                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                            Dec 28 2012, 9:50 am
any court except for the purpose of
establishing the defense of res judicata,
                                                                   CLERK
collateral estoppel, or the law of the case.                     of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

STEVEN E. RIPSTRA                                  GREGORY F. ZOELLER
Jasper, Indiana                                    Attorney General of Indiana

                                                   JODI KATHRYN STEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ALEXANDER A. LOPEZ,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 63A04-1201-CR-35
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                        APPEAL FROM THE PIKE CIRCUIT COURT
                         The Honorable Jeffrey L. Biesterveld, Judge
                              Cause No. 63C01-1110-CM-186


                                       December 28, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                STATEMENT OF THE CASE

         Alexander Lopez (“Lopez”) appeals his conviction for class A misdemeanor

dealing in marijuana.1

         We affirm.

                                            ISSUES

         1.      Whether there is sufficient evidence to support the conviction.

         2.      Whether the trial court abused its discretion in admitting evidence.

         3.      Whether fundamental error occurred when the State referred to
                 Lopez’s speedy trial request.

         4.      Whether the trial court abused its discretion in denying Lopez’s motion for
                 leave to file a belated motion to correct error.


                                            FACTS

         On October 2, 2011, deputies with the Pike County Sheriff’s Department executed

a search warrant for the Winslow residence of Ryan Herald (“Herald”) after conducting

several controlled drug buys. In addition to seizing several drug-related items from the

residence, deputies seized Herald’s cell phone.

         Later that evening, Deputy Jeff Boger (“Deputy Boger”) took Herald’s cell phone

back to the department in order to “go through it and . . . find out more information

relating to . . . the sale and purchase of drugs.” (Tr. 52). After the phone started ringing,

Deputy Boger checked the caller ID, which indicated that the caller’s name was “Flaco,”


1
    Ind. Code § 35-48-4-10.

                                                   2
Lopez’s nickname. (Tr. 53). Without identifying himself, Deputy Boger answered the

phone. Lopez, who apparently believed that he was speaking with Herald, “started off by

asking for a ride . . . .” (Tr. 53). At some point in the conversation, Lopez “said he

would give half an ounce . . . of marijuana” for a ride to Indianapolis. (Tr. 54). Deputy

Boger “played along,” and told Lopez that he could provide him with a ride in exchange

for marijuana. (Tr. 55). Deputy Boger arranged to meet Lopez at Herald’s residence the

next morning.

       The next morning, Deputy Boger and several other officers with the Pike County

Sheriff’s Department and the Petersburg Police Department positioned themselves “four

or five houses down from” Herald’s residence on County Road 300 East. (Tr. 56).

Deputy Boger and Lopez telephoned “back and forth” several times. (Tr. 57). At one

point, Lopez gave the phone to Joaquin Cunningham (“Cunningham”), who was driving

Lopez from Evansville to Herald’s residence, and Deputy Boger spoke with

Cunningham. As Lopez and Cunningham drove by the officers in Cunningham’s pick-up

truck, Lopez mentioned the officers’ presence, but Deputy Boger reassured him that

“they were cool.” (Tr. 80).

       As Deputy Boger spoke with Lopez, Cunningham and Lopez drove “southbound

past” the officers, “[w]ent out of sight briefly,” and then passed the officers again. (Tr.

60). Because officers had discovered an AK-47 during the search of Herald’s residence

and did not know whether the truck’s occupants were armed, they initiated a stop of

Cunningham’s vehicle.

                                                3
        Officer Chad Tharp (“Officer Tharp”) ordered the occupants to put up their hands

and exit the vehicle. Cunningham “[i]mmediately” put up his hands and exited the

vehicle in accordance with the officer’s orders. (Tr. 87). Lopez started to comply with

Officer Tharp’s commands but lowered his hands as he looked over his shoulder toward

the officers. Lopez then reached down and leaned over toward the center of the truck’s

cab before finally complying with Officer Tharp’s orders.

