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
Feb 20 2014, 8:55 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL R. FISHER GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN HOSKINS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1307-CR-566
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven R. Eichholtz, Judge
The Honorable Peggy Hart, Commissioner
Cause No. 49G20-1210-FA-71684
February 20, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Kevin Hoskins appeals his convictions for Class B felony dealing in cocaine and
Class C felony possession of cocaine. He argues that the evidence is insufficient to support
his dealing conviction because there is no evidence of his intent to deliver and that the
evidence is insufficient to support his possession conviction because he did not actually or
constructively possess the cocaine. Finding the evidence sufficient for both convictions,
we affirm.
Facts and Procedural History
On the afternoon of October 16, 2012, Indianapolis Metropolitan Police Department
Officer John Walters and some other officers were patrolling North Dearborn Street on the
eastside of Indianapolis. This area was designated a “hot zone” because of the presence of
drugs and violent crime. Tr. p. 56. Officer Walters saw Melvin Germany, whom Officer
Walters knew did not have a valid driver’s license based on his previous interactions with
him, driving a car. So Officer Walters decided to pull him over. When Officer Walters
pulled up behind Germany’s car, Germany and his sole passenger—Hoskins—quickly
exited the car and walked away from it. Officer Walters activated his patrol car’s public-
address system and ordered the men to return to the car. Germany hesitated but then
walked to Officer Walters’ car and put his hands on the hood. Hoskins, however, refused
to comply with Officer Walters’ order and, with his hands in his “hoodie” pocket, “walked
with a purpose” toward some parked cars, positioning himself on the grass plot between
the sidewalk and a parked car. Id. at 33. Officer Walters saw Hoskins’ arms and shoulders
moving as if he was manipulating an object in his hoodie pocket. Officer Daniel Brezik
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saw Hoskins behind a parked car “reaching down toward[] his waistband and bending
down behind the car.” Id. at 83. Walters asked K-9 Officer Mark Rand to deploy his dog
in order to persuade Hoskins to return to the car. When Officer Rand removed his dog
from the patrol car, Hoskins walked to Officer Walters’ car.
At this point, Officer Brezik performed an outer-garment pat down of Germany and
Hoskins and sat them down on the curb by Germany’s car while Officer Walters conducted
a warrant search and checked Germany’s license status. The search returned no active
warrants for either man but confirmed that Germany did not have a valid driver’s license.
Officer Walters arrested Germany for driving with a suspended license. Officer Walters
noticed that both men had a strong odor of burnt marijuana coming from them. Officer
Phillip Robinett approached Germany’s car and reported that a strong odor of burnt
marijuana was coming from inside the car. Officer Robinett started searching the car and
found a half-smoked cigar filled with marijuana on the front dash within easy reach of both
the driver and the passenger. Because both men smelled like marijuana and the marijuana
cigar was within easy reach of both men, Officer Walters arrested Germany and Hoskins
for possession of marijuana and handcuffed them. Germany and Hoskins were then
searched more thoroughly incident to their arrest. During this search, Officer Brezik found
a set of keys on Hoskins’ belt loop with two small metal cylinders attached to the keychain.
Inside one of the cylinders Officer Brezik found fifteen small baggies of crack cocaine.
Each baggie was knotted and contained one rock of crack cocaine. Officer Brezik also
found $106 on Hoskins. At this point, the officers could not decide whether the total
amount of crack cocaine was over the three-gram threshold, so they discussed using a
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digital scale from one of their patrol cars to weigh it. Hoskins overheard their conversation
and interjected, “naw, it’s not over three grams, it’s more like two.” Id. at 39.
In the meantime, Hoskins’ sister arrived on the scene, and Hoskins yelled at her to
get his “bread,” which according to Officer Walters meant money or drugs. Id. at 40.
