Court of Appeals of Indiana | Memorandum Decision 19A-CR-2404 | September 15, 2020 Page 1 of 20

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

Nathan Meeks

Marion, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Barry Lee Cook,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 15, 2020

Court of Appeals Case No.

19A-CR-2404

Appeal from the Grant Superior 

Court

The Honorable Dana J. 

Kenworthy, Judge

Trial Court Cause No.

27D02-1505-F2-4

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2404 | September 15, 2020 Page 2 of 20

Statement of the Case

[1] Barry Lee Cook (“Cook”) was convicted of Level 2 felony dealing in a narcotic 

drug,

1 Level 2 felony dealing in cocaine,2 Level 6 felony possession of a narcotic 

drug,3 and Class A misdemeanor possession of marijuana.4 Cook was also 

found to be an habitual offender.5 On appeal, Cook argues that: (1) the trial 

court abused its discretion by admitting evidence obtained pursuant to the 

execution of a search warrant at a residence and during an investigative stop, 

maintaining that the search warrant lacked probable cause and that the 

investigative stop lacked reasonable suspicion; and (2) there was insufficient 

evidence to support his two Level 2 felony dealing convictions. Concluding 

that the trial court did not abuse its discretion and that there is sufficient 

evidence to support Cook’s convictions, we affirm the trial court.

[2] We affirm. 

Issues

1. Whether the trial court abused its discretion by admitting 

evidence.

1

IND. CODE § 35-48-4-1.

2

I.C. § 35-48-4-1.

3

I.C. § 35-48-4-6.

4

I.C. § 35-48-4-11. 

5

I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2404 | September 15, 2020 Page 3 of 20

2. Whether sufficient evidence supports Cook’s two felony dealing 

convictions.

Facts

[3] Late in the evening on May 1, 2015, the members of the Grant County Joint 

Enforcement Against Narcotics Team (“JEAN Team”) surveilled a house at 

120 West Sherman Street (“the House”) after receiving a tip of illegal drug 

activity. Members of the JEAN Team observed two females, later identified as 

Casey Jones (“Jones”) and Breanna Reynolds (“Reynolds”), mother and 

daughter, enter the House and leave approximately ten to fifteen minutes later. 

[4] After Jones and Reynolds had left the House, the women were approached on 

the street by Marion Police Department Detective Sergeant Josh Zigler 

(“Detective Sergeant Zigler”) and Detective Sergeant John Kauffman 

(“Detective Sergeant Kauffman”). Detective Sergeant Zigler, who had 

previously been certified as a drug recognition expert, assessed that both Jones 

and Reynolds “were on some sort of a narcotic analgesic . . . or heroin 

specifically[.]” (Tr. Vol. 4 at 174). Detective Sergeant Zigler observed a “fresh 

track mark with blood” on the arm of one of the women. (Tr. Vol. 4 at 174).

Detective Sergeant Zigler also observed that the women were “lethargic and . . . 

slow to react” and experiencing the “high euphoria” associated with drugs. (Tr. 

Vol. 4 at 174). Additionally, both women had “very constricted pupils.” (Tr. 

Vol. 4 at 174). During the conversation on the street, the women explained that 

they “had just used and got heroin from an individual inside the [House].” (Tr. 

Vol. 4 at 221). Jones and Reynolds were then transported to the Marion Police 
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Department and separately interviewed. Based on the information provided by 

Jones and Reynolds, Detective Sergeant Zigler began the process of obtaining a 

search warrant for the House.

[5] Meanwhile, Detective Sergeant Kauffman continued to surveil the House.

Detective Sergeant Kauffman observed two males exit and get into a green Ford 

Explorer. One male entered the driver’s seat, and the other male entered the 

passenger seat. Detective Sergeant Kauffman testified that he “did not know 

the driver, but . . . did recognize [that] the passenger[]” was “Barry Cook.” (Tr. 

