FOR PUBLICATION                                        FILED
                                                     Mar 29 2012, 9:24 am


                                                            CLERK
                                                          of the supreme court,
                                                          court of appeals and
                                                                 tax court




ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

STEPHEN GERALD GRAY                         GREGORY F. ZOELLER
Indianapolis, Indiana                       Attorney General of Indiana

                                            JODI KATHRYN STEIN
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

RONYAI THOMPSON,                            )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 49A05-1106-CR-323
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Steven R. Eichholtz, Judge
                         Cause No. 49G20-1003-FA-23467



                                  March 29, 2012


                            OPINION - FOR PUBLICATION


BAILEY, Judge
                                         Case Summary

          Ronyai Thompson (“Thompson”) was convicted of Dealing in Cocaine, as a Class A

felony.1 He now appeals.

          We affirm.

                                              Issue

          Thompson raises three issues for our review, which we restate as:

            I.    Whether the trial court abused its discretion when it denied his motion
                  to dismiss the charges against him under Indiana‟s statute barring
                  successive prosecutions;

           II.    Whether the trial court improperly denied his Batson challenges to the
                  State‟s peremptory striking of two African-American jurors; and

          III.    Whether there is sufficient evidence to support the conviction.

                                 Facts and Procedural History

          In the early morning hours of March 8, 2010, Thompson‟s cousin, Antwan Rush

(“Antwan”), was driving on 38th Street in Indianapolis, when Officer Travis Hunter (“Officer

Hunter”) observed that Antwan‟s vehicle had a cracked taillight. Officer Hunter initiated a

traffic stop and learned that Antwan‟s driving privileges had been suspended. Antwan was

arrested and the vehicle was towed from the scene to an impound yard.

          Also on March 8, 2010, Detective Matthew Stevenson (“Detective Stevenson”) of the

Indianapolis Metropolitan Police Department‟s Violent Crimes Unit (“VCU”) sought to

make contact with Antwan in the course of an ongoing investigation in an unrelated matter.




1
    Ind. Code § 35-48-4-1.
                                                 2
Detective Stevenson learned that Antwan was at the Marion County Jail‟s Arrest Processing

Center (“APC”), but Antwan was released from the APC before Detective Stevenson could

make contact with him. Detective Stevenson requested that other members of the VCU place

Antwan under surveillance as he walked through downtown Indianapolis. The detectives

were able to observe Rush for only a brief period before losing sight of him.

       While VCU detectives attempted on-foot surveillance of Antwan, Detective Stevenson

learned of several Indianapolis addresses connected to Antwan. Among these was a unit in a

residential duplex on North Carrollton Avenue (“4210 Carrollton”). Detective Stevenson

requested that VCU detectives place 4210 Carrollton under surveillance after the VCU team

lost sight of Antwan in downtown Indianapolis. Detectives Jean Deddish (“Detective

Deddish”), Steven Scott (“Detective Scott”), Tanya Terry (“Detective Terry”), and Henry

Gregory (“Detective Gregory”) conducted surveillance on the residence.           Detective

Stevenson remained mobile and coordinated the surveillance operations.

       During the afternoon of March 8, detectives saw an individual they would later

identify as Thompson twice drive to the duplex in a black Dodge Charger and enter 4210

Carrollton. The detectives also observed very heavy foot and vehicular traffic to and from

4210 Carrollton that was uncharacteristic of the neighborhood—by one detective‟s estimate,

nearly thirty-five persons—with each visitor remaining at the residence for only a few

minutes before leaving. Detectives recognized this conduct as characteristic of individuals

purchasing drugs from the occupants of 4210 Carrollton.

       At around 4:30 that afternoon, Detective Stevenson requested that several of the

                                            3
detectives conducting surveillance on 4210 Carrollton meet at the Indiana State Fairgrounds

to discuss a plan for making contact with Antwan and any other individuals at 4210

Carrollton. As the detectives prepared to leave the Fairgrounds, a member of the surveillance

team reported that a vehicle was leaving 4210 Carrollton.

       Detective Stevenson requested that uniformed police officers stop the car, and he and

several other detectives traveled to the scene of the traffic stop. Police arrested Antwan and

his brother Antonio Rush (“Antonio”) at this time. Each had large sums of cash on his

person.