        After the officers read Cunningham and Lopez their Miranda rights, Cunningham

consented to a search of his vehicle. Cunningham also volunteered that he had marijuana

in his pocket. A search of Cunningham did reveal “a small bag of marijuana in his

pocket.” (Tr. 156). Once the officers had handcuffed and seated Cunningham and

Lopez, Officer Tharp overheard Lopez tell Cunningham that “he couldn’t go down for

that . . . .” (Tr. 139).

        During a search of the truck, Deputy Dallas Killian (“Deputy Killian”) located a

baggie “on the transmission covering or hump . . . between the passenger and driver”

sides. (Tr. 159). The baggie contained fourteen (14) grams, or one-half (1/2) ounce, of

marijuana. Cunningham denied knowing anything about the marijuana discovered in the

truck. Officers also recovered a bag belonging to Lopez in the cab.

        After placing Lopez and Cunningham under arrest, deputies transported them to

the Pike County Jail, where they were housed together.            On October 4, 2011,

Cunningham made a voluntary statement, wherein he represented the following:



                                               4
       I . . . am a witness that my cousin [Lopez] had no poss [sic] of marijuana or
       intent to sell. He was simply trying to get a ride to Indianapolis to get tires
       for his truck. The marijuana that was found in th[e] truck was in my
       possession because the truck was mine, [e]ven tho [sic] I was unaware of it
       being in there. [Lopez] had no awareness that the marijuana was in there as
       well.

(Lopez’s Ex. B).

       On October 5, 2011, the State charged Lopez with Count 1, class A misdemeanor

possession of marijuana, and Count 2, class A misdemeanor possessing marijuana with

the intent to deliver. That same day, Rebecca Burns (“Burns”), Cunningham’s mother,

spoke with Lopez on the telephone while Lopez was in jail. During the conversation,

which was recorded and later transcribed, Lopez offered Burns money if Burns would

telephone the prosecutor and try to get the charges against Lopez dropped. Lopez told

Burns to represent that Lopez was her nephew and that he should be released because

Cunningham had made a voluntary statement. Lopez told Burns that “they ain’t [sic]

going to do nothing [sic] to” Cunningham for what would be a misdemeanor conviction

whereas Lopez would get a harsher sentence because he was on parole at the time for

“[d]rug dealing and trafficking cocaine . . . .” (State’s Ex. 4 at 19).

       Subsequently, while Lopez was in court for a pre-trial hearing, Deputy John

Palmer (“Deputy Palmer”) overheard Lopez tell a bailiff that “all [he] had was a small

bag of marijuana and they’re trying to make a big deal of it.” (Tr. 120). On another

occasion, Deputy Palmer overheard Lopez say that “[a]ll [he] had was a small bag of




                                                  5
marijuana.” (Tr. 121). Lopez made this statement after meeting with the prosecutor and

his counsel.

        The trial court commenced a two-day jury trial on December 12, 2011. During the

trial, Cunningham testified that he had purchased the marijuana found in the truck

approximately three days prior to being stopped, but he had forgotten “where [he] put it.”

(Tr. 297). Cunningham further testified that he usually purchased his marijuana from a

“Michael Smith,” but he did not know “for sure” the name of the person from whom he

purchased the marijuana found in the truck. (Tr. 280). He also did not know what the

person looked like or where he had purchased the marijuana. He testified that he usually

purchased only “very little sacks” of marijuana and seldom purchased “halves and ounces

. . . .” (Tr. 281).

        Also during the trial, the trial court, over Lopez’s objections, admitted into

evidence the recording of the telephone call between Lopez and Burns and the deposition

testimony of Deputy Don Burkhart (“Deputy Burkhart”), who was unavailable for trial.

Deputy Burkhart testified that he had observed Lopez and Cunningham having a

conversation, “being led primarily by” Lopez, in the jail’s outdoor recreation area shortly

before Cunningham requested a voluntary statement form from the deputies. (State’s Ex.

3 at 8).

