MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 18 2016, 9:12 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Gregory F. Zoeller
Indianapolis, Indianapolis Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Vino Mason, July 18, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1511-CR-2016
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff Flowers, Judge
Trial Court Cause No.
49G20-1311-FD-72531
Mathias, Judge.
[1] Following a jury trial, Vino Mason (“Mason”) was convicted in Marion
Superior Court of Class D felony dealing in marijuana and Class D possession
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016 Page 1 of 10
of marijuana. The trial court merged the convictions and ordered Mason to
serve two years at the Department of Correction, with one year suspended to
probation and eighty community service hours. Mason now appeals and
presents three issues for our review, which we restate as:
I. Whether the evidence was sufficient to support Mason’s conviction of
Class D felony dealing in marijuana;
II. Whether the trial court erred in merging Mason’s Class D felony
dealing in marijuana and Class D felony possession of marijuana after
entering conviction on both charges; and,
III. Whether the trial court erred in imposing a supplemental public
defender fee.
[2] We affirm in part, reverse in part, and remand for proceedings consistent with
this opinion.
Facts and Procedural History
[3] On November 3, 2013, a team of ten Indianapolis Metro Police Department
(“IMPD”) Metro Drug task force officers led by Detective Sergeant Scott
Brimer (“Detective Brimer”), executed a search warrant at a local variety store
on White Avenue in Indianapolis. The store was divided into a common area
that was open to customers and an employee area that was separated by a door
and a plexiglass window. When the team arrived inside the store, they found
French Tibbs (“Tibbs”) in the common area and Mason in the employee area.
Officers secured Tibbs and Mason and searched the premises.
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016 Page 2 of 10
[4] In the employee area, on a table that Mason was standing next to, officers
found a jar of 19.54 grams of marijuana, a cell phone, and a digital scale.
Underneath the table, officers discovered another bag with 68.12 grams of
marijuana. Officers also found another scale and a bottle of pills later
determined to be Oxycodone and Xanax.
[5] Tibbs and Mason were both arrested. Officers then searched the two men
incident to arrest and found over $1,100 in cash on Tibbs and over $2,400 in
cash on Mason. Detective Brimer asked Mason if he worked at the store, but
Mason indicated that he did not have a job. Detective Brimer also asked Tibbs
where he acquired the money. Tibbs explained that the money was proceeds
from the store and also told Detective Brimer, “It’s my store, [Mason] doesn’t
have anything to do with it.” Tr. pp. 97-98. However, a local man who
frequented the store indicated that he had seen Mason working there on several
prior occasions.
[6] On November 7, 2013, the State charged Mason with Class D felony dealing in
marijuana and Class D felony possession of marijuana. The State amended the
charging information on July 21, 2014, and added Class B felony dealing in a
controlled substance and Class B felony possession of a controlled substance. A
jury trial was held on August 26, 2015, in which Mason was convicted of Class
D felony dealing in marijuana and Class D felony possession of marijuana. The
trial court held a sentencing hearing on October 29, 2015, and entered
conviction on both charges but merged the convictions. The court then ordered
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016 Page 3 of 10
Mason to serve two years in the Department of Correction with one year
suspended to probation and eighty community service hours.
[7] In its sentencing order, the court ordered Mason to pay a $200 supplemental
public defender fee. However, at the sentencing hearing, the court stated that
Mason was indigent to the public defender fee. Tr. p. 320. This was also noted
in the CCS, abstract of judgment, and the order of commitment to community
corrections. Appellant’s App. pp. 15-16, 19, 92. The trial court’s judgment of
conviction order noted that Mason was both indigent as to court costs but also
indicated that he owed a public defender fee. Mason now appeals.
I. Sufficiency of the Evidence
[8] Mason argues that his Class D felony dealing in marijuana conviction was not
supported by sufficient evidence. “Upon a challenge to the sufficiency of
evidence to support a conviction, a reviewing court does not reweigh the
evidence or judge the credibility of witnesses, and respects the jury’s exclusive
province to weigh conflicting evidence.” Montgomery v. State, 878 N.E.2d 262,
265 (Ind. Ct. App. 2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005)). We consider only probative evidence and reasonable inferences
supporting the verdict. Id. We must affirm if the probative evidence and
reasonable inferences drawn from the evidence could have allowed a reasonable
trier of fact to find the defendant guilty beyond a reasonable doubt. Id.
