 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not
 be regarded as precedent or cited
 before any court except for the
 purpose of establishing the defense of
 res judicata, collateral estoppel, or the
 law of the case.


ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

J. DAVID KECKLEY                                      GREGORY F. ZOELLER
South Bend, Indiana                                   Attorney General of Indiana

                                                      BRIAN REITZ
                                                      Deputy Attorney General

                                                                                    FILED
                                                      Indianapolis, Indiana

                                                                                May 17 2012, 9:43 am

                               IN THE
                                                                                        CLERK
                     COURT OF APPEALS OF INDIANA                                      of the supreme court,
                                                                                      court of appeals and
                                                                                             tax court




DEAN E. OVERHOLSER,                                   )
                                                      )
       Appellant,                                     )
                                                      )
               vs.                                    )      No. 71A04-1108-CR-436
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee.                                      )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable Jane Woodward Miller, Judge
                              Cause No. 71D01-1008-FD-823



                                             May 17, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Dean E. Overholser (“Overholser”) appeals his conviction for Class D felony

possession of marijuana by cultivation and argues that the State presented insufficient

evidence to support his conviction. We affirm.

                               Facts and Procedural History

       On July 21, 2010, Indiana State Police Officer Brian Hoffman (“Officer

Hoffman”) was riding in a helicopter attempting to discover outdoor marijuana growing

operations in St. Joseph County when he spotted four plots of marijuana plants growing

near Osborn Road. Thereafter, on July 29, 2010, Officer Hoffman went to the location of

the marijuana plants, which was in a densely wooded area. Officer Hoffman observed

that several items apparently used to cultivate the marijuana, including a bucket, jugs of

water, a shovel, and wire fencing, had been left in the area. Officer Hoffman also noticed

rock wool and potting soil around the base of the plants, which indicated that the plants

had been started elsewhere before being re-planted in the woods. Before leaving the area,

Officer Hoffman set up motion-sensor surveillance equipment with the intention of

capturing a suspect on film.

       On August 4, 2010, Officer Hoffman returned to the area to check the surveillance

equipment. The motion sensor had been set off ten to fifteen times, and the camera had

captured a video segment showing a man walking through the marijuana plants. Officer

Hoffman also noticed that the cultivation tools he had previously observed in the area had

been moved.     Officer Hoffman then removed the marijuana plants and surveillance

equipment.


                                            2
      Because tire tracks leading to the marijuana plots came from the south, Officer

Hoffman visited the nearest residence to the south of the marijuana plots.        Officer

Hoffman spoke with the owner of the residence, Kurt Coolman (“Coolman”), and

determined that he did not match the description of the man shown in the video. Officer

Hoffman also concluded that Coolman could not have been the man in the video because

he had serious injuries to his legs and could not walk well. Coolman consented to a

search of his property, and Officer Hoffman found nothing connecting Coolman to the

marijuana plots. But when Officer Hoffman described the man shown in the video,

Coolman identified the man as Overholser. Coolman and Overholser were friends, and

Overholser helped Coolman maintain his property. Overholser had “complete access” to

Coolman’s property and lived at Coolman’s residence “intermittently.” Tr. pp. 134, 138.

Officer Hoffman attempted to locate Overholser, but he was initially unable to do so.

      Approximately thirty days after Officer Hoffman spoke with Coolman, Coolman

had a conversation with Overholser about the marijuana. Overholser told Coolman that

the marijuana plots were not located on Coolman’s property. Overholser also claimed

that he was only shown on the surveillance video for “five seconds” and stated “I’ve done

my homework, and they can’t prove cultivating[.]” Tr. pp. 136, 137.

      The State charged Overholser with Class D felony possession of marijuana by

cultivation. A jury trial was held on June 9, 2011, at which Officer Hoffman and

Coolman testified for the State. Overholser also testified and admitted to being the




                                            3
individual shown in the video, but denied cultivating the marijuana. At the conclusion of

the evidence, Overholser was found guilty as charged. Overholser now appeals.

                                 Discussion and Decision

         Overholser argues that the State presented insufficient evidence to support his

conviction for Class D felony possession of marijuana by cultivation. In reviewing a

challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge

the credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App.

2009).     Instead, we consider only the evidence supporting the conviction and the

reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of

probative value from which a reasonable trier of fact could have drawn the conclusion

that the defendant was guilty of the crime charged beyond a reasonable doubt, then the

verdict will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct.

App. 2008). It is not necessary that the evidence overcome every reasonable hypothesis

of innocence; rather, the evidence is sufficient if an inference may reasonably be drawn

from it to support the verdict.     Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).

Accordingly, the question on appeal is whether the inferences supporting the verdict were

reasonable, not whether other, “more reasonable” inferences could have been made.

Thompson v. State, 804 N.E.2d 1146, 1150 (Ind. 2004). Because reaching alternative

inferences is the function of the trier of fact, we cannot reverse a conviction merely

because a different inference might plausibly be drawn from the evidence. Id.

         Indiana Code section 35-48-4-11 (2004 & Supp. 2011) provides that:


                                            4
      A person who:
      (1) knowingly or intentionally possesses (pure or adulterated) marijuana,
      hash oil, hashish, salvia, or a synthetic cannabinoid;
      (2) knowingly or intentionally grows or cultivates marijuana; or
      (3) knowing that marijuana is growing on the person’s premises, fails to
      destroy the marijuana plants;
      commits possession of marijuana, . . . a Class A misdemeanor. However,
      the offense is a Class D felony if the amount involved is more than thirty
      (30) grams of marijuana . . . .

