      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                               FILED
      this Memorandum Decision shall not be                            Jul 18 2016, 9:12 am
      regarded as precedent or cited before any
                                                                           CLERK
      court except for the purpose of establishing                     Indiana Supreme Court
                                                                          Court of Appeals
      the defense of res judicata, collateral                               and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Deborah Markisohn                                        Gregory F. Zoeller
      Indianapolis, Indianapolis                               Attorney General of Indiana
                                                               Larry D. Allen
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Vino Mason,                                              July 18, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A05-1511-CR-2016
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Shatrese M.
      Appellee-Plaintiff                                       Flowers, Judge
                                                               Trial Court Cause No.
                                                               49G20-1311-FD-72531



      Mathias, Judge.


[1]   Following a jury trial, Vino Mason (“Mason”) was convicted in Marion

      Superior Court of Class D felony dealing in marijuana and Class D possession


      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016     Page 1 of 10
      of marijuana. The trial court merged the convictions and ordered Mason to

      serve two years at the Department of Correction, with one year suspended to

      probation and eighty community service hours. Mason now appeals and

      presents three issues for our review, which we restate as:

              I. Whether the evidence was sufficient to support Mason’s conviction of
              Class D felony dealing in marijuana;

              II. Whether the trial court erred in merging Mason’s Class D felony
              dealing in marijuana and Class D felony possession of marijuana after
              entering conviction on both charges; and,

              III. Whether the trial court erred in imposing a supplemental public
              defender fee.

[2]   We affirm in part, reverse in part, and remand for proceedings consistent with

      this opinion.

                                      Facts and Procedural History


[3]   On November 3, 2013, a team of ten Indianapolis Metro Police Department

      (“IMPD”) Metro Drug task force officers led by Detective Sergeant Scott

      Brimer (“Detective Brimer”), executed a search warrant at a local variety store

      on White Avenue in Indianapolis. The store was divided into a common area

      that was open to customers and an employee area that was separated by a door

      and a plexiglass window. When the team arrived inside the store, they found

      French Tibbs (“Tibbs”) in the common area and Mason in the employee area.

      Officers secured Tibbs and Mason and searched the premises.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016   Page 2 of 10
[4]   In the employee area, on a table that Mason was standing next to, officers

      found a jar of 19.54 grams of marijuana, a cell phone, and a digital scale.

      Underneath the table, officers discovered another bag with 68.12 grams of

      marijuana. Officers also found another scale and a bottle of pills later

      determined to be Oxycodone and Xanax.


[5]   Tibbs and Mason were both arrested. Officers then searched the two men

      incident to arrest and found over $1,100 in cash on Tibbs and over $2,400 in

      cash on Mason. Detective Brimer asked Mason if he worked at the store, but

      Mason indicated that he did not have a job. Detective Brimer also asked Tibbs

      where he acquired the money. Tibbs explained that the money was proceeds

      from the store and also told Detective Brimer, “It’s my store, [Mason] doesn’t

      have anything to do with it.” Tr. pp. 97-98. However, a local man who

      frequented the store indicated that he had seen Mason working there on several

      prior occasions.


[6]   On November 7, 2013, the State charged Mason with Class D felony dealing in

      marijuana and Class D felony possession of marijuana. The State amended the

      charging information on July 21, 2014, and added Class B felony dealing in a

      controlled substance and Class B felony possession of a controlled substance. A

      jury trial was held on August 26, 2015, in which Mason was convicted of Class

      D felony dealing in marijuana and Class D felony possession of marijuana. The

      trial court held a sentencing hearing on October 29, 2015, and entered

      conviction on both charges but merged the convictions. The court then ordered



      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016   Page 3 of 10
      Mason to serve two years in the Department of Correction with one year

      suspended to probation and eighty community service hours.

[7]   In its sentencing order, the court ordered Mason to pay a $200 supplemental

      public defender fee. However, at the sentencing hearing, the court stated that

      Mason was indigent to the public defender fee. Tr. p. 320. This was also noted

      in the CCS, abstract of judgment, and the order of commitment to community

      corrections. Appellant’s App. pp. 15-16, 19, 92. The trial court’s judgment of

      conviction order noted that Mason was both indigent as to court costs but also

      indicated that he owed a public defender fee. Mason now appeals.

