ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
CAROLINE B. BRIGGS KAREN FREEMAN-WILSON
Lafayette, Indiana Attorney General of Indiana
BARBARA GASPER HINES
Deputy Attorney General
COURT OF APPEALS OF INDIANA
FIDEL CASTILLO, )
vs. ) No. 09A02-9909-CR-00648
STATE OF INDIANA, )
APPEAL FROM THE CASS CIRCUIT COURT
The Honorable Julian Ridlen, Judge
Cause No. 09C01-9802-CF-00006
August 31, 2000
OPINION - FOR PUBLICATION
Appellant, Fidel Castillo (Castillo), appeals his convictions for Possession of Cocaine,
See footnote a Class
A felony,See footnote and for Dealing in Cocaine,See footnote a Class A felony.See footnote
We affirm in part, reverse in part, and remand.
Upon appeal, Castillo presents four issues for our review:
1) Whether the convictions for possession of cocaine and delivering cocaine constitute double
2) Whether the trial court erred by failing to require the jury to
decide unanimously which of two specific acts of dealing constituted the crime charged;
3) Whether there was sufficient evidence adduced at trial to conclude that Castillo
committed the offense of possession of cocaine; and
4) Whether the search warrant issued was invalid because a police officer testified
that the confidential informant was male when the confidential informant was actually female.
See footnote most favorable to the jurys verdict reveal that on February 6,
1998, Dorla A. Salmons (Salmons), an inmate at the Cass County Jail, contacted
Logansport Police Officer Robert A. Burgess (Burgess) and informed him that she could
purchase cocaine from Castillo. Salmons agreed to act as a confidential informant
for the Logansport Police Department and purchase cocaine from Castillo and another man
named Arnaldo Garcia (Garcia).
I. Double Jeopardy
Officer Burgess picked Salmons up at the Cass County Jail and brought her
to his office. Officer Burgess searched Salmons to ensure that she did
not have any drugs on her person, outfitted her with a wire, and
gave her $200 to buy cocaine from Castillo. Indiana State Police Detective
Larry Mote (Mote) then transported Salmons to Garcias home at 401 East Miami
Street in Logansport. Garcias home is situated across from El-Tip-Wa which is
a career center funded through the Logansport School Corporation. Detective Mote watched
Salmons enter the home and monitored the transaction by radio from inside his
Inside Garcias home, Castillo sold Salmons four rocks of cocaine for $200.
Record at 930. Salmons immediately left the home, returned to Detective Motes
car and gave him the cocaine she had purchased from Castillo. Detective
Mote then drove Salmons to a cemetery to meet with Officer Burgess who
searched Salmons again to ensure that she was not carrying any money or
Later that same day, Detective Mote gave Salmons another $200 to purchase more
cocaine and drove her to Castillos apartment at 420 ½ Tenth Street in
Logansport. Castillos apartment is located next door to a licensed day care
facility. Salmons entered the residence, purchased six rocks of cocaine, and then
returned to Detective Motes car. Officer Burgess again searched Salmons to
make sure she did not have any hidden drugs or money.
On the evening of February 6, 1998, after obtaining a search warrant, the
police officers conducted a search of Castillos apartment. Upon approaching the apartment,
Officer Burgess observed someone in an upstairs bedroom throw something from the window.
The package landed between Castillos apartment and the day care center and
was later determined to contain over 15 grams of cocaine. Once inside
the apartment, the police officers observed Castillo leaving the bedroom from which the
cocaine had been thrown. At the time, Castillo lived in the apartment
with his sister and brother-in-law.
