MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                         Jun 17 2020, 8:21 am
court except for the purpose of establishing                          CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Ryan P. Dillon                                           Josiah Swinney
Dillon Legal Group, P.C.                                 Deputy Attorney General
Franklin, Indiana                                        Indianapolis, Indiana



                                              IN THE
        COURT OF APPEALS OF INDIANA

Joshua R. Eldridge,                                      June 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2564
        v.                                               Appeal from the Morgan Superior
                                                         Court
State of Indiana,                                        The Honorable Brian Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         55D02-1807-F2-1041



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020             Page 1 of 32
[1]   Joshua R. Eldridge appeals his convictions for dealing in methamphetamine as a

      level 2 felony, possession of methamphetamine as a level 3 felony, possession of

      a narcotic drug as a level 4 felony, possession of a narcotic drug as a level 5

      felony, maintaining a common nuisance, a level 6 felony, unlawful possession of

      a syringe, a level 6 felony, possession of marijuana as a class B misdemeanor,

      and possession of paraphernalia as a class C misdemeanor. He raises five issues

      which we restate as:


        I.    Whether the trial court abused its discretion in denying his motion for
              mistrial;

       II.    Whether the court abused its discretion by admitting certain evidence;

      III.    Whether the prosecutor committed misconduct during closing
              argument which resulted in fundamental error;

      IV.     Whether the court erred in refusing his proposed jury instructions; and

       V.     Whether the evidence was sufficient to sustain his convictions.

      We affirm.


                                       Facts and Procedural History

[2]   At approximately 3:00 p.m. on July 2, 2018, Morgan County Sheriff’s Officers

      Cody St. John and Timothy Coryell, along with two other officers, executed a

      search warrant with respect to a shed which was located behind a residence on

      the 600 block of North Main Street in Martinsville, Indiana. The shed carried

      the same address as the residence, was being used as a living quarters, and had a

      solid door with a door handle and a key pad that led to a single room containing

      a rug, a television, an air conditioning unit, a refrigerator, electricity, and drop

      ceiling with moveable panels. The shed was located 245 feet from North School,
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 2 of 32
      where the Metropolitan School District of Martinsville conducted Martinsville

      Head Start. Eldridge had lived in the shed for “about three or four years,” and

      his girlfriend, Kayla Poore, “was there a lot.” Id. at 201, 209.


[3]   When the officers arrived, Eldridge stood “just outside the shed” on its east side

      and Poore sat inside with a friend. Id. at 41. After officers secured the three

      individuals, one officer stayed with them while the others conducted the search.

      The search uncovered a wallet with a driver’s license and a healthcare card

      belonging to Eldridge. Eldridge’s driver’s license lists the address of the

      residence behind which the shed was located. Two other wallets were

      discovered, and each contained an identification card – one belonging to Poore

      and the other belonging to the third individual – that listed home addresses that

      were not the Martinsville address associated with the shed. Officers found a

      black pouch next to the couch with at least one set of digital scales in it and a

      needle box, or “sharps container,” that was on the floor in sight. Id. at 94. They

      found a bag containing .11 grams of buprenorphine inside a cabinet along the

      south wall and a box of sandwich bags in the southeast corner of the room.


[4]   A crowd gathered outside during this time, officers removed Eldridge, Poore,

      and the third individual from the scene, and Eldridge’s photograph was taken.

      At some point, John Nail, who lived in another outbuilding on the same lot,

      approached and gave officers a hint as to “the places to look,” including above a

      corner cabinet with a gap between the drop ceiling and the cabinet’s top. Id. at

      199. The officers lifted the tile and located two black pouches, one of which

      contained 134.75 grams of methamphetamine while the other contained 7.35

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 3 of 32
      grams of heroin, spoons, syringes, and cotton ball ends. Officers also uncovered

      inside a false wall outlet five clear plastic bags containing a green leafy substance

      believed to be marijuana and a glass pipe of the size that would be used to ingest

      or smoke marijuana.


[5]   On July 3rd, officers conducted a secondary search pursuant to a warrant on a

      vehicle and a “newer” Suzuki motorcycle for which Eldridge held title. Id. at

      108. The vehicle, which had previously belonged to Eldridge’s grandmother and

      which was titled to Poore, contained in the trunk a black backpack with: several

      packages of unopened syringes, each package containing approximately ten

      syringes; EBT and other cards with Eldridge’s name; a firearm box, firearm, and

      unused ammunition; and a box that contained two Naloxone kits. 1


[6]   On July 3, 2018, the State charged Eldridge with dealing in methamphetamine as

      a level 2 felony, possession of methamphetamine as a level 3 felony, possession

      of a narcotic drug as a level 4 felony, possession of a narcotic drug as a level 5

      felony, possession of cocaine as a level 6 felony, maintaining a common

      nuisance, a level 6 felony, unlawful possession of a syringe, a level 6 felony,

      possession of marijuana as a class B misdemeanor, and possession of

      paraphernalia as a class C misdemeanor. Before trial, the State moved to dismiss

      the possession of cocaine count.




      1
       Officer St. John explained that Naloxone is referred to as Narcan and is a medication that can be
      administered to people who are overdosing.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020                    Page 4 of 32
[7]   On August 16, 2019, Eldridge filed a motion in limine requesting that the court

      preclude the introduction of evidence of Eldridge’s other alleged misconduct,

      based upon Ind. Evidence Rule 404(b).


[8]   On August 20, 2019, a two-day jury trial began, and Eldridge was not present.

      Following voir dire, the court instructed the jury on the following: the State

      would need to prove beyond a reasonable doubt Eldridge possessed

      methamphetamine with intent to deliver for the jury to find him guilty of dealing

      in methamphetamine; they were the exclusive judges of the evidence “which

      may be either witness testimony or exhibits”; it may strike evidence from the

      record that they “must not consider” in making their decision; their “verdict

      should be based only on the evidence admitted and the instructions on the law”;

      they “must decide the facts from your memory of the testimony and exhibits

      admitted for your consideration”; and that the attorneys would present opening

      statements and final arguments, which were not evidence, and were allowed to

      characterize evidence and attempt to persuade the jurors with arguments that

      they could accept or reject as they saw fit. Id. at 27-28. The court further

      instructed the jury on the concept of possession. During the prosecutor’s opening

      statement, he stated that none of what he was saying “is evidence itself, rather, I

      am just trying to convey to you what we expect the evidence to show.” Id. at 31.

