MEMORANDUM DECISION                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                         Sep 22 2016, 6:03 am

this Memorandum Decision shall not be                               CLERK
                                                                Indiana Supreme Court
regarded as precedent or cited before any                          Court of Appeals
                                                                     and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darwick Young,                                           September 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1602-CR-216
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Seiter,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1507-F2-024813



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016   Page 1 of 13
                                         Statement of the Case
[1]   Darwick Young (“Young”) appeals his convictions for Level 2 felony dealing in

      cocaine;1 Level 3 felony possession of cocaine;2 Class A misdemeanor carrying

      a handgun without a license;3 Level 6 felony maintaining a common nuisance;4

      and Class B misdemeanor possession of marijuana.5 On appeal, he argues that

      there was insufficient evidence to support his convictions. Because we

      conclude that there was sufficient evidence, we affirm his convictions.


[2]   However, we note that the trial court improperly entered a judgment of

      conviction on Young’s possession of cocaine conviction prior to merging it with

      his dealing in cocaine conviction. The trial court also improperly enhanced all

      of Young’s convictions with his sentence for being an habitual offender. To

      correct these errors, we remand to the trial court with instructions to vacate

      Young’s Level 3 felony possession of cocaine judgment of conviction and to

      revise his sentence so that his habitual offender sentence enhances only his

      dealing in cocaine conviction.


[3]   We affirm and remand.




      1
          IND. CODE § 35-48-4-1(a)(2).
      2
          I.C. § 35-48-4-6(a).
      3
          I.C. § 35-47-2-1.
      4
          I.C. § 35-48-4-13(b)(2).
      5
          I.C. § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016   Page 2 of 13
                                                     Issue
            Whether there was sufficient evidence to support Young’s convictions.


                                                     Facts
[4]   At 7:23 p.m. on July 12, 2015, Indianapolis Metropolitan Police Department

      (“IMPD”) officers Jordan Bull (“Officer Bull”) and Sergio Deleon (“Officer

      Deleon”) were dispatched to an address on North Edmondson Street in

      Indianapolis in response to a report that there was suspicious activity occurring

      in a vehicle at that address. When the officers arrived, they pulled up behind

      the vehicle in question. Officer Bull saw a woman, later identified as Danielle

      Barksdale (“Barksdale”), exit the passenger side of the vehicle and enter the

      residence at the address where the vehicle was parked.


[5]   Officer Bull walked up to the vehicle on foot, and the driver, who was later

      identified as Young, rolled down his window. As he did so, Officer Bull

      “immediately recognized the odor of raw marijuana coming from the vehicle.”

      (Tr. 40). As a result, he asked Young to exit the vehicle and placed him into

      handcuffs so that he could search the vehicle.


[6]   Officer Bull first searched the driver’s seat area of the vehicle and found a

      handgun located between the driver’s seat and the center console. He

      confirmed that Young did not have a gun permit and that Young was the

      registered owner of the vehicle. He then continued his search and found a

      smart phone in plain view by the vehicle’s cup holders, as well as two flip

      phones and a digital scale in the center console. In the back of the car, tucked

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016   Page 3 of 13
      underneath and behind the passenger’s seat, Officer Bull found clear plastic

      sandwich bags and a thermos. He opened the thermos and noticed that it was

      shallower inside than he expected based on its outward appearance. Also, the

      odor of raw marijuana was “apparent.” (Tr. 50). He searched the thermos and

      located a hidden compartment inside that contained a purple cloth bag. Inside

      the cloth bag were bags containing what was later identified as 9.52 grams of

      cocaine, 3.06 grams of crack cocaine, and 2.55 grams of marijuana.


[7]   While Officer Bull searched Young’s vehicle, Officer Deleon searched Young

      and found “wads of money” totaling $2,950 in at least two of Young’s pockets.

      (Tr. 72). He also searched the vehicle’s trunk and found a box of ammunition

      and mail addressed to Young.


[8]   Subsequently, on July 15, 2015, the State charged Young with Count 1, Level 2

      felony dealing in cocaine; Count 2, Level 3 felony possession of cocaine; Count

      3, Class A misdemeanor carrying a handgun without a license; Count 4, Level

      6 felony maintaining a common nuisance; and Count 5, Class B misdemeanor

      possession of marijuana. The State also alleged that Young was an habitual

      offender.6


[9]   The trial court then held a jury trial on the charges on December 3, 2015. At

      the trial, Officer Bull testified that he believed that the thermos containing the

      bags of drugs had been within Young’s reach inside of the car. IMPD Sergeant



      6
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016   Page 4 of 13
       Charles Tice (“Sergeant Tice”) testified regarding the differences between users