Hoskins was frustrated that his sister did not understand what he wanted her to do so he
kept yelling for her to get his “bread.” Id. Finally, Hoskins, who said that he did not care
if Officer Walters was standing next to him, yelled “get my dope.” Id. Officer Walters
understood this to mean that Hoskins wanted his sister to recover additional drugs from the
scene. So, Officer Walters retraced Hoskins’ steps from Germany’s car to the parked car
where Hoskins was standing. Officer Walters then found, lying between the curb and the
rear wheel of the parked car, a plastic bag containing two smaller plastic bags—one
containing crack cocaine and the other containing marijuana. Officer Walters believed that
Hoskins had dropped the bag when he was standing in that location earlier, as evidenced
by his arm and shoulder movements.
It was later determined that the crack cocaine in the fifteen baggies collectively
weighed 1.6153 grams, the crack cocaine in the plastic bag weighed 5.3124 grams, and the
total amount of marijuana recovered weighed over three grams.
The State charged Hoskins with Count I: Class A felony dealing in cocaine, Count
II: Class C felony possession of cocaine, and Count III: Class A misdemeanor possession
of marijuana. Hoskins waived his right to a jury trial, and a bench trial was held.
At trial, Detective Joshua Harpe, a narcotics detective for over seven years, testified.
Detective Harpe had been involved in over 1000 cocaine-distribution cases. According to
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Detective Harpe, the fifteen baggies containing a rock of crack cocaine and knotted closed
is consistent with dealing. He further testified that crack cocaine is generally sold in .10-
to .20-gram quantities and that it is not common for users to carry individually packaged
baggies of crack cocaine. According to Detective Harpe, the baggies would sell for
between $10 and $20 apiece. As for the plastic bag containing 5.3124 grams of crack
cocaine, Detective Harpe testified that it was worth $300 to $400 and that it was also
consistent with dealing. Detective Harpe surmised that Hoskins did not have a chance to
break up the five grams into smaller chunks or that he was going to sell the five grams as-
is. Id. at 95-96. Hoskins testified in his own defense and admitted to possessing the crack
cocaine found in the cylinder on his keychain but denied that the drugs found by the parked
car were his. Id. at 124-25, 134. Hoskins said that he purchased the fifteen baggies earlier
that day and planned to smoke it. Id. at 128. According to Hoskins, it would only take
him thirty to forty-five minutes to consume the gram and a half. Id.
The trial court found that Hoskins had the intent to deliver the fifteen baggies of
cocaine found on his person and therefore found him guilty of Count I: dealing in cocaine;
however, the court entered the conviction as a Class B felony as a lesser-included offense
of the A felony (because the amount was less than three grams). Id. at 164. The court
found that Hoskins possessed the cocaine the officers discovered by the parked car but that
there was not enough evidence to prove that he intended to deliver it. Id. Accordingly, the
court found Hoskins guilty of Count II: Class C felony possession of cocaine. Finally, the
court found Hoskins guilty of Count III: Class A misdemeanor possession of marijuana.
The trial court sentenced Hoskins to ten years for Count I, four years for Count II, and one
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year for Count III. The court ordered the sentences to be served concurrently, for an
aggregate sentence of ten years.
Hoskins now appeals his convictions for Class B felony dealing in cocaine and Class
C felony possession of cocaine.
Discussion and Decision
Hoskins contends that the evidence is insufficient to sustain his convictions for
Class B felony dealing in cocaine and Class C felony possession of cocaine. He does not
challenge his marijuana conviction.1 When reviewing the sufficiency of the evidence, we
neither reweigh the evidence nor determine the credibility of witnesses. Bailey v. State,
979 N.E.2d 133, 135 (Ind. 2012). We look solely to the evidence most favorable to the
judgment together with all reasonable inferences to be drawn therefrom. Id. A conviction
will be affirmed if the probative evidence and reasonable inferences to be drawn from the
evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond
a reasonable doubt. Id.
I. Count II: Class C felony Possession of Cocaine
Hoskins contends that the evidence is insufficient to support his conviction for Class
C felony possession of cocaine for the 5.3124 grams of cocaine found in the plastic bag by
the parked car in the street. Hoskins argues that the evidence is insufficient to prove that
he actually or constructively possessed this cocaine.
