MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Jun 26 2017, 9:14 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ernest P. Galos                                          Curtis T. Hill, Jr.
Public Defender                                          Attorney General
South Bend, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Lewis Bradley, Jr.,                                      June 26, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1611-CR-2658
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff                                       Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1508-F5-173



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017    Page 1 of 9
                                             Case Summary
[1]   Lewis Bradley, Jr., appeals his convictions for level 2 felony dealing in cocaine

      and level 5 felony possession of cocaine, following a bench trial. Bradley raises

      two issues for our review: (1) whether the State presented sufficient evidence to

      demonstrate that he possessed cocaine; and (2) whether his convictions for both

      dealing in cocaine and possession of cocaine are barred by double jeopardy. We

      find that the State presented sufficient evidence to support Bradley’s

      convictions, and his convictions for both dealing in cocaine and possession of

      cocaine are barred by double jeopardy. Therefore, we affirm his conviction for

      dealing in cocaine and remand with instructions to vacate judgment of

      conviction and sentence on his conviction for possession of cocaine.


                                 Facts and Procedural History
[2]   On the afternoon of August 21, 2015, Nicholas Covie was waiting in the

      passenger seat of his partner’s vehicle while his partner, an in-home hospice

      nurse, was completing a hospice care appointment at a patient’s house. While

      he was waiting, Covie noticed that there was a man cleaning out a car that was

      parked on the curb directly behind him. Shortly thereafter, Covie observed a red

      car pull in and park behind the vehicle being cleaned. The driver of the red car,

      later identified as Bradley, exited the vehicle and walked up to the man cleaning

      and engaged him in conversation. The two men approached Covie, and Bradley

      knocked loudly on his window. Bradley asked why Covie was parked on the

      street and said, “Hey man I got that powder. Would you like some of that

      powder?” Tr. Vol. 2 at 21-22. Covie believed that Bradley was attempting to sell

      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017   Page 2 of 9
      him drugs, declined the offer, and called his friend to hurry back to the car.

      Covie observed Bradley and the other man walk into a nearby home, and he

      decided to call the police.


[3]   South Bend Police Officer Joshua Morgan responded to the scene in his police

      vehicle. Covie explained to Officer Morgan that Bradley had made a comment

      about selling him “powder.” During this conversation, Bradley returned to the

      red car. Covie pointed Bradley out to Officer Morgan and said that Bradley was

      the person who had tried to sell him drugs.


[4]   Bradley entered the red car and pulled away from the curb. Officer Morgan

      activated his lights to initiate a traffic stop, and Bradley quickly pulled over

      around the corner. Bradley then immediately exited his vehicle without being

      told and began to walk away from the traffic stop. Officer Morgan handcuffed

      and detained Bradley as he tried to assess the situation. Bradley claimed that he

      was just moving the vehicle and that it was not his. Officer Morgan determined

      that the last registered owner of the vehicle was a Charles Bradley.


[5]   Officer Morgan detected an odor of marijuana coming from the vehicle. He

      searched the vehicle and found a bag of crack cocaine weighing 5.68 grams in

      the center console. Bradley was arrested, and when officers moved him to a

      different police vehicle for transport, he attempted to pull away and used his

      legs to prevent officers from putting him in the police vehicle. At the jail,

      Bradley was searched and a bag of marijuana weighing less than a gram was

      found in his left pants pocket.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017   Page 3 of 9
[6]   The State charged Bradley with level 5 felony possession of cocaine between

      five and ten grams, class A misdemeanor resisting law enforcement, class B

      misdemeanor possession of marijuana, and class C misdemeanor operating a

      motor vehicle without ever receiving a license. The State later added a count of

      level 5 felony dealing in cocaine and a count of level 2 felony dealing in cocaine

      between five and ten grams within 500 feet of school property. After a bench

      trial, the trial court found Bradley guilty of all six charges and entered judgment

      of conviction on all but the level 5 felony dealing in cocaine guilty verdict,

      which the court merged with the level 2 felony dealing in cocaine guilty verdict.


