MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Jul 28 2016, 8:32 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Houdek                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

French Tibbs,                                            July 28, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1511-CR-1956
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese M.
Appellee-Plaintiff.                                      Flowers, Judge
                                                         Trial Court Cause No.
                                                         49G20-1311-FD-72537



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1956 | July 28, 2016           Page 1 of 10
                                        Statement of the Case
[1]   French Tibbs appeals his conviction for dealing in marijuana, as a class D

      felony, following a jury trial. He raises one issue on appeal, namely, whether

      the State presented sufficient evidence to support his conviction.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In 2013, Tibbs owned and operated a variety store located in a residential area

      at 2623 North White Avenue in Indianapolis. The store was in a larger

      building that was owned by Tibbs’ father. On November 7, 2013, Detective

      Scott Brimer of the Indianapolis Metropolitan Police Department (“IMPD”)

      Metro Drug Task Force and his team executed a search warrant at Tibbs’

      variety store. The IMPD had obtained the search warrant based on information

      provided by a confidential informant who had engaged in three separate drug

      buys from the variety store. The confidential informant was credible and

      reliable as she had “provided information and/or evidence on at least three

      separate occasions that [had] lead [sic] to at least three separate seizures, arrests,

      and convictions.” State’s Ex. 1 at 4.


[4]   On November 7, Detective Brimer entered Tibbs’ store and encountered Tibbs,

      who was standing in the customer area of the store, which was a common area

      that could be accessed by the general public. Detective Brimer proceeded to the

      back room of the store, which was the employee area, while other IMPD

      officers secured Tibbs. The employee area was partitioned off from the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1956 | July 28, 2016   Page 2 of 10
      customer area by a door and a plexiglass wall with a hole in it. A black curtain

      was placed on the plexiglass wall such that the employee area would be

      obscured from view by anyone in the customer area. The door to the employee

      area was open at the time of the search, and Detective Brimer walked through

      the door and saw Vino Mason standing by one of two tables in the room. Vino

      Mason was not an employee of the store, and he was the only person besides

      Tibbs in the store at the time of the search.


[5]   The employee area had two tables and a refrigerator. One table held a

      television, a telephone, a wallet and other objects. The second table held

      several soda bottles and cans, cleaning products, a clear glass jar with 19.54

      grams of marijuana in it, and a digital scale next to the jar. On the floor below

      the second table lay a white, opaque plastic bag with the words “Finish Line”

      on it. The Finish Line bag contained a Ziplock bag with 68.12 grams of

      marijuana in it. The officers found a second digital scale in a box on a ledge by

      the plexiglass wall. The refrigerator contained a bottle with pills containing

      different controlled substances.


[6]   The officers arrested both Tibbs and Mason. During the search incident to

      Tibbs’ arrest, Detectives Wolfe and Brimer found over $1000 in cash on Tibbs’

      person. Tibbs stated to Detective Brimer that the money was the proceeds from

      the store and was used to pay the store’s bills. He stated that the store did not

      have a cash register, nor did he keep any receipts from store sales. Tibbs stated

      that he kept the store’s money in a box, but the officers did not find any such

      box in their search of the store.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1956 | July 28, 2016   Page 3 of 10
[7]   On November 7, the State charged Tibbs with count I, dealing in marijuana, as

      a Class D felony; count II, possession of marijuana, as a Class D felony; count

      III, dealing in a controlled substance, as a Class B felony; and count IV,

      possession of a controlled substance, as a Class D felony. At Tibbs’ August 26

      to August 27 jury trial, the State presented the testimony of Detective Jeremy

      Ingram, who was involved in the search in this case and had twelve years of

      experience investigating drug crimes. Detective Ingram testified that, in his

      experience, variety stores can be used as a front for drug trafficking. He also

      testified that, while drug dealers often use digital scales to weigh drugs, he has

      never encountered a drug user or buyer who carries a scale to double check the

      quantity of drugs he has bought. Detective Brimer testified that the hole in the

      plexiglass wall between the customer area and the employee area was “where

      they can conduct their transactions like you would see in a bank or a store in a

      high-crime area.” Tr. at 59.