1
Hoskins “concedes that the evidence is sufficient to show that he possessed the marijuana cigar
found in the car so as to support the conviction for Possession of Marijuana as a Class A misdemeanor.”
Appellant’s Br. p. 5; id. at 8 n.2.
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In order to convict Hoskins of Class C felony possession of cocaine, the State had
to prove that he knowingly possessed three or more grams of cocaine. Ind. Code § 35-48-
4-6(b)(1)(A); Appellant’s App. p. 26. A person actually possesses contraband when he has
direct physical control over it. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). This,
however, does not require the defendant “being ‘caught red-handed’ in the act by police.”
Wilburn v. State, 442 N.E.2d 1098, 1101 (Ind. 1982). When the State cannot show actual
possession, a conviction for possessing contraband may rest instead on proof of
constructive possession. Gray, 957 N.E.2d 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.
We find that Hoskins had actual possession of the 5.3124 grams of cocaine found
in the plastic bag by the parked car in the street. Even though Hoskins did not have the
cocaine on him when it was discovered by the officers, there is “no requirement that [a
defendant’s] actual possession of contraband must be shown to have existed at precisely
the same time as the law enforcement agency’s discovery of the contraband.” Wilburn,
442 N.E.2d at 1101; see also Womack v. State, 738 N.E.2d 320, 324 (Ind. Ct. App. 2000)
(“The [S]tate was not required to show that Womack possessed the bag of marijuana at the
time of Womack’s apprehension, or at the time the officers discovered the bag.”), trans.
denied; Lycan v. State, 671 N.E.2d 447, 457 (Ind. Ct. App. 1996) (“In order to prove that
Lycan possessed the marijuana, it was not necessary to demonstrate that he was in
possession at the time the marijuana was recovered.”); but see Brent v. State, 957 N.E.2d
648, 650 (Ind. Ct. App. 2011) (“But officers did not find the marijuana on Brent’s person
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or see him hold or discard the marijuana from the vehicle. . . . Therefore, Brent’s conviction
for possession cannot be sustained under a theory of actual possession.”), trans. denied.
Here, the trier of fact could have reasonably inferred that when Hoskins quickly
exited Germany’s car and walked away from it “with a purpose” toward the parked cars in
defiance of Officer Walters’ order, he did so to get rid of the cocaine. As Hoskins walked
away, Officer Walters observed that his hands were in his hoodie pocket. In addition,
Officer Walters saw Hoskins’ arms and shoulders moving as if he was manipulating an
object in his hoodie pocket. Officer Daniel Brezik saw Hoskins behind a parked car
“reaching down toward[] his waistband and bending down behind the car.” Tr. p. 83.
Moreover, when Hoskins’ sister arrived on the scene, Hoskins told her to get his “bread.”
According to Officer Walters, “bread” means drugs or money. Hoskins became frustrated
when his sister did not understand what he wanted her to do, so he kept yelling for her to
get his “bread.” Finally, Hoskins, who said that he did not care if Officer Walters was
standing next to him, yelled “get my dope.” Officer Walters understood this to mean that
Hoskins wanted his sister to recover additional drugs from the scene. Officer Walters then
retraced Hoskins’ steps from Germany’s car to the parked car where Hoskins was standing.
This is when Officer Walters found the 5.3124 grams of cocaine in the plastic bag by the
parked car in the street.
This evidence is sufficient to prove that Hoskins was in actual possession of the
cocaine when he walked from Germany’s car to the parked car and that, when he was able
to partially hide himself from the officers, he removed the cocaine from his hoodie pocket
and dropped it to the ground. That is, Hoskins tried to get rid of the cocaine so that the
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officers would not find it on him. Hoskins had direct physical control of the cocaine and,
therefore, had actual possession of it. Accordingly, we affirm Hoskins’ conviction for
Count II: Class C felony possession of cocaine.