       While the traffic stop was under way, Detectives Scott and Gregory approached the

front of 4210 Carrollton. Detective-Sergeant Kerry Buckner (“Sergeant Buckner”) and two

other detectives placed themselves at the back of the building to ensure no one left

undetected. Detective Gregory knocked on the front door in an attempt to make contact with

any individuals inside, while Detective Scott stood next to him. After receiving no reply,

Detective Gregory knocked louder. He and Detective Scott heard loud noises coming from

inside the house.

       Shortly after this, Thompson, who was still inside the residence, opened a space in the

blinds to see who was at the door. Detective Scott saw Thompson through the space in the

blinds, and observed Thompson had a surgical glove covering the hand that had opened the

blinds. After he saw Detective Scott, Thompson snapped the blinds closed. The detectives

heard further noise from inside the house, including Thompson‟s voice, but no one came to

the door.

                                              4
       While Detectives Gregory and Scott stood at the door of 4210 Carrollton, Patricia

Thompson (“Patricia”), mother of Antwan and Antonio and Thompson‟s aunt, arrived by car

at the house and explained that she had a contractual interest in the duplex. Detective

Gregory and Detective-Sergeant Garth Schwomeyer (“Sergeant Schwomeyer”), another VCU

member, spoke with Patricia and requested her consent to enter the house; Patricia refused.

       Knowing that older duplexes like the one at 4210 Carrollton often allowed attic access

to the adjacent unit in the building, Detective Gregory knocked on the door of the other unit

in the duplex, 4212 Carrollton. One of its occupants admitted him to the residence.

Detective Gregory explained that police suspected criminal activity in 4210 Carrollton, and

obtained identification information from the occupants of 4212 Carrollton.

       Among those in 4212 Carrollton was Thompson, who first appeared to Detective

Gregory only briefly by peeking his head around a corner. Thompson later came into the

living room of the home, identified himself to Detective Gregory as Sam Jones, and provided

a date of birth and social security number. After advising the occupants to remain inside for

their safety, Detective Gregory left 4212 Carrollton.

       Detective Gregory ran each of 4212 Carrollton‟s occupants names through police

computers and determined that the information Thompson had provided was false. At some

point after Detective Gregory left the house, a male occupant of the house emerged, asked to

smoke a cigarette, and returned to the interior of 4212 Carrollton after finishing the cigarette.

Soon after this, Thompson left the house carrying a child in his arms and in the company of

an adult female. Detective Gregory called Thompson over to ask him about the false

                                               5
identification information he had provided.

          After handing the child over to his female companion, Thompson provided correct

identification information. Detective Gregory checked the correct information in police

computers and determined that Thompson‟s driving privileges had been suspended. Because

detectives had seen Thompson driving the black Dodge Charger earlier that day, Detective

Terry arrested him. When asked why he was at 4212 Carrollton, Thompson stated that he

was there to speak with a female occupant of the house.

          In the interim, Detective Stevenson sought and obtained search warrants for 4210

Carrollton, another location, and vehicles associated with Antwan and Patricia. During their

search of 4210 Carrollton, police found drug-related items and weapons throughout the first

floor of the house, including 281.243 grams of powder cocaine and 90.639 grams of crack

cocaine; cooking pans with cocaine residue; numerous rubber gloves and plastic baggies,

several of which contained crack cocaine; a twenty-gauge shotgun and shotgun shells; and a

loaded .38 Special revolver. Police also found a panel in the second floor of the house

allowing access into the shared attic between 4210 Carrollton and 4212 Carrollton, which

permitted Thompson to move between the two units in the duplex while avoiding police

observation.

          On March 9, 2010, under Cause Number 49G20-1003-CM-18160 (“CM-18160”), the

State charged Thompson with Driving While Suspended, as a Class A misdemeanor2, based

upon the detectives‟ observation of his conduct on March 8.


2
    I.C. § 9-24-19-2.
                                              6
        In the instant case, on March 23, 2010, under Cause Number 49G20-1003-FA-23467

(“FA-23467”), the State charged Thompson with Conspiracy to Commit Dealing in Cocaine,

as a Class A felony3; Dealing in Cocaine, as a Class A felony; Possession of Cocaine, as a

Class C felony4; Possession of Cocaine and a Firearm, as a Class C felony5; Carrying a

Handgun without a License, as a Class C felony6; Driving while Suspended, as a Class A

misdemeanor; and Carrying a Firearm without a License, as a Class A misdemeanor. The

Driving While Suspended charge in FA-23467 was for the same offense as the charge in

CM-18160. Antwan, Antonio, and Patricia were charged with related offenses.

