Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
                                                            FILED
                                                          Dec 20 2012, 9:24 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                     CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

TIMOTHY J. O’CONNOR                             GREGORY F. ZOELLER
O’Connor & Auersch                              Attorney General of Indiana
Indianapolis, Indiana
                                                RICHARD C. WEBSTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

NETIKO JONES,                                   )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A05-1205-CR-222
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Steven Eichholtz, Judge
                           Cause No. 49G20-1110-FA-70650


                                    December 20, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Netiko Jones (Jones), appeals his convictions for Count I,

dealing in cocaine within 1,000 feet of a public park, a Class A felony, Ind. Code §§ 35-

48-4-1(a)(1)(C); -(b)(3)(B)(ii); Count II, possession of cocaine, a Class B felony, I.C. §

35-48-4-6; Count III, possession of three or more grams of cocaine with intent to deliver,

a Class A felony, I.C. §§ 35-48-4-1(a)(2)(C); -(b)(1); and Count IV, resisting law

enforcement, a Class A misdemeanor, I.C. § 35-44-3-3.

      We affirm.

                                        ISSUES

      Jones raises two issues on appeal, which we restate as:

      (1) Whether the evidence was sufficient to convict Jones of dealing cocaine; and

      (2) Whether Jones’ convictions for dealing cocaine and possession of three or

          more grams of cocaine with intent to deal violate double jeopardy.

                       FACTS AND PROCEDURAL HISTORY

        On October 3, 2011, an undercover police officer made two separate purchases of

crack cocaine from Jones’ house in Indianapolis, Indiana. Jones’ house is located within

1,000 feet of a public park and had been under prior surveillance. Carrying $20 of pre-

recorded buy money, an undercover officer, Officer Erika Jones (Officer Jones), went to

the rear bedroom window of Jones’ house around 7:30 p.m. Officer Jones walked to the

window and Mar-Shayn Singletary (Singletary) was inside.         Officer Jones asked to

purchase crack cocaine and Singletary gave her two small rock-like pieces of cocaine in

                                            2
exchange for the money. Officer Jones gave the cocaine to her supervisor who placed it

in a heat-sealed envelope. The cocaine weighed .1966 grams. At 9:30 p.m., Officer

Jones approached the house a second time to purchase more crack cocaine using pre-

recorded buy money. When she went to the window this time however, a man whom she

did not recognize sold her cocaine in exchange for the money. Officer Jones again gave

the cocaine to her supervisor who placed it in a heat-sealed envelope. The cocaine from

the second buy weighed .2731 grams.

      At 11:30 p.m., police executed a search warrant for Jones’ residence.        After

identifying themselves, officers used a battering ram to knock down the front door.

Inside the house, officers found Singletary and Jones, who, after being told to stop, ran

into the kitchen. Jones then ran from the kitchen to the bedroom and dove out the

bedroom window. Officers outside the window identified themselves, ordered Jones to

stop, and apprehended him.

      Inside the house, officers found cocaine scattered on the kitchen floor and a

countertop. This cocaine was collected and weighed 14.7522 grams. A grey shoe box

containing the buy money and Jones’ lease agreement and rental receipt for the house

were also found on the countertop. Supplies used to make crack cocaine were recovered

from a trash bag in the kitchen. Cocaine and a digital scale were found in and near a

couch in the living room. Officers collected the cocaine and it was later weighed at

10.2739 grams. In addition, a handgun, its magazine, and ammunition along with a grey



                                           3
pouch containing money were found in and below the couch. The money collected from

the grey shoebox and pouch totaled $1,753.

       On October 6, 2011, the State filed an Information charging Jones with Count I,

dealing cocaine within 1,000 feet of a public park, a Class A felony, Ind. Code §§ 35-48-

4-1(a)(1)(C); -(b)(3)(B)(ii); Count II, possession of cocaine, a Class B felony, I.C. § 35-

48-4-6; Count III, possession of cocaine of three grams or more with intent to deliver

within 1,000 feet of a public park, a Class A felony, I.C. §§ 35-48-4-1(a)(2)(C); -(b)(1)

and (3)(B)(ii); and Count IV, resisting law enforcement, a Class A misdemeanor, I.C. §

35-44-3-3.

