Long v. State
| Decision Date | 31 December 2014 |
| Docket Number | No. 49A02–1403–CR–200.,49A02–1403–CR–200. |
| Citation | 26 N.E.3d 686 (Table) |
| Parties | Marlan LONG, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
William A. Ramsey, Rachel K. Steinhofer, Murphy Ice LLP, Fort Wayne, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, for Attorneys for Appellee.
BROWN
, Judge.
Marian Long appeals his conviction and sentence for conspiracy to deal cocaine as a class A felony. Long raises four issues, which we revise and restate as follows:
We affirm.
In August 2011, law enforcement officers from the Metro Drug Task Force of the Indianapolis Metropolitan Police Department (“IMPD”) and the Drug Enforcement Agency (“DEA”) arranged for a confidential informant (the “C.I.”) to purchase a kilogram, or brick, of cocaine from Vernon Woodruff, who had been the target of law enforcement investigation. Law enforcement had previously used the C.I. to purchase several smaller amounts of cocaine from Woodruff. The “buy bust” was to arrest the source of the supply along with Woodruff. Transcript at 32. Law enforcement officers desired to arrange a buy bust in part because they did not wish to purchase $30,000 worth of cocaine.
On August 23, 2011, a DEA agent installed a video recording device in the C.I.'s vehicle. Law enforcement, consisting of approximately fifteen officers, established surveillance around Woodruff's residence, and the C.I. was searched for contraband and money and was fitted with a recording device.
The C.I. contacted Woodruff and stated he wanted a kilogram of cocaine, and Woodruff called Bryant Williams to ask Williams if he could obtain the cocaine. Williams told Woodruff that his cousin, Long, could supply the kilogram. Woodruff set up a meeting with the C.I. and Williams. Woodruff would receive some money from the seller and some cocaine from the C.I. for his role in the transaction. Woodruff's role was to arrange for the buyer, the C.I., to be at the meeting, and Williams's role was to arrange for the seller to be at the meeting.
The C.I. arrived at Woodruff's house and parked at the rear of the house, and Woodruff exited his house and spoke with the C.I. for a few minutes. Woodruff initially asked the C.I. to go inside the house, but the C.I. stated he wished to stay outside. The C.I. moved his vehicle to the front of Woodruff's house. Woodruff exited and went back inside his house a couple of times. Woodruff and Williams waited inside for the cocaine to be delivered.
Eventually, Long and Che Brownlow arrived at Woodruff's house driving a Camaro, and Williams went outside and let them in the house. Woodruff had never met Long or Brownlow. Brownlow was carrying a blue or black bag which contained the cocaine, and he placed the bag on the kitchen table. Woodruff said that the buyer would want to see and sample it before any money was transferred.
Long opened the bag, displaying the kilogram of cocaine wrapped in cellophane. Woodruff handed a utility knife to Long, and Long cut the wrapper off of the cocaine. Woodruff, Williams, Long, and Brownlow stood around the kitchen table. Williams asked Long the price of the cocaine, Long decided the price, and Williams planned to add an amount to the price as a fee for Williams and Woodruff.
Williams and Woodruff exited the house, with Williams carrying the bag of cocaine, and entered the C.I.'s vehicle. Williams opened the bag and showed it to the C.I., and the C.I. said that it was good and then made a phone call. After receiving the takedown signal from the detective, law enforcement officers moved in around the C.I .'s vehicle and entered Woodruff's house, arresting Long, Brownlow, Woodruff, and Williams and retrieving the kilogram of cocaine. Laboratory analysis of the substance was performed within twenty-four hours, and the substance was confirmed to be a kilogram of cocaine.
