Simmons v. State

• Decision Date: 03 June 2005
• Docket Number: No. 27A02-0409-CR-807.,27A02-0409-CR-807.
• Citation: 828 N.E.2d 449
• Parties: Eric SIMMONS, Anthony Davis, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

828 N.E.2d 449

Eric SIMMONS, Anthony Davis, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.

No. 27A02-0409-CR-807.

Court of Appeals of Indiana.

June 3, 2005.

Shane E. Beal, Marion, IN, Attorney for Appellant, Eric Simmons.

Craig Persinger, Marion, IN, Attorney for Appellant, Anthony Davis.

Steve Carter, Attorney General of Indiana, Grant H. Carlton Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Anthony Davis and Eric Simmons appeal their convictions for Class A felony conspiracy to deal in cocaine in excess of three grams. Davis also appeals his sentence. We affirm.

Issues

We restate the issues as:

I. whether there is sufficient evidence to support Davis's and Simmons's convictions for conspiracy to deal in cocaine in excess of three grams when neither of the two individual transactions involved more than three grams of cocaine; and

II. whether the jury rendered inconsistent verdicts.

Davis raises another issue, which we restate as whether he was properly sentenced.

Facts¹

Late in the evening of June 4, 2002, or early in the morning of June 5, 2002, Derrius Purtee, Miko Harris, Antonio Dawson, and Simmons drove from Detroit, Michigan, to Marion, Indiana. When they arrived in Marion, they went to an apartment on Boots Street. Purtee played video games while Harris cut crack cocaine into small pieces and Dawson and Simmons placed the pieces into bags.

When they finished, Purtee, Harris, and Simmons drove to an apartment on 9th Street. Davis, a friend from Detroit, was at the apartment, which had very little furniture. Davis gave Harris a "couple hundred dollars." Tr. p. 420. In return, Harris gave Davis a bag containing rocks of cocaine. Simmons took an overnight bag from Harris's car into the 9th Street apartment, and Harris and Purtee returned to the Boots Street apartment.

Early in the morning on June 5, 2002, confidential informant Euthan Lampkin arrived at the 9th Street apartment to purchase cocaine. While Lampkin was in the apartment, Simmons gave Davis the cocaine, and Davis gave the cocaine to Lampkin. When Lampkin paid for the cocaine, Davis instructed him to place the money in a stack of bills Simmons was counting. Lampkin returned to the police officer overseeing the controlled buy, completed the necessary procedures, and returned to the 9th Street apartment to make another buy. During the second purchase, Davis sold Lampkin more cocaine. In the first buy, Lampkin purchased 1.61 grams of cocaine, and during the second buy Lampkin purchased 1.51 grams of cocaine. Lampkin purchased a total of 3.12 grams from the 9th Street apartment that morning. The same day, Lampkin also twice purchased cocaine at the Boots Street apartment.

On June 7, 2002, the State charged Davis with Class A felony dealing in cocaine, Class A felony conspiracy to deal in cocaine, Class D felony maintaining a common nuisance, and Class A misdemeanor possession of marijuana. That same day, the State charged Simmons with two counts of Class B felony dealing in cocaine and one count of Class A felony conspiracy to deal in cocaine, Class A felony dealing in cocaine, Class D felony maintaining a common nuisance, and Class A misdemeanor possession of marijuana.

Prior to trial, several of these charges were dismissed. Simmons was tried on one of the Class B felony dealing in cocaine charges and the Class A felony conspiracy to deal in cocaine charge. Davis was tried on the sole charge of Class A felony conspiracy to deal in cocaine. The conspiracy charge against Simmons alleged in part:

During May and June, 2002, in Marion, Grant County, State of Indiana, Antonio Eugene Dawson, with the intent to commit the felony crime of Dealing in cocaine in an amount greater than three (3) grams, did agree with Anthony Davis, Eric Darnell Simmons, "Randy", and/or other unknown persons to commit said felony crime; and in furtherance of such agreement, Antonio Eugene Dawson, Anthony Davis, "Randy", and/or other unknown persons did perform one or more of the following over acts, to wit:

1) Located a source for cocaine that was to be transported to, and sold within, Grant County, Indiana;

2) Purchased and/or otherwise acquired cocaine from said source;

3) Obtained means of transportation for the purpose of traveling to Grant [C]ounty, Indiana;

4) Traveled to Grant County, Indiana;

5) Transported cocaine to Grant County, Indiana;

6) Purchased, rented, and/or otherwise acquired possession of one or more residences in Grant County, Indiana, to be used for manufacturing, storing/possessing, selling, and/or delivering crack cocaine to one or more customers;

7) Manufactured, stored/possessed[,] sold and/or delivered crack cocaine to one or more customers in amounts greater than three (3) grams;

8) Screened potential customers at the door(s) of said residence(s) prior to allowing entry for the purpose of purchasing crack cocaine;

9) Acquired and/or possessed Ohaus electronic digital scales to be used for measuring various amounts/weights of cocaine; and/or[;]

10) Received U.S. cash currency and/or other items of value in exchange for cocaine delivered to customers[.]