In addition to the cocaine found outside the apartment, during the search of
Castillos apartment, the police also discovered the money that Salmons had used to
make the two purchases of cocaine earlier that day, a stolen gun,See footnote $3,325
in cash, postal scales, and other property. Castillo was arrested, and on
February 9, 1998, he was charged with Possession of Cocaine, Dealing in Cocaine,
Maintaining a Common Nuisance,See footnote and Receiving Stolen Property.See footnote
On December 23, 1998, Castillo filed a Motion to Suppress Evidence seized in
the search of Castillos home on February 6, 1998. He alleged that
the testimony upon which the search warrant was issued was defective because it
stated that the informant was reliable but did not state why the informant
was reliable or credible. The trial court held a hearing on Castillos
motion to suppress on April 7, 1999. On April 26, 1999, the
trial court denied Castillos motion to suppress the evidence. On April 29,
1999, after a trial, the jury returned a verdict of guilty on all
Castillo first contends that his conviction for possession of cocaine and his conviction
for dealing in cocaine violate the standards of double jeopardy because possession of
a drug is an included offense of delivering that drug. Castillo asserts
that the charging information for both the possession and the dealing allege the
same date and do not differentiate between the time of the possession of
the cocaine and the time of dealing.See footnote Castillo, therefore, concludes that the
possession of cocaine was not sufficiently differentiated in the charging information from the
possession inherent in the dealing charge, and therefore, convictions on both charges violated
his right against double jeopardy.
Double jeopardy concerns usually arise when a defendant is either twice tried or
given multiple punishments for the same offense.
Redman v. State (1997) Ind.App.,
679 N.E.2d 927, 928, trans. denied. In Richardson v. State (1999) Ind.,
717 N.E.2d 32, 49, our Supreme Court recently analyzed the issue of double
jeopardy and concluded:
"two or more offenses are the 'same offense' in violation of Article I,
Section 14 of the Indiana Constitution, 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." (emphasis in original).
the essential elements necessary to convict Castillo of possession of cocaine with those
necessary to convict him of dealing cocaine, we conclude they are not the
same. Possession involves knowingly or intentionally possessing cocaine, while dealing, as here
charged, involves the knowing delivery of cocaine.
II. Jury Unanimity
However, even if a double jeopardy violation does not exist when comparing the
essential elements, a violation may still have occurred if the actual evidence presented
at trial demonstrates that each offense was not established by separate and distinct
facts. The "defendant must demonstrate a reasonable possibility that the evidentiary facts
used by the fact-finder to establish the essential elements of one offense may
also have been used to establish the essential elements of a second challenged
Richardson, supra, 717 N.E.2d at 53.
Here, evidence was presented at trial that Salmons visited Castillos home and that
Castillo sold and delivered cocaine to Salmons, thus, constituting the crime of dealing
in cocaine. Evidence was also presented that later that same day, upon
executing the search warrant to search Castillos home, the police observed an unknown
person toss almost 15 grams of cocaine out a bedroom window. Upon
entering the home, Castillo was observed exiting the bedroom from which the cocaine
had been thrown. This evidence was sufficient to establish that Castillo possessed cocaine.
The evidence adduced at trial was sufficient for the jury to conclude
that Castillo had committed two separate crimes at two different times on the
same day. We, therefore, hold that convictions for both crimes did not
violate the standards of double jeopardy.
Castillo next asserts that it was error to allow the jury to hear
evidence of two separate episodes of dealing in cocaine when he was charged
with only one. He further contends that the trial court should have
instructed the jury that they were required to unanimously agree upon which act
supported the conviction for dealing in cocaine.
Recently, in Richardson v. United States (1999) 526 U.S. 813, 119 S.Ct. 1707,
the Supreme Court held that a jury must unanimously agree regarding which crime
a defendant committed. The facts in that case, however, were markedly different
from the facts in the instant case. There, Richardson was charged with
violating a federal law making it a crime for any person to engage
in a continuing criminal enterprise. Id. at 815. (quoting 21 U.S.C.
§ 848(a)). The federal law defined a continuing criminal enterprise as
a violation of the drug laws where that violation is a part of
a continuing series of violations. Id. (quoting 21 U.S.C. § 848(c)).
