MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Dec 30 2019, 10:03 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
Alexander L. Hoover                                     Curtis T. Hill, Jr.
Law Office of                                           Attorney General of Indiana
Christopher G. Walter, P.C.
                                                        Samuel J. Dayton
Nappanee, Indiana                                       Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Andrew D. Rodgers,                                      December 30, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1331
        v.                                              Appeal from the Elkhart Circuit
                                                        Court
State of Indiana,                                       The Honorable Michael A.
Appellee-Plaintiff                                      Christofeno, Judge
                                                        Trial Court Cause No.
                                                        20C01-1705-F4-21



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019                Page 1 of 6
[1]   Andrew Rodgers appeals his conviction for Level 6 Felony Maintaining a

      Common Nuisance,1 arguing that the evidence is insufficient. Finding the

      evidence sufficient, we affirm.


                                                      Facts
[2]   In the spring of 2017, undercover Elkhart City Police Officer UC 382 was

      conducting an investigation that led them2 to 1702 Prairie Street. During the

      investigation, UC 382 and other officers observed two types of traffic in and out

      of the residence:


                 There was one gentleman [later identified as Rodgers] that would
                 always come up, and you could tell that he was keying into the
                 door, unlocking it; and when he would leave, he would turn
                 around and make a motion like he was locking the door. The
                 other type of traffic . . . [was] people coming up to the door and
                 almost knocking and standing, like they were waiting for
                 someone inside to come let them in, like they didn’t have
                 ownership in [the] home, they were just visiting. And [the
                 officers] saw quite a bit of that traffic that would come and go
                 pretty quickly.


      Tr. Vol. II p. 201-02. The visits were “very short,” lasting from two to ten

      minutes. Id. at 202.




      1
          Ind. Code § 35-45-1-5(c).
      2
          The name and gender of UC 382 remain confidential.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019   Page 2 of 6
[3]   On May 12, 2017, UC 382 and other officers executed a search warrant of 1702

      Prairie Street. Rodgers was one of two people found inside. He was in his

      bedroom, which was upstairs in the residence. He had two cell phones in his

      pocket and a third cell phone near the bed. Near the foot of the bed, the officers

      found a green tote that contained, among other things, a marijuana grinder with

      a “green residue or plant-like residue or broken down leafy residue” and a box

      of sandwich baggies. Id. at 80. On or near the floor, the officers found a baggie

      corner. Testing later revealed that the baggie corner contained residue of

      Pentylone, commonly referred to as “bath salts.” Id. at 158.


[4]   The officers also found a plastic shopping bag “full of discarded sandwich bags

      with at least one to two missing corners” near the bedroom door. Id. at 81.3

      Several of these baggies contained a white residue, which testing later revealed

      to be cocaine residue. Additionally, the officers found Swisher Sweet wrappers

      and cigarillo wrappers mixed up with an “organic-looking,” “plant-like

      material.” Id. at 85. The officers determined that this material was consistent

      with the innards of cigarillos that had been extracted and not burned. The

      officers also found a small yellow bag containing a green leafy substance, which

      the officers determined to be marijuana based upon the substance’s visual

      appearance and odor.




      3
       The State introduced evidence showing that baggie corners are common tools used to package illegal drugs.
      Tr. Vol. II p. 80-81, 119.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019              Page 3 of 6
[5]   On May 17, 2017, the State charged Rodgers with multiple felonies, which it

      later amended to the following charges: Level 6 felony possession of cocaine,

      Level 6 felony maintaining a common nuisance, and Class B misdemeanor

      possession of marijuana. Following a jury trial, the jury found Rodgers guilty

      of maintaining a common nuisance and not guilty of the other two charges. On

      May 16, 2019, the trial court sentenced Rodgers to a fully suspended sentence

      of two and one-half years. Rodgers now appeals.


                                   Discussion and Decision
[6]   Rodgers’s sole argument on appeal is that the evidence is insufficient to support

      his conviction. When reviewing the sufficiency of the evidence to support a

      conviction, we must consider only the probative evidence and reasonable

      inferences supporting the conviction and will neither assess witness credibility

      nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We

      will affirm unless no reasonable factfinder could find the elements of the crime

      proved beyond a reasonable doubt. Id.


[7]   To convict Rodgers of Level 6 felony maintaining a common nuisance, the

      State was required to prove beyond a reasonable doubt that he knowingly or

      intentionally maintained a building, structure, vehicle, or other place that was

      used to unlawfully use, manufacture, keep, offer for sale, sell, deliver, or finance

      the delivery of a controlled substance or an item of drug paraphernalia.

      I.C. § 35-45-1-5(c). Rodgers does not dispute that the bedroom belonged to him




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019   Page 4 of 6
      or that he acted with the requisite intent. Instead, he challenges the evidence

      demonstrating that his bedroom met the definition of a common nuisance.


[8]   The State presented the following evidence regarding items found in Rodgers’s

      bedroom:


          • Officers found forty to forty-five baggies missing at least one corner;
            some of the baggies were missing two corners. Given the evidence that
            baggie corners are common tools used to package illegal drugs, those
            missing corners imply that the baggies had been used to package between
            forty to ninety units of illegal drugs.
          • Officers found a marijuana grinder (containing a green, plant-like
            substance), empty cigarillo boxes, empty Swisher Sweet and cigarillo
            wrappers, and discarded tobacco. It is common for people to buy
            Swisher Sweets, cut them open, remove the tobacco, and pack them with
            the drug of choice. Tr. Vol. II p. 85.
          • Officers found multiple baggies, some of which bore a white residue,
            later revealed to be cocaine.
          • Officers found a baggie corner containing Pentylone—i.e., bath salts—
            residue.
          • Officers found a baggie containing what they determined to be marijuana
            based on its appearance and odor.
          • Officers observed multiple people coming to Rodgers’s house to make
            brief visits lasting from two to ten minutes. While a single short visit
            “doesn’t mean a whole lot,” when it occurs “systematically over the
            course of several days,” it is a “sign of drug activity or drug distribution
            coming and going from that home.” Id. at 202.
          • Rodgers had two cell phones in his pocket and a third by his bed. The
            State presented evidence that drug dealers often use multiple cell phones,
            as opposed to law-abiding citizens, who would typically maintain only
            one cell phone.

      We find that the evidence showing the presence of drug residue, drug

      paraphernalia, and indices of drug dealing and distribution is sufficient to allow

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019   Page 5 of 6
       a reasonable juror to infer that Rodgers was using his bedroom to use,

       manufacture, keep, offer for sale, sell, deliver, or finance the delivery of a

       controlled substance or an item of drug paraphernalia. See Davis v. State, 791

       N.E.2d 266, 270 (Ind. Ct. App. 2003) (holding that convictions may be

       sustained based on circumstantial evidence alone if the evidence supports a

       reasonable inference of guilt).


[9]    Rodgers seems to suggest that because the jury found him not guilty of

       possession of cocaine and marijuana, it is inconsistent that the jury found him

       guilty of maintaining a common nuisance. But it is well established that

       “inconsistent verdicts are permissible and not subject to appellate review[.]”

       Beattie v. State, 924 N.E.2d 643, 644 (Ind. 2010). Therefore, this argument is

       unavailing.


[10]   We find the evidence sufficient to support Rodgers’s conviction for Level 6

       felony maintaining a common nuisance.


[11]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1331 | December 30, 2019   Page 6 of 6