Simmons's App. pp. 110-11. The conspiracy charge against Davis was substantially similar to the information filed against Simmons. See Davis's App. pp. 13-14.

Davis and Simmons were tried together, and a jury found them both guilty of Class A felony conspiracy to deal in cocaine and acquitted Simmons of the dealing charge. They now appeal.

Analysis

I. Sufficiency of the Evidence

Davis and Simmons ("the Appellants") argue that the State should not be permitted to combine the weight of two separate sales to achieve an aggregated weight of three or more grams of cocaine, enhancing the offense to a Class A felony. The Appellants frame their argument in terms of sufficiency of the evidence. They contend that there is not sufficient evidence to support their convictions for a Class A felony because each separate sale to Lampkin involved less than three grams of cocaine.

In reviewing a claim of insufficient evidence, we will affirm the conviction unless, considering only the evidence and all reasonable inferences favorable to the judgment, we conclude that no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Bethel v. State, 730 N.E.2d 1242, 1243 (Ind.2000). We neither reweigh the evidence nor judge the credibility of the witnesses. Id.

Dealing in cocaine is defined as knowingly or intentionally manufacturing, financing the manufacture of, delivering, or financing the delivery of cocaine or possessing, with the intent to manufacture, finance the manufacture of, deliver, or finance the delivery of cocaine. Ind.Code § 35-48-4-1(a). Dealing in cocaine is a Class B felony. Id. However, it is enhanced to a Class A felony if "the amount of the drug involved" weighs three or more grams. I.C. § 35-48-4-1(b). "A person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of the same class as the underlying felony." I.C. § 35-41-5-2.

The Appellants assert that we should construe the dealing statute against the State. Although we agree that penal statutes are strictly construed against the State, Mayes v. State, 744 N.E.2d 390, 393 (Ind.2001), we need not interpret the statute because we are only asked to review the sufficiency of the evidence.

The Appellants also point out, "there is no principled way for trial courts or appellate courts to rein in the potentially vast scope of this theory." Davis's Br. p. 4. We agree that there is danger in eviscerating the distinction between Class A and Class B felonies and allowing the enhancement to be charged in circumstances not intended by the legislature.² However, we cannot conclude as a matter of law that Indiana Code Section 35-48-4-1 necessarily prohibits the State from charging and proving conspiracy to deal in cocaine in excess of three grams when no single buy involves three or more grams of cocaine.³ This determination is subject to the specific facts of each case and the allegations in the charging information.

The Appellants contend that even if the weight of the two transactions with Lampkin at the 9th Street apartment may be aggregated, there is insufficient evidence of an agreement to deal in cocaine. The State was not required to prove the existence of a formal express agreement to establish the Appellants agreed to deal in cocaine. Porter v. State, 715 N.E.2d 868, 870 (Ind.1999). "`It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense.'" Id. at 870-71 (quoting Williams v. State, 274 Ind. 94, 96, 409 N.E.2d 571, 573 (1980)). The State may prove an agreement by direct or circumstantial evidence. Id. at 871. Mere association with a co-conspirator, standing alone, is insufficient to support a conviction for conspiracy. Id.

In Washington v. State, 807 N.E.2d 793 (Ind.Ct.App.2004), we addressed the sufficiency of the evidence in a similar case. In late May and early June 2002, a confidential informant, Cummings, contacted Nelson to purchase cocaine on five separate occasions. Id. at 794-95. On the first occasion, Owensby delivered the cocaine to Cummings. Id. at 795. On the second occasion the defendant, Washington, delivered the cocaine to Cummings. Id. On the third and fourth occasions, Nelson delivered the cocaine to Cummings. Id. On the fifth occasion, Owensby delivered the cocaine to Cummings. Id.

Although none of the individual buys was in excess of three grams, the aggregate weight of the five buys was 3.61 grams. Id. The State charged Washington with Class A felony conspiracy to deal in cocaine in excess of three grams and a jury found him guilty of this charge. Id. at 795-96. On appeal, Washington argued...