        On the morning of the second day of the trial, the State advised the trial court and

Lopez’s counsel that as Deputy Killian was leading Lopez out of the courtroom following

the prior day’s proceedings, the jurors also were leaving the courtroom “and some of

                                                 6
them may have seen [Lopez] in handcuffs.” (Tr. 208). The State reported that Lopez

then

       had an outburst and attempted to draw the fact that he was in handcuffs to
       the attention of more jurors by raising his hands up and . . . gesturing with
       the handcuffs and . . . saying words to the effect of: See. They’ve got me
       in handcuffs. See. They’ve got me in handcuffs.

(Tr. 208-09). Deputy Killian hurried Lopez into an elevator and went straight to the first

floor. Upon exiting the elevator, however, Lopez noticed that some of the jurors had

reached the first floor, and he again “attempted to bring the fact that he was handcuffed to

the attention of the jurors” before being “forcibly removed” from the courthouse by

Deputy Killian. (Tr. 209).

       Outside the presence of the jury and after consulting with Lopez, Lopez’s counsel

advised the trial court that Lopez was merely upset because he was handcuffed despite

already being restrained by a knee brace. Lopez’s counsel then sought a mistrial “due to

the fact that there was knowledge [Lopez] had a knee brace on. It was a restraining

device used by the officers . . . [a]nd there was no need for the handcuffs . . . .” (Tr. 212-

12).

       In order to determine whether there was any prejudice, the trial court voir dired the

jurors regarding what they observed or heard after leaving the courtroom. Juror #1 saw

nothing. Juror #2 “wasn’t paying attention” and did not know whether Lopez was

handcuffed or not. (Tr. 221). Juror #3 did not see Lopez wearing handcuffs but heard

Lopez say, “you’re not suppose [sic] to see me in handcuffs.” (Tr. 223). Juror #4 did


                                                 7
observe Lopez wearing handcuffs but “assumed he would be in handcuffs going back and

forth from [the courtroom] to the jail.” (Tr. 226). Juror #5 observed Lopez being placed

in a police vehicle but “didn’t pay that much attention” to whether he was handcuffed.

(Tr. 230). Juror #6 denied seeing Lopez in handcuffs. The alternate juror “didn’t pay

attention” to Lopez as they were leaving the courtroom. (Tr. 236). All of the jurors

indicated that they could be fair and impartial and nothing that they saw or heard would

affect the presumption of innocence. The trial court therefore denied Lopez’s motion for

mistrial.

       The jury found Lopez guilty on both counts. At the sentencing hearing, the trial

court merged Count 1 with Count 2 and imposed a 365-day sentence to be served in the

Pike County Security Center.       The trial court further ordered that the sentence run

consecutively to the sentences imposed under three other cause numbers.

       Lopez, pro se, filed a notice of appeal on January 24, 2012. On February 6, 2012,

Lopez, by counsel, filed an amended notice of appeal. On April 5, 2012, the Court

Reporter for the Pike Circuit Court (the “Court Reporter”) filed the trial transcript.

       On April 25, 2012, Lopez filed a motion for leave to file a belated motion to

correct error pursuant to Indiana Post-Conviction Rule 2 after his appellate counsel

discovered that State’s Exhibits 3 and 4 had not been “transcribed in the trial

Transcript[.]” (App. 178). Specifically, Lopez sought “to hold an evidentiary hearing, in

order to make a complete record for appeal; which hearing may likely consist of



                                                 8
testimony from police officers present during the ‘handcuff’ incident, along with the

seven (7) jurors . . . .” (App. 179).

       On May 23, 2012, Lopez also filed a motion with this Court, seeking to stay and

remand his appeal to the trial court, or in the alternative, for an extension of time to file

his appellant’s brief. This Court ordered the Court Reporter to transcribe the two audio

exhibits, to file a supplemental transcript, and to file an amended notice of completion of

the transcript, thirty (30) days after which Lopez’s brief would be due. On May 18 and

June 18, 2012, the Court Reporter filed notice of the filing of the transcript of State’s

Exhibit 3 and State’s Exhibit 4, respectively.

