Cotto v. State, 031319 INCA, 74A04-1711-CR-2608

Docket Nº:74A04-1711-CR-2608
Opinion Judge:PYLE, JUDGE.
Party Name:Sixto Cotto, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney:Attorney for Appellant Steven E. Ripstra Ripstra Law Office Jasper, Indiana Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
Judge Panel:Vaidik, C.J., and Barnes, Sr.J., concur.
Case Date:March 13, 2019
Court:Court of Appeals of Indiana

Sixto Cotto, Appellant-Defendant,


State of Indiana, Appellee-Plaintiff.

No. 74A04-1711-CR-2608

Court of Appeals of Indiana

March 13, 2019

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.

Appeal from the Spencer Circuit Court Cause No. 74C01-1702-F5-54 The Honorable Jonathan A. Dartt, Judge

Attorney for Appellant Steven E. Ripstra Ripstra Law Office Jasper, Indiana

Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana



Statement of the Case

[¶1] Sixto Cotto ("Cotto") appeals, following a jury trial, his two convictions for Level 5 felony dealing in methamphetamine.1 Cotto argues that: (1) the trial court abused its discretion when it admitted into evidence his cell phone and three text messages found on it; (2) his two dealing in methamphetamine convictions violate the continuous crime doctrine; and (3) there was insufficient evidence to support his two convictions. Concluding that any alleged error in the admission of the challenged evidence constituted harmless error, that his convictions do not violate the continuous crime doctrine, and that the evidence was sufficient, we affirm his two convictions.

[¶2] We affirm.


1. Whether the trial court abused its discretion in its admission of evidence.

2. Whether Cotto's two dealing in methamphetamine convictions violate the continuous crime doctrine.

3. Whether sufficient evidence supports Cotto's two convictions.


[¶3] Cotto and Nicholas Polen ("Polen") worked at Kimball International ("the Kimball plant") in Santa Claus, Indiana. In December 2016, Polen, who was on probation from a manufacturing methamphetamine conviction, had a positive drug screen for methamphetamine. Polen told his probation officer that he had gotten the methamphetamine from Cotto, and he offered to work with the police as a confidential informant. Thereafter, Spencer County Sheriff Deputy Kelli Reinke ("Deputy Reinke") spoke with Polen about making a controlled buy of methamphetamine from Cotto.

[¶4] In February 2017, Polen and Cotto made arrangements to meet at Stones Motel in Dale, Indiana ("the motel") where Polen could purchase an "eight-ball"2 of methamphetamine from Cotto for $250.00. (Tr. Vol. 3 at 124). They also planned for Cotto to "front" another eight-ball of methamphetamine. (Tr. Vol. 3 at 124).

[¶5] On February 16, 2017, Deputy Reinke met with Polen at a barn near the motel. Deputy Reinke searched Polen's vehicle and person to ensure that he had no controlled substances. Deputy Reinke also installed a video recording device and an audio recording device in Polen's truck. Polen and Deputy Reinke then drove toward the motel. Polen parked at the motel, while Deputy Reinke parked in a nearby parking lot where she observed the scene at the motel with binoculars and was able to see and recognize Cotto. At the motel, Cotto walked up to Polen's truck and handed Polen a cigarette carton that contained a baggie with one eight-ball of methamphetamine. Polen left and drove to the meeting point with Deputy Reinke, who then searched Polen's truck and person. Polen gave Deputy Reinke the cigarette carton containing the baggie of methamphetamine, which weighed 3.26 grams.

[¶6] Thereafter, Deputy Reinke and Polen made plans for a second controlled buy, and Polen arranged to purchase a second eight-ball of methamphetamine from Cotto on February 23, 2017. However, the transaction did not occur because of a supply issue.

[¶7] On February 24, 2017, Cotto and Polen were working the late shift at the Kimball factory. Cotto walked up to Polen and handed him an eight-ball of methamphetamine that was wrapped in plastic and a paper towel. Cotto did not ask Polen for any payment. Around 1:00 a.m., Polen texted Deputy Reinke to tell her that Cotto had given him some methamphetamine. Later that morning, Polen met Deputy Reinke at the probation office, and he gave her the methamphetamine that he had received from Cotto. The methamphetamine weighed 3.19 grams.

[¶8] On February 27, 2017, Deputy Reinke obtained an arrest warrant for Cotto. That same day, Deputy Reinke and other deputies went to a country road leading to the entrance of the Kimball factory to wait for Cotto as he arrived for work. When they stopped Cotto, he parked his car in the roadway. The "registration plates" on Cotto's car were registered to a different vehicle. (App. Vol. 3 at 71). The deputies impounded Cotto's vehicle "due to it being in the roadway" and because of the improper plate. (Tr. Vol. 3 at 71). Deputy Reinke served the arrest warrant, patted down Cotto, and found $766.00 in Cotto's pocket. The deputies placed Cotto in a police car and ran a canine officer around his vehicle, and the canine alerted on the driver's side door. The deputies searched Cotto's vehicle and seized a cell phone, a trac phone, an iPod, two prescription bottles, four capsules, a backpack with a laptop inside, and two composition notebooks containing names and phone numbers. Deputy Reinke later obtained a search warrant for a Cotto's cell phone, and the police obtained some text messages from his phone.

[¶9] The State ultimately charged Cotto with Count 1, Level 5 felony dealing in methamphetamine (for the February 16, 2017 delivery of methamphetamine); Count 2, Level 6 felony possession of methamphetamine (based on the February 16 incident); and Count 3, Level 5 felony dealing in methamphetamine (for the February 24, 2017 delivery of methamphetamine).3The State also charged Cotto, in a separate cause, 74C01-1703-F6-58 ("the F6-58 cause"), with a Level 6 felony offense stemming from the items found during the search of his vehicle when the police executed the arrest warrant on February 27. 4

[¶10] On June 19-21, 2017, the trial court held a three-day jury...

To continue reading