      During Eldridge’s opening statement, defense counsel urged jurors to pay

      attention to where items were found in relation to where Eldridge was found and

      then stated: “Or what he might have been able to know.” Id. at 37. He also




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 5 of 32
       stated that there would be “some evidence of some things that were found where

       there were no . . . nothing illegal about it, no contraband found.” Id. at 38.


[9]    The court admitted a photograph of Eldridge taken on July 2, 2018, and Officers

       St. John and Coryell testified that it accurately portrayed his appearance the day

       of the search. 2 Officer St. John testified about various photographs taken during

       the investigation, including State’s Exhibit 21, a picture of a wallet with an

       Indiana Operator’s License bearing a profile picture, Eldridge’s name, the

       Martinsville address on the 600 block of North Main Street, and Eldridge’s

       driver’s license number. During cross-examination, defense counsel asked if the

       officer had taken any “wide shots” of the interior of the shed, and Officer St.

       John answered affirmatively and indicated, in response to a question about

       contraband, that most of it was hidden, or in a shelf, or cabinet, or some things

       were in the hidden electrical outlet. During redirect examination, he stated that

       the value of the bag of the suspected methamphetamine would be “several

       hundred dollars, if not into the thousands worth.” Id. at 76.


[10]   Officer Coryell testified that a gram of methamphetamine typically had a street

       value of between sixty and eighty dollars and that the average user used about a

       quarter of a gram a day depending upon his habit. He answered affirmatively




       2
         Specifically, during redirect examination the prosecutor showed “again what was previously offered as
       State’s Exhibit 41” to Officer St. John and asked if it was an “accurate representation of what the defendant
       looked like on July 2nd, when you executed the search warrant,” and Officer St. John stated, “It is.”
       Transcript Volume II at 79. When the prosecutor handed the photograph to Officer Coryell, he answered:
       “That’s Joshua Ryan Eldridge.” Id. at 89.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020                     Page 6 of 32
when asked if Eldridge operated the vehicle on a previous occasion and if

Eldridge “said it was his grandma’s car, and in fact that came back to his

grandma.” Id. at 106. He indicated he had not seen anyone besides Eldridge

operating the vehicle, that he checked the status of Poore’s driver’s license, and

that she “was valid on an ID card only” and did not have an Indiana Operator’s

License. 3 Id. at 107. At some point during the redirect examination of Officer

Coryell, defense counsel moved outside the presence of the jury for a mistrial

based upon potential Brady violations4 arguing he had not been provided with the

additional wide shot photographs of the shed’s interior about which Officer St.

John had testified, that due to the large number of photos received, he “simply

believed that there were no additional photos,” and that he believed the

photographs could lead to potential exculpatory evidence, “as a large part of this

case is what was visible, what was not visible.” Id. at 128. The prosecutor

responded that there were not any additional photographs and the State could

not give what it did not have “and apparently [it] never had.” Id. at 129. The

court denied Eldridge’s motion, stated it did not find the evidence prejudicial

enough to declare a mistrial, and indicated defense counsel could cross-examine

the witnesses about the wide-shots. Officer St. John was recalled, Eldridge’s

counsel cross-examined him in the jury’s presence, and he answered affirmatively

when asked if a photo of “items that were found in the living space” had not been




3
 The question mark at the end of Officer Coryell’s response seems to be a scrivener’s error. See Transcript
Volume II at 107 (“She did not have an Indiana Operator’s License?”).
4
    See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020                    Page 7 of 32
       presented. Id. at 151. When asked what happened to those photos, he stated:

       “I’m not sure if they didn’t get uploaded” and “[s]ince my departure, those

       computers have been replaced.” Id. at 152. Later, Eldridge renewed his motion

       for a mistrial which the court denied.


[11]   At the beginning of Nail’s testimony, Eldridge objected that Nail would present

       evidence contrary to Ind. Evid. Rule 404(b), and the court indicated it would

       incorporate Eldridge’s pretrial objections and its ruling. During direct

       examination, Nail identified Eldridge when shown the July 2, 2018 photograph

       of him and answered affirmatively when asked if he was certain the photograph

       was of Eldridge. He answered in the negative when asked if he had ever bought

       drugs from Poore or her friend and stated, “[y]eah, a few times,” when asked if

       he ever saw Eldridge sell dope to anybody else. Id. at 198. He answered

       affirmatively when asked if he had meant more than three times, and he testified

       he purchased meth and heroin, in an alternating manner, probably three times a

       week. When asked if he bought from Eldridge “a hundred times, three times a

       week for a year,” he stated, “Yeah, I’d say that, yeah.” Id. He indicated he

       bought in Eldridge’s house when he bought drugs, and testified as to stashed

       places he personally saw, including a speaker and “a cabinet that set in the corner

       of the barn, and there was a gap between the top of it and the ceiling that that’s

       where he kept it.” Id. at 199. During cross-examination, defense counsel asked

       about the specific timeframe of the transactions and the following exchange

       occurred:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 8 of 32
               Q. Okay. Over this year, about what calendar day of the year are
               we talking about to start the period of a year?

               A. Oh it was just all through the month, each month.

               Q. When we’re talking about a year that you purchased, are we
               talking the year 2005? Or are we talking the year 2010? What
               year are we talking about?

               A. It would be 2016, ’17.

       Id. at 200. When defense counsel asked whether “that end[ed] shortly after he

       moved in,” Nail answered affirmatively, and when defense counsel asked if the

       drug activity happened around the first year Eldridge was there, Nail answered

       affirmatively and stated that it started right away. Id. at 201. Defense counsel

       moved to strike and the court overruled the motion. Id.