Vol. 4 at 222). Detective Sergeant Kauffman then requested that a patrol 

vehicle initiate a traffic stop of the Explorer. A patrol officer from the Marion 

Police Department initiated a traffic stop based on a “narcotics investigation[]” 

and detained the occupants. (Tr. Vol. 4 at 87). Detective Sergeant Kauffman, 

who was following the Explorer in an unmarked vehicle, confirmed that the 

passenger was Cook. The driver was identified as Barry Magers (“Magers”).

According to Detective Sergeant Kauffman, Cook was detained “based on . . . 

statements provided from . . . Jones and . . . Reynolds and the fact [that] they 

had stated the heroin [was obtained] from a tall skinny dark complected [sic]

black male. Mr. Cook fit those descriptions.” (Tr. Vol. 4 at 224). Detective 

Sergeant Kauffman relayed this information to Detective Sergeant Zigler, who 

was still preparing the paperwork necessary for the search warrant. 

[6] Around 1:00 a.m. on the morning of May 2, 2015, Detective Sargent Zigler 

arranged a telephone call between himself and Judge Jeffrey Todd (“Judge 

Todd”) to obtain the search warrant. During the tape-recorded conversation, 
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which was also transcribed, Detective Sergeant Zigler testified under oath to the 

facts surrounding the JEAN Team’s surveillance of the House and the drug 

transaction that had occurred therein. Judge Todd found probable cause and 

issued a search warrant seeking the following relevant items: pure or 

adulterated marijuana, heroin, any other illegal narcotic controlled substance, 

scales, U.S. cash currency, cell phones, smart phones and the data contained 

therein that related to drug activity for the dates of May 1 and 2, 2015, and 

mail. The search warrant also authorized a search of the Explorer, Cook, and 

Magers. 

[7] Execution of the search warrant at the House yielded many pieces of evidence 

including: a letter on a coffee table, which was addressed to Cook at the 120 

West Sherman Street address; marijuana; one hydrocodone pill; empty pill 

capsules; torn plastic baggies; a digital scale; and a cell phone. In the kitchen, 

officers searched inside of a bag of cereal and found a “clear tied bag . . . 

positioned down inside the cereal,” and “inside that bag . . . were other little, 

littler bags that were also tied.” (Tr. Vol. 4 at 60). These little bags contained a

brown and white rock-like substance, a white rock-like substance, and a light 

brown and rock-like substance, which were later tested and determined to be a 

cocaine base and heroin mixture, cocaine, and heroin. In total, officers

recovered 5.85 grams of the cocaine base and heroin mixture, 6.42 grams of 

cocaine, and 9.29 grams of heroin. When officers executed the search warrant 

of Cook’s person, officers found another cell phone and $3,400 in cash.
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[8] Sometime later, the JEAN Team sent the cell phone recovered from Cook’s 

person to the Indiana State Police for a forensic exam. The examiner was able 

to recover a series of text messages between Cook and Brianna Fansler 

(“Fansler”). Fansler had texted Cook on May 1, 2015, informing him that she

needed a gram of heroin “in two halves, like two half gram baggies.” (Tr. Vol. 

5 at 50). Cook responded by stating that he was at the House and asking if she 

had money for the drugs. Fansler then requested that Cook deliver the drugs to 

her, which he did. Four hours later, Fansler texted Cook a second time,

requesting more heroin. Cook responded by informing Fansler that he was at 

the House and requesting that she come to him, which she eventually did. 

According to Fansler’s trial testimony, the House was Cook’s “stash house[,]” 

and that he “hid his dope . . . in cereal boxes and cereal bags.” (Tr. Vol. 5 at 

56). She further testified that she personally observed Cook hide his heroin 

inside cereal boxes and cereal bags. 

[9] The State charged Cook with Count 1, Level 2 felony dealing in a narcotic 

drug; Count 2, Level 2 felony dealing in cocaine; Count 3, Level 6 felony 

maintaining a common nuisance; Count 4, Level 6 felony possession of a 

narcotic drug; and Count 5, Class A misdemeanor possession of marijuana. 

The State also alleged that Cook was an habitual offender.

