 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
                                                                FILED
                                                              Sep 24 2012, 9:07 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:

KRISTINA J. JACOBUCCI                               GREGORY F. ZOELLER
LaPorte, Indiana                                    Attorney General of Indiana

                                                    AARON J. SPOLARICH
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JUSTIN L. SMART,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )        No. 46A05-1201-CR-20
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE LAPORTE CIRCUIT COURT
                          The Honorable Thomas J. Alevizos, Judge
                              Cause No. 46C01-1005-FB-199


                                        September 24, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       Justin L. Smart appeals his convictions for Class B felony dealing in cocaine and

Class C felony dealing in a look-alike substance. He contends that the evidence is

insufficient to support both convictions. Finding the evidence sufficient, we affirm.

                             Facts and Procedural History

       In 2009, R.H. was a confidential informant for the LaPorte County Sheriff’s

Department’s drug task force known as Metro. R.H. met Smart at a mutual friend’s

home sometime in the summer of 2009. R.H. did not know Smart’s last name when she

first met him. At some point R.H. took possession of Smart’s wallet, which contained his

Illinois driver’s license, and took it to Detective Brett Swanson with Metro. Detective

Swanson created a digital copy of Smart’s identification and later had R.H. confirm

Smart’s identity using a photograph printed from an Illinois database. R.H. and Smart

later spent multiple hours together at the mutual friend’s house on three to five different

occasions.

       On September 1, 2009, R.H. contacted detectives at Metro about purchasing

cocaine from Smart. R.H. then contacted Smart, who told R.H. to meet him in the

parking lot of the LaPorte Walmart.       Detective Swanson met with R.H. before the

controlled buy. He performed an outer-clothing pat down of R.H. and equipped her with

an audio recording device and a purse that contained a hidden camera. He also gave her

$50 in buy money that he had photocopied.

       At 3:00 p.m., Detective Swanson drove R.H. to Walmart in his unmarked police

car. R.H. got out of the car and briefly entered the store. When R.H. left the store, she


                                            2
approached a car that had pulled up in front of the store. R.H. entered the back passenger

seat of the car. Smart was sitting in the front passenger seat and a light-skinned black

male was driving the car. R.H. gave the buy money to the driver, and Smart handed R.H.

two baggies containing a white rock-like substance that appeared to be crack cocaine.

R.H. told Smart that she needed to purchase more crack cocaine shortly following this

transaction. The video and audio recording device captured some, but not all, of this

controlled buy. See State’s Ex. 5.

       R.H. got out of the car and returned to Detective Swanson’s car. R.H. gave

Detective Swanson the baggies, and Detective Swanson had R.H. briefly describe the

purchase. R.H. told Detective Swanson that she recognized Smart inside of the car. She

also told Detective Swanson that she gave the money to the driver and that Smart handed

her the two plastic baggies.

       R.H. then contacted Smart to arrange the second purchase that she had mentioned

to Smart while in the car. Smart instructed R.H. to meet him at a house on State Street in

LaPorte that she was unfamiliar with. R.H. did not get out of Detective Swanson’s car

between completing the first purchase and arriving at the location on State Street.

Detective Swanson performed another outer-clothing pat down of R.H. and gave her

another $50 in buy money and the purse with the recording equipment.

       At 3:24 p.m., R.H. got out of Detective Swanson’s car and knocked on the door of

the house. The driver from the first controlled buy at Walmart answered the door. At

this point, there is some question as to who handed R.H. a baggie containing the white

rock-like substance. The audio equipment did not pick up anything useful from the


                                            3
controlled buy, and unfortunately the video equipment did not work. A report that

Detective Swanson filled out that day indicated that a light-skinned black male – the

driver from the first controlled buy – handed R.H. the cocaine while Smart stood behind

the door. But as explained in detail below, by the time of trial, the State’s theory

changed, and R.H. testified that it was Smart who handed her the cocaine.

       In any event, R.H. returned to Detective Swanson’s car at 3:25 p.m. and gave him

the baggie. According to audio recording of this conversation, which unfortunately does

not settle the matter of who handed the cocaine to R.H., R.H. told Detective Swanson that

a light-skinned black male opened the door and called Smart a “stupid fu** for doing

that.” Id. R.H. also said that Smart was inside the house. Id.

       Detective Swanson followed the procedure for preserving the baggies as evidence

and transported them to the Indiana State Police Laboratory in Lowell. Kimberly Ivanyo,

a forensic drug chemist for the Indiana State Police, tested the white rock-like substances

provided by Detective Swanson. No controlled substance was found in the two baggies

from the first controlled buy at Walmart. The baggie from the second controlled buy

from the house on State Street contained cocaine base and weighed .31 grams.

       R.H. received $50 for each controlled buy she conducted on September 1, 2009.

She did not receive additional compensation for her trial testimony. R.H. continued to

work as a confidential informant for Metro after September 1, 2009. In order to protect

R.H.’s identity, Detective Swanson did not seek a warrant for Smart’s arrest until the

spring of 2010. When preparing the probable-cause affidavit in May 2010, Detective

Swanson wrote that R.H. told him during the debriefing process after the second


                                            4
controlled buy that a “‘little . . . light skinned black male’ answered the door and actually

sold them the ‘drugs’” and “Smart was in the house behind the door during the

transaction.” Def.’s Ex. C.

       On May 6, 2010, the State charged Smart with Class B felony aiding, inducing, or

causing dealing in cocaine and Class C felony dealing in a look-alike substance. Smart’s

jury trial began on November 9, 2011. Before any evidence was presented, the State filed

a motion to amend the charging information for Class B felony aiding, inducing, or

causing dealing in cocaine “due to an immaterial defect not affecting substantial rights of

the defendant.” Appellant’s App. p. 85. The motion provided:

       Upon examining the sworn deposition of the witness, [R.H.], and the
       surveillance recordings of the conduct at issue, the State finds that the
       additional language for aiding, inducing or causing the offense is
       superfluous and should be stricken from the charging information. This
       does not change the offense which the defendant is facing, the particulars of
       the offense, nor the possible punishments. All defenses available to the
       defendant under the aiding, inducing or causing theory of the case are still
       available to him.

Id. With no objection from the defense, the trial court granted the motion. Tr. p. 298-99.

Accordingly, the State amended the charge to Class B felony dealing in cocaine.

       Regarding the second controlled buy, R.H. testified that when she knocked on the

door, the driver from the first controlled buy answered the door and yelled at Smart, who

then came to the door.        R.H. gave Smart the money, Smart handed her a baggie

containing a white rock-like substance, and R.H. quickly left. During cross-examination,

R.H. remained firm that Smart – and not the light-skinned black male who answered the

door – was the one who sold her the cocaine. When defense counsel asked R.H. if it was

true that she told Metro officers that the light-skinned black male handed her the cocaine,

                                             5
R.H. responded that she never told Metro officers that; rather, she told them that Smart

handed her the cocaine.     Id. at 440.   As for Detective Swanson, defense counsel

vigorously cross-examined him about his various reports and deposition testimony that

indicated that R.H. told him that the light-skinned black male conducted the transaction

while Smart stood behind the door. Id. at 370-72.

       At the close of the State’s case in chief, Smart moved for judgment on the

evidence for Class B felony dealing in cocaine based on the conflicting evidence as to

who handed the cocaine to R.H. during the second controlled buy – Smart or the light-

skinned black male who drove the car during the first controlled buy. The trial court

denied Smart’s motion, and then Smart called Detective Swanson as a witness. Id. at

479. Smart renewed his motion at the close of the evidence, and the trial court again

denied it. Id. at 569.

       The jury found Smart guilty of Class B felony dealing in cocaine and Class C

felony dealing in a look-alike substance. The trial court sentenced Smart to fourteen

years, with four years suspended to probation, for Class B felony dealing in cocaine and

six years for Class C felony dealing in a look-alike substance. The court ordered the

sentences to be served concurrently. The court said that Smart “reserve[d] the right to

file for modification after six (6) years of serving [his] sentence.” Appellant’s App. p.

231.

       Smart now appeals.

                               Discussion and Decision




                                           6
        Smart contends that the evidence is insufficient to support his convictions for

Class C felony dealing in a look-alike substance and Class B felony dealing in cocaine.1

When reviewing the sufficiency of the evidence to support a conviction, we must

consider only the probative evidence and reasonable inferences supporting the verdict.

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or

reweigh the evidence. Id. When confronted with conflicting evidence, we consider it

most favorably to the trial court’s ruling. Id. We affirm the conviction unless “no

reasonable fact-finder could find the elements of the crime proven beyond a reasonable

doubt.” Id. (quotation omitted). It is not necessary that the evidence overcome every

reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference

may reasonably be drawn from it to support the verdict. Id.

                              I. Dealing in a Look-Alike Substance

        Smart contends that the evidence is insufficient to support his conviction for Class

C felony dealing in a look-alike substance, which was the first controlled buy conducted

at Walmart.

        In order to convict Smart of Class C felony dealing in a look-alike substance as

charged here, the State had to prove that he knowingly or intentionally distributed a

substance under circumstances that would lead a reasonable person to believe that the




        1
          Smart also argues that the trial court erred in denying his motion for judgment on the evidence
for dealing in cocaine. Smart, however, introduced evidence following the trial court’s denial of this
motion. The introduction of any evidence following the denial of a motion for judgment on the evidence
constitutes waiver of any error in the overruling of the motion. Washington v. State, 685 N.E.2d 724, 728
(Ind. Ct. App. 1997), reh’g denied. We will therefore treat the issue as one of general insufficiency of the
evidence, which Smart raises. See id.
                                                     7
substance was a controlled substance, to wit, cocaine.        Ind. Code §§ 35-48-4-4.6,

4.5(a)(2); Appellant’s App. p. 8. “Distribute” means to deliver. Ind. Code § 35-48-1-14.

      The State presented evidence that Smart distributed a substance that appeared to

be cocaine in a manner consistent with a drug deal. R.H. met Smart outside of Walmart

after speaking with him on the phone about purchasing cocaine. R.H. entered the car and

gave the driver $50, and Smart handed R.H. two baggies containing a white rock-like

substance. R.H. told Smart that she needed to purchase more cocaine in a little bit and

then got out of the car.    When being debriefed in Detective Swanson’s car, R.H.

confirmed that it was Smart who handed her the two baggies.

      In addition, the substance had the physical characteristics of cocaine.      Three

witnesses familiar with cocaine – Detective Swanson, R.H., and forensic drug chemist

Ivanyo – each testified that the substance in the two baggies appeared to be cocaine. Tr.

p. 348, 403, 430. The substance, however, did not contain cocaine. Because Smart

distributed a substance that physically resembled cocaine in a manner consistent with a

drug deal, we conclude that the evidence is sufficient to support Smart’s conviction for

Class C felony dealing in a look-alike substance. Smart’s other arguments – such as that

R.H. was a paid informant, she was uncertain about parts of her testimony, and there was

no DNA evidence or fingerprints on the baggies – are merely requests for us to reweigh

the evidence, which we will not do.

                                II. Dealing in Cocaine




                                           8
       Smart also contends that the evidence is insufficient to support his conviction for

Class B felony dealing in cocaine, which was the second controlled buy conducted at the

house on State Street.

       In order to convict Smart of Class B felony dealing in cocaine as charged here, the

State had to prove that he knowingly or intentionally delivered cocaine. Ind. Code § 35-

48-4-1(a)(1)(C); Appellant’s App. p. 85; Tr. p. 298-99.

       In analyzing the sufficiency of the evidence for this conviction, Smart essentially

argues that this Court should reverse the decision of the trial court based on the

“incredible dubiosity rule.” Appellant’s Br. p. 10 (citing Gaddis v. State, 253 Ind. 73,

251 N.E.2d 658, 662 (1969)).      Under this rule, a court will impinge on the jury’s

responsibility to judge the credibility of the witnesses only when it has confronted

“inherently improbable testimony or coerced, equivocal, wholly uncorroborated

testimony of incredible dubiosity.” Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)

(quotation omitted). Application of this rule is limited to cases where a sole witness

presents inherently contradictory testimony which is equivocal or the result of coercion

and there is a complete lack of circumstantial evidence of the defendant’s guilt. Id. In

such an action, an appellate court may reverse the trial court’s decision. Id. (citing

Gaddis, 253 Ind. at 82, 251 N.E.2d at 663).

       Here, the State initially charged Smart with aiding, inducing, or causing dealing in

cocaine based on the fact that Smart was standing behind the door during the transaction.

In fact, Detective Swanson’s probable-cause affidavit provided that a “‘little . . . light

skinned black male’ answered the door and actually sold them the ‘drugs’” and “Smart


                                              9
was in the house behind the door during the transaction.” Def.’s Ex. C. But on the day

of trial, the State amended the charging information to dealing in cocaine. In line with

this amendment, R.H. testified at trial that the light-skinned black male answered the door

and Smart came to the door and handed her the cocaine. Nevertheless, various reports

and deposition testimony from Detective Swanson indicated that R.H. told Detective

Swanson that the light-skinned black male handed the cocaine to R.H. while Smart stood

behind the door. Notably, the video equipment did not work, and the audio equipment

did not pick up anything useful from the actual controlled buy. Once R.H. returned to

Detective Swanson’s car, however, there was audio of their conversation, see State’s Ex.

5, but it is not conclusive as to who handed the cocaine to R.H. R.H. remained firm on

cross-examination that Smart was the one who handed her the cocaine, and she said that

she in fact told Detective Swanson during their debriefing that Smart handed the cocaine

to her. Defense counsel then vigorously cross-examined Detective Swanson regarding

his various reports and deposition testimony.

       Defense counsel pointed out that Detective Swanson’s various reports and

deposition testimony indicated that R.H. told him that the light-skinned black male

handed the cocaine to R.H. while Smart stood behind the door. Nevertheless, R.H.

denied at trial that she ever told Detective Swanson that. Instead, R.H. testified that she

told Detective Swanson from the very beginning that the light-skinned black male

answered the door and Smart came to the door and handed her the cocaine. The issue

boiled down to a credibility determination between Detective Swanson and R.H., with the

State essentially arguing that Detective Swanson did not remember things correctly.


                                            10
Defense counsel vigorously cross-examined both R.H. and Detective Swanson and then

argued these points to the jury during closing argument. See Tr. p. 539-44. Still, the jury

found Smart guilty of Class B felony dealing in cocaine. Because R.H.’s testimony was

not inherently improbable, we will not impinge on the jury’s responsibility to judge the

credibility of the witnesses. Smart’s other arguments are merely requests for us to

reweigh the evidence, which we will not do.

      Affirmed.

MATHIAS, J., and BARNES, J., concur.




                                            11
