HERIBERTO M. ANDRADE, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE ELKHART CIRCUIT COURT. The Honorable Terry Shewmaker, Judge. Cause No. 20C01-0611-FA-95.
ATTORNEY FOR APPELLANT: AMY D. GRINER, Griner & Company, Mishawaka, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; MICHAEL GENE WORDEN, Deputy Attorney General, Indianapolis, Indiana.
FRIEDLANDER, Judge. KIRSCH, J., and BAILEY, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Heriberto M. Andrade appeals his conviction of Dealing in Cocaine Weighing Three Grams or More, as a class A felony, and two counts of Dealing in Cocaine, both as class B felonies. Andrade also appeals the sentence he received for those convictions. He presents the following restated issues for review:
1. Was the out-of-court identification of Andrade impermissibly suggestive?
2. Did the trial court abuse its discretion in finding improper aggravating circumstances?
3. Was Andrade's sentence inappropriate in light of his character and the nature of his offenses?
The facts favorable to Andrade's convictions are that, on November 9, 2006, officers of the Elkhart County Interdiction and Covert Enforcement Unit (ICE) arranged with a confidential informant (CI) to make a controlled-buy purchase of cocaine at 1313 South Ninth Street in Goshen, Indiana. The CI drove Officer Gorball to the Ninth Street address. After they arrived, the CI went to the door of that residence, knocked, and then returned to the vehicle. Andrade eventually came out to the CI's vehicle and, standing outside the vehicle and with his face in Officer Gorball's view, said he had a gram to sell. Andrade then handed the CI .68 grams of cocaine in a baggie. Officer Gorball gave Andrade $40 in marked money. The CI drove away. Shortly thereafter, Detective Jeffrey Eaton ...