Opinion
23A-CR-2708
06-26-2024
Uriel Cabrera Alcocer, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Susan D. Rayl Harshman Ponist Smith & Rayl, LLC Indianapolis, Indiana Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Cynthia L. Oetjen, Judge Trial Court Cause No. 49D30-2210-F2-27363
ATTORNEYS FOR APPELLANT Susan D. Rayl Harshman Ponist Smith & Rayl, LLC Indianapolis, Indiana Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana
Judges Riley and Brown concur.
MEMORANDUM DECISION
Foley, Judge.
[¶1] Uriel Cabrera Alcocer ("Alcocer") was convicted after a jury trial of dealing in cocaine as a Level 2 Felony, dealing in methamphetamine as a Level 3 felony,and dealing in marijuana as a Class A misdemeanor. Alcocer appeals and raises the following restated issue for our review: whether the State presented sufficient evidence to sustain his conviction for dealing in methamphetamine. We affirm.
Ind. Code § 35-48-4-1(a)(2), (e)(1).
I.C. § 35-48-4-1.1(a)(2), (d)(1).
I.C. § 35-48-4-10(a)(2).
Facts and Procedural History
[¶2] On October 6, 2022, Indianapolis Metropolitan Police Department ("IMPD") Officer Duran Brown ("Officer Brown") heard gunshots at 2:45 a.m. and drove in the direction of the gunshots. Dispatch provided Officer Brown with an address and informed him that four gunshots had been fired from the rear of the residence. When Officer Brown and other officers arrived, they noticed several vehicles parked at the address. In one of the vehicles, a man, later identified as Alcocer, was sitting in the driver's seat and a woman was crouched on the passenger side floorboard with her hands and head on the seat. The officers instructed Alcocer and the woman to exit the vehicle, and after initial resistance, both eventually exited the vehicle. While searching the vehicle the officers found sixty grams of cocaine split into three bags. Each bag was packed identically and labeled with red ink. A fourth bag was found that contained a generic powder that was not a controlled substance and was later identified as a cutting agent.
[¶3] The officers also discovered a burnt pipe between the driver's seat and the center console, two rolled dollar bills, and a marijuana cigarette in the center console. Under the passenger seat, officers found a bag containing 420 grams of marijuana and a coin purse containing three baggies of a crystalline substance. Two scales were retrieved from behind the front passenger seat, and a cut Ziploc plastic bag and a pair of scissors were found on the back passenger seat. A search of Alcocer's person disclosed an additional $200 in cash. Officer Brown requested scientific testing for the controlled substances, which were later identified and weighed by Ryan Farrell ("Farrell"), who supervised the drug chemistry unit at the Indianapolis Forensic Services Agency.
[¶4] On October 7, 2022, the State charged Alcocer with dealing in cocaine as a Level 2 felony, dealing in methamphetamine as a Level 3 felony, and dealing in marijuana as a Class A misdemeanor. During the jury trial on June 26, 2023, Farrell testified that three items of crystalline substance found inside the coin purse were tested and confirmed to be methamphetamine. The first bag contained 0.46 grams, the second bag contained 2.88 grams, and the third bag contained 2.44 grams, for a combined weight of 5.78 grams of methamphetamine.
[¶5] Officer Brown testified that individuals cut the corners off Ziploc baggies and retie them to distribute drugs. IMPD Officer Anthony Francis ("Officer Francis") testified that a typical dose of methamphetamine for a single user would be approximately 0.25 grams and that users would generally have between one and 3.5 grams on their person. Officer Francis also testified that drug dealers use cutting agents to increase the quantity of the drug and maximize their profits in distribution.
[¶6] The jury found Alcocer guilty as charged. On October 26, 2023, a sentencing hearing was held. The trial court entered judgment of conviction on all three counts and sentenced him to an aggregate twelve-year sentence. Alcocer now appeals.
Discussion and Decision
[¶7] Alcocer argues that insufficient evidence was presented to support his conviction for Level 3 felony dealing in methamphetamine. When there is a challenge to the sufficiency of the evidence, "[w]e neither reweigh evidence nor judge witness credibility." Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016), cert. denied. Instead, we consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom. Id. "We will affirm the judgment if it is supported by substantial evidence of probative value even if there is some conflict in that evidence." Id. Further, "[w]e will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). To convict Alcocer of dealing in methamphetamine as a Level 3 felony, the State had to prove that Alcocer possessed with intent to deliver at least five grams of methamphetamine, pure or adulterated. Ind. Code § 35-48-4-1.1(a)(2), (d)(1). Under subsection (b) of the statute, the State was required to present evidence, in addition to the weight of the drug, that Alcocer intended to deliver the drug. I.C. § 35-48-4-1.1(a)(2).
[¶8] Alcocer argues that the State failed to present sufficient evidence that he intended to deliver the 5.78 grams of methamphetamine found in the vehicle. Alcocer is correct that because the quantity of the methamphetamine was less than 28 grams, the State was required to present evidence of dealing in addition to the weight of the drug. Intent, being a mental state, can only be established by considering the behavior of the relevant actor, the surrounding circumstances, and the reasonable inferences to be drawn therefrom. Richardson v. State, 856 N.E.2d 1222, 1227 (Ind.Ct.App. 2000), trans. denied. An intent to deliver may be demonstrated by either direct or circumstantial evidence. Elvers v. State, 22 N.E.3d 824, 835 (Ind.Ct.App. 2014). Circumstantial evidence of defendant's intent to deliver, such as possession of a large quantity of drugs, large amounts of currency, scales, plastic bags, and other paraphernalia, as well as evidence of other drug transactions, can support a conviction. Ladd v. State, 710 N.E.2d 188, 191 (Ind.Ct.App. 1999).
[¶9] Here, the evidence most favorable to the judgment demonstrated that the State produced sufficient evidence that Alcocer intended to deal the methamphetamine found in the vehicle. Alcocer possessed 5.78 grams of methamphetamine, which is approximately twice the typical amount a single user possesses, representing more than twenty-three doses. The methamphetamine was packaged in three small bags, each containing an amount consistent with amounts typically found on an individual user, rather than combined in one container. Additionally, inside Alcocer's vehicle, officers found a Ziploc bag that had been cut with a pair of scissors, which was consistent with the use of the bags for the distribution of drugs. The search also yielded the discovery of $200 in cash on Alcocer's person, two digital scales, and a cutting agent inside the vehicle, which further supported a reasonable inference that Alcocer intended to deal methamphetamine. The copious quantities of cocaine and marijuana discovered in Alcocer's vehicle, along with the drug paraphernalia and items associated with methamphetamine distribution, provided sufficient circumstantial evidence of his intent to deliver methamphetamine. See also McGuire v. State, 613 N.E.2d 861, 864 (Ind.Ct.App. 1993) (citing that circumstantial evidence of intent to deliver, such as possession of a large quantity of drugs, scales, plastic bags, and other paraphernalia can support a conviction). Alcocer argues that the State failed to prove that he possessed methamphetamine with intent to deliver. Alcocer's arguments are an invitation to reweigh the evidence, which we will not do. Based on the evidence adduced at trial, we conclude that sufficient evidence was presented to support Alcocer's conviction for Level 3 felony dealing in methamphetamine.
[¶10] Affirmed.
Riley, J., and Brown, J., concur.