MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                                Jan 14 2019, 8:45 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Joel M. Schumm                                           Curtis T. Hill, Jr.
Valerie K. Boots                                         Attorney General of Indiana
Indianapolis, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Byron Smith,                                             January 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1732
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Elizabeth Christ,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G24-1606-F6-21572



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1732 | January 14, 2019                 Page 1 of 10
[1]   Bryon Smith (“Smith”) appeals his conviction, following a bench trial, for Level

      6 felony obstruction of justice.1 Smith challenges the sufficiency of the

      evidence, contending that: (1) there is a material variance between the charging

      information and the evidence at trial; and (2) the State’s evidence—that he

      picked up a baggie of suspected cocaine from his lap, placed it into his mouth,

      refused to spit it out, and then swallowed it—was insufficient to prove the

      statutory element that he had altered, damaged, or removed a thing.

      Concluding that any variance is not material or fatal and that the evidence is

      sufficient to support the challenged element of obstruction of justice, we affirm

      his conviction.


[2]   We affirm.


                                                     Issue
                    Whether sufficient evidence supports Smith’s conviction.


                                                     Facts
[3]   On June 4, 2016, Indianapolis Metropolitan Police Department (“IMPD”)

      Officer Greg Milburn (“Officer Milburn”) was on LaSalle Street when he saw a

      car with “people around the vehicle, people on foot, leaving the vehicle.” (Tr.

      Vol. 2 at 7). This car was Smith’s car. After Smith drove away and failed to

      signal when turning, Officer Milburn pulled over Smith’s vehicle. Smith was




      1
       IND. CODE § 35-44.1-2-2. Smith was also convicted of Class C misdemeanor operating a vehicle without
      ever receiving a license, but he does not challenge this conviction on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1732 | January 14, 2019            Page 2 of 10
      the only person in the car, and he did not have a driver’s license. When

      speaking with Smith, Officer Milburn noticed that Smith was stuttering and

      breathing rapidly and that his lip and hands were trembling. The officer also

      noticed that, on Smith’s lap, there was a large plastic bag containing smaller

      plastic baggies “filled with a white substance[,]” which Officer Milburn believed

      to be “[i]ndividually packaged cocaine.” (Tr. Vol. 2 at 11). The substance was

      “about the size of a ping pong ball[.]” (Tr. Vol. 2 at 11). Officer Milburn

      radioed for assistance, and Smith “put the bag of suspected cocaine in his

      mouth.” (Tr. Vol. 2 at 17). The officer repeatedly ordered Smith to spit it out,

      but Smith refused. Officer Milburn then “watch[ed]” Smith “force swallow the

      suspected narcotics.” (Tr. Vol. 2 at 17).


[4]   The State charged Smith with Level 6 felony obstruction of justice and Class C

      misdemeanor operating a vehicle without ever receiving a license. The

      obstruction of justice charging information alleged that Smith had altered,

      damaged, or removed a “record, document, or thing, that is: cocaine and/or

      narcotic” with the intent to prevent it from being produced or used as evidence

      in any official proceeding or investigation. (App. Vol. 2 at 17).


[5]   The trial court held a bench trial in May 2018. The State presented testimony

      from Officer Milburn, who testified to the facts stated above. Officer Milburn

      also testified that he had an ambulance take Smith to the hospital because the

      ingestion of what the officer believed to be drugs could have led to Smith’s

      death. On cross-examination, Smith’s counsel asked Officer Milburn whether

      anyone else had seen Smith swallow the alleged baggie and whether anything

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1732 | January 14, 2019   Page 3 of 10
      had been recovered from Smith. Officer Milburn responded that he was the

      only person to see Smith swallow it and that he did not know if anything had

      been recovered.


[6]   After the State rested, Smith moved for a directed verdict, contending that there

      was a variance between the charging information (referring to “cocaine and/or

      narcotic”) and the evidence at trial (testimony referring to “suspected” cocaine

      or narcotic). Smith’s counsel asserted that “the State ha[d] a burden of proving

      beyond a reasonable doubt every element of the offense . . . [and] [a]n element

      here clearly state[d] “cocaine and/or narcotic.[”] (Tr. Vol. 2 at 22). Smith’s

      counsel argued that even if the trial court believed that Smith had swallowed

      something, the State had not proven that the thing swallowed was actually

      cocaine or a narcotic. Essentially, Smith argued that the State’s presentation of

      evidence was constrained by the specific language used in the charging

      information. Smith’s counsel also stated that “if the State would have charged

      it as ‘suspected’ cocaine and/or narcotic,” then Smith “wouldn’t be making this

      motion.” (Tr. Vol. 2 at 22). Smith’s counsel argued that the identification of

      the “thing” was an element of the offense and stated that, “as it’s charged here

      before me and as I’ve prepared this case for trial, I believe the State needs to

      prove to [the court] that it was cocaine and they haven’t.” (Tr. Vol. 2 at 22).