[12]   Shawn Grubb, who lived at a different address on the 600 block of North Main

       Street and was present on July 2nd when the police arrived at Eldridge’s shed,

       answered affirmatively when he was shown the July 2, 2018 photograph of

       Eldridge and asked if he recognized him.


[13]   After the State rested, Eldridge made a motion for judgment on the evidence

       asserting that the State had not proved Eldridge’s identity. The court denied the

       motion and found the State “did put in through exhibit 21 a photograph of his

       Indiana Operator license that indicates his DLN, which the [c]ourt finds to be

       sufficient in conjunction with his photograph, and the address on that identified




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 9 of 32
the defendant.” Id. In proposing a final jury instruction, 5 Eldridge’s counsel

argued it was important for the jury to know that quantity “alone is not enough

for them to support as that has potentially been argued by the State and through

its questioning of witnesses.” Transcript Volume II at 239. The prosecutor

objected, and the court denied the proposed instruction, indicating that there had

been no “inference of, or suggestion of a presumption against the defendant”

aside from the tendered instruction and that there would be more of a likelihood

to confuse the jury rather than just rely on its own instruction, which allowed the

jury “to give what weight they find convincing as to each bit of evidence, and

that they can draw inferences from it, under circumstantial evidence as they see

fit.” Id. at 240. Concerning another proposed final jury instruction, 6 Eldridge’s

counsel argued that its language seemed to be on point given testimony from

multiple witnesses that he was not in exclusive possession of the premises and the

instruction “would be helpful to the jury in determining that just because he was

there does not automatically mean that he gets to take the fall for everything

within.” Id. When the court asked if the decision was a “sufficiency review case




5
  The proposed final jury instruction stated: “Illegal possession of large quantities of narcotics does not create
a presumption of intent to deliver, but may support an inference of intent.” Appellant’s Appendix Volume II
at 119.
6
  The proposed final jury instruction stated: “When a person has exclusive possession of the premises in
which contraband is found, he is assumed to know about the presence of the contraband and be capable of
controlling it. However, when possession of the premises is not exclusive, the State must show additional
circumstances that indicate the defendant’s knowledge of the presence of the contraband and ability to
control it. Such additional circumstances include incriminating statements by the defendant, attempted
flight, a drug manufacturing setting, proximity of the defendant to the drugs, drugs being found in plain view,
and the location of the drugs in proximity to the items owned by the defendant.” Appellant’s Appendix
Volume II at 121 (internal citations omitted).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020                       Page 10 of 32
       with regard to the language, or is this actually regarding an instruction with this

       language,” defense counsel responded that the case was “under potential

       sufficiency review of the evidence” and the court denied the proposed

       instruction. Id. at 241. Eldridge rested his case without presenting any evidence.


[14]   During closing argument, the prosecutor mentioned Nail testified:


               I bought drugs from that guy, from that location up on top where
               it was. He saw him get drugs out when he bought them from him.
               That kind of suggests he knew they were there, don’t you think?


       Id. at 245. When the prosecutor addressed the third count, Eldridge objected to

       statements about the presence of school children and argued the evidence was

       stricken from the record, and the court ordered the argument stricken and

       instructed the jury not to consider it in assessing the evidence. The court told the

       prosecutor “to move on” after he indicated that the fifth count that the State had

       initially charged had “disappeared” upon chemical testing of the substance that

       was alleged to have been cocaine, and the prosecutor proceeded to summarize

       the remaining charges. Id. at 248.


[15]   During its closing argument, defense counsel challenged the jurors to ask

       themselves if the State proved the identity of the defendant beyond a reasonable

       doubt and asked if a picture was enough. He argued that, when police arrived

       with a search warrant, Eldridge remained outside “[w]hich you would think is

       not an unreasonable thing to do for someone that knows there’s a big bag of meth

       inside his shed.” Transcript Volume III at 4. Defense counsel questioned what

       would have been shown by pictures of the shed’s interior that had “disappeared
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 11 of 32
somehow” and argued that the numerous non-contraband items of Eldridge’s

which were found at the scene did not prove anything and that their presentation

by the State signified a worry about meeting its burden. Id. He stated that, at

one point, Officer Coryell’s testimony was


        he’d arrested this . . . person a couple of weeks prior, coming from
        that place where he had meth. Well, then . . . after I was able to
        refresh his recollection with a transcript, oh, well, actually no, we
        had bought pills. Well, were there any pills found in this shed?
        How does that make sense. This seems inconsistent.


Id. at 7. Addressing Nail’s testimony, he stated:


        So the best evidence that we have was back here, 2016, ’17
        sometime, if you can believe [] Nail, the defendant sold him drugs.
        On a fairly consistent basis. I’m going to give Mr. Nail that
        testimony. We don’t know what was going on between the time
        that stopped and July 2nd, 2018. Maybe he started out with a bag
        of three hundred grams and sold it down and then came up and
        said, you know, I’m not going to do this anymore, [Poore], you
        just take over, or [the third individual present at the shed], you
        take over, or somebody else, some of these hundreds or however
        many people that are coming and going, maybe it was all gone.
        Maybe he thought it’s gone. . . . Who’s to say that he still really
        knew that it was there on July 2nd, 2018?


