MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 27 2018, 8:58 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ana M. Quirk Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
William O. Jackson, March 27, 2018 Appellant-Defendant, Court of Appeals Case No. 18A05-1709-CR-2166 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Thomas A. Cannon, Jr., Judge Trial Court Cause No. 18C05-1605-F2-5
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 1 of 19 [1] William O. Jackson (“Jackson”) appeals his convictions following a jury trial
for Level 3 felony aggravated battery1 and Level 2 felony aiding, inducing, or
causing another person to deal a narcotic drug.2 On appeal, Jackson raises the
following consolidated and restated issues:
I. Whether there was sufficient evidence to support his conviction for Level 3 felony aggravated battery; and
II. Whether there was sufficient evidence to support his conviction for Level 2 felony aiding, inducing, or causing another person to deal a narcotic drug.
[2] We affirm.
Facts and Procedural History [3] In the early morning hours of May 6, 2016, Jackson and James Tabb (“Tabb”)
drove a passenger van from Muncie, Indiana, to Chicago, Illinois, to pick up
George Neloms (“Neloms”). Neloms, who had known Tabb for about thirty
years and Jackson for about a year, was moving to Muncie. In fact, he had
previously moved his belongings to Muncie and was storing them in Jackson’s
residence.
[4] Jackson and Tabb picked up Neloms around 7:00 a.m., and the three went to
buy drugs. Tabb got out of the van and bought heroin from a dealer with “curb
1 See Ind. Code § 35-42-2-1.5. 2 See Ind. Code §§ 35-48-4-1(a)(1), (e)(1), 35-41-2-4.
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 2 of 19 service.”3 Tr. Vol. II at 102. The transaction was visible to Jackson and
Neloms, who stayed inside the van. When Tabb got back into the van, he
poured some heroin onto a saucer, crushed it, and the three men snorted the
heroin. On the drive back to Muncie, Tabb stopped at a gas station, where the
men got gas and snacks and, again, snorted heroin. Jackson then drove the van
the rest of the way to Muncie.
[5] In May 2016, Michele Knight (“Knight”), a Muncie native, was acquainted
with Tabb and bought drugs from him about five times a week. During the
May 6 road trip, Knight called Tabb repeatedly to find out when the drugs
would arrive in Muncie, saying that she wanted $100 worth of heroin. At one
point, Jackson spoke with Knight and told her, “I’m on my way.”4 State’s Ex.
110 at 14:57-15:06. The three men arrived in Muncie mid-afternoon of May 6,
and Jackson drove the van straight to Knight’s residence, which was near a
motel parking lot in Delaware County, Indiana. Knight entered the van, gave
money to Jackson, and Jackson handed her some heroin. State’s Ex. 110 at
15:15-15:35. After Knight exited the van, others in the parking lot entered the
van one at a time to buy their heroin.
3 At trial, George Neloms testified, “[T]hey got spots [in Chicago], it’s different than here it’s like curb service, you get out the truck, you asked how many you want, you have your money out and unfolded, one guy search you, another guy bring you the stuff, you get it, you take off.” Tr. Vol. II at 102. 4 Although Knight and Neloms testified at trial that Knight only called Tabb during the trip to Muncie, Tr. Vol. II at 85-86, 145-46, Jackson admitted during a recorded police interview, which was admitted at trial, that Knight also spoke to him about buying drugs. State’s. Ex. 110 at 3:35-4:15, 15:00-16:00.
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 3 of 19 [6] Knight had previously informed Muncie Police Department (“MPD”) Officer
Tyler Swain (“Officer Swain”) that a shipment of heroin was coming into
Muncie from Chicago on May 6; however, she did not provide information as
to who was bringing the drugs or when. Officer Swain recruited other officers
to aid in the surveillance of Knight’s residence, including MPD Officers Keith
Benbow (“Officer Benbow”), Richard Howell (“Officer Howell”), and Bret
Elam (“Officer Elam”). Unbeknownst to Jackson and his two companions,
Knight’s residence was under surveillance by the MPD Narcotics Unit when
Jackson pulled Tabb’s van into the parking lot.
