Kevin Gene Rotino v. State of Indiana ( 2013 )

FILED
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 Jan 23 2013, 9:24 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KURT A. YOUNG GREGORY F. ZOELLER
Nashville, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN GENE ROTINO, )
)
Appellant-Defendant, )
)
vs. ) No. 07A05-1205-CR-259
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable Judith A. Stewart, Judge
Cause No. 07C01-0810-FC-436
January 23, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Kevin Gene Rotino appeals his Class D felony dealing in marijuana conviction.
He contends that there is insufficient evidence to sustain his conviction because the State
failed to show both that manufacturing was taking place and that Rotino was either a
principal or accomplice in the manufacturing. Finding that there is sufficient evidence to
sustain his conviction, we affirm.
Facts and Procedural History
On September 26, 2008, Indiana Conservation Officer Captain Jason Lee received
information about a marijuana-growing operation in a wooded area at the intersection of
Bear Wallow Hill and Gatesville Road in Brown County. Captain Lee and Officer Brent
Bohbrink went to the area in the woods where the operation was allegedly taking place,
and Captain Lee could smell the “pungent odor of marijuana” from 200 to 225 feet away.
Tr. p. 50. Using a “spotting scope,” Captain Lee observed a white box trailer attached to
a black pickup truck. The tailgate of the trailer had been lowered to form a table surface.
Captain Lee saw three men sitting around the tailgate “cutting up and processing”
marijuana. Id. at 52. After watching the three men for ten to fifteen minutes, Captain
Lee and Officer Bohbrink went back to Nashville in order to obtain a search warrant.
Later that afternoon, Captain Lee and Officer Bohbrink returned to the wooded
area with additional officers and saw the scene to be the same as it was earlier. Id. at 55.
Captain Lee described the scene at trial as a “fairly elaborate set up” with “all parts of the
process of taking a full [marijuana] plant and cutting it down into the pieces you actually
are trying to keep and utilize.” Id. at 63-64. There were drying racks where the cut
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vegetation would be placed for drying, as well as three pairs of scissors in the midst of
the marijuana being processed. Id. at 63, 66.
At the scene, the officers decided to split up and approach the site from both the
north and the south. However, before the officers were in position, one of the men at the
site, Casey Greene, spotted Captain Lee. The officers then entered the site, identified
themselves as officers, and yelled for everyone to stop. When Greene, Rotino, and two
other men ran, the officers pursued them. Officer Bohbrink eventually caught Rotino
lying on his stomach in a creek bed.
No marijuana was found actually growing at the scene, but the officers collected
all the marijuana that was there, along with the three pairs of scissors with marijuana
residue on them. The marijuana was laid out to dry for several days and was then sent to
the Indiana State Police Laboratory to be tested and weighed. The testing confirmed that
the plants were marijuana and that they weighed a total of 10.72 pounds.
The State charged Rotino with Class C felony dealing in marijuana, Class D
felony possession of marijuana, Class A misdemeanor possession of paraphernalia, Class
A misdemeanor resisting law enforcement, and Class B misdemeanor visiting a common
nuisance. A jury trial was held, and on the day of trial, the State dismissed the Class A
misdemeanor possession of paraphernalia charge. The jury found Rotino guilty of the
lesser-included Class D felony dealing in marijuana, Class D felony possession of
marijuana, Class A misdemeanor resisting law enforcement, and Class B misdemeanor
visiting a common nuisance. The trial court entered no judgment on Rotino’s possession
of marijuana conviction on double-jeopardy grounds and sentenced Rotino to one and
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one-half years for dealing in marijuana, 180 days for resisting law enforcement, and
ninety days for visiting a common nuisance, to be served concurrently.
Rotino now appeals his dealing in marijuana sentence only.
Discussion and Decision
Rotino contends that there is insufficient evidence to sustain his Class D felony
dealing in marijuana conviction. Our standard of review with regard to sufficiency
claims is well settled. In reviewing a sufficiency of the evidence claim, this Court does
not reweigh the evidence or judge the credibility of the witnesses. Bond v. State, 925
N.E.2d 773, 781 (Ind. Ct. App. 2010), reh’g denied, trans. denied. We consider only the
evidence most favorable to the judgment and the reasonable inferences drawn therefrom
and affirm if the evidence and those inferences constitute substantial evidence of
probative value to support the judgment. Id. Reversal is appropriate only when a
reasonable trier of fact would not be able to form inferences as to each material element
of the offense. Id.Indiana Code section 35-48-4-10 governs dealing in marijuana and provides in
relevant part:
(a) A person who:
(1) knowingly or intentionally:
(A) manufactures; . . .
