Court of Appeals of Indiana | Memorandum Decision 71A04

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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

. A TTORNEY FOR A PPELLANT Ernest P. Galos Public Defender South Bend, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General Laura R. Anderson Deputy Attorney General Indianapolis, Indiana


### I N T H E 

# COURT OF APPEALS OF INDIA NA
Lewis Bradley, Jr. , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff June 26, 2017 Court of Appeals Ca se No. 71A04

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- 2658 Appeal from the St. Joseph Superior Court The Honorable Jane Woodward Miller, Judge Trial Co urt Cause No. 71D01

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Crone , Judge .Court of Appeals of Indiana | Memorandum Decision 71A04

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### Case Summary
[1] Lewis Bradley , Jr., appeals his conviction s for level 2 felony dealing in cocaine and level 5 fe lony possession of cocaine , following a bench trial. Bradley r aises two issues for our review: (1) whether the State presented su fficient evidence to demonstrate that he possessed cocaine ; and (2) whether his convictions for both dealing in cocaine and possession of cocaine are barred by double jeopardy. We find that the State presented sufficient evidence to support Bradley’s convi ctions, and his convictions for both dealing in cocaine and possession of cocaine are barred by double jeopardy. Therefor e, we aff irm his conviction for dealing in cocaine and remand with instructions to vacate judgment of conviction and sentence on his co nviction for possession of cocaine.



### Facts and Procedural History
[2] On the afternoon of August 21, 2015 , Nicholas Covie was waiting in the passenger seat of his partner’s vehicle while his partner, an in

- home hospice nurse, was completing a hospice care appo intment at a patient’s h ouse. While he was waiting, Covie noticed that there was a man cleaning out a car that was parked on the curb directly behi nd him. Shortly thereafter, Covie observed a red car pull in and park behind the vehicle being cleaned. The d river of the red car, later ide ntified as Bradley, exited the vehicle and walked up to the man cleaning and engaged him in conversation. The two men approach ed Covie, and Bradley knocked loudly on hi s window. Bradley asked why Covie was parked on the stree t and said, “ H ey man I got that powder. Would you like some of that powder ?” Tr. Vol. 2 at 21

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. Covie believed that Bradley was attempting to sel lCourt of Appeals of Indiana | Memorandum Decision 71A04

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him drugs, declined the offer, and called his friend to hurry back to the car. Covie observed Bradley and the other man walk int o a nearby home, and he decided to call the police.

[3] South Bend Police O fficer Joshua Morgan responded to the s cene in his police vehicle. Covie explained to Officer Morgan that Bradley had made a comment about selling him “powder.” Du ring this conversation, Bradley returned to the red car. Covie pointed Bradley out to Officer Morgan and said that Bradley was the person who had tried to sell him drugs.

[4] Bradley entered the red car and pulled away from the curb. Officer Morgan activated h is lights to initiate a traffic stop, and Bradley quickly pulled over around the corner. Bradley then immediately exited his vehicle without being told an d began to walk away from the traffic stop . Officer Morgan hand cuffed and detained Bradley as he tried to assess the situation. Bradley claimed that he was just moving the v ehicle and that it was not his. Officer Morgan d etermined that the last registered owner of the vehicle was a Charles Bradley.

[5] Officer Morgan detected an odor of marijuana coming from the ve hicle. He searched the vehicle and found a bag of crack cocaine weighing 5.68 grams in the center console. Bradley was arrested, and when officers moved him to a different police vehicle for transport, he attempted to pull away and used his legs to p revent officers from putting h im in the police vehicle. A t the jail, Bradley was searched and a bag of marijuana weighing less th an a gram was found in his left pant s pocket.Court of Appeals of Indiana | Memorandum Decision 71A04

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[6] T he State charged Bradley with level 5 felony possession of cocaine between five and ten grams, class A misdemeanor resisting law enforcement, class B misdemeanor possession of marijuana , and class C misdemeanor operating a motor vehicle without ever receiving a license. T he State later added a count of level 5 felony dealing in cocai ne and a count of level 2 felony dealing in cocaine between five and ten grams within 500 feet of school property. After a bench trial, the trial court found Br adley guilty of all six charges and entered judg ment of conviction on all but the level 5 felony dealing in cocaine guilty verd ict, which the court merged with the level 2 felony dealing in cocaine guilty verdict.

