Taylor v. State, No. 79A02-1102-CR-162

CitationNo. 79A02-1102-CR-162
Case DateOctober 25, 2011
CourtCourt of Appeals of Indiana

TERRY TAYLOR, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff.

No. 79A02-1102-CR-162

COURT OF APPEALS OF INDIANA

October 25, 2011


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.

ATTORNEY FOR APPELLANT:

JAMES F. OLDS
Stuart & Branigin LLP
Lafayette, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER
Attorney General of Indiana

RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana

APPEAL FROM THE TIPPECANOE CIRCUIT COURT
The Honorable Donald L. Daniel, Judge
Cause No. 79C01-1008-FA-11

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

Page 2

Appellant-Defendant Terry Taylor appeals following his conviction for Class A felony Dealing in Cocaine1 and two counts of Class A misdemeanor Resisting Law Enforcement.2 Specifically, Taylor contends that the evidence is insufficient to sustain his Class A felony dealing in cocaine conviction, that the trial court abused its discretion in sentencing him, and that his sentence is inappropriate. We affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of August 14, 2010, Lafayette police officers were dispatched to Rhiele Brother's Bar ("Rhiele's"). Upon arriving at Rhiele's, Officer Jeff Webb observed a large group of people exiting the bar with several Rhiele's security personnel chasing the individuals and attempting to grab them. Officers Jeff Tislow and Zachary Hall arrived shortly thereafter and were informed by Officer Webb that Rhiele's security personnel were attempting to take custody of a person who had battered the bartender. Officers Webb, Tislow, and Hall approached a vehicle after Rhiele's security personnel indicated that the individual who battered the bartender was inside the vehicle.

As the officers approached, Taylor exited the vehicle and fled. Officer Tislow ordered Taylor to stop and attempted to grab him, but Taylor "took a swing at [him]" and escaped. Tr. p. 40. Officer Tislow continued to pursue Taylor as Taylor fled, and was no more than two or three feet from Taylor throughout the pursuit. At some point, Taylor tripped and fell. Taylor attempted to continue to flee, but fell to the ground and was handcuffed after Officer

Page 3

Tislow used his taser on Taylor. Upon searching the area through which Taylor fled, officers found twenty-one dollars, Taylor's crumpled social security card, and a plastic bag containing seven smaller baggies, each containing a white, rock-like substance that was later determined to be cocaine.

On August 19, 2010, the State charged Taylor with Class A felony dealing in cocaine, Class C felony possession of cocaine, and two counts of Class A misdemeanor resisting law enforcement. Following trial, a jury found Taylor guilty of all charges. The trial court ordered that the Tippecanoe County Probation Department complete a pre-sentence investigation report ("PSI"),3 and set the matter for sentencing. On February 4, 2011, the trial court merged the Class C felony possession of cocaine conviction into the Class A felony dealing in cocaine conviction, and sentenced Taylor to "a period of thirty-five (35) years for the crime of Dealing in Cocaine, as charged in Count I, a Class A felony, one (1) year for the crime of Resisting Law Enforcement, a Class A misdemeanor and one (1) year for the crime of Resisting Law Enforcement, a Class A misdemeanor." Appellant's App. p. 81. The trial court ordered that the sentences "shall run concurrently for a total of thirty-five (35) years." Appellant's App. p. 81. This appeal follows.

DISCUSSION AND DECISION

I. Whether the Evidence is Sufficient to Sustain Taylor's Conviction

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Taylor contends that the evidence presented at trial is insufficient to sustain his conviction for Class A felony dealing in cocaine.