       At some point, the trial court held a hearing on Lopez’s motion, and on June 18,

2012, the trial court denied the motion. Specifically, the court explained that it denied the

motion because Lopez’s direct appeal was pending in this Court. Lopez now appeals his

conviction as well as the denial of his motion.

                                        DECISION

1. Sufficiency of the Evidence

       Lopez asserts that the evidence is insufficient to support his conviction for dealing

in marijuana.

               When reviewing the sufficiency of the evidence to support a
       conviction, appellate courts must consider only the probative evidence and
       reasonable inferences supporting the verdict. It is the fact-finder’s role, not
       that of appellate courts, to assess witness credibility and weigh the evidence
       to determine whether it is sufficient to support a conviction. To preserve
       this structure, when appellate courts are confronted with conflicting
       evidence, they must consider it most favorably to the trial court’s ruling.

                                                  9
       Appellate courts affirm the conviction unless no reasonable fact-finder
       could find the elements of the crime proven beyond a reasonable doubt. It
       is therefore not necessary that the evidence overcome every reasonable
       hypothesis of innocence. The evidence is sufficient if an inference may
       reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations and citations omitted).

       To convict Lopez of class A misdemeanor possession of marijuana with intent to

deliver, the State was required to prove that he knowingly or intentionally possessed

thirty (30) grams or less of marijuana with the intent to deliver it to another person. See

I.C. § 35-48-4-10.

              This court has long recognized that a conviction for possession of
       contraband may be founded upon actual or constructive possession.
       Constructive possession is established by showing that the defendant has
       the intent and capability to maintain dominion and control over the
       contraband.

              In cases where the accused has exclusive possession of the premises
       on which the contraband is found, an inference is permitted that he or she
       knew of the presence of contraband and was capable of controlling it.
       However, when possession of the premises is non-exclusive, the inference
       is not permitted absent some additional circumstances indicating
       knowledge of the presence of the contraband and the ability to control it.
       Among the recognized “additional circumstances” are: (1) incriminating
       statements by the defendant; (2) attempted flight or furtive gestures; (3) a
       drug manufacturing setting; (4) proximity of the defendant to the
       contraband; (5) contraband is in plain view; and (6) location of the
       contraband is in close proximity to items owned by the defendant.

Holmes v. State, 785 N.E.2d 658, 660-61 (Ind. Ct. App. 2003) (citations omitted).

       It is undisputed that Lopez did not exercise exclusive control of the vehicle. Thus,

the State was required to present evidence of additional circumstances indicating his

knowledge of the presence of the marijuana and his ability to control it.

                                                10
       In this regard, the State presented evidence that Lopez made several incriminating

statements.   Namely, he offered one-half ounce of marijuana to Deputy Boger in

exchange for a ride to Indianapolis. Officers later found one-half ounce of marijuana in

the truck. Lopez also made statements about the amount of marijuana found in the truck,

stating that he only had a “small” amount. (Tr. 120, 121).

       The State also presented evidence that Lopez made furtive gestures after being

stopped by the police. Officers testified that despite numerous commands to put up his

hands, Lopez lowered them, out of the officers’ sight, as he leaned down and toward the

center of the truck. Deputy Killian discovered the bag of marijuana in plain view on the

floor of the truck, in the area where Lopez had made his furtive movements and in an

area to which Lopez had access. Officers also discovered items belonging to Lopez in

the cab of the truck.

       Contrary to Lopez’s assertion, this case is not analogous to Brent v. State, 957

N.E.2d 648 (Ind. Ct. App. 2011), trans. denied. In that case, this court found insufficient

evidence of constructive possession of marijuana, where the suspicious behavior was

attributable to the driver, not Brent, the passenger. Here, however, suspicious behavior

was also attributable to passenger Lopez.

       Here, the State presented evidence to support Lopez’s conviction for possession of

marijuana with the intent to deliver it to another person. Indiana Code § 35-48-1-11

defines “delivery” as meaning the actual or constructive transfer of a controlled substance

from one person to another. Because intent is a mental state, triers of fact generally must

                                               11
resort to the reasonable inferences arising from the surrounding circumstances to

determine whether the requisite intent exists. Love v. State, 741 N.E.2d 789, 792 (Ind.