       of narcotics and dealers of narcotics. He said that “any kind of narcotic dealer

       is going to have three basic things, they’re going to have product, money[,] and

       protection.” (Tr. 165). That protection, according to Sergeant Tice, would

       “nine times out of [ten] be a gun.” (Tr. 174). In contrast, he testified, a cocaine

       user would not likely carry a firearm because a firearm would enhance a

       cocaine charge. Similarly, Sergeant Tice testified that it would not be common

       to find a narcotics user in possession of 9.52 grams of cocaine because most

       narcotics users recognize that there are stiffer penalties for carrying high

       amounts of cocaine. Also, a cocaine user typically uses only “about 0.1 [or] 0.2

       grams of cocaine” per “hit.” (Tr. 185). As for the narcotics that the police

       found in Young’s car, Sergeant Tice testified that 9.52 grams of cocaine and

       3.06 grams of crack cocaine would be worth $2,000 and $600, respectively, on

       the market.


[10]   Young testified on his own behalf and denied that the drugs, handgun, money,

       and paraphernalia belonged to him. Specifically, he testified that on the night

       that he had been arrested, Barksdale had placed the handgun in his vehicle and

       then returned to her mother’s house to get cigarettes. As for the cash that the

       police had found in his pockets, Young testified that he had collected the

       money from four people who shared his phone line so that he could pay for a

       high cell phone bill. He said that the rest of the cash was rent and utility

       money. As for the other evidence the police collected from his vehicle, Young

       testified that he did not know how the ammunition, digital scale, or thermos


       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016   Page 5 of 13
       full of narcotics had gotten into his car, but he stated that “three or four other

       people” had had access to his car and that he had a history of loaning out his

       car to others. (Tr. 195).


[11]   At the conclusion of the trial, the jury found Young guilty as charged, and

       Young admitted to being an habitual offender. The trial court sentenced Young

       to: eighteen (18) years, with ten (10) years executed and eight (8) years

       suspended, for Count 1; 365 days for Count 3; one (1) year for Count 4; ninety

       (90) days for Count 5; and six (6) years for his habitual offender enhancement.7

       The court also merged Young’s possession of cocaine conviction with his




       7
        In its “Order of Judgment and Sentence,” the trial court provided that Young’s habitual offender
       enhancement should run consecutive to “Count 1, 2, 3[,] 4[,] 5.” (App. 142). Such a sentence is contrary to
       our supreme court’s holding in Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997), where it held that:
               A habitual offender finding does not constitute a separate crime nor result in a separate
               sentence, but rather results in a sentence enhancement imposed upon the conviction of a
               subsequent felony. In the event of simultaneous multiple felony convictions and a finding
               of habitual offender status, trial courts must impose the resulting penalty enhancement
               upon only one of the convictions and must specify the convictions to be so enhanced.
       (internal citations omitted). Pursuant to INDIANA CODE § 35-50-2-8(j),
               The court shall attach the habitual offender enhancement to the felony conviction with the
               highest sentence imposed and specify which felony count is being enhanced. If the felony
               enhanced by the habitual offender determination is set aside or vacated, the court shall
               resentence the person and apply the habitual offender enhancement to the felony
               conviction with the next highest sentence in the underlying cause, if any.
       Here, the trial court erred by imposing Young’s penalty enhancement for his habitual offender status on all
       five of his convictions. Applying the sentencing rules specified in INDIANA CODE § 35-50-2-8(j), the trial
       court should have imposed Young’s habitual offender enhancement on only his highest sentence, which was
       his sentence for his dealing in cocaine conviction. Accordingly, we remand with instructions for the trial
       court to resentence Young so that his habitual offender sentence enhances solely his sentence for dealing in
       cocaine.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016         Page 6 of 13
       dealing in cocaine conviction and ordered that Young serve all of his sentences

       concurrently.8 Young now appeals.


                                                       Decision
[12]   On appeal, Young challenges the sufficiency of the evidence for all of his

       convictions. He claims that, even though the police found the drugs and

       handgun in his car, his presence in the car was not sufficient to prove that he

       possessed the drugs or carried the firearm without a license. Alternatively, he

       argues that even if there was sufficient evidence that he possessed the cocaine,

       there was no evidence that he intended to deliver it, as was required for both his

       dealing in cocaine and maintaining a common nuisance convictions. We will

       address each of these arguments in turn.


