RILEY, Judge.
Appellant-Defendant, Dequan D. Branch (Branch), appeals his conviction for possession of cocaine within 1000 feet of a family housing complex and/or school property, a Class B felony, Ind. Code § 35-48-4-6(b)(2)(B).
We affirm.
Branch raises four issues on appeal, which we restate as follows:
At approximately 6 p.m. on July 29, 2009, Indianapolis Metropolitan Police Detective Chad Mann (Detective Mann), together with nine other officers, executed a search warrant at a home on North Windsor Street in Indianapolis, Indiana. The house was located 713 feet from an elementary school and 530 feet from a twenty-seven unit apartment complex. When no one responded to the officers' knocks at the rear door of the house, the officers forced the door open and entered directly into the kitchen of the residence. Upon entering, Detective Mann saw Branch standing in the kitchen and ordered him to the ground. Detective Mann then immediately entered the living room and noticed M.M. running toward the front door. When searching the residence, the officers found a digital scale, several boxes of plastic baggies, and a razor blade with suspected cocaine crumbs next to it. A small amount of suspected powder cocaine was visible on the scale.
At the time of his arrest, Branch had approximately $700 in cash on his person. Branch told the officers that the house did not belong to him, but to "a female friend of his," whose name he did not know. (Tr. p. 325). No female clothing or toiletries were found in the house. The only furniture in the house was in the living room and consisted of a couple of couches, a television, and a game console. The upstairs rooms were empty. The kitchen contained no pots or pans and the only food available was a couple of boxes of cereal, some dry-food goods, and condiments in the refrigerator.
On July 30, 2009, the State filed an Information charging Branch with Count I, possession of a narcotic drug within 1000 feet of a park, a Class B felony; Count II, possession of a narcotic drug and a firearm, a Class C felony; and Count III, possession of marijuana, a Class A misdemeanor. During ensuing plea negotiations, the State realized that Branch was not charged with possession of cocaine, but with other narcotics that were discovered during the search of the house. On January 15, 2010, the State dismissed all charges. On February 3, 2010, the State refiled the Information, charging Branch with Count I, possession of a narcotic drug within 1000 feet of a family housing complex and/or a school property, a Class B felony, I.C. § 35-48-4-6; Count II, possession of a narcotic drug and a firearm, a Class C felony, I.C. § 35-48-4-6; Count III, possession of cocaine within 1000 feet of a family housing complex and/or a school property, a Class B felony, I.C. § 35-48-4-6; Count IV, possession of cocaine and a firearm, a Class C felony, I.C. § 35-48-4-6; and Count V, possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11. On March 5, 2010, Branch filed a motion to dismiss these charges, alleging that the State's action constituted prosecutorial vindictiveness. On April 22, 2010, the trial court denied Branch's motion. On August 31, 2010 through September 1, 2010, a jury trial was conducted. At the close of the evidence, the jury found Branch guilty of possession of cocaine as a Class B felony and not guilty of the remaining charges. On September 20, 2010, during a sentencing hearing, the trial court sentenced Branch to ten years executed with six years suspended.
Branch now appeals. Additional facts will be provided as necessary.
Branch contends that the trial court erred in refusing to dismiss the State's second Information. Specifically, Branch alleges that the State's refiling of the charges was motivated by prosecutorial vindictiveness and prejudiced his rights because the original Information would not have resulted in his conviction.
The dismissal of an information pursuant to I.C. § 35-34-1-13 is not necessarily a bar to refiling. Once an information has been dismissed by the State under I.C. § 35-34-1-13, the State may refile an information against the defendant, subject to certain conditions. Davenport v. State, 689 N.E.2d 1226, 1229 (Ind. 1997), clarified on reh'g, 696 N.E.2d 870 (Ind. 1998). However, the State may not refile if doing so will prejudice the substantial rights of the defendant. Id. Speedy trial and jeopardy rights are two specific examples of substantial rights which cannot be prejudiced. Id. While we have not specifically defined what a substantial right is in other contexts, it is relatively clear what situations do not necessarily prejudice a defendant's substantial rights. Id. For example, the State does not necessarily prejudice a defendant's substantial rights if it dismisses the charge because it is not ready to prosecute and then refiles an information for the same offense. Id. The State does not necessarily prejudice a defendant's substantial rights by dismissing an information in order to avoid an adverse evidentiary ruling and then refiling an information for the same offense. Id. Furthermore, the State does not necessarily prejudice a defendant's substantial rights when, on the refiled information, it amends the original information but charges the same offense. Id. The defendant's substantial rights are not prejudiced in these situations primarily because the defendant can receive a fair trial on the same facts and employ the same defense in the second trial as in the first. Id.
On July 30, 2009, the State filed its original Information charging Branch with Count I, possession of a narcotic drug within 1000 feet of a park, a Class B felony; Count II, possession of a narcotic drug and a firearm, a Class C felony; and Count III, possession of marijuana, a Class A misdemeanor. On September 9, 2009, the State offered Branch a plea agreement, asking him to plead guilty to possession of cocaine, a Class B felony. It was not until later that the State realized that Branch was not charged with possession of cocaine, but with other narcotics that were discovered during the search of the house. Plea negotiations continued until October 31, 2009, when the State indicated it would accept Branch's counteroffer and Branch replied that he now no longer was interested in the plea. The State informed Branch that it intended to dismiss the charges and refile a new Information which would include the possession of cocaine charge. On January 15, 2010, six days before the scheduled jury trial, the State dismissed the charges.