        On September 9, 2010, Thompson pled guilty to the single count of Driving While

Suspended in CM-18160. On January 24, 2011, Thompson filed a motion to dismiss the

charges against him in FA-23467 under Indiana‟s successive prosecution statute, Indiana

Code section 35-41-4-4. The trial court denied the motion on January 28, 2011.

        On April 18, 2011, in FA-23467, the State moved to dismiss both counts of Carrying a

Handgun without a License and the count of Driving While Suspended, which the trial court

granted that day. The trial court also conducted jury selection on April 18, 2011. During

voir dire, the State peremptorily challenged two African-American jurors from the venire.

The trial court raised sua sponte whether the State‟s peremptory challenges discriminated

against the potential jurors under Batson v. Kentucky, 476 U.S. 79 (1986). After the trial




3
  I.C. §§ 35-41-5-2 & 35-48-4-1.
4
  I.C. § 35-48-4-6.
5
  I.C. § 35-48-4-6.
6
  I.C. § 35-47-2-1
                                             7
court granted the State‟s challenges, Thompson and the other defendants objected, and the

trial court overruled the objections.

          At a pre-trial hearing on April 29, 2011, Thompson and the other defendants filed a

joint motion for mistrial based upon the alleged Batson violations, which the trial court

denied. Also during the hearing, Thompson orally renewed his motion to dismiss the charges

in FA-23467 under the successive prosecution statute. The trial court again dismissed the

charges.

          A jury trial was conducted from May 2, 2011 to May 6, 2011. After the close of the

State‟s evidence, all four defendants moved for judgment on the evidence. The trial court

granted Patricia‟s motion and dismissed all the charges against her, but denied the others‟

motions. On May 6, 2011, the jury found Thompson guilty of all the remaining charges.7

          On May 31, 2011, the trial court conducted a sentencing hearing, at the conclusion of

which it entered judgment of conviction against Thompson for only one count of Dealing in

Cocaine, as a Class A felony. The trial court then sentenced Thompson to thirty-five years

imprisonment, with ten years suspended to probation.

          This appeal followed.

                                      Discussion and Decision

                             Denial of Thompson‟s Motion to Dismiss

          Thompson contends that the trial court improperly denied his motion to dismiss, which

relied upon Indiana‟s successive prosecution statute, because he was convicted of Driving


7
    Antwan and Antonio were also found guilty of numerous charges.
                                                    8
While Suspended in a prior prosecution for the same Driving While Suspended offense that

was charged and later dismissed in this case. Because Thompson appeals the trial court‟s

denial of a motion to dismiss, we review the trial court‟s decision for an abuse of discretion.

Haywood v. State, 875 N.E.2d 770, 772 (Ind. Ct. App. 2007). An abuse of discretion occurs

when the trial court‟s decision is clearly against the logic and effect of the facts and

circumstances before it, or when the court misinterprets the law. Id.

       The successive prosecution statute provides, in relevant part:

       A prosecution is barred if all of the following exist:

              (1) There was a former prosecution of the defendant for a different
              offense or for the same offense based on different facts.

              (2) The former prosecution resulted in an acquittal or a conviction of
              the defendant or in an improper termination under section 3 of this
              chapter.

              (3) The instant prosecution is for an offense with which the defendant
              should have been charged in the former prosecution.

I.C. § 35-41-4-4(a). The State and Thompson agree that subsections 35-41-4-4(a)(1) and (2)

have been satisfied; their dispute centers on whether subsection (a)(3) has been met, that is,

whether the drug charges for which Thompson was prosecuted should have been charged in

the prior case in which Thompson was convicted for Driving While Suspended.

       The statute‟s use of the phrase, “„should have been charged‟ must be read in

conjunction with Indiana‟s joinder statute.” Williams v. State, 762 N.E.2d 1216, 1219 (Ind.

2002). The joinder statute provides:

       A defendant who has been tried for one (1) offense may thereafter move to
       dismiss an indictment or information for an offense which could have been

                                              9
       joined for trial with the prior offenses under section 9 of this chapter. The
       motion to dismiss shall be made prior to the second trial, and shall be granted
       if the prosecution is barred by reason of the former prosecution.

I.C. § 35-34-1-10(c).

       This section of the Indiana Code relies upon the prior section, which states:

       Two (2) or more offenses may be joined in the same indictment or information,
       with each offense stated in a separate count, when the offenses:

              (1) are of the same or similar character, even if not part of a single
              scheme or plan; or

              (2) are based on the same conduct or on a series of acts connected
              together or constituting parts of a single scheme or plan.

