Jake Presley v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 31 2020, 12:34 pm
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
Joel C. Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Courtney L. Abshire
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jake Presley, March 31, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2288
v. Appeal from the Putnam Circuit
Court
State of Indiana, The Honorable Matthew L.
Appellee-Plaintiff. Headley, Judge
Trial Court Cause No.
67C01-1809-F4-207
Najam, Judge.
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Statement of the Case
[1] Jake Presley appeals his conviction for conspiracy to commit dealing in a
controlled substance, as a Level 5 felony, following a jury trial. Presley presents
one issue for our review, namely, whether the State presented sufficient
evidence to support this conviction.
[2] We affirm.
Facts and Procedural History
[3] Jake Presley and Brian Garrard met while the two were inmates at the
Putnamville Correctional Facility. At one point in 2017, Presley “convinced”
Garrard to participate in a “plan” in which Presley’s mother would take drugs
to Garrard’s mother, Deborah Morgan, who would then take the drugs to
Lieber State Park. Tr. at 126. Once the drugs were in place, an inmate on the
offender “work crew” at the park would pick the drugs up. Id. at 130.
[4] In April 2018, Robert Evans, an investigator with the Putnamville Correctional
Facility’s Office of Investigations and Intelligence received a report that Presley
was involved in “some illegal activity.” Id. at 71. Based on that tip, Officer
Evans began reviewing all of Presley’s phone calls. Officer Evans discovered a
phone call from April 26 during which Presley requested the address and
information of a female. Presley indicated that “he was going to send some
individuals to her house to collect . . . Suboxone[.]” Id. at 75. Officer Evans
also learned that Morgan would pick up the Suboxone from Lieber State Park
on April 28.
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[5] On April 28, Officer Evans and another officer went to the park to conduct
surveillance. By 11:00 a.m., Morgan had not yet arrived, so the other officer
called her. Based on the officer’s conversation with Morgan, Officer Evans was
able to locate a package taped behind an ice machine in the park. The package
contained thirty-eight “pieces of strips” with the “description ‘N8’” on them.
Id. at 114.
[6] Thereafter, Brandy Cline, a forensic scientist with the Indiana State Police
Laboratory analyzed one of the strips. She concluded that the strip weighed
0.04 gram and that it contained buprenorphine and naloxone. Cline then “did
a visual examination” of the remaining thirty-seven strips, which were
“consistent” with the one she had analyzed. Id. at 123. Cline then “compared
the markings” on the strip to a reference, which “indicate[d]” that the strips
contained both buprenorphine and naloxone. Id. The remaining thirty-seven
strips had a net weight of 1.73 grams.
[7] The State charged Presley with one count of conspiracy to commit dealing in a
controlled substance, “to wit: Suboxone, pure or adulterated,” as a Level 5
felony, and one count of conspiracy to commit trafficking with an inmate
outside a facility, as a Level 6 felony. Appellant’s App. Vol. II at 34. The trial
court held a jury trial on July 31, 2019. During the trial, Cline testified that the
strips found by Officer Evans contained both buprenorphine, which is a
controlled substance, and naloxone, which is not a controlled substance. Cline
also testified that buprenorphine is “commonly referred to” as Suboxone. Id. at
123. At the conclusion of the trial, the jury found Presley guilty of both counts.
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The trial court entered judgment of conviction accordingly and sentenced
Presley to an aggregate sentence of three years in the Department of Correction.
This appeal ensued.
Discussion and Decision
[8] Presley contends that the State failed to present sufficient evidence to support
his conviction for conspiracy to commit dealing in a controlled substance, as a
Level 5 felony. 1 Our standard of review on a claim of insufficient evidence is
well settled:
For a sufficiency of the evidence claim, we look only at the
probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
not assess the credibility of witnesses or reweigh the evidence.
Id. We will affirm the conviction unless no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable
doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[9] On appeal, Presley first asserts that the State failed to present evidence that he
conspired to deal in a controlled substance. In the alternative, Presley contends
that the State failed to present sufficient evidence to demonstrate that the
1
Presley does not challenge his conviction for conspiracy to commit trafficking with an inmate outside a
facility, as a Level 6 felony.
