Pursuant to Ind. Appellate Rule 65(D), this

                                                                FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
                                                              Aug 21 2012, 9:15 am
the defense of res judicata, collateral
estoppel, or the law of the case.
                                                                     CLERK
                                                                   of the supreme court,
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ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

ANDREW B. ARNETT                                    GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    RICHARD C. WEBSTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL TIMOTHY DEAN,                               )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 73A01-1112-CR-624
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE SHELBY CIRCUIT COURT
                        The Honorable Charles D. O’Connor, Jr., Judge
                               Cause No. 73C01-1009-FC-45



                                         August 21, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                     Case Summary

       Michael Timothy Dean was arrested for public intoxication and placed in a holding

cell at the Shelby County lock-up. When the officer on duty saw him chewing on something

and asked what it was, Dean pulled a baggie out of his mouth and unsuccessfully tried to

flush it down the holding-cell toilet. The baggie contained a brown substance later

determined to be marijuana. Dean was convicted of multiple offenses, one of which was

attempted obstruction of justice.

       Dean now appeals, challenging the sufficiency of evidence to support his conviction

for attempted obstruction of justice. We affirm.

                              Facts and Procedural History

       The facts most favorable to the verdict are as follows. In the middle of a September

afternoon in 2010, Shelbyville Police Officer Travis Conway was on patrol and saw Dean

jump a fence and do a somersault. When Dean saw Officer Conway, he raised his hands in

the air, and when the officer exited his vehicle and approached him, Dean admitted that he

had been drinking. When Dean failed the portable breathalyzer test, Officer Conway arrested

him for public intoxication and conducted a patdown search incident to the arrest. The

search produced no contraband, and Dean stated that he had no weapons or drugs in his

possession.

       When Dean arrived at the county lock-up, he was briefly patted down again and

placed in the drunk-tank holding cell. Shortly thereafter, Dean began yelling and disturbing

the women in a nearby cell. Correctional Officer Serena Baker repeatedly approached his


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cell and ordered him to be quiet. She observed him chewing on something and asked him

what it was. He said, “Oh hell no, you’re not gonna stick this one on me, this is an outside

charge.” Tr. at 98. He then pulled a plastic baggie out of his mouth. The baggie contained a

brown substance. When Officer Baker ordered him to bring her the baggie, he tossed it into

the toilet and repeatedly tried to flush it. When the toilet would not flush, Officer Baker

ordered Dean to the back of the cell and called for back-up. Officers found the baggie

floating in the toilet and noted that its brown contents smelled like marijuana. Subsequent

chemical testing verified the contents as marijuana.

       The State charged Dean with class C felony trafficking with an inmate, class A

misdemeanor marijuana possession, and class B misdemeanor public intoxication. Dean pled

guilty to the public intoxication and marijuana charges, admitting that he brought the

marijuana into the jail and that he tried to flush it when Officer Baker saw him chewing on it.

The State filed an amended information, adding one count of class D felony attempted

obstruction of justice, one count of class D felony obstruction of justice, and a habitual

offender allegation. A jury found him not guilty of obstruction of justice, guilty of attempted

obstruction of justice, and guilty of trafficking with an inmate as a class A misdemeanor.

Dean subsequently pled guilty to the habitual offender count and was sentenced to an

aggregate seven-year term.




                                              3
        He now appeals his conviction for attempted obstruction of justice.1 Additional facts

will be provided as necessary.

                                        Discussion and Decision

        Dean challenges the sufficiency of evidence to support his conviction for attempted

obstruction of justice. When reviewing an insufficiency of evidence claim, we neither

reweigh evidence nor judge witness credibility. Roush v. State, 875 N.E.2d 801, 809 (Ind.

Ct. App. 2007). Rather, we consider the evidence and reasonable inferences most favorable

to the verdict to determine whether a reasonable trier of fact could conclude that the

defendant was guilty beyond a reasonable doubt. Id. at 809-10. If there is substantial

evidence of probative value to support the conviction, we will affirm. Id. at 810. The

uncorroborated testimony of one witness may be sufficient by itself to sustain a conviction.

Smith v. State, 809 N.E.2d 938, 941 (Ind. Ct. App. 2004), trans. denied.

        Dean was convicted of attempted obstruction of justice. Indiana Code Section 35-44-

3-4(a)(3) states, “A person who … alters, damages, or removes any record, document, or

thing, with intent to prevent it from being produced or used as evidence in any official

proceeding or investigation … commits obstruction of justice, a class D felony.” An

“attempt” occurs when a person, “acting with the culpability required for commission of the

crime … engages in conduct that constitutes a substantial step toward commission of the

crime.” Ind. Code § 35-41-5-1(a).



        1
           To the extent Dean claims that he is also appealing his conviction for obstruction of justice, we note
that the jury found him not guilty of that offense. As such, the issue is moot.


                                                       4
       Here, Officer Baker testified that she saw Dean chewing on something. When she

asked him about it, she saw him take from his mouth a baggie containing a brown substance.

When she ordered him to give her the baggie, he refused and then tried to flush it down the

toilet in his cell. His repeated attempts to flush the toilet constitute probative evidence of a

substantial step toward destroying the baggie and its contents. Because the baggie contained

marijuana, flushing it down the toilet would have destroyed the contraband and thereby

prevented it from being produced as evidence in a trial for possession of marijuana.

Moreover, Dean’s persistent attempts to flush the toilet, along with his statements to Officer

Baker, i.e., “Oh no” and “Oh hell no, you’re not gonna stick this one on me, this is an outside

charge,” indicate his intent to avoid seizure of the contraband by flushing it away. Tr. at 98-

99.

       In support of his insufficiency argument, Dean cites alleged deficiencies in Officer

Baker’s report as well as her status as the State’s sole witness concerning the acts allegedly

constituting the offense of attempted obstruction of justice. In his brief, he specifically and

repeatedly invites us to reassess Officer Baker’s credibility. We reiterate that we can neither

reweigh evidence nor assess witness credibility on review, and we decline Dean’s invitation

to do so. Roush, 875 N.E.2d at 809. Based on the foregoing, we find the evidence sufficient

to sustain Dean’s conviction for attempted obstruction of justice. Accordingly, we affirm.

       Affirmed.

RILEY, J., and BAILEY, J., concur.




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