[7] Officer Elam was watching Knight’s residence from a parking lot across the
street when he saw the van stop near Knight’s residence and observed Tabb exit
the van. Officer Elam recognized Tabb because the Narcotics Unit had been
investigating him for several months and had previously conducted controlled-
buy operations with Tabb as the target. Officer Elam saw various individuals
go in and out of the van. About ten minutes later, the van left the parking lot.
Officer Elam alerted the other officers who were on their way to the scene that
the van was on the move. On May 6, Officer Howell, a canine handler, was the
only one of the four officers who was in uniform and driving a marked police
vehicle. The other three officers were working undercover.
[8] Officers Benbow, Howell, and Swain, each driving separate vehicles, drove
toward the van’s expected route and converged on the van around the same
time. Officer Howell followed the van, turned on his emergency lights, and
pulled the van to the side of the road. With his weapon drawn, Officer Howell
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 4 of 19 exited his police vehicle and called to the occupants of the van to “show their
hands.” Tr. Vol. II at 161. Before Officer Howell could reach the driver’s door,
and without warning, the van moved forward, prompting Officer Howell to
return to his cruiser and activate the siren. The van moved twenty to thirty
yards and stopped. Officer Howell again exited his car with his weapon drawn.
Reaching the driver side door, he ordered the occupants to show their hands.
Officer Howell could see Jackson and Tabb in the front seat, but because the
back windows were tinted, Officer Howell had to open the driver side door to
see Neloms. While Officer Howell was still ordering the men to show their
hands and get out of the van, Jackson suddenly put the van into drive and sped
away at a “high rate of speed.” Id. at 163. Officer Howell returned to his
vehicle and pursued the van.
[9] Before the van sped off, and while Officer Howell was dealing with Jackson,
Officers Benbow and Swain had exited their vehicles, and both had moved
toward the passenger side of the van. Officer Benbow was near the front
passenger-side window, and Officer Swain was near the back passenger-side
window. The undercover officers could see three men in the van; however, the
tinted back windows obscured some of their view. Officers Benbow and Swain
ordered Tabb and Neloms to keep their hands in the air, which they did. While
Officer Benbow was watching Tabb, Officer Swain saw a “furtive” movement”
in the back seat. Tr. Vol. III at 14. Thinking Neloms might be reaching for a
gun, Officer Swain tried to open the back door, but it was locked. Officer
Swain’s attempt to enter the van caught Neloms’s attention, and Neloms again
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 5 of 19 reached down. Concerned for his safety, and wanting to unlock the van door to
get a visual on what Neloms was reaching for, Officer Swain stepped up on the
van’s running boards and tried, without success, to break the back-passenger
window with the butt of his gun. Still on the running boards and yelling, “let
me see your hands,” Officer Swain felt a “giant jerk and the van ha[d] just
completely taken off.” Id. at 16. Seeing the van moving, Officers Howell and
Benbow sprinted back to their cars and pursued the van.
[10] Not able to get Jackson’s attention, Officer Swain moved along the running
boards to the front passenger-side window. Officer Swain was clinging to the
outside of the van with his left hand, banging on the front window with his gun
in his right hand, and calling to Jackson to stop the van. Jackson looked
straight at Officer Swain and, ignoring his pleas to stop, continued to accelerate
down the road. Id. at 17-18. Officer Swain then pointed his gun at Jackson
through the closed front passenger-side window and again yelled “please stop
I’ll shoot, I’ll shoot, I’ll shoot, please stop.” Id. at 18. When Jackson continued
to drive faster, Officer Swain fired multiple shots at Jackson, breaking the front
passenger-side window and hitting Jackson in the arm. This caused the van to
swerve, throwing Officer Swain off the van, as it continued down the road.
