Enamorado v. State
| Decision Date | 02 March 1989 |
| Docket Number | No. 49S00-8607-CR-00694,49S00-8607-CR-00694 |
| Citation | 534 N.E.2d 740 |
| Parties | Maximo ENAMORADO and Jose Sada, Appellants (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Belle T. Choate, Choate Visher & Haith, L. Craig Turner, Boberschmidt, Miller, O'Bryan & Turner, P.A., Indianapolis, for appellants.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.
The defendants Maximo Enamorado and Jose Sada were convicted of dealing in cocaine and conspiracy to commit dealing in cocaine, both class A felonies, and lesser felonies for violations of the Indiana Controlled Substances Act. The court reduced the presumptive sentence of thirty years for each of Enamorado's class A felonies to twenty-four years and ordered that they be served concurrently. Sada received concurrent thirty year sentences.
Each defendant has brought a direct appeal which we shall address in this opinion, regrouping defendants' challenges as follows:
3. jury inspection of State's exhibits after the State arguably rested without rebuttal, and
4. sentencing.
The defendants argue that the evidence fails to establish the necessary intent to deal cocaine in that they were only "mules," low-level couriers who transport drugs for a dealer. Sada contends that he did not even possess the cocaine. Challenging their conspiracy convictions, the defendants argue that the evidence fails to establish the occurrence of the agreement on the date alleged in the information. Sada further claims that he did not conspire to deliver the cocaine, but rather only accompanied Enamorado.
In addressing the issue of sufficiency of evidence, we will affirm the conviction if considering only the probative evidence and reasonable inferences supporting the verdict, without weighing or assessing witness credibility, a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Case v. State (1984), Ind., 458 N.E.2d 223; Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
On October 1, 1985, an Indianapolis police detective, pursuant to a warrant, searched the motel room of John Wheelington. Upon discovering assorted narcotics and paraphernalia, the detective arrested Wheelington. While in police custody, Wheelington described a pending drug transaction between himself and two Hispanic men who were returning from Florida with high-grade cocaine. In exchange for some cocaine for his personal use, Wheelington was to "cut" the cocaine and assist the two men in its sale. Wheelington stated that the delivery was to occur within a day or two. "Mexico Joe" and "Max" were to call Wheelington on his pager, whereupon he was to call them and give them his number so they could call again and arrange the meeting.
On October 2, at about 6:00 a.m. the detective and other officers took Wheelington to the motel room and waited for the phone call from the two men. At 9:00 p.m., "Mexico Joe" called Wheelington's pager. Returning the call, Wheelington gave "Mexico Joe" the motel room and phone numbers. "Mexico Joe" responded that he and "Max" would reach the room in about ten minutes. About ten or fifteen minutes later, the defendants, both Hispanic, and a woman arrived by car at the motel. When the three came to Wheelington's room, knocked and entered, they were placed under arrest while a police officer searched a grocery sack Enamorado had carried in. The police officer unwrapped a smaller brown bag within the sack and found a clear plastic bag with a white powder in it. A lab analysis revealed the white powder was cocaine, 272 grams at 92.9% purity. Witnesses for the State testified that the amount and purity of the cocaine indicated that it was to be "cut" or "stepped on" to form smaller, less potent units for sale. The arresting officers also found in each defendant's jacket a small bag of cocaine.
Jose "Mexico Joe" Sada claims that he did not possess the cocaine because Enamorado brought it into the motel room. For the purpose of criminal liability, a person who has the intent and capability of maintaining control over contraband constructively possesses it. Fassoth v. State (1988), Ind., 525 N.E.2d 318, 323. Circumstantial evidence of the care, management and control over the contraband may prove constructive possession. Jeffers v. State (1985), Ind., 485 N.E.2d 81. However, mere presence or association with another who actually possesses contraband is insufficient to show constructive possession. Lewis v. State (1985), Ind.App., 482 N.E.2d 487, 491. The jury could reasonably infer Sada's management or control over the cocaine from the agreement between Wheelington and the defendants, Sada's trip with Enamorado, his knowledge of the cocaine, and his call to Wheelington's pager to arrange the delivery. Furthermore, as an accomplice, Sada is criminally responsible for his confederate's acts done in the probable and natural consequence of their plan. Moredock v. State (1987), Ind., 514 N.E.2d 1247.