[10] On March 2, 2018, Cook filed a motion to suppress “all the items seized and 

observations and statements made during, or as a result of, the execution of the 

search warrant[.]” (App. Vol. 2 at 80). In this motion, Cook argued the search 

of the House and the search of his person were unconstitutional because the 
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search warrant: (1) failed to advise the judge of material facts; (2) did not 

describe with particularity the place and person to be searched; and (3) failed to 

establish probable cause that a crime had been committed and that evidence of 

the crime would be found in the House or on Cook’s person. At the subsequent 

suppression hearing in April 2018, Cook argued that, based on the totality of 

the circumstances, the search warrant issued was invalid because there had been

no corroborating evidence to support the issuance of the warrant. After the 

hearing, the trial court denied Cook’s motion to suppress. 

[11] In May 2018, this matter proceeded to jury trial, which ended in a mistrial. In 

September 2018, the State filed a motion to dismiss without prejudice the Level 

6 felony maintaining a common nuisance charge, and the trial court granted the 

motion. Later that month, during his second trial, the jury found Cook guilty 

of Class A misdemeanor possession of marijuana. However, a second mistrial 

was declared on the remaining counts. A third mistrial was declared in July 

2019.

[12] On August 27, 2019, Cook’s fourth jury trial began. The State presented 

testimony from several Marion Police Department officers, including Detective 

Sergeants Zigler and Kauffman, a Grant County Sheriff, Jones, Reynolds, 

Magers, a member of the Indiana State Police cybercrime unit, and Fansler,

who all testified to the facts above. In addition, Reynolds testified that Cook 

had pulled a bag of multiple drugs “as big as a baseball” from his pocket and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2404 | September 15, 2020 Page 8 of 20

had handed them a “point or two” of heroin in exchange for money.6 (Tr. Vol. 

4 at 119-20, 121). When asked on cross-examination whether she told officers

on May 1, 2015 that “[she] got the heroin from a tall thin black guy[,]” 

Reynolds answered in the affirmative. (Tr. Vol. 4 at 125). 

[13] The State also introduced testimony from Ashlee Burks (“Burks”), who was the 

then renter of the House just prior to Cook’s occupation of the House in May 

2015. Burks testified generally that something had happened to her in the 

House in November 2014 and that she had moved out of the House the 

following month. Burks explained that she had prepaid rent through July 2015 

and that she had allowed the mother of Cook’s child to live in the House. She 

further testified that in May 2015, the House “was basically just a party house.” 

(Tr. Vol. 4 at 109). 

[14] When the State solicited testimony about the drugs found inside the bag of 

cereal, Cook’s counsel did not object. Cook’s counsel also did not object when 

the State introduced photographs of the drugs found inside the bag of cereal. 

Additionally, when the State introduced the lab report showing that the drugs 

6 Detective Sergeant Zigler testified that a point of heroin is “one-tenth of a gram.” (Tr. Vol. 4 at 181). 

Detective Sergeant Kauffman further explained that “a point is normally what someone would use or ingest 

to get high[]” and that when someone “purchased . . . a point of heroin from a drug dealer, it’s one-tenth of a 

gram so one gram would equal ten points . . . theoretically or ten doses.” (Tr. Vol. 4 at 236). As a result, he 

explained that it is not common for a typical user to have 9.29 grams of heroin in their possession because 

that would be “90 plus doses.” (Tr. Vol. 4 at 236).
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found were a mixture of cocaine base and heroin, cocaine, and heroin, Cook’s 

counsel affirmatively stated that he had “[n]o objection.” (Tr. Vol. 4 at 232). 

[15] At the conclusion of the first day of evidence, Cook filed a second motion to 

suppress. In this motion, Cook argued that the cell phone and any data

obtained therefrom, which had been obtained from a search of his person,

should be suppressed because officers impermissibly stopped the Explorer. The 

trial court found that there was reasonable suspicion to perform the 

investigatory stop of the Explorer and denied Cook’s motion to suppress. 