[7] T he trial court imposed concurrent sentences of ten years with four years suspended on the dealing in cocaine conviction, one year on th e possession of cocaine and resisting law enforcement convictions, 180 days on the possession of marijuana conviction, and sixty days on the operating a vehicle without ever receiving a license conviction. Bradley appeals only his convictions for level 2 f elony dealing in cocaine and level 5 felony possession of cocaine

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### Discussion and Decision Section 1

– Sufficient evidence supports Bradley’s convictions . [8] Bradley contends that the State failed to introduce sufficient evidence to sustain his convictions. We employ the following standard of review: When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact

- finder’ s role, n ot that of appellate courts, to assessCourt of Appeals of Indiana | Memorandum Decision 71A04

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witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the [verdict]. Appellate courts affirm the conviction unless no reasonable fact

- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hyp othesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Harrison v. State , 901 N.E.2d 635, 639 (Ind. Ct. App. 2009) ( quoting Drane v. State , 867 N.E.2d 144, 146 (Ind. 20 07)) (alteration in Ha rrison ) , trans. denied

.
[9] To convict Bradley of both charges, the State was required to prove beyond a reasonable doubt that Bradley knowingly possess ed cocaine. See Ind. Code § 35

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- 1 (dealing); Ind. Code § 35

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a sserts that the State’s evidence was insufficient to show that he knowingly possessed the cocaine . The State contends that the evidence sufficiently shows that Bradley had actual possession of the cocaine, and in the alternative, that it presented sufficie nt evidence of Bradley’s constructive possession of the cocaine. Actual possession occurs when a person has direct physical control over the contraband

. Gray v. State , 957 N.E.2d 171, 174 (Ind. 2011). Here, the record shows that officers did not find t he c ocaine on Bradley’s person or see him hold or discard the cocaine from the vehicle

. Therefore, Bradley’s conviction s cannot be sustained under a theory of actual possession.Court of Appeals of Indiana | Memorandum Decision 71A04

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[10] Where the State does not show actual possession, a conviction for possessing cont raband may rest instead on proof of constructive possession. Id. at 174 . 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 contro l over it. Id. 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. Id

. We allow this inference even when the possessory interest is not exclusive. Id

. Likewise, a trier of fact may infer that a defendant had the intent to maintain dominion and control over contraband from a defendant’s possessory interest in the premises, even when t hat possessory interest is not exclusive

. Id. When that possessory interest is not exclusive, t he State must support this second inference with additional circumstances indicating the defendant’s knowledge of the presence and nature of the item. Id. at 174

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. Among the recognized “ additional circums tances ” are: (1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the contraband; (5) contraband is in pla in view; and (6) location of the contraband is in close proximity t o items owned by the defendant.
Holmes v. State , 785 N.E.2d 658, 661 (Ind. Ct. App. 2003 ). The list of enumerated circumstances is not exhaustive as, ultimately, our questi on is whether a reasonable fact finder could conclude from the evidence that theCourt of Appeals of Indiana | Memorandum Decision 71A04

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defendant knew of the nature and presence of the contraband. Johnson v. State , 59 N.E.3d 1071, 1075 (Ind. Ct. App. 2016).

[11] Bradley argues that he did not constructively possess the cocaine beca use he did not have exclusive possession of the vehicle or the items inside it, noting that the vehicle was registered to a Charles Bradley, not to Lewis Bradley. Bradley also emphasiz es that he only briefly operated the vehicle that he claimed did not bel ong to him. However, Bradley was the only person in the vehicle at the time the cocaine was discovered and therefore he had exclusive possession of the vehicle, regardless of whether the vehicle was registered to him or to another person. State v. Emry , 75 3 N.E.2d 19, 22 (Ind. Ct. App. 2001).