Officer Swain hit his head on the pavement and “kinda blacked out” as he slid
across the road and landed in a yard near a large tree. Id. at 19-20.
[11] Officers Howell and Benbow, still following behind the van, stopped to see if
Officer Swain needed help. Officer Swain motioned for them to continue
pursuing the van, which they did. As Officer Benbow continued his pursuit, he
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 6 of 19 found Neloms lying on the ground at an intersection with three bags of heroin
nearby. The Indiana State Police Lab determined that these three bags
contained “adulterated heroin weighing 29.71 [grams].” State’s Ex. 108; Tr. Vol.
II at 16. Neloms had jumped out of the van just before Jackson and Tabb
abandoned it in the middle of the street. Officer Howell saw Tabb running
from the van and, with the help of his police dog and Officer Elam, he
apprehended Tabb. Afterward, Officer Howell followed a blood trail from the
driver’s seat of the van and found Jackson by the side of a house. Jackson,
Tabb, and Neloms were arrested and then taken to the hospital.
[12] Officer Swain was transported to the emergency room of Ball Memorial
Hospital. There, he was examined by Dr. Joseph Indiano (“Dr. Indiano”). A
forensic nurse photographed, measured, and diagramed each of Officer Swain’s
visible wounds. Officer Swain testified that he felt pain from the road rash, he
felt like something popped out of his shoulder, his head was “killing” him, and
he was going in and out of consciousness on the way to the hospital. Tr. Vol III
at 19-20. In his recorded deposition, Dr. Indiano testified that Officer Swain
suffered a broken collar bone, abrasions over much of his body, and had a
bump on his head. Dr. Indiano testified that Officer Swain’s broken collar bone
resulted in a protracted loss or impairment of the function of his arm.
[13] Officer Swain testified that he was in a brace and a sling for eight weeks because
of his broken collar bone, and it was uncomfortable to lay down so he had to
sleep in a recliner for weeks. Id. at 25. Officer Swain said he could not lift
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 7 of 19 anything or use his arm at all during that time, and he could not work for about
eleven weeks.
[14] The State charged Jackson with Count 1, Level 2 felony aiding, inducing, or
causing another person to deal a narcotic drug, and Count 2, Level 3 felony
aggravated battery.5 The State also filed its Notice of Intent to Seek Habitual
Offender status. In July 2017, the trial court held a bifurcated trial, and in
phase one, the State presented evidence on Counts 1 and 2. At the close of the
evidence, the jury instructions included: (1) Instruction 18, which set forth
guidance for the jury’s determination of whether Jackson was guilty of aiding,
inducing, or causing Tabb to deal a narcotic drug; and (2) Instruction 19, which
instructed the jury that an intervening cause can break the chain of criminal
responsibility. After deliberation, the jury found Jackson guilty of aggravated
battery and aiding, inducing, or causing another person to deal a narcotic drug.
Jackson was found to be a habitual offender in phase two. Jackson now
appeals.
Discussion and Decision [15] Jackson contends that neither of his convictions was supported by sufficient
evidence. For sufficiency challenges, we do not reweigh the evidence or judge
witness credibility. Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016), cert. denied,
5 The State also charged Jackson with Count 3, Level 5 felony aiding, inducing, or causing another person to deal in a narcotic drug; Count 4, Level 5 felony resisting law enforcement; Count 5, Level 6 felony criminal recklessness; Count 6, Class B misdemeanor possession of marijuana; and notice of intent to seek enhanced penalty based upon prior conviction. Prior to trial, those charges were dismissed on the State’s motion.
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 8 of 19 137 S. Ct. 1082 (2017). We consider only the evidence most favorable to the
judgment together with all reasonable inferences that may be drawn from the
evidence. Id. We will affirm the judgment if substantial evidence supports it,
even if the evidence is conflicting. Id. Reversal is appropriate only when “‘no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.’” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting
Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence and is sufficient
if an inference may reasonably be drawn from it to support the verdict. Id. at
147.
