MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 26 2017, 9:14 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ernest P. Galos Curtis T. Hill, Jr.
Public Defender Attorney General
South Bend, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lewis Bradley, Jr., June 26, 2017
Appellant-Defendant, Court of Appeals Case No.
71A04-1611-CR-2658
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff 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 lesser-
included offense, the proper procedure is to vacate the conviction of the lesser-
included 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.
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Lewis Bradley, Jr. v. State of Indiana (mem. dec)
Combined Opinion