On August 26, 2011, the State charged Long with Count I, conspiracy to deal in cocaine as a class A felony; Count II, dealing in cocaine as a class A felony; Count III, possession of cocaine as a class C felony; and Count IV, operating a vehicle while suspended as an habitual traffic violator as a class D felony.1 A jury trial was conducted in January 2013, but the jury did not reach a verdict and the court declared a mistrial. On October 3, 2013, Long filed a Request for 404(b) Notice requesting that the prosecution provide reasonable notice in advance of trial of any evidence of other crimes, wrongs or acts that it intended to introduce at trial, and the court granted the request. A second jury trial was held on January 15 and 16, 2014. At the beginning of the trial, Long objected to any admission of evidence pertaining to the cocaine because the evidence itself had been physically destroyed, and the court overruled Long's objection. IMPD Officer Dale Young testified, in response to questioning by Long's counsel, that he did not find cocaine on Long as a part of the investigation in this case and that he knew Long from previous investigations. Long moved for a mistrial based on Officer Young's statements, and the court denied Long's motion. Prior to final arguments, the State moved to dismiss the charge under Count IV, and the court granted the motion. The jury found Long guilty on Count I, conspiracy to commit dealing in cocaine as a class A felony. The jury was deadlocked as to Counts II and III, and the court declared a mistrial as to those counts. Following a sentencing hearing, the court sentenced Long to thirty years in the Department of Correction.
The first issue is whether the evidence is sufficient to sustain Long's conviction for conspiracy to deal in cocaine as a class A felony. 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. 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. Id.
Long asserts that the State failed to introduce evidence to establish that he was part of an agreement with Woodruff, Williams, and Brownlow to sell cocaine to the C.I. Long argues that he was charged with conspiring with Woodruff, Williams, and Brownlow and that therefore it would be insufficient to show that Long conspired with only Williams or with only Williams and Brownlow. Long argues that Woodruff was the only person who offered testimony as to what transpired in the house and that Woodruff did not testify whether there was an indication that Long was to receive any money for the sale of the cocaine. Long asserts that, “[a]lthough Woodruff testified Williams had an agreement with Woodruff [ ], this evidence does not show that Long deliberately entered into any agreement with Woodruff, much less an agreement with Woodruff to sell cocaine to the CI.” Appellant's Brief at 12–13. Long further argues that Woodruff's testimony may show Long had a pre-existing relationship with Brownlow or Williams, but that relationship or association standing alone is insufficient to establish a conspiracy and that Long's presence at Woodruff's house is similarly insufficient to establish he agreed with the other men to sell cocaine. Long also argues that the evidence that he dictated the price of the cocaine does not establish that he agreed with anyone to sell cocaine to the C.I. and that “the evidence suggests Long may have known of a conspiracy; the evidence does not however, establish that Long was part of the conspiracy.” Id. at 14.
The State maintains that Long, Woodruff, Williams, and Brownlow were intent on selling a kilogram of cocaine to the buyer arranged by Woodruff and that they all worked together to accomplish this goal. The State argues that Long was not previously known by Woodruff, that Long would not have known Woodruff except through Williams, that Long would not have known where to bring the cocaine except through Williams's directions, and that Brownlow would not have known anything about Woodruff except through Long.
The offense of conspiracy is governed by Ind.Code § 35–41–5–2
, which provided in part at the time of the offense that “[a] person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony,” that “[a] conspiracy to commit a felony is a felony of the same class as the underlying felony,” and “[t]he state must allege and prove that either the person or the person with whom he agreed performed an overt act in furtherance of the agreement.” The State is not required to prove the existence of a formal express agreement to establish a defendant agreed to deal in cocaine. Simmons v. State, 828 N.E.2d 449, 454 (Ind.Ct.App.2005). The requisite agreement can be inferred from circumstantial evidence, including overt acts of the parties in furtherance of the criminal act. Wallace v. State, 722 N.E.2d 910, 913 (Ind.Ct.App.2000). Here, the underlying felony is dealing in cocaine as a class A felony. The offense of dealing in cocaine is governed by Ind.Code § 35–48–4–1, which at the time of the offense provided in part that “[a] person who: [1] knowingly or intentionally ... [2] delivers ... [3] cocaine ... commits dealing in cocaine ... a Class B felony ...,” and that “[t]he offense is a Class A felony if ... the...
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