Id. at 9. He addressed the issue of the shed’s proximity to the school, argued

there was no evidence about whether there was be children at a school on July

2nd in the middle of the summer, and asked: “Is it reasonable to expect that kids

are going to be in . . [.] at school during the summer? . . . Even so, again,

knowledge. Did he know?” Id. at 10.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 12 of 32
[16]   The prosecutor began the State’s rebuttal by stating that the jurors knew Eldridge

       was a drug dealer because there was sworn testimony he dealt drugs, and he

       indicated that the court would instruct them, as it had already instructed the

       previous morning, that “what I’m telling you right now is not evidence. Nothing

       I have said before, or now, is evidence.” Id. at 13. He stated that defense counsel

       had speculated about how the police not finding pills on Eldridge “shows that

       somehow or other drug dealing was not occurring there,” and argued that such a

       fact merely demonstrated police did not find any pills. Id. at 15. In closing, the

       prosecutor reminded the jury that its burden was not “beyond all doubt” but

       “beyond a reasonable doubt,” argued Eldridge was a “drug dealer, pure and

       simple” and a “fairly good sized drug dealer,” and concluded:


               Martinsville is not that big of a community that five ounces of
               meth disappears overnight. This isn’t Indianapolis where they can
               move real quantities. That’s a lot of dope. It’s a lot of dope going
               into the community. It’s a lot of dope that [] Eldridge was making
               money off of and it was a lot of people being victimized by having
               that poison pumped into their veins. Go back in there, think
               about what you’ve heard, come to the obvious conclusion, and
               bring back a verdicts [sic] of guilty on each charge. And then
               when you go home, you’ll be able to sleep. Thank you.


       Id. at 20.


[17]   In its final jury instructions, the court explained that the jurors had the right to

       determine both the law and the facts. After reading the definition of dealing in

       methamphetamine, it instructed: “Before you may convict the defendant, the

       State must have proved each of the following beyond a reasonable doubt. One,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 13 of 32
the defendant, two, possessed with intent to deliver, three, methamphetamine,

four, and the amount of the drug involved was at least ten grams.” Id. at 23. It

continued that, if the State failed to prove each of these elements beyond a

reasonable doubt, the jury must find the defendant not guilty of dealing in

methamphetamine. The court instructed on the concept of possession7 and

further instructed: if possession of property constitutes any part of the prohibited

conduct it is a defense that the person who possessed the property was not aware

of his possession for a time sufficient for him to have terminated his possession; a

person’s mere presence in a place where contraband is found is insufficient to

support a finding of possession; and that the State must prove beyond a

reasonable doubt that the accused had the intent to maintain dominion and

control over the item charged in the offense. It instructed that the jurors were

“the exclusive judges of the evidence which may be either witness testimony or

exhibits,” statements by the attorneys were not evidence, that the parties may

prove a fact by one of two types of evidence: “Direct evidence or circumstantial

evidence. . . . Circumstantial evidence is indirect proof of a fact. . . . You may

consider both direct evidence and circumstantial evidence as proof.” Id. at 28-29.




7
  The transcription of the final jury instruction as provided for in the transcript appears to contain a
scrivener’s error. Final Jury Instruction No. 6, which contains an “X” indicating it was tendered, states:
“The concept of ‘possession’ means to own or exercise control over. Under the law there are two kinds of
‘possession’ – direct physical possession and indirect possession. Either kind of possession can be considered
in this case. A person who knowingly has direct physical control of a thing at a given time is then in
possession of it. A person who, although not in direct physical possession, knowingly has both the authority
and the intention to exercise control over a thing, either directly or through another person or persons, is then
in indirect possession of it. Possession may be sole or joint. If one person alone has actual or constructive
possession of a thing, then possession is sole. If two or more persons share actual or constructive possession
of a thing, then possession is joint.” Appellant’s Appendix Volume II at 129.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020                      Page 14 of 32
       The jury found Eldridge guilty as charged, and the court merged the conviction

       for possession of methamphetamine as a level 3 felony into that for dealing in

       methamphetamine as a level 2 felony, and the conviction for possession of a

       narcotic drug as a level 5 felony into that for possession of a narcotic drug as a

       level 4 felony.


                                                    Discussion

                                                          I.


[18]   The first issue is whether the trial court abused its discretion in denying

       Eldridge’s motion for mistrial. Eldridge argues that, had he been provided the

       additional photographs about which Officer St. John testified, “showing the

       location and proximity of items found,” he would “potentially have stood in a

       better position of showing distance between himself and the items, thus the

       potential that the pictures were exculpatory in nature.” Appellant’s Brief at 14.

       Specifically, he argues “[s]uch pictures would show the relative location of

       contraband property and the open, plain location (or lack thereof) of other

       items,” Appellant’s Reply Brief at 5; that, since the State relies upon the location

       of items within the shed, the photos could have provided a legitimate reasonable

       doubt in this case involving constructive possession; and that their suppression

       amounted to a constitutional violation.


[19]   “[A] mistrial is an extreme remedy that is only justified when other remedial

       measures are insufficient to rectify the situation.” Isom v. State, 31 N.E.3d 469,

       481 (Ind. 2015) (quoting Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001)), reh’g


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 15 of 32
       denied, cert. denied, 136 S. Ct. 1161 (2016). The Indiana Supreme Court has

       explained: “A trial court is in the best position to evaluate whether a mistrial is

       warranted because it can assess first-hand all relevant facts and circumstances

       and their impact on the jury.” Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014).

       “We afford great deference to the trial court’s decision.” Treadway v. State, 924

       N.E.2d 621, 628 (Ind. 2010). “We therefore review denial of a motion for

       mistrial only for abuse of discretion. However, the correct legal standard for a

       mistrial is a pure question of law, which we review de novo.” Ramirez, 7 N.E.3d

       at 935 (citations omitted).


[20]   Both parties cite to California v. Trombetta for the proposition that “[w]hatever

       duty the Constitution imposes on the States to preserve evidence, that duty must

       be limited to evidence that might be expected to play a significant role in the

       suspect’s defense.” 467 U.S. 479, 488 (1984). In Noojin v. State, the Indiana

       Supreme Court explained that “[t]o meet this standard of constitutional

       materiality, evidence must both possess an exculpatory value that was apparent

       before the evidence was destroyed, and be of such a nature that the defendant

       would be unable to obtain comparable evidence by other reasonably available

       means.” 730 N.E.2d 672, 675 (Ind. 2000) (quoting Trombetta, 467 U.S. at 488-

       489; Holder v. State, 571 N.E.2d 1250, 1255 (Ind. 1991)). “Exculpatory evidence

       is defined as ‘[e]vidence tending to establish a criminal defendant’s innocence.’”

