                                                                               Sep 16 2015, 9:02 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                           Gregory F. Zoeller
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Jodi Kathryn Stein
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Timmie Bradley,                                            September 16, 2015
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A05-1404-CR-181
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Daniel L. Pflum,
      Appellee-Plaintiff                                         Senior Judge
                                                                 Trial Court Cause No.
                                                                 49G20-1301-FA-3632



      Bradford, Judge.



                                           Case Summary
[1]   In December of 2012, the Indianapolis Metropolitan Police Department

      (“IMPD”) received an anonymous complaint alleging that drug dealing was


      Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015                Page 1 of 32
      occurring at a home in Indianapolis. Detectives with the IMPD placed the

      home in question under surveillance. After conducting surveillance on a

      number of occasions, the detectives approached the home, identified

      themselves, and requested permission to enter the home. After being granted

      consensual entry into the home, the detectives became concerned for their

      safety and conducted a protective sweep of the kitchen and an adjacent

      bedroom. During this protective sweep, the detectives observed a very small

      amount of cocaine and drug paraphernalia in plain sight in the kitchen. The

      occupants of the home were brought into the living room of the home. Because

      the occupants’ arms were not restrained, the detectives looked under couch

      cushions before allowing the occupants to sit on the couch. A handgun was

      discovered under the cushions.


[2]   A short time later, Appellant-Defendant Timmie Bradley used a key to let

      himself into the home. Bradley, who had his hand in his left pocket, did not

      comply with the detectives’ orders to remove his hand from his pocket. Bradley

      was subsequently searched because of the detectives’ concern for their safety

      after observing drug paraphernalia and a handgun in the home. The detectives

      found approximately thirty grams of cocaine and a large amount of United

      States currency on Bradley’s person.


[3]   Appellee-Plaintiff the State of Indiana subsequently charged Bradley with

      numerous offenses, including Class A felony dealing in cocaine, Class C felony

      possession of cocaine and a firearm, Class C felony possession of cocaine, and

      Class A misdemeanor possession of marijuana. Following a bench trial, the

      Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 2 of 32
      trial court found Bradley guilty of each of the above-stated offenses. The trial

      court sentenced Bradley to an aggregate thirty-five-year term of incarceration.


[4]   On appeal, Bradley contends that the trial court abused its discretion in

      admitting certain evidence at trial; his convictions for Class C felony possession

      of cocaine and a firearm and Class C felony possession of cocaine violate the

      prohibitions against double jeopardy; and the evidence is insufficient to sustain

      his convictions for Class A felony possession of cocaine, Class C felony

      possession of cocaine and a firearm, and Class A misdemeanor possession of

      marijuana. Upon review, we conclude that (1) the trial court did not abuse its

      discretion in admitting the challenged evidence at trial, (2) Bradley’s

      convictions for Class C felony possession of cocaine and a handgun and Class

      C felony possession of cocaine violated the prohibitions against double jeopardy

      and therefore must be vacated, (3) the evidence is sufficient to sustain Bradley’s

      conviction for Class A felony possession of cocaine, and (4) the evidence is

      insufficient to sustain Bradley’s conviction for Class A misdemeanor possession

      of marijuana. We therefore affirm in part, reverse in part, and remand to the

      trial court with instructions.



                             Facts and Procedural History
[5]   In December of 2012, Indianapolis Metropolitan Police Detective Scott

      Campbell received an anonymous complaint alleging that drug dealing was

      occurring at a home located at 2207 North Alabama Street. Between receiving

      the anonymous complaint and January 14, 2013, Detective Campbell and

      Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 3 of 32
      Detective Simmea McCoy conducted surveillance at the home on three or four

      occasions. On one such occasion, Detectives Campbell and McCoy observed,

      within a short period of time, heavy foot traffic in and out of the home with the

      visitors “going inside, staying for [a] very short amount of time and leaving.”

      Tr. p. 37. In their experience as law enforcement officers, Detectives Campbell

      and McCoy knew that such activity was indicative of the sale of drugs.


[6]   On another occasion, Detectives Campbell and McCoy observed Bradley drive

      a blue pickup truck to the home, approach the home, and enter it. That same

      day, Detectives Campbell and McCoy observed another individual, who was

      subsequently identified as Bryant Beatty, drive a blue minivan to the home,

      approach the home, and enter it. A search for the identity of the lessor of the

      home was unsuccessful.


[7]   On the afternoon of January 15, 2013, Detectives Campbell and McCoy, along

      with Detective Tracy Lomax (collectively, “the Detectives”), conducted

      surveillance at the home. At approximately 3:00 p.m., the Detectives observed

      Beatty pull up at the home in a blue minivan. This was the second time

      Detectives Campbell and McCoy had observed Beatty arrive at the home

      driving the blue minivan during the course of their investigation. The

      Detectives further observed Beatty approach the home. Beatty knocked on the

      front door and, soon thereafter, someone inside the home opened the door to

      allow him to enter.




      Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 4 of 32
[8]    After watching Beatty enter the home, the Detectives, all of whom were

       wearing plain clothes but were wearing lanyards with their police badges

       displayed and possibly police vests, decided to conduct a “knock and talk.” Tr.

       p. 103. When the Detectives approached the home, Detective Campbell

       immediately detected the odor of burnt marijuana coming from the home.

