MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jan 02 2018, 8:32 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Curtis T. Hill, Jr. Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Thomas, January 2, 2018
Appellant-Defendant, Court of Appeals Case No. 91A02-1704-CR-872 v. Appeal from the White Superior Court. The Honorable Robert B. Mrzlack, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 91D01-1605-F2-65
Friedlander, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 1 of 7 [1] Michael Thomas appeals after being convicted of one count of dealing in 1 2 cocaine, as a Level 2 felony, and one count of possession of marijuana, as a
Class B misdemeanor, contending that there is insufficient evidence to support
his conviction of dealing in cocaine. He does not challenge his conviction of
possession of marijuana. We affirm.
[2] On May 3, 2016, Antonio Lawrence was driving a vehicle in which Thomas
was a passenger when a Brookston police officer pulled the vehicle over. After
the officer approached, Lawrence sped away.
[3] A short time later, at approximately six o’clock in the evening when it was still
light out, police received a 911 call from a concerned homeowner in Brookston.
He went to the window of his home to investigate why his dog was barking.
The homeowner indicated that there was a slender male he had never seen
before crouched down near the shed in his yard. He also observed a vehicle
parked in the alley at the end of his driveway. Thomas was ultimately arrested
at that location.
[4] An officer responding to the call looked in the area where Thomas was found
and discovered two bags of what appeared to be narcotics next to the fence
1 Ind. Code § 35-48-4-1(a), (e) (2014). 2 Ind. Code § 35-48-4-11(a)(1) (2014).
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 2 of 7 inside the yard. The officer described the bags as “fresh” because they were
neither wet, nor covered in dirt. Tr. Vol. II, p. 59.
[5] The bags contained two observably different substances. The first bag appeared
to contain marijuana based upon the color of the substance and the strong odor.
The second bag contained twenty-one smaller baggies, each containing a white,
rocky substance. Eighteen of the twenty-one baggies were approximately the
size of a tooth. The other three baggies contained large pieces of the white
substance approximately the size of a quarter. Subsequent testing of the white,
rocky substance revealed that it was cocaine weighing almost seventeen grams
in the aggregate.
[6] After Thomas was handcuffed, an officer conducted a pat-down search during
which the officer found eleven dollars in Thomas’ pocket. However, when
Thomas was being processed at the jail, jail deputies found $800 in Thomas’
right shoe between his foot and the sole of the shoe.
[7] The State charged Thomas with dealing in cocaine, possession of cocaine,
resisting law enforcement, and possession of marijuana. While Thomas was
incarcerated on those pending charges, he placed a telephone call on May 11,
2016, which was recorded by the jail. Thomas intimated during the telephone
call that Lawrence might have set him up. He stated that Lawrence directed
him to carry the drugs. After the fact, Thomas stated that he wanted to leave
the drugs somewhere and blamed Lawrence for not helping him hide the drugs.
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 3 of 7 [8] Additionally, during the call, Thomas used coded words, indicating the amount
of cocaine and money in his possession at the time of the stop. Lawrence
testified against Thomas at trial and explained the meaning of the drug-related
or coded words used during the recorded call Thomas made at jail. He also
testified that he had been selling cocaine with Thomas and that he knew
Thomas possessed the drugs when the car was stopped by the officer.
[9] Thomas’ jury trial began on February 28, 2017, and ended on March 2, 2017.
The jury found Thomas guilty of possession of marijuana, as a Class B
misdemeanor, and dealing in cocaine, as a Level 2 felony. Thomas now
appeals.
[10] Thomas contends that there is insufficient evidence to support his conviction.
Upon review of a sufficiency of the evidence claim, we evaluate the probative
evidence and the reasonable inferences supporting the verdict. Love v. State, 73
N.E.3d 693 (Ind. 2017). We do not reassess the credibility of witnesses or
reweigh the evidence. Id. We will affirm the conviction unless no reasonable
fact-finder could find that the crime was proven beyond a reasonable doubt. Id.
If a conviction is based on circumstantial evidence, that evidence need not
overcome every reasonable hypothesis of innocence. Moore v. State, 652 N.E.2d
53 (Ind. 1995). It is sufficient if an inference reasonably tending to support the
verdict can be drawn from the circumstantial evidence. Id.
[11] To establish that Thomas had committed the criminal offense of dealing in
cocaine as a Level 2 felony, the State was required to prove beyond a
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 4 of 7 reasonable doubt that Thomas knowingly possessed at least ten grams of
cocaine with the intent to deliver. Ind. Code § 35-48-4-1.
[12] A conviction for possession of contraband may be based on evidence of actual
or constructive possession. Griffin v. State, 945 N.E.2d 781 (Ind. Ct. App. 2011).
The two differ in that actual possession occurs when a defendant has direct
physical control over an item, whereas constructive possession occurs when the
defendant has the intent and capability to maintain dominion and control over
the item. Id.
[13] In cases involving constructive possession, the State must establish a
defendant’s knowledge of the presence of the contraband to prove intent to
possess. Thompson v. State, 966 N.E.2d 112 (Ind. Ct. App. 2012), trans. denied.
Knowledge may be inferred from exclusive dominion and control over the
premises containing the contraband. Ables v. State, 848 N.E.2d 293 (Ind. Ct.
App. 2006). If the control is non-exclusive, then knowledge may be inferred
from additional circumstances pointing to the defendant’s knowledge of the
presence of the contraband. Id. Some examples of the ways knowledge has
been inferred include the following: (1) incriminating statements by the
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jan 02 2018, 8:32 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Curtis T. Hill, Jr. Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Thomas, January 2, 2018
Appellant-Defendant, Court of Appeals Case No. 91A02-1704-CR-872 v. Appeal from the White Superior Court. The Honorable Robert B. Mrzlack, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 91D01-1605-F2-65
Friedlander, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 1 of 7 [1] Michael Thomas appeals after being convicted of one count of dealing in 1 2 cocaine, as a Level 2 felony, and one count of possession of marijuana, as a
Class B misdemeanor, contending that there is insufficient evidence to support
his conviction of dealing in cocaine. He does not challenge his conviction of
possession of marijuana. We affirm.
[2] On May 3, 2016, Antonio Lawrence was driving a vehicle in which Thomas
was a passenger when a Brookston police officer pulled the vehicle over. After
the officer approached, Lawrence sped away.
[3] A short time later, at approximately six o’clock in the evening when it was still
light out, police received a 911 call from a concerned homeowner in Brookston.
He went to the window of his home to investigate why his dog was barking.
The homeowner indicated that there was a slender male he had never seen
before crouched down near the shed in his yard. He also observed a vehicle
parked in the alley at the end of his driveway. Thomas was ultimately arrested
at that location.
[4] An officer responding to the call looked in the area where Thomas was found
and discovered two bags of what appeared to be narcotics next to the fence
1 Ind. Code § 35-48-4-1(a), (e) (2014). 2 Ind. Code § 35-48-4-11(a)(1) (2014).
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 2 of 7 inside the yard. The officer described the bags as “fresh” because they were
neither wet, nor covered in dirt. Tr. Vol. II, p. 59.
[5] The bags contained two observably different substances. The first bag appeared
to contain marijuana based upon the color of the substance and the strong odor.
The second bag contained twenty-one smaller baggies, each containing a white,
rocky substance. Eighteen of the twenty-one baggies were approximately the
size of a tooth. The other three baggies contained large pieces of the white
substance approximately the size of a quarter. Subsequent testing of the white,
rocky substance revealed that it was cocaine weighing almost seventeen grams
in the aggregate.
[6] After Thomas was handcuffed, an officer conducted a pat-down search during
which the officer found eleven dollars in Thomas’ pocket. However, when
Thomas was being processed at the jail, jail deputies found $800 in Thomas’
right shoe between his foot and the sole of the shoe.
[7] The State charged Thomas with dealing in cocaine, possession of cocaine,
resisting law enforcement, and possession of marijuana. While Thomas was
incarcerated on those pending charges, he placed a telephone call on May 11,
2016, which was recorded by the jail. Thomas intimated during the telephone
call that Lawrence might have set him up. He stated that Lawrence directed
him to carry the drugs. After the fact, Thomas stated that he wanted to leave
the drugs somewhere and blamed Lawrence for not helping him hide the drugs.
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 3 of 7 [8] Additionally, during the call, Thomas used coded words, indicating the amount
of cocaine and money in his possession at the time of the stop. Lawrence
testified against Thomas at trial and explained the meaning of the drug-related
or coded words used during the recorded call Thomas made at jail. He also
testified that he had been selling cocaine with Thomas and that he knew
Thomas possessed the drugs when the car was stopped by the officer.
[9] Thomas’ jury trial began on February 28, 2017, and ended on March 2, 2017.
The jury found Thomas guilty of possession of marijuana, as a Class B
misdemeanor, and dealing in cocaine, as a Level 2 felony. Thomas now
appeals.
[10] Thomas contends that there is insufficient evidence to support his conviction.
