De'Andrae Shawn Terrell Brannon, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

Memorandum Decision by Judge Tavitas Judges Vaidik and Felix concur.

Case Summary

[1] De'Andrae Brannon was convicted of conspiracy to commit dealing in cocaine, a Level 2 felony, and found to be an habitual offender. He argues that the State presented insufficient evidence to support his conviction for conspiracy to commit dealing in cocaine. We disagree and, accordingly, affirm.

Issue

[2] Brannon raises one issue, which we restate as whether sufficient evidence supports his conviction for conspiracy to commit dealing in cocaine.

Facts

[3] In June 2023, the Lafayette Police Department began investigating Brannon, also known as “Dre,” for suspected cocaine dealing. Tr. Vol. II p. 152. Brannon lived with his girlfriend, Theresa Holcomb, in an apartment at 826 North 7th Street in Lafayette (“7th Street Apartment”) and stored drugs at another nearby apartment located at 811 Union Street (“Union Street Apartment”). Brannon cooked powder cocaine into crack cocaine and packaged it for sale, with Holcomb's assistance.

[4] On June 7, 2023, the Lafayette Police Department conducted a controlled buy using a confidential informant (“CI”). Detective Michael Barthelemy met with the CI, searched him, provided him with $50 in prerecorded buy money, and equipped him with a transmitting device. Detective Barthelemy then drove the CI to the 7th Street Apartment, where the CI completed the transaction and returned with a bag containing a substance that later tested positive for 0.58 grams of cocaine. When the CI asked for Brannon's contact information, Brannon handed him a piece of a cardboard cigar wrapper bearing the name “Dre” and a phone number.

[5] On June 15, 2023, Detective Barthelemy arranged a second controlled buy. The same CI called the phone number Brannon had provided and arranged to purchase cocaine. After being searched, equipped with a transmitting device, and provided $100 in buy money, the CI met Brannon in a red van parked outside the apartment. The CI exchanged cash for a bag containing 0.96 grams of cocaine.

[6] On June 18, 2023, officers arrested Brannon and Holcomb. Brannon remained in custody, and Holcomb was released on bond later that day. While Brannon was incarcerated, Holcomb helped him to “r[u]n a biz.” Tr. Vol. II p. 214. On June 21, 2023, Detective Barthelemy conducted a third controlled buy directly with Holcomb using the same phone number previously provided by Brannon. Id. During the call, Holcomb identified herself as “Deandr[a]e's girl,” and asked Detective Barthelemy “what [he] get from [Deandrae].” Id. at 91. Detective Barthelemy purchased crack cocaine from Holcomb for $100, which later weighed 0.43 grams.

[7] On the morning of June 22, 2023, Brannon called Holcomb from the jail. During the call, they discussed the details of Holcomb's sale to Detective Barthelemy the previous day, including that Holcomb had shorted him. When Holcomb stated that she no longer wished to be involved and was done with it, Brannon insisted that she continue selling. Brannon also told Holcomb, without prompting, that there were “fourteen at the house,” located in the “cabinet,” and that the cocaine “needed to be cut open.” Ex. Vol. IV p. 35 (State's Ex. 20, 13:28–14:20).

[8] In the afternoon of June 22, 2023, Detective Barthelemy conducted a fourth controlled buy from Holcomb. Holcomb told Barthelemy by text message that “it would be a while because she was cooking the crack.” Tr. Vol. III p. 39. Detective Barthelemy then met Holcomb at the 7th Street Apartment. Holcomb was holding a sandwich bag containing rocks of crack cocaine, worth well over $100, and handed Detective Barthelemy three baggie corners. The substance was later confirmed to be crack cocaine weighing 1.13 grams.

[9] On July 26, 2023, police arrested Holcomb and executed search warrants at both apartments. At the 7th Street Apartment, officers found cash, digital scales, approximately 18 grams of spice, packing materials, and a spice pipe. During the search of the Union Street Apartment, police discovered a safe in a kitchen closet, two knotted baggies containing a cocaine-like substance, a large amount of cash, and mail addressed to both Brannon and Holcomb. The substance was later confirmed to be 13.43 grams of crack cocaine. Officers also recovered one of the $10 bills used in the June 15 controlled buy.