       With Detective Lomax standing at the far end of the porch and Detective

       Campbell standing nearby, Detective McCoy knocked on the front door. When

       Beatty opened the front door a short time later, Detectives McCoy and Lomax

       also detected the odor of burnt marijuana coming from the home.


[9]    After Beatty opened the front door, Detective McCoy identified himself and

       Detectives Campbell and Lomax and explained that they had come to the home

       because of a narcotics complaint. Detective McCoy requested permission for

       himself and Detectives Campbell and Lomax to step inside the home and speak

       with Beatty. Beatty responded yes and stepped to the side to allow the

       Detectives to enter the home.


[10]   Upon entering the home, the Detectives were standing in a living room. They

       observed a closed bedroom door with music coming from inside the bedroom.

       Detective McCoy asked Beatty if there was anyone else in the home. Beatty

       responded that there was not.


[11]   Within seconds of Beatty indicating that there was no one else in the home, the

       Detectives observed a black male “peak [sic]” his head around the kitchen

       corner. Tr. p. 152. The black male retreated after seeing the Detectives.


       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 5 of 32
       Because the Detectives could not see into the kitchen, Detective McCoy

       ordered the individual in the kitchen to come into the living room. The

       individual did not comply with Detective McCoy’s order.


[12]   After the individual in the kitchen failed to comply with Detective McCoy’s

       order, Detectives McCoy and Lomax, out of concern for their and Detective

       Campbell’s safety, conducted a protective sweep of the kitchen. While in the

       kitchen, Detectives McCoy and Lomax observed several items sitting on a

       counter in plain view: a set of digital scales, a “very small amount of cocaine,”

       a glass jar with white residue on the bottom, and baking soda which can be

       used as a cutting agent. Tr. p. 181. Also while in the kitchen, Detectives

       McCoy and Lomax encountered a man, who was subsequently identified as

       Cortez Bradley. Detectives McCoy and Lomax brought Cortez into the living

       room along with a third black male who had been in the adjacent bedroom.


[13]   The Detectives detained Beatty, Cortez, and the other individual in the living

       room and advised them of their Miranda1 rights. The Detectives decided to sit

       the three men down on a couch in the living room while they completed their

       investigation. Although the three men were not free to leave, their hands were

       not restrained at this time. Prior to sitting the men down on the couch, out of

       concern for officer safety, Detective Campbell conducted a quick search of the

       couch for weapons by lifting the cushions. During this quick search, Detective




       1
           See Miranda v. Arizona, 384 U.S. 436 (1966).

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 6 of 32
       Campbell found a small handgun under one of the cushions. The Detectives

       then loosely handcuffed the three men together and sat them on the floor. All

       three men denied both living at the home and knowing who did.


[14]   A short time later, Bradley pulled up to the home, driving a blue pickup truck.

       Bradley approached the home and opened the front door with a key. The

       Detectives immediately identified themselves when Bradley entered the home.


[15]   Upon entering the home, Bradley’s left hand was in his coat pocket. The

       Detectives ordered Bradley to remove his hand from his pocket. Bradley did

       not comply with this order but rather moved his hand around in his pocket.

       When Bradley failed to comply with their order, Detectives Campbell and

       McCoy “took him down to the ground.” Tr. p. 63. The Detectives then

       observed a baggie containing a large quantity of cocaine sticking out of

       Bradley’s coat pocket. Detective Lomax then conducted a search of Bradley’s

       person, during which he recovered the baggie containing the large amount of

       cocaine, “a large amount of US currency,” and a small amount of cocaine from

       Bradley’s pant coin pocket. Tr. p. 94. The baggie containing the large amount

       of cocaine was later determined to contain approximately thirty grams of

       cocaine, which has a street value of approximately $1100 to $1200. Detective

       McCoy indicated that in his experience as a law enforcement officer, such a

       large quantity of cocaine was indicative of dealing rather than personal use,

       especially when combined with the digital scales, baking soda, and glass jar

       recovered from the kitchen; the handgun; and the large quantity of United

       States currency recovered from Bradley’s person.

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 7 of 32
[16]   Bradley was arrested and advised of his Miranda rights. Although Bradley

       initially denied living at the home or knowing who did, he later admitted that

       he lived in the home. The Detectives subsequently discovered marijuana on

       Beatty’s person after he made furtive movements. A search of the rest of the

       home revealed heroin in a sock on a bedroom closet shelf, marijuana and a

       digital scale in a kitchen cabinet, and another digital scale in a drawer next to

       the stove in the kitchen.


[17]   On January 18, 2013, the State charged Bradley with Count I – Class A felony

       dealing in cocaine, Count II – Class C felony possession of cocaine and a

       firearm, Count III – Class C felony possession of cocaine, Count IV – Class A

       felony dealing in heroin, Count V – Class C felony possession of heroin and a

       firearm, Count VI – Class C felony possession of heroin, and Count VII – Class

       A misdemeanor possession of marijuana.


[18]   Bradly subsequently filed a motion to suppress all evidence seized as a result of

       the officers’ warrantless search of his home. He also subsequently waived his

       right to a trial by jury.


[19]   The trial court conducted a two-day combined suppression hearing and bench

       trial on February 3, and February 26, 2014. At the conclusion of the combined

       suppression hearing and trial, the trial court took the question of whether the

       Detectives had lawfully entered the home under advisement. However, the trial

       court gave preliminary rulings relating to the specific pieces of evidence that

       were covered by Bradley’s motion to suppress.


