Opinion
23A-CR-2858
06-12-2024
Joshua Craig, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT David L. Joley Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorneys General of Indiana Kathy Bradley 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Whitley Superior Court The Honorable Douglas M. Fahl, Judge Trial Court Cause No. 92D01-2211-F2-1002
ATTORNEY FOR APPELLANT David L. Joley Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorneys General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE.
[¶1] Joshua Craig appeals his conviction and sentence for dealing in methamphetamine as a level 2 felony. We affirm.
Facts and Procedural History
[¶2] At approximately 8:30 a.m. on November 18, 2022, Indiana State Police Troopers Kris Coffey and Todd Reed were patrolling U.S. 30. Trooper Coffey observed a vehicle driving east on U.S. 30 with "blacked-out tint" on the vehicle and the front windshield "was tinted completely all the way down to the hood." Transcript Volume II at 130, 132. After Trooper Reed turned onto U.S. 30 and attempted to catch up to the vehicle, the driver, later identified as Craig, "drove out of the right lane across white the fog line on the side of the road, onto the rumble strips, for a short time and abruptly went back into the right lane." Id. at 132. Craig then turned onto County Road 400 West. Trooper Coffey activated his red and blue lights, and Craig stopped.
[¶3] Trooper Coffey approached the vehicle, which was registered in Craig's name, and observed that Craig had lowered the window. Trooper Reed parked behind Trooper Coffey's vehicle. Meanwhile, Trooper Coffey told Craig why he stopped him, and Craig told him he was on his way to Wal-Mart, which did not make sense because Craig was heading in the correct direction on U.S. 30 before he turned on County Road 400 West. Trooper Coffey asked Craig if that was the way he normally drove to Wal-Mart. Craig "changed his story a little bit" and said he was turning to "look at a vehicle." Id. at 134-135. Craig initially told troopers that there was nothing in the car. At the time of the stop, his license was suspended for being an habitual traffic violator. Craig told Trooper Reed that he was an habitual traffic violator. Trooper Reed had Craig step out of the vehicle and placed him in handcuffs.
[¶4] At some point, Trooper Anthony Repass arrived with his K-9 and walked his dog, who is trained to recognize methamphetamine, heroin, cocaine, crack and ecstasy, around Craig's vehicle. The dog alerted to the presence of contraband. After being informed that the dog alerted, Craig informed the officers where methamphetamine was located.
[¶5] Craig stated to Trooper Reed that he could obtain methamphetamine from "a chick here in town" and a "bigger guy in South Bend." State's Exhibit 7 at 1:14-1:23. Trooper Reed asked how much he could obtain, and Craig said: "How much do you want?" Id. at 1:24-1:27. After telling Trooper Reed that there was an ounce of methamphetamine in the sun visor, Trooper Reed asked if he was using or selling, and Craig said that he was selling.
[¶6] During a search of the vehicle, Trooper Coffey discovered a plastic container with a screw top in the "sun visor area of the vehicle" that contained a plastic baggie containing 19.82 grams of methamphetamine and a separate package of methamphetamine which together totaled approximately one ounce. Transcript Volume II at 142. He also discovered a Ziplock plastic bag that contained marijuana in the center console of the vehicle and a glass smoking pipe used for methamphetamine.
[¶7] The troopers informed Whitley County Sheriff's Detective Sergeant Scott Valentic, who was assigned to the drug task force, that they had arrested Craig who had a large amount of methamphetamine. Craig told Detective Sergeant Valentic that he used "a ball every couple of weeks," which he translated into thirty-five uses "every couple of weeks if he was using a point at [a] time." Id. at 186.
Detective Sergeant Valentic testified that a "ball" or "eight ball . . . is an eighth" and a "point" is a tenth of a gram. Transcript Volume II at 181.
[¶8] On November 21, 2022, the State charged Craig with: Count I, dealing in methamphetamine as a level 2 felony; Count II, possession of methamphetamine as a level 4 felony; Count III, operating a motor vehicle after forfeiture of license for life as a level 5 felony; and Count IV, possession of marijuana as a class B misdemeanor. The State also filed a Notice of Intent to Seek Habitual Offender Status. On September 14, 2023, the State filed a Motion to Amend Count III to operating a vehicle as an habitual traffic violator as a level 6 felony, and the court granted the motion.
[¶9] During the jury trial, the State presented the testimony of Troopers Coffey, Repass, and Reed and Detective Sergeant Valentic. The court admitted video of Trooper Reed speaking with Craig as State's Exhibit 7. A jury found Craig guilty and he admitted to being an habitual offender.