                                      I. Sufficiency of the Evidence


[8]   Mason argues that his Class D felony dealing in marijuana conviction was not

      supported by sufficient evidence. “Upon a challenge to the sufficiency of

      evidence to support a conviction, a reviewing court does not reweigh the

      evidence or judge the credibility of witnesses, and respects the jury’s exclusive

      province to weigh conflicting evidence.” Montgomery v. State, 878 N.E.2d 262,

      265 (Ind. Ct. App. 2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind.

      2005)). We consider only probative evidence and reasonable inferences

      supporting the verdict. Id. We must affirm if the probative evidence and

      reasonable inferences drawn from the evidence could have allowed a reasonable

      trier of fact to find the defendant guilty beyond a reasonable doubt. Id.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016   Page 4 of 10
[9]    The State was required to prove beyond a reasonable doubt that Mason:


               knowingly or intentionally possesse[d] with the intent to deliver
               marijuana, hash oil, hashish, or salvia.


       Ind. Code § 35-48-4-10(a)(2).1 To elevate the offense to a Class D felony,

       the State had to prove that the marijuana had an aggregate weight of

       greater than thirty grams. Ind. Code § 35-48-4-10(b)(1)(B). Mason does

       not challenge that more than thirty grams was found in the employee

       area at the store, but rather claims that he did not possess the marijuana.


[10]   It is well-established that a conviction for possession of contraband may be

       founded upon actual or constructive possession. Griffin v. State, 945 N.E.2d 781,

       783 (Ind. Ct. App. 2011). Actual possession occurs when a defendant has direct

       physical control over an item, whereas constructive possession occurs when a

       person has the intent and capability to maintain dominion and control over the

       item. Id.


[11]   To fulfill the capability element of constructive possession, the State must

       demonstrate that the defendant was able to reduce the controlled substance to

       his personal possession. Id. To satisfy the intent element, the State must

       demonstrate the defendant’s knowledge of the presence of the contraband. Id. at




       1
        Although the trial court entered conviction on Class D felony dealing in marijuana and possession of
       marijuana, the convictions were merged into the Class D felony dealing in marijuana conviction.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016            Page 5 of 10
       784. In cases where the accused has exclusive possession of the premises on

       which contraband is found, an inference is permitted that he or she knew of the

       presence of contraband and was capable of controlling it. Id. When possession

       of the premises is not exclusive, though, the inference is not permitted absent

       some additional circumstances indicating knowledge of the presence of the

       contraband and the ability to control it. Id. 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) the contraband is in plain

       view; and (6) the location of the contraband is in close proximity to items

       owned by the defendant. Id.


[12]   Here, Detective Brimer testified that when officers arrived at the variety store

       that Tibbs was standing in the customer area, while Mason was standing in the

       employee area, which had a plexiglass barrier separating the two areas. After

       taking Mason and Tibbs into custody, officers on the Metro Task Force

       searched the premises and found in plain view a jar of marijuana2, a bag of

       marijuana, two digital scales with marijuana residue, and a pill bottle

       containing what was later determined to be Oxycodone and Xanax. Mason was

       standing next to the table with the jar of marijuana on it and the bag of




       2
        The substances presumed to be marijuana were tested by forensic chemist Linda McCready (“McCready”)
       at the Marion County crime lab. McCready determined that marijuana was present with a weight of 68.12
       grams.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016      Page 6 of 10
       marijuana underneath it. Further, Mason’s wallet was discovered on the table

       next to the marijuana and the scale.

[13]   Based on these facts and circumstances, Mason did not have exclusive control

       of the premises, so the jury was required to consider the additional factors that

       indicate Mason’s knowledge of the presence of the marijuana and his ability to

       control it. Mason did not make incriminating statements, flee or make furtive

       gestures, and was not in a drug manufacturing setting; however, the marijuana

       was in plain view, Mason was standing right next to the table that contained the

       marijuana, and Mason’s wallet was found on the table next to the marijuana

       and scale. Based on this evidence, it was reasonable for a jury to conclude that

       Mason possessed marijuana with the intent to deliver.


[14]   The jury has discretion to weigh the evidence presented. We must respect this

       discretion. See McHenry, 820 N.E.2d at 126. Therefore, we conclude that the

       State presented sufficient evidence to support Mason’s Class D felony dealing in

       marijuana conviction.

