MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                           Dec 20 2016, 6:32 am

regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                   Gregory F. Zoeller
Appellate Public Defender                               Attorney General of Indiana
Crown Point, Indiana
                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Anthony Arnell Best,                                    December 20, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A03-1602-CR-447
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        45G01-1503-F4-8



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-447 | December 20, 2016   Page 1 of 6
[1]   Anthony Arnell Best appeals his conviction of Level 4 felony dealing in

      cocaine. 1 Best argues there was insufficient evidence to prove his intent to deal

      beyond a reasonable doubt. We affirm.



                              Facts and Procedural History
[2]   On March 5, 2015, Lieutenant Ron Pineda of the Gary Police Department

      received a dispatch of a residential break-in in progress. As Lieutenant Pineda

      neared the location of the reported break-in, he noticed a man, later identified

      as Best, walking down the street. Upon arrival at the residence, Lieutenant

      Pineda and another responding officer, Corporal Javier Garza, gathered

      information from the victim. The man Lieutenant Pineda had seen walking

      down the street matched the description of the perpetrator, so Lieutenant

      Pineda and Corporal Garza decided to look for him.


[3]   Within two and a half minutes, Lieutenant Pineda found Best. Lieutenant

      Pineda asked Best his name, and Best gave a fake name, “Robert Best.” (Tr. at

      45.) Shortly thereafter, Corporal Garza arrived where Lieutenant Pineda had

      found Best. Corporal Garza knew Best from prior contact and he asked Best

      for his name. Best again provided the fake name “Robert Best.” (Id. at 60.)

      Corporal Garza questioned Best about whether his name was not actually




      1
        Ind. Code § 35-48-4-1(a)(2) (2014) (defining possession with intent to deliver as a Level 5 felony); Ind. Code
      § 35-48-4-1(c)(1) (2014) (elevating crime to a Level 4 felony if the amount of drug possessed is between one
      and five grams).

      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-447 | December 20, 2016              Page 2 of 6
      “Anthony,” (id.), and Best then admitted that it was. Corporal Garza knew

      Best had an active warrant, and he confirmed that fact with the Gary Police

      Department.


[4]   Corporal Garza arrested Best and patted him down to check for weapons before

      placing him in the police car. While at booking, Corporal Garza asked Best to

      empty his pockets. Best produced $259 and several other miscellaneous items.

      Corporal Garza then thoroughly searched Best and found drugs in the small

      pocket of Best’s jeans. Specifically, he found a clear plastic bag tied in a knot

      with nineteen smaller bags in it. The nineteen small bags were individually

      knotted closed, and each contained an “off white rock-like substance.” (Id. at

      65). The substance tested positive for cocaine. The cocaine weighed a total of

      4.36 grams. The street value of the drugs was between $190 and $380.


[5]   The State charged Best with Level 4 felony dealing in cocaine. A jury found

      Best guilty as charged. The trial court imposed a ten year executed sentence.



                                Discussion and Decision
[6]   When dealing with an insufficient evidence allegation, “we neither reweigh the

      evidence nor judge the credibility of witnesses.” Davis v. State, 813 N.E.2d

      1176, 1178 (Ind. 2004). “[A]ppellate courts must consider only the probative

      evidence and reasonable inferences supporting the verdict.” McHenry v. State,

      820 N.E.2d 124, 126 (Ind. 2005). A reviewing court will reverse a conviction if

      “no reasonable fact-finder could find the elements of the crime proven beyond a


      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-447 | December 20, 2016   Page 3 of 6
      reasonable doubt.” Drane v. State, 867 N.E.2d 144, 146-147 (Ind. 2007)

      (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).


[7]   The dealing in cocaine charge alleged Best “did possess with the intent to

      deliver cocaine.” (App. Vol. II at 8.) “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). In determining whether intent exists, a fact-

      finder “must resort to reasonable inferences based upon examination of the

      surrounding circumstances.” Mitchell v. State, 557 N.E.2d 660, 664 (Ind. 1990).

      However, our legislature has provided that a person who possesses less than 28

      grams of a drug may be convicted for possession with intent to deliver “only if

      there is evidence in addition to the weight of the drug that the person intended

      to manufacture, finance the manufacture of, deliver, or finance the delivery of

      the drug.” Ind. Code § 35-48-4-1(b) (2014).


[8]   Best alleges the State relied only on evidence of the weight of the cocaine he

      possessed to convict him of intent to deliver cocaine, and he analogizes his case

      to Johnson v. State, 594 N.E.2d 817 (Ind. Ct. App. 1992). In Johnson, the State

      relied upon the amount of cocaine found in Johnson’s coat, without other

      supporting evidence, to convict Johnson. Id. at 818-820. On appeal, we

      reversed Johnson’s conviction because there was insufficient evidence he

      intended to deliver to someone else, rather than use himself, the 1.76 grams of

      cocaine he possessed. Id. at 819-820. Notably, the testimony at Johnson’s trial

      included an officer conceding Johnson possessed less than some cocaine users



      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-447 | December 20, 2016   Page 4 of 6
       consume in a day and multiple witnesses confirmed Johnson’s “frequent drug

       use.” Id. at 819.


[9]    The facts and circumstances of Best’s conviction are distinguishable from

       Johnson. Best possessed not five, but nineteen individual packages of cocaine,

       weighing 4.36 grams in total, which is nearly two and a half times what

       Johnson possessed. Best had the nineteen individual bags in another clear bag,

       which a police officer testified would be unusual for a person who possessed

       cocaine for person use. When police encountered Best, he was not at a table

       preparing to ingest cocaine, as was Johnson. There was no testimony Best

       regularly consumed the crack cocaine he possessed; nor did he possess any

       paraphernalia one might use to consume crack cocaine. Finally, while Johnson

       had no cash on him, Best possessed $259 in cash when arrested. The facts here

       are distinguishable from Johnson and provide the additional circumstances

       necessary to infer intent to deliver under Ind. Code § 35-48-4-1(b) (2014). See

       Davis v. State, 863 N.E.2d 1218, 1221-22 (Ind. Ct. App. 2007) (distinguishing

       Johnson because Davis was not a drug user, Davis had a clear knotted baggie

       that contained twelve smaller baggies of rock-like cocaine, and Davis appeared

       to be one of three individuals working together at a curbside drug business),

       trans. denied.



                                               Conclusion
[10]   The State presented sufficient evidence Best intended to deliver cocaine.

       Accordingly, we affirm.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-447 | December 20, 2016   Page 5 of 6
[11]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-447 | December 20, 2016   Page 6 of 6