I. Level 3 Felony Aggravated Battery [16] To convict Jackson of Level 3 felony aggravated battery, the State had to prove
that he knowingly or intentionally inflicted injury on Officer Swain and that the
injury created a substantial risk of death or caused: (1) serious permanent
disfigurement; or (2) protracted loss or impairment of the function of a bodily
member or organ. Ind. Code § 35-42-2-1.5. “‘Protracted’ means ‘to draw out
or lengthen in time’ and ‘impairment’ means ‘fact or state of being damaged,
weakened, or diminished.” Mann v. State, 895 N.E.2d 119, 121 (Ind. Ct. App.
2008) (citing Neville v. State, 802 N.E.2d 516, 518 (Ind. Ct. App. 2004), trans.
denied, and Fleming v. State, 833 N.E.2d 84, 89 (Ind. Ct. App. 2005)). “[E]xpert
testimony is not required to prove the victim suffered a protracted impairment.”
Id.
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 9 of 19 [17] Jackson asserts two reasons why the evidence did not support his conviction for
aggravated battery. First, he contends that Officer Swain’s injuries did not
create a substantial risk of death, cause serious permanent disfigurement, or
cause a protracted loss or impairment of a function of a bodily member or
organ. Appellant’s Br. at 23. Second, Jackson contends that Officer Swain’s
actions were an intervening cause that broke the connection between Jackson’s
actions and Officer Swain’s injuries. Id. We discuss these arguments in turn.
A. Sufficient Evidence of Protracted Injury
[18] Jackson states that Officer Swain “tumbled off” of the van, “bumped his head,”
“suffered road rash,” and “broke his collar bone.” Appellant’s Br. at 22. Jackson
contends that Officer Swain’s injuries did not show a substantial risk of death or
a protracted loss or impairment of a function of a bodily member or organ
because medical personnel “cleaned up” Officer Swain’s legs and arms, noted
he had a bump on his head, but did not admit him to the hospital. Id. at 23.
Furthermore, Officer Swain did not need physical therapy. Id.
[19] The evidence most favorable to the guilty verdict, however, showed that Officer
Swain was thrown from the running boards of the van while the van was
moving at a high rate of speed. Tr. Vol. II at 163, 164. Officer Swain was in
and out of consciousness in the ambulance on the way to the hospital and had
shoulder pain. Tr. Vol. III at 19-20. In his recorded deposition, which was
introduced at trial, Dr. Indiano said that Officer Swain suffered a broken collar
bone; had abrasions on his upper torso, shoulders, back, elbows, hands, and
arms; and a had a bump on his head, which was the size of half a ping pong Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 10 of 19 ball. State’s Ex. 152 at 5:40-7:00; State’s Exs. 76-105. Dr. Indiano testified that
Officer Swain’s broken collar bone resulted in a protracted loss or impairment
of the function of a bodily member. State’s Ex. 152 at 8:50-10:00. Specifically,
he said that, since the fracture prevented stabilization of Officer Swain’s
shoulder, the use of Officer Swain’s right arm would have been substantially
impaired, and it would have been difficult for Officer Swain to use the arm for
at least ten to twelve weeks. Id. at 8:50-11:30. Dr. Indiano opined that
treatment for the broken collar bone would have required Officer Swain to have
his arm in a sling for at least six weeks and, since his muscles would likely
atrophy, he would require four to six weeks of rehabilitation thereafter. Id.
[20] Officer Swain testified that he was in a brace and a sling for eight weeks because
of his broken collar bone. Tr. Vol. III at 25. He testified that it was
uncomfortable to lay down so he had to sleep in a recliner for weeks. Id.
During that time, Officer Swain could use his hand somewhat, but he could not
lift anything or use his arm at all. Id. at 26. Even after the brace and sling were
removed, Officer Swain’s arm was sore and weak, and he had to do physical
therapy on his own. Id. Officer Swain was not cleared to return to work for “a
few more weeks” after the brace was removed. Id.