[16] During trial, Cook objected to the admission of the cell phone found on his 

person and spreadsheets of call logs and text messages. The basis for this

objection was Cook’s earlier motion to suppress, and Cook’s counsel further 

requested that the trial court “show [his] objection to the phone itself and any 

data that came off the phone as a continuing objection.” (Tr. Vol. 5 at 31). The 

trial court noted the continuing objection and admitted the evidence over 

Cook’s objection. Cook also objected to Fansler’s testimony regarding the

content of the text message communications on May 1, 2015, and the trial court 

overruled the objection. Thereafter, the jury found Cook guilty of Level 2

felony dealing in a narcotic drug, Level 2 felony dealing in cocaine, and Level 6 

felony possession of a narcotic drug. Cook admitted that he was an habitual 

offender.

[17] At the subsequent sentencing hearing, the trial court imposed a thirty (30) year 

sentence for the Level 2 felony dealing in a narcotic drug conviction and 
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enhanced the sentence by ten (10) years for the habitual offender adjudication.

The trial court also imposed executed terms of thirty (30) years for the Level 2 

felony dealing in cocaine conviction, two and one-half (21⁄2) years for the Level 

6 felony possession of a narcotic drug conviction, and one (1) year for the Class 

A misdemeanor possession of marijuana conviction. All of the sentences were 

ordered to run concurrently for an aggregate executed sentence of forty (40) 

years. Cook now appeals. 

Decision

[18] On appeal, Cook argues that: (1) the trial court abused its discretion by 

admitting evidence; and (2) the State presented insufficient evidence to support 

his two dealing convictions. We address each of his contentions in turn.

1. Admission of Evidence

[19] Cook argues that the trial court abused its discretion by admitting: (A) drug 

evidence seized from the House during execution of the search warrant; and (B) 

information obtained from his cell phone, which had been obtained following a 

search of his person during an investigative stop. Specifically, he contends that 

the evidence seized from the House was inadmissible because the search 

warrant lacked probable cause and that the information obtained from his cell 

phone is inadmissible because the investigative stop was unlawful. 

[20] Although Cook filed motions to suppress, he is appealing following a 

completed trial. “‘A trial court has broad discretion in ruling on the 
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admissibility of evidence and we will disturb its rulings only where it is shown 

that the court abused that discretion.’” Halliburton v. State, 1 N.E.3d 670, 675 

(Ind. 2013) (quoting Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011)). “‘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.’” Id. (quoting Turner, 

953 N.E.2d at 1045). 

A. Drug Evidence from the House

[21] We first address Cook’s challenge to the admissibility of the drugs seized from 

the House during execution of the search warrant. Cook argues that the trial 

court abused its discretion by admitting the evidence from the House because

the search warrant lacked probable cause. Cook, however, has waived 

appellate review of his argument because he failed to object to the admission of 

any of the evidence seized from the House when introduced at trial. It is well 

established that “[a] contemporaneous objection at the time the evidence is 

introduced at trial is required to preserve the issue for appeal[.]” Brown v. State, 

929 N.E.2d 204, 207 (Ind. 2010), reh’g denied. 

[22] Here, the record reveals that when the State moved to admit the drugs seized 

from the House, Cook failed to object. For example, when the State introduced 

photographs of the drugs found inside the bag of cereal, Cook’s counsel did not 

object. When the State introduced the lab report confirming that the drugs 

found were a mixture of cocaine base and heroin, cocaine, and heroin, Cook’s 

counsel affirmatively stated that he had “[n]o objection.” (Tr. Vol. 4 at 232). 
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An “‘appellant cannot on the one hand state at trial that he has no objection to 

the admission of evidence and thereafter in this Court claim such admission to 

be erroneous.’” Halliburton, 1 N.E.3d at 679 (quoting Harrison v. State, 281 

N.E.2d 98, 100 (Ind. 1972)). As a result, Cook’s failure to object results in 

waiver of appellate review. 

[23] Nevertheless, “[a] claim that has been waived by a defendant’s failure to raise a 

contemporaneous objection can be reviewed on appeal if the reviewing court 

determines that a fundamental error occurred.” Brown, 929 N.E.2d at 207. 