[12] Furthermore, additional circumstances were present t hat permitted a reasonable fact finder to conclude that Bradley had knowledge of the nature and presence of the cocaine. The evidence most favorable to the conviction s shows that Covie witnessed Bradley arrive in a red vehicle alone. Bradley then approached Covie and said, “Hey man I got that powder. Would you like some of that powder?” Tr. Vol. 2 at 21

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. Covie believed that Bradley was offering to sell him drugs, and called the police. Officer Morgan arrived and spoke with Covie, and the two of them observed Bradley re

- ent er the same red vehicle . When Officer Morgan activated his lights to initiate the traffic stop, Bradley pulled over to the curb . However, Bradley im mediately exited the vehicle without being told and began to walk away. Bradley further attempted to distance himself from the vehicl e when he was detained and hand cuffed by Officer Morgan and prior to any investigation into the vehicle, Bradley claimed th at he was just moving theCourt of Appeals of Indiana | Memorandum Decision 71A04

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vehicle and that it was not his. A search of the vehicle revealed a bag of crack cocaine weighing 5.68 grams in the center console, which was in close proximity to the driver’s seat where Bradley was operating the vehicle. Bradley was the only person seen in the vehicle from the time that he stated that he had cocaine and offered to sell it to Covie until the vehicle was stopped and searched.

[13] Based on that evidence, a reasonable inference could be drawn that Bradley knew of the na ture and presence of the cocaine in the center console. Bradley’s arguments to the contrary are merely requests to reweigh the evidence and reassess witness credibility, which we may not do. We therefore conclude that the State presen ted sufficient evidenc e to demonstrate that Bradley knowingly possessed the cocaine. 

### Section 2

– Bradley’s conviction and sentence for possession

are barred by d ou

ble j eopardy . [14] Bradley also contends that his convictions for both level 2 dealing in cocaine and level 5 posses sion of cocaine are barred by double jeopardy. The State agrees that Bradley may not be convicted of both the greater offense of dealing in cocaine and the lesser

- included offense of posse ssion of cocaine. Appellee’s Br . at 17.

[15] “ ‘Where the conviction of a greater crime cannot be had without conviction of the lesser crime, the double jeopardy clause bars separate conviction and sentencing on the lesser crime when sentencing is imposed on the great er one.’ ”Court of Appeals of Indiana | Memorandum Decision 71A04

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Harrison , 901 N.E.2d at 643

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). Our supreme court has concluded that where the same cocaine supports both possession of cocaine purs uant to Indiana Code Section 35

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- 1, possession of cocaine is a lesser included offense of dealing in cocaine. Hardister v. State , 849 N.E.2d 563, 575 (Ind. 2006)

. Here, the same cocaine was used to support Bradley’s dealing and possession convictions. The only cocaine produced as eviden ce was the single bag of cocaine found b y Officer Morgan in the center console of the vehicle that Bradley was operating. No other cocaine was found on Bradley’s person or in the vehicle. The State concedes that Bradley was in possession of a single bag of cocaine, and that possession was the basis for both the possession of cocaine conviction and the dealing in
co caine conviction. Appellee’s Br . at 17

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[16] Where a defendant is found guilty of both the greater offense and the lesser

included offense, the pro per procedure is to vacate the conviction of the lesser

included offense. Taflinger v. State , 698 N.E.2d 325, 327 (Ind. Ct. App. 1998). Accordingly, we affirm Bradley’s conviction for dealing in cocaine and remand with instructions to vacate judgment of co nviction and sentence on Bradley’s conviction for possession of cocaine.

[17] Affirmed in part and remanded in part.
Baker, J., and Barnes, J., concur.