MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                    Mar 09 2016, 8:57 am
regarded as precedent or cited before any
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
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marcus Cotton,                                           March 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1508-CR-1077
        v.                                               Appeal from the Mario Superior
                                                         Court
State of Indiana,                                        The Honorable Peggy Ryan-Hart,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         The Honorable David Seiter,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1407-F2-37221



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016       Page 1 of 11
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Marcus Cotton (Cotton), appeals his conviction for

      dealing in cocaine, a Level 2 felony, Ind. Code § 35-48-4-1(a)(2); possession of

      cocaine, a Level 3 felony, I.C. § 35-48-4-6(a); possession of a narcotic drug, a

      Level 6 felony, I.C. § 35-48-4-6(a); and maintaining a common nuisance, a

      Level 6 felony, I.C. § 35-48-4-13(b)(2).


[2]   We affirm.


                                                    ISSUE

[3]   Cotton raises one issue on appeal, which we restate as: Whether the State

      presented sufficient evidence beyond a reasonable doubt to support his

      conviction.


                           FACTS AND PROCEDURAL HISTORY

[4]   On July 24, 2014, Detective Patrick Collins with the Indianapolis Metropolitan

      Police Department (Detective Collins), together with several other officers,

      executed a search warrant for a residence on North Grand, Indianapolis,

      Indiana. The house was a “very small apartment in the back of a two-story

      house[,]” consisting of a living area, a bathroom, and a small kitchen.

      (Transcript p. 13). The front door had been fortified with several “brackets for a

      barricade[,]” a chain, and a padlock. (Tr. p. 39). There was a surveillance


      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016   Page 2 of 11
      camera in the bird house directly outside of the front door. After the SWAT

      team “busted in” the front door, the officers located Cotton “around the kitchen

      area” and Jill Warren (Warren) was found in the bathroom. (Tr. p. 13). Inside,

      “the home was in disarray. There was clothing thrown on the floor and things

      scattered everywhere.” (Tr. p. 44). A packet of court documents bearing

      Cotton’s name was found inside one of the kitchen cabinets. After being served

      with the warrant and read his Miranda rights, Cotton admitted to living in the

      residence and told Detective Collins that “he was hit[,]” which the officer

      understood to mean that “he was in trouble.” (Tr. p. 18).


[5]   Inside a box on the coffee table in the living room, the officers found a clear

      plastic baggie containing 27.86 grams of cocaine in powder form, an envelope

      with 2.2 grams of heroin, and currency. The substances found in the box were

      heat sealed and labeled as Heat Seal 1 for testing. On the coffee table was a pill

      bottle containing twenty-six individually wrapped baggies with crack cocaine,

      as well as two additional plastic baggies with suspected cocaine. The items

      found on the coffee table were heat sealed and labeled as Heat Seal 3. A crack

      pipe was found elsewhere in the living room. Inside the toilet in the bathroom,

      the officers found two plastic baggies with cocaine and a digital scale. These

      items were heat sealed and labeled as Heat Seal 5. Inside Warren’s purse,

      which was found in the bathroom, the officers found cocaine, as well as a key

      to a hotel room registered in her name. A total amount of 59 grams of cocaine

      was recovered from the house, with 27.8 grams in powder form and the

      remainder in crack form.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016   Page 3 of 11
[6]   A total amount of $390.00 was found in the residence, as well as ammunition

      and a key to a safety deposit box. The detectives traced this key back to a safe

      located in Warren’s hotel room. When they searched the hotel room, the

      officers found cocaine, heroin, and handguns.


[7]   On July 28, 2014, the State filed an Information charging Cotton with Count I,

      dealing in cocaine, a Level 2 felony, I.C. § 35-48-4-1(a)(2); Count II, possession

      of cocaine, a Level 3 felony, I.C. § 35-48-4-6(a); Count III, possession of a

      narcotic drug, a Level 6 felony, I.C. § 35-48-4-6(a); Count IV, possession of

      methamphetamine, a Level 6 felony, I.C. § 35-48-4-6.1(a); Count V,

      maintaining a common nuisance, a Level 6 felony, I.C. § 35-48-4-13(b)(2);

      Count VI, possession of a controlled substance, a Class A misdemeanor, I.C. §

      35-48-4-7(a). On May 11, 2015, Cotton waived his right to a jury trial. On

      June 24, 2015, the trial court conducted a bench trial and found Cotton guilty of