      On March 21, 2012, the State amended Count III of the Information to delete the

reference to a public park. That same day, a jury trial was held. Singletary testified that

Jones had hired him to sell cocaine out of the home, that Singletary had been doing so for

a month prior to the raid, that Jones gave Singletary the crack cocaine that was sold to

Officer Jones out of the rear bedroom window of the house, and that Jones not only lived

at the house but also prepared and sold cocaine there. At the close of the evidence, the

jury found Jones guilty as charged. On April 10, 2012, the trial court held a sentencing

hearing and merged Jones’ conviction for Count II into Count I. The trial court sentenced

him to twenty years each on Counts I and III and one year on Count IV, with the

sentences to be served concurrently. The trial court suspended ten years and ordered two

years of supervised probation.

      Jones now appeals. Additional facts will be provided as necessary.

                                             4
                               DISCUSSION AND DECISION

                                        I. Sufficiency

       Jones first contends that the State did not provide sufficient evidence to convict

him of dealing in cocaine within 1,000 feet of a public park as a Class A felony instead of

a Class B felony. In reviewing a sufficiency of the evidence claim, this court does not

reweigh the evidence or judge the credibility of witnesses. Perez v. State, 872 N.E.2d

208, 213 (Ind. Ct. App. 2007), trans. denied. In addition, we only consider the evidence

most favorable to the verdict and the reasonable inferences stemming from that evidence.

Id. We will only reverse a conviction when reasonable persons would not be able to form

inferences as to each material element of the offense. Id. at 212-13.

       To convict Jones of dealing in cocaine as a Class B felony, the State must prove

that he knowingly or intentionally delivered cocaine. See I.C. § 35-48-4-1(a)(1). I.C. §

35-48-1-11 defines “delivery” as “(1) an actual or constructive transfer from one []

person to another of a controlled substance, whether or not there is an agency

relationship; or (2) the organizing or supervising of an activity described in subdivision

(1).” To elevate that offense to a Class A felony, the State must further prove that he

delivered the drug “in, on, or within one thousand (1,000) feet of […] a public park.”

I.C. § 35-48-4-1(b)(3)(iii).

       While admitting that the evidence sufficed to convict him of dealing cocaine as a

Class B felony, Jones nonetheless argues that “while there may be evidence that Jones

hired Singletary to sell cocaine, there is no evidence that he knew or intended that

                                             5
Singletary would sell it from the home that was within 1,000 feet of a public park.” We

disagree.

      As Jones acknowledges, the 1,000 foot element is a punishment provision that

imposes strict liability based on the location of the crime. See Walker v. State, 668

N.E.2d 243, 244 (Ind. 1996). Thus, a conviction without proof that the defendant knew

he was within 1,000 feet when the crime was committed is not deficient. See id. Jones

also acknowledges that under an accomplice liability theory, one who aids, induces, or

causes the commission of an offense also commits that offense. See I.C. § 35-41-2-4.

      Here, Singletary admitted to selling Officer Jones crack cocaine from the bedroom

window of the house at 7:30 p.m. on October 3, 2011. It is uncontested that the house is

located within 1,000 feet of a public park. Because Singletary would be guilty of dealing

in cocaine within 1,000 feet of a public park, so too would Jones as an accomplice. See

Schnitz v. State, 650 N.E.2d 717, 722 (Ind. Ct. App. 1995), aff’d by Schnitz v. State, 666

N.E.2d 919 (Ind. 1996).

      Moreover, the evidence also supports Jones’ conviction for dealing cocaine as a

principal. Singletary testified that Jones supplied him with cocaine, paid him to sell it,

and that Jones lived at and also sold cocaine out of the house. Jones supplied Singletary

with the cocaine that day and was in the house with Singletary when the officers raided it

at 11:30 p.m. that same night. The foregoing evidence establishes that Jones organized or

supervised Singletary’s delivery of cocaine to Officer Jones within 1,000 feet of a public



                                            6
park. Accordingly, we conclude that the State provided evidence sufficient to convict

Jones of delivery of cocaine within 1,000 feet of a public park.

                                               II. Double Jeopardy

         Jones next argues that double jeopardy principles prohibit his convictions for both

dealing in cocaine within 1,000 feet of a public park and possession of cocaine with

intent to deliver. Article I, Section 14 of the Indiana Constitution provides that “[n]o

person shall be put in jeopardy twice for the same offense.” We determine whether

convictions violate this clause by following the two-part test established in Richardson v.

State, 717 N.E.2d 32 (Ind. 1999). First, we evaluate whether the statutory elements of the

crimes are the same. Goldberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005).