“The fundamental error exception is ‘extremely narrow[] and applies only when 

the error constitutes a blatant violation of basic principles, the harm or potential 

for harm is substantial, and the resulting error denies the defendant 

fundamental due process.’” Id. (quoting Matthews v. State, 849 N.E.2d 578, 587 

(Ind. 2006)). As our supreme court explained in Brown, a showing of 

fundamental error arising from the admission of alleged illegally seized 

evidence is very limited: 

[A]n error in ruling on a motion to exclude improperly seized 

evidence is not per se fundamental error. Indeed, because 

improperly seized evidence is frequently highly relevant, its 

admission ordinarily does not cause us to question guilt. That is 

the case here. The only basis for questioning Brown’s conviction 

lies not in doubt as to whether Brown committed these crimes, but 

rather in a challenge to the integrity of the judicial process. We do 

not consider that admission of unlawfully seized evidence ipso 

facto requires reversal. Here, there is no claim of fabrication of 

evidence or willful malfeasance on the part of the investigating 

officers and no contention that the evidence is not what it appears 

to be. In short, the claimed error does not rise to the level of 

fundamental error. 
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Brown, 929 N.E.2d at 207. 

[24] Just as in Brown, Cook does not claim that there was fabrication of the evidence 

or willful malfeasance on the part of members of the JEAN Team, and he does 

not contend that the evidence is not what it appears to be. Significantly, Cook 

has failed to acknowledge his lack of objection during trial and does not argue 

that the admission of the evidence constituted fundamental error. Rather, Cook 

asserts that the evidence at issue seized from the House pursuant to the search 

warrant should not have been admitted because the information provided by 

Jones and Reynolds was uncorroborated hearsay. Because Cook failed to 

object to the admission of the evidence at trial, does not assert fundamental 

error on appeal, and has failed to raise any grounds to support a finding of 

fundamental error, we decline to review his evidentiary challenge. See, e.g., id. 

at 208 (explaining that it is not necessary to resolve the issue of whether a 

search was lawful where the defendant had failed to preserve the issue by failing 

to object and where there was no fundamental error). 

B. Cell Phone Evidence

[25] Cook next argues that the trial court abused its discretion by admitting evidence 

obtained from his cell phone. Cook contends that that “evidence obtained 

during the stop and seizure of Cook” was unlawful “because there was no 

independent suspicion of a crime having been committed[.]” (Cook’s Br. 9).

[26] It is well settled that reasonable suspicion to justify an investigative stop must 

be based on specific and articulable facts known to the officer at the time of the 
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stop that leads the officer to believe that “criminal activity may be afoot.” Terry 

v. Ohio, 392 U.S. 1, 30 (1968). Reasonable suspicion requires more than mere 

hunches or unparticularized suspicions. Id. at 27. An officer must “be able to 

articulate some facts that provide a particularized and objective basis” for 

believing a crime has occurred or is afoot. Marshall v. State, 117 N.E.3d 1254, 

1259 (Ind. 2019). The reasonable suspicion inquiry is highly fact-sensitive and 

is reviewed under a sufficiency of the evidence standard. Finger v. State, 799 

N.E.2d 528, 533 (Ind. 2003). Like any matter of sufficiency of the evidence, 

“‘[t]he record must disclose substantial evidence of probative value that 

supports the trial court’s decision. We do not reweigh the evidence and we 

consider conflicting evidence most favorably to the trial court’s ruling.’” Id.

(quoting Goodner v. State, 714 N.E.2d 638, 641 (Ind. 1999) (citations omitted)).

[27] At the outset, we note that the seizure of Cook’s cell phone was based on the 

search warrant obtained by Detective Sergeant Zigler and not the product of the 

stop of the Explorer. Indeed, the testimony reveals that officers did not search 

or seize Cook’s cell phone until after the search warrant had been issued.