       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 8 of 32
[20]   In ruling on Bradley’s motion to suppress, the trial court found that, assuming

       that the Detectives had legally entered the home, “what was found in the

       drawer is out, the heroin is out. That’s out because it was not in plain view and

       [the Detectives] didn’t have right to even look there.” Tr. p. 259. The trial

       court then entered not guilty verdicts on Counts IV, V, and VI. The trial court

       further found that, again, assuming that the Detectives had legally entered the

       home, the evidence that was in the Detectives’ plain view when they did their

       protective sweep of the home and the evidence that was recovered from

       Bradley’s person was admissible at trial. With respect to the handgun, the trial

       court found as follows:

               But based on the testimony that I heard was that yes, these
               individuals were not free to leave. Whether they were
               handcuffed or not at the time that they tossed the couch, there’s
               some confusion there, again, which I can understand in that
               situation. But, but the testimony was clear that the purpose was
               whether they were handcuffed or not. They were going to sit the
               individuals down on the couch to make them comfortable --
               which I would prefer to sit on a couch as opposed to a floor
               myself if I was going to have to sit for a long time knowing how
               long they were going to be here and be in my house. And so
               taking the sofa off -- the cushions off just to look, to make sure
               there was nothing underneath of there, a weapon of some sort
               was perfectly legit. So if, again, if the entry into the house was
               legal, then finding the gun was appropriate. So that, that part of
               it is there.


       Tr. pp. 272-73. In sum, the trial court found that “basically what they found

       once they were in the house is in, except for the heroin, and what was in that

       one drawer.” Tr. p. 273.

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 9 of 32
[21]   On or about March 10, 2014, the trial court denied Bradley’s motion for

       suppression of the remaining evidence at issue and entered guilty findings on

       Counts I, II, III, and VII. On March 25, 2014, the trial court imposed the

       following sentence: thirty-five years for Count I – Class A felony possession of

       cocaine, eight years for Count II – Class C felony possession of cocaine and a

       firearm, eight years for Count III – Class C felony possession of cocaine, and

       one year for Count VII – Class A misdemeanor possession of marijuana. The

       trial court ordered that the sentences imposed for Counts II, III, and VII run

       concurrently to the sentence imposed for Count I, for an aggregate thirty-five-

       year sentence. This appeal follows.



                                  Discussion and Decision
[22]   Bradley contends that the trial court abused its discretion in admitting certain

       evidence at trial. He also contends that his convictions violate the prohibitions

       against double jeopardy and that the evidence is insufficient to sustain his

       convictions. We will discuss each contention in turn.


                                    I. Admission of Evidence
[23]   Bradley contends that the trial court abused its discretion in admitting the

       evidence that was found in plain view in the kitchen following the Detectives’

       warrantless entry into the home. In raising the contention, Bradley argues that

       admission of the challenged evidence was improper under both the Fourth

       Amendment to the United States Constitution and Article 1, Section 11 of the

       Indiana Constitution. Specifically, Bradley argues that (1) Beatty did not have
       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 10 of 32
       the authority to consent to the Detectives’ entry into the home and (2) the

       Detectives did not have a reasonable concern for their safety before completing

       the protective sweep of the kitchen. The State, for its part, argues that the

       evidence was admissible because Beatty had the apparent authority to, and did,

       consent to the Detectives’ entry into the home. The State also argues that the

       Detectives had a reasonable concern for their safety, which justified the

       protective sweep of the kitchen.


                                        A. Standard of Review
[24]   Our standard of review for rulings on the admissibility of evidence is essentially

       the same whether the challenge is made by a pre-trial motion to suppress or by

       an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind. Ct. App.

       2002), trans. denied. We do not reweigh the evidence, and we consider

       conflicting evidence most favorable to the trial court’s ruling. Collins v. State,

       822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied. We also consider

       uncontroverted evidence in the defendant’s favor. Id.


[25]   A trial court has broad discretion in ruling on the admissibility of evidence.

       Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003) (citing Bradshaw

       v. State, 759 N.E.2d 271, 273 (Ind. Ct. App. 2001)). Accordingly, we will

       reverse a trial court’s ruling on the admissibility of evidence only when the trial

       court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 273). An abuse

       of discretion involves a decision that is clearly against the logic and effect of the




       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 11 of 32
       facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d

       1093, 1095 (Ind. Ct. App. 2000)).


                                    B. The Fourth Amendment
                                      1. Warrantless Entry into Home

[26]   On appeal, Bradley claims that the warrantless entry into the home by the

       Detectives violated the Fourth Amendment to the United States Constitution.

       “The fundamental purpose of the Fourth Amendment to the United States

       Constitution is to protect the legitimate expectations of privacy that citizens

       possess in their persons, their homes, and their belongings.” Trotter v. State, 933

       N.E.2d 572, 579 (Ind. Ct. App. 2010) (internal citations omitted). “The Fourth

       Amendment generally prohibits the warrantless entry of a person’s home,

       whether to make an arrest or to search for specific objects.” Illinois v. Rodriguez,

       497 U.S. 177, 181 (1990).


[27]   However, “‘[t]he Fourth Amendment recognizes a valid warrantless entry and

       search of premises when police obtain the voluntary consent of an occupant

       who shares, or is reasonably believed to share, authority over the area in

       common with a co-occupant who later objects to the use of evidence so

       obtained.’” Gado v. State, 882 N.E.2d 827, 831 (Ind. Ct. App. 2008) (citing

       Georgia v. Randolph, 547 U.S. 103, 106 (2006)). “Authority to consent to a

       search can be either apparent or actual.” Id. “Actual authority requires a

       sufficient relationship to or mutual use of the property by persons generally

       having joint access to or control of the property for most purposes.” Id. at 832


       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 12 of 32
       (citing Halsema v. State, 823 N.E.2d 668, 677 (Ind. 2005)). If actual authority

       cannot be shown, one must determine whether the consenting party had

       apparent authority to consent to the search.