      Counts I-III and Count V. The trial court specifically found Cotton “in

      constructive possession of the drugs in the living room[,] [b]ased on the size of

      the apartment, the fact that he lived there, that [the drugs were] in plain view on

      the table and he acknowledged that he would see it when questioned by the

      detectives.” (Tr. p. 67). Likewise, the trial court concluded that the dealing

      charge was supported by the evidence that “items were individually wrapped,

      that there were security surveillance systems, with barricaded doors and the

      money and denominations[.]” (Tr. p. 68). By agreement of the parties, a

      directed verdict was entered on Counts IV and VI.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016   Page 4 of 11
[8]    During the sentencing hearing on July 21, 2015, the trial court merged Count II

       with Count I, noting that it found Count II proven, and sentenced Cotton to

       concurrent terms of twenty years, with five years suspended on Count I, two

       years on Count III, and two years on Count V.


[9]    Cotton now appeals. Additional facts will be provided as necessary.


                                      DISCUSSION AND DECISION

                                                 I. Standard of Review


[10]   Cotton contends that the State failed to present sufficient evidence to sustain his

       conviction for possession of cocaine, possession of heroin, and dealing in

       cocaine. 1 Our standard of review for a sufficiency of the evidence case is well

       settled. In reviewing sufficiency of the evidence claims, we will not reweigh the

       evidence or assess the credibility of the witnesses. Moore v. State, 869 N.E.2d

       489, 492 (Ind. Ct. App. 2007). We will consider only the evidence most

       favorable to the judgment, together with all reasonable and logical inferences to

       be drawn therefrom. Id. The conviction will be affirmed if there is substantial

       evidence of probative value to support the conviction of the trier of fact. Id.


                                               II. Possession of Cocaine


[11]   To convict Cotton of possession of cocaine, the State was required to prove

       beyond a reasonable doubt that Cotton “without a valid prescription . . .



       1
           Cotton does not contest his conviction for maintaining a common nuisance, a Level 6 felony.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016              Page 5 of 11
       knowingly or intentionally possesse[d] cocaine[.]” I.C. § 35-48-4-6. The

       offense is a Level 3 felony if “the amount of the drug involved is at least twenty-

       eight (28) grams[.]” I.C. § 35-48-4-6(d)(1). Disputing the trial court’s finding

       that he was in constructive possession of cocaine, Cotton contends that he was

       in the kitchen where no drugs were found.


[12]   A person actually possesses contraband when he has direct physical control

       over it. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). But a conviction for a

       possessory offense does not depend on catching a defendant red-handed. Id.

       When, as here, the State cannot show actual possession, a conviction for

       possessing contraband may rest instead on proof of constructive possession. Id.

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

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

       maintain dominion and control over it. Lampkins v. State, 682 N.E.2d 1268,

       1275 (Ind. 1997), modified on reh’g, 685 N.E.2d 698 (Ind. 1997).


[13]   A trier of fact may infer that a defendant had the capability to maintain

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

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

       the item. Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). We allow this inference

       even when that possessory interest is not exclusive. Id. at 341.


[14]   A trier of fact may likewise infer that a defendant had the intent to maintain

       dominion and control over the contraband from the defendant’s possessory

       interest in the premises, even when that possessory interest is not exclusive.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016   Page 6 of 11
       Gray, 957 N.E.2d at 174. When the possessory interest is not exclusive,

       however, the State must support this second inference with additional

       circumstances pointing to the defendant’s knowledge of the presence and the

       nature of the item. Id. at 174-175. We have previously identified some possible

       examples, including (1) a defendant’s incriminating statements; (2) a defendant

       attempting to leave or make furtive gestures; (3) the location of contraband like

       drugs in settings suggesting manufacturing; (4) the item’s proximity to the

       defendant; (5) the location of the contraband within the defendant’s plain view;

       and (6) the mingling of contraband with other items the defendant owns. Id. at

       175.


[15]   Here, Cotton admitted to residing in the house and there was no indication

       anyone else was living in the residence. Documents addressed to Cotton were

       found in the kitchen and “male clothing” was strewn throughout the apartment.

       (Tr. p. 15). The officers did not recall finding any female clothing.

       Immediately next to the kitchen was the living room where the officers found

       substantial amounts of cocaine on the coffee table. Much of the cocaine was in

       clear plastic baggies, and was intermingled with currency. Based on the record,

       we conclude that Cotton had the capability and intent to maintain dominion

       and control over the cocaine. Therefore, we affirm Cotton’s conviction for

       possession of cocaine.


                                            II. Possession of Heroin




       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016   Page 7 of 11
[16]   Similar to his conviction for possession of cocaine, Cotton challenges the

       sufficiency of the evidence for his possession of heroin charge. See I.C. § 35-36-

       4-6. Specifically, Cotton asserts that “there was no evidence of the recovery of

       any heroin in the detective’s description of the search of the residence.”

