Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017 Page 1 of 9

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.

ATTORNEY FOR APPELLANT

Ernest P. Galos

Public Defender

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Laura R. Anderson

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Lewis Bradley, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

June 26, 2017

Court of Appeals Case No.

71A04-1611-CR-2658

Appeal from the St. Joseph 

Superior Court

The Honorable Jane Woodward 

Miller, Judge

Trial Court Cause No.

71D01-1508-F5-173

Crone, Judge.
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Case Summary

[1] Lewis Bradley, Jr., appeals his convictions for level 2 felony dealing in cocaine 

and level 5 felony possession of cocaine, following a bench trial. Bradley raises 

two issues for our review: (1) whether the State presented sufficient 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 

convictions, and his convictions for both dealing in cocaine and possession of 

cocaine are barred by double jeopardy. Therefore, we affirm his conviction for 

dealing in cocaine and remand with instructions to vacate judgment of 

conviction and sentence on his conviction 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 appointment at a patient’s house. While 

he was waiting, Covie noticed that there was a man cleaning out a car that was 

parked on the curb directly behind him. Shortly thereafter, Covie observed a red 

car pull in and park behind the vehicle being cleaned. The driver of the red car, 

later identified as Bradley, exited the vehicle and walked up to the man cleaning 

and engaged him in conversation. The two men approached Covie, and Bradley 

knocked loudly on his window. Bradley asked why Covie was parked on the 

street and said, “Hey man I got that powder. Would you like some of that 

powder?” Tr. Vol. 2 at 21-22. Covie believed that Bradley was attempting to sell 
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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 into a nearby home, and he 

decided to call the police.

[3] South Bend Police Officer Joshua Morgan responded to the scene in his police 

vehicle. Covie explained to Officer Morgan that Bradley had made a comment 

about selling him “powder.” During 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 his lights to initiate a traffic stop, and Bradley quickly pulled over 

around the corner. Bradley then immediately exited his vehicle without being 

told and began to walk away from the traffic stop. Officer Morgan handcuffed 

and detained Bradley as he tried to assess the situation. Bradley claimed that he 

was just moving the vehicle and that it was not his. Officer Morgan determined

that the last registered owner of the vehicle was a Charles Bradley. 

[5] Officer Morgan detected an odor of marijuana coming from the vehicle. 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 prevent officers from putting him in the police vehicle. At the jail, 

Bradley was searched and a bag of marijuana weighing less than a gram was 

found in his left pants pocket. 
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[6] The 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. The State later added a count of 

level 5 felony dealing in cocaine 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 Bradley guilty of all six charges and entered judgment 

of conviction on all but the level 5 felony dealing in cocaine guilty verdict, 

which the court merged with the level 2 felony dealing in cocaine guilty verdict. 

[7] The trial court imposed concurrent sentences of ten years with four years 

suspended on the dealing in cocaine conviction, one year on the 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 

felony dealing in cocaine and level 5 felony possession of cocaine.

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, not that of appellate courts, to assess 
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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 hypothesis 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. 2007)) (alteration in Harrison), trans. denied.

[9] To convict Bradley of both charges, the State was required to prove beyond a 

reasonable doubt that Bradley knowingly possessed cocaine. See Ind. Code §

35-48-4-1 (dealing); Ind. Code § 35-48-4-6 (possession). Specifically, Bradley 

asserts 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 sufficient 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 the cocaine on Bradley’s person or see 

him hold or discard the cocaine from the vehicle. Therefore, Bradley’s 

convictions cannot be sustained under a theory of actual possession. 
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[10] Where the State does not show actual possession, a conviction for possessing 

contraband 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 control 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 that 

possessory interest is not exclusive. Id. When that possessory interest is not 

exclusive, the State must support this second inference with additional 

circumstances indicating the defendant’s knowledge of the presence and nature 

of the item. Id. at 174-75.

Among the recognized “additional circumstances” 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 plain 

view; and (6) location of the contraband is in close proximity to 

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 question is 

whether a reasonable factfinder could conclude from the evidence that the 
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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 because 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 emphasizes that he only briefly operated the vehicle that he claimed did 

not belong 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, 753 N.E.2d 19, 22 (Ind. Ct. App. 2001).

[12] Furthermore, additional circumstances were present that permitted a reasonable 

factfinder to conclude that Bradley had knowledge of the nature and presence of 

the cocaine. The evidence most favorable to the convictions 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 21-22. 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-enter the same red vehicle. When Officer 

Morgan activated his lights to initiate the traffic stop, Bradley pulled over to the 

curb. However, Bradley immediately exited the vehicle without being told and 

began to walk away. Bradley further attempted to distance himself from the 

vehicle when he was detained and handcuffed by Officer Morgan and prior to 

any investigation into the vehicle, Bradley claimed that he was just moving the 
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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 nature 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 presented sufficient evidence to demonstrate that Bradley knowingly 

possessed the cocaine. 

Section 2 – Bradley’s conviction and sentence for possession 

are barred by double jeopardy.

[14] Bradley also contends that his convictions for both level 2 dealing in cocaine 

and level 5 possession 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 possession 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 greater one.’” 
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Harrison, 901 N.E.2d at 643-644 (quoting Mason v. State, 532 N.E.2d 1169, 1172 

(Ind. 1989), cert. denied). Our supreme court has concluded that where the same 

cocaine supports both possession of cocaine pursuant to Indiana Code Section 

35-48-4-6 and dealing in cocaine pursuant to Indiana Code Section 35-48-4-1, 

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 evidence was the single bag of cocaine found by 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 

cocaine conviction. Appellee’s Br. at 17-18.

[16] Where a defendant is found guilty of both the greater offense and the lesserincluded offense, the proper procedure is to vacate the conviction of the lesserincluded 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 conviction and sentence on Bradley’s 

conviction for possession of cocaine. 

[17] Affirmed in part and remanded in part.

Baker, J., and Barnes, J., concur.