[21] The evidence most favorable to the verdict—that Officer Swain broke his collar
bone, had to have his arm in a brace and sling for eight weeks, was unable to
use his hand and arm during that time, was out of work for about eleven weeks,
and was deemed by Dr. Indiano to have sustained a protracted loss or
impairment of the function of his shoulder and hand—was sufficient to support
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 11 of 19 Jackson’s conviction for Level 3 felony aggravated battery. See Mann, 895
N.E.2d at 122 (victim’s testimony that he suffered muffled hearing two months
after the attack was sufficient to establish that he suffered a protracted
impairment); Wilson v. State, 835 N.E.2d 1044, 1049 (Ind. Ct. App. 2005)
(defendant admitted that officer’s dislocated shoulder constituted a protracted
loss or impairment of the function of a bodily member or organ, i.e., the loss of
use of the right arm), trans. denied; Salone v. State, 652 N.E.2d 552, 559 (Ind. Ct.
App. 1995) (substantial evidence of probative value that T.F. suffered an injury
that caused protracted loss or impairment of the function of her hand was found
where burn to T.F.’s had prevented her from using it for fourteen to sixteen
weeks), trans. denied.
[22] Here, the jury heard both parties’ evidence on the extent of Officer Swain’s
injuries and found sufficient evidence that Officer Swain’s injuries constituted a
protracted impairment of his arm. Jackson’s argument on appeal is a request
that we reweigh the evidence or judge the credibility of witnesses, which we will
not do. Grundy v. State, 38 N.E.3d 675, 682 (Ind. Ct. App. 2015), trans. denied.
We find sufficient evidence that a protracted loss or impairment of the function
of Jackson’s arm existed to support his conviction for Level 3 felony aggravated
battery.
B. Intervening Cause
[23] Jackson also contends that there was insufficient evidence to support his
conviction for Level 3 aggravated battery because there was ample evidence
presented that Officer Swain’s injuries were caused by the intervening cause of Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 12 of 19 Officer Swain having shot Jackson. Appellant’s Br. at 24-25. Jackson argues
that, once shot, he lost control of the van and swerved, which caused Officer
Swain to be thrown from the van. Specifically, Jackson argues that it was not a
foreseeable event that Officer Swain would jump onto the running board of the
van and, unable to get Jackson to stop the van, start shooting at Jackson. Id.
[24] During phase one of the trial, the jury was given Instruction 19, which was
requested by Jackson but agreed to by both parties. Instruction 19 provided:
An intervening cause is an independent force that breaks the causal connection between the actions of the defendant and the result. In order for an intervening cause to break the chain of criminal responsibility, the intervening cause must be so extraordinary and unforeseeable that it would be unfair to hold the defendant responsible for the actual result.
Tr. Vol. III at 78-79. In closing argument, defense counsel placed this
instruction in context saying,
So, kinda to wrap things up a little bit and let you get on your way, the bottom line is if Investigator Swain had not went Bruce Willis on us, and jumped on that van, and shot Mr. Jackson, not once, not twice, but five times, he wouldn’t have got injured at all, so I’m asking you to think about that, and think about that as an intervening cause because while there are things that was in Mr. Jackson’s control there was also things that were not in his control, the things Tabb did were not in his control, the things that Officer Swain did were not in his control, and that this is an intervening cause as far as the van goes . . . .
Id. at 109.
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 13 of 19 [25] For an intervening cause to break the chain of criminal responsibility, it must be
so extraordinary that it would be unfair to hold the appellant responsible for the
actual result. Williams v. State, 782 N.E.2d 1039, 1049 (Ind. Ct. App. 2003),
trans. denied. “The foreseeability of an intervening cause presents a question of
fact for the jury.” Cole v. State, 69 N.E.3d 552, 558 (Ind. Ct. App. 2017), trans.
denied. Here, the jury determined it was foreseeable that Jackson’s failure to
stop the van could result in injuries to Officer Swain. Again, Jackson’s
argument on appeal is a request that we reweigh the evidence or judge the
credibility of witnesses, which we will not do. Grundy, 38 N.E.3d at 682.