* * * * *
marijuana, hash oil, hashish, salvia, or a synthetic drug, pure
or adulterated;
commits dealing in marijuana, hash oil, hashish, salvia, or a synthetic drug,
a Class A misdemeanor, except as provided in subsection (b).
(b) The offense is:
(1) a Class D felony if:
* * * * *
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(B) the amount involved is:
(i) more than thirty (30) grams but less than ten (10) pounds
of marijuana . . . .
Additionally, Indiana Code section 35-48-1-18 defines “manufacture” in relevant part as:
(1) the production, preparation, propagation, compounding, conversion, or
processing of a controlled substance, either directly or indirectly by
extraction from substances of natural origin, independently by means of
chemical synthesis, or by a combination of extraction and chemical
synthesis, and includes packaging or repackaging of the substance or
labeling or relabeling of its container.
Rotino contends that there is insufficient evidence that any manufacturing was taking
place. We disagree.
At trial, evidence was introduced that the site was used for “preparing” and
“processing” the marijuana plants. Captain Lee testified that the unprocessed plants were
on the tailgate that was being used as a worktable. Captain Lee then described that the
leaves and stalks were removed, the leaves were cut into usable pieces, and the buds were
removed. The leaves and buds were then placed on the drying racks that were inside the
trailer. Tr. p. 62-63. Additionally, three pairs of scissors with “real heavy marijuana
residue on the actual knives of the scissors” were found at the site among the marijuana
plants. Id. at 66. This is sufficient evidence for a reasonable jury to determine that
manufacturing of marijuana was taking place at the site through the preparing and
processing of the plants.
However, Rotino also argues that in order to be manufactured, the marijuana must
be prepared or processed “either directly or indirectly by extraction from substances of
natural origin . . . .” I.C. § 35-48-1-18. He contends that “by extraction from substances
of natural origin” applies to both “directly” and “indirectly,” and therefore the activities
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taking place at the site do not fit the definition of manufacturing since nothing was being
extracted from the marijuana plants. Appellant’s Br. p. 11-12. We find this argument to
be without merit. “By extraction from substances of natural origin” applies only to
“indirectly,” applying to the instances where contraband is being derived from a natural
source. In this case, however, the natural marijuana plant itself is the contraband, and it
was being directly prepared and processed at the site. Therefore, no extraction from the
plants was necessary under the statute in order for manufacturing to take place.
Finally, Rotino contends that there is insufficient evidence to show that he was a
principal or accomplice in the manufacturing process. We again disagree, finding that
there is sufficient evidence to show that Rotino was an accomplice, and “[i]n Indiana
there is no distinction between the responsibility of a principal and an accomplice.”
Stokes v. State, 908 N.E.2d 295, 303 (Ind. Ct. App. 2009), trans. denied.
“We consider four factors to determine whether a defendant acted as an
accomplice: (1) presence at the scene of the crime; (2) companionship with another at
scene of crime; (3) failure to oppose commission of crime; and (4) course of conduct
before, during, and after occurrence of crime.” Castillo v. State, 974 N.E.2d 458, 466
(Ind. 2012). In this case, Rotino was present at the scene of the crime and failed to
oppose the commission of the crime. At trial, Captain Lee testified that when the officers
returned to the scene, he believed that Rotino was one of the three men who were seated
at the table processing the marijuana plants with the three pairs of scissors found with
marijuana residue on them. Tr. p. 66, 86. Additionally, while there is no evidence
concerning Rotino’s behavior before the occurrence of the crime, Rotino was at the table
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where the processing was taking place, id. at 86, and immediately fled from the scene
when the conservation officers showed up the second time before being caught by Officer
Bohbrink. Id. at 56-57, 98. This behavior is sufficient to allow a reasonable jury to infer
that Rotino was involved with the commission of the crime as an accomplice.
We therefore find that there is sufficient evidence that Rotino committed Class D
felony dealing in marijuana and affirm his conviction.
Affirmed.
BAILEY, J., and BROWN, J., concur.
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