Opinion
23A-CR-2371
08-15-2024
Jason Bolding Thomas, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Cipriano Rodriguez Merrillville, Indiana Kay A. Beehler Terre Haute, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Jasper Superior Court The Honorable Russell Dean Bailey, Judge Trial Court Cause No. 37D01-2111-F2-917
ATTORNEYS FOR APPELLANT Cipriano Rodriguez Merrillville, Indiana Kay A. Beehler Terre Haute, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana.
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE.
Case Summary
[¶1] Following a jury trial, Jason Bolding Thomas was convicted of Level 2 felony dealing in methamphetamine, Level 3 felony dealing in cocaine, Level 6 felony maintaining a common nuisance, Level 6 felony neglect of dependent, and Class B misdemeanor possession of marijuana, and he was adjudicated as a habitual offender. Thomas raises the following two restated issues:
1. Did the trial court abuse its discretion when it refused his proposed jury instruction on accomplice liability?
2. Did the State present sufficient evidence to convict Thomas of dealing in methamphetamine and dealing in cocaine?
[¶2] We affirm.
Facts &Procedural History
[¶3] On November 8, 2021, Thomas and his girlfriend, Rebecca Neely, were at their one-bedroom apartment (the Apartment) in Rensselaer, along with their child who was around one year old. Sometime that day, Jacob Schwanke telephoned Neely and arranged to buy marijuana at the Apartment. Per Neely's instruction, Schwanke arrived at the Apartment and waited in his car. While waiting, Schwanke saw a man enter the Apartment. After about fifteen to twenty minutes, Schwanke was contacted and instructed to come inside, and, as he walked in, the other man was leaving.
[¶4] Schwanke went directly to the bedroom, where he noticed "a bunch of substances, white substance on the table, the end table," which "looked like somebody took a salt shaker and shaked (sic) it on top of the table." Transcript Vol. 2 at 178. He watched Neely open a safe and remove marijuana, which she gave to him. Inside the open safe, Schwanke saw two baggies containing a white powdery substance. During this time, Thomas was standing outside the bedroom on his cell phone, observing the transaction through the doorway.
[¶5] Also in the bedroom at that time was Thomas and Neely's young child, whom Schwanke saw place her hands on the white substance that was on the table. Concerned, Schwanke pointed this out to Neely and Thomas and told them that "the stuff laying on the table should be picked up so that the baby's not getting into it." Id. at 180.
[¶6] After completing the marijuana transaction, Schwanke "went straight to the police station" due to his concerns about the child. Id. at 179. Schwanke spoke to Detective Tara Hammond of the Rensselaer Police Department (RPD) and reported what he had seen while at the Apartment. Detective Hammond shared the information with Chief Matthew Anderson, who obtained and executed a search warrant for the apartment the following day.
[¶7] When Chief Anderson was about a block away from the Apartment, he saw Thomas standing outside and then turn and walk inside upon seeing Chief Anderson approaching. Officers announced themselves at the Apartment door and, when no one opened it after multiple commands, Chief Anderson entered through a window. Initially, he saw no occupants but, after repeated orders, Thomas and Neely exited the bedroom, along with the child. Thomas and Neely were arrested, and DCS case manager Lynn Stanek arrived on the scene and the child was placed with a family member.
[¶8] During the search of the bedroom, officers found a small safe on a tv table. Inside the safe was a digital scale and a cylinder-shaped chewing gum container with 8.25 grams of marijuana in it. On or near the tv table were two notebook ledger pages with handwritten first names and numbers, and "a container of some type . . . made out of [black] duct tape" with dusty white powder residue that officers suspected was narcotics. Id. at 239. Officers also recovered 40.65 grams of methamphetamine from a ceramic jar under the bed and .92 grams of cocaine from a glass container on a low shelf in the bedroom closet. Also in the closet was a baby formula container with cash in it, mostly in small bills, with the largest being a fifty-dollar bill, and other cash was found in the Apartment in a change jar and on Thomas and Neely, for a total of $1053. No paraphernalia used to ingest drugs was found in the apartment.