Then, we evaluate whether the actual evidence used to convict the defendant of the two

crimes is the same.1 Id. Jones’ argument fails both tests.

         Jones first asserts that “[p]ossession of contraband is an inherently lesser included

offense of dealing it.” (Appellant’s Br. p. 7). To determine whether two offenses are the

same under the statutory elements test, we review “whether each statutory provision

requires proof of an additional fact which the other does not.” Id. at 459. When we

compare the elements of the crimes, each crime must contain at least one element that is

separate and distinct from the other crime. Id. Possession of cocaine pursuant to I.C. §
1
  Jones does not specify whether he relies on the U.S. Constitution or the Indiana Constitution to support his double
jeopardy claim. Nor does he specify which test he relies on. Instead, Jones cites four Indiana cases predating
Richardson. These cases either applied double jeopardy principles generally or relied in part on the federal double
jeopardy test. As the Richardson test is in part similar to the federal double jeopardy standard and Jones’s
arguments invoke the actual evidence test, we apply Richardson to review Jones’s claim. See Goldberry, 821
N.E.2d at 459.

                                                          7
35-48-4-6 is a lesser included offense of dealing in cocaine.2 Harrison v. State, 901

N.E.2d 635, 643 (Ind. Ct. App. 2009), trans. denied. However, here Jones alleges that

his conviction under I.C. §§ 35-48-4-1(a)(2)(C); -(b)(1), possession of three grams or

more of cocaine with intent to deliver, violates double jeopardy principles. We have

explained that “[t]he possession with intent to deliver offense requires possession of an

amount greater than three grams, which is not an element of the offense of dealing

cocaine.” Carroll v. State, 740 N.E.2d 1225, 1232 (Ind. Ct. App. 2000), trans. denied.

Thus, Jones’ convictions do not violate the statutory elements test.

        Under the “actual evidence” test, we must examine the evidence presented at trial

to determine whether each challenged offense was established by separate and distinct

facts. Goldberry, 821 N.E.2d at 459. To demonstrate two offenses are the same, the

appellant must show a reasonable possibility that the facts used by the jury to establish

the essential elements of one offense were also used to establish the essential elements of

the second offense. Id. The appellant must show more than a remote or speculative

possibility that the same facts were used. Id. To determine what facts were used, we

consider the evidence, charging information, final jury instructions, and arguments of

counsel. Id.

        At trial, the State offered into evidence the two pieces of crack cocaine sold to

Officer Jones at 7:30 p.m. and 9:30 p.m. for $20 each. This cocaine was separately


2
 Although Jones was also convicted under I.C. § 35-48-4-6 for possession of cocaine, the trial court merged this
offense into Count I, dealing in cocaine. That conviction is not challenged here.

                                                         8
collected into heat sealed bags and weighed at .1966 and .2731 grams, respectively.

Separately, the State offered exhibits containing cocaine collected from Jones’ kitchen

area and couch. These exhibits weighed 14.7522 and 10.2739 grams, respectively. The

State elicited testimony from officers to identify and describe the collection of each

exhibit.   Next, the charging Information and final instructions provided different

descriptions for the dealing and the possession with intent to deliver charges. The

dealing Information and final jury instruction specified delivery to an undercover officer

and the possession with intent to deliver Information and final jury instruction specified

three or more grams of cocaine. Finally, the State’s final argument separated the cocaine

sold to Officer Jones from the cocaine found in Jones’ house. In particular, the State

argued:

       Count [III] where we got more than [three] grams, we got close to an
       ounce, we got 25 grams, most of it scattered on the floor in somebody’s
       haste scatters it there. […]. And you know where that cocaine on the floor
       was all going. It eventually was going out that window. So I clearly think
       we have an intent to deliver over [three] grams.

(Transcript. p. 271). The foregoing leads us to conclude that the evidence offered at trial,

the charging Information, the final instructions, and the final argument by the State all

suggest the jury would not have relied on the same facts to convict Jones of both dealing

in cocaine and possession of three or more grams of cocaine with intent to deliver.

                                     CONCLUSION

       Based on the foregoing, we conclude that:        (1) the State produced sufficient

evidence to prove beyond a reasonable doubt that Jones committed dealing in cocaine as

                                             9
a Class A felony; and (2) Jones’ conviction for dealing in cocaine within 1,000 feet of a

public park and possession with intent to deliver three or more grams of cocaine do not

violate double jeopardy.

      Affirmed.

BAKER, J. and BARNES, J. concur




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