Ind.Code Sec. 35-48-4-1, in its relevant portion, states: (emphasis added). Intent to deliver is a lower threshold than intent to distribute to individual drug users. The defendants' testimony establishes that they knew they were transporting cocaine for delivery to Wheelington, regardless of what the ultimate selling arrangement was to have been.
In any event, the jury could infer the necessary intent from the large amount of cocaine the defendants had in their possession. Possession of a large amount of narcotics is circumstantial evidence of intent to deliver. The probative value of the quantity in proving intent increases as the quantity itself becomes greater. Montego v. State (1987), Ind., 517 N.E.2d 74, 76. In Montego, 83 grams of cocaine was sufficient proof of intent to deliver. Id. Based on the circumstantial evidence of possessing 272 grams of cocaine, the jury could infer the defendants' intent to deliver; the evidence is sufficient to support the dealing convictions.
Regarding their conspiracy convictions, the defendants assert that the evidence is insufficient to establish the occurrence of the agreement on the date alleged in the information. The information places the date of the agreement on or about October 2. Because the timing of the agreement is not an essential element of the offense, a conspiracy conviction may be supported by an information which does not specify the precise date of the agreement. Brown v. State (1980), Ind.App., 403 N.E.2d 901. Enamorado's own testimony establishes the existence of an agreement with Wheelington. From Wheelington's testimony and Sada's acts in pursuance of the cocaine delivery, the jury could infer Sada's part in the agreement. See Isom v. State (1986), Ind., 501 N.E.2d 1074, 1075; Haynes v. State (1985), Ind., 479 N.E.2d 572, 574. The evidence is sufficient to support the conspiracy convictions.
The defendants argue that the trial court erred in denying their motion to quash the affidavit of probable cause and their motion to suppress evidence. They claim that the police failed to obtain arrest and search warrants when they had an opportunity to do so.
The police officers waited in and near Wheelington's motel room from approximately 6:00 a.m. to 9:00 p.m. on a day when the courts were open. The detective in charge did not seek an arrest or search warrant because of the uncertainty of what day and hour the two men would arrive. When the two arrived later that night, the police arrested them while another officer searched the sack that Enamorado had carried in.
A police officer may make a warrantless arrest if he has reasonable and probable cause to believe the arrestee has committed a felony. Carter v. State (1986), Ind., 490 N.E.2d 288; Fisher v. State (1984), Ind., 468 N.E.2d 1365; Fyock v. State (1982), Ind., 436 N.E.2d 1089. Probable cause for arrest exists where at the time of arrest the officer has knowledge of facts and circumstances which warrant a man of reasonable caution to believe a suspect has committed the criminal act in question. Jones v. State (1984), Ind.App., 467 N.E.2d 1236, 1239. Where police officers rely on a third source's tip, probable cause may be established by verification of extrinsic evidence 1 which demonstrates the reliability of the tip. Cato v. State (1979), 272 Ind. 102, 396 N.E.2d 119.
Wheelington's information was corroborated by "Mexico Joe's" call to his pager and the arrival at the hotel room of two Hispanic men, both of which were witnessed by the police officers. Indianapolis police officer Thomas Breen, a narcotics detective for approximately ten years, testified regarding the common practice of drug dealers to use voice beepers and to move around from hotel to hotel to avoid police detection, the same modus operandi as presented by the facts of this case. Additionally, Wheelington had provided information on other crimes which had led to numerous drug-related arrests. 2 The totality of the circumstances involving Wheelington's prior activities as an informant, the character of the predicted events as similar in modus operandi to typical criminal drug transactions, and the occurrence of events as predicted by the informant, combine to constitute adequate probable cause obviating the need to obtain arrest warrants in the circumstances presented here.
The defendants also attack the validity of the warrantless search of the grocery sack which Enamorado carried into the motel room. They correctly state that the State has the burden of showing that the search...
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