Johnson v. State

• Decision Date: 29 December 1995
• Docket Number: No. 49A02-9409-CR-561,49A02-9409-CR-561
• Citation: 659 N.E.2d 242
• Parties: Timothy JOHNSON, Appellant (Defendant), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 242

659 N.E.2d 242

Timothy JOHNSON, Appellant (Defendant), v. STATE of Indiana, Appellee.

No. 49A02-9409-CR-561.

Court of Appeals of Indiana.

Dec. 29, 1995.

Kenneth T. Roberts, Roberts & Bishop, Indianapolis, for appellant.

Pamela Carter, Attorney General, Louis E. Ransdell, Deputy Attorney General, Office of the Attorney General, Indianapolis, for appellee.

OPINION

SULLIVAN, Judge.

Following a bench trial, Appellant Timothy Johnson (Johnson) was convicted of dealing in cocaine, a Class B felony ¹ and possession of cocaine, a Class D felony. ² He argues on appeal that the evidence adduced at trial was insufficient to support the convictions. We affirm the trial court with respect to the issue of sufficiency of the evidence but remand with instructions to vacate the conviction for possession.

Stated most favorably to the judgment, the facts reveal that on October 19, 1991, Johnson drove to the Our Place Lounge near 16th and Alabama streets for the purpose of selling one-half ounce of cocaine to one Donald Cummins for five hundred dollars. Johnson and Cummins had first met approximately one month earlier, and at that time Johnson had given his pager number to Cummins, so that Cummins could call if he ever wanted to buy cocaine from Johnson. The October 19 meeting had been initiated by a call from Cummins to Johnson at that number. Johnson, however, was unaware that Cummins was a long-time paid informant for the Indianapolis Police Department (IPD), and that Cummins had initiated the meeting at the direction of IPD Detective Thomas Tudor for the purpose of setting up a controlled buy.

With IPD officers observing from a distance, Cummins, Detective Tudor and IPD Detective Richard Kenney arrived at the meeting place in an undercover car. They parked in a nearby lot and waited for Johnson to arrive. When Johnson drove by, accompanied in the passenger seat by his brother, Cummins exited the undercover car and began walking toward Johnson's car. Detectives Tudor and Kenney stayed behind in the undercover car. Upon seeing Cummins walking toward them, both Johnson and his brother waved to Cummins, who then approached and got into the back seat of Johnson's car. In Johnson's car, a sale of twenty dollars worth of cocaine was consummated. During the sale, Johnson produced a bag of cocaine from under the driver's seat, while Johnson's brother provided wrapping for the cocaine. Johnson then exchanged a small amount of the cocaine with Cummins for twenty dollars. Cummins returned to the undercover car shortly after the transaction was completed. After seeing the bag and being told by Cummins that a larger amount of cocaine was in Johnson's car, Tudor instructed the other officers to go to Johnson's car, arrest the occupants, and secure the car. A search of Johnson's car on the scene revealed a bag of cocaine in the car's ashtray. ³ No cocaine or any other narcotics were found on Johnson's person.

Testifying on his own behalf, Johnson denied having ever met Cummins prior to October 19 and denied ever giving him a pager number or speaking with him prior to that date. Johnson testified that he had picked up his brother on the 19th with the intention of going bowling, but at his brother's request, they drove to the Our Place Lounge. Johnson testified that his brother had brought the cocaine and dealt it to Cummins, while Johnson did not participate in the exchange in any way. Johnson's brother did not testify at the trial.

Johnson argues that the state failed to prove every element of the offenses of dealing in cocaine ⁴ and possession of cocaine. ⁵ Specifically, he asserts that, because no cocaine was found on his person, and because the state's case was based largely on the testimony of a confidential informant, the evidence that he "knowingly" dealt or possessed cocaine was insufficient to sustain the conviction. We disagree.

The sufficiency of evidence necessary to sustain a conviction is governed by a well-settled standard and scope of review. We will not disturb the trial court's judgment of conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, without weighing evidence or assessing witness credibility, a reasonable trier of fact could find each element of the charged crime proven beyond a reasonable doubt. Hazzard v. State (1994) Ind., 642 N.E.2d 1368, 1369; Preston v. State (1994) Ind.App., 644 N.E.2d 585, 589.

In this case, there was substantial and probative evidence, as above recited, that Johnson actively participated in both the arrangement and execution of the transaction. Johnson's argument essentially invites us to reweigh evidence and re-evaluate credibility of witnesses. That, we will not and cannot do. The trial judge, as the trier of fact here, heard the conflicting testimony concerning Johnson's role in the October 19 transaction. As trier of fact, he was free to credit either version of the events, notwithstanding the fact that the State relied on the testimony of a confidential informant. See Haynes v. State (1982) Ind., 431 N.E.2d 83, 85 (conviction in a drug case may be sustained upon the testimony of a confidential informant alone); Simmons v. State (1992) Ind.App., 585 N.E.2d 1341, 1343 (same).

Johnson argues finally that the evidence of possession is insufficient because the cocaine was ultimately found in the ashtray, as opposed to on Johnson's person. This argument is without merit. Possession of narcotics found within a car may be imputed to the driver of the car. See Woods v. State (1994) Ind.App., 640 N.E.2d 1089, 1091 (conviction of driver for possession upheld where cocaine found under driver's seat and not on driver's person). Here, the bag of cocaine was found in the front ashtray between the driver and passenger seats, which is obviously an area easily accessible to Johnson. Further, as stated above, there was direct testimony that Johnson knew about and actually handled the cocaine during the transaction. From this, the trial judge could easily conclude that Johnson possessed the cocaine.

There was ample evidence to support Johnson's convictions for both dealing in cocaine and possession of cocaine. As to these issues, we affirm the judgment of the trial court.

We raise sua sponte, however, the issue of whether Johnson could be convicted for both dealing and possession in the instant case. ⁶ Possession of a narcotic drug is an inherently included lesser offense of dealing that drug, and a defendant generally may not be convicted and sentenced separately for dealing and possessing the same drug. Mason v. State (1989) Ind., 532 N.E.2d 1169, 1172, cert. denied, 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428; Abron v. State (1992) Ind.App., 591 N.E.2d 634, 636, trans. denied. However, our Supreme Court has indicated that separate convictions for dealing and possession are sustainable when the defendant deals a portion of a drug and retains the rest, if the dealing and possession charges are specifically based only on the respective quantities. Collins v. State (1988) Ind., 520 N.E.2d 1258, 1261.

In Collins, the defendant agreed to sell two grams of methamphetamine to an undercover officer. The defendant gave the officer a container with three grams worth of 1/4 gram packets, and the officer selected two grams worth of the drug and returned the rest, along with payment, to the defendant. The defendant was convicted of both dealing and possession, and he argued on appeal that he could not be convicted and sentenced for both the greater and lesser charge. In response, the State argued that because the defendant sold a portion of the methamphetamine and retained the rest, separate convictions were permissible. Noting that, "[t]his would seem to be a good argument if that is what the State's case was based on", our Supreme Court searched the record for evidence that the State had adequately specified that the separate quantities of methamphetamine formed the basis of the separate convictions. 520 N.E.2d at 1261. Finding none, however, the Court concluded: "[i]t...