Approximately three weeks later, on February 3, 2010, the State refiled an amended Information, charging Branch with Count I, possession of a narcotic drug within 1000 feet of a family housing complex and/or a school property, a Class B felony, I.C. § 35-48-4-6; Count II, possession of a narcotic drug and a firearm, a Class C felony, I.C. § 35-48-4-6; Count III, possession of cocaine within 1000 feet of a family housing complex and/or a school property, a Class B felony, I.C. § 35-48-4-6; Count IV, possession of cocaine and a firearm, a Class C felony, I.C. § 35-48-4-6; and Count V, possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11. The only amendments made in this new Information were the identification of additional protected locations that were within 1000 feet of the residence and the two new allegations for possessions of cocaine. A jury trial commenced on August 31, 2010.
In light of this procedural history, we conclude that the trial court properly denied Branch's motion to dismiss the second Information. Branch knew of the impending filing of the cocaine charges prior to the State's dismissal of the original charges. The new amended Information was based on the same probable cause affidavit and evidence which included the discovery of cocaine in the residence. Branch was aware that the cocaine had been found and that additional charges could be filed. As such, we find that Branch's substantial rights were not prejudiced.
Next, Branch alleges in the summary of the argument section of his appellate brief that "M.M. should not have been forced to testify. The [c]ourt ordered [M.M.] to be served, to testify and stated that if he did not testify that he would be taken into custody and held in contempt." (Appellant's Br. p. 9). However, in the argument section—the section where the summary should be clarified and supported with evidence—Branch merely treats this court to an expose on the presence or absence of minors within 1000 feet of the house. Because Branch fails to make a cogent argument supported by evidence and relevant case law with respect to forcing a minor to testify, we find his argument waived. See Ind. Appellate Rule 46(A)(8). Insofar as Branch attempts to assert an argument as to the absence of children within 1000 feet of the residence, we will address that claim together with the sufficiency of the evidence argument in section IV of this Memorandum Decision.
In his third argument, Branch contends that the trial court abused its discretion when it refused to tender his proposed instruction on "mere presence' to the jury. It is well established that instructing the jury is within the discretion of the trial court. Perez v. State, 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans. denied. Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case. Id. In reviewing a challenge to a jury instruction, we consider whether the instruction correctly states the law, whether there was evidence in the record to support giving the instruction and whether the substance of the tendered instruction is covered by other instructions. Hubbard v. State, 742 N.E.2d 919, 921 (Ind. 2001). Furthermore, before a defendant is entitled to a reversal, he must affirmatively show that the instructional error prejudiced his substantial rights. Id. 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 to it comprehend the case clearly and arrive at a just, fair, and correct verdict. Fowler v. State, 900 N.E.2d 770, 773 (Ind. Ct. App. 2009). Instructions that unduly emphasize one particular evidentiary fact, witness, or phase of the case are disapproved. Id.
Branch's proposed jury instruction stated:
(Appellant's App. p. 71). Our review of the tendered jury instructions reveals that the trial court instructed the jury on each element of the crime. Specifically, the instructions noted that the State must prove beyond a reasonable doubt that Branch knowingly possessed the cocaine. The instructions then provided an explanation for knowingly and include the following clarification on possession in Final Instruction 11:
(Appellant's App. p. 78).
All instructions taken together inform the jury of the law applicable to the facts without misleading it and enable it to comprehend the case clearly and arrive at a just verdict. As such, Branch's proposed instruction was adequately covered in the trial court's given instructions. Moreover, even if the trial court would have abused its discretion when it refused to give Branch's proposed instruction, Branch would still not be entitled to a reversal as he failed to affirmatively show in his appellate brief that the instructional error prejudiced his substantial rights. See Hubbard, 742 N.E.2d at 921.
Lastly, Branch contends that the State failed to present sufficient evidence to establish that he knowingly possessed cocaine within a 1000 feet of a family housing complex and/or school property. In reviewing a sufficiency of the evidence claim, this court does not reweigh the evidence or judge the credibility of the witnesses. Perez, 872 N.E.2d at 212-13. We will consider only the evidence most favorable to the verdict and the reasonable inferences to be drawn therefrom and will affirm if the evidence and those inferences constitute substantial evidence of probative value to support the judgment. Id. at 213. Reversal is appropriate only when reasonable persons would not be able to form inferences as to each material element of the offense. Id.
In order to convict Branch of a Class B felony, the State was required to prove beyond a reasonable doubt that Branch knowingly or intentionally possessed cocaine within 1000 feet of a family housing complex and/or school property. See I. C. § 35-48-4-6(b)(2)(B). Here, the cocaine was not found on Branch himself, but rather in the kitchen of the residence. In the absence of actual possession of drugs, constructive possession may support a conviction for a drug offense. Allen v. State, 798 N.E.2d 490, 501 (Ind. Ct. App. 2003). Constructive possession will support a possession conviction if the State shows that the defendant had both the capability and the intent to maintain dominion and control over the contraband. Id. Control in this sense concerns the defendant's relation to the place where the substance is found: whether the defendant has the power, by way of legal authority or in a practical sense, to control the place where, or the item in which, the substance is found. Id. A house or apartment used as a residence is controlled by the person who lives in it, and that person may be found in control of any drugs discovered therein, whether he is the owner, tenant, or merely an invitee. Id.
Nevertheless, where a person's control of the premises is non-exclusive, intent to maintain dominion and control may be inferred from additional circumstances that indicate that the person knew of the presence of the contraband. Id. These additional circumstances include (1) incriminating statements made by the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the drugs; (5) drugs in plain view; and (6) location of the drugