Erin C. Unger v. State of Indiana (mem. dec.)
12A02-1611-CR-2555
| Ind. Ct. App. | Jul 12, 2017Background
- Erin Unger lived in a house owned by her father; neighbors reported heavy traffic and police conducted surveillance in August 2015.
- Detective Hackerd observed suspected drug transactions and saw Ryan Lukasik leaving Unger’s home with a bag that appeared to contain “spice.” Lukasik was taken to the station, made a recorded statement, and cooperated with police.
- Officers obtained a search warrant; in the ensuing search they found a Ziplock bag on the kitchen counter, multi-colored smoking pipes in Unger’s bedroom, a safe smelling of marijuana, and additional bags concealed in a basement wall.
- Lab testing of the kitchen bag (33.62 g) and a basement bag (3.77 g) detected Fluoro AMB (a synthetic cannabinoid not listed as a controlled substance).
- Unger was charged with dealing in a synthetic drug or synthetic drug lookalike (Level 6 felony), possession of a synthetic drug or lookalike (Class A misdemeanor), and possession of paraphernalia (Class C misdemeanor); she moved to suppress the search evidence but the trial court denied the motion.
- After a jury trial Unger was convicted on all counts and sentenced to 12 months (10 months suspended); on appeal she argued (1) the warrant/evidence was admitted in error and (2) the evidence was insufficient to support convictions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Unger) | Held |
|---|---|---|---|
| Validity of search warrant/admission of evidence | Warrant was supported by Lukasik’s statements plus corroborating observations (suspected spice on Lukasik, neighbor complaints, observed exchange at house) | Warrant rested solely on unreliable hearsay from Lukasik who received leniency; no independent corroboration, so affidavit lacked probable cause | Trial court didn’t abuse discretion; totality of circumstances (corroboration) supplied probable cause, evidence admissible |
| Sufficiency of possession evidence | Lab showed Fluoro AMB in kitchen bag; bag was in plain view in Unger’s residence; text from Unger and proximity supported constructive possession | No direct proof Unger owned the bag; Fluoro AMB is not a controlled substance and could be fertilizer | Evidence sufficient for constructive possession of a synthetic drug lookalike under statutory factors; conviction affirmed |
| Sufficiency of dealing evidence (intent to deliver; >5 g) | Over 30 g found in kitchen bag; testimony and texts showed purchases/delivery activity at Unger’s residence supporting intent to deliver | No witness directly saw Unger sell; purchaser testimony inconsistent and implicated others | Credibility/resolution of conflicts for jury; sufficient evidence to infer dealing and intent; conviction affirmed |
| Sufficiency of paraphernalia conviction | Pipes were in plain view in Unger’s bedroom, with burnt residue observed; coupled with drug evidence, inference of intent to use supported | Pipes not tested and not shown to be within Unger’s control | Constructive possession and intent to use may be inferred from circumstances; evidence sufficient; conviction affirmed |
Key Cases Cited
- Utley v. State, 589 N.E.2d 232 (Ind. 1992) (probable cause standard for search warrants)
- Houser v. State, 678 N.E.2d 95 (Ind. 1997) (statements against penal interest can establish informant credibility)
- Hirshey v. State, 852 N.E.2d 1008 (Ind. Ct. App. 2006) (informant’s statements offered for leniency may not be against penal interest; lack of corroboration can defeat probable cause)
- Gee v. State, 810 N.E.2d 338 (Ind. 2004) (constructive possession: possessory interest in premises supports capability to control contraband)