[26] The evidence favorable to the verdict sufficiently proved that Officer Swain’s
actions did not break the chain of Jackson’s criminal responsibility. Officer
Howell was in uniform and driving a marked police car. Jackson defied Officer
Howell’s orders to exit the vehicle during a traffic stop and, instead, shifted the
van into drive, and sped away at a high rate of speed while Officer Swain was
standing on the running boards of the passenger side of the van. Tr. Vol. II at
162-63; Tr. Vol. III at 16-17. Jackson looked directly into Officer Swain’s eyes
and, therefore, knew Officer Swain was hanging onto the side of the van. Tr.
Vol. III at 17. Even so, Jackson continued to accelerate despite Officer Swain’s
pleas for Jackson to stop. Id. at 17-18. Officer Swain even warned Jackson that
he would shoot if Jackson did not stop the van, but Jackson kept driving “faster
and faster.” Id. In the absence of an intervening cause, we find the State
presented sufficient evidence to support Jackson’s conviction for Level 3 felony
aggravated battery. See Cole, 69 N.E.3d at 558 (finding defendant’s operation of
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 14 of 19 car, including a high-speed chase, proximately caused passenger’s death by a
police bullet).
[27] Because sufficient evidence existed to prove that Jackson acted knowingly and
that the injury he inflicted created, without an intervening cause, a protracted
injury to Officer Swain’s arm, it follows that the State presented sufficient
evidence for a reasonable jury to find beyond a reasonable doubt that Jackson
committed Level 3 felony aggravated battery.
II. Level 2 Felony Aiding in the Dealing of a Narcotic Drug [28] Jackson also contends that the State presented insufficient evidence to support
his conviction for Level 2 felony aiding, inducing, or causing another person to
deal a narcotic drug. In reviewing sufficiency of the evidence, we examine only
the probative evidence and reasonable inferences that support the verdict.
Griffin v. State, 16 N.E.3d 997, 1003 (Ind. Ct. App. 2014). We do not assess
witness credibility, nor do we reweigh the evidence. Id.
[29] To convict Jackson of Level 2 felony aiding, inducing, or causing another
person to deal in a narcotic drug, the State had to prove that Jackson knowingly
aided, induced, or caused Tabb to possess, with the intent to deliver, at least ten
grams of heroin. Ind. Code § 35-48-4-1(a)(1), (e)(1); Ind. Code § 35-41-2-4.
Jackson does not dispute that the police confiscated “adulterated heroin
weighing 29.71 [grams].” State’s Ex. 108; Tr. Vol. II at 16. Instead, he contends
that he “was merely a bystander.” Appellant’s Br. at 25. In support, Jackson
notes that Tabb was in control of the heroin and the van, and Tabb was the one
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 15 of 19 who had been under surveillance for about a year before the drug transactions
of May 6, 2016. Id. Jackson argues,
[He] drove the van only to relieve Mr. Tabb from the burden of driving. Mr. Tabb instructed where Mr. Jackson was to drive. He directed Mr. Jackson to Ms. Knight’s home. Once there, Ms. Knight testified that she dealt with Mr. Tabb only. She stated that Mr. Jackson was not paying attention to her or what she was doing with Mr. Tabb but was talking on the telephone with his girlfriend and viewing eBay. The [MPD] Narcotics Unit had no previous knowledge of Mr. Jackson. He was merely in the wrong place at the wrong time.
Id. On appeal, Jackson contends that the State presented insufficient evidence
to show that he aided, induced, or caused Tabb to commit the crime. Id.