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016 Page 4 of 10
[9] The State was required to prove beyond a reasonable doubt that Mason:
knowingly or intentionally possesse[d] with the intent to deliver
marijuana, hash oil, hashish, or salvia.
Ind. Code § 35-48-4-10(a)(2).1 To elevate the offense to a Class D felony,
the State had to prove that the marijuana had an aggregate weight of
greater than thirty grams. Ind. Code § 35-48-4-10(b)(1)(B). Mason does
not challenge that more than thirty grams was found in the employee
area at the store, but rather claims that he did not possess the marijuana.
[10] It is well-established that a conviction for possession of contraband may be
founded upon actual or constructive possession. Griffin v. State, 945 N.E.2d 781,
783 (Ind. Ct. App. 2011). Actual possession occurs when a defendant has direct
physical control over an item, whereas constructive possession occurs when a
person has the intent and capability to maintain dominion and control over the
item. Id.
[11] To fulfill the capability element of constructive possession, the State must
demonstrate that the defendant was able to reduce the controlled substance to
his personal possession. Id. To satisfy the intent element, the State must
demonstrate the defendant’s knowledge of the presence of the contraband. Id. at
1
Although the trial court entered conviction on Class D felony dealing in marijuana and possession of
marijuana, the convictions were merged into the Class D felony dealing in marijuana conviction.
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016 Page 5 of 10
784. In cases where the accused has exclusive possession of the premises on
which contraband is found, an inference is permitted that he or she knew of the
presence of contraband and was capable of controlling it. Id. When possession
of the premises is not exclusive, though, the inference is not permitted absent
some additional circumstances indicating knowledge of the presence of the
contraband and the ability to control it. Id. 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) the contraband is in plain
view; and (6) the location of the contraband is in close proximity to items
owned by the defendant. Id.
[12] Here, Detective Brimer testified that when officers arrived at the variety store
that Tibbs was standing in the customer area, while Mason was standing in the
employee area, which had a plexiglass barrier separating the two areas. After
taking Mason and Tibbs into custody, officers on the Metro Task Force
searched the premises and found in plain view a jar of marijuana2, a bag of
marijuana, two digital scales with marijuana residue, and a pill bottle
containing what was later determined to be Oxycodone and Xanax. Mason was
standing next to the table with the jar of marijuana on it and the bag of
2
The substances presumed to be marijuana were tested by forensic chemist Linda McCready (“McCready”)
at the Marion County crime lab. McCready determined that marijuana was present with a weight of 68.12
grams.
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016 Page 6 of 10
marijuana underneath it. Further, Mason’s wallet was discovered on the table
next to the marijuana and the scale.
[13] Based on these facts and circumstances, Mason did not have exclusive control
of the premises, so the jury was required to consider the additional factors that
indicate Mason’s knowledge of the presence of the marijuana and his ability to
control it. Mason did not make incriminating statements, flee or make furtive
gestures, and was not in a drug manufacturing setting; however, the marijuana
was in plain view, Mason was standing right next to the table that contained the
marijuana, and Mason’s wallet was found on the table next to the marijuana
and scale. Based on this evidence, it was reasonable for a jury to conclude that
Mason possessed marijuana with the intent to deliver.
[14] The jury has discretion to weigh the evidence presented. We must respect this
discretion. See McHenry, 820 N.E.2d at 126. Therefore, we conclude that the
State presented sufficient evidence to support Mason’s Class D felony dealing in
marijuana conviction.
II. Double Jeopardy
[15] Mason also argues that the trial court erred in merging his Class D felony
dealing in marijuana and Class D felony possession of marijuana after entering
conviction on both charges. Specifically, Mason contends that this resulted in a
double jeopardy violation. A double jeopardy violation occurs when judgments
of conviction are entered for the same criminal act and cannot be remedied by
the “practical effect” of concurrent sentences by merger after conviction has
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016 Page 7 of 10
been entered. West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014). A trial
court’s act of merging, without also vacating the conviction, is not sufficient to
cure a double jeopardy violation. Id.