[8]   Following the trial, the jury found Tibbs guilty of counts I and II and not guilty

      of counts III and IV. At sentencing, the trial court merged count II with count I

      and sentenced Tibbs to two years in prison, with one year suspended to

      probation and one year executed through community corrections. This appeal

      ensued.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1956 | July 28, 2016   Page 4 of 10
                                      Discussion and Decision
                                              Standard of Review

[9]    Tibbs maintains that the State failed to provide sufficient evidence to support

       his conviction. In reviewing a sufficiency of the evidence claim, we neither

       reweigh the evidence nor assess the credibility of the witnesses. See, e.g., Jackson

       v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative

       evidence and reasonable inferences therefrom that support the conviction,

       Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans. denied, and we

       “consider conflicting evidence most favorably to the trial court’s ruling,” Wright

       v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the probative evidence

       and reasonable inferences drawn from that evidence “could have allowed a

       reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”

       Jackson, 925 N.E.2d at 375.


                                                    Possession

[10]   To prove Tibbs committed the crime of dealing marijuana, as a Class D felony,

       the State had to prove that Tibbs (1) possessed marijuana (2) in an amount of

       more than thirty grams but less than ten pounds (3) with the intent to deliver the

       marijuana. Ind. Code § 35-48-4-10(b)(1)(B) (2013). A person actually possesses

       contraband when he has direct physical control over it. Gray v. State, 957

       N.E.2d 171, 174 (Ind. 2011). However,

               [w]hen the State cannot show actual possession, a conviction for
               possessing contraband may rest instead on proof of constructive
               possession. A person constructively possesses contraband when

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1956 | July 28, 2016   Page 5 of 10
        the person has (1) the capability to maintain dominion and
        control over the item; and (2) the intent to maintain dominion
        and control over it. A trier of fact may infer that a defendant had
        the capability to maintain dominion and control over contraband
        from the simple fact that the defendant had a possessory interest
        in the premises on which an officer found the item. We allow
        this inference even when that possessory interest is not exclusive.


        A trier of fact may likewise infer that a defendant had the intent
        to maintain dominion and control over contraband from the
        defendant’s possessory interest in the premises, even when that
        possessory interest is not exclusive. When that possessory
        interest is not exclusive, however, the State must support this
        second inference with additional circumstances pointing to the
        defendant’s knowledge of the presence and the nature of the
        item. We have previously identified some possible examples,
        including (1) a defendant’s incriminating statements; (2) a
        defendant’s attempting to leave or making furtive gestures; (3) the
        location of contraband like drugs in settings suggesting
        manufacturing; (4) the item’s proximity to the defendant; (5) the
        location of contraband within the defendant’s plain view; and (6)
        the mingling of contraband with other items the defendant owns.


        A defendant’s proximity to contraband “in plain view” . . . will
        support an inference of intent to maintain dominion or control.
        In addition to being in plain view, however, the contraband’s
        incriminating character must be immediately apparent. Whether
        the incriminating character of contraband was immediately
        apparent depends on an analysis similar to the one we use to
        determine the admissibility of evidence seized in a warrantless
        search under the plain view doctrine. It does not take much to
        recognize the incriminating character of marijuana.


Id. at 174-75 (internal quotations and citations omitted).



Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1956 | July 28, 2016   Page 6 of 10
[11]   The “additional circumstances” from which a person’s knowledge of the

       presence and character of contraband can be inferred are not limited to those

       specifically outlined in Gray, above. Rather, “[o]ther circumstances could just

       as reasonably demonstrate the requisite knowledge,” such as the nature of the

       place where the contraband is found. Carnes v. State, 480 N.E.2d 581, 586-87

       (Ind. Ct. App. 1985). That is, the place where the contraband is found “may be

       such that it would defy logic and human experience, and force upon the courts

       an unwarranted naivete, to believe that adults with a possessory interest in the

       premises were unaware of the presence of the contraband.” Id. at 587.


[12]   Here, none of the drugs were found on Tibbs’ person, so the State could not

       show actual possession. Moreover, we cannot infer that Tibbs had constructive

       possession of the contraband simply because he owned and operated the store.

       Tibbs’ interest in the property was not exclusive given that his father owned the

       building in which the store was located and another person, Mason, was in the

       employee area at the time of the search. Therefore, while Tibbs’ possessory

       interest in the premises is sufficient to show his capability to possess the

       contraband, we must look at additional circumstances to determine whether an

       inference exists to show that he intended to possess the contraband. Id.


