Tyler Bishop Smiley v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION                                                            FILED
    Pursuant to Ind. Appellate Rule 65(D),                                    Nov 14 2017, 9:56 am
    this Memorandum Decision shall not be                                          CLERK
    Indiana Supreme Court
    regarded as precedent or cited before any                                     Court of Appeals
    and Tax Court
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
    Brooklyn, Indiana                                       Attorney General of Indiana
    Angela N. Sanchez
    Supervising Deputy Attorney
    General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Tyler Bishop Smiley,                                    November 14, 2017
    Appellant-Defendant,                                    Court of Appeals Case No.
    70A01-1706-CR-1394
    v.                                              Appeal from the Rush Superior
    Court
    State of Indiana,                                       The Honorable Brian D. Hill, Jr.,
    Appellee-Plaintiff                                      Judge
    Trial Court Cause No.
    70D01-1605-F5-386
    Altice, Judge.
    Case Summary
    Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017           Page 1 of 8
    [1]   Following a jury trial, Tyler Smiley was convicted of possession of
    methamphetamine as a Level 6 felony. On appeal, Smiley argues that the State
    presented insufficient evidence to support his conviction.
    [2]   We affirm.
    Facts & Procedural History
    [3]   The facts most favorable to the conviction follow. On September 25, 2015,
    undercover narcotics officer Alan Wombolt of the Rushville Police Department
    received information from a confidential informant (CI) that Dustin Messer was
    looking to sell methamphetamine.1 Officer Wombolt and the CI set up a
    controlled buy to purchase one gram of methamphetamine for $120 from
    Messer. The CI made arrangements for Officer Wombolt to meet Messer at a
    local Village Pantry. Prior to the controlled buy, Officer Wombolt made copies
    of the buy money and put on a listening device. Detective Alex Shaver also
    participated in the controlled buy by conducting surveillance from a vehicle
    positioned so that he could watch the transaction.
    [4]   Around 3:45 p.m., Officer Wombolt rode a bicycle to the Village Pantry, and
    when he arrived, he saw Messer standing outside. Officer Wombolt
    approached Messer and gave him $120. After Messer took the money, he told
    Officer Wombolt that he had to go to the silver car behind him “to get the meth
    1
    Officer Wombolt had previously dealt with Messer during a controlled buy of hydrocodone pills.
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    from his dude.” Transcript at 19. According to Messer, he did not have
    methamphetamine to sell, so he called Smiley, who agreed to meet him at the
    Village Pantry to give him methamphetamine.
    [5]   As Messer walked over to the silver vehicle, Officer Wombolt noted that there
    were three male individuals in the car, one of whom he recognized as Smiley,
    who was sitting in the front passenger seat. Detective Shaver also recognized
    Smiley as the front-seat passenger. Messer knew all three occupants of the car,
    although he testified that he expected to see only Smiley.
    [6]   Messer entered the vehicle from the rear passenger side. Messer testified that
    after he got into the car, Smiley, who was “kind of tripped out”, reached into
    the back of the car and tried to grab his chest to check for a wire. Transcript Vol.
    II at 61. Messer also testified that Smiley questioned him as to whether he had
    dealt with Officer Wombolt before. After Messer explained that he had prior
    involvement with Officer Wombolt, Messer gave the money he received from
    Officer Wombolt to the individual sitting in the back seat of the car. That
    individual then gave the methamphetamine to Messer.
    [7]   While Messer was in the car, Officer Wombolt observed the occupants of the
    vehicle turn to the center of the vehicle and engage in a conversation. A minute
    or so later, Messer exited the car, walked over to Officer Wombolt, and handed
    him a small, clear baggie that contained a “crystal-like rock substance” that was
    later determined to be methamphetamine. Transcript Vol. II at 21.
    Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017   Page 3 of 8
    [8]    On May 25, 2016, the State charged Smiley with dealing in methamphetamine
    as a Level 5 felony and possession of methamphetamine as a Level 6 felony. A
    jury trial was held on May 9, 2017, at the conclusion of which the jury found
    Smiley not guilty of dealing in methamphetamine but guilty of possession of
    methamphetamine. Smiley was sentenced to eighteen months, with one year to
    be served on home detention and six months of probation. Additional facts will
    be provided as necessary.
    Discussion & Decision
    [9]    Smiley argues that the State presented insufficient evidence to support his
    possession of methamphetamine conviction. In reviewing a challenge to the
    sufficiency of the evidence, we neither reweigh the evidence nor judge the
    credibility of witnesses. Atteberry v. State, 
    911 N.E.2d 601
    , 609 (Ind. Ct. App.
    2009). Instead, we consider only the evidence supporting the conviction and
    the reasonable inferences flowing therefrom. 
    Id. If there
    is substantial evidence
    of probative value from which a reasonable trier of fact could have drawn the
    conclusion that the defendant was guilty of the crime charged beyond a
    reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 
    891 N.E.2d 1131
    , 1137 (Ind. Ct. App. 2008).
    [10]   It is not necessary, however, that the evidence overcome every reasonable
    hypothesis of innocence; rather, the evidence is sufficient if an inference may
    reasonably be drawn from it to support the conviction. Drane v. State, 
    867 N.E.2d 144
    , 147 (Ind. 2007). “A verdict may be sustained based on
    Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017   Page 4 of 8
    circumstantial evidence alone if that circumstantial evidence supports a
    reasonable inference of guilt.” Maul v. State, 
    731 N.E.2d 438
    , 439 (Ind. 2000).
