MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                              FILED
Memorandum Decision shall not be                                     Oct 12 2016, 8:40 am

regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Suzy St. John                                             Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
     COURT OF APPEALS OF INDIANA

Bryant Hughes                                             October 12, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1602-CR-217
        v.                                                Appeal from the Marion County
                                                          Superior Court
State of Indiana,                                         The Honorable Jose Salinas, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          49G14-1504-F6-12426



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016       Page 1 of 6
                                           Case Summary
[1]   Following a bench trial, Bryan Hughes was found guilty of Level 6 felony

      possession of cocaine. Hughes now appeals, arguing that the evidence is

      insufficient to support his conviction. We affirm.



                             Facts and Procedural History
[2]   Around midnight on April 10, 2015, Officers Jon King and Melissa Lemrick of

      the Indianapolis Metropolitan Police Department arrived at Hughes’ home to

      serve Hughes with an arrest warrant. When the officers arrived, Hughes was

      sitting on his front porch talking with a neighbor, who was standing in the

      grass. The porch was dark so the officers used their flashlights. The officers

      placed Hughes under arrest. In a search incident to arrest, Officer King began

      removing Hughes’ personal belongings from his pockets and placing them on a

      chair on the porch. Before placing the items on the chair, Officer King

      confirmed that the chair was empty. While Officer King was still emptying

      Hughes’ pockets, Officer Lemrick pointed out on the chair a small plastic bag

      with a white substance in it, which both she and Officer King immediately

      recognized as cocaine. Tr. p. 9. Hughes was arrested for possession of cocaine.

      The white substance was later tested and confirmed to be 0.24 grams of

      cocaine.


[3]   The State charged Hughes with Level 6 felony possession of cocaine. During

      the bench trial, Hughes testified that he did not have a bag of cocaine in his


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016   Page 2 of 6
      pockets and that he had no knowledge of where the cocaine came from. Id. at

      27. The trial court found him guilty:

              I will note for the record that I think the testimony was pretty
              clear that when the officer conducted a patdown of the
              Defendant, he pulled things out – handfuls of things out of the
              Defendant’s pocket and put them on the chair. He noted for the
              record pretty clear that there was nothing on the chair prior to
              starting the search.


              He did not – while I’m going to concede that he did not say, I
              knew what was in there when I pulled it out immediately – it had
              had to be pointed out to him by the second officer – it was pretty
              clear that nothing was on – he said nothing was on the chair
              prior, and that the substance was noted by the second officer as
              part of the stuff that was on the chair where the officer put it –
              where the officer was conducting a patdown was putting the
              things.


              So the logical and reasonable conclusion was that the item, the
              contraband, came out of the Defendant’s pocket.


      Id. at 42-43.


[4]   Hughes now appeals.



                                 Discussion and Decision
[5]   Hughes contends that the evidence is insufficient to support his conviction.

      When reviewing the sufficiency of the evidence, we neither reweigh the

      evidence nor determine the credibility of witnesses. Bailey v. State, 979 N.E.2d


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016   Page 3 of 6
      133, 135 (Ind. 2012). We look solely to the evidence most favorable to the

      judgment together with all reasonable inferences to be drawn therefrom. Id. A

      conviction will be affirmed if the probative evidence and reasonable inferences

      to be drawn from the evidence could have allowed a reasonable trier of fact to

      find the defendant guilty beyond a reasonable doubt. Id.


[6]   A conviction for possession of cocaine may rest upon either actual or

      constructive possession. Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct.

      App. 2009), trans. denied. A person actually possesses contraband when he has

      direct physical control over it. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).

      “But a conviction for a possessory offense does not depend on catching a

      defendant red-handed.” Id.


[7]   We find that the State presented sufficient evidence to prove that Hughes had

      actual possession of the cocaine.1 At trial, Officer King testified that it was dark

      outside, that he and Officer Lemrick were using flashlights in order to see, that

      the chair was empty before he placed Hughes’ personal items on the chair, that

      he was the only one putting things in the chair, and that he was removing

      “handfuls” of things from Hughes’ pockets. Tr. p. 8, 15, 16, 18. Officer King

      also testified that Officer Lemrick called Officer King’s attention to the small




      1
       Because we find that the evidence is sufficient to prove that Hughes had actual possession of the cocaine,
      we do not address his constructive-possession argument.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016              Page 4 of 6
      bag of cocaine only after Hughes’ personal effects were on the chair. Id. at 9,

      12.


[8]   Nevertheless, Hughes argues that we should reverse because, even though

      Officer King testified on direct examination that Officer Lemrick pointed out

      the bag of cocaine “on the chair,” id. at 9, he testified on cross-examination that

      he could not recall if the bag was on the chair or in Officer Lemrick’s hand

      when he first saw it, id. at 17. However, the trial court heard all of this

      testimony and expressly concluded that “when [Officer King] conducted a

      patdown of the Defendant . . . nothing was on the chair prior, and that the

      substance was noted by the second officer as part of the stuff that was on the

      chair where [Officer King] put it . . . .” Tr. p. 42-43. This Court will not

      reweigh the evidence nor determine the credibility of witnesses; that role is

      reserved for the finder of fact. See Bailey, 979 N.E.2d at 135.


[9]   Based on the evidence, the trial court could reasonably conclude that the

      cocaine found came from Hughes’ pockets and was therefore in his actual

      possession.2 The evidence is sufficient to support Hughes’ Level 6 felony

      conviction for possession of cocaine.




      2
       Hughes cites Boarman v. State, 509 N.E.2d 177 (Ind. 1987), and Polk v. State, 683 N.E.2d 567 (Ind. 1997),
      arguing that his circumstances are different. We disagree. In both Boarman and Polk, officers confirmed at
      the start of their shifts that no contraband was present in the backseats of their cars, before Boarman and Polk
      were placed in the backseats. After Boarman and Polk were taken out of the cars, contraband was found in
      the backseats. The Indiana Supreme Court held that this was sufficient to convict both defendants of actual
      possession of drugs. Similar to Boarman and Polk, Officer King confirmed that there was nothing in the chair

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016               Page 5 of 6
[10]   Affirmed.


       Baker, J., and Najam, J., concur.




       before emptying the contents of Hughes’ pockets onto the chair where cocaine was subsequently found with
       Hughes’ other personal effects.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016          Page 6 of 6