Moving to the stop of the Explorer, members of the JEAN Team, who were

surveilling the House for illegal drug activity, observed Jones and Reynolds exit

the House. The women, who appeared to be under the influence of a narcotic 

drug, were stopped, and they explained that they “had just used and got heroin 

from an individual inside the [House].” (Tr. Vol. 4 at 221). Reynolds trial 

testimony indicated that she had described the individual that evening as a tall 

thin black guy and that he had pulled a baseball-sized bag of drugs from his 
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pocket. Soon thereafter, members of the JEAN Team observed two males exit 

the House and enter the Explorer. One male entered the driver’s seat, and the 

other male, who Detective Sergeant Kauffman recognized as Cook, entered the 

passenger seat. After an officer stopped the Explorer and detained the 

occupants, Detective Sergeant Kauffman confirmed that the passenger was 

Cook, who also matched the description of the individual who had provided 

Jones and Reynolds with heroin. At this point, Detective Sergeant Kauffman 

relayed this information to Detective Sergeant Zigler, who added Cook to the 

search warrant. After the search warrant was granted, Cook was transported 

and searched at the jail, yielding his cell phone. 

[28] We conclude that there was reasonable suspicion to stop Cook. Cook’s 

argument to the contrary ignores the axiom that “an investigative stop may be 

based upon the collective information known to the law enforcement 

organization as a whole.” State v. Glass, 769 N.E.2d 639, 643 (Ind. Ct. App. 

2002), trans. denied. As described above, Detective Sergeant Kauffman observed 

Cook leave the House after a reported drug deal. Additionally, there was 

reasonable suspicion to believe that Cook, who matched the description given 

by Reynolds, was the same individual who had supplied Jones and Reynolds 

with heroin. “[A]n officer may make a Terry stop of a vehicle to investigate an 

offense other than a traffic violation, as long as the officer has reasonable, 

articulable suspicion that a crime is being or has been committed.” State v. 

Campbell, 905 N.E.2d 51, 55 (Ind. Ct. App. 2009), trans. denied. Indeed, “[l]aw 

enforcement was only required to have a “reasonable suspicion” to stop Cook, 
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not “absolute certainty” that Cook was involved in illegal activity. See Rutledge 

v. State, 28 N.E.3d 281, 290 (Ind. Ct. App. 2015) (explaining that “Terry does 

not require absolute certainty of illegal activity”). Accordingly, we conclude 

that the trial court did not abuse its discretion by admitting the evidence 

obtained from Cook’s cell phone.

2. Sufficiency of Evidence 

[29] Lastly, Cooks challenges the evidence supporting his Level 2 felony dealing in a 

narcotic drug and Level 2 felony dealing in cocaine convictions. Our standard 

of review for sufficiency of evidence claims is well settled. “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.’” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting McHenry v. 

State, 820 N.E.2d 124, 126 (Ind. 2005)) (emphasis added in Drane). Reviewing 

courts should not “assess witness credibility and weigh the evidence to 

determine whether it is sufficient to support a conviction.” Drane, 867 N.E.2d 

at 146. Indeed, it is our duty to “affirm the conviction unless ‘no reasonable 

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

doubt.’” Id. at 146-147 (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 

2000)). 

[30] To convict Cook of Level 2 felony dealing in a narcotic drug, the State was 

required to prove that Cook “knowingly possess[ed] with the intent to deliver a 

narcotic drug and the amount of the drug involved [was] at least ten (10) 
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grams[.]” (App. Vol. 2 at 14). Similarly, to convict him of Level 2 felony 

dealing in cocaine, the State was required to prove that Cook “knowingly 

possess[ed] with the intent to deliver cocaine and the amount of the drug 

involved [was] at least ten (10) grams[.]” (App. Vol. 2 at 15). 

[31] Cook generally argues that the evidence was insufficient to support his two 

dealing convictions, and he makes no separate argument for each conviction. 

Because he makes no cogent argument and provides no caselaw to support his 

contention, he has waived his sufficiency argument. See Ind. Appellate Rule 

46(A)(8)(a).