[30] Under Indiana law there is no distinction between a principal and an
accomplice with respect to criminal responsibility. See Schroeder v. State, 998
N.E.2d 279, 284 (Ind. Ct. App. 2013), trans. denied. A person “who knowingly
or intentionally aids, induces, or causes another person to commit an offense
commits that offense.” Ind. Code § 35-41-2-4. “Therefore, ‘[i]t is not necessary
that the evidence show the accomplice personally participated in the
commission of each element of the offense.’” Griffin, 16 N.E.3d at 1003
(quoting Wilson v. State, 455 N.E.2d 1120, 1123 (Ind. 1983)). “‘[T]he acts of
one accomplice are imputed to all.’” Id. (quoting Collier v. State, 470 N.E.2d
1340, 1342 (Ind. 1984)). Furthermore, the accomplice is criminally responsible
for everything that “‘follows incidentally in the execution of the common
design, as one of its natural and probable consequences, even though it was not
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 16 of 19 intended as part of the original design or common plan.’” Id. (quoting Johnson
v. State, 605 N.E.2d 762, 765 (Ind. Ct. App. 1992)).
[31] “‘The particular facts and circumstances of each case must be considered in
determining whether a person participated in the commission of an offense as
an accomplice.’” Id. (quoting Peterson v. State, 699 N.E.2d 701, 706 (Ind. Ct.
App. 1998)). For Jackson’s conviction to stand, “‘there must be evidence of
[his] affirmative conduct, either in the form of acts or words, from which an
inference of a common design or purpose to effect the commission of a crime
may be reasonably drawn.’” Id. (quoting Peterson, 699 N.E.2d at 706). “Each
participant must knowingly or intentionally associate himself with the criminal
venture, participate in it, and try to make it succeed.” Id. (quoting Cohen v.
State, 714 N.E.2d 1168, 1177 (Ind. Ct. App. 1999), trans. denied). The State
need not show that Jackson “‘was a party to a preconceived scheme; it must
merely demonstrate concerted action or participation in an illegal act.’” Id. at
1004 (quoting Rainey v. State, 572 N.E.2d 517, 518 (Ind. Ct. App. 1991)).
[32] Here, the evidence most favorable to the conviction showed that Jackson was
friends with and in companionship with Neloms and Tabb, the latter having
been suspected of dealing narcotics for more than a year. Jackson was in the
van when Tabb stepped out of the van in Chicago and, in full view of Jackson,
bought heroin. Jackson did not oppose the purchase; in fact, when Tabb
reentered the van, Tabb shared some of the heroin with Jackson and Neloms.
On the trip back from Chicago, Knight, understanding that heroin was
scheduled to arrive in Muncie, called Tabb many times saying she wanted $100
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 17 of 19 worth of heroin. Jackson admitted to police that he answered one of the calls
from Knight, told her they were on their way and, upon reaching Knight’s
residence, took Knight’s money and handed her the heroin. Tr. Vol. II at 85-86,
145-46; State’s Ex. 110 at 3:35-4:15, 15:00-16:00. At the close of the evidence,
the trial court read Instruction 18, which informed the jury:
Merely being present at the scene of a crime is not sufficient to prove that a person aided, induced or caused the crime. Failure to oppose the commission of the crime is also insufficient to prove aiding, inducing, or causing another to commit the crime. However, presence at the scene of the crime, failure to oppose the crime’s commission, companionship with another engaged in criminal activity, a person’s conduct before, during and after the occurrence of the crime are factors which may be considered in determining whether there was aiding, inducing or causing another to commit the crime.
Tr. Vol. III at 78.
[33] Considering the evidence presented and the instruction given, the jury rejected
Jackson’s arguments that he was a bystander or just merely in the wrong place
at the wrong time. Jackson’s argument on appeal is a request that we reweigh
the evidence or judge the credibility of witnesses, which we will not do.
Grundy, 38 N.E.3d at 682. Accordingly, the evidence was sufficient to sustain
Jackson’s conviction for Level 2 felony aiding, inducing, or causing another
person to deal a narcotic drug.
Affirmed.
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 18 of 19 Bailey, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A05-1709-CR-2166 | March 27, 2018 Page 19 of 19