Ct. App. 2001). Circumstantial evidence showing possession with intent to deliver may

support a conviction. Id.

      In this case, the State presented evidence that Lopez, believing he was speaking to

Herald, offered Deputy Boger one-half ounce of marijuana in exchange for a ride to

Indianapolis. Deputy Boger agreed and arranged to meet Lopez the next day. The

following day, Lopez spoke with Deputy Boger on the phone, intending to meet him as

arranged.    When Deputy Killian searched the truck in which Lopez was riding, he

discovered one-half ounce of marijuana in the truck. Given the evidence, the jury could

reasonably infer that Lopez intended to deliver the marijuana to Deputy Boger. We

decline Lopez’s invitation to reweigh the evidence or judge the credibility of the

witnesses.

2. Admission of Evidence

      Lopez also asserts that the trial court abused its discretion in admitting the

recording of the telephone conversation between Lopez and Burns wherein Lopez briefly

mentioned his parole three times, referred to his prior period of incarceration twice, and

referred to his prior conviction once. Specifically, Lopez argues that the evidence was

irrelevant; prejudicial; and prohibited by Evidence Rule 404(b), which provides that

“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith.”

                                               12
       Generally, a trial court’s ruling on the admissibility of evidence is reviewed for an

abuse of discretion. Hape v. State, 903 N.E.2d 977, 991 (Ind. Ct. App. 2009), trans.

denied. We will reverse a trial court’s decision only if it clearly against the logic and

effect of the facts and circumstances of the case. Id. Even if the decision was an abuse

of discretion, we will not reverse if the admission of evidence constituted harmless error.

Id.

       Here, we need not decide whether the trial court improperly admitted the

conversation because we conclude any error to be harmless.

       No error in the admission of evidence is grounds for setting aside a
       conviction unless such erroneous admission appears inconsistent with
       substantial justice or affects the substantial rights of the parties. The
       improper admission of evidence is harmless error when the conviction is
       supported by such substantial independent evidence of guilt as to satisfy the
       reviewing court that there is no substantial likelihood that the questioned
       evidence contributed to the conviction.

Lafayette v. State, 917 N.E.2d 660, 668 (Ind. 2009) (internal citations omitted).

       A reversal may be obtained only if the record as a whole discloses that the

erroneously admitted evidence was likely to have had a prejudicial impact upon the mind

of the average juror and thereby contributed to the verdict. Granger v. State, 946 N.E.2d

1209, 1217 (Ind. Ct. App. 2011). Thus, the question is not whether there is sufficient

evidence to support the conviction absent the erroneously admitted evidence, but whether

the evidence was likely to have had a prejudicial impact on the jury. Shepherd v. State,

902 N.E.2d 360, 364 (Ind. Ct. App. 2009), trans. denied.



                                                13
       Here, Deputy Boger testified that Lopez offered him one-half ounce of marijuana

in exchange for a ride to Indianapolis.          The State presented evidence that Lopez

possessed one-half ounce of marijuana on the day and at the place that he and Deputy

Boger had arranged to meet.        The State also presented evidence that Lopez made

incriminating statements.

       As to the recording, the jury heard approximately fifteen minutes of a telephone

conversation between Lopez and Burns wherein Lopez offered money if Burns would

telephone the prosecutor and the judge and tell them to release him because Cunningham

admitted that the marijuana was in his possession. Also in the recording, Lopez briefly

mentioned his parole three times, referred to his prior period of incarceration twice, and

referred to his prior conviction once. As to the jury hearing “themselves characterized as,

in essence and paraphrasing, ‘country redneck gringos,’” (Lopez’s Br. at 13), it was

Burns, not Lopez, who stated that Lopez and Cunningham were in “redneck” and

“gringo” territory. (State’s Ex. 4 at 10, 11).

       In light of the evidence, particularly Lopez’s incriminating statements, we cannot

say that admitting the recording had a prejudicial impact on the jury. We therefore find

that any error in admitting the evidence must be disregarded as harmless.