[32] Waiver notwithstanding, the evidence was sufficient to support Cook’s two 

dealing convictions. Both of Cook’s dealings convictions were based on 

possession of heroin and cocaine with the intent to deliver. Cook challenges 

whether he possessed the two drugs at issue, arguing that there was “no 

evidence tying [him] to the drugs[]” found at the House. (Cook’s Br. 17).

[33] Here, the State showed that Cook had actual possession of heroin and 

constructive possession of cocaine and the cocaine base and heroin mixture. A 

conviction for a possessory offense does not depend on catching a defendant 

red-handed. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). Indeed, a

conviction for possession of contraband may be based on evidence of actual or 

constructive possession. Griffin v. State, 945 N.E.2d 781, 783 (Ind. Ct. App. 

2011). The two differ in that actual possession occurs when a defendant has 

direct physical control over an item, whereas constructive possession occurs
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when the defendant has the intent and capability to maintain dominion and 

control over the item. Id.

[34] First, the evidence shows that Cook had actual possession of heroin. Fansler

bought heroin from Cook at the House and observed him with heroin during 

this purchase. Additionally, Reynolds explained that when she received the 

heroin from Cook, he had pulled it out of his pocket.

[35] Moreover, there was evidence that Cook constructively possessed the cocaine 

and cocaine base and heroin mixture. Again, constructive possession occurs 

when the defendant has the intent and capability to maintain dominion and 

control over the item. Griffin, 945 N.E.2d at 783. To prove the “intent” 

element of constructive possession, the State must demonstrate the defendant’s 

knowledge of the presence of the contraband. Armour v. State, 762 N.E.2d 208, 

216 (Ind. Ct. App. 2002), trans. denied. When, as is the case here, a defendant’s 

possession of the premises on which drugs are found is not exclusive, then the 

inference of intent to maintain dominion and control over the drugs must be 

supported by evidence of additional circumstances. Gray, 957 N.E.2d at 174-

75. Examples of these additional circumstances include a defendant’s 

incriminating statements, a defendant’s attempting to leave or making furtive 

gestures, the location of contraband like drugs in a setting suggesting 

manufacturing, the item’s proximity to the defendant, the location of 

contraband within the defendant’s plain view, and the mingling of contraband 

with other items owned by the defendant. Id. at 175.
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[36] To prove the second element of constructive possession, 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. at 174. This inference is 

allowed even when the possessory interest is not exclusive. Id. 

[37] Here, with regard to the intent element of constructive possession, there was 

evidence of “additional circumstances” exhibiting Cook’s knowledge of the 

presence of the cocaine and cocaine base and heroin mixture in the House. 

First, there was evidence that the house was a drug manufacturing setting. The 

JEAN Team discovered a digital scale, plastic baggies, empty pill capsules, and 

other drug paraphernalia. Also, officers located a letter addressed to Cook at 

the House address on the coffee table. 

[38] Regarding Cook’s capability to maintain dominion and control over the 

contraband found at the House, officers observed Cook leaving the House. The 

State also presented evidence that Cook had used the House as his “stash 

house.” (Tr. Vol. 5 at 53). Thus, there was evidence that Cook had a 

possessory interest in the house where the contraband was found, which is 

sufficient to show that he had the capability to maintain dominion and control 

over the contraband. See Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004) (noting 

that a defendant may be found to be in control of drugs discovered in a house 

whether he is the owner, a tenant, or merely an invitee).
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[39] Cook’s argument is largely a request for us to reweigh the evidence, which we 

cannot do. See Drane, 867 N.E.2d at 146. Our role is not to consider other 

reasonable inferences that could have been drawn from the evidence. See id. 

Rather, we consider “only the probative evidence and reasonable inferences 

supporting the [conviction].” Id. Based on the foregoing, we conclude that the 

jury, as the trier of fact, could have reasonably determined that Cook possessed 

both heroin and cocaine with the intent to deliver them. Accordingly, we 

affirm Cook’s convictions for Level 2 felony dealing in a narcotic drug and 

Level 2 felony dealing in cocaine.

[40] Affirmed. 

Bradford, C.J., and Baker, Sr.J., concur.