[¶10] At the sentencing hearing, the prosecutor argued for a sentence of fifty years. The court dismissed Count II, possession of methamphetamine as a level 4 felony, pursuant to an oral motion from the prosecutor. The court found Craig's significant criminal history or delinquent behavior as an aggravating factor. It noted that Craig had a history of violating probation when he had been given the opportunity for rehabilitation, had not successfully completed probation, and had a significant history of substance abuse. It stated that Craig had "a spiritic [sic] employment history" but placed "little weight on that because [Craig] was employed at a very good job, making twenty-nine dollars ($29.00) an hour at the time of his arrest ...." Transcript Volume III at 7. The court found that Craig obtained his GED, improved his education level over the years, and admitted his habitual felony offender enhancement as mitigating factors. The court sentenced Craig to concurrent terms of twenty years for Count I, dealing in methamphetamine as a level 2 felony, two years for Count III, operating a motor vehicle as an habitual traffic violator as a level 6 felony, and 180 days for Count IV, possession of marijuana as a class B misdemeanor. The court enhanced the sentence for Count I by ten years due to Craig's status as an habitual offender for an aggregate sentence of thirty years. The court stated:
The court stated: "The Court would specifically note that the Court is not, not considering the allegation or excuse the crimes that were demonstrated or admitted to within the habitual felony offender enhancement." Transcript Volume III at 7.
I will say that [the prosecutor's] request for fifty (50) years is not out of line. However, I believe that I needed to, it was important to give you credit for those things particularly the habitual felony offender enhancement when you admitted to that. You stepped forward, you could have made the State, out of anger if nothing else, spend a lot of time proving that, but you stepped and you said "No, I am responsible for that" and I wanted to give you significant credit and I have knocked a significant portion of that rather than fifty (50) years. The total sentence that I am ordering is thirty (30) years of incarceration, now what I will do is I will place in my order a request for purposeful incarceration or whatever they are calling it at the Department of Correction[] now.... I did read your letter and I do want you to get the, to get the treatment while you are there, alright.Id. at 9.
Discussion
I.
[¶11] Craig argues that the only evidence that he possessed methamphetamine with intent to deliver was proven by circumstantial evidence alone. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh'g denied. Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id. A conviction may be sustained on the uncorroborated testimony of a single witness or victim. Baltimore v. State, 878 N.E.2d 253, 258 (Ind.Ct.App. 2007), trans. denied. We will affirm the conviction if there exists evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Jordan, 656 N.E.2d at 817.
[¶12] Ind. Code § 35-48-4-1.1(a)(2) provides that "[a] person who . . . (2) possesses, with intent to . . . deliver . . . or . . . finance the delivery of . . . methamphetamine, pure or adulterated . . . commits dealing in methamphetamine," and subsection (e) provides that "[t]he offense is a Level 2 felony if . . . the amount of the drug involved is at least ten (10) grams ...." Ind. Code § 35-48-4-1.1(b) provides that "[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 deliver or finance the delivery of the drug; or (2) the amount of the drug involved is at least twenty-eight (28) grams."
[¶13] Trooper Reed testified that Craig admitted he possessed "an ounce" and that amount was significant because "through, my training and experience, we don't generally encounter that quantity of methamphetamine on user level stops, on people that we stop on the side of the road with user . . . amounts" and "[i]t is generally a point or less than a gram, . . . it is not common to have that quantity . . . on a traffic stop for someone who just uses methamphetamine." Transcript Volume II at 169-170. He explained that a point is a tenth of a gram. He also stated that, "[g]enerally speaking, methamphetamine users use a point up to two (2) points per day for about a 6-to-8-hour rush or high" and "to have that quantity of an ounce on them is not signific [sic] for a user level that would last [an] incredibly long amount of time for the average methamphetamine user."
Id. at 170. When asked if the drugs seized from Craig's car were something he considered, in his training and experience, to be a personal amount, he answered: "Absolutely not." Id. When asked about his understanding of Craig's statement on the video, he answered: "At the very end of that video, I asked him if he was using or selling, and his comment was selling and then he continued on to something else." Id. During cross-examination, Trooper Reed testified that he regularly worked on drug trafficking cases and had been involved in "probably . . . close[] to [a] thousand investigations." Id. at 171.
