Barry v. State
| Decision Date | 26 January 2012 |
| Docket Number | No. 49A02-1105-CR-565,49A02-1105-CR-565 |
| Parties | MOUSTAPHA BARRY, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
SWARAY E. CONTEH
GREGORY F. ZOELLER
Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven Eichholtz, Judge
The Honorable Peggy Ryan-Hart, Commissioner
MEMORANDUM DECISION - NOT FOR PUBLICATIONFRIEDLANDER, Judge Moustapha Barry appeals from his conviction and sentence for Dealing in Cocaine1 as a class B felony. Barry presents the following restated issues for our review:
We affirm.
On October 6, 2009, a confidential informant purchased cocaine from Barry and Michael Hampton. The informant gave the cocaine to Indianapolis Police Detective Bradley Thomas. Laboratory testing confirmed that the substance was cocaine. On November 12, 2009, the confidential informant purchased cocaine from Hampton while Barry was present.
Police officers obtained a search warrant for the house where the transactions took place and served the warrant on the evening of November 12, 2009. Police recovered cocaine, marijuana, and a gun from inside the home. Barry, Hampton, and Brandon Felix were also inside the house. Barry and Hampton were in possession of identification cards confirming their identities. Detective Jason Hart advised Barry of his rights and Barry indicated that he understood. Barry then stated that he was at the house all the time. He admitted that narcotics were being sold at the house, but that the narcotics belonged to Hampton.
The State charged Barry with one count of conspiracy to commit dealing in cocaine, two counts of dealing in cocaine, three counts of possession of cocaine, one count of possession of cocaine and a firearm, and one count of possession of marijuana. Prior to trial, the State dismissed one count of dealing in cocaine and one count of possession of cocaine. After a jury trial, Barry was found guilty of one count of conspiracy to commit dealing in cocaine (Count I), one count of dealing in cocaine (Count II), and one count of possession of cocaine (Count III). At Barry's sentencing hearing, the trial court merged the convictions for Count I and Count III with Count II, Barry's conviction for dealing in cocaine. The trial court then sentenced Barry to thirteen years executed on Count II. Barry now appeals.
1.
Barry challenges the sufficiency of the evidence supporting his conviction. When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Henley v. State, 881 N.E.2d 639 (Ind. 2008). "We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence." Id. at 652. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Henley v. State, 881 N.E.2d 639.
Barry contends that the evidence was insufficient to convict him of Count I, Count II, and Count III. The State correctly notes, however, that at Barry's sentencing hearing, the trial court merged the convictions for Count I and Count III with the conviction for Count II and entered judgment of conviction only as to Count II. Because judgment of conviction wasnot entered on Count I and Count III, we need not address the sufficiency of the evidence to support those counts.
In order to convict Barry of Count II, the State was required to prove that Barry knowingly delivered cocaine to the informant. I.C. § 35-48-4-1. The evidence adduced at trial showed that Barry dealt cocaine to the confidential informant on October 6, 2009. The uncorroborated testimony of a single witness is sufficient to support a criminal conviction. Thompson v. State, 612 N.E.2d 1094 (Ind. Ct. App. 1993). Barry contends, however, that alleged discrepancies in the confidential informant's pretrial description of him and Barry's actual physical attributes make the confidential informant's testimony incredibly dubious. For reasons we explain below, the incredible dubiosity rule is inapplicable here.
"Within the narrow limits of the 'incredible dubiosity' rule, a court may impinge upon a jury's function to judge the credibility of a witness." Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). "For testimony to be disregarded based on a finding of 'incredible dubiosity,' it must be inherently contradictory, wholly equivocal, or the result of coercion." Gray v. State, 871 N.E.2d 408, 416 (Ind. Ct. Ap. 2007). There must be a complete lack of circumstantial evidence of the defendant's guilt. Gray v. State, 871 N.E.2d 408. Furthermore, the rule is rarely applicable. Id.
As stated above, the confidential informant purchased cocaine from Barry on October 6, 2009. The informant gave the cocaine to Indianapolis Police Detective Bradley Thomas after the purchase was completed. Laboratory testing confirmed that the substance was cocaine. After being advised of his rights when officers were executing a search warrant at the house where the confidential informant purchased cocaine from Barry, Barry stated thathe was at the house all the time. He admitted that narcotics were being sold at the house, but stated that the narcotics belonged to Hampton. The confidential informant identified Barry and Hampton from photo arrays prior to trial. At trial, Barry had the opportunity to question the confidential informant, and did so vigorously on cross-examination, concerning any alleged discrepancies in the informant's pretrial description of Barry. Both the State and defense counsel had Barry stand up at trial so that the jury could view his height and physical appearance and compare that to the description given by the confidential informant. Thus, the issue was what weight to assign to the informant's testimony. Because there was no lack of circumstantial or direct evidence, and the confidential informant unequivocally maintained that he purchased cocaine from Barry, the incredibly dubiosity rule is inapplicable. The evidence is sufficient to support Barry's conviction for dealing in cocaine.
2.
Barry claims that the variance between the State's charging information and its proof at trial constituted fundamental error. A variance exists when the proof at trial does not conform to the pleadings. Reinhardt v. State, 881 N.E.2d 15 (Ind. Ct. App. 2008). A failure to prove a material allegation descriptive of the offense is fatal. Mitchem v. State, 685 N.E.2d 671 (Ind. 1997). "[A] variance will require reversal only . . . if it misleads the defendant in the preparation of his defense or subjects him to the likelihood of another prosecution for the same offense." Robinson v. State, 634 N.E.2d 1367, 1372 (Ind. Ct. App. 1994). Stated another way,...
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