[13]   First, however, we note that when considering a challenge to the sufficiency of

       the evidence, we do not reweigh the evidence or judge the credibility of

       witnesses. Sidener v. State, 55 N.E.3d 380, 385 (Ind. Ct. App. 2016). We will

       affirm if the probative evidence and reasonable inferences drawn therefrom




       8
         In regard to the trial court’s act of merging Young’s possession of cocaine and dealing in cocaine
       convictions, which were convictions for which the trial court had already entered a judgment of conviction,
       we note that “[a] trial court’s act of merging, without also vacating the conviction, is not sufficient to cure a
       double jeopardy violation” and that such a violation cannot be remedied by the “practical effect” of merging
       after a conviction has been entered. Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans.
       denied. See also Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (explaining that “a merged offense for which a
       defendant is found guilty, but on which there is neither a judgment nor a sentence, is ‘unproblematic’ as far
       as double jeopardy is concerned”). Because the record reveals that the trial court entered judgment of
       conviction on Young’s possession of cocaine and dealing in cocaine convictions prior to merging them, we
       reverse in part and remand this cause to the trial court with instructions to vacate Young’s judgment of
       conviction on Count 2, possession of cocaine.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016             Page 7 of 13
       could have allowed a reasonable jury to find the defendant guilty beyond a

       reasonable doubt. Id.


       1. Dealing in Cocaine

[14]   Young’s argument that there was insufficient evidence to support his dealing in

       cocaine conviction has two components. First, he claims that there was no

       evidence that he possessed the cocaine that the police found in the thermos

       inside of his vehicle. He contends that he did not know about the drugs, and he

       notes that his testimony that other people had used his vehicle before his arrest

       was undisputed. He claims that those other people accounted for the fact that

       the drugs were in his car without his knowledge. Alternatively, Young argues

       that there was no evidence that, even if he possessed the cocaine, he intended to

       deliver it to another person.


[15]   In order to convict Young of dealing in cocaine, the State was required to prove

       that he “possess[ed], with intent to (A) manufacture; (B) finance the

       manufacture of; (C) deliver; or (D) finance the delivery of; cocaine or a narcotic

       drug, pure or adulterated. . . .” I.C. § 35-48-4-1(a)(2).


[16]   With regard to Young’s first argument, that he did not possess the cocaine, it is

       well-established that possession of an item may be either actual or constructive.

       See Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g, 685

       N.E.2d 698 (Ind. 1997). Actual possession occurs when a person has direct

       physical control over the item. Houston v. State, 997 N.E.2d 407, 410 (Ind. Ct.

       App. 2013). Constructive possession, which is applicable in this case, occurs


       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016   Page 8 of 13
       when a person has: (1) the capability to maintain dominion and control over

       the item; and (2) the intent to maintain dominion and control over it. Lampkins,

       682 N.E.2d at 1275.


[17]   The capability element of constructive possession is met when the State shows

       that the defendant is able to reduce the controlled substance to the defendant’s

       personal possession. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999).

       Additionally, “[a] trier of fact may infer that a defendant had the capability to

       maintain dominion and control over contraband from the simple fact that the

       defendant had a possessory interest in the premises on which an officer found

       the item.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). See also Goliday, 708

       N.E.2d at 6 (explaining that “[p]roof of a possessory interest in the premises in

       which the illegal drugs are found is adequate to show the capability to maintain

       control and dominion over the items in question”) (quoting Davenport v. State,

       464 N.E.2d 1302, 1307 (Ind. 1984), cert. denied).


[18]   The intent element of constructive possession is shown if the State demonstrates

       the defendant’s knowledge of the presence of the contraband. Goliday, 708

       N.E.2d at 6. A defendant’s knowledge may be inferred from either the

       exclusive dominion and control over the premises containing the contraband or,

       if the control is non-exclusive, evidence of additional circumstances pointing to

       the defendant’s knowledge of the presence of contraband. Id. These additional

       circumstances may include: “(1) a defendant’s incriminating statements; (2) a

       defendant’s attempting to leave or making furtive gestures; (3) the location of

       contraband like drugs in settings suggesting manufacturing; (4) the item’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016   Page 9 of 13
       proximity to the defendant; (5) the location of contraband within the

       defendant’s plain view; and (6) the mingling of contraband with other items the

       defendant owns.” Gray, 957 N.E.2d at 175. This list is non-exhaustive, and

       other circumstances may just as reasonably demonstrate the defendant’s

       requisite knowledge of the presence and character of contraband. Carnes v.

       State, 480 N.E.2d 581, 586 (Ind. Ct. App. 1985), reh’g denied, trans. denied.


[19]   Here, the jury could infer that Young had the capability to maintain dominion

       and control over the contraband because Young had a possessory interest in the

       vehicle where the contraband was found. See Gray, 957 N.E.2d at 174.

       However, Young argues that the jury could not infer that he had knowledge of

       the drugs because he did not have exclusive dominion and control over his

       vehicle. Specifically, he contends that Barksdale’s presence in the vehicle

       shortly before the police officers searched it negated his exclusive control over

       the car.