I.C. § 35-34-1-9(a). To determine whether contemporaneous crimes are part of a single

scheme or plan, we look to whether the offenses are “connected by a distinctive nature, have

a common modus operandi, and a common motive.” Allen v. State, 956 N.E.2d 195, 197

(Ind. Ct. App. 2011) (quoting Williams, 762 N.E.2d at 1220) (quotation marks omitted).

       “„Thus, our legislature has provided that, where two or more charges are based on the

same conduct or on a series of acts constituting parts of a single scheme or plan, they should

be joined for trial.‟” Williams, 762 N.E.2d at 1219 (quoting with approval State v. Wiggins,

661 N.E.2d 878, 880 (Ind. Ct. App. 1996)) (emphasis in original). The statute serves as “a

check upon the otherwise unlimited power of the State to pursue successive prosecutions.”

Wiggins, 661 N.E.2d at 881. “Where the State chooses to bring multiple prosecutions for a

series of acts constituting parts of a single criminal transaction, it does so at its own peril.”

Williams, 762 N.E.2d at 1219.



                                               10
       Thompson contends that the Driving While Suspended charge was part of a scheme or

plan—“a single criminal transaction.” Id. The State charged Thompson with the same

Driving While Suspended offense in two different charging instruments—once in CM-18160

and once in this case. Thompson was convicted in CM-18160 before trial commenced in this

case. The Driving While Suspended charge in the present case remained pending until the

State dismissed the charge on April 18, 2011, the day on which voir dire was conducted.

       Though the procedural aspects of Thompson‟s case are not unlike those of cases like

Williams and Allen, we cannot conclude that the Driving While Suspended offense is part of

a single scheme or plan along with the drug-related offenses from which he presently

appeals.

       Detectives arrested Thompson for Driving While Suspended because they recognized

him as the driver of the black Charger before they entered 4210 Carrollton and discovered the

cocaine and firearms that led to his conviction in this case. While Thompson‟s Driving

While Suspended offense is close in time and location to the offenses that led to his

convictions here, there is no evidence that his Driving While Suspended offense was part of

“a single criminal transaction.” Officers twice saw Thompson drive the black Charger to

4210 Carrollton over the course of several hours on the afternoon of March 8, 2010. Police

had placed the residence under surveillance in order to make contact with Antwan for

purposes unrelated to the narcotics charges in the present case. Upon providing accurate

identification to police after exiting 4212 Carrollton, Thompson was determined to have been

driving while his license was suspended.

                                             11
        Yet Thompson‟s driving had no apparent connection to the drug manufacturing and

sales occurring in the house; it was merely transportation to and from 4210 Carrollton. There

is no evidence that Thompson transported any supplies for the manufacturing or sale of the

drugs, and the police recovered no drugs or associated paraphernalia when they searched the

black Charger. Thompson‟s case is therefore unlike those cases in which this court and our

supreme court have concluded that the State was barred from pursuing charges that should

have been joined. Cf. Williams, 762 N.E.2d at 1217-18, 1220 (concluding sequential

prosecution was barred when the defendant was convicted of Residential Entry and

Possession of Cocaine and in a separate action with Dealing in Cocaine and Possession of

Cocaine, all stemming from a single drug transaction); Allen, 956 N.E.2d at 196, 198

(concluding sequential prosecution was barred where defendant was convicted of Visiting a

Common Nuisance and prosecuted in a separate case for Dealing in Heroin, where the

defendant was charged with selling heroin in the course of conduct that gave rise to the

Visiting a Common Nuisance offense).

        Better practice might have been for the State to join all the charges against

Thompson.8 But because there was no evidence that Thompson‟s Driving While Suspended



8
  The State argues that it lacked an opportunity to obtain confirmation that cocaine had been found in 4210
Carrollton in time to join the charges into a single case. The State relies on State v. McDonald, 954 N.E.2d
1031 (Ind. Ct. App. 2011), where nearly two years elapsed between the State‟s initial prosecution of the
defendant for a sex offense against one of his children in 2008 and a subsequent prosecution as to another child
in 2010. The two-year delay in that case was a result of the second child‟s inability to communicate verbally in
a manner sufficient to give rise to probable cause to pursue a prosecution. Here, the delay between the Driving
While Suspended charge in CM-18160 and the charges in this case was a mere two weeks. Thompson was not
convicted in CM-18160 until January 2011, nearly nine months after his arrest. Thus, we find the State‟s
argument unpersuasive.
                                                      12
offense in CM-18160 was part of a single scheme or plan with the drug offenses in this case,

we conclude that the trial court did not abuse its discretion when it denied Thompson‟s

motion to dismiss the charges against him.