II. Count I: Class B felony Dealing in Cocaine
Hoskins concedes that he possessed the crack cocaine in the fifteen baggies. He
argues, however, that the evidence is insufficient to prove that he intended to deliver that
cocaine. The trial court found that the evidence was sufficient to prove that Hoskins
intended to deliver the 1.6153 grams of cocaine in the fifteen baggies but that the evidence
was insufficient to prove that he intended to deliver the 5.3124 grams of cocaine found in
the plastic bag by the parked car in the street.
Class B felony dealing in cocaine occurs when a person knowingly or intentionally
possesses cocaine with the intent to deliver. Ind. Code § 35-48-4-1(a)(2)(C).
Circumstantial evidence of intent to deliver, such as possession of a large quantity of drugs,
large amounts of currency, scales, plastic bags, and other paraphernalia as well as evidence
of other drug transactions, can support a conviction. McGuire v. State, 613 N.E.2d 861,
864 (Ind. Ct. App. 1993), reh’g denied, trans. denied. The more narcotics a person
possesses, the stronger the inference that he intended to deliver it and not consume it
personally. Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003), reh’g denied, trans.
denied.
The lack of a large quantity of drugs, however, does not mean that the intent to
deliver cannot be established. Even a small quantity of drugs can be sufficient where there
is other evidence of intent to deliver, such as the packaging of the drugs. Here, the evidence
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shows that Hoskins possessed fifteen baggies of crack cocaine weighing 1.6153 grams
total. Each baggie was knotted closed and contained one rock of crack cocaine weighing
approximately 0.1 grams and worth approximately $10-20. Detective Harpe testified that
this packaging was consistent with dealing and that it is uncommon for a user to carry
fifteen individual bags of crack cocaine. As he explained at trial, “Strictly based on weight,
that’s a little more than would be common for us to find a user carrying, particularly when
it’s bagged up like that in ten to twenty dollar hits.” Tr. p. 111. Notably, when Hoskins
was arrested, no drug paraphernalia was found, and $106 was found on his person.
Furthermore, this case is distinguishable from Isom v. State, 589 N.E.2d 245 (Ind.
Ct. App. 1992), trans. denied, which Hoskins cites. In Isom, a search of the defendant’s
car revealed 0.88 grams of cocaine in ten plastic baggies. However, the search also
revealed a glass pipe used to smoke cocaine, which was described as “like it’s been used a
lot.” Id. at 248. Accordingly, this Court found that the evidence was insufficient to support
the inference that the defendant possessed the cocaine with the intent to deliver rather than
for his personal use. Id. Here, however, no drug paraphernalia was found. And although
the trial court found that Hoskins did not intend to deliver the 5.3124 grams of cocaine
found in the plastic bag by the parked car in the street, this cocaine cannot be ignored. We
therefore find that the evidence is sufficient to prove that Hoskins possessed the 1.6153
grams of cocaine individually packaged into fifteen baggies with the intent to deliver. See
Dandridge v. State, 810 N.E.2d 746, 750 (Ind. Ct. App. 2004) (finding intent to deliver
where defendant possessed eight individual packages of cocaine totaling 10.07 grams and
$351.38); Davis, 791 N.E.2d at 270 (finding intent to deliver where defendant possessed
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5.6225 grams of cocaine packaged into forty-five bindles). Hoskins’ arguments that he
was a heavy cocaine user and that Detective Harpe conceded that cocaine users could
consume up to seven grams in a twenty-four-hour period are merely invitations for us to
reweigh the evidence, which we decline. We therefore affirm Hoskins’ conviction for
Count I: Class B felony dealing in cocaine.
However, because the Abstract of Judgment reflects that Count I was entered as a
Class A felony instead of a Class B felony, see Appellant’s App. p. 15, 17, we remand this
case to the trial court to enter an amended Abstract of Judgment.
Affirmed and remanded.
RILEY, J., and MAY, J., concur.
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