Upon review of a sufficiency of the evidence claim, we evaluate the probative
evidence and the reasonable inferences supporting the verdict. Love v. State, 73
N.E.3d 693 (Ind. 2017). We do not reassess the credibility of witnesses or
reweigh the evidence. Id. We will affirm the conviction unless no reasonable
fact-finder could find that the crime was proven beyond a reasonable doubt. Id.
If a conviction is based on circumstantial evidence, that evidence need not
overcome every reasonable hypothesis of innocence. Moore v. State, 652 N.E.2d
53 (Ind. 1995). It is sufficient if an inference reasonably tending to support the
verdict can be drawn from the circumstantial evidence. Id.
[11] To establish that Thomas had committed the criminal offense of dealing in
cocaine as a Level 2 felony, the State was required to prove beyond a
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 4 of 7 reasonable doubt that Thomas knowingly possessed at least ten grams of
cocaine with the intent to deliver. Ind. Code § 35-48-4-1.
[12] A conviction for possession of contraband may be based on evidence of actual
or constructive possession. Griffin v. State, 945 N.E.2d 781 (Ind. Ct. App. 2011).
The two differ in that actual possession occurs when a defendant has direct
physical control over an item, whereas constructive possession occurs when the
defendant has the intent and capability to maintain dominion and control over
the item. Id.
[13] In cases involving constructive possession, the State must establish a
defendant’s knowledge of the presence of the contraband to prove intent to
possess. Thompson v. State, 966 N.E.2d 112 (Ind. Ct. App. 2012), trans. denied.
Knowledge may be inferred from exclusive dominion and control over the
premises containing the contraband. Ables v. State, 848 N.E.2d 293 (Ind. Ct.
App. 2006). If the control is non-exclusive, then knowledge may be inferred
from additional circumstances pointing to the defendant’s knowledge of the
presence of the contraband. Id. Some examples of the ways knowledge has
been inferred include the following: (1) incriminating statements by the
defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing
setting; (4) proximity of the contraband to the defendant; (5) location of the
contraband within the defendant’s plain view; and (6) the mingling of the
contraband with other items owned by the defendant. Id. The element of
capability is established if the State shows that the defendant is able to reduce
the controlled substance to his personal possession. Id.
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 5 of 7 [14] Here, the State’s evidence established Thomas’ actual and constructive
possession of the cocaine. First, Lawrence testified that he had been dealing
drugs with Thomas and that he knew Thomas possessed the cocaine at the time
of the traffic stop. Further, evidence of Thomas’ telephone calls from the jail
confirmed his possession of the contraband. He expressed his displeasure with
Lawrence’s insistence that he keep the cocaine with him instead of leaving it
where they had been staying and for failing to help him hide the contraband.
Coded words used by Thomas, that were later explained by Lawrence,
indicated how much cocaine Thomas had in his possession. The coded
terminology used by Thomas roughly equates to the amount of cocaine
recovered by police.
[15] Thomas also raises an incredible dubiosity argument regarding Lawrence’s
testimony. That argument is limited to cases where: (1) there is a sole
testifying witness; (2) the testimony is inherently contradictory, equivocal, or
the result of coercion; and (3) there is a complete absence of circumstantial
evidence. Smith v. State, 34 N.E.3d 1211 (Ind. 2015).
[16] Circumstantial evidence presented to the jury reflected that Thomas fled from
police officers and hid by a shed in an unknown homeowner’s yard near where
the discarded contraband was located in a “fresh” condition. Thomas was the
only person found in the homeowner’s fenced backyard. Evidence of flight is
competent evidence to illustrate a consciousness of guilt, but the weight to be
attributed to that evidence is for the trier of fact. Myers v. State, 27 N.E.3d 1069
(Ind. 2015). Evidence of an attempt to avoid arrest tends to show guilt. Id.
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 6 of 7 [17] Thomas was the only person found in the homeowner’s fenced yard. Lawrence
testified that he fled the car in a different direction. An officer described bags of
contraband found in the backyard near where Thomas was crouched as “fresh”.
Further, although only eleven dollars was found in Thomas’s pocket, $800 was
found between his right foot and the sole of his shoe. Possession of a large
amount of money is circumstantial evidence of intent to deliver. Wilson v. State,
754 N.E.2d 950 (Ind. Ct. App. 2001). Thomas has not established that
Lawrence’s testimony is subject to attack for incredible dubiosity.
[18] There is sufficient evidence to support Thomas’ conviction for possession with
intent to deliver cocaine.
[19] Judgment affirmed.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018 Page 7 of 7