[28]   “Under the apparent authority doctrine, a search is lawful if the facts available

       to the officer at the time would cause a person of reasonable caution to believe

       that the consenting party had authority over the premises.” Primus v. State, 813

       N.E.2d 370, 374-75 (Ind. Ct. App. 2004) (citing Rodriguez, 497 U.S. at 181;

       Trowbridge v. State, 717 N.E.2d 138, 144 (Ind. 1999)).


               As with other factual determinations bearing upon search and
               seizure, determination of consent to enter must be judged against
               an objective standard: would the facts available to the officer at
               the moment warrant a person of reasonable caution in the belief
               that the consenting party had authority over the premises.
               [Rodriguez, 497 U.S. at 188]. If not, then warrantless entry
               without further inquiry is unlawful unless authority actually
               exists. Id. But if so, the search is valid. Id.


       Id. at 375. The State bears the burden of proving that the third party possessed

       the authority to consent. Id. at 375.


[29]   In the instant matter, the record demonstrates that in conducting surveillance of

       the home prior to January 15, 2013, Detectives Campbell and McCoy had

       observed both Bradley and Beatty arrive at and enter the home. An attempt to

       determine who resided at the home was unsuccessful. Although the Detectives

       may not have known who resided at the home when they were conducting

       surveillance on the home on January 15, 2015, the Detectives’ prior


       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 13 of 32
       observations at the home reasonably indicated that Beatty had an affiliation

       with the home.


[30]   Again, while conducting surveillance on the home on January 15, 2013, the

       Detectives watched Beatty approach the home and knock on the front door.

       Almost immediately after Beatty knocked on the front door, someone from

       inside the home opened the door so that Beatty could enter. The Detectives

       waited a few minutes after Beatty entered the home before approaching the

       home and knocking on the front door. After Detective McCoy knocked on the

       front door, Beatty opened the door.2 Detective McCoy identified himself and

       Detectives Campbell and Lomax, explained that they had come to the home

       because of a narcotics complaint, and requested permission for the Detectives to

       step inside the home. Beatty verbally consented to the Detectives’ entry into

       the home and stepped to the side to allow the Detectives to enter.


[31]   It is important to note that Beatty did not indicate that he did not reside at the

       home or was a guest at the home. Likewise, Beatty did not indicate that he

       could not consent to the Detectives’ entry. Instead, Beatty acted as though he

       had the authority to decide who could or could not enter the home.




       2
        We cannot agree with Bradley’s assertion that the fact that Beatty knocked on the door before
       entering the home was enough, in and of itself, to prove that Beatty did not have the apparent
       authority to consent to the Detectives’ entry into the home. As the State pointed out in its
       appellate brief, there could be any number of valid reasons why a resident of a home might
       knock before entering a home.

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015      Page 14 of 32
[32]   In light of Beatty’s actions upon opening the door coupled with the Detectives’

       prior observations, we conclude that a person of reasonable caution would have

       been warranted in believing that Beatty had authority over the home and, as a

       result, could consent to the Detectives’ entry into said home. The trial court

       reasonably determined that Beatty validly consented to the Detectives’ entry

       into the home. The Detectives’ warrantless entry into the home, therefore, did

       not violate the Fourth Amendment.


                                     2. Protective Sweep of the Kitchen

[33]   Bradley further claims that even if Beatty did have the apparent authority to

       consent to the Detectives’ entry into the home, the evidence discovered in plain

       view during the Detectives’ protective sweep of the kitchen was not admissible

       because the Detectives’ protective sweep was unjustified.


               In Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L.Ed.2d
               276 (1990), the Supreme Court applied the Fourth Amendment
               reasonableness test and permitted a limited warrantless search, or
               protective sweep, in a home by officers who were executing an
               arrest warrant inside the home and who had a reasonable
               suspicion that an individual posing a threat to the officers was
               present elsewhere on the premises. Id. at 334, 110 S. Ct. 1093.
               The Supreme Court explained that the Fourth Amendment did
               not prohibit the officers from “tak[ing] reasonable steps to ensure
               their safety after, and while making, the arrest.” Id.
               Accordingly, the officers could search beyond the area
               immediately adjoining the place of arrest if they had “articulable
               facts which, taken together with the rational inferences from
               those facts, would warrant a reasonably prudent officer in
               believing that the area to be swept harbors an individual posing a
               danger to those on the arrest scene.” Id.

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 15 of 32
       U.S. v. Miller, 430 F.3d 93, 97-98 (2d Cir. 2005) (brackets in original).


[34]   In Weddle v. State, 989 N.E.2d 371, 377 (Ind. Ct. App. 2013), we concluded that

       a protective sweep of the defendant’s residence was justified because the police

       officers searched only adjoining rooms from which an attack could immediately

       occur. In another case, Cudworth v. State, 818 N.E.2d 133, 138 (Ind. Ct. App.

