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
