MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D), this                               Jan 02 2018, 8:32 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                             CLERK
                                                                           Indiana Supreme Court
purpose of establishing the defense of res judicata,                          Court of Appeals
                                                                                and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven Knecht                                             Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                                Attorney General of Indiana
Lafayette, Indiana
                                                          Justin F. Roebel
                                                          Supervising Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Thomas,                                          January 2, 2018

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         91A02-1704-CR-872
        v.                                               Appeal from the White Superior
                                                         Court.
                                                         The Honorable Robert B. Mrzlack,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         91D01-1605-F2-65




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018              Page 1 of 7
[1]   Michael Thomas appeals after being convicted of one count of dealing in
                    1                                                                         2
      cocaine, as a Level 2 felony, and one count of possession of marijuana, as a

      Class B misdemeanor, contending that there is insufficient evidence to support

      his conviction of dealing in cocaine. He does not challenge his conviction of

      possession of marijuana. We affirm.


[2]   On May 3, 2016, Antonio Lawrence was driving a vehicle in which Thomas

      was a passenger when a Brookston police officer pulled the vehicle over. After

      the officer approached, Lawrence sped away.


[3]   A short time later, at approximately six o’clock in the evening when it was still

      light out, police received a 911 call from a concerned homeowner in Brookston.

      He went to the window of his home to investigate why his dog was barking.

      The homeowner indicated that there was a slender male he had never seen

      before crouched down near the shed in his yard. He also observed a vehicle

      parked in the alley at the end of his driveway. Thomas was ultimately arrested

      at that location.


[4]   An officer responding to the call looked in the area where Thomas was found

      and discovered two bags of what appeared to be narcotics next to the fence




      1
          Ind. Code § 35-48-4-1(a), (e) (2014).
      2
          Ind. Code § 35-48-4-11(a)(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018   Page 2 of 7
      inside the yard. The officer described the bags as “fresh” because they were

      neither wet, nor covered in dirt. Tr. Vol. II, p. 59.


[5]   The bags contained two observably different substances. The first bag appeared

      to contain marijuana based upon the color of the substance and the strong odor.

      The second bag contained twenty-one smaller baggies, each containing a white,

      rocky substance. Eighteen of the twenty-one baggies were approximately the

      size of a tooth. The other three baggies contained large pieces of the white

      substance approximately the size of a quarter. Subsequent testing of the white,

      rocky substance revealed that it was cocaine weighing almost seventeen grams

      in the aggregate.


[6]   After Thomas was handcuffed, an officer conducted a pat-down search during

      which the officer found eleven dollars in Thomas’ pocket. However, when

      Thomas was being processed at the jail, jail deputies found $800 in Thomas’

      right shoe between his foot and the sole of the shoe.


[7]   The State charged Thomas with dealing in cocaine, possession of cocaine,

      resisting law enforcement, and possession of marijuana. While Thomas was

      incarcerated on those pending charges, he placed a telephone call on May 11,

      2016, which was recorded by the jail. Thomas intimated during the telephone

      call that Lawrence might have set him up. He stated that Lawrence directed

      him to carry the drugs. After the fact, Thomas stated that he wanted to leave

      the drugs somewhere and blamed Lawrence for not helping him hide the drugs.




      Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018   Page 3 of 7
[8]    Additionally, during the call, Thomas used coded words, indicating the amount

       of cocaine and money in his possession at the time of the stop. Lawrence

       testified against Thomas at trial and explained the meaning of the drug-related

       or coded words used during the recorded call Thomas made at jail. He also

       testified that he had been selling cocaine with Thomas and that he knew

       Thomas possessed the drugs when the car was stopped by the officer.


[9]    Thomas’ jury trial began on February 28, 2017, and ended on March 2, 2017.

       The jury found Thomas guilty of possession of marijuana, as a Class B

       misdemeanor, and dealing in cocaine, as a Level 2 felony. Thomas now

       appeals.


[10]   Thomas contends that there is insufficient evidence to support his conviction.

       Upon review of a sufficiency of the evidence claim, we evaluate the probative

       evidence and the reasonable inferences supporting the verdict. Love v. State, 73

       N.E.3d 693 (Ind. 2017). We do not reassess the credibility of witnesses or

       reweigh the evidence. Id. We will affirm the conviction unless no reasonable

       fact-finder could find that the crime was proven beyond a reasonable doubt. Id.