       2004), a panel of this court concluded that officers could not complete a

       protective sweep of a home when they did not enter the resident incident to the

       defendant’s arrest. However, given the facts of the instant matter, we decline to

       follow this conclusion because we believe that it overlooks the need for officers

       who are lawfully in a home for reasons other than for effectuating an arrest, but

       have a legitimate concern for their safety, to take the steps necessary to ensure

       their safety while in the home.


[35]   Instead, we agree with the conclusion of the United States Court of Appeals for

       the Second Circuit that a law enforcement officer present in a home under

       lawful process may conduct a protective sweep when the officer possesses

       “‘articulable facts which, taken together with the rational inferences from those

       facts, would warrant a reasonably prudent officer in believing that the area to be

       swept harbors an individual posing a danger to those on the ... scene.’” Miller,

       430 F.3d at 98 (quoting Buie, 494 U.S. at 334); see also U.S. v. Taylor, 248 F.3d

       506, 513-14 (6th Cir. 2001) (providing that the court found that it follows

       logically that the principle enunciated in Buie with regard to officers making an

       arrest-that the police may conduct a limited protective sweep to ensure the

       safety of those officers-applies with equal force to other situations where an

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 16 of 32
       officer has lawfully entered a premises without a warrant). Like the Courts in

       Miller and Taylor, we emphasize, however, that the purpose of such a protective

       sweep is to protect the safety of the law enforcement officers, and for that

       reason, the sweep must be limited to a cursory search of the premises for the

       purpose of finding persons hidden there who would threaten the officers’ safety.

       See Miller, 430 F.3d at 100; Taylor, 248 F.3d at 513-14.


[36]   Upon entering the home, Detective McCoy asked Beatty if anyone else was in

       the home. Beatty responded that there was not. However, within seconds of

       Beatty indicating that there was no one else in the home, the Detectives

       observed a black male “peak [sic]” his head around the kitchen corner. Tr. p.

       152. The black male retreated after seeing the Detectives. Because the

       Detectives could not see into the kitchen, Detective McCoy ordered the

       individual in the kitchen to come into the living room. The individual did not

       comply with Detective McCoy’s order. After the individual in the kitchen

       failed to comply with Detective McCoy’s order, Detectives McCoy and Lomax,

       out of concern for their and Detective Campbell’s safety, conducted the

       protective sweep of the kitchen.


[37]   The Detectives also had reason to be concerned that there may be weapons in a

       home in which believed drug activity occurred. Again, Detectives Campbell

       and McCoy started conducting surveillance on the home after Detective

       Campbell received an anonymous complaint alleging that drug dealing was

       occurring at the home. During their surveillance of the home prior to January

       15, 2013, Detectives Campbell and McCoy had observed heavy foot traffic in

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 17 of 32
       and out of the home with the visitors “going inside, staying for [a] very short

       amount of time and leaving.” Tr. p. 37. In their experience as law

       enforcement officers, Detectives Campbell and McCoy knew that such activity

       was indicative of the sale of drugs. It was reasonable for the Detectives to be

       concerned that individuals involved with the manufacture or sale of drugs

       might be armed, as we have previously acknowledged that it is not uncommon

       for individuals involved with the manufacture or sale of drugs to carry

       weapons. See generally, Swanson v. State, 730 N.E.2d 205, 211 (Ind. Ct. App.

       2000) (acknowledging that it is not uncommon for drug dealers to carry

       weapons), trans. denied.


[38]   Based on these circumstances, we believe it was reasonable for the Detectives to

       conduct a protective sweep of the kitchen. Again, Beatty had just lied to

       Detective McCoy by stating that there was no one else in the home. The

       Detectives knew that Beatty’s statement was false because they observed a male

       “peak [sic]” his head around the kitchen corner before retreating into the

       kitchen. Tr. p. 152. The Detectives could not see into the kitchen from the

       living room and, could not determine whether the male in the kitchen was

       armed or posed a threat to their safety without completing a protective sweep of

       the kitchen. As such, we conclude that the Detectives’ protective sweep of the

       kitchen was justified.




       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 18 of 32
                                        C. Article I, Section 11
                                      1. Warrantless Entry into Home

[39]   Bradley also claims that the warrantless entry into the home by the Detectives

       violated Article I, Section 11 of the Indiana Constitution. Article I, Section 11

       reads:

                The right of the people to be secure in their persons, houses,
                papers, and effects, against unreasonable search or seizure, shall
                not be violated; and no warrant shall issue, but upon probable
                cause, supported by oath or affirmation, and particularly
                describing the place to be searched, and the person or thing to be
                seized.


       “Although this language tracks the Fourth Amendment verbatim, we proceed

       somewhat differently when analyzing the language under the Indiana

       Constitution than when considering the same language under the Federal

       Constitution.” Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006). “Instead of

       focusing on the defendant’s reasonable expectation of privacy, we focus on the

       actions of the police officer, concluding that the search is legitimate where it is

       reasonable given the totality of the circumstances.” Id. We will consider the

       following factors in assessing reasonableness: “1) the degree of concern,

       suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion

       the method of the search or seizure imposes on the citizen’s ordinary activities,

       and 3) the extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356,

       361 (Ind. 2005).