[10] On July 26, 2023, the State charged Brannon with seven offenses and alleged that he was an habitual offender. The charges included the following: Count I, conspiracy to commit dealing in cocaine, a Level 4 felony; Count II, dealing in cocaine, a Level 4 felony; Count III, possession of cocaine, a Level 6 felony; Count IV, invasion of privacy, a Class A misdemeanor; Count V, dealing in cocaine, a Level 4 felony; Count VI, possession of cocaine, a Level 6 felony; and Count VII, driving while suspended, a Class A misdemeanor.

[11] Two days later, the State amended Count I to charge Brannon with conspiracy to commit dealing in cocaine as a Level 2 felony. On July 16, 2024, the State further amended the information to add two additional counts of invasion of privacy, designated as Counts VIII and IX.

[12] Following a two-day bench trial in October 2024, the trial court found Brannon guilty of Counts I, IV, VII, VIII, and IX. The court did not enter judgments of conviction on Counts II, III, V, and VI. The court also found Brannon to be an habitual offender. For Count I, the trial court sentenced Brannon to twenty-four years, enhanced by eight years due to his habitual offender status. For Counts VII and VIII, the trial court imposed a one-year sentence for each, to run consecutively to Count I. For Counts IV and IX, the trial court imposed a one-year sentence on each, to run concurrently with the other counts. The convictions, thus, resulted in an aggregate sentence of thirty-four years in the Department of Correction. Brannon appeals his conviction on Count I only.

Discussion and Decision

[13] Brannon argues that the State presented insufficient evidence to support his conviction for Count I, conspiracy to commit dealing in cocaine, a Level 2 felony. Sufficiency of the evidence claims warrant a deferential standard of review in which we “neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the [fact-finder].” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024). A conviction is supported by sufficient evidence if “there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. In conducting this review, we consider only the evidence that supports the trial court's determination, not evidence that might undermine it. Id. We affirm the conviction “ ‘unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.’ ” Sutton v. State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).

[14] Indiana Code Section 35-48-4-1 provides:

(a) A person who:

(1) knowingly or intentionally:

(A) manufactures;

(B) finances the manufacture of;

(C) delivers; or

(D) finances the delivery of; ․

cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II;

commits dealing in cocaine or a narcotic drug, a Level 5 felony, except as provided in subsections (b) through (e).

* * * * *

(e) The offense is a Level 2 felony if: ․

(2) the amount of the drug involved is at least ten (10) grams; ․

(emphasis added). And Indiana Code Section 35-41-5-2 provides, “[a] person conspires to commit a felony when, with intent to commit the felony, the person agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of the same level as the underlying felony.”

[15] Indiana case law regarding conspiracy is well-settled. “The crime of conspiracy to commit a felony has three elements: ‘1) the intent to commit a felony, 2) an agreement with another person to commit a felony, and 3) an overt act, performed by either the defendant or the person with whom the defendant has entered into the agreement.’ ” Owens v. State, 929 N.E.2d 754, 756 (Ind. 2010) (quoting Jester v. State, 724 N.E.2d 235, 239 (Ind. 2000) (citing Ind. Code § 35-41-5-2)). In proving the elements of conspiracy, “[t]he State is not required to prove the existence of a formal express agreement to establish a defendant agreed to deal in cocaine.” Davis v. State, 142 N.E.3d 495, 502 (Ind. Ct. App. 2020). “The agreement as well as the requisite guilty knowledge and intent ‘may be inferred from circumstantial evidence alone, including overt acts of the parties in pursuance of the criminal act.’ ” Erkins v. State, 13 N.E.3d 400, 407 (Ind. 2014) (quoting Survance v. State, 465 N.E.2d 1076, 1080 (Ind. 1984)).

[16] Our Supreme Court in Owens, 929 N.E.2d at 756-57, explained that “the overt act need not rise to the level of a ‘substantial step’ required for an attempt to commit the felony” and “[a] defendant may therefore be convicted of a conspiracy to commit a felony without committing the felony and without even an attempt to commit it.” In dealing controlled substance crimes, “defendant's participation in discussions regarding trading cocaine for marijuana and giving instructions for where to deliver the marijuana was sufficient to establish conspiracy to deal in cocaine.” Id. at 757 (citing Hopper v. State, 539 N.E.2d 944, 946 (Ind. 1989)).

[17] Here, Brannon does not directly challenge his conviction for conspiracy; rather, he contends that the evidence was insufficient to establish that he committed the underlying offense of dealing in more than 10 grams of cocaine. He appears to argue that the State presented insufficient evidence to prove that he intended to deliver the cocaine. Specifically, Brannon contends that the underlying felony for the conspiracy charge was the “delivery,” not the “possession” of cocaine exceeding ten grams and that he therefore did not intend to “deliver” the amount found in the Union Street Apartment. Appellant's Br. pp. 20-22. We disagree.