                                     Batson Challenges

       Thompson also contends that the trial court erred when it overruled his objection to

the State‟s use of peremptory challenges to strike two African-American jurors from the

venire and denied his subsequent motion for a mistrial.

       The Indiana Code provides that, in prosecutions for offenses other than murder, the

State may use as many as five peremptory challenges to exclude venirepersons from the jury.

I.C. §§ 35-37-1-3(c) & 35-37-1-4. Generally, “a peremptory challenge may be [exercised]

for no cause whatsoever.” Bond v. State, 273 Ind. 233, 237, 403 N.E.2d 812, 816 (1980). In

Batson v. Kentucky, however, the United States Supreme Court qualified that principle to

preclude the use of peremptory challenges to exclude venirepersons from a jury solely on the

basis of race. 476 U.S 79 (1986), modified by Powers v. Ohio, 499 U.S. 400 (1991)

(extending Batson to cases where the defendant and excluded juror were of different races).

       In Batson, the Court “determined that the prosecutor‟s use of a peremptory challenge

to strike a potential juror solely on the basis of race violated the Equal Protection Clause of

the Fourteenth Amendment.” Jeter v. State, 888 N.E.2d 1257, 1262 (Ind. 2008). Batson set

forth a three-step test to determine whether the State has used a peremptory challenge to

strike improperly a juror from the venire solely because of that individual‟s race. First, the

party contesting the use of a peremptory challenge must make a prima facie showing of

                                              13
discrimination based upon race against the member of the venire. Batson, 476 U.S. at 96-97.

Next, the party using a peremptory challenge may “present a race-neutral explanation for

using the challenge.” Jeter, 888 N.E.2d at 1263 (citing Batson, 476 U.S. at 97). If the party

seeking to strike a member of the venire provides a race-neutral explanation, “the trial court

must then decide whether the challenger has carried its burden of proving purposeful

discrimination.” Id. (citing Batson, 476 U.S. at 98).

       Even a single instance of discrimination because of a venireperson‟s race is grounds

for reversal where a trial court improperly rejects a Batson challenge. Killebrew v. State, 925

N.E.2d 399, 401 (Ind. Ct. App. 2010), trans. denied. Because of the importance of the

demeanor of potential jurors and the prosecutor when the trial court evaluates a race-neutral

explanation for a peremptory challenge, we afford broad latitude to the trial court‟s decision

in such matters. Thus, we reverse only where the trial court‟s decision is clearly erroneous.

Id.

       Here, the trial court raised sua sponte the question of whether the Batson line of cases

rendered the State‟s peremptory challenges improper. Thompson contends that the State‟s

use of peremptory challenges to exclude two African-American members of the venire were

violations of the Fourteenth Amendment and requests that we reverse his conviction and

remand for a new trial. The State argues that Thompson waived this issue on appeal and that

the peremptory challenges were nonetheless not improperly granted.

       While we cannot agree with the State that Thompson waived this issue on appeal, we

conclude that the trial court did not err when it granted the State‟s peremptory challenges as

                                              14
to the two African-American members of the venire. This court‟s decision in Killebrew is

instructive, where we applied the Supreme Court‟s decision in Snyder v. Louisiana, 552 U.S.

472 (2008), and ordered a new trial. In Killebrew, the State used peremptory challenges to

strike all five African-American members of the venire. Killebrew, 925 N.E.2d at 400-401.

On appeal, another panel of this court compared the answers given by non-white members of

the venire who were stricken from the jury to those of white members of the venire whom the

State did not strike. Based upon these comparisons with regard to one of the venirepersons,

the Killebrew panel concluded that the trial court erroneously permitted the State to exercise

a peremptory challenge in violation of the Fourteenth Amendment, reversed Killebrew‟s

convictions, and remanded the case for a new trial. Id. at 402-403.