[20]   We are not persuaded by Young’s argument because, even assuming that

       Young did not have exclusive dominion and control over his vehicle, additional

       circumstances permitted the inference that he had knowledge of the drugs.

       While the drugs were not in plain view, Officer Bull testified that they were

       within Young’s reach inside of the car and, therefore, within close proximity to

       him. Officer Bull also testified that he immediately smelled the odor of raw

       marijuana when Young rolled down the vehicle’s window. Further, other

       evidence within Young’s view and/or interspersed among his belongings,

       including the flip phones, digital scale, plastic bags, and large amounts of cash,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016   Page 10 of 13
       were consistent with a drug delivery setting. In light of these additional factors,

       we conclude that there was sufficient evidence that Young had constructive

       possession of the drugs.9


[21]   Alternatively, Young argues that, even if there was sufficient evidence that he

       possessed cocaine, there was not sufficient evidence that he intended to deliver

       that cocaine to others. He contends that neither the quantity of the cocaine nor

       its packaging were sufficient to prove such an intent.


[22]   Because intent is a mental state, it can be established only by considering the

       behavior of the relevant actor, the surrounding circumstances, and the

       reasonable inferences to be drawn therefrom. Richardson v. State, 856 N.E.2d

       1222, 1227 (Ind. Ct. App. 2006), trans. denied. Circumstantial evidence of intent

       may support a conviction. Id. Possessing a large amount of a narcotic

       substance is circumstantial evidence of the intent to deliver. Id. The more

       narcotics a person possesses, the stronger the inference that he intended to

       deliver it rather than consume it personally. Id.


[23]   Young argues that the amount of cocaine he possessed and its packaging were

       insufficient to prove that he intended to deliver the cocaine. However,




       9
         Young also argues that there was insufficient evidence of his constructive possession of the marijuana to
       support his conviction for possession of marijuana. In order to convict Young of possession of marijuana,
       the State was required to prove that he “knowingly or intentionally possess[ed] (pure or adulterated)
       marijuana.” I.C. § 35-48-4-11(a)(1). As the police found the marijuana in Young’s car in the same location
       as the cocaine, our analysis of Young’s constructive possession of the cocaine also applies to his constructive
       possession of the marijuana. Accordingly, we conclude that there was sufficient evidence that he possessed
       the marijuana to support his conviction for possession of marijuana.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016          Page 11 of 13
       regardless of the amount and packaging of Young’s cocaine, there was

       substantial circumstantial evidence of his intent. Sergeant Tice testified that a

       cocaine dealer, as opposed to a cocaine user, would typically have money, a

       weapon, and product on him. This analysis was consistent with Young’s

       circumstances as Officers Deleon and Bull found $2,950 in Young’s pockets, a

       handgun next to Young’s seat, and cocaine within reach. The officers also

       found items associated with dealing cocaine in Young’s car, including two flip

       phones, plastic bags, and a digital scale. In light of this evidence, we conclude

       that there was sufficient evidence of Young’s intent to support his conviction for

       dealing in cocaine.10


       2. Carrying a Handgun

[24]   Next, Young argues that there was not sufficient evidence that he possessed the

       handgun to support his conviction for carrying a handgun without a license. In

       particular, he asserts that the firearm belonged to Barksdale and that she

       possessed it, even though the police found it inside of his vehicle.


[25]   Carrying a handgun can also be shown by either actual or constructive

       possession. Wallace v. State, 722 N.E.2d 910, 913 (Ind. Ct. App. 2000). As

       above, constructive possession occurs when a person has the capability and

       intent to maintain dominion and control over the item. Id.




       10
         Young also argues that, because there was no evidence of his intent to deal cocaine, there was insufficient
       evidence to support his conviction for maintaining a common nuisance. Because we conclude that there was
       evidence of his intent to deal cocaine, we need not address this argument.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016        Page 12 of 13
[26]   Here, the jury was allowed to infer that Young had the capability to maintain

       dominion and control over the handgun as he had a possessory interest in the

       vehicle where it was found. See Gray, 957 N.E.2d at 174. As for Young’s

       intent, we conclude that Young clearly intended to maintain dominion and

       control over the handgun. In his testimony at trial, Young admitted that when

       he saw the police officers, he picked up the gun and moved it so that they

       would not think he was threatening them. This action demonstrated that

       Young had knowledge of the gun and the intent to control it. Hence, we

       conclude that there was sufficient evidence of his constructive possession of the

       gun to support his conviction for carrying a handgun without a license.

       Young’s argument that the firearm belonged to Barksdale rather than himself is

       a request for us to reweigh the evidence, which we will not do. Sidener, 55

       N.E.3d at 385.


[27]   Affirmed and remanded.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-216 | September 22, 2016   Page 13 of 13