3. Fundamental Error

       During defense counsel’s cross examination of Deputy Boger, defense counsel

implied that the State was behind schedule on discovery.          The State objected and

explained to the trial court that the State was under a time constraint because of the

                                                  14
defendant’s assertion of his right to a speedy trial. Because Lopez did not object to the

State’s reference to the assertion of his right to a speedy trial at trial, Lopez now contends

that this reference constituted fundamental error.

       Fundamental error is a substantial, blatant violation of basic principles of due

process that render the trial unfair to the defendant. Stafford v. State, 736 N.E.2d 326,

332 (Ind. Ct. App. 2000), trans. denied. The fundamental error doctrine is extremely

narrow. Wooden v. State, 757 N.E.2d 212, 215 (Ind. Ct. App. 2000), trans. denied. In

order to qualify as fundamental error, the error must be so prejudicial to the rights of the

defendant as to make a fair trial impossible. Mitchell v. State, 726 N.E.2d 1228 (Ind.

2000), abrogated on other grounds by Beattie v. State, 924 N.E.2d 643 (Ind. 2012).

       Here, Lopez’s cursory one-page argument fails to allege how he was prejudiced by

this comment and how it made a fair trial impossible.           Further, our review of the

transcript reveals no such prejudice. We find no fundamental error.

4.     Motion to Correct Error

       Lopez contends that the trial court abused its discretion in denying his motion for

leave to file a belated motion to correct error. Lopez argues that he should be allowed “to

make a better record with respect to the juror examination conducted on th[e] issue” of

whether he was prejudiced by being in the jurors’ presence while in handcuffs. Lopez’s

Br. at 17.

       Lopez’s argument fails for several reasons. First, the State correctly points out

that this Court acquired jurisdiction when the notice of completion of clerk’s record was

                                                 15
filed on February 6, 2012. See Ind. Appellate Rule 8. The appeal of a conviction has the

effect of transferring jurisdiction of the case to the appellate court and suspending any

further trial court jurisdiction over the action. Bradley v. State, 649 N.E.2d 100, 106 (Ind.

1995). The trial court therefore lacked the authority to rule on Lopez’s motion and

properly denied the motion on that basis.

       Second, the State also correctly points out that Indiana Post-Conviction Relief

Rule 2(2) is not the proper avenue of relief for Lopez to pursue. Specifically, pursuant to

Rule 2(2), an eligible defendant who is entitled to relief on a belated motion to correct

error is a defendant who, but for the defendant’s failure to do so timely, would have the

right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty

by filing a notice of appeal. Here, however, Lopez timely filed a notice of appeal. He is

therefore not eligible to proceed under this rule.

       Lastly, even if the trial court had jurisdiction to rule on the motion, and Lopez was

eligible to proceed under Rule 2(2), his argument would still fail. This Court reviews the

denial of a belated motion to correct error for an abuse of discretion. Moshenek v. State,

868 N.E.2d 419, 422 (Ind. 2007). Our review of the evidence reveals that the situation

regarding the jurors seeing Lopez in handcuffs was promptly brought to the attention of

the trial court, and the jurors were individually questioned about what they had seen.

They were also asked whether what they had seen was in any way going to influence

them to believe that Lopez’s guilt was a foregone conclusion, and whether they had

formed at that point any conclusion as to Lopez’s guilt or innocence. All seven jurors

                                                 16
stated they would be fair and impartial. Although Lopez had the opportunity to question

officers about the incident, he failed to call them to the stand. Lopez provides no

compelling reason for this Court to allow him to supplement the trial record with

additional evidence. This is particularly true given that Lopez is, in part, responsible for

calling jurors’ attention to the fact that he was handcuffed. See Wright v. State, 828

N.E.2d 904 (Ind. 2005) (explaining that under the invited error doctrine, a party may not

take advantage of an error that he commits, invites, or which is the natural consequence

of his own neglect or misconduct). We find no error.

       Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.




                                                17