       The result in Killebrew depended upon changes announced by the Supreme Court‟s

opinion in Snyder. The Snyder Court looked at the prosecutor‟s use of peremptory

challenges to strike five African Americans from the venire, giving close scrutiny to the

state‟s race-neutral reasons for striking potential jurors when those explanations applied

equally—if not more urgently—to white jurors whom the state did not seek to strike from the

panel. The Court looked not only at the conduct of voir dire itself, but also at the course of

the trial as a whole when it reversed Snyder‟s conviction. Snyder, 552 U.S. at 477-86.

       Here, the trial court requested sua sponte that the State explain its peremptory

challenges as to the two African-American venirepersons. The State pointed to both

individuals‟ statements that they wanted to be presented with scientific evidence connecting

Rush to the drugs at issue in the case or other evidence of actual possession. When the trial

                                             15
court observed that other members of the venire had also expressed that wish, the deputy

prosecutor further noted that a brother of one of the two potential jurors was a police officer

with whom the deputy prosecutor had worked in the past and indicated that she had a bad

relationship with him. The deputy prosecutor was therefore concerned that the potential juror

might be biased against her. After listening to the State‟s race-neutral explanations and the

defendants‟ responses, and observing that the State‟s reasons were of special concern

because we had recently reversed the trial court‟s rejection of a Batson challenge in another

case, the trial court granted the State‟s peremptory strikes. On appeal, Thompson contends

that the State‟s race-neutral rationale was pretextual and that the trial court‟s determination to

the contrary was in error.

       With an eye toward the record as a whole, as in Killebrew and Snyder, we cannot

agree. As to the juror with whose brother the prosecutor had prior dealings, Thompson does

not point to any disparate treatment of similarly-situated non-blacks on the jury—indeed, our

review of the record reveals that several individuals whose close relatives were associated

with law enforcement were stricken from the venire. So too were other individuals who, like

the other black juror whom the State sought to strike with a peremptory challenge, expressed

difficulty with constructive possession, a concept central to the State‟s case. Moreover, the

State sought to strike these venirepersons in the first round of voir dire, and two subsequent

rounds of jury selection passed without further event. Finally, the trial court‟s expressed

sensitivity to Batson-related issues and its decision to permit the peremptory strikes after

raising those issues sua sponte further weighs against a conclusion that the trial court erred

                                               16
when it granted the State‟s peremptory challenges over Thompson‟s objection.

       In view of the entirety of the trial record and in light of the issues presented at trial, we

cannot conclude that the trial court erred when it permitted the State to use its peremptory

challenges to strike two African-American members of the venire.

                                 Sufficiency of the Evidence

       Finally, Thompson contends that there was insufficient evidence to support his

conviction, arguing specifically that there was insufficient evidence of his constructive

possession of the cocaine in 4210 Carrollton to support the conviction.

       Our standard of review when a defendant challenges the sufficiency of the evidence is

well settled. We consider only the probative evidence and reasonable inferences supporting

the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the

credibility of witnesses or reweigh evidence. Id. We will affirm the conviction unless “no

reasonable fact-finder could find the elements of the crime proven beyond a reasonable

doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is

sufficient if an inference may reasonably be drawn from it to support the verdict.” Id.

(quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).

       Thompson challenges his conviction for Dealing in Cocaine, as a Class A felony. In

order to obtain a conviction, the State was required to prove beyond a reasonable doubt that

Thompson knowingly possessed, with intent to deliver, cocaine in an amount greater than

three grams. I.C. § 35-48-4-1(a)(2) & (b)(1); App. 16-17.

       Thompson contends only that there was insufficient evidence of his constructive

                                                17
possession of the drugs in 4210 Carrollton. Constructive possession occurs when an

individual does not have an object on his person but nevertheless “„has direct physical

control over the item.‟” Massey v. State, 816 N.E.2d 979, 989 (Ind. Ct. App. 2004) (quoting

Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999)). “In order to prove constructive

possession, the State must show that the defendant has both (1) the intent to maintain

dominion and control and (2) the capability to maintain dominion and control over the

contraband.” Iddings v. State, 772 N.E.2d 1006, 1015 (Ind. Ct. App. 2002), trans. denied.

       Here, Thompson concedes that he had the capability to control the cocaine in 4210

Carrollton, but he argues that there is insufficient evidence of his intent to exercise control.