[16] Here, in the trial court’s order of judgment and conviction of sentence, it noted
that Mason was guilty of both Class D felony dealing in marijuana and
possession of marijuana and entered conviction on both counts before merging
the possession of marijuana conviction into the dealing in marijuana
conviction. Appellant’s App. pp. 88-93. Based on these circumstances, we
conclude that the trial court entered judgment on both convictions, and merger
was insufficient to remedy this double jeopardy violation. Therefore, we
remand this case to the trial court with instructions that it vacate the Class D
felony possession of marijuana conviction. See West, 22 N.E.3d at 875.
III. Public Defender Fee
[17] Further, Mason contends that the trial court erred in imposing a supplemental
public defender fee in its sentencing order. Sentencing decisions include
decisions to impose fees and costs. Johnson v. State, 27 N.E.3d 793, 794 (Ind. Ct.
App. 2015). We review a trial court’s sentencing decision for an abuse of
discretion. Powell v. State, 769 N.E.2d 1128, 1134 (Ind. 2002). An abuse of
discretion occurs when the sentencing decision is “clearly against the logic and
effect of the facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom.” McElroy v. State, 865
N.E.2d 584, 588 (Ind. 2007).
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016 Page 8 of 10
[18] During the sentencing hearing, the trial court noted that it was finding Mason
indigent as to a public defender fee, a fine, and court costs. Tr. p. 320. The same
finding was recorded in the CCS, the abstract of judgment, and the order of
commitment to community corrections. Appellant’s App. pp. 15-16, 19, 92.
However, in the court’s order of judgment of conviction and sentence, the court
checked the box indicating that Mason owed a public defender fee but also
noted that he was indigent. Appellant’s App. pp. 90, 92. In addition, the court
imposed a $200 supplemental public defender fee in its written sentencing
order. Appellant’s App. p. 21.
[19] The approach employed by Indiana appellate courts in reviewing sentences in
non-capital cases is to examine both the written and oral sentencing statements
to discern the findings of the trial court. McElroy, 865 N.E.2d at 589. Rather
than presuming the superior accuracy of the oral statement, we examine it
alongside the written sentencing statement to assess the conclusions of the trial
court. Id. We have the option of crediting the statement that accurately
pronounces the sentence or remanding for resentencing. Id. (citing Wiley v.
State, 712 N.E.2d 434, 446 n. 8 (Ind. 1999) (“[T]he trial court issued its written
sentencing order that was consistent with the Abstract of Judgment, but at odds
with the oral pronouncement at the sentencing hearing. . . Based on the
unambiguous nature of the trial court's oral sentencing pronouncement, we
conclude that the Abstract of Judgment and Sentencing Order contain clerical
errors and remand this case for correction of those errors.”))
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016 Page 9 of 10
[20] Like our supreme court concluded in Wiley, we conclude that because the trial
indicated at the sentencing hearing that Mason would be found indigent as to a
public defender, fines, and court costs but then imposed the public defender fee
on the order of conviction and sentence and the sentencing order, that clerical
errors exist on the sentencing order that need to be corrected. Therefore, we
remand this case to the trial court with instructions to clarify whether Mason is
indigent or responsible to pay the supplemental public defender fee.
Conclusion
[21] The State presented sufficient evidence to support Mason’s Class D felony
dealing in marijuana conviction. However, the trial court erred by merging
Mason’s Class D felony dealing in marijuana and possession of marijuana
convictions and in finding him both indigent and requiring him to pay the
public defender fee. Therefore, we remand this case to the trial court with
instructions to correct the sentencing order by vacating Mason’s Class D felony
possession of marijuana conviction and to clarify whether Mason is indigent or
responsible to pay the supplement public defender fee.
[22] Affirmed in part, reversed in part, and remanded for proceedings consistent
with this opinion.
Vaidik, C.J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2016 | July 18, 2016 Page 10 of 10