[¶9] During the search, officers noticed that a baby monitor video system was being used as an external security system, with the camera positioned outside and above the front door, facing down, and the monitor in the kitchen/living room area of the apartment. When leaving the apartment, Captain Richard Trail of the Jasper County Sheriff's Department, who was assisting on the scene, found a small purse on the ground in the area where Neely and Thomas had passed when being transported from the Apartment. Police body camera footage showed that the purse was not there when Chief Anderson first arrived at the Apartment. Inside the purse were two plastic baggies, one inside the other, with the inner bag containing white powdery substance determined to be 8.93 grams of cocaine.
[¶10] On November 10, 2021, the State charged Thomas with: Level 2 felony dealing in methamphetamine based on possession with intent to deliver; Level 2 felony dealing in cocaine based on possession with intent to deliver; Level 3 felony possession of methamphetamine weighing at least 28 grams; Level 4 felony possession of cocaine weighing at least 10 grams; Level 6 felony maintaining a common nuisance; Level 6 felony neglect of a dependent; and Class B misdemeanor possession of marijuana. A few weeks later, the State filed a notice of intent to seek a habitual offender enhancement. In April 2023, the State amended the dealing in cocaine charge to a Level 3 felony and the possession of cocaine charge to a Level 5 felony, based on a lesser weight of cocaine. A bifurcated two-day jury trial was held in August 2023.
[¶11] Among those testifying for the State was Captain Trail, who had over twenty years of experience with the Jasper County Sheriff's Department and, before becoming Captain, was assigned to the department's federal DEA Task Force and, prior to that, was in charge of the county's drug unit. Captain Trail testified that items commonly seen when a person is dealing drugs, and not just using, include higher weight/bulk quantity of narcotics, digital scales, packaging material such as baggies and duct tape, ledgers used to keep running totals of money owed, and cash in small denominations. He described that methamphetamine is often transported in baggies that are wrapped with duct tape. Captain Trail stated that dealers often keep drugs in a safe and that the amount of foot traffic to a residence is also a consideration, as is the use of surveillance cameras. Captain Trail testified about the hierarchy of dealers, with the lowest being street level dealers, who buy and sell enough to support their own habit, and the next level up being regional dealers, who are "in the game [] to make a profit." Id. at 157.
[¶12] Chief Anderson testified that a typical user of methamphetamine or cocaine might have an "eight ball" or 3.5 grams, which he opined would be "on the high end of a user amount." Id. at 222-23. He estimated that, in the local community, a dealer might have 10 or 15 grams, and the most methamphetamine he had ever encountered was 50 grams, which he opined was "a very unusual amount for us." Id. at 224. Chief Anderson opined that a person possessing 30 grams of methamphetamine was not a streel level dealer. Chief Anderson also noted that typically users are found to have paraphernalia, such as pipes, needles, or syringes.
[¶13] Kim Anderson, a forensic scientist with the Indiana State Police Laboratory, testified about DNA testing performed on the two plastic baggies found in the small purse. Testing of the outer plastic baggie indicated a DNA profile mixture of two individuals that was 1.6 trillion times more likely to have originated from Thomas and an unknown individual than from two unknown individuals, which Anderson explained provided "very strong support" for the inclusion of Thomas as a contributor. Transcript Vol. 3 at 112. Testing of the inside baggie revealed a DNA profile of a mixture of three individuals and was 8,500 times more likely to have originated from Thomas and two unknown individuals than from three unknown individuals, which provided "moderate support" for the inclusion of Thomas as a contributor. Id.
[¶14] During discussion of final jury instructions, Thomas tendered Proposed Instruction No. 1, which provided:
The mere presence of a person where a crime is being committed, even when coupled with knowledge by the person that a crime is being committed, or the mere acquiescence by a person in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish aiding, inducing or causing a crime.