       State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010) (quoting BLACK’S LAW

       DICTIONARY 597 (8th ed. 2004)). “The Court has also held that the failure to

       preserve ‘potentially useful evidence’ – as opposed to material exculpatory

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 16 of 32
       evidence – violates the Fourteenth Amendment only when the defendant can

       show bad faith on the part of police.” Noojin, 730 N.E.2d at 676 (citing Arizona v.

       Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333 (1988)).


[21]   The State presented testimony that officers lifted the tile of a drop ceiling of a

       shed approximately the size of a jury box that Eldridge had lived in for at least

       three years before they located two black pouches, one of which contained

       134.75 grams of methamphetamine and the other of which contained 7.35 grams

       of heroin, spoons, syringes, and cotton ball ends. Inside a cabinet, the officers

       found a bag which held .11 grams of buprenorphine. Inside a false compartment

       designed to be a wall outlet, officers uncovered five clear plastic bags containing a

       green leafy substance believed to be marijuana and a glass pipe. There was also

       testimony that a black pouch containing at least one set of digital scales and a

       needle box lay on the floor next to the couch, and a box of sandwich bags lay in

       the southeast corner of the room. When Eldridge renewed his motion for

       mistrial, the court allowed him to recall and cross-examine Officer St. John who

       stated, “I’m not sure if they didn’t get uploaded” and “[s]ince my departure,

       those computers have been replaced,” Transcript Volume II at 152, the

       prosecutor indicated it had provided Eldridge with over fifty photographs, the

       court noted based on the testimony that it would characterize such photos as

       “lost, rather than destroyed,” id. at 179, and Eldridge’s counsel stated, “I’m not

       trying to imply malfeasance.” Id. at 180.


[22]   Even assuming the photographs about which Eldridge argues were to show

       noncontraband items, such as his license, in relative distant relation to the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 17 of 32
       locations where contraband property was discovered, we nevertheless cannot say

       that Eldridge has demonstrated the photographs would possess apparent

       exculpatory value of such nature that he would be unable to obtain comparable

       evidence by other reasonably available means, and thus we find that the trial

       court did not abuse its discretion when it denied his motion for mistrial.


                                                         II.


[23]   The next issue is whether the trial court abused its discretion by admitting Nail’s

       testimony about previous drug purchases. The trial court has broad discretion to

       rule on the admissibility of evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind.

       2016). A trial court’s ruling on the admission of evidence is generally accorded a

       great deal of deference on appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015),

       reh’g denied. We will not reverse an error in the admission of evidence if the error

       was harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011). The erroneous

       admission of evidence which is cumulative of other evidence admitted without

       objection does not constitute reversible error. Hoglund v. State, 962 N.E.2d 1230,

       1240 (Ind. 2012) (citation omitted), reh’g denied. Failure to timely object to the

       erroneous admission of evidence at trial will procedurally foreclose the raising of

       such error on appeal unless the admission constitutes fundamental error.

       Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015). Additionally, we have found

       the issue waived where a defendant objected to only a portion of the challenged

       evidence. See Dickey v. State, 999 N.E.2d 919, 921 (Ind. Ct. App. 2013);

       Hutcherson v. State, 966 N.E.2d 766, 770 (Ind. Ct. App. 2012), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 18 of 32
[24]   Eldridge argues the prejudicial value of the testimony that Nail purchased drugs

       from him in 2016 and 2017 and that he pulled drugs from certain locations

       outweighs its probative value. He contends the events were removed and do not

       complete the story of the crime with which he was charged, and he asserts the

       prosecutor’s closing argument addresses Nail’s testimony and asks the jury to

       ignore the jury instructions and the State’s burden. The State maintains the court

       could properly admit the challenged testimony under exceptions to Ind. Evid.

       Rule 404(b) and the probative value of the evidence outweighed its prejudicial

       effect.


[25]   Ind. Evid. Rule 404(b) provides that evidence of a crime, wrong, or other act is

       not admissible to prove a person’s character in order to show that on a particular

       occasion the person acted in accordance with the character. Rule 404(b)(2)

       provides that “[t]his evidence may be admissible for another purpose, such as

       proving motive, opportunity, intent, preparation, plan, knowledge, identity,

       absence of mistake, or lack of accident.” Ind. Evidence Rule 403 provides that

       the court may exclude relevant evidence if its probative value is substantially

       outweighed by a danger of unfair prejudice, confusing the issues, misleading the

       jury, undue delay, or needlessly presenting cumulative evidence.


[26]   The record reveals that Eldridge did not object during direct examination as Nail:

       stated, “[y]eah, a few times,” when asked if he ever saw Eldridge sell dope to

       anybody else; answered affirmatively when asked if he had meant more than

       three times; approximated his previous purchases of meth and heroin to three

       times a week; indicated he bought “a hundred times, three times a week for a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 19 of 32
       year” from Eldridge in his “house, home”; and testified that Eldridge had places

       for concealing drugs, including those he had personally seen: a speaker and a

       cabinet set in the corner. Transcript Volume II at 198. Eldridge moved to strike

       Nail’s testimony only after his statement – in response to being asked during

       cross-examination several questions aimed at identifying the range of dates

       involved – that it “would be 2016, ’17,” id. at 200, and defense counsel’s

       subsequent question inquiring whether the drug activity occurred “around the

       first year he was there.” Id. at 201.


[27]   Under the circumstances described above and in the record, we find no reversible

       error on this basis, see Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (“A

       contemporaneous objection at the time the evidence is introduced at trial is

       required to preserve the issue for appeal, whether or not the appellant has filed a

       pretrial motion to suppress.”), reh’g denied, and we cannot say the challenged

       evidence related solely to character and not for other purposes, such as

       knowledge or identity, or that its prejudicial effect outweighed its probative

       value.


                                                         III.


