliably
determined from police audio and video recordings of the controlled buy, the
State therefore failed to satisfy its burden of proof as to each element of the
crime. See Appellant’s Br. at 23.
[17] In Steelman v. State, the defendant had contacted a confidential informant and
informed her that he had a quarter pound of marijuana for sale. 486 N.E.2d
523 (Ind. 1985). The confidential informant notified police and met with the
defendant inside his trailer where he sold her the quarter pound of marijuana
for $120. Despite the fact that audio of the transaction was “ninety percent
inaudible; and . . . erased[,]” our supreme court held the evidence was “more
than sufficient to support this conviction.” Id. at 524, 525.
[18] As Morales himself admits, he was identified by both M.W. and Detective
Zigler as the individual who participated in the controlled buy and he was
subsequently taken into custody in possession of the $120 of marked currency.
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See Appellant’s Br. at 23. Regardless of whether his identity could be reliably
determined from audio and video records of the controlled buy, we conclude
this evidence was sufficient to support his conviction.
Conclusion
[19] For the reasons set forth above, we conclude there was substantial evidence of
probative value such that a reasonable trier of fact could have concluded
Morales was guilty beyond a reasonable doubt of both counts of dealing in
methamphetamine. We therefore affirm.
[20] Affirmed.
Riley, J., and Kirsch, J., concur.
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