[7]   The State argued that it was required to prove that Smith had altered, damaged,

      or removed a “thing” but that it was not necessary to specifically prove that the

      thing was actually cocaine or a narcotic. The State pointed out that Smith’s

      action of swallowing the substance prevented any further investigation to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1732 | January 14, 2019   Page 4 of 10
       determine what the substance was. The State argued that any variance was not

       material or fatal because Smith had notice of the charge he faced and the

       specific Indiana Code provision under which he was charged. The trial court

       pointed out that “[t]he act in the mens rea for the offense [of obstruction of

       justice] is destruction of evidence” and that, under the obstruction of justice

       statute, the offense remained a Level 6 felony whether the item swallowed was

       a piece of paper or a drug. (Tr. Vol. 2 at 25). The trial court denied Smith’s

       motion for directed verdict.


[8]    Smith then testified on his own behalf. He denied that he ever had a baggie or

       that he had swallowed anything. He also challenged the credibility of Officer

       Milburn’s testimony and suggested that the officer had lied about factual details

       of the evening, including whether there had been people around Smith’s car,

       whether he had a baggie in his car, and whether he had swallowed something.


[9]    The trial court found Smith guilty as charged. The trial court imposed a 545-

       day sentence, all suspended to probation, for his Level 6 felony obstruction of

       justice conviction and a concurrent sentence of six (6) days for his Class C

       misdemeanor conviction. Smith now appeals.


                                                   Decision
[10]   Smith argues that the evidence was insufficient to support his conviction for

       obstruction of justice.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1732 | January 14, 2019   Page 5 of 10
               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.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder would 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.


[11]   Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original). Additionally, our Indiana

       Supreme Court has explained that “when determining whether the elements of

       an offense are proven beyond a reasonable doubt, a fact-finder may consider

       both the evidence and the resulting reasonable inferences.” Thang v. State,

       10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).


[12]   The obstruction of justice statute provides, in relevant part, that “[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 Level 6 felony.

       IND. CODE § 35-44.1-2-2(a)(3). The State’s obstruction of justice charge against

       Smith alleged that he had “alter[ed], damage[d], or remove[d] a record,

       document, or thing, that is: cocaine and/or narcotic, with the intent to prevent

       said item from being produced or used as evidence in an official proceeding or

       investigation[.]” (App. Vol. 2 at 17).
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1732 | January 14, 2019   Page 6 of 10
[13]   Smith’s challenge to the sufficiency of the evidence is divided into two

       arguments. Specifically, he contends that: (1) there is a material variance

       between the charging information and the evidence at trial; and (2) the evidence

       is insufficient to show that he altered, damaged, or removed the baggie.


[14]   Turning first to Smith’s variance argument, we note that “[a] charging

       information must allege the elements of the crime such that the accused is

       sufficiently apprised of the nature of the charges against him so that he may

       anticipate the proof and prepare a defense in advance of trial.” Winn v. State,

       748 N.E.2d 352, 356 (Ind. 2001) (citing IND. CONST. art. 1, § 13; I.C. § 35-34-1-

       2; Smith v. State, 465 N.E.2d 702, 704 (Ind. 1984)). “The State is not required to

       include detailed factual allegations in the charging instrument, though it may

       choose to do so.” Id. A variance “is an essential difference between proof and

       pleading.” Birari v. State, 968 N.E.2d 827, 834 (Ind. Ct. App. 2012), trans.

       denied. Not all variances, however, are “material” or “fatal[.]” Id. When

       determining whether a variance between the proof at trial and a charging

       information is fatal, we apply the following test:


               (1) was the defendant misled by the variance in the evidence from
               the allegations and specifications in the charge in the preparation
               and maintenance of his defense, and was he harmed or prejudiced
               thereby; [or]

               (2) will the defendant be protected in [a] future criminal
               proceeding covering the same event, facts, and evidence against
               double jeopardy?