       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 19 of 32
[40]   As we concluded above, Beatty had the apparent authority to and did, in fact,

       consent to the Detectives’ entry into the home. As such, because the focus of

       the exclusionary rule is the reasonableness of police conduct, we conclude that

       the Detectives’ reliance on Beatty’s consent was completely reasonable. See Lee

       v. State, 849 N.E.2d 602, 610 (Ind. 2006) (providing that because the focus of

       the exclusionary rule is the reasonableness of police conduct, the Indiana

       Supreme Court found that the police reliance on defendant’s fiancée’s apparent

       authority over the evidence in question to be reasonable). We therefore

       conclude that the Detectives’ entry into the home did not violate the Indiana

       Constitution’s prohibition against unreasonable search and seizure.


                                     2. Protective Sweep of the Kitchen

[41]   Alternatively, Bradley claims that even if the Detectives’ reliance on Beatty’s

       consent to enter the home was reasonable, their protective sweep of the kitchen

       was unreasonable. Again, in considering claims under Article I, Section 11, we

       focus on the actions of the police officers to determine whether the search was

       reasonable under the totality of the circumstances. See Trimble, 842 N.E.2d at

       803. In considering on the reasonableness of the actions of the police officers

       involved, we consider: “1) the degree of concern, suspicion, or knowledge that a

       violation has occurred, 2) the degree of intrusion the method of the search or

       seizure imposes on the citizen’s ordinary activities, and 3) the extent of law

       enforcement needs.” Litchfield, 824 N.E.2d at 361.


[42]   Despite Bradley’s claim to the contrary, we conclude that the Detectives’

       protective sweep of the kitchen was reasonable under the totality of the
       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 20 of 32
       circumstances. The Detectives had a high degree of concern for their safety.

       Again, the Detectives knew that Beatty had lied about being the only individual

       present in the home. The Detectives knew that there was an unknown

       individual in the kitchen and that the individual in the kitchen did not comply

       with Detective McCoy’s order to come into the living room. The Detectives,

       however, could not see into the kitchen to verify whether the individual was

       armed or otherwise posed a threat to their safety. Also, we do not believe that

       the additional intrusion of the Detectives conducting a protective sweep of the

       kitchen, a common area within the home, was significant considering that

       Beatty had already given the Detectives permission to enter the home.

       Additionally, the Detectives’ needs were substantial as it is reasonable to

       assume that the Detectives felt the need to verify their personal safety before

       continuing with their investigation of potential drug activity inside the home.

       These factors indicate that the Detectives’ protective sweep of the kitchen was

       reasonable.


                   D. Trial Court Did Not Abuse Its Discretion in
                        Admitting the Challenged Evidence
[43]   Because we conclude that Beatty had the apparent authority to consent to the

       Detectives’ entry into the home and that the Detectives’ protective sweep of the

       kitchen was justified in light of legitimate concerns for the Detectives’ safety, we

       conclude that the Detectives entry into the home and protective sweep of the

       kitchen did not violate either the Fourth Amendment or Article I, Section 11.

       As such, we further conclude that the trial court did not abuse its discretion in


       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 21 of 32
       admitting the evidence that was found in plain view during the Detectives’

       protective sweep of the kitchen.


                                         II. Double Jeopardy
[44]   Bradley also contends that his convictions for Class A felony possession of

       cocaine, Class C felony possession of cocaine and a handgun, and Class C

       felony possession of cocaine violate the constitutional prohibitions against

       double jeopardy.


                                       A. Applicable Authority
[45]           The Indiana Double Jeopardy Clause provides, “No person shall
               be put in jeopardy twice for the same offense.” Ind. Const. art. I,
               § 14. We analyze alleged violations of this clause pursuant to our
               Supreme Court’s opinion in Richardson v. State, 717 N.E.2d 32
               (Ind. 1999). In Richardson, our Supreme Court held that “two or
               more offenses are the ‘same offense’ in violation of Article I,
               Section 14 of the Indiana Constitution, if, with respect to either
               the statutory elements of the challenged crimes or the actual
               evidence used to convict, the essential elements of one challenged
               offense also establish the essential elements of another challenged
               offense.” 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original).


       Bunch v. State, 937 N.E.2d 839, 845 (Ind. Ct. App. 2010).


[46]   Under the “statutory elements” test, two or more offenses are the same offense

       in violation of Article I, Section 14 of the Indiana Constitution if the essential

       statutory elements of one of the challenged offenses also establishes the

       essential statutory elements of another challenged offense. See id. (citing

       Richardson, 717 N.E.2d at 49).

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 22 of 32
[47]   Under the “actual evidence” test, a defendant must demonstrate a reasonable

       possibility that the evidentiary facts used by the fact-finder to establish the

       essential elements of one offense may also have been used to establish all of the

       essential elements of a second challenged offense. Id. (citing Richardson, 717

       N.E.2d at 53). Application of this test requires the court to identify the essential

       elements of each of the challenged crimes and to evaluate the evidence from the

       fact-finder’s perspective. Id. at 845-46. The term “reasonable possibility”

       “turns on a practical assessment of whether the jury may have latched on to

       exactly the same facts for both convictions.” Id. at 846.


               The language expressing the actual evidence test explicitly
               requires evaluation of whether the evidentiary facts used to
               establish the essential elements of one offense may also have
               been used to establish the essential elements of a second challenged
               offense. The test is not merely whether the evidentiary facts used
               to establish one of the essential elements of one offense may also
               have been used to establish one of the essential elements of a
               second challenged offense. In other words, under the Richardson
               actual evidence test, the Indiana Double Jeopardy Clause is not
               violated when the evidentiary facts establishing the essential
               elements of one offense also establish only one or even several,
               but not all, of the essential elements of a second offense.


