MEMORANDUM DECISION                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Nov 14 2017, 9:56 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
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Brooklyn, Indiana                                       Attorney General of Indiana

                                                        Angela N. Sanchez
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Tyler Bishop Smiley,                                    November 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        70A01-1706-CR-1394
        v.                                              Appeal from the Rush Superior
                                                        Court
State of Indiana,                                       The Honorable Brian D. Hill, Jr.,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        70D01-1605-F5-386



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017           Page 1 of 8
[1]   Following a jury trial, Tyler Smiley was convicted of possession of

      methamphetamine as a Level 6 felony. On appeal, Smiley argues that the State

      presented insufficient evidence to support his conviction.


[2]   We affirm.


                                          Facts & Procedural History


[3]   The facts most favorable to the conviction follow. On September 25, 2015,

      undercover narcotics officer Alan Wombolt of the Rushville Police Department

      received information from a confidential informant (CI) that Dustin Messer was

      looking to sell methamphetamine.1 Officer Wombolt and the CI set up a

      controlled buy to purchase one gram of methamphetamine for $120 from

      Messer. The CI made arrangements for Officer Wombolt to meet Messer at a

      local Village Pantry. Prior to the controlled buy, Officer Wombolt made copies

      of the buy money and put on a listening device. Detective Alex Shaver also

      participated in the controlled buy by conducting surveillance from a vehicle

      positioned so that he could watch the transaction.


[4]   Around 3:45 p.m., Officer Wombolt rode a bicycle to the Village Pantry, and

      when he arrived, he saw Messer standing outside. Officer Wombolt

      approached Messer and gave him $120. After Messer took the money, he told

      Officer Wombolt that he had to go to the silver car behind him “to get the meth




      1
          Officer Wombolt had previously dealt with Messer during a controlled buy of hydrocodone pills.


      Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017             Page 2 of 8
      from his dude.” Transcript at 19. According to Messer, he did not have

      methamphetamine to sell, so he called Smiley, who agreed to meet him at the

      Village Pantry to give him methamphetamine.


[5]   As Messer walked over to the silver vehicle, Officer Wombolt noted that there

      were three male individuals in the car, one of whom he recognized as Smiley,

      who was sitting in the front passenger seat. Detective Shaver also recognized

      Smiley as the front-seat passenger. Messer knew all three occupants of the car,

      although he testified that he expected to see only Smiley.


[6]   Messer entered the vehicle from the rear passenger side. Messer testified that

      after he got into the car, Smiley, who was “kind of tripped out”, reached into

      the back of the car and tried to grab his chest to check for a wire. Transcript Vol.

      II at 61. Messer also testified that Smiley questioned him as to whether he had

      dealt with Officer Wombolt before. After Messer explained that he had prior

      involvement with Officer Wombolt, Messer gave the money he received from

      Officer Wombolt to the individual sitting in the back seat of the car. That

      individual then gave the methamphetamine to Messer.


[7]   While Messer was in the car, Officer Wombolt observed the occupants of the

      vehicle turn to the center of the vehicle and engage in a conversation. A minute

      or so later, Messer exited the car, walked over to Officer Wombolt, and handed

      him a small, clear baggie that contained a “crystal-like rock substance” that was

      later determined to be methamphetamine. Transcript Vol. II at 21.




      Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017   Page 3 of 8
[8]    On May 25, 2016, the State charged Smiley with dealing in methamphetamine

       as a Level 5 felony and possession of methamphetamine as a Level 6 felony. A

       jury trial was held on May 9, 2017, at the conclusion of which the jury found

       Smiley not guilty of dealing in methamphetamine but guilty of possession of

       methamphetamine. Smiley was sentenced to eighteen months, with one year to

       be served on home detention and six months of probation. Additional facts will

       be provided as necessary.


                                           Discussion & Decision


[9]    Smiley argues that the State presented insufficient evidence to support his

       possession of methamphetamine conviction. In reviewing a challenge to the

       sufficiency of the evidence, we neither reweigh the evidence nor judge the

       credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App.

       2009). Instead, we consider only the evidence supporting the conviction and

       the reasonable inferences flowing therefrom. Id. If there is substantial evidence

       of probative value from which a reasonable trier of fact could have drawn the

       conclusion that the defendant was guilty of the crime charged beyond a

       reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891

       N.E.2d 1131, 1137 (Ind. Ct. App. 2008).


[10]   It is not necessary, however, that the evidence overcome every reasonable

       hypothesis of innocence; rather, the evidence is sufficient if an inference may

       reasonably be drawn from it to support the conviction. Drane v. State, 867

       N.E.2d 144, 147 (Ind. 2007). “A verdict may be sustained based on


       Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017   Page 4 of 8
       circumstantial evidence alone if that circumstantial evidence supports a

       reasonable inference of guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).

       Although presence at a crime scene alone is insufficient to sustain a conviction,

       presence combined with other facts and circumstances, including the

       defendant’s course of conduct before, during, and after the offense, may raise a

       reasonable inference of guilt. Id.


[11]   Ind. Code § 35-48-4-6.1 provides that “[a] person who, without a valid

       prescription or order of a practitioner acting in the course of the practitioner’s

       professional practice, knowingly or intentionally possesses methamphetamine

       (pure or adulterated) commits possession of methamphetamine.” To prove

       these elements, the State is required to show that the defendant had either

       actual or constructive possession of the methamphetamine. On appeal, Smiley

       argues that the State failed to establish his constructive possession of the

       methamphetamine. The State argues that Smiley’s argument is misplaced

       because it “ignore[s] Smiley’s liability based on his role as an accomplice.”

       Appellee’s Brief at 10.


[12]   Instead of trying to prove that Smiley constructively possessed

       methamphetamine, the State presented evidence to show that Smiley was guilty

       of the charged conduct based on accomplice liability. Indeed, upon the State’s

       request, the jury was instructed on accomplice liability. Under accomplice

       liability, an individual is guilty of an offense if he “knowingly or intentionally

       aids, induces, or causes another person to commit an offense.” Ind. Code § 35-

       41-2-4. Under this statute, an individual who aids another person in

       Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017   Page 5 of 8
       committing a crime is as guilty as the actual perpetrator. Specht v. State, 838

       N.E.2d 1081, 1093 (Ind. Ct. App. 2005), trans. denied. The statute does not set

       forth a separate crime, but merely provides a separate basis of liability for the

       crime that is charged. Id. at 1092. Thus, a person can be charged as a principal

       and convicted as an accomplice. Id.


[13]   Furthermore, a person can be convicted as an accomplice even if he did not

       participate in each and every element of the crime. Id. at 1093. Our Supreme

       Court has identified four factors that can be considered by the fact-finder in

       determining whether a defendant aided another in the commission of a crime:

       (1) presence at the scene of the crime; (2) companionship with another engaged

       in a crime; (3) failure to oppose the commission of the crime; and (4) the course

       of conduct before, during, and after the occurrence of the crime. Wieland v.

       State, 736 N.E.2d 1198, 1202 (Ind. 2000).


[14]   It is undisputed that Smiley was at the scene of the controlled buy. Officer

       Wombolt, Detective Shaver, and Messer all identified Smiley as the individual

       in the front passenger seat of the car that Messer entered to obtain the

       methamphetamine. The record also reveals that Messer and Smiley had known

       each other for years, and when Messer needed to obtain methamphetamine, he

       contacted Smiley and they agreed to meet at the Village Pantry so that Messer

       could obtain the methamphetamine to sell to Officer Wombolt. Smiley’s

       conduct of checking Messer for a wire and questioning Messer about previous

       interactions with Officer Wombolt before Messer handed over the money and

       obtained the methamphetamine from the backseat passenger lead to a

       Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017   Page 6 of 8
       reasonable inference that Smiley was aware of what was taking place and took

       measures to keep from being caught. Thereafter, Smiley did nothing to oppose

       the exchange of money and methamphetamine between Messer and the

       backseat passenger.


[15]   Even though Smiley did not participate in the exchange, Messer’s actual

       possession of methamphetamine would not have occurred but for Smiley’s

       involvement. As noted above, Messer did not have methamphetamine to sell to

       Officer Wombolt, so he contacted Smiley to obtain methamphetamine. Smiley

       showed up at the Village Pantry with two other individuals that Messer did not

       anticipate being with Smiley and one of those individuals gave Messer

       methamphetamine. This evidence and the reasonable inferences that can be

       drawn therefrom sufficiently prove that Smiley knowingly or intentionally

       aided, induced, or caused Messer to possess methamphetamine. 2 Cf. Schaaf v.

       State, 54 N.E.3d 1041, 1043-44 (Ind. Ct. App. 2016) (affirming a dealing

       conviction on the basis of accomplice liability where defendant, who did not

       participate in the transaction, was present at the scene, suggested the meeting




       2
         Contrary to Smiley’s argument in his reply brief, the jury’s not-guilty verdict on the dealing charge did not
       preclude his conviction as an accomplice on the possession charge. Although the verdicts may seem
       inconsistent, such claims are not subject to appellate review. See McWhorter v. State, 993 N.E.2d 1141, 1146
       (Ind. 2013). Instead, we tolerate inconsistent verdicts, acknowledging that they conceivably could be “‘due
       to a compromise among disagreeing jurors, or to expeditiously conclude a lengthy deliberation, or to avoid
       an all-or-nothing verdict, or for other reasons.’” Id. (quoting Beattie v. State, 924 N.E.2d 643, 649 (Ind.
       2010)). Accordingly, the fact that the jury acquitted Smiley of the dealing charge is immaterial to the
       question of whether there was sufficient evidence to find him guilty of possession of methamphetamine on
       the basis of accomplice liability.

       Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017             Page 7 of 8
       place for the drug transaction, and sat calmly as the exchange occurred in his

       truck).


[16]   Judgment affirmed.


       Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017   Page 8 of 8