       (Appellant’s Br. p. 10).


[17]   During the bench trial and in an effort to clarify “how much was found in the

       living room and how much was found in the bathroom,” the following

       exchange occurred between Detective Collins and the trial court:

               [Detective Collins]: Heroin, 1.56 grams, living room. . . .
               Heroin, 2.2 grams, living room. Heroin, .84 grams, living room.
               And I think that is all.


               [Trial court]: Okay. So a little bit less than 5 grams of heroin in
               the living room and over 28 grams of cocaine in the living room,
               correct?


               [Detective Collins]: Correct.


       (Tr. pp. 53-54).


       Detective Collins further testified that substances found in the box on the coffee

       table in the living room were placed in Heat Seal 1. The lab results indicate that

       Heat Seal 1 contained 2.2 grams of heroin. Likewise, items collected in the

       living room and placed in Heat Seal 3, were confirmed through lab testing to

       include .84 grams of heroin. Accordingly, we conclude that heroin was

       recovered from the living room during the search. For the same reasons


       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016   Page 8 of 11
       discussed in the previous section, we find that Cotton had the capability and

       intent to maintain dominion and control over the heroin. Therefore, we affirm

       his conviction.


                                            III. Dealing in Cocaine


[18]   Lastly, Cotton disputes the trial court’s finding that the State presented

       sufficient evidence beyond a reasonable doubt establishing that Cotton

       “possessed [cocaine], with intent to deliver it.” I.C. § 35-48-4-1(a)(2). In

       essence, Cotton claims that the State merely established the presence of cocaine

       in the residence, not the delivering element of the charge.


[19]   Cotton is correct that the State did not offer direct evidence that he had sold or

       was planning to sell the cocaine, but circumstantial evidence of possession with

       intent to deliver is sufficient to support the conviction. See Stokes v. State, 801

       N.E.2d 1263, 1271-72 (Ind. Ct. App. 2004), trans. denied. To that end,

       “circumstantial evidence of a defendant’s intent to deliver” can be derived from

       the “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.” Ladd v. State, 710 N.E.2d 188, 191 (Ind. Ct. App. 1999). An

       amount of contraband that exceeds the amount reasonably possessed for

       personal use can alone be sufficient to uphold a conviction of dealing. Kail v.

       State, 528 N.E.2d 799, 809 (Ind. Ct. App. 1988), trans. denied.


[20]   During the bench trial, Detective Collins testified as to the difficulty in entering

       the front door of Cotton’s residence. He stated that the fortified front door had

       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016   Page 9 of 11
       “brackets for a barricade.” (Tr. p. 39). There was a surveillance camera in the

       bird house directly outside of the front door. Detective Collins explained that

       “[g]enerally dealers use those surveillance systems for both protection against

       individuals trying to rob them, to see if police are approaching the home, [and]

       also to see who is approaching the home to buy.” (Tr. p. 40). With respect to

       the amount of cocaine located in the house, Detective Collins testified that in

       his training and experience, users do not typically have 27 grams of cocaine.

       He explained that a “user will generally get what they want and use it right

       away.” (Tr. p. 38). Moreover, users “don’t have the money to purchase this

       type of amount” which typically costs around fifteen hundred dollars. (Tr. p.

       38). Furthermore, detective Collins opined that “based on packages and the

       weight” of the cocaine, Cotton was dealing from the residence. The officers

       located a digital scale in the toilet, and clear plastic baggies throughout the

       residence. A portion of the cocaine found on the coffee table in the living room

       was equally distributed in twenty-six individually packaged clear plastic baggies

       containing approximately .10 to .11 grams of cocaine each, with “each

       individual package [] sold for $20.” (Tr. p. 30).


[21]   Detective Collins also testified to Cotton’s admission that he resided in the

       apartment, and Cotton’s statement that “he was hit[,]” which the officer

       understood to mean that “he was in trouble.” (Tr. p. 18). As such, Cotton’s

       attempt to shift the blame to Warren is nothing more than an invitation to

       reweigh the evidence, which we decline to do. See Moore, 869 N.E.2d at 492.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016   Page 10 of 11
       Accordingly, we conclude that this evidence is sufficient to support an inference

       that Cotton was dealing cocaine.


                                               CONCLUSION

[22]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to support Cotton’s convictions for possession of

       cocaine, possession of heroin, and dealing in cocaine.


[23]   Affirmed.


[24]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1077 | March 9, 2016   Page 11 of 11