       Spivey v. State, 761 N.E.2d 831, 832-33 (Ind. 2002) (emphases in original).




       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 23 of 32
           B. Whether Bradley’s Convictions for Class A Felony
        Possession of Cocaine, Class C Felony Possession of Cocaine
          and a Firearm, and Class C Felony Cocaine Violated the
                   Prohibitions Against Double Jeopardy
[48]   Initially, we note that the State concedes that Bradley’s conviction for Class C

       felony possession of cocaine violates the prohibitions against double jeopardy

       and, therefore, must be vacated. Because the State does not differentiate

       between the cocaine possessed in either offense and the record does not

       demonstrate possession of independent sources of cocaine for the two offenses,

       we agree that Bradley’s convictions for both Class A felony possession of

       cocaine and Class C felony possession of cocaine violate the prohibitions

       against double jeopardy. We therefore turn our attention to whether Bradley’s

       convictions for both Class A felony possession of cocaine and Class C felony

       possession of cocaine and a firearm violate the prohibitions against double

       jeopardy.


[49]   Again, in order to convict Bradley of Class A felony possession of cocaine, the

       State was required to prove that Bradley possessed more than three grams of

       cocaine with the intent to deliver. Ind. Code §35-48-4-1(a) & (b). Likewise, in

       order to convict Bradley of Class C felony possession of cocaine and a

       handgun, the State was required to prove that Bradley possessed cocaine while

       also in possession of a firearm. An essential element of both of these offenses is

       undoubtedly the possession of cocaine.




       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 24 of 32
[50]   Bradley contends that his convictions for both Class A felony possession of

       cocaine and Class C felony possession of cocaine and a firearm violate the

       prohibitions against double jeopardy because the same cocaine was used to

       support both convictions. The State counters Bradley’s contention by arguing

       solely that Bradley’s convictions for Class A felony possession of cocaine and

       Class C felony possession of cocaine and a firearm do not violate the

       prohibitions against double jeopardy because the convictions are supported by

       two separate independent sources of cocaine. Specifically, the State claims that

       the Class A felony possession conviction is supported by the approximately

       thirty grams of cocaine that was recovered from Bradley’s person and the Class

       C felony possession conviction is supported by the “very small amount of

       cocaine,” tr. p. 181, that was found in plain sight on the kitchen counter.


[51]   In considering Bradley’s claim, we find it important that the State does not

       differentiate between the sources of cocaine in charging Bradley. The charging

       information for each count merely alleges that Bradley possessed cocaine.

       Moreover, the State did not differentiate between the cocaine recovered from

       Bradley’s person and the small amount of cocaine discovered in plain view

       during the Detective’s protective sweep of the home as being derived from

       separate independent sources during its arguments to the court. Rather, the

       State seems to have treated all of the cocaine as one large sum of cocaine.


[52]   In light of the State’s failure to differentiate between the alleged independent

       sources of cocaine in either the charging information or its argument before the

       trial court, we conclude that the cocaine recovered from Bradley’s person and

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 25 of 32
       the “very small amount of cocaine,” tr. p. 181, discovered in plain view during

       the Detectives’ protective sweep of the home must be treated as a single source

       of cocaine. As such, we conclude that Bradley’s conviction for Class C felony

       possession of cocaine and a firearm is barred by the prohibitions against double

       jeopardy because the same cocaine was used to support both that conviction

       and Bradley’s conviction for Class A felony possession of cocaine. See Bennett v.

       State, 5 N.E.3d 498, 515 (Ind. Ct. App. 2014) (providing that a defendant

       cannot be convicted of dealing in cocaine and possession of cocaine when the

       same cocaine was used to support both convictions); see also Harrison v. State,

       901 N.E.2d 635, 643-44 (Ind. Ct. App. 2009) (also providing that a defendant

       cannot be convicted of dealing in cocaine and possession of cocaine when the

       same cocaine was used to support both convictions), trans. denied.


[53]   Additionally, we note that the Indiana Supreme Court has previously

       concluded that “the crime of Class C felony possession of cocaine and a firearm

       is a lesser included offense” of Class A felony possession or dealing. Hardister v.

       State, 849 N.E.2d 563, 575 (Ind. 2006). Thus, considering the Indiana Supreme

       Court’s conclusion in Hardister coupled with our conclusion that the same

       cocaine was used to support both of the relevant convictions, we further

       conclude that Bradley’s conviction for Class C felony possession of cocaine and

       a firearm must therefore be vacated.




       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 26 of 32
                               III. Sufficiency of the Evidence
[54]   Bradley also contends that the evidence is insufficient to sustain his convictions

       for Class A felony possession of cocaine, Class C felony possession of cocaine

       and a firearm, and Class A misdemeanor possession of marijuana.

                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
                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 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.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002).




       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 27 of 32
                        A. Class A Felony Possession of Cocaine
[55]   Bradley first claims that the evidence is insufficient to sustain his conviction for

       Class A felony possession of cocaine. The version of Indiana Code section 35-

       48-4-1(a) which was in effect on January 15, 2013, provides that: “[a] person

       who … (2) possesses, with intent to: … (C) deliver … cocaine or a narcotic

       drug, pure or adulterated … commits dealing in cocaine or a narcotic drug, a

       Class B felony.” However, “[t]he offense is a Class A felony if: (1) the amount

       of the drug involved weighs three (3) grams or more.” Ind. Code § 35-48-4-1(b).