“The State must demonstrate the defendant‟s knowledge of the presence of the contraband to

prove the intent element.” Grim v. State, 797 N.E.2d 825, 832 (Ind. Ct. App. 2003). Where

the defendant has possession of the premises where contraband is discovered, but that

possession is not exclusive, the defendant‟s knowledge may be inferred from additional

circumstances, and must be “able to reduce the controlled substance to his personal

possession.” Id. “In a manufacturing type [sic] setting, a defendant‟s presence does not

compel a conviction but it does present a prima facie case of possession.” Moore v. State,

613 N.E.2d 849, 851 (Ind. Ct. App. 1993). Additional circumstances that Indiana courts have

found to support an inference that a defendant had “„knowledge of the nature of the

controlled substances and their presence‟” include:

       (1) incriminating statements made by the defendant, (2) attempted flight or
       furtive gestures, (3) location of substances like drugs in settings that suggest
       manufacturing, (4) proximity of the contraband to the defendant, (5) location

                                              18
       of the contraband within the defendant‟s plain view, and (6) the mingling of
       the contraband with other items owned by the defendant.

Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004) (quoting Lampkins v. State, 682 N.E.2d 1268,

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

       Thompson concedes that the evidence establishes that he was present in 4210

Carrollton. As to his knowledge of the presence of the drugs and his ability to reduce those

drugs to his possession, testimony and photographs established that the first floor of the

house was relatively small, with three rooms arranged in a straight line from front to back.

The middle room had a couch, chair, and television. In the rear room was a kitchen with a

serving window facing the middle room. The middle room on the first floor of the small

residence had a shotgun leaning against the wall near the kitchen, and a .38 revolver tucked

into the couch with the grip of the pistol protruding from underneath a cushion. In the

kitchen, cooking implements with drug residue on them, powder and crack cocaine in various

amounts, and baking soda, which cocaine dealers often use to dilute pure or nearly pure

cocaine for manufacture and sale, were all in plain view. So too were used surgical gloves, a

Walgreens bag, and a box of Walgreens brand surgical gloves. Antonio had purchased

gloves from a Walgreens store that day.

       Detectives testified that they observed Thompson drive to and enter 4210 Carrollton

on two separate occasions that day. Thompson was alone at the residence when Antwan and

Antonio left and were apprehended by police at a traffic stop. Drugs were processed and

packaged for consumption in the kitchen; both powder and crack cocaine were in plain view


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in the kitchen. Cf. Gee, 810 N.E.2d at 341 (listing among factors establishing intent to

exercise control over contraband the item‟s presence in plain view).

       Detective Scott testified that he observed an individual whom he later recognized as

Thompson look through the blinds at him, and that Thompson opened the blinds with a hand

that was wearing a surgical glove like those discovered in the kitchen of the residence.

Detectives Deddish and Terry testified that they observed upwards of thirty individuals

briefly visit 4210 Carrollton, a pattern of conduct that officers testified was indicative of a

location where occupants were selling drugs. This evidence permits an inference that

Thompson intended to exercise control of the cocaine in 4210 Carrollton.

       Thompson acknowledges that he was present in both 4210 Carrollton and 4212

Carrollton, and also acknowledges that he used the attic to travel between the two. Detective

Gregory testified that his first direct contact with Thompson came when Thompson peeked

around a corner soon after Detective Gregory entered 4212 Carrollton. When Detective

Gregory spoke with Thompson in 4212 Carrollton, Thompson provided false identification

information. Unlike the first individual who stepped outside of 4212 Carrollton to smoke a

cigarette, when Thompson attempted to leave the house he had no apparent plans to remain

outside temporarily, despite Detective Gregory‟s request that the house‟s occupants remain

inside for their safety. Taken together, this evidence permits an inference that Thompson

used the connection between 4210 Carrollton and 4212 Carrollton to attempt to avoid

police—that is, Thompson attempted to evade or flee the detectives multiple times on March

8, 2010. Cf. Gee, 810 N.E.2d at 341 (including as evidence of intent to exercise control over

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contraband a defendant‟s attempted flight from law enforcement).

       In light of this evidence, we cannot conclude that there was insufficient evidence from

which the jury could infer that Thompson intended to exercise control over the cocaine in

4210 Carrollton.

                                        Conclusion

       The trial court did not abuse its discretion when it denied Thompson‟s motion to

dismiss the charges against him. There was no error in the trial court‟s denial of Thompson‟s

motion for mistrial after it denied Thompson‟s Batson challenges. Finally, there was

sufficient evidence of Thompson‟s intent to exercise control over the cocaine in 4210

Carrollton to sustain his conviction for Dealing in Cocaine.

       Affirmed.

BAKER, J., and DARDEN, J., concur.




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