[18] The State charged Brannon with conspiring with Holcomb to deliver the cocaine they possessed, which exceeded ten grams. The distinction between possession and delivery is immaterial to a conspiracy conviction because a conspiracy does not require completion of the underlying felony. Erkins, 13 N.E.3d at 408.

[19] Brannon further asserts that only the “small amounts” from the four controlled buys were actually “delivered,” which, when aggregated, totaled less than ten grams.¹ Appellant's Br. pp. 20, 22. We again disagree. Brannon was charged with conspiracy, not with completing the underlying substantive offense, and the conspiracy charge necessarily encompassed the amount he and his co-conspirator intended to sell.

[20] Here, the State presented twenty-five pieces of physical and digital evidence from four controlled buys, including the cocaine purchased from Brannon and Holcomb, a phone number provided by Brannon, the marked bills used in the transactions, video recordings, and lineup identifications of both Brannon and Holcomb. Further, the State presented evidence of recordings of multiple conversations between Brannon and Holcomb regarding the drug buys over the jail phone line. It is undisputed that 13.43 grams of crack cocaine were found in Brannon's Union Street Apartment and that Brannon and Holcomb discussed and agreed to, during recorded jail calls, the sale of the crack cocaine. Holcomb later followed through with the plan by selling cocaine to Detective Barthelemy during the fourth controlled buy.

[21] Brannon's phone calls with Holcomb clearly demonstrate his intent and their agreement to sell the crack cocaine found in the safe at the Union Street apartment. On June 22, Brannon told Holcomb, without prompting, that there were “fourteen [grams]” of cocaine “at the house” and in the “cabinet.” Ex. Vol. IV p. 35 (State's Ex. 20, 13:28–14:20). When Holcomb asked why Brannon had not informed her earlier, Brannon replied that he thought he would be released soon, indicating he planned to sell the cocaine himself. Later in their conversation, when Holcomb expressed excitement upon hearing about the “fourteen” grams, Brannon told her that the cocaine “needed to be cut.” Id. A subsequent police search on July 26 uncovered a substance matching Brannon's description of both the quantity and location inside the Union Street Apartment. Police later confirmed that the Union Street apartment was used by both Brannon and Holcomb to store the cocaine. This was evidenced by mail addressed to Brannon and Holcomb and a ten-dollar bill—bearing the serial number used in the second controlled buy—found inside the apartment.

[22] The final controlled buy established that Holcomb, as Brannon's co-conspirator, engaged in an overt act in furtherance of their plan by selling the cocaine stored at the Union Street Apartment. The final buy occurred after Brannon informed Holcomb of the “fourteen” grams of cocaine. Detective Barthelemy texted the phone number that Brannon had provided during the first controlled buy, and Holcomb replied that she would be late because she was “cooking” the cocaine. Tr. Vol. III p. 39. Video footage shows Holcomb arriving and holding “a sandwich bag full” of “cocaine rocks” in her hands while speaking with Detective Barthelemy. Id. at 43.

[23] Brannon's arguments merely request us to reweigh the evidence by disregarding certain portions of the evidence and crediting others, which we cannot do. Boner v. State, 243 N.E.3d 354, 363 (Ind. Ct. App. 2024) (reiterating that sufficiency review does not permit the appellate court to reweigh evidence or judge witness credibility). The evidence, thus, is sufficient for the trial court to reasonably conclude that Brannon and Holcomb conspired to sell more than 10 grams cocaine.

Conclusion

[24] Sufficient evidence supports Brannon's conviction. Accordingly, we affirm.

[25] Affirmed.

FOOTNOTES

1.   Brannon appears to acknowledge the distinction between a substantive offense charge and a conspiracy charge. In his brief, he notes that “[a] conspiracy to commit a felony is a distinct offense from the contemplated felony,” and that “[a] defendant may be convicted of a conspiracy to commit a felony without committing a felony and without even attempting to commit it.” Appellant's Br. p. 19. Brannon, however, abandons this line of reasoning and reverts to his argument regarding the insufficient amount of cocaine “deliver[ed].” Id.

Tavitas, Judge.

Vaidik, J., and Felix, J., concur.