[¶14] Detective Sergeant Valentic testified that "[p]ersonal use would be that amount of a drug that an individual would have on their person to use in the immediate or near future." Id. at 181. He further testified:
A user of methamphetamine may use what would be called a point, and that is a tenth of a gram of methamphetamine, or of any drug. But a point is typically a very small amount that a user would use, all the way up to a half of a gram . . . and then typically a user would purchase a gram if they were going to use points or a tenths [sic] of a gram, which would be approximately ten (10) uses or they would purchase up to what would be called ball, or eight ball, which is an eighth. And that is three point five (3.5) grams and again going be [sic] the tenth of a gram, that would be up to thirty-five (35) uses. And those are the typically the highest user amounts that we would see on a person at any time.Id. He further testified that "[f]or a user a ball of meth is a lot." Id. at 183. With respect to the 19.82 grams of methamphetamine found in Craig's vehicle, he testified: "[T]he way this methamphetamine is packaged is in what I would call a shard, and that means it is a rock like substance. It is not broken down and this is typically indicative of a dealer amount of methamphetamine or a way to possess it." Id. at 184. When asked what would have to happen to convert the item contained in Craig's vehicle into personal use amounts, he answered:
Amounts would have to be broken off the shard, and typically when the amounts are broken off the shard it begins to become crystal-like and then that would be weighed to, [sic] if it is being sold. It would be weighed to make sure that it weighs the amount that is being sold. It would no longer be in a shard-like form.Id. He testified that, in his experience as a detective in the drug world, users would have enough drugs "to get them through a day of use, possibly a few days of use . . . [a]nd maybe up to a week of use in the event that they have enough money to purchase what I called a ball or an eighth, but it is most common to see a gram or less on an individual when they are arrested." Id. at 185. He indicated that the amount in Craig's vehicle was approximately two hundred uses and that people do not buy and hold that amount of methamphetamine for personal use. Further, the jury was able to view the video of the discussion between Craig and Trooper Reed and heard Trooper Reed's testimony that, "[a]t the very end of that video, I asked him if he was using or selling, and his comment was selling ...." Id. at 170. Based upon the record, we conclude that evidence of probative value exists from which a trier of fact could have found Craig guilty beyond a reasonable doubt.
II.
[¶15] Craig argues that his aggregate sentence of thirty years is inappropriate in light of the nature of the offenses and his character. Ind. Appellate Rule 7(B) provides that we "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Ind. Code § 35-50-2-4.5 provides that a person who commits a level 2 felony shall be imprisoned for a fixed term of between ten and thirty years, with the advisory sentence being seventeen and one-half years. Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall be imprisoned for a fixed term of between six months and two and one-half years, with the advisory sentence being one year. Ind. Code § 35-50-33 provides that a person who commits a class B misdemeanor shall be imprisoned for a fixed term of not more than one hundred eighty days. At the time of the offense, Ind. Code § 35-50-2-8 provided that the court shall sentence a person found to be an habitual offender to an additional fixed term that is between six years and twenty years for a person convicted of a level 2 felony and the additional term imposed is nonsuspendible.
Subsequently amended by Pub. L. No. 37-2023, § 2 (eff. July 1, 2023).
[¶16] Our review of the nature of the offense reveals that Craig operated his vehicle while being an habitual traffic violator. After initially telling troopers that there was nothing in the car, he informed them where methamphetamine was located after Trooper Repass's dog alerted to the presence of contraband. Troopers discovered a bag of marijuana and two packages of methamphetamine that together weighed approximately one ounce. Craig told Trooper Reed that he was "selling." Transcript Volume II at 170.
[¶17] Our review of the character of the offender reveals that Craig, who was born in 1973, was adjudicated a delinquent for receiving stolen property, burglary, theft, and minor consumption. As an adult, Craig was convicted of burglary as a class C felony in 1992; driving while suspended as a class A misdemeanor in 1996; possession of marijuana/hash oil/hashish as a class A misdemeanor in 1997; driving while suspended as a class A misdemeanor in 1999; "Previous Conviction of Operating While Intoxicated" as a class A misdemeanor in 2003; public intoxication as a class B misdemeanor in 2004; battery resulting in bodily injury as a class A misdemeanor in 2006; operating a vehicle with an alcohol concentration equivalent to at least .08 but less than .15 as a class D felony in 2007; operating a vehicle while intoxicated as a class D felony in 2011; domestic battery as a class A misdemeanor; operating a vehicle as an habitual traffic violator as a level 6 felony in 2016; operating a motor vehicle after forfeiture of license for life as a level 5 felony, operating a vehicle while intoxicated endangering a person as a class A misdemeanor, and operating a vehicle as an habitual traffic violator as a level 6 felony in 2017; possession of methamphetamine as a level 6 felony and violation of driving conditions as a class C misdemeanor in 2022; and domestic battery as a level 6 felony in 2023. Appellant's Appendix Volume II at 138. The presentence investigation report indicates that Craig has been convicted of ten misdemeanor offenses and eight felony offenses, had been placed on probation nine times as an adult, and had forty-four total suspensions on his Official Indiana Driver Record. It indicates that he had pending charges in three counties. It also indicates that Craig's overall risk assessment score using the Indiana risk assessment tool places him in the high risk to reoffend category. After due consideration and in light of his lengthy criminal history, we conclude that Craig has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offenses and his character.
The presentence investigation report does not specify a disposition date or sentencing date but lists the "File Date" as April 23, 2014. Appellant's Appendix Volume II at 139.
[¶18] For the foregoing reasons, we affirm Craig's conviction for dealing in methamphetamine as a level 2 felony and his sentence.
[¶19] Affirmed.
Riley, J., and Foley, J., concur.