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controlled substance weighed at least one gram. We address each argument in
turn.
Dealing in a Controlled Substance
[10] Presley first asserts that the State failed to demonstrate that he conspired to deal
in a controlled substance. Specifically, Presley asserts that the State alleged that
he conspired to deal in “Suboxone, pure or adulterated,” but that Cline only
testified that the strips contained buprenorphine and naloxone. Appellant’s Br.
at 11. Presley maintains that Cline did not “confirm or testify in any way that
she believed or understood that the strips were Suboxone” and, thus, that the
State failed to prove that he dealt in Suboxone as charged. Id. at 12. However,
contrary to Presley’s argument, Cline testified that buprenorphine is
“commonly referred to as [S]uboxone.” Tr. at 123. Because Cline testified that
the strips contained buprenorphine and that buprenorphine is commonly
referred to as Suboxone, the State presented sufficient evidence to demonstrate
the Presley had conspired to commit dealing in Suboxone, and his argument on
this issue must fail.
Weight of Controlled Substance
[11] Presley next contends that, even if the State presented sufficient evidence to
show that he had conspired to deal in a controlled substance, the State failed to
prove that the amount of the controlled substance was at least one gram, which
the State was required to show in order to elevate the offense from a Level 6
felony to a Level 5 felony. See Ind. Code § 35-48-4-2(c). On this issue, Presley
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first contends that the State failed to prove that the delivered drug weighed at
least one gram because Cline only tested one strip, which strip only weighed
0.04 gram. And, Presley contends that “the other films in the package could
have been fake, which contained no amount of [the] controlled substance.”
Appellant’s Br. at 14.
[12] However, Cline was not required to test all thirty-eight strips. See Woodford v.
State, 752 N.E.2d 1278, 1283 (Ind. 2001) (holding that the State presented
sufficient evidence to support a conviction for dealing in cocaine when the lab
technician only tested two of nine rocks of cocaine and the total weight of all
nine rocks was above the threshold amount for the elevated offense). Rather,
the evidence most favorable to the verdict demonstrates that Cline tested one
strip and found that it contained a controlled substance. Further, Cline “did a
visual examination” of the remaining thirty-seven strips, which were
“consistent” with the one she had analyzed. Id. at 123. Cline then “compared
the markings” on the strip to a reference, which “indicate[d]” that the strips
contained both buprenorphine and naloxone. Id. Presley’s argument that the
other strips might not have contained the controlled substance is merely a
request that we reweigh the evidence, which we cannot do.
[13] Still, Presley asserts that, even if all thirty-eight strips contained buprenorphine,
the State failed to demonstrate that the weight of the drug was at least one
gram. Presley acknowledges that the strips had a total weight of 1.77 grams.
However, he asserts that the films contained both a controlled substance and a
noncontrolled substance but that Cline could not “describe or define a
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comparative ratio of those substances, so it is unknown what percentage of the
1.77 grams was actually buprenorphine.” Appellant’s Br. at 14. In other
words, Presley asserts that the State could not prove that the films contained at
least one gram of a controlled substance.
[14] However, it is well-settled that “‘[t]he total weight of the delivered drug and not
its pure component is to be considered in prosecutions.’” Woodford, 752 N.E.2d
at 1283 (quoting Riley v. State, 711 N.E.2d 489, 493 (Ind. 1999)). Accordingly,
the State is not required to demonstrate that the pure portion of buprenorphine
in the strips weighed at least one gram. Rather, the State presented evidence
that the total weight of the strips was 1.77 grams and that each of the strips
contained a controlled substance. Accordingly, the State presented sufficient
evidence to demonstrate that the weight of the controlled substance was at least
one gram.
[15] In sum, the evidence most favorable to the verdict demonstrates that the strips
contained Suboxone, a controlled substance. The evidence also demonstrates
that the total weight of the Suboxone was at least one gram. Accordingly, the
State presented sufficient evidence to support Presley’s conviction for
conspiring to deal in a controlled substance, as a Level 5 felony. We therefore
affirm his conviction.
[16] Affirmed.
Kirsch, J., and Brown, J., concur.
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