Opinion
24A-CR-228
08-26-2024
Donald L. Nevil, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jeffrey S. Arnold Jeffrey S. Arnold, Attorney at Law PC Columbia City, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Steven J. Hosler Deputy Attorney General Thomas A. Tuck Certified Legal Intern 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Circuit Court The Honorable Matthew J. Rentschler, Judge Trial Court Cause No. 92C01-2003-F4-265
ATTORNEY FOR APPELLANT Jeffrey S. Arnold Jeffrey S. Arnold, Attorney at Law PC Columbia City, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Steven J. Hosler Deputy Attorney General Thomas A. Tuck Certified Legal Intern Indianapolis, Indiana
MEMORANDUM DECISION
KENWORTHY, JUDGE.
Case Summary
[¶ 1] Donald L. Nevil twice sold methamphetamine to a confidential informant ("CI") and was convicted of two counts of Level 4 felony dealing in methamphetamine as a result. Nevil now appeals, claiming the State presented insufficient evidence to support his convictions. We affirm.
Ind. Code §§ 35-48-4-1.1(a)(1), (c)(1) (2017).
Facts and Procedural History
[¶ 2] On October 30, 2019, a CI told Detective Robert Stephenson of the Columbia City Police Department she could buy "a little bit more than a gram" of methamphetamine from Nevil for $140. Tr. Vol. 2 at 169. Detective Stephenson organized a controlled buy for that evening. Before the controlled buy, Detective Stephenson and his colleague, Detective David Calhoun, met with the CI. Detective Stephenson patted down the CI, made her "pull out" her bra and "shake" it to confirm nothing was hidden within, and checked her socks and in between her toes. Id. at 171. Detective Stephenson searched "as thoroughly" as he would before taking someone to jail. Id. Meanwhile, Detective Calhoun searched the CI's van by opening its compartments and any containers within. He also looked under the van's rugs and into its vents. After searching the vehicle "as if [he] were searching a suspect vehicle on the side of the road," Detective Calhoun was "very confident" there was no contraband in the van. Id. at 228. Detective Stephenson then gave the CI money to purchase the methamphetamine and activated audio and video recording equipment to capture the deal.
[¶ 3] Detectives Stephenson and Calhoun followed the CI to a residence in Whitley County, where she pulled her van up next to Nevil's vehicle. Detective Calhoun saw Nevil with the CI and both detectives recognized Nevil's voice from the live audio feed based on past encounters with him. The interaction between the CI and Nevil lasted "less than twenty seconds," after which the CI left the scene and drove directly to the post-buy meeting location. Id. at 180. There, Detective Stephenson searched the CI's person while Detective Calhoun searched her van. The CI handed Detective Stephenson a small bag containing a "white crystal substance" she received from Nevil. Id. at 231. Subsequent testing confirmed the bag contained 1.83 grams of methamphetamine.
[¶ 4] Using the same CI, police organized another controlled buy involving Nevil on November 17, 2019. Like a couple weeks prior, Detectives Stephenson and Calhoun met the CI before the buy and searched her person and van. That is, Detective Stephenson patted down the CI, making sure nothing was in her pockets, waistband, collars, sleeves, pockets, shoes, or bra. And Detective Calhoun looked through the van's compartments, containers, and the clothes within. Finding no contraband, the detectives gave the CI money for the purchase, set up the recording equipment, and followed the CI to the same location as the October deal.
[¶ 5] There, the CI met with Nevil near a barn on the property. Although police could not see the CI and Nevil make the exchange, they listened through a live audio recording. Again, Detectives Stephenson and Calhoun recognized Nevil's voice. After the buy, the CI traveled directly to the arranged meeting place where the detectives once again searched her person and van. The CI gave police a small bag later confirmed to contain 1.73 grams of methamphetamine.
[¶ 6] The State charged Nevil with, among other things, two counts of Level 4 felony dealing in methamphetamine. A jury found him guilty as charged.
The State also charged Nevil with two counts of Level 6 felony possession of methamphetamine. The jury found Nevil guilty on these charges, but the trial court vacated these convictions at Nevil's sentencing.
