Tory D. Ward v. State of Indiana (mem. dec.) ( 2016 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D), this
    Memorandum Decision shall not be regarded as                          FILED
    precedent or cited before any court except for the
    Nov 17 2016, 7:55 am
    purpose of establishing the defense of res judicata,
    collateral estoppel, or the law of the case.                          CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
    Glenn A. Grampp                                        Gregory F. Zoeller
    Evansville, Indiana                                    Attorney General of Indiana
    Jodi Kathryn Stein
    Deputy Attorney General
    Indianapolis, Indiana
    Breanna Heilicher
    Certified Legal Intern
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Tory D. Ward,                                              November 17, 2016
    Appellant-Defendant,                                       Court of Appeals Case No.
    82A01-1512-CR-2280
    v.                                                 Appeal from the Vanderburgh
    Superior Court
    State of Indiana,                                          The Hon. Robert J. Pigman, Judge
    Trial Court Cause No. 82D03-1506-
    Appellee-Plaintiff.
    F2-3447
    Bradford, Judge.
    Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 1 of 8
    Case Summary
    [1]   On October 30, 2015, Appellant-Defendant Tory D. Ward was found guilty,
    following a jury trial, of Level 2 felony dealing in methamphetamine and Level
    2 felony dealing in a schedule 1 controlled substance, ethylone. Ward,
    however, was found not guilty of Level 5 felony trafficking with an inmate.
    Ward appeals his convictions, contending that the evidence is insufficient to
    sustain his convictions. Concluding that the evidence is sufficient to sustain
    both convictions, we affirm.
    Facts and Procedural History
    [2]   Around May 27, 2015, Jordan Best met Ward and between that date and the
    day of the arrest, June 13, 2015, the two sold methamphetamine together. On
    June 8, 2015, Best and Ward left for Texas along with Erin Lance, another
    dealer for Ward. Best was told that they were going to Texas to get more
    methamphetamine to sell because their supply had run out. Lance was given a
    similar reason for going to Texas in that they were going to network and “check
    out some prices and basically just trying to bring stuff back.” Tr. p. 267. The
    three of them stayed with Ward’s family while in Texas. At one point, Ward
    Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 2 of 8
    returned to his family’s house with an ounce of MDMA1 and “Molly”2 for him,
    Best, and Lance to try. Tr. p. 410-11.
    [3]   On June 13, 2015, the trio left Texas and stopped at Ward’s sister’s house
    before returning to Evansville. When Ward got back in the car from his sister’s
    house he had four ounces of “Molly.” As the trio approached Evansville, they
    were stopped by police. At this point, Ward threw the “Molly” on Lance’s lap
    and “demanded her to take it.” Tr. p. 416. Lance hid the drugs in her pants,
    but when a female police officer approached to search her, Lance gave the
    police the drugs. Additionally, there was a K-9 officer that indicated the
    presence of drugs in the vehicle. After the stop, Best and Ward were taken to
    the Vanderburgh County jail. At the jail, Ward was searched by Corrections
    Officer Jeremy Elliot. During the search, Elliot found a bag “between [Ward’s]
    buttocks” that contained about twenty-six grams of a white crystal substance.
    Tr. p. 351.
    [4]   Rebecca Nickless, a Forensic Scientist with the Indiana State Police Lab,
    analyzed the drugs involved in this case. She found that the bag of drugs
    retrieved from Ward’s person, labeled as State’s Exhibit #1, contained ethylone
    1
    “3,4-methylenedioxy-methamphetamine (MDMA) is a synthetic drug that alters mood and perception
    (awareness of surrounding objects and conditions).” It is more commonly called Ecstacy or Molly.
    DrugFacts–MDMA (Ecstacy/Molly), DRUGFACTS,
    https://www.drugabuse.gov/publications/drugfacts/mdma-ecstasymolly (last visited Nov. 1, 2016).
    2
    “Molly, experts say, contains all [or pure] MDMA in a crystalline powder contained in a capsule.”
    What is Molly? Why is it Dangerous?, NBC NEWS, http://www.nbcnews.com/health/health-news/what-
    molly-why-it-dangerous-n311291 (last visited Nov. 3, 2016).
    Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 3 of 8
    and had a net weight of 23.38 grams. State’s Exhibits #2 and #3, the drugs
    found on Lance, were analyzed as well. State’s Exhibit #2 was ethylone and
    had a net weight of 111.37 grams. Finally, State’s Exhibit #3 contained pills
    made from methamphetamine and weighed over 10 grams which was more
    than is required under law to meet the statutory elements.3 Tr. p. 385-86.
    [5]   On June 15, 2015, the Appellee, the State of Indiana (“the State”), charged
    Ward with Level 2 felony dealing in methamphetamine, Level 2 felony dealing
    in a schedule 1 controlled substance, ethylone, and Level 5 felony trafficking
    with an inmate.
    [6]   Following trial, the jury found Ward guilty of Level 2 felony dealing in
    methamphetamine and Level 2 felony dealing in a schedule 1 controlled
    substance, ethylone, but not guilty of Level 5 felony trafficking with an inmate.
    On November 24, 2015, the trial court sentenced Ward to an aggregate
    sentence of twenty-six years of incarceration.
    Discussion and Decision
    [7]   On appeal, Ward argues that the evidence is insufficient to sustain his