       “The State must prove that appellant had the intent to deliver in order to gain a

       conviction of possession of cocaine with intent to deliver.” Chandler v. State,

       581 N.E.2d 1233, 1237 (Ind. 1991). “Because intent is a mental state, and

       because it is often the case that an actor does not verbally express intent, the

       trier of fact must usually resort to reasonable inferences based on examination

       of the surrounding circumstances to determine the existence of the requisite

       intent.” Id. “Circumstantial evidence of intent to deliver, such as possession of

       a large quantity of drugs, large amounts of currency, scales, plastic bags, and

       other paraphernalia as well as evidence of other drug transactions, can support

       a conviction.” McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct. App. 1993).


[56]   In the instant matter, the admissible circumstantial evidence is sufficient to

       sustain the trial court’s determination that the State proved that Bradley

       possessed cocaine with the intent to deliver said cocaine. When the Detectives

       encountered Bradley, Bradley had a large quantity of cocaine on his person,

       approximately thirty grams. The majority of the cocaine was in a large baggie.

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 28 of 32
       A much smaller portion was in a separate package. Bradley also had a large

       amount of United States currency on his person. In addition, a set of digital

       scales, a small piece of crack cocaine, glass jar containing cocaine residue, and a

       cutting agent were found in plain view in the kitchen during the Detective’s

       protective sweep of the home. Further, Detective McCoy testified that, based

       on his experience as a law enforcement officer, such a large quantity of cocaine

       coupled with the large amount of United States currency and the items found in

       plain view of the kitchen, was indicative of dealing rather than personal use. In

       light of the evidence presented at trial considered with Detective McCoy’s

       testimony, we conclude that the evidence is sufficient to sustain Bradley’s

       conviction for Class A felony possession of cocaine.


            B. Class C Felony Possession of Cocaine and a Firearm
[57]   Bradley next claims that the evidence is insufficient to sustain his conviction for

       Class C felony possession of cocaine and a firearm. However, having

       concluded above that this conviction must be vacated due to double jeopardy

       concerns, we need not consider whether the evidence is sufficient to sustain this

       conviction.


                 C. Class A Misdemeanor Possession of Marijuana
[58]   Bradley last claims that the evidence is insufficient to sustain his conviction for

       Class A misdemeanor possession of marijuana. The version of Indiana Code

       section 35-48-4-11 which was in effect on January 15, 2013, provides that: “[a]

       person who … knowingly or intentionally possesses (pure or adulterated)


       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 29 of 32
       marijuana … commits possession of marijuana … a Class A misdemeanor.”

       “A person engages in conduct ‘knowingly’ if, when he engages in the conduct,

       he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).

       “A person engages in conduct ‘intentionally’ if, when he engages in the

       conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a).


[59]   Here, the Detectives recovered marijuana from Beatty’s person and from a

       kitchen cabinet. The records suggest that the marijuana recovered from the

       kitchen cabinet was not found in plain view when the Detectives conducted

       their protective sweep of the kitchen. Specifically, none of the Detectives

       testified that the marijuana recovered from the kitchen cabinet was found in

       plain view. Although the trial court’s ruling regarding suppression of the

       evidence is not clear as to the marijuana recovered from the kitchen cabinet

       specifically, the trial court’s order indicates that only the evidence that was

       found in the Detectives’ plain view when they completed the protective sweep

       of the kitchen, the handgun, and the evidence recovered from Bradley’s person

       was admissible at trial. Because the Detectives’ testimony leads only to the

       reasonable inference that the marijuana was not found in plain view but rather

       was recovered from inside the kitchen cabinet, we conclude that the marijuana

       was, or should have been, excluded from trial.


[60]   Further, the State does not argue, and we do not believe, that the marijuana

       recovered from Beatty’s person can or should be attributed to Bradley. As such,

       we conclude that the evidence is insufficient to sustain Bradley’s conviction for

       Class A misdemeanor possession of marijuana because the only evidence of

       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 30 of 32
       marijuana possession that could possibly be attributed to Bradley was not found

       in plain sight and therefore was, or should have been, excluded from trial.

       Bradley’s conviction for Class A misdemeanor possession of marijuana must

       therefore be vacated.



                                                Conclusion
[61]   In sum, we conclude (1) that the Detectives entry into the home did not violate

       the Fourth Amendment or Article I, Section 11; (2) that the Detective’s

       protective sweep of the kitchen did not violate the Fourth Amendment or

       Article I, Section 11; (3) that Bradley’s convictions for Class C felony

       possession of cocaine and a handgun and Class C felony possession of cocaine

       violated the prohibitions against double jeopardy and therefore must be

       vacated; (4) that the evidence is sufficient to sustain Bradley’s conviction for

       Class A felony possession of cocaine; and (5) that the evidence is insufficient to

       sustain Bradley’s conviction for Class A misdemeanor possession of marijuana.


[62]   We therefore (1) affirm Bradley’s conviction for Class A felony possession of

       cocaine; (2) vacate Bradley’s convictions for Class C felony possession of

       cocaine and a handgun, Class C felony possession of cocaine, and Class A

       misdemeanor possession of marijuana; and (3) remand the matter to the trial

       court with instructions for the trial court to enter a new judgment of conviction

       that is consistent with this opinion.




       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 31 of 32
[63]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1404-CR-181 | September 16, 2015   Page 32 of 32
