Anthony Arnell Best v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 20 2016, 6:32 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Gregory F. Zoeller
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Arnell Best, December 20, 2016
Appellant-Defendant, Court of Appeals Case No.
45A03-1602-CR-447
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G01-1503-F4-8
May, Judge.
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[1] Anthony Arnell Best appeals his conviction of Level 4 felony dealing in
cocaine. 1 Best argues there was insufficient evidence to prove his intent to deal
beyond a reasonable doubt. We affirm.
Facts and Procedural History
[2] On March 5, 2015, Lieutenant Ron Pineda of the Gary Police Department
received a dispatch of a residential break-in in progress. As Lieutenant Pineda
neared the location of the reported break-in, he noticed a man, later identified
as Best, walking down the street. Upon arrival at the residence, Lieutenant
Pineda and another responding officer, Corporal Javier Garza, gathered
information from the victim. The man Lieutenant Pineda had seen walking
down the street matched the description of the perpetrator, so Lieutenant
Pineda and Corporal Garza decided to look for him.
[3] Within two and a half minutes, Lieutenant Pineda found Best. Lieutenant
Pineda asked Best his name, and Best gave a fake name, “Robert Best.” (Tr. at
45.) Shortly thereafter, Corporal Garza arrived where Lieutenant Pineda had
found Best. Corporal Garza knew Best from prior contact and he asked Best
for his name. Best again provided the fake name “Robert Best.” (Id. at 60.)
Corporal Garza questioned Best about whether his name was not actually
1
Ind. Code § 35-48-4-1(a)(2) (2014) (defining possession with intent to deliver as a Level 5 felony); Ind. Code
§ 35-48-4-1(c)(1) (2014) (elevating crime to a Level 4 felony if the amount of drug possessed is between one
and five grams).
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“Anthony,” (id.), and Best then admitted that it was. Corporal Garza knew
Best had an active warrant, and he confirmed that fact with the Gary Police
Department.
[4] Corporal Garza arrested Best and patted him down to check for weapons before
placing him in the police car. While at booking, Corporal Garza asked Best to
empty his pockets. Best produced $259 and several other miscellaneous items.
Corporal Garza then thoroughly searched Best and found drugs in the small
pocket of Best’s jeans. Specifically, he found a clear plastic bag tied in a knot
with nineteen smaller bags in it. The nineteen small bags were individually
knotted closed, and each contained an “off white rock-like substance.” (Id. at
65). The substance tested positive for cocaine. The cocaine weighed a total of
4.36 grams. The street value of the drugs was between $190 and $380.
[5] The State charged Best with Level 4 felony dealing in cocaine. A jury found
Best guilty as charged. The trial court imposed a ten year executed sentence.
Discussion and Decision
[6] When dealing with an insufficient evidence allegation, “we neither reweigh the
evidence nor judge the credibility of witnesses.” Davis v. State, 813 N.E.2d
1176, 1178 (Ind. 2004). “[A]ppellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict.” McHenry v. State,
820 N.E.2d 124, 126 (Ind. 2005). A reviewing court will reverse a conviction if
“no reasonable fact-finder could find the elements of the crime proven beyond a
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reasonable doubt.” Drane v. State, 867 N.E.2d 144, 146-147 (Ind. 2007)
(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).
[7] The dealing in cocaine charge alleged Best “did possess with the intent to
deliver cocaine.” (App. Vol. II at 8.) “A person engages in conduct
‘intentionally’ if, when he engages in the conduct, it is his conscious objective to
do so.” Ind. Code § 35-41-2-2(a). In determining whether intent exists, a fact-
finder “must resort to reasonable inferences based upon examination of the
surrounding circumstances.” Mitchell v. State, 557 N.E.2d 660, 664 (Ind. 1990).
However, our legislature has provided that a person who possesses less than 28
grams of a drug may be convicted for possession with intent to deliver “only if
there is evidence in addition to the weight of the drug that the person intended
to manufacture, finance the manufacture of, deliver, or finance the delivery of
the drug.” Ind. Code § 35-48-4-1(b) (2014).
[8] Best alleges the State relied only on evidence of the weight of the cocaine he
possessed to convict him of intent to deliver cocaine, and he analogizes his case
to Johnson v. State, 594 N.E.2d 817 (Ind. Ct. App. 1992). In Johnson, the State
relied upon the amount of cocaine found in Johnson’s coat, without other
supporting evidence, to convict Johnson. Id. at 818-820. On appeal, we
reversed Johnson’s conviction because there was insufficient evidence he
intended to deliver to someone else, rather than use himself, the 1.76 grams of
cocaine he possessed. Id. at 819-820. Notably, the testimony at Johnson’s trial
included an officer conceding Johnson possessed less than some cocaine users
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consume in a day and multiple witnesses confirmed Johnson’s “frequent drug
use.” Id. at 819.
[9] The facts and circumstances of Best’s conviction are distinguishable from
Johnson. Best possessed not five, but nineteen individual packages of cocaine,
weighing 4.36 grams in total, which is nearly two and a half times what
Johnson possessed. Best had the nineteen individual bags in another clear bag,
which a police officer testified would be unusual for a person who possessed
cocaine for person use. When police encountered Best, he was not at a table
preparing to ingest cocaine, as was Johnson. There was no testimony Best
regularly consumed the crack cocaine he possessed; nor did he possess any
paraphernalia one might use to consume crack cocaine. Finally, while Johnson
had no cash on him, Best possessed $259 in cash when arrested. The facts here
are distinguishable from Johnson and provide the additional circumstances
necessary to infer intent to deliver under Ind. Code § 35-48-4-1(b) (2014). See
Davis v. State, 863 N.E.2d 1218, 1221-22 (Ind. Ct. App. 2007) (distinguishing
Johnson because Davis was not a drug user, Davis had a clear knotted baggie
that contained twelve smaller baggies of rock-like cocaine, and Davis appeared
to be one of three individuals working together at a curbside drug business),
trans. denied.
Conclusion
[10] The State presented sufficient evidence Best intended to deliver cocaine.
Accordingly, we affirm.
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[11] Affirmed.
Kirsch, J., and Crone, J., concur.
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