The Court determined that it was error for the trial court to instruct
the jury that they must agree that Richardson committed at least three violations,
but that they did not have to agree upon which three violations he
committed. Id. at 816. The Court reasoned that it would be
unfair to allow juries to avoid discussion of specific factual considerations when determining
whether a defendant committed a violation. Id. at 819. To do so
would increase the danger that juries may conclude that where there is smoke
there must be fire, and to convict the defendant because he is a
bad person. Id. at 819.
Although factually different, that same reasoning is applicable in this case.
the State chose to charge Castillo with one act of dealing in cocaine
even though there was evidence that Castillo committed two separate acts of dealing
in cocaine. The dealing charge was unspecific and only charged that on or
about February 6, 1998, in Cass County, State of Indiana, Fidel C. Castillo
did knowingly deliver cocaine, pure or adulterated, within one thousand (1000) feet of
school property . . . . Record at 1. Over
Castillos objection, the state was permitted to present evidence of both incidents.See footnote
Furthermore, in closing argument, the prosecutor told the jury they had a
choice in convicting Castillo of dealing in cocaine. Record at 1260.
He told them he had proved it twice but that they only had
to find it either happened at Garcias home or later at Castillos home.
The trial court did not instruct the jurors that they were required to
render a unanimous verdict regarding which dealing crime Castillo committed. In fact,
the trial court, in ruling on Castillos continuing objection to the evidence of
the earlier dealing crime, stated that because there was no specificity as to
either of the dealing counts, the prosecution could prove it as to one
or the other . . . [o]r both. Record at 652.
It is possible, given these facts, that some jurors believed that Castillo committed
the earlier dealing crime at Garcias home while other jurors believed that Castillo
committed the dealing violation at his home later that same day. Consequently,
it is possible that the jurys verdict of guilty regarding the charge of
dealing in cocaine was not unanimous. We, therefore, conclude that Castillos conviction
for dealing in cocaine should be vacated and, in this regard, we remand
this cause to the trial court for further proceedings.
III. Sufficiency of the Evidence
Castillo maintains that there was insufficient evidence adduced at the trial to sustain
his conviction for possession of cocaine. When addressing a claim of insufficient
evidence, we neither reweigh the evidence nor judge the credibility of witnesses.
Winters v. State (1999) Ind.App., 719 N.E.2d 1279, 1281.
To convict Castillo of possession of cocaine, the State had to prove that
Castillo knowingly or intentionally possessed cocaine. I.C. 35-48-4-6 (Burns Code Ed. Repl.
1998). A conviction for possession of cocaine may be proved by either
actual or constructive possession. Macklin v. State (1998) Ind.App., 701 N.E.2d 1247,
1251. Constructive possession is the actual knowledge of the presence and illegal
character of the contraband and the intent and capability to maintain dominion and
control over it. Godar v. State (1994) Ind.App., 643 N.E.2d 12,
rehg denied, trans. denied.
Castillo relies upon Greely v. State (1973) 158 Ind.App. 212, 301 N.E.2d 850,
which held that a homeowner was not criminally punishable for stolen goods found
in the trash outside his home where no evidence proved that he had
at least some knowledge of the presence of the material. The facts
of that case, however, differ greatly from the facts in the instant case.
Here, the police observed someone throw a package, later determined to be
cocaine, out of an upstairs bedroom window. A few moments later, when
the police entered Castillos apartment, Castillo was leaving that bedroom. This evidence
was sufficient for the jury to reasonably infer that it was Castillo who
had thrown the package of cocaine.
IV. Search Warrant
Castillo finally asserts that the trial court erred when it denied his motion
to suppress evidence recovered from his apartment because the search warrant was invalid.
Castillo contends that suppression was required because the testimony
See footnote provided to the
judge upon which the search warrant was issued was false. During the
hearing, both Officer Burgess and the prosecutor referred to the confidential informant as
a male when Salmons is, in fact, a female.
