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Johnson v. State

Court of Appeals of Indiana

March 3, 2014

CORNELL JOHNSON, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Editorial Note:

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 ST. JOSEPH SUPERIOR COURT. The Honorable John M. Marnocha, Judge. Cause No. 71D02-1211-FB-153.

ATTORNEY FOR APPELLANT: JEFFREY E. KIMMELL, South Bend, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, ANDREW R. FALK, Deputy Attorney General, Indianapolis, Indiana.

BAKER, Judge. NAJAM, J., and CRONE, J., concur.

OPINION

MEMORANDUM DECISION -- NOT FOR PUBLICATION

BAKER, Judge.

An informant, who was paid by the police for completing drug transactions and testifying against defendants, engaged in a controlled buy of cocaine from appellant-defendant Cornell Johnson. Johnson challenges the sufficiency of the evidence following his convictions for Maintaining a Common Nuisance,[1] a class D felony, and Dealing in Cocaine,[2] a class B felony. Johnson argues that the identification procedure that the police used and the fact that the informant had a financial incentive contingent upon producing evidence of a cocaine purchase, rendered his testimony inherently improbable and incredibly dubious. Thus, Johnson claims that his convictions must be set aside. Finding the evidence sufficient, we affirm the judgment of the trial court.

FACTS

Jamian Stewart has worked as a confidential informant for the South Bend Metro Special Operations Sections (MSOS) since 2009. He began working for MSOS because he knew about local narcotics activity and has participated in more than twenty-five narcotics buys. Stewart has performed this type of work for income, in that he received twenty dollars for a contact that could potentially result in a drug sale, and fifty dollars if he participated in a controlled buy.

Investigator Robert " Bert" Wise, an officer with MSOS, is Stewart's " handler." Tr. p. 125, 147. At some point, MSOS received reports that a residence on Durham Street in South Bend was being used as a " drug house." Tr. p. 160, 164, 177. Wise conducted surveillance on the house for about four days and saw some " short-stay" traffic, with people frequently arriving and leaving. Id. at 164, 177, 179-81.

On October 29, 2012, Officer Wise and Sergeant Erik Beckum arranged for Stewart to go to the residence and purchase cocaine from an individual known as " Pappa." Id. at 125-26, 158-59. Stewart had not previously met Pappa and therefore did not have anything against this individual. Before Stewart went to the residence, Officer Wise searched Stewart to insure that he did not have any currency, narcotics, or weapons on him. Officer Wise gave Stewart twenty dollars and fitted him with an audio recording device. Officer Wise drove Stewart to a spot about a block from the residence and Stewart walked the rest of the way. Stewart approached the residence and knocked on a side door. Officer Wise moved his vehicle so that he could continue to watch Stewart.

A young black male answered the door and Stewart asked if Pappa was available. Stewart identified himself as " Jay." Tr. p. 128. The young man led Stewart to the basement. Pappa, whom Stewart subsequently identified as Johnson, emerged from a bedroom, stood face-to-face with Stewart, and asked whet he needed. Stewart answered that he needed a " twenty," which Stewart knew meant twenty dollars' worth of cocaine. Johnson took the money from Stewart, went to a side room, and returned with a small baggie that contained a white, rock-like substance that he handed to Stewart. Stewart thanked Johnson, promised to contact him again, and ...


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