Estes v. State

Citation985 N.E.2d 821
Decision Date10 April 2013
Docket NumberNo. 39A01–1205–CR–214.,39A01–1205–CR–214.
PartiesJake E. ESTES, Appellant–Defendant, v. STATE Of Indiana, Appellee–Plaintiff.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from the Jefferson Superior Court; The Honorable Alison T. Frazier, Judge; Cause No. 39D01–1107–FD–584.

R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Jake E. Estes appeals his convictions for dealing in marijuana as a class D felony and possession of marijuana as a class D felony. Estes raises three issues, which we revise and restate as:

I. Whether the evidence was sufficient to support his convictions;

II. Whether the trial court abused its discretion in instructing the jury; and

III. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm in part, reverse in part, and remand.

FACTS

In May of 2011, U.S. Postal Service Inspector Thomas Henderson received information that someone living at Estes's address, 106 Sycamore Drive in Hanover, Indiana, had been receiving suspicious express parcels from California. Henderson placed a “parcel watch” for the address and instructed the manager of the local post office to advise him when the next parcel arrived for that particular address. Transcript at 27.

In June of 2011, Henderson intercepted a package addressed to Mr. G Butters at 331 W. Lagrange Road in Hanover, with a return address of Brian Sherman from Soquel, California. State's Exhibit 8. The return label did not match any known address in California. Pursuant to a federal warrant, Henderson opened the parcel and discovered approximately five pounds of “high grade” marijuana packaged in five “loaves.” Transcript at 29, 63.

Henderson then arranged a controlled delivery of the intercepted package. The box was resealed with a transmitter inside. Henderson, posing as a postal carrier, delivered the package to the residence of Sandy Butters, who had previously acceded to Estes's request that she accept a package for him. Butters answered the door, acknowledged the package, signed for it, and took it inside. Henderson retreated, but remained nearby, leaving police officers to conduct surveillance of the residence.

Thereafter, Estes arrived at Butters's residence, and within seconds the transmitter indicated movement of the package. Approximately a minute after arrival, Estes exited the residence holding the package. He placed it in his vehicle and drove away. A short distance from Butters's residence, police officers stopped Estes. From inside the vehicle, police recovered the box of marijuana. Estes's wallet and pants found in the vehicle's trunk contained cash amounting to $1,681. Police also found an express mail label from a day or two earlier, addressed from J. Long at 331 W. LaGrange Road in Hanover to Michael Ericson, 1768 Del Mar Ct, Santa Cruz 95062.” Id. at 64; State's Exhibit 22. The package corresponding to that label was intercepted and found to contain $9,910.00 in cash. Estes's cellular phone held a contact number for Michael Ericson.” State's Exhibit 49.

PROCEDURAL HISTORY

On July 5, 2011, the State charged Estes with Count I, dealing in marijuana as a class D felony; Count II, possession of marijuana as a class D felony; Count III, possession of marijuana as a class D felony; and Count IV, maintaining a common nuisance as a class D felony. That same day, the State also filed a separate information charging Estes with being an habitual substance offender. On March 19, 2012, the State filed a motion to dismiss Counts III and IV and a motion to amend certain language in Count I, both of which the court granted that same day. On March 21, 2012, a jury trial was held, and on March 23, 2012, the jury found Estes guilty on Counts I and II. The court dismissed the habitual substance offender charge based upon a motion by the State, which indicated that Estes did not qualify under the statute. On April 16, 2012, the court sentenced Estes to three years on each of his convictions and ordered that the sentences be served concurrently. Thus, Estes was sentenced to an aggregate term of three years in the Department of Correction.1

ISSUES

I.

For reasons which will become apparent below, we first address whether the evidence was sufficient to support Estes's convictions. When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.2009). 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.

