Rico v. State Of Ind.
| Decision Date | 24 March 2011 |
| Docket Number | No. 20A04-1009-CR-545,20A04-1009-CR-545 |
| Parties | RICARDO RICO, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
ATTORNEY FOR APPELLANT:
RITA PARSONS Berry and Parsons, P.C. Goshen, Indiana.
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER Attorney General of Indiana.
JAMES E. PORTER Deputy Attorney General Indianapolis, Indiana.
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 ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
Ricardo Rico appeals his conviction of two counts of Delivery of Methamphetamine, Three Grams or More, 1 both as class A felonies, as well as the sentences imposed thereon. Rico presents the following restated issues for review:
The facts favorable to the convictions are that on October 24, 2006, a confidential informant (C.I.) for the Elkhart Police Department met with officers of the Interdiction and Covert Enforcement Unit for Elkhart County (ICE) to plan a controlled buy of methamphetamines. ICE investigates narcotics activities in the county and uses cooperating, confidential sources to engage in controlled buys. ICE's standard protocol for conducting controlled buys begins with a meeting with the C.I. in a secret location where the C.I. and the C.I.'s car are searched. After ensuring that the C.I. has no drugs or money, ICE gives the C.I. money that has been photocopied in order to make the purchase. ICE also gives the C.I. a transmitting and recording device by which ICE officers may monitor the transaction. The C.I. then travels to the pre-arranged location for the buy, all the while under the visual and audio surveillance of ICE officers. After the buy is complete, ICE officers follow the C.I. to a predetermined location, where the C.I. and his vehicle are again searched for contrabandand money. Any contraband found is given to the police.
The foregoing procedures were followed on October 24 when the C.I. indicated to ICE officers that he might be able to get methamphetamine from an acquaintance. The C.I. was given $300.00. The C.I. drove to a residence on Marion Street in Elkhart, Indiana, where he picked up a person later identified as Rico. At Rico's direction, the C.I. drove Rico to a grocery store parking lot. Once there, Rico exited the vehicle and walked to a nearby residence. Approximately one hour later, Rico exited that residence, returned to the C.I.'s vehicle and handed something to the C.I. Rico was driven back to his home. It was later determined that the substance Rico delivered to the C.I. contained 8.44 grams of methamphetamine.
Later on the same day, ICE officers conducted another controlled buy from Rico using the same C.I. This time, the C.I. was given $500.00. The C.I. and Rico repeated the same procedure they had followed in the earlier buy, except this time police executed a prearranged traffic stop of the C.I.'s vehicle before Rico was dropped off in order to check Rico's identity. No arrest was made at that time. It was later determined that the substance Rico sold to the C.I. during the second buy was 12.90 grams of methamphetamine.
Rico was charged with two counts of dealing methamphetamine in excess of three grams, as set out above, and convicted as charged following a jury trial. The court sentenced Rico to forty-three years for each offense and ordered that the sentences be served concurrently. More facts will be provided where relevant.
Rico contends the evidence was insufficient to support the convictions. He contends that the State did not present evidence with respect to either transaction establishing that adequate controls were observed. Specifically, he contends the evidence was insufficient to prove that adequate searches of the C.I.'s vehicle and person were conducted before both transactions.
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, 652 (Ind. 2008). "We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence." Id. 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. Id.
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We have indicated that a properly conducted controlled buy will permit an inference that the defendant had prior possession of a controlled substance. We have described a controlled buy as follows:
A controlled buy consists of searching the person who is to act as the buyer, removing all personal effects, giving him money with which to make the purchase, and then sending him into the residence in question. Upon his return he is again searched for contraband. Except for what actually transpires within the residence, the entire transaction takes place under the direct observation of the police. They ascertain that the buyer goes directly to the residence and returns directly, and they closely watch all entrances to the residence throughout the transaction.
Watson v. State, 839 N.E.2d 1291, 1293 (Ind. Ct. App. 2005) (quoting Mills v. State, 177 Ind. App. 432, 435, 379 N.E.2d 1023, 1026 (1978) (emphasis omitted)).
In the instant case, Sergeant Jeffrey Eaton of the Elkhart City Police Department testified that he observed the search of the C.I.'s person and vehicle prior to the first transaction. He participated in the surveillance of the first buy, testifying that he followedRico's vehicle and kept it in sight at all times before, during, and after the buy was made. He followed the C.I. to the original staging point and took from the C.I. the methamphetamine delivered by Rico. There was similar testimony concerning the second buy, both from Sergeant Eaton and the C.I., among others. Although, as Rico notes, there was no evidence that identified the name or names of the individual or individuals who conducted these searches, such is not required. There was evidence, including testimony from both the subject of the search and an officer who observed the searches, that searches were conducted, and that is sufficient. The same is true with respect to the evidence pertaining to the details of the searches themselves. The details or lack thereof merely go to the weight of the evidence. Rico's challenge to the search of his person is similar in nature, and fails for the same reason. The evidence was sufficient to support the convictions.
Rico was charged with the instant offenses on April 13, 2007 and sentenced following his convictions on August 26, 2010. Between those two dates, Rico was charged, convicted, and sentenced for attempted murder and aggravated battery. The trial court considered those convictions as part of Rico's criminal history, which the court determined to be an aggravating circumstance. Rico contends the court erred in considering as part of his criminal history offenses that were committed after he committed the instant offenses. He also contends the trial court erred in evaluating his criminal record as an aggravating circumstance.
With respect to Rico's first contention, our court has held that criminal activity that takes place after the crime for which the instant sentence is being imposed is a properconsideration in sentencing. See Haddock v. State, 800 N.E.2d 242 (Ind. Ct. App. 2003); see also Sauerheber v. State, 698 N.E.2d 796, 806 (Ind. 1998) (). Therefore, the trial court did not err in considering as part of his criminal history the offenses Rico committed after the instant offenses.
Rico's second contention is that the trial court erred in finding that his criminal history is an aggravating circumstance. This argument is premised largely upon Rico's first argument, i.e., that the court erred in including the attempted murder and battery convictions as part of his criminal history for purposes of sentencing in this case. Having rejected the premise, we also reject the conclusion based upon it. The trial court noted that Rico, who is twenty-four years old, has two misdemeanor driving offenses, a misdemeanor handgun offense, and the aforementioned two felony convictions. The court noted that Rico's pattern of criminal behavior is escalating in terms of the seriousness of the offenses he has committed. The trial court did not err in considering Rico's criminal history as an aggravating circumstance. To the extent his argument in this regard...
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