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Durstock v. State

Court of Appeals of Indiana

December 4, 2018

Sebastian Durstock, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Dearborn Circuit Court The Honorable James D. Humphrey, Judge Trial Court Cause No. 15C01-1705-F2-7

          ATTORNEY FOR APPELLANT R. Patrick Magrath Madison, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

          TAVITAS, JUDGE.

         Case Summary

         [¶1] Sebastian Durstock appeals his conviction for dealing in a narcotic drug, a Level 2 felony. This case involves the analysis of the Fourth Amendment and exceptions to the warrant requirement. We affirm.[1]

         Issues

         [¶2] Durstock raises three issues, which we restate as:

I. Whether the trial court abused its discretion by admitting evidence found during a pat down search of Durstock.
II. Whether the evidence is sufficient to sustain Durstock's conviction for dealing in a narcotic drug, a Level 2 felony.
III. Whether Durstock's sentence is inappropriate.

         Facts

         [¶3] On the morning of January 13, 2017, Officer David Schwarz of the Lawrenceburg Police Department was dispatched to an apartment in Lawrenceburg regarding an unconscious female, later identified as Chyanne Thompson. Emergency medical services arrived at the same time as Officer Schwarz. They discovered Candy Gaylord giving Thompson chest compressions. Given Thompson's symptoms, Officer Schwarz suspected that Thompson had overdosed on opiates.

         [¶4] As the emergency medical personnel were assisting Thompson, Officer Schwarz heard water running in the bathroom. Officer Schwarz saw Durstock leave the bathroom and sit on the couch in the living room. Officer Schwarz talked to Gaylord and learned that Gaylord was the resident of the apartment. Gaylord gave Officer Bill Lynam permission to search the bathroom of the apartment, where he located a brown backpack. Gaylord and Durstock denied that the backpack belonged to them, and Gaylord gave the officer permission to search the backpack. Officer Lynam discovered a loaded handgun wrapped in a wet bandana, digital scales, men's clothing, and men's deodorant.

         [¶5] Durstock appeared to be "nervous and shaking and sweaty." Tr. Vol. II p. 102. After learning of the firearm, Officer Troy Cochran decided to perform a pat down search of Durstock for officer safety. Officer Cochran asked Durstock if Durstock "had anything that we needed to be concerned about." Id. at 103. Durstock removed a lighter, cigarettes, a cell phone, and lip balm from his pockets. Durstock put his hand in one of his pockets and removed his hand without removing anything from his pocket. Durstock's movements made Officer Schwarz suspicious, and he asked Durstock to stand for a pat down for weapons.

         [¶6] Officer Schwarz felt a "tubular object" in Durstock's pocket that was "consistent with being a syringe." Id. at 62. Officer Schwarz removed the item from Durstock's pocket and found that it was, in fact, a syringe. Officer Schwarz then arrested Durstock for possession of a hypodermic syringe. See Ind. Code § 16-42-19-18. Durstock was placed in handcuffs, and Officer Schwarz performed a search incident to the arrest. Officer Schwarz found several items in Durstock's pockets, including three bullets and a black bag that contained $331 in cash, rolling papers, and a plastic bag containing a white powder. The white powder was later identified as 6.06 grams of fentanyl.

         [¶7] After several amendments, the State ultimately charged Durstock with dealing in a narcotic drug, a Level 2 felony; possession of a narcotic drug, a Level 4 felony; and possession of a narcotic drug, a Level 5 felony. At Durstock's jury trial, Durstock objected to the admission of evidence found during the pat down search, and the trial court overruled the objection.[2] During the jury trial, several recorded jail telephone calls made by Durstock were admitted into evidence. In one of the calls, Durstock stated ...


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