The offense of possession of marijuana is governed by Ind.Code § 35–48–4–11, which at the time of Estes's offense provided in relevant part that [a] person who ... knowingly or intentionally possesses (pure or adulterated) marijuana ... commits possession of marijuana. ... However, the offense is a Class D felony [ ] if the amount involved is more than thirty (30) grams of marijuana....” The offense of dealing in marijuana is governed by Ind.Code § 35–48–4–10, which at the time of Estes's offense provided in relevant part that [a] person who ... knowingly or intentionally ... possesses, with intent to ... deliver ... marijuana ... pure or adulterated[ ] commits dealing in marijuana.... The offense is ... a Class D felony if ... the amount involved is more than thirty (30) grams but less than ten (10) pounds of marijuana....” The element of intent can be inferred from examining the surrounding circumstances and reasonable inferences to be drawn therefrom. Turner v. State, 878 N.E.2d 286, 295 (Ind.Ct.App.2007), trans. denied. “Evidence of the illegal possession of a relatively large quantity of drugs is sufficient to sustain a conviction for possession with intent to deliver.” Id.

Estes argues that the State presented insufficient evidence to support his convictions, arguing that “the only thing connecting Estes to the box was his proximity.” Appellant's Brief at 14. More particularly, he denies that the State proved his knowledge that the box contained contraband.

A conviction for possession of contraband may rest upon either actual possession or constructive possession. Goodner v. State, 685 N.E.2d 1058, 1061 (Ind.1997). Actual possession of contraband occurs when a person has direct physical control over the item. Gee v. State, 810 N.E.2d 338, 340 (Ind.2004). In this case, Estes was observed personally and exclusively carrying the box which held the transmitter and marijuana. He was in actual possession of the box, but denies knowing it contained contraband. Knowledge is a mental state, and thus the jury must resort to reasonable inferences as to its existence. Young v. State, 761 N.E.2d 387, 389 (Ind.2002).

The evidence most favorable to Estes's convictions reveals that Estes asked Butters to accept a package on his behalf. Immediately upon arriving at Butters's residence, Estes took the package and left with it. Estes was found in possession of a large quantity of marijuana, in loaves. A law enforcement officer testified that the amount greatly exceeded that typical of personal use. Postal clerk Jodi Wells testified that Estes had been routinely sending similar-sized packages to California. He had used names other than his own when preparing the labels for those packages. One recent label was found in the vehicle Estes was driving. Over $9,000 had been shipped to a Michael Ericson,” and the contact information for Michael Ericson was found in Estes's phone. According to post office records, three packages from California were delivered to Estes's address, 106 South Sycamore Street, Hanover, in the month of June. Each package weighed between six and seven pounds. Two of the three had fictitious return addresses.

We therefore conclude that evidence of probative value exists from which the jury could have found Estes guilty beyond a reasonable doubt of dealing in marijuana and possession of marijuana as class D felonies. However, although neither party raises the issue, we must address, sua sponte, the issue of whether Estes's conviction for possession of marijuana is barred by double jeopardy principles. See Smith v. State, 881 N.E.2d 1040, 1047 (Ind.Ct.App.2008) (We raise the issue sua sponte because a double jeopardy violation, if shown, implicates fundamental rights.”). The Indiana Constitution states that [n]o person shall be put in jeopardy twice for the same offense.” Ind. Const. art 1, § 14. [T]wo convictions may be the ‘same offense’ in violation of this Indiana Double Jeopardy Clause if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” McIntire v. State, 717 N.E.2d 96, 99 (Ind.1999).

Here, the jury found Estes guilty of dealing in marijuana and possession of marijuana, the court entered a judgment of conviction as to both, and sentenced him for each count. The charging information for Count I as amended stated that Estes “knowingly or intentionally possessed, with intent to deliver, MARIJUANA (pure or adulterated) in an amount over thirty (30) grams.” Appellant's Appendix at 171. The State charged that Estes under Count II that he “knowingly or intentionally possessed MARIJUANA (pure or adulterated) in an amount over thirty (30) grams.” Id. Thus, to prove that Estes was dealing in marijuana, it was necessary for the State to prove that he was in possession of marijuana.

An offense is a lesser...

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