Dean E. Overholser v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any 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:
J. DAVID KECKLEY GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
FILED
Indianapolis, Indiana
May 17 2012, 9:43 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
DEAN E. OVERHOLSER, )
)
Appellant, )
)
vs. ) No. 71A04-1108-CR-436
)
STATE OF INDIANA, )
)
Appellee. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jane Woodward Miller, Judge
Cause No. 71D01-1008-FD-823
May 17, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Dean E. Overholser (“Overholser”) appeals his conviction for Class D felony
possession of marijuana by cultivation and argues that the State presented insufficient
evidence to support his conviction. We affirm.
Facts and Procedural History
On July 21, 2010, Indiana State Police Officer Brian Hoffman (“Officer
Hoffman”) was riding in a helicopter attempting to discover outdoor marijuana growing
operations in St. Joseph County when he spotted four plots of marijuana plants growing
near Osborn Road. Thereafter, on July 29, 2010, Officer Hoffman went to the location of
the marijuana plants, which was in a densely wooded area. Officer Hoffman observed
that several items apparently used to cultivate the marijuana, including a bucket, jugs of
water, a shovel, and wire fencing, had been left in the area. Officer Hoffman also noticed
rock wool and potting soil around the base of the plants, which indicated that the plants
had been started elsewhere before being re-planted in the woods. Before leaving the area,
Officer Hoffman set up motion-sensor surveillance equipment with the intention of
capturing a suspect on film.
On August 4, 2010, Officer Hoffman returned to the area to check the surveillance
equipment. The motion sensor had been set off ten to fifteen times, and the camera had
captured a video segment showing a man walking through the marijuana plants. Officer
Hoffman also noticed that the cultivation tools he had previously observed in the area had
been moved. Officer Hoffman then removed the marijuana plants and surveillance
equipment.
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Because tire tracks leading to the marijuana plots came from the south, Officer
Hoffman visited the nearest residence to the south of the marijuana plots. Officer
Hoffman spoke with the owner of the residence, Kurt Coolman (“Coolman”), and
determined that he did not match the description of the man shown in the video. Officer
Hoffman also concluded that Coolman could not have been the man in the video because
he had serious injuries to his legs and could not walk well. Coolman consented to a
search of his property, and Officer Hoffman found nothing connecting Coolman to the
marijuana plots. But when Officer Hoffman described the man shown in the video,
Coolman identified the man as Overholser. Coolman and Overholser were friends, and
Overholser helped Coolman maintain his property. Overholser had “complete access” to
Coolman’s property and lived at Coolman’s residence “intermittently.” Tr. pp. 134, 138.
Officer Hoffman attempted to locate Overholser, but he was initially unable to do so.
Approximately thirty days after Officer Hoffman spoke with Coolman, Coolman
had a conversation with Overholser about the marijuana. Overholser told Coolman that
the marijuana plots were not located on Coolman’s property. Overholser also claimed
that he was only shown on the surveillance video for “five seconds” and stated “I’ve done
my homework, and they can’t prove cultivating[.]” Tr. pp. 136, 137.
The State charged Overholser with Class D felony possession of marijuana by
cultivation. A jury trial was held on June 9, 2011, at which Officer Hoffman and
Coolman testified for the State. Overholser also testified and admitted to being the
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individual shown in the video, but denied cultivating the marijuana. At the conclusion of
the evidence, Overholser was found guilty as charged. Overholser now appeals.
Discussion and Decision
Overholser argues that the State presented insufficient evidence to support his
conviction for Class D felony possession of marijuana by cultivation. 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 to be drawn 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, then the
verdict will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct.
App. 2008). It is not necessary 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 verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
Accordingly, the question on appeal is whether the inferences supporting the verdict were
reasonable, not whether other, “more reasonable” inferences could have been made.
Thompson v. State, 804 N.E.2d 1146, 1150 (Ind. 2004). Because reaching alternative
inferences is the function of the trier of fact, we cannot reverse a conviction merely
because a different inference might plausibly be drawn from the evidence. Id.Indiana Code section 35-48-4-11 (2004 & Supp. 2011) provides that:
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A person who:
(1) knowingly or intentionally possesses (pure or adulterated) marijuana,
hash oil, hashish, salvia, or a synthetic cannabinoid;
(2) knowingly or intentionally grows or cultivates marijuana; or
(3) knowing that marijuana is growing on the person’s premises, fails to
destroy the marijuana plants;
commits possession of marijuana, . . . a Class A misdemeanor. However,
the offense is a Class D felony if the amount involved is more than thirty
(30) grams of marijuana . . . .