[28]   The next issue is whether the prosecutor committed misconduct during closing

       argument which resulted in fundamental error. Eldridge argues the State’s

       closing argument amounted to a due process violation that ensured he would not

       receive a fair trial. He contends that, after evidence of children being present at

       the school was stricken, the State attempted to play on the sympathy of the jury


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 20 of 32
       and that, without sworn testimony that Eldridge had dealt methamphetamine on

       July 2, 2018, the State asked the jury to convict him for something which

       occurred between 2016 and 2017.


[29]   In reviewing a properly preserved claim of prosecutorial misconduct, we

       determine: (1) whether the prosecutor engaged in misconduct, and if so, (2)

       whether the misconduct, under all of the circumstances, placed the defendant in

       a position of grave peril to which he should not have been subjected. Cooper

       v. State, 854 N.E.2d 831, 835 (Ind. 2006). Whether a prosecutor’s argument

       constitutes misconduct is measured by reference to caselaw and the Rules of

       Professional Conduct. Id. The gravity of peril is measured by the probable

       persuasive effect of the misconduct on the jury’s decision rather than the degree

       of impropriety of the conduct. Id. When an improper argument is alleged to

       have been made, the correct procedure is to request the trial court to admonish

       the jury. Id. If the party is not satisfied with the admonishment, then he should

       move for mistrial. Id. Failure to request an admonishment or to move for

       mistrial results in waiver. Id.


[30]   Eldridge did not move for mistrial based on the challenged statements. Where,

       as here, a claim of prosecutorial misconduct has not been properly preserved, our

       standard of review is different from that of a properly preserved claim. Id. More

       specifically, the defendant must establish not only the grounds for the

       misconduct, but also the additional grounds for fundamental error. Id.

       Fundamental error is an extremely narrow exception that allows a defendant to

       avoid waiver of an issue. Id. It is error that makes “a fair trial impossible or

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 21 of 32
       constituted a clearly blatant violation of basic and elementary principles of due

       process presenting an undeniable and substantial potential for harm.” Durden v.

       State, 99 N.E.3d 645, 652 (Ind. 2018). “This exception is available only in

       ‘egregious circumstances.’” Brown, 929 N.E.2d at 207 (quoting Brown v. State,

       799 N.E.2d 1064, 1068 (Ind. 2003)). “Fundamental error is meant to permit

       appellate courts a means to correct the most egregious and blatant trial errors that

       otherwise would have been procedurally barred, not to provide a second bite at

       the apple for defense counsel who ignorantly, carelessly, or strategically fail to

       preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied.


[31]   During closing argument, the prosecutor mentioned Nail, who saw Eldridge “get

       drugs out when he bought them from him,” and argued of Eldridge: “That kind

       of suggests he knew they were there, don’t you think?” Transcript Volume II at

       245. When the prosecutor mentioned the testimony involving the presence of

       children at the school, Eldridge objected and the court ordered the argument

       stricken and instructed to jury not to consider it in assessing the evidence. In the

       context of summarizing the charges for the jury, the prosecutor mentioned the

       fifth count which it had initially charged, explained the reason for its dismissal,

       and proceeded when prompted to by the court.


[32]   We observe that, in his closing argument, Eldridge’s counsel pointed to Officer

       Coryell’s recollection of the purchase of pills in the shed, argued that it was

       unknown “what was going on” from the point in time when Nail stopped

       purchasing drugs from Eldridge until July 2, 2018, and introduced hypothetical

       scenarios in which Eldridge ceded control of the drugs to another party or in

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 22 of 32
       which he thought “it’s gone.” Transcript Volume III at 9. We further note that,

       in the beginning of the State’s rebuttal, the prosecutor reminded the jury that the

       court was “going to instruct you, has already instructed you yesterday morning,

       that what I’m telling you right now is not evidence,” and “[n]othing I have said

       before, or now, is evidence,” id. at 13, and the court subsequently admonished

       jurors in the final instructions they were the exclusive judges of the evidence

       “which may be either witness testimony or exhibits,” that statements by the

       attorneys were not evidence, and that a finding of guilty of dealing in

       methamphetamine required the State to prove beyond a reasonable doubt that

       Eldridge “possessed with intent to deliver.” Id. at 23, 28. Under the

       circumstances, we cannot say Eldridge has shown that any misconduct during

       the prosecutor’s argument made a fair trial impossible or demonstrated the

       “extremely narrow” exception of fundamental error. Durden, 99 N.E.3d at 652.


[33]   With respect to Eldridge’s challenge to the prosecutor’s final remarks that he was

       profiting from people being victimized and “having that poison pumped into

       their veins” and that if the jurors returned guilty verdicts, they would “go home .

       . . [and] be able to sleep,” Appellant’s Brief at 21, we note that it may be

       misconduct for a prosecutor to ask a jury to convict a defendant for any reason

       other than his or her guilt, or to attempt to inflame the passions or prejudices of

       the jury. Wisehart v. State, 693 N.E.2d 23, 59 (Ind. 1998). Indeed, the Indiana

       Supreme Court has disapproved of prosecutors invoking a general concern for

       “community safety” as a legitimate basis for returning a guilty verdict. See

       Maldonado v. State, 265 Ind. 492, 501, 355 N.E.2d 843, 849 (1976) (finding error


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 23 of 32
       in the prosecutor arguing, “this may be the most important thing you’ll ever do

       for your community”). However, Eldridge brings his challenge under the

       fundamental error exception. Even if we assumed some of the prosecutor’s

       arguments or comments were misconduct, we are not persuaded that such

       comments created “an undeniable and substantial potential for harm.” Durden,

       99 N.E.3d at 652. We find Eldridge is not entitled to a new trial on this basis.


                                                         IV.