Our standard of review for a challenge to the sufficiency of the evidence is well-settled. When reviewing the sufficiency of the evidence to support a conviction, we must consider only the probative evidence and reasonable inferences supporting the conviction. Boyd v. State, 889 N.E.2d 321, 325 (Ind. Ct. App. 2008). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial court's ruling. Id. We affirm the conviction unless "no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. The evidence is sufficient if an inference may reasonably be drawn from it to support the conviction. Id. "Where the evidence of guilt is essentially circumstantial, the question for the reviewing court is whether reasonable minds could reach the inferences drawn by the jury; if so, there is sufficient evidence." Whitney v. State, 726 N.E.2d 823, 825 (Ind. Ct. App. 2000). Further, we need not determine if the circumstantial evidence is capable of overcoming every reasonable hypothesis of innocence, but whether the inferences may be reasonably drawn from that evidence which supports the conviction beyond a reasonable doubt. Bustamante v. State, 557 N.E.2d 1313, 1318 (Ind. 1990).

Jones v. State, 924 N.E.2d 672, 674-75 (Ind. Ct. App. 2010).

In order to convict Taylor of Class A felony dealing in cocaine, the State was required to prove that Taylor possessed cocaine in an amount greater than three grams with intent to deliver it. See Ind. Code § 35-48-4-1(a)(2)(C)(b)(1). Taylor does not contest the jury's determination that he possessed more than three grams of cocaine, but rather the determination that he possessed the cocaine with the intent to deliver. "Intent is a mental function; therefore, absent an admission, the trier of fact must resort to reasonable inferences based upon an examination of the surrounding circumstances to determine whether, from the person's conduct and the natural consequences thereof, a showing or inference of intent to commit that conduct exists." Stokes v. State, 801 N.E.2d 1263, 1272 (Ind. Ct. App. 2004)

Page 5

(citing Isom v. State, 589 N.E.2d 245, 247 (Ind. Ct. App. 1992)). Intent to deliver may be proved by circumstantial evidence. Id. (citing Frierson v. State, 572 N.E.2d 536, 537 (Ind. Ct. App. 1991)).

In Lampkins v. State, 682 N.E.2d 1268, 1276 (Ind. 1997), clarified on other grounds on re'hg, 685 N.E.2d 698 (Ind. 1997), the Indiana Supreme Court held that the evidence was sufficient to support the defendant's conviction for Class A felony dealing in cocaine where the evidence demonstrated that the defendant possessed 4.28 grams of cocaine which was divided into twenty-one rocks. 4 The rocks were sorted and packaged according to price and size. Id. In Lampkins, a narcotics investigator testified that he was familiar with the methods of packaging and selling illegal drugs and that the cocaine seized from the defendant was consistent with dealing. Id. In affirming the defendant's conviction, the Indiana Supreme Court held that "a jury could infer intent to deal from this evidence." Id.

Here, the facts most favorable to the judgment show that Taylor possessed 4.17 grams of crack cocaine which was divided into seven individual rocks. Each rock was packaged in a separate small plastic baggie and placed in one larger plastic bag. Detective Shumaker testified that he was familiar with the packaging and selling of cocaine, and that the packaging the seven rocks in individual baggies seized from Taylor was consistent with dealing. Detective Shumaker acknowledged that it was possible that a heavy user could possess over four grams of cocaine packaged as described above for personal use, but that it

Page 6

was more consistent with dealing. Detective Shumaker further testified that in Lafayette, an individual possessing cocaine for personal use would generally also possess means to ingest the cocaine, known as a "crack pipe," and that here, police did not find a crack pipe. Tr. p. 95.

In light of the Indiana Supreme Court's decision in Lampkins considered together with Detective Shumaker's testimony that the amount and packaging of the cocaine seized from Taylor was more consistent with dealing than personal use, we conclude that the jury could infer intent to deliver from the above-stated evidence. Thus, we further conclude that the evidence is sufficient to sustain Taylor's conviction for Class A felony dealing in cocaine. Taylor's claim on appeal effectively amounts to an invitation for this Court to reweigh the evidence, which we decline. Jones, 924 N.E.2d 672, 674.

II. Whether the Trial Court Abused its Discretion in Sentencing Taylor

Taylor also contends that the trial court abused its discretion in sentencing him following his conviction for Class A felony dealing in cocaine. In raising this claim, Taylor challenges the aggravating factors relied on by the trial court at sentencing. Taylor also argues that the trial court abused its discretion by failing to find any mitigating factors.

Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868...

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