    convictions for Level 2 felony dealing in methamphetamine and Level 2 felony
    dealing in a schedule 1 controlled substance, ethylone, because the State failed
    3
    There was a variance in the weight of the drugs when weighed, at least 10.16 grams and possibly as
    much as 10.68 grams. This variance was attributed to uncertainty in the balance of the scale.
    Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016    Page 4 of 8
    to prove that he had actual or constructive possession of the drugs that were
    found on Lance’s person. Additionally, Ward argues that the evidence is
    insufficient to sustain a conviction of Level 2 felony dealing in a schedule 1
    controlled substance, ethylone, because it was not proven that the chemicals
    present in State’s Exhibit #1, which was found “between [Ward’s] buttocks”
    were prohibited by law. Tr. p. 351.
    When reviewing the sufficiency of the evidence to support a
    conviction, appellate courts must consider only the probative
    evidence and reasonable inferences supporting verdict. It is the
    fact-finder’s role, not that of appellate courts, to assess witness
    credibility and weigh the evidence to determine whether it is
    sufficient to support a conviction. To preserve this structure, when
    appellate courts are confronted with conflicting evidence, they
    must consider it most favorably to the trial court’s ruling.
    Appellate courts affirm the conviction unless no reasonable fact-
    finder could find the elements of the crime proven beyond a
    reasonable doubt. It is therefore not necessary that the evidence
    overcome every reasonable hypothesis of innocence. 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) (citations, emphasis, and
    quotations omitted). “In essence, we assess only whether the verdict could be
    reached based on reasonable inferences that may be drawn from the evidence
    presented.” Baker v. State, 
    968 N.E.2d 227
    , 229 (Ind. 2012) (emphasis in
    original).
    [8]   Indiana Code section 35-48-4-1.1(a)(2) provides, in relevant part, as follows:
    (a) A person who:
    …
    (2) possesses, with intent to:
    Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 5 of 8
    …
    (C) deliver
    …
    methamphetamine, pure or adulterated; commits 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.
    [9]   Indiana Code section 35-48-4-2(a)(2) provides, in relevant part, as follows:
    (a) A person who:
    …
    (2) possesses, with intent to:
    …
    (C) deliver
    …
    a controlled substance, pure or adulterated, classified in schedule I, II, or
    III, except marijuana, hash oil, hashish, salvia, or a synthetic drug;
    commits dealing in a schedule I, II, or III controlled substance, a Level 6
    felony, except as provided in subsections (b) through (f).
    (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; or
    …
    (f) The offense is a Level 2 felony if: (1) the amount of the drug involved
    is at least twenty-eight (28) grams.
    Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 6 of 8
    A. Possession of Drugs
    [10]   Ward argues that the evidence is insufficient to prove he had actual or
    constructive possession of the drugs which were found on Lance’s person
    during the search of the vehicle. In support of this argument, Ward claims that
    the State did not obtain any of Ward’s fingerprints from the drugs or obtain a
    statement from him indicating that he even knew of the drugs’ presence.
    However, all of the testamentary evidence indicates that the drugs were brought
    into the car by Ward and that he threw them on Lance when they were pulled
    over by the police. This is supported by testimony from both Lance and Best,
    who were in the backseat of the car at the time.
    [11]   In this case, it is not necessary to reach constructive possession and delve into
    the various elements required to find such. Based on the facts as found by the
    jury, Ward had actual possession of the drugs in question. Both Lance and Best
    testified that Ward brought the drugs into the car. In addition, Lance and Best
    testified that when they were stopped by the police Ward dropped the drugs on
    Lance’s lap and demanded that she hide them. Finally, the drugs found
    “between [Ward’s] buttocks” provide additional support for a reasonable
    inference that Ward knew of the other drugs that were found in the car, namely
    methamphetamine and ethylone. Tr. p. 351.
    B. Chemical Makeup of Substance
    [12]   In challenging his conviction of Level 2 felony dealing in a schedule 1
    controlled substance, ethylone, Ward claims that the State did not prove that
    Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 7 of 8
    the chemicals present in that item were prohibited on schedule 1 of the
    controlled substances. We disagree.
    [13]   During trial, Nickless testified that she had tested the drugs in question and
    found them to contain ethylone. She testified that ethylone is classified as a
    Schedule 1 drug under the synthetic drugs provision of the statute. Tr. p. 373.
    This testimony is sufficient to support a reasonable inference that Ward was
    dealing in a schedule 1 controlled substance, ethylone, and so it is enough to
    support the conviction.
    [14]   The judgment of the trial court is affirmed.
    Pyle, J., and Altice, J., concur.
    Court of Appeals of Indiana | Memoradnum Decision 82A01-1512-CR-2280 | November 17, 2016   Page 8 of 8
    

Document Info

Docket Number: 82A01-1512-CR-2280

Filed Date: 11/17/2016

Precedential Status: Precedential

Modified Date: 11/17/2016