Indiana Court of Appeals judges split in a decision regarding low-level drug offenses after a Shelbyville man selling meth to someone undercover was convicted of corrupt business influence.
Jesse Atwood was convicted of Level 5 felony corrupt business influence after selling methamphetamine to a confidential informant at least four times within a two-month period in 2018.
Atwood was later charged with dealing in methamphetamine as a Level 3 felony, four counts of dealing in methamphetamine as Level 4 felonies, and corrupt business influence as a Level 5 felony.
He was ultimately found guilty of the Level 5 felony dealing and corrupt business influence charges, but not guilty of dealing as a Level 3 felony. The Shelby Superior Court also found him to be a habitual offender, sentencing him to an aggregate 11 years with one year suspended.
The Indiana Court of Appeals split in a Monday decision on Atwood’s appeal, with the majority affirming his convictions in Jesse E. Atwood v. State of Indiana, 20A-CR-02391.
“Here, Atwood’s four methamphetamine transactions constituted a pattern of racketeering activity under Ind. Code § 35-45-6-1 and -2, which he does not dispute. Indeed, the court as the fact-finder could reasonably infer that the crimes were not isolated or sporadic,” Judge Elaine Brown wrote for the majority.
“Atwood sold methamphetamine on four occasions from two residences and, during the most recent meeting with the CI, made a comment that he was ‘gonna go buy a zip . . . and try and flip it.’ The trier of fact could reasonably conclude based on the nature of the crimes and Atwood’s conduct and comments that the criminal activity would have likely continued had it not been interrupted,” Brown wrote.
The majority concluded that the state presented evidence of probative value from which a reasonable trier of fact could find beyond a reasonable doubt that Atwood, through a pattern of racketeering activity, knowingly or intentionally acquired or maintained an interest in or control of property.
Dissenting in a separate opinion, Judge Nancy Vaidik pointed out that Section 35-45-6-2(2) applies when a person acquires or maintains “an interest in or control of property or an enterprise” through a pattern of racketeering activity.
“As the majority notes, the statute used to say ‘an interest in or control of real property or an enterprise,’ but in 1991 the legislature removed the word ‘real.’ The majority, relying on our criminal code’s general definition, concludes that ‘property’ under Section 35-45-6-2(2) includes any amount of money obtained in a drug deal. I disagree,” Vaidik opined.
As such, the dissenting judge said she believes that word “property” under the Federal Racketeer Influenced and Corrupt Organizations Act should not be construed to include the small amount of cash that changes hands in a garden-variety drug deal.
“Or, to put it in meth terms, RICO is meant for people at or near the top of the chain of command, like Walter White in Breaking Bad, not a small-scale peddler at the bottom, like Atwood,” Vaidik wrote, adding that applying the RICO statute in a case like Atwood’s “is directly contrary to the 2013 legislation that significantly reduced sentences for low-level drug offenses.”