       If a conviction is based on circumstantial evidence, that evidence need not

       overcome every reasonable hypothesis of innocence. Moore v. State, 652 N.E.2d

       53 (Ind. 1995). It is sufficient if an inference reasonably tending to support the

       verdict can be drawn from the circumstantial evidence. Id.


[11]   To establish that Thomas had committed the criminal offense of dealing in

       cocaine as a Level 2 felony, the State was required to prove beyond a


       Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018   Page 4 of 7
       reasonable doubt that Thomas knowingly possessed at least ten grams of

       cocaine with the intent to deliver. Ind. Code § 35-48-4-1.


[12]   A conviction for possession of contraband may be based on evidence of actual

       or constructive possession. Griffin v. State, 945 N.E.2d 781 (Ind. Ct. App. 2011).

       The two differ in that actual possession occurs when a defendant has direct

       physical control over an item, whereas constructive possession occurs when the

       defendant has the intent and capability to maintain dominion and control over

       the item. Id.


[13]   In cases involving constructive possession, the State must establish a

       defendant’s knowledge of the presence of the contraband to prove intent to

       possess. Thompson v. State, 966 N.E.2d 112 (Ind. Ct. App. 2012), trans. denied.

       Knowledge may be inferred from exclusive dominion and control over the

       premises containing the contraband. Ables v. State, 848 N.E.2d 293 (Ind. Ct.

       App. 2006). If the control is non-exclusive, then knowledge may be inferred

       from additional circumstances pointing to the defendant’s knowledge of the

       presence of the contraband. Id. Some examples of the ways knowledge has

       been inferred include the following: (1) incriminating statements by the

       defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing

       setting; (4) proximity of the contraband to the defendant; (5) location of the

       contraband within the defendant’s plain view; and (6) the mingling of the

       contraband with other items owned by the defendant. Id. The element of

       capability is established if the State shows that the defendant is able to reduce

       the controlled substance to his personal possession. Id.

       Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018   Page 5 of 7
[14]   Here, the State’s evidence established Thomas’ actual and constructive

       possession of the cocaine. First, Lawrence testified that he had been dealing

       drugs with Thomas and that he knew Thomas possessed the cocaine at the time

       of the traffic stop. Further, evidence of Thomas’ telephone calls from the jail

       confirmed his possession of the contraband. He expressed his displeasure with

       Lawrence’s insistence that he keep the cocaine with him instead of leaving it

       where they had been staying and for failing to help him hide the contraband.

       Coded words used by Thomas, that were later explained by Lawrence,

       indicated how much cocaine Thomas had in his possession. The coded

       terminology used by Thomas roughly equates to the amount of cocaine

       recovered by police.


[15]   Thomas also raises an incredible dubiosity argument regarding Lawrence’s

       testimony. That argument is limited to cases where: (1) there is a sole

       testifying witness; (2) the testimony is inherently contradictory, equivocal, or

       the result of coercion; and (3) there is a complete absence of circumstantial

       evidence. Smith v. State, 34 N.E.3d 1211 (Ind. 2015).


[16]   Circumstantial evidence presented to the jury reflected that Thomas fled from

       police officers and hid by a shed in an unknown homeowner’s yard near where

       the discarded contraband was located in a “fresh” condition. Thomas was the

       only person found in the homeowner’s fenced backyard. Evidence of flight is

       competent evidence to illustrate a consciousness of guilt, but the weight to be

       attributed to that evidence is for the trier of fact. Myers v. State, 27 N.E.3d 1069

       (Ind. 2015). Evidence of an attempt to avoid arrest tends to show guilt. Id.

       Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018   Page 6 of 7
[17]   Thomas was the only person found in the homeowner’s fenced yard. Lawrence

       testified that he fled the car in a different direction. An officer described bags of

       contraband found in the backyard near where Thomas was crouched as “fresh”.

       Further, although only eleven dollars was found in Thomas’s pocket, $800 was

       found between his right foot and the sole of his shoe. Possession of a large

       amount of money is circumstantial evidence of intent to deliver. Wilson v. State,

       754 N.E.2d 950 (Ind. Ct. App. 2001). Thomas has not established that

       Lawrence’s testimony is subject to attack for incredible dubiosity.


[18]   There is sufficient evidence to support Thomas’ conviction for possession with

       intent to deliver cocaine.


[19]   Judgment affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 91A02-1704-CR-872 | January 2, 2018   Page 7 of 7