    Although presence at a crime scene alone is insufficient to sustain a conviction,
    presence combined with other facts and circumstances, including the
    defendant’s course of conduct before, during, and after the offense, may raise a
    reasonable inference of guilt. 
    Id. [11] Ind.
    Code § 35-48-4-6.1 provides that “[a] person who, without a valid
    prescription or order of a practitioner acting in the course of the practitioner’s
    professional practice, knowingly or intentionally possesses methamphetamine
    (pure or adulterated) commits possession of methamphetamine.” To prove
    these elements, the State is required to show that the defendant had either
    actual or constructive possession of the methamphetamine. On appeal, Smiley
    argues that the State failed to establish his constructive possession of the
    methamphetamine. The State argues that Smiley’s argument is misplaced
    because it “ignore[s] Smiley’s liability based on his role as an accomplice.”
    Appellee’s Brief at 10.
    [12]   Instead of trying to prove that Smiley constructively possessed
    methamphetamine, the State presented evidence to show that Smiley was guilty
    of the charged conduct based on accomplice liability. Indeed, upon the State’s
    request, the jury was instructed on accomplice liability. Under accomplice
    liability, an individual is guilty of an offense if he “knowingly or intentionally
    aids, induces, or causes another person to commit an offense.” Ind. Code § 35-
    41-2-4. Under this statute, an individual who aids another person in
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    committing a crime is as guilty as the actual perpetrator. Specht v. State, 
    838 N.E.2d 1081
    , 1093 (Ind. Ct. App. 2005), trans. denied. The statute does not set
    forth a separate crime, but merely provides a separate basis of liability for the
    crime that is charged. 
    Id. at 1092.
    Thus, a person can be charged as a principal
    and convicted as an accomplice. 
    Id. [13] Furthermore,
    a person can be convicted as an accomplice even if he did not
    participate in each and every element of the crime. 
    Id. at 1093.
    Our Supreme
    Court has identified four factors that can be considered by the fact-finder in
    determining whether a defendant aided another in the commission of a crime:
    (1) presence at the scene of the crime; (2) companionship with another engaged
    in a crime; (3) failure to oppose the commission of the crime; and (4) the course
    of conduct before, during, and after the occurrence of the crime. Wieland v.
    State, 
    736 N.E.2d 1198
    , 1202 (Ind. 2000).
    [14]   It is undisputed that Smiley was at the scene of the controlled buy. Officer
    Wombolt, Detective Shaver, and Messer all identified Smiley as the individual
    in the front passenger seat of the car that Messer entered to obtain the
    methamphetamine. The record also reveals that Messer and Smiley had known
    each other for years, and when Messer needed to obtain methamphetamine, he
    contacted Smiley and they agreed to meet at the Village Pantry so that Messer
    could obtain the methamphetamine to sell to Officer Wombolt. Smiley’s
    conduct of checking Messer for a wire and questioning Messer about previous
    interactions with Officer Wombolt before Messer handed over the money and
    obtained the methamphetamine from the backseat passenger lead to a
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    reasonable inference that Smiley was aware of what was taking place and took
    measures to keep from being caught. Thereafter, Smiley did nothing to oppose
    the exchange of money and methamphetamine between Messer and the
    backseat passenger.
    [15]   Even though Smiley did not participate in the exchange, Messer’s actual
    possession of methamphetamine would not have occurred but for Smiley’s
    involvement. As noted above, Messer did not have methamphetamine to sell to
    Officer Wombolt, so he contacted Smiley to obtain methamphetamine. Smiley
    showed up at the Village Pantry with two other individuals that Messer did not
    anticipate being with Smiley and one of those individuals gave Messer
    methamphetamine. This evidence and the reasonable inferences that can be
    drawn therefrom sufficiently prove that Smiley knowingly or intentionally
    aided, induced, or caused Messer to possess methamphetamine. 2 Cf. Schaaf v.
    State, 
    54 N.E.3d 1041
    , 1043-44 (Ind. Ct. App. 2016) (affirming a dealing
    conviction on the basis of accomplice liability where defendant, who did not
    participate in the transaction, was present at the scene, suggested the meeting
    2
    Contrary to Smiley’s argument in his reply brief, the jury’s not-guilty verdict on the dealing charge did not
    preclude his conviction as an accomplice on the possession charge. Although the verdicts may seem
    inconsistent, such claims are not subject to appellate review. See McWhorter v. State, 
    993 N.E.2d 1141
    , 1146
    (Ind. 2013). Instead, we tolerate inconsistent verdicts, acknowledging that they conceivably could be “‘due
    to a compromise among disagreeing jurors, or to expeditiously conclude a lengthy deliberation, or to avoid
    an all-or-nothing verdict, or for other reasons.’” 
    Id. (quoting Beattie
    v. State, 
    924 N.E.2d 643
    , 649 (Ind.
    2010)). Accordingly, the fact that the jury acquitted Smiley of the dealing charge is immaterial to the
    question of whether there was sufficient evidence to find him guilty of possession of methamphetamine on
    the basis of accomplice liability.
    Court of Appeals of Indiana | Memorandum Decision 70A01-1706-CR-1394 | November 14, 2017             Page 7 of 8
    place for the drug transaction, and sat calmly as the exchange occurred in his
    truck).
    [16]   Judgment affirmed.
    Baker, J. and Bailey, J., concur.
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