[13]   There was sufficient evidence from which a trier of fact could infer that Tibbs

       intended to possess the marijuana discovered at the store. Tibbs was in close

       proximity to the marijuana, and the 19.54 grams of marijuana in the glass jar

       were in plain view. He was standing in the adjoining customer area and the

       door to the employee area was open. As the store owner and the only

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1956 | July 28, 2016   Page 7 of 10
       employee in the store, it is reasonable to infer that Tibbs frequented the

       employee area. Carnes, 480 N.E.2d at 587 (holding defendant’s knowledge of

       the contraband could be inferred from the fact that it was located in the kitchen

       refrigerator and “[h]uman experience tells us that adult members of a

       household are in and out a kitchen refrigerator as a matter of course”). In the

       middle of the employee area, the table held the clear glass jar that contained a

       green leafy substance easily identifiable as marijuana. Also sitting on the table

       in plain view was a digital scale. Finally, the black curtain over the plexiglass

       divider between the customer area and the employee area suggests that Tibbs

       intended to conceal the activities in the employee area.


[14]   Further, while the 68.12 grams of marijuana contained in the Finish Line bag

       were not “in plain view” because the bag was opaque, see, e.g., Gee v. State, 810

       N.E.2d 338, 342-43 (Ind. 2011), nonetheless the totality of the circumstances

       here create a reasonable inference that Tibbs had knowledge of the marijuana in

       the Finish Line bag. Again, Tibbs was in close proximity to the employee area

       where the bag was located, and other marijuana and a digital scale were in

       plain view in that room. And Tibbs had a large amount of cash on his person

       and no receipts or other documentation to confirm his statement that the

       money was from store sales. Thus, the nature of the place where the drugs were

       found (i.e., the employee area) combined with the other relevant circumstances

       are sufficient to show that Tibbs constructively possessed the entirety of the

       marijuana found in that area. Carnes, 480 N.E.2d at 587.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1956 | July 28, 2016   Page 8 of 10
                                                Intent to Deliver

[15]   To prove Tibbs was dealing more than thirty grams of marijuana, the State had

       to show that he intended to deliver it. I.C. § 35-48-4-10(a). “Because intent is a

       mental state, and because it is often the case that an actor does not verbally

       express intent, the trier of fact must usually resort to reasonable inferences

       based on examination of the surrounding circumstances to determine the

       existence of the requisite intent.” Chandler v. State, 581 N.E.2d 1233, 1237 (Ind.

       1991). Intent to deliver contraband can be inferred from such surrounding

       circumstances as possession of a large quantity of drugs, a large amount of

       currency, scales, plastic bags and other paraphernalia, as well as evidence of

       other drug transactions. Bradley v. State, 44 N.E.3d 7, 24 (Ind. Ct. App. 2015)

       (citing Chandler, 581 N.E.2d at 1237). Such circumstantial evidence is sufficient

       to support a conviction. Id.


[16]   Here, the evidence established that Tibbs possessed a total of 87.66 grams of

       marijuana, which is certainly a “large amount.” See, e.g., Montego v. State, 76

       (noting that a quantity of drugs permitting an inference of an intent to sell “is

       one which could not be personally consumed or utilized and therefore of

       necessity [is] available for delivery”). And other circumstantial evidence also

       supports an inference that Tibbs intended to deliver the marijuana. The search

       warrant was based on information provided by a credible, reliable confidential

       informant who had previously engaged in three separate drug buys from the

       variety store owned by Tibbs. Tibbs possessed a digital scale, which Detective

       Ingram testified are often used by drug dealers but not drug users, and the scale

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1956 | July 28, 2016   Page 9 of 10
       was located next to the jar of marijuana and right above the bag of marijuana.

       And Tibbs had on his person a large sum of money. This was sufficient

       evidence from which the jury could reasonably infer that Tibbs intended to sell

       the marijuana. Tibbs’ assertions to the contrary are merely requests that we

       reweigh the evidence, which we will not do. See Jackson, 925 N.E.2d at 375.


                                                   Conclusion

[17]   There was sufficient evidence that Tibbs possessed more than thirty grams of

       marijuana with the intent to deliver. Therefore, we affirm his conviction.


[18]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1956 | July 28, 2016   Page 10 of 10