"In deciding whether to issue a search warrant, '[t]he task of the issuing
magistrate is simply to make a practical, commonsense decision whether, given all the
circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will be found in a
Jaggers v. State (1997) Ind., 687 N.E.2d 180, 181 (quoting
Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76
L.Ed.2d 527). If a search warrant is issued upon the basis
of testimony which is later found to be false, "the sufficiency of the
affidavit must be evaluated with the false statements excised." Jewell v. State
(1996) Ind.App., 672 N.E.2d 417, 422, trans. denied. If there is sufficient
probable cause with the false statements excised, then the search warrant is valid.
Utley v. State (1992) Ind., 589 N.E.2d 232, 236, cert. denied
(1993) 506 U.S. 1058.
In this case, Officer Burgess knew that Salmons, the confidential informant, was female.
However, he continually referred to her as a male during the probable
cause hearing for the search warrant. Although it is troubling that this
would take place, we cannot say as a matter of law that this
rendered the search warrant invalid. Furthermore, there is no evidence to conclude
that Officer Burgess testified falsely or with reckless disregard for the truth concerning
any material facts. He stated that he had searched Salmons before giving
her money to conduct the controlled buy and he personally escorted her to
Detective Motes car. He further testified that Detective Mote drove Salmons to
Garcias home first and Castillos home later. Detective Burgess overheard both transactions
by wire, and when Detective Mote returned Salmons to Officer Burgess, Officer Burgess
searched her again. There is no evidence that Officer Burgess testified falsely
with regard to these material facts. This information was sufficient to provide
probable cause and it was irrelevant to the probable cause determination whether Salmons
was a man or a woman.
Castillo also argues that the false information regarding Salmons gender calls into question
the validity of the controlled buy. In Flaherty v. State (1982) Ind.App.,
443 N.E.2d 340, 341, we explained the mechanics of a controlled buy:
"'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.'"
(quoting Mills v. State (1978) 177 Ind.App. 432, 434, 379 N.E.2d 1023, 1026.)
So long as the controls are adequate, the affiants personal observation of
a controlled buy may be sufficient as grounds for finding probable cause.
Methene v. State (1999) Ind.App., 720 N.E.2d 384, 390.
Castillo claims that Officer Burgess deliberately misrepresented Salmons gender because of the implication
that it is impossible for a male officer to conduct a thorough search
of a female confidential informant. Both Salmons and Officer Burgess conceded that
a strip search was not conducted upon Salmons before or after the controlled
See footnote However, both also testified that Salmons was carefully searched to ensure
that she did not have any of her own money or contraband in
her possession. She was searched before and after the buysSee footnote and either
Officer Burgess or Detective Mote monitored Salmons visually or by wire during the
course of the buys. We conclude that the search warrant was valid
and the motion to suppress was properly denied.
The judgment is affirmed in part, reversed in part and remanded to the
trial court for further proceedings not inconsistent with this opinion.
BAILEY, J., and VAIDIK, J., concur.
Footnote: I.C. 35-48-4-6 (Burns Code Ed. Repl. 1998 & Supp. 2000).
Footnote: Possession of Cocaine is a Class C felony if the amount of
cocaine weighs 3 grams or more. I.C. 35-48-4-6(b)(1)(A) (Burns Code Ed. Repl.
1998 & Supp. 2000). However, it is elevated to a Class A
felony if it is committed within 1,000 feet of school property. I.C.
35-38-4-6(b)(3)(B)(i) (Burns Code Ed. Repl. 1998).
Footnote: I.C. 35-48-4-1(a)(2) (Burns Code Ed. Repl. 1998).
Footnote: Dealing in Cocaine is a Class B felony. However, it is
elevated to a Class A felony if it is delivered within 1,000 feet
of school property. I.C. 35-48-4-1(b)(3)(B)(i) (Burns Code Ed. Repl. 1998).
Footnote: Appellants Brief is severely lacking in its Statement of the Facts.