Overholser was charged with Class D felony possession of marijuana by cultivation
under the second subsection of the statute. Accordingly, in order to support Overholser’s
conviction, the State was required to prove that Overholser knowingly or intentionally
grew or cultivated more than thirty grams of marijuana. See I.C. § 35-48-4-11;
Appellant’s App. p. 115. On appeal, Overholser argues that the State presented
insufficient evidence to prove that he was the person who cultivated the 604 grams of
marijuana found growing near Coolman’s property. We disagree.
After Officer Hoffman discovered the marijuana plots, he installed motion-sensor
surveillance equipment with the intention of capturing a suspect on film. During the
weeklong period that the camera was in place, Overholser was the only person caught on
camera walking in the area. The marijuana plants were located in a densely wooded area
where people were unlikely to go, giving rise to an inference that Overholser had not
simply wandered into the area while on a walk. Moreover, tire tracks near the plots led
toward Coolman’s property and a path from Coolman’s property provided the most direct
access to the plots. However, Coolman was not shown in the video and had difficulty
walking due to injuries. Overholser, on the other hand, was apparently able-bodied and
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had unlimited access to Coolman’s property. Additionally, when Officer Hoffman
returned to the area of the marijuana plots to check the surveillance footage, he noticed
that the items he had previously seen in the area had been moved, giving rise to an
inference that the tools had been used during the time that the camera was in place. And
Overholser made incriminating statements to Coolman; specifically, he told Coolman that
the marijuana was not located on his property and stated “I’ve done my homework, and
they can’t prove cultivating[.]” Tr. pp. 136, 137. Based on this evidence as a whole, the
jury could reasonably infer that Overholser was the person who had cultivated the
marijuana plots located near Coolman’s property.1 Overholser’s arguments to the
contrary are simply requests to reweigh the evidence and judge the credibility of
witnesses, which we will not do on appeal.
Relying on Britt v. State, 810 N.E.2d 1077 (Ind. Ct. App. 2004) and Mudd v.
State, 483 N.E.2d 782 (Ind. Ct. App. 1985), Overholser also appears to suggest that in
order to support his conviction for possession of marijuana by cultivation, the State was
also required to present additional evidence establishing that Overholser had actual or
constructive possession of the marijuana apart from his cultivation thereof. Overholser is
incorrect. The plain language of the statute makes it clear that one who cultivates
1
On appeal, Overholser asserts that the circumstantial evidence presented by the State was insufficient to support
his conviction because it was not wholly inconsistent with any reasonable theory of Overholser’s innocence.
Although this is the proper standard at trial, and the jury was therefore properly instructed that “circumstantial
evidence alone will not justify a finding of guilty unless the circumstances are entirely consistent with the accused’s
guilt, wholly inconsistent with any reasonable theory of the accused’s innocence, and are so convincing as to
exclude a reasonable doubt of the accused’s guilt,” Appellant’s App. p. 62, we apply a less stringent standard on
appeal. See Myers v. State, 532 N.E.2d 1158, 1159 (Ind. 1989). On appeal, it is not necessary 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 verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). Because we conclude
such an inference can be reasonably drawn, we must affirm.
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marijuana by definition possesses it. See Ind. Code § 35-48-4-11(2) (2004) (providing
that a person who knowingly or intentionally cultivates marijuana commits possession of
marijuana).
Moreover, the cases Overholser cites on appeal are inapposite and, to the extent
that they could be considered applicable to the case at hand, they support the opposite
conclusion. In Britt, the defendant was convicted of two violations of Indiana Code
section 35-48-4-11 arising out of the police’s discovery of marijuana plants growing in
plastic buckets on his property. 810 N.E.2d at 1079. Specifically, under the first section
of the statute, Britt was convicted of Class D felony possession of marijuana weighing
more than thirty grams, and under the second subsection, Britt was convicted of Class D
felony possession of more than thirty grams of marijuana by cultivation. Id. In reaching
its conclusion that the two convictions violated double jeopardy protections because
possession of marijuana is a lesser-included offense of possession by cultivation, the
court reasoned that “[i]t is not possible to cultivate marijuana without having either actual
or constructive possession of the marijuana.” Id. at 1082. Similarly, in Mudd, this court
held that possession of marijuana with intent to manufacture was a lesser-included
offense of manufacturing marijuana because “one cannot knowingly or intentionally
manufacture the drug without also possessing it to that end.” 483 N.E.2d at 784.
Accordingly, this court has previously recognized that one who cultivates marijuana by
definition possesses it. Overholser’s argument that the State was required to establish
that Overholser possessed the marijuana separate and apart from his cultivation thereof is
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therefore meritless. Because the State presented sufficient evidence to allow the jury to
reasonably infer that Overholser cultivated the marijuana, his conviction for possession of
marijuana by cultivation must be affirmed.
Affirmed.
FRIEDLANDER, J., and RILEY, J., concur.
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