Sufficient Evidence Supports Nevil's Convictions
[¶ 7] Nevil argues the State failed to present sufficient evidence to support his convictions. A sufficiency-of-the-evidence claim warrants a "deferential standard of review in which we 'neither reweigh the evidence nor judge witness credibility[.]'" Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is "not necessary that the evidence 'overcome every reasonable hypothesis of innocence.'" Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).
[¶ 8] To convict Nevil as charged, the State had to prove beyond a reasonable doubt he knowingly or intentionally delivered to the CI at least one gram but less than five grams of methamphetamine, pure or adulterated. See I.C. §§ 35-48-4-1.1(a)(1)(A), (c)(1). Because delivery is the "actual or constructive transfer from one (1) person to another of a controlled substance," the State had to prove Nevil possessed the methamphetamine before the buy and transferred it to the CI. I.C. § 35-48-1-11(1). On appeal, Nevil maintains his "belie[f] that the methamphetamine in question was in the possession of the CI," and was not delivered to her by Nevil. Appellant's Br. at 8.
[¶ 9] When done correctly, a controlled buy "will permit an inference the defendant had prior possession of a controlled substance." State v. Vance, 119 N.E.3d 626, 630 (Ind.Ct.App. 2019) (quoting Watson v. State, 839 N.E.2d 1291, 1293 (Ind.Ct.App. 2005)), trans. denied. A properly conducted controlled buy consists of multiple steps: searching the person who is to act as buyer, removing all personal effects, giving the buyer money with which to make the purchase, sending the buyer to make the purchase, and searching the buyer for contraband upon her return. Haynes v. State, 431 N.E.2d 83, 86 (1982). "The key to the controlled buy is that the police are always in control of the situation." Vance, 119 N.E.3d at 631. That said, police do not need to see the illegal transaction take place; rather, that is ascertained by the fact the CI goes into the transaction "empty-handed and comes back with the controlled substance." Haynes, 431 N.E.2d at 86.
[¶ 10] Here, Detectives Stephenson and Calhoun testified about each step they took to effectuate the controlled buys on October 30 and November 17. For example, Detective Stephenson searched the CI's person-with at least the thoroughness of a "pat-down" search-before and after each buy. And Detective Calhoun did similarly regarding the CI's van. Moreover, Detective Calhoun saw Nevil during the first controlled buy and both detectives recognized Nevil's voice from the live audio feed during both transactions. Plus, the CI herself testified regarding each buy she played a part in.
[¶11] To the extent Nevil points to Watson to support his claim, his reliance is misplaced. In Watson, the CI was neither searched prior to the controlled buy nor testified at trial. Watson, 839 N.E.2d at 1293. But in this case, the CI testified about receiving methamphetamine from Nevil during both controlled buys. So even if we were to consider the pre-buy searches of the CI in this case inadequate-which we do not-the concerns in Watson about the CI not testifying at trial are simply not present here. At bottom, Nevil asks us to reweigh evidence and judge witness credibility, which we cannot do. See Hancz-Barron, 235 N.E.3d at 1244. The controls over the buy were adequate and the evidence was sufficient to sustain Nevil's convictions for selling methamphetamine.
[¶ 12] In addition to his sufficiency claim, Nevil also requests we require "either a physical search (cavity or strip search) or a much, much less intrusive search using a canine" of a CI before the controlled buy takes place to "ensure the integrity of the [CI] system." Appellant's Br. at 12. From his perspective, failure to do so should render a CI's testimony incredibly dubious. But Nevil's proposed rule runs headlong into binding precedent of our Supreme Court saying this level of search is not necessary. See Haynes, 431 N.E.2d at 86 (concluding a "pat-down" search of the buyer prior to a controlled buy was sufficient). Moreover, prior panels of this Court have consistently rejected Nevil's proposed rule. See, e.g., Vaughn v. State, 13 N.E.3d 873, 888 (Ind.Ct.App. 2014) ("A pat-down search of the CI or buyer is sufficient, and a strip search or complete cavity search is not necessary."), trans. denied; Wright v. State, 836 N.E.2d 283, 289 (Ind.Ct.App. 2005) (same), trans. denied; Hudson v. State, 462 N.E.2d 1077, 1083 (Ind.Ct.App. 1984) (same). We therefore decline Nevil's invitation to adopt such a rule.
Conclusion
[¶13] Sufficient evidence supports Nevil's convictions.
[¶14] Affirmed.
Riley, J., and Felix, J., concur.