[34]   The next issue is whether the court erred in refusing Eldridge’s proposed jury

       instructions. Eldridge maintains the jury should have been provided with an

       instruction that “more was necessary than simply possession of a certain amount

       of drugs” and that the first proposed instruction was necessary to educate the jury

       of the difference between “Dealing in Methamphetamine (Possession with

       Intent) (Ind. Code § 35-48-4-1.1(a)(2) and Ind. Code § 35-48-4-1.1(e)(1)) and

       Possession of Methamphetamine (Ind. Code § 35-48-4-6.1(a) and Ind. Code § 35-

       48-4-6.1(d)(1);) of the same amount.” Appellant’s Brief at 23-24. He argues the

       second proposed instruction would have properly and thoroughly instructed the

       jury on the legal evaluation of a constructive possession case and placed it “in a

       better position to weigh the evidence . . . and possibly would have avoided the

       need for this appeal.” Id. at 24.


[35]   The purpose of an instruction is “to inform the jury of the law applicable to the

       facts without misleading the jury and to enable it to comprehend the case clearly

       and arrive at a just, fair, and correct verdict.” Overstreet v. State, 783 N.E.2d 1140,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 24 of 32
       1163 (Ind. 2003), cert. denied, 540 U.S. 1150, 124 S. Ct. 1145 (2004). Instruction

       of the jury is generally within the discretion of the trial court and is reviewed only

       for an abuse of that discretion. Id. at 1163-1164. To constitute an abuse of

       discretion, the instruction given must be erroneous, and the instructions taken as

       a whole must misstate the law or otherwise mislead the jury. Benefiel v. State, 716

       N.E.2d 906, 914 (Ind. 1999), reh’g denied, cert. denied, 531 U.S. 830, 121 S. Ct. 83

       (2000). A trial court erroneously refuses to give a tendered instruction, or part of

       one, if: (1) the instruction correctly sets out the law; (2) evidence supports the

       giving of the instruction; and (3) the substance of the tendered instruction is not

       covered by the other instructions given. See Overstreet, 783 N.E.2d at 1164.

       Before a defendant is entitled to a reversal, he must affirmatively show that the

       erroneous instruction prejudiced his substantial rights. Lee v. State, 964 N.E.2d

       859, 862 (Ind. Ct. App. 2012) (citing Gantt v. State, 825 N.E.2d 874, 877 (Ind. Ct.

       App. 2005)), trans. denied. An error is to be disregarded as harmless unless it

       affects the substantial rights of a party. Id. (citing Oatts v. State, 899 N.E.2d 714,

       727 (Ind. Ct. App. 2009); Ind. Trial Rule 61).


[36]   Here, officers found 134.75 grams of methamphetamine, the value of which

       Officer St. John testified would be “several hundred dollars, if not into the

       thousands worth.” Transcript Volume II at 76. Officer Coryell testified that “the

       average user is going to use about a quarter of a gram a day depending upon their

       habit.” Id. at 103. In response to the first proposed final jury instruction that

       “Illegal possession of large quantities of narcotics does not create a presumption

       of intent to deliver, but may support an inference of intent,” Appellant’s

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 25 of 32
       Appendix Volume II at 119, the court noted there had been no inference or

       suggestion of a presumption against Eldridge aside from his proposed instruction

       and that there would be more of a likelihood to confuse the jury, and ultimately

       instructed the jury that, for it to find Eldridge guilty of dealing in

       methamphetamine, the State had to prove beyond a reasonable doubt that he

       possessed “with intent to deliver” otherwise, “they must not find the defendant

       not guilty of dealing in methamphetamine, a level 2 felony, as charged in count

       one.” Transcript Volume III at 23. In conjunction with the instruction that

       circumstantial evidence could prove a fact, the final instructions allowed the jury

       to consider the methamphetamine weight in determining Eldridge’s intent.

       Taking the instructions as a whole, and in light of the quantity of possessed

       methamphetamine, we thus find reversal is not warranted on this basis.


[37]   With regard to the second proposed jury instruction, we note the extensive final

       instructions provided to the jury on: direct and indirect possession; the

       insufficiency in finding possession supported merely by presence in a place where

       contraband is found; a defense relating to the termination of possession by way of

       being unaware for a sufficient time; and the State’s requirement to prove beyond

       a reasonable doubt the accused had the intent to maintain dominion and control

       over the item charged in the offense. See Transcript Volume III at 22-23, 27.

       Because the substance of Eldridge’s proposed instruction was covered by such

       other given instructions, we conclude the trial court did not abuse its discretion.

       See Newman v. State, 505 N.E.2d 442, 445 (Ind. 1987) (holding that the trial court

       did not err in refusing to give the defendant’s tendered instructions because the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 26 of 32
       substance of appellant’s tendered instructions were covered by the court’s other

       instructions); Lewis v. State, 898 N.E.2d 429, 434 (Ind. Ct. App. 2008) (holding

       that the substance of the defendant’s tendered instructions were covered by the

       instructions given by the trial court and the trial court did not abuse its discretion

       when it refused to give the defendant’s proposed jury instructions), trans. denied.


                                                         V.


[38]   The next issue is whether the evidence is sufficient to sustain Eldridge’s

       convictions. He argues that, to ensure due process, proof of identifying

       information must “confirm the jury intended to convict the same Joshua Ryan

       Eldridge who is a party of this proceeding,” and contends the date of birth in the

       photograph of the driver’s license is obscured. Appellant’s Brief at 25. He

       contends “weight alone” was relied on regarding the conviction for possession of

       methamphetamine with intent to deliver and that such reliance was clearly

       erroneous. Id. at 26. He argues the State lacked any evidence he knowingly

       possessed anything on July 2, 2018, and contends it did not demonstrate

       additional circumstances indicating an ability to control any contraband.


[39]   When reviewing claims of insufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

       817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable

       inferences therefrom that support the verdict. Id. Elements of offenses and

       identity may be established entirely by circumstantial evidence and the logical

       inferences drawn therefrom. Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 27 of 32
       1990). On appellate review of circumstantial evidence of guilt, this Court need

       not determine whether the circumstantial evidence is adequate to overcome every

       reasonable hypothesis of innocence, but rather whether inferences may be

       reasonably drawn from that evidence which support the verdict beyond a

       reasonable doubt. See id. at 1318. Identification testimony need not necessarily

       be unequivocal to sustain a conviction. Heeter v. State, 661 N.E.2d 612, 616 (Ind.

       Ct. App. 1996). Also, a conviction may be sustained on the uncorroborated

       testimony of a single witness or victim. Baltimore v. State, 878 N.E.2d 253, 258

       (Ind. Ct. App. 2007), trans. denied. The conviction will be affirmed if there exists

       evidence of probative value from which a reasonable jury could find the

       defendant guilty beyond a reasonable doubt. Jordan, 656 N.E.2d at 817.


[40]   With respect to identity, the record reveals the State presented the testimony of

       Nail, who indicated he lived in the other outbuilding on the same lot as Eldridge,

       identified Eldridge when shown the July 2, 2018 photograph that Officers St.

       John and Coryell testified accurately portrayed Eldridge’s appearance, and

       agreed that he was certain the photograph was of Eldridge. Nail’s testimony is

       consistent with Grubb’s testimony. Eldridge’s arguments about his identity

       amount to an invitation to reweigh the evidence, which we will not do.


[41]   We turn to the conviction for possession of methamphetamine with intent to

       deliver. To convict Eldridge of level 2 felony dealing in methamphetamine, the

       State was required to prove beyond a reasonable doubt that he possessed

       methamphetamine with intent to deliver it and that he possessed an amount of at

       least ten grams. See Ind. Code §§ 35-48-4-1.1(a)(2), -(e)(1). In addition to finding

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 28 of 32
       the jury could consider the weight of the methamphetamine when determining

       intent to deliver, we find that, on the evidence described above and within the

       record, the State provided additional evidence of probative value from which a

       reasonable jury could find Eldridge had the requisite intent to deal

       methamphetamine. Accordingly, we conclude the evidence is sufficient to

       support his conviction.


[42]   Similarly, we find the State has demonstrated additional circumstances indicating

       Eldridge’s capability and intent to maintain dominion and control over the

       contraband and knowledge of its presence when it provided uncontradicted

       evidence establishing: officers uncovered contraband and discovered other items

       belonging to Eldridge in a single-room shed which contained the furnishings of a

       dwelling and in which he had lived for “about three or four years”; that

       Eldridge’s driver’s license, found inside the shed, listed the address of the

       residence behind which the shed sat; and that Eldridge stood “just outside” the

       shed when officers approached. Under these circumstances and in light of the

       record, we conclude that evidence of probative value exists from which the jury

       as trier of fact could find that Eldridge had constructive possession of the

       contraband and could have found him guilty beyond a reasonable doubt as

       charged.


[43]   To the extent that Eldridge points to the charging information as alleged and

       argues the count of possession of a narcotic drug as a level 4 felony requires the

       State to have proven that possession occurred within five hundred feet of school

       property where a person under eighteen years of age was “reasonably expected to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 29 of 32
be,” Appellant’s Brief at 27, he contends it not reasonable to expect a person

under eighteen years of age “to be at school on July 2nd, a time at which children

are traditionally absent from school premises.” Appellant’s Reply Brief at 11. He

asserts the only testimony of children being present at the school was stricken as

hearsay. We note that the jury was presented with the testimony of Officer

Coryell, who indicated that he made an effort to find out if there were any

students present on July 2nd and testified that he “spoke with two members of

the faculty there” at the North School and “[t]hey have, it’s . . . at the time it was

called Martinsville Head Start . . . which is run by the MSD, the Metropolitan

School District of Martinsville.” 8 Transcript Volume II at 101. The reasoning in

McAlpin v. State, 80 N.E.3d 157 (Ind. 2017), is instructive. The McAlpin Court

discussed the “reasonably expected” standard in Ind. Code § 35-48-1-16.5 and

stated:


          Like the “reasonable care” standard in negligence law and the
          “reasonably expectable [use]” standard under Indiana’s Products
          Liability Act, the enhancement’s “reasonably expected” element
          does not rely on anyone’s subjective expectation. It does not
          require proof, for example, that the defendant actually anticipated
          that a child would be in the park. Instead, it asks what the
          ordinary reasonable person would expect under the circumstances.
          And that objective, fact-intensive standard is “best applied by a
          jury after hearing all of the evidence.” After all, the jury is a body




8
  Eldridge objected on hearsay grounds as Officer Coryell stated: “I spoke with two separate people there and
they said they had approximately eighteen kids . . .” Transcript Volume II at 101.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020                   Page 30 of 32
               of citizens whose collective experience allows it to “draw wiser
               and safer conclusions” than any one person could.


       80 N.E.3d at 162 (internal citations omitted). The Court rejected a defendant’s

       argument that the State need to have presented “what he calls the ‘best

       evidence’” – that children typically use the park “even while school is in session”

       – and framed the inquiry as “not whether the verdict was based on the ‘best

       evidence’ but whether it was based on a reasonable inference.” Id. at 163. Here,

       the jury was shown “an aerial photo of the north end of town,” and Officer

       Coryell identified and marked North School and the shed. Transcript Volume II

       at 132. Based on the record, we find that the jury could reasonably conclude

       Martinsville Head Start, run by the Metropolitan School District of Martinsville,

       resulted in the presence of children on July 2nd, and we decline Eldridge’s

       invitation to invade the jury’s province. See McAlpin, 80 N.E.3d at 163 (“In sum,

       this is a fact-sensitive issue that we ask juries to resolve by drawing - or not

       drawing – certain inferences. We ‘trust juries to make such inferential decisions;

       not because they are infallible, but because they have the clearest view of the

       evidence to sift through subtle contextual factors. In making those judgment

       calls, the jury applies its ‘experiences in life,’ ‘common sense,’ and the

       ‘conscience of our society’ as it ‘take[s] into account all of the facts and

       circumstances.’ With that in mind, we decline McAlpin’s invitation to invade

       the jury’s province and thus reject his sufficiency claim.”) (internal citations

       omitted).


[44]   For the foregoing reasons, we affirm Eldridge’s convictions.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 31 of 32
[45]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2564 | June 17, 2020   Page 32 of 32