We remind Appellant of Ind. Appellate Rule 8.3(A)(5) which states that [t]he brief
of Appellant shall contain . . . [a] statement of the facts relevant
to the issues presented for review, with appropriate references to the record.
Appellants statement of the facts encompassed less than a full page without record
citations. Yet, the record consisted of six volumes, and upon appeal, Appellant
has raised four complex legal issues.
Footnote: The gun had been reported stolen on December 11, 1997 by Tim
Lee Willis. Willis did not know Castillo and had never been to
Footnote: I.C. 35-48-4-13(b)(2)(D) (Burns Code Ed. Repl. 1998).
Footnote: I.C. 35-43-4-2(b) (Burns Code Ed. Repl. 1998).
Footnote: Count I of the charging information alleges that on or about February
6, 1998, in Cass County, State of Indiana, Fidel C. Castillo, without a
valid prescription or order of a practitioner acting in the course of his
professional practice, did knowingly or intentionally possess cocaine in an amount (pure or
adulterated) weighing at least three grams: in, on or within one thousand (1,000)
feet of school property . . . . Record at 1.
Count II of the charging information alleges that on or about February 6,
1998, in Cass County, State of Indiana, Fidel C. Castillo did knowingly deliver
cocaine, pure or adulterated, within one thousand (1000) feet of school property .
. . . Record at 1.
Footnote: If the dealing offense were charged pursuant to I.C. 35-48-4-1(2)
instead of I.C. 35-48-4-1(1)(c), the possession required for each offense would be the
same and therefore the possession element would be identical for each offense.
As noted, however, Castillo was charged with actual delivery of the cocaine rather
than possession with intent to deliver.
Footnote: In a factually analogous case,
Brinkman v. State (1877) 57 Ind. 76,
our Supreme Court addressed the issue of double jeopardy. In Brinkman, the
defendant was charged twice with selling alcohol to a minor on the same
day. The charges were unspecific about the time and merely gave the
date. The defendant was tried and convicted on the first charge and
the next day tried and convicted of the second charge. The Court
examined the record and found that testimony was presented during both trials that
the defendant had sold alcohol twice to the same minor. In ordering
a new trial, the Court said that when the prosecution gave evidence of
both sales on each indictment, both convictions may have been secured for the
same selling. Id. at 79. Contrary to our position today, the
Court further stated that if the jury, on the trial upon the first
indictment, having the evidence as to both alleged sales before them, found that
one of said alleged sales was not satisfactorily established, but that the other
was; they would have been justified in returning a verdict of guilty.
Id. While it is true that this would not violate Brinkmans right
to be free of double jeopardy, we hold today that it would violate
his right to a unanimous verdict because one or more of the jurors
may have reached his individual conclusion of guilt premised upon the particular sale
which other of the jurors found not established.
Castillo also correctly contends that allowing extraneous evidence of uncharged crimes in
this manner is a means of bypassing Ind. Evidence Rule 404(b) which prohibits
evidence of other crimes, wrongs, or acts except under narrowly construed exceptions.
Improperly admitted evidence of this type may have a prejudicial impact on a
juror and contribute to a guilty verdict.
Sundling v. State (1997) Ind.App.,
679 N.E.2d 988, 994, rehg denied.
In this case, in obtaining the search warrant, Officer Burgess testified in
open court rather than by affidavit.
Hawkins v. State (1993) Ind., 626 N.E.2d 436, 441, the Appellant
contended that the officer supervising the controlled buy lacked sufficient personal knowledge to
testify because a body cavity search was not conducted prior to the controlled
buy. Our Supreme Court held that the officers thorough search of the
informant was sufficient for the officer to form the opinion that the informant
did not possess any contraband before she entered the residence.
With good cause, the propriety of searches of confidential informants
by officers of the opposite gender may be seriously questioned. However, such
procedure does not here dictate suppression of the evidence of the controlled buy.