[7]   The trial court imposed concurrent sentences of ten years with four years

      suspended on the dealing in cocaine conviction, one year on the possession of

      cocaine and resisting law enforcement convictions, 180 days on the possession

      of marijuana conviction, and sixty days on the operating a vehicle without ever

      receiving a license conviction. Bradley appeals only his convictions for level 2

      felony dealing in cocaine and level 5 felony possession of cocaine.


                                     Discussion and Decision

      Section 1 – Sufficient evidence supports Bradley’s convictions.
[8]   Bradley contends that the State failed to introduce sufficient evidence to sustain

      his convictions. We employ the following standard of review:


              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

      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017   Page 4 of 9
              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 [verdict]. 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.


      Harrison v. State, 901 N.E.2d 635, 639 (Ind. Ct. App. 2009) (quoting Drane v.

      State, 867 N.E.2d 144, 146 (Ind. 2007)) (alteration in Harrison), trans. denied.


[9]   To convict Bradley of both charges, the State was required to prove beyond a

      reasonable doubt that Bradley knowingly possessed cocaine. See Ind. Code §

      35-48-4-1 (dealing); Ind. Code § 35-48-4-6 (possession). Specifically, Bradley

      asserts that the State’s evidence was insufficient to show that he knowingly

      possessed the cocaine. The State contends that the evidence sufficiently shows

      that Bradley had actual possession of the cocaine, and in the alternative, that it

      presented sufficient evidence of Bradley’s constructive possession of the

      cocaine. Actual possession occurs when a person has direct physical control

      over the contraband. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). Here, the

      record shows that officers did not find the cocaine on Bradley’s person or see

      him hold or discard the cocaine from the vehicle. Therefore, Bradley’s

      convictions cannot be sustained under a theory of actual possession.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017   Page 5 of 9
[10]   Where the State does not show actual possession, a conviction for possessing

       contraband may rest instead on proof of constructive possession. Id. at 174. A

       person constructively possesses contraband when the person has: (1) the

       capability to maintain dominion and control over the item, and (2) the intent to

       maintain dominion and control over it. Id. A trier of fact may infer that a

       defendant had the capability to maintain dominion and control over contraband

       from the simple fact that the defendant had a possessory interest in the premises

       on which an officer found the item. Id. We allow this inference even when the

       possessory interest is not exclusive. Id. Likewise, a trier of fact may infer that a

       defendant had the intent to maintain dominion and control over contraband

       from a defendant’s possessory interest in the premises, even when that

       possessory interest is not exclusive. Id. When that possessory interest is not

       exclusive, the State must support this second inference with additional

       circumstances indicating the defendant’s knowledge of the presence and nature

       of the item. Id. at 174-75.


               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, 661 (Ind. Ct. App. 2003). The list of

       enumerated circumstances is not exhaustive as, ultimately, our question is

       whether a reasonable factfinder could conclude from the evidence that the


       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017   Page 6 of 9
       defendant knew of the nature and presence of the contraband. Johnson v. State,

       59 N.E.3d 1071, 1075 (Ind. Ct. App. 2016).


[11]   Bradley argues that he did not constructively possess the cocaine because he did

       not have exclusive possession of the vehicle or the items inside it, noting that

       the vehicle was registered to a Charles Bradley, not to Lewis Bradley. Bradley

       also emphasizes that he only briefly operated the vehicle that he claimed did

       not belong to him. However, Bradley was the only person in the vehicle at the

       time the cocaine was discovered and therefore he had exclusive possession of

       the vehicle, regardless of whether the vehicle was registered to him or to

       another person. State v. Emry, 753 N.E.2d 19, 22 (Ind. Ct. App. 2001).


[12]   Furthermore, additional circumstances were present that permitted a reasonable

       factfinder to conclude that Bradley had knowledge of the nature and presence of

       the cocaine. The evidence most favorable to the convictions shows that Covie

       witnessed Bradley arrive in a red vehicle alone. Bradley then approached Covie

       and said, “Hey man I got that powder. Would you like some of that powder?”

       Tr. Vol. 2 at 21-22. Covie believed that Bradley was offering to sell him drugs,

       and called the police. Officer Morgan arrived and spoke with Covie, and the

       two of them observed Bradley re-enter the same red vehicle. When Officer

       Morgan activated his lights to initiate the traffic stop, Bradley pulled over to the

       curb. However, Bradley immediately exited the vehicle without being told and

       began to walk away. Bradley further attempted to distance himself from the

       vehicle when he was detained and handcuffed by Officer Morgan and prior to

       any investigation into the vehicle, Bradley claimed that he was just moving the

       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017   Page 7 of 9
       vehicle and that it was not his. A search of the vehicle revealed a bag of crack

       cocaine weighing 5.68 grams in the center console, which was in close

       proximity to the driver’s seat where Bradley was operating the vehicle. Bradley

       was the only person seen in the vehicle from the time that he stated that he had

       cocaine and offered to sell it to Covie until the vehicle was stopped and

       searched.


[13]   Based on that evidence, a reasonable inference could be drawn that Bradley

       knew of the nature and presence of the cocaine in the center console. Bradley’s

       arguments to the contrary are merely requests to reweigh the evidence and

       reassess witness credibility, which we may not do. We therefore conclude that

       the State presented sufficient evidence to demonstrate that Bradley knowingly

       possessed the cocaine.


         Section 2 – Bradley’s conviction and sentence for possession
                        are barred by double jeopardy.
[14]   Bradley also contends that his convictions for both level 2 dealing in cocaine

       and level 5 possession of cocaine are barred by double jeopardy. The State

       agrees that Bradley may not be convicted of both the greater offense of dealing

       in cocaine and the lesser-included offense of possession of cocaine. Appellee’s

       Br. at 17.


[15]   “‘Where the conviction of a greater crime cannot be had without conviction of

       the lesser crime, the double jeopardy clause bars separate conviction and

       sentencing on the lesser crime when sentencing is imposed on the greater one.’”


       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017   Page 8 of 9
       Harrison, 901 N.E.2d at 643-644 (quoting Mason v. State, 532 N.E.2d 1169, 1172

       (Ind. 1989), cert. denied). Our supreme court has concluded that where the same

       cocaine supports both possession of cocaine pursuant to Indiana Code Section

       35-48-4-6 and dealing in cocaine pursuant to Indiana Code Section 35-48-4-1,

       possession of cocaine is a lesser included offense of dealing in cocaine. Hardister

       v. State, 849 N.E.2d 563, 575 (Ind. 2006). Here, the same cocaine was used to

       support Bradley’s dealing and possession convictions. The only cocaine

       produced as evidence was the single bag of cocaine found by Officer Morgan in

       the center console of the vehicle that Bradley was operating. No other cocaine

       was found on Bradley’s person or in the vehicle. The State concedes that

       Bradley was in possession of a single bag of cocaine, and that possession was

       the basis for both the possession of cocaine conviction and the dealing in

       cocaine conviction. Appellee’s Br. at 17-18.


[16]   Where a defendant is found guilty of both the greater offense and the lesser-

       included offense, the proper procedure is to vacate the conviction of the lesser-

       included offense. Taflinger v. State, 698 N.E.2d 325, 327 (Ind. Ct. App. 1998).

       Accordingly, we affirm Bradley’s conviction for dealing in cocaine and remand

       with instructions to vacate judgment of conviction and sentence on Bradley’s

       conviction for possession of cocaine.


[17]   Affirmed in part and remanded in part.


       Baker, J., and Barnes, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017   Page 9 of 9