Overholser was charged with Class D felony possession of marijuana by cultivation

under the second subsection of the statute. Accordingly, in order to support Overholser’s

conviction, the State was required to prove that Overholser knowingly or intentionally

grew or cultivated more than thirty grams of marijuana.         See I.C. § 35-48-4-11;

Appellant’s App. p. 115.     On appeal, Overholser argues that the State presented

insufficient evidence to prove that he was the person who cultivated the 604 grams of

marijuana found growing near Coolman’s property. We disagree.

      After Officer Hoffman discovered the marijuana plots, he installed motion-sensor

surveillance equipment with the intention of capturing a suspect on film. During the

weeklong period that the camera was in place, Overholser was the only person caught on

camera walking in the area. The marijuana plants were located in a densely wooded area

where people were unlikely to go, giving rise to an inference that Overholser had not

simply wandered into the area while on a walk. Moreover, tire tracks near the plots led

toward Coolman’s property and a path from Coolman’s property provided the most direct

access to the plots. However, Coolman was not shown in the video and had difficulty

walking due to injuries. Overholser, on the other hand, was apparently able-bodied and


                                           5
had unlimited access to Coolman’s property.                        Additionally, when Officer Hoffman

returned to the area of the marijuana plots to check the surveillance footage, he noticed

that the items he had previously seen in the area had been moved, giving rise to an

inference that the tools had been used during the time that the camera was in place. And

Overholser made incriminating statements to Coolman; specifically, he told Coolman that

the marijuana was not located on his property and stated “I’ve done my homework, and

they can’t prove cultivating[.]” Tr. pp. 136, 137. Based on this evidence as a whole, the

jury could reasonably infer that Overholser was the person who had cultivated the

marijuana plots located near Coolman’s property.1                          Overholser’s arguments to the

contrary are simply requests to reweigh the evidence and judge the credibility of

witnesses, which we will not do on appeal.

         Relying on Britt v. State, 810 N.E.2d 1077 (Ind. Ct. App. 2004) and Mudd v.

State, 483 N.E.2d 782 (Ind. Ct. App. 1985), Overholser also appears to suggest that in

order to support his conviction for possession of marijuana by cultivation, the State was

also required to present additional evidence establishing that Overholser had actual or

constructive possession of the marijuana apart from his cultivation thereof. Overholser is

incorrect. The plain language of the statute makes it clear that one who cultivates

1
  On appeal, Overholser asserts that the circumstantial evidence presented by the State was insufficient to support
his conviction because it was not wholly inconsistent with any reasonable theory of Overholser’s innocence.
Although this is the proper standard at trial, and the jury was therefore properly instructed that “circumstantial
evidence alone will not justify a finding of guilty unless the circumstances are entirely consistent with the accused’s
guilt, wholly inconsistent with any reasonable theory of the accused’s innocence, and are so convincing as to
exclude a reasonable doubt of the accused’s guilt,” Appellant’s App. p. 62, we apply a less stringent standard on
appeal. See Myers v. State, 532 N.E.2d 1158, 1159 (Ind. 1989). On appeal, it is not necessary that the evidence
overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference may reasonably
be drawn from it to support the verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). Because we conclude
such an inference can be reasonably drawn, we must affirm.

                                                          6
marijuana by definition possesses it. See Ind. Code § 35-48-4-11(2) (2004) (providing

that a person who knowingly or intentionally cultivates marijuana commits possession of

marijuana).

       Moreover, the cases Overholser cites on appeal are inapposite and, to the extent

that they could be considered applicable to the case at hand, they support the opposite

conclusion. In Britt, the defendant was convicted of two violations of Indiana Code

section 35-48-4-11 arising out of the police’s discovery of marijuana plants growing in

plastic buckets on his property. 810 N.E.2d at 1079.    Specifically, under the first section

of the statute, Britt was convicted of Class D felony possession of marijuana weighing

more than thirty grams, and under the second subsection, Britt was convicted of Class D

felony possession of more than thirty grams of marijuana by cultivation. Id. In reaching

its conclusion that the two convictions violated double jeopardy protections because

possession of marijuana is a lesser-included offense of possession by cultivation, the

court reasoned that “[i]t is not possible to cultivate marijuana without having either actual

or constructive possession of the marijuana.” Id. at 1082. Similarly, in Mudd, this court

held that possession of marijuana with intent to manufacture was a lesser-included

offense of manufacturing marijuana because “one cannot knowingly or intentionally

manufacture the drug without also possessing it to that end.”          483 N.E.2d at 784.

Accordingly, this court has previously recognized that one who cultivates marijuana by

definition possesses it. Overholser’s argument that the State was required to establish

that Overholser possessed the marijuana separate and apart from his cultivation thereof is


                                             7
therefore meritless. Because the State presented sufficient evidence to allow the jury to

reasonably infer that Overholser cultivated the marijuana, his conviction for possession of

marijuana by cultivation must be affirmed.

      Affirmed.

FRIEDLANDER, J., and RILEY, J., concur.




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