                                             II. Double Jeopardy


[15]   Mason also argues that the trial court erred in merging his Class D felony

       dealing in marijuana and Class D felony possession of marijuana after entering

       conviction on both charges. Specifically, Mason contends that this resulted in a

       double jeopardy violation. A double jeopardy violation occurs when judgments

       of conviction are entered for the same criminal act and cannot be remedied by

       the “practical effect” of concurrent sentences by merger after conviction has

       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016   Page 7 of 10
       been entered. West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014). A trial

       court’s act of merging, without also vacating the conviction, is not sufficient to

       cure a double jeopardy violation. Id.


[16]   Here, in the trial court’s order of judgment and conviction of sentence, it noted

       that Mason was guilty of both Class D felony dealing in marijuana and

       possession of marijuana and entered conviction on both counts before merging

       the possession of marijuana conviction into the dealing in marijuana

       conviction. Appellant’s App. pp. 88-93. Based on these circumstances, we

       conclude that the trial court entered judgment on both convictions, and merger

       was insufficient to remedy this double jeopardy violation. Therefore, we

       remand this case to the trial court with instructions that it vacate the Class D

       felony possession of marijuana conviction. See West, 22 N.E.3d at 875.


                                          III. Public Defender Fee


[17]   Further, Mason contends that the trial court erred in imposing a supplemental

       public defender fee in its sentencing order. Sentencing decisions include

       decisions to impose fees and costs. Johnson v. State, 27 N.E.3d 793, 794 (Ind. Ct.

       App. 2015). We review a trial court’s sentencing decision for an abuse of

       discretion. Powell v. State, 769 N.E.2d 1128, 1134 (Ind. 2002). An abuse of

       discretion occurs when the sentencing decision is “clearly against the logic and

       effect of the facts and circumstances before the court, or the reasonable,

       probable, and actual deductions to be drawn therefrom.” McElroy v. State, 865

       N.E.2d 584, 588 (Ind. 2007).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016   Page 8 of 10
[18]   During the sentencing hearing, the trial court noted that it was finding Mason

       indigent as to a public defender fee, a fine, and court costs. Tr. p. 320. The same

       finding was recorded in the CCS, the abstract of judgment, and the order of

       commitment to community corrections. Appellant’s App. pp. 15-16, 19, 92.

       However, in the court’s order of judgment of conviction and sentence, the court

       checked the box indicating that Mason owed a public defender fee but also

       noted that he was indigent. Appellant’s App. pp. 90, 92. In addition, the court

       imposed a $200 supplemental public defender fee in its written sentencing

       order. Appellant’s App. p. 21.


[19]   The approach employed by Indiana appellate courts in reviewing sentences in

       non-capital cases is to examine both the written and oral sentencing statements

       to discern the findings of the trial court. McElroy, 865 N.E.2d at 589. Rather

       than presuming the superior accuracy of the oral statement, we examine it

       alongside the written sentencing statement to assess the conclusions of the trial

       court. Id. We have the option of crediting the statement that accurately

       pronounces the sentence or remanding for resentencing. Id. (citing Wiley v.

       State, 712 N.E.2d 434, 446 n. 8 (Ind. 1999) (“[T]he trial court issued its written

       sentencing order that was consistent with the Abstract of Judgment, but at odds

       with the oral pronouncement at the sentencing hearing. . . Based on the

       unambiguous nature of the trial court's oral sentencing pronouncement, we

       conclude that the Abstract of Judgment and Sentencing Order contain clerical

       errors and remand this case for correction of those errors.”))




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016   Page 9 of 10
[20]   Like our supreme court concluded in Wiley, we conclude that because the trial

       indicated at the sentencing hearing that Mason would be found indigent as to a

       public defender, fines, and court costs but then imposed the public defender fee

       on the order of conviction and sentence and the sentencing order, that clerical

       errors exist on the sentencing order that need to be corrected. Therefore, we

       remand this case to the trial court with instructions to clarify whether Mason is

       indigent or responsible to pay the supplemental public defender fee.

                                                   Conclusion


[21]   The State presented sufficient evidence to support Mason’s Class D felony

       dealing in marijuana conviction. However, the trial court erred by merging

       Mason’s Class D felony dealing in marijuana and possession of marijuana

       convictions and in finding him both indigent and requiring him to pay the

       public defender fee. Therefore, we remand this case to the trial court with

       instructions to correct the sentencing order by vacating Mason’s Class D felony

       possession of marijuana conviction and to clarify whether Mason is indigent or

       responsible to pay the supplement public defender fee.

[22]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016   Page 10 of 10