You must not convict the accused of aiding, inducing, or causing an offense unless you find beyond a reasonable doubt that the accused knowingly, intentionally, or recklessly participated in some conduct of an affirmative nature.Appendix Vol. II at 245. The State objected, asserting that its theory and the evidence presented at trial concerned constructive possession, not accomplice liability, such that the proposed instruction was "totally irrelevant" and "inapplicable" and would confuse the jury. Transcript Vol. 3 at 143. Thomas maintained that Proposed Instruction No. 1 should be given because it was both a correct statement of the law and not covered by another instruction. After considering Proposed Instruction No. 1 "in totality with all of the instructions," including the elements of the charges as defined for the jury, the trial court refused it, explaining that, even if Proposed Instruction No. 1 was an accurate statement of law, it "would confuse the jury" concerning the elements of possession and intent to deliver. Id. at 145.
[¶15] Thomas was convicted of all counts as charged and was found to be a habitual offender. The court vacated the two possession charges and entered judgment of conviction for dealing methamphetamine, dealing cocaine, maintaining a common nuisance, neglect of a dependent, and possession of marijuana. Thereafter, Thomas was sentenced to twenty-two years for dealing methamphetamine, with the sentences for the other convictions to run concurrently therewith. The trial court imposed a twelve-year habitual offender enhancement on dealing in methamphetamine, for an aggregate sentence of thirty-four years.
[¶16] Thomas now appeals. Additional facts will be provided as necessary.
Discussion &Decision
1. Jury Instructions
[¶17] Thomas asserts that the trial court abused its discretion when it refused Proposed Instruction No. 1 and maintains that such denied him a fair trial requiring reversal of his cocaine and methamphetamine convictions. The purpose of a jury instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Dill v. State, 741 N.E.2d 1230, 1232 (Ind 2001) (quotations omitted). We review a trial court's manner of instructing the jury for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 267 (Ind. 2023). Jury instructions are to be considered as a whole and in reference to each other, and we will not reverse the trial court's decision for an abuse of discretion unless the instructions as a whole mislead the jury as to the law of the case. Vaughn v. State, 13 N.E.3d 873, 884 (Ind.Ct.App. 2014), trans. denied. A defendant is entitled to reversal if he affirmatively demonstrates that the instructional error prejudiced his substantial rights. Id.
[¶18] In reviewing a trial court's decision to give or refuse tendered instructions, we consider (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given. Gravens v. State, 836 N.E.2d 490, 493 (Ind.Ct.App. 2005), trans. denied. A trial court acts within its discretion if it denies a request that would likely confuse the jury. Owen, 210 N.E.3d at 268.
[¶19] Thomas's argument is that because his "possessory interest . . . in the premises is a threshold element" of the possession and dealing charges, the jury should have been instructed, through Proposed Instruction No. 1., "that [Thomas]'s mere presence in the [A]partment" when the search warrant was executed "did not necessarily mean that he had possession of the premises, or by extension, [] any intent to deal narcotics." Appellant's Brief at 13. He contends that refusal to give the instruction was an abuse of discretion and denied him a fair trial.
[¶20] We do not disagree with Thomas that (1) the State needed to prove that he possessed the drugs and (2) mere presence where drugs are found is insufficient under Indiana law to prove possession. However, contrary to his argument, Proposed Instruction No. 1 does not instruct the jury that a person's "mere presence" at a location is insufficient to prove possession of that premises and drugs found there. Id. Indeed, Proposed Instruction No. 1 does not state anything about possession. Rather, that instruction explained that to convict a person of aiding, inducing, or causing an offense, the accused must be found to have "knowingly, intentionally, or recklessly participated in some conduct of an affirmative nature" and that the accused's "mere presence" at the location where a crime was being committed was not enough. Appendix Vol. II at 245. Here, the State did not allege - nor was its theory at trial - that Thomas should be found guilty based on accomplice liability. The trial court found, and we agree, that introducing an instruction about accomplice liability to the jury would have created the possibility of juror confusion.
[¶21] Moreover, the gist of Thomas's claim is that, without Proposed Instruction No. 1, the jury could have erroneously believed that his mere presence at the Apartment was enough to establish that he possessed the drugs there. However, Final Instruction No. 13 specifically instructed the jury about "possession":
The word "possess" means to own or to exert control over. The word "possession" can take on several different, but related, meanings.
There are two kinds of "possession" - actual possession and constructive possession. A person who knowingly has direct physical control of a thing at a given time is then in actual
possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it.
Possession may be sole or joint. If one person alone has actual or constructive possession of a thing, then possession is sole. If two or more persons share actual or constructive possession of a thing, then possession is joint.
Possession may be actual or constructive, and either alone or jointly with others.Id. at 230.
[¶22] Further, Final Instructions 6 and 8 informed the jury that Thomas must have knowingly or intentionally possessed the drugs, and Final Instruction 12 defined the terms knowingly and intentionally. Other final instructions informed the jury of the charges against Thomas, the elements of the offenses, and the State's burden to prove those elements.
[¶23] In sum, it is clear that the jury received instructions that possession required more than Thomas's mere presence. The trial court did not abuse its discretion in refusing Proposed Instruction No. 1.
2. Sufficiency
[¶24] Thomas challenges the sufficiency of the evidence to support the dealing in methamphetamine and dealing in cocaine convictions. When reviewing a claim of insufficient evidence, we consider only evidence that supports the verdict, and draw all reasonable inferences therefrom. Floyd v. State, 791 N.E.2d 206, 210 (Ind.Ct.App. 2003), trans. denied. We neither reweigh the evidence nor judge the credibility of witnesses. Id. We uphold a conviction if there is substantial evidence of probative value from which a jury could have found the defendant guilty beyond a reasonable doubt. Id. Circumstantial evidence alone is sufficient to sustain a conviction. Id. The evidence need not be so overwhelming as to overcome every reasonable hypothesis of innocence. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
[¶25] To convict Thomas of Level 2 felony dealing in methamphetamine, the State had to prove that he knowingly or intentionally possessed more than 10 grams of methamphetamine with the intent to deliver. See Ind. Code § 35-48-4-1.1(e)(1). To convict Thomas of Level 3 felony dealing in cocaine, the State was required to prove that he knowingly or intentionally possessed cocaine having a weight of at least 5 grams with the intent to deliver. See I.C. § 35-48-4-1(d)(1).
[¶26] Even if a defendant is not in actual possession of contraband, a defendant is in constructive possession of contraband if the State shows that the defendant has both (1) the intent to maintain dominion and control over the contraband; and (2) the capability to maintain dominion and control over the contraband. Monroe v. State, 899 N.E.2d 688, 692 (Ind.Ct.App. 2009). With respect to the latter prong, the law infers that a party in possession of a premises is capable of exercising dominion and control over all items on the premises. Id. Thus, proof of a possessory interest in the premises where contraband is found is adequate to show the capability to maintain dominion and control over that contraband. Id. This is so whether possession of the premises is exclusive or not. Id.
[¶27] Thomas's argument on appeal is that the State failed to prove that he constructively possessed the methamphetamine and cocaine. More specifically, Thomas acknowledges that the law infers that party in possession of the premises is capable of exercising dominion and control over all items on the premises but argues that there was no evidence that he had a possessory interest in the Apartment. Rather, he claims that, "at best," the evidence showed only that he was present in the Apartment the day the warrant was executed. Appellant's Brief at 10. We disagree.
[¶28] Schwanke testified that he had known Thomas for five to six years and Neely for over ten years and that he knew them to live together in the Apartment, where he had purchased marijuana on at least one prior occasion. DCS case manager Stanek likewise testified that Thomas and Neely lived together at the Apartment. Chief Anderson testified that, through his experience with the RPD, he had known Thomas for six years and Neely longer, and, based upon his encounters with each of them, he knew they had been "a couple for quite some time" and resided at that location. Transcript Vol. 3 at 20. While Thomas asserts that there was no proof that he was on the lease, this is a request to reweigh the evidence, which we cannot do. Floyd, 791 N.E.2d at 210. The record reflects sufficient evidence that Thomas had a possessory interest in the Apartment and, thus, had the capability to maintain dominion and control over the drugs found there.
[¶29] With respect to the "intent" prong, when a defendant's possession of the premises upon which contraband is found is not exclusive, as is the case here, the inference of intent to maintain dominion and control over the contraband must be supported by additional circumstances pointing to the defendant's knowledge of the nature of the contraband and its presence. Monroe, 899 N.E.2d at 692. The "additional circumstances" have been shown by various means: (1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the defendant's plain view, and (6) the mingling of the contraband with other items owned by the defendant. Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004).
[¶30] As to attempted flight or furtive gestures, Chief Anderson watched Thomas immediately enter the Apartment when he saw Chief Anderson approaching. Thomas then refused to answer the door when officers knocked and announced themselves. And once the officers were inside, Thomas did not exit the bedroom until officers made multiple commands for him to do so. As to proximity of the drugs to Thomas and its location in his plain view, the methamphetamine and cocaine were in the bedroom he shared with Neely and from which Thomas exited. Schwanke noticed a white powdery substance sprinkled on an end table in the room. And methamphetamine was found under the bed and cocaine was on a low shelf in the closet, thus intermingled with items in his bedroom. On these facts, the evidence was sufficient to show that Thomas had the intent to maintain dominion and control over the contraband. See Id. at 343 (recognizing that the "within defendant's plain view" circumstance applies where the defendant is physically present at or near the location where the contraband is found). Accordingly, the State presented sufficient evidence for a jury to find that Thomas constructively possessed the methamphetamine and the cocaine found in the bedroom.
[¶31] Although Thomas does not expressly contend that the State failed to present evidence of intent to deliver, he at one point states that "the only evidence of any 'dealing' of narcotics" was that of Neely selling marijuana to Schwanke. Appellant's Brief at 14. To the extent that Thomas is thereby contending that the State failed to prove an intent to deliver, he has waived that claim for failure to present cogent argument. Ind. Appellate Rule 46(A)(8).
[¶32] Waiver notwithstanding, we recognize that a presumption of intent to deliver arises if a defendant possesses twenty-eight grams or more of a narcotic drug. I.C. § 35-48-4-1(b)(2). Here, more than 40 grams of methamphetamine was recovered from under the bed. Moreover, we have recognized that possessing a large amount of a narcotic substance is circumstantial evidence of intent to deliver. Davis v. State, 791 N.E.2d 266, 270 (Ind.Ct.App. 2003), trans. denied. Indeed, "[t]he more narcotics a person possesses, the stronger the inference that he intended to deliver it and not consume it personally." Richardson v. State, 856 N.E.2d 1222, 1227 (Ind.Ct.App. 2006), trans. denied. The testimony of both Captain Trail and Chief Anderson indicated that the weights of methamphetamine and cocaine recovered in this case were well in excess of a typical user amount. Captain Trail also testified about other indicators of dealing - safes, ledgers, scales, duct-tape packaging, surveillance cameras, cash in smaller denominations, increased foot traffic to a location, and lack of paraphernalia used to ingest - all of which were present in this case.
[¶33] On this record, it was reasonable for the jury to infer that Thomas possessed the cocaine and methamphetamine with the intent to deliver those substances. Accordingly, the State presented sufficient evidence to convict Thomas of Level 2 felony dealing in methamphetamine and Level 3 felony dealing in cocaine.
[¶34] Judgment affirmed.
Bailey, J. and Mathias, J., concur.