Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017 Page 1 of 8

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

Cara Schaefer Wieneke

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela N. Sanchez

Supervising Deputy Attorney

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tyler Bishop Smiley,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

November 14, 2017

Court of Appeals Case No.

70A01-1706-CR-1394

Appeal from the Rush Superior 

Court

The Honorable Brian D. Hill, Jr., 

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 2 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 3 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 4 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 5 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 6 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 7 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 8 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.