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1732 | January 14, 2019   Page 7 of 10
[15]   Id. (quoting Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997)) (emphasis

       added). In other words, “[t]o award relief on the basis of a variance between

       allegations in the charge and the evidence at trial, the variance must be such as

       to either have misled the defendant in the preparation and maintenance of his

       defense with resulting harm or prejudice or leave the defendant vulnerable to

       double jeopardy in a future criminal proceeding covering the same event, facts,

       and evidence.” Winn, 748 N.E.2d at 356 (emphasis added).


[16]   Smith does not allege that the variance poses any future double jeopardy

       vulnerability. He simply alleges that the variance misled the preparation of his

       defense. He, however, makes no claim nor showing that there was any

       resulting harm or prejudice. Thus, he is not entitled to relief based on his

       assertion of a variance. See Winn, 748 N.E.2d at 356; Birari, 968 N.E.2d at 834

       (explaining that a relief based on a variance is awarded only if the defendant

       shows that he was misled in the preparation of his defense and that he was

       harmed or prejudiced). Moreover, he cannot make these required showings.

       Smith was aware of the alleged crime against him. Smith’s defense was not

       based on the identification of the “thing” that was swallowed. Instead, his

       defense was to deny that he had swallowed anything and, further, to deny the

       very existence of a “thing”—or the baggie containing smaller plastic baggies

       filled with a white substance—that the State had alleged he had swallowed.

       Under these circumstances, we conclude that any variance was not material or

       fatal. See Winn, 748 N.E.2d at 356; Birari, 968 N.E.2d at 834.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1732 | January 14, 2019   Page 8 of 10
[17]   Next, we turn to Smith’s argument that “the State failed to prove Smith altered,

       damaged, or removed the bag when he allegedly swallowed it while sitting in

       his vehicle.” (Smith’s Br. 8). As the terms, “alter,” “damage,” and “remove”

       are not defined by statute, Smith cites to dictionary definitions of the terms,

       including the definition of “remove” as “to move from a place or position; take

       away or off.” (Smith’s Br. 9) (quoting https://www.dictionary.com). Smith

       contends that “an individual sitting stationary in a vehicle while swallowing a

       bag does not necessarily alter, damage, or remove the bag or substance inside

       it” and argues that the evidence in this case was insufficient because “Smith and

       whatever he swallowed went nowhere.” (Smith’s Br. 9-10).


[18]   We roundly reject Smith’s argument that the State failed to meet its burden of

       proving the element that he altered, damaged, or removed a thing. The

       suspected cocaine definitely went somewhere; it went inside Smith’s body.

       Here, the evidence showed that Officer Milburn initially saw people milling

       around and exiting Smith’s parked car. Thereafter, when Smith committed a

       traffic infraction, Officer Milburn initiated a traffic stop. When Officer Milburn

       spoke to Smith, he saw that Smith had a baggie containing a white substance

       that appeared to be individually packaged cocaine. After the officer had

       radioed for assistance, Smith lifted the baggie of suspected cocaine from his lap

       and placed it in his mouth. Smith did not merely leave the baggie in his mouth.

       Officer Milburn repeatedly ordered Smith to spit it out, but Smith refused.

       Smith then swallowed the item. The fact that Smith remained seated in the car

       did not negate the fact that he moved the bag from the place on his lap into his


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1732 | January 14, 2019   Page 9 of 10
       mouth and, ultimately, into his throat and beyond when he swallowed it. The

       evidence presented at trial and the inferences drawn therefrom were sufficient

       for the trial court, as trier of fact, to conclude that Smith removed a thing, i.e.,

       the baggie of suspected drugs, with the intent to prevent it from being used as

       evidence in any official proceeding or investigation. Accordingly, we affirm his

       conviction. See Mullins v. State, 717 N.E.2d 902, 904 (Ind. Ct. App. 1999)

       (holding that the defendant’s act of “swallow[ing] the crack cocaine which

       otherwise would have been used as evidence in a possession charge” was

       sufficient to support his conviction for obstruction of justice). Owens v. State,

       911 N.E.2d 18, 23 (Ind. Ct. App. 2009) (affirming that the defendant’s

       conviction for obstruction of justice based on his act of swallowing drugs and

       money), vacated on other grounds and sufficiency issue summarily affirmed on transfer,

       929 N.E.2d 754 (Ind. 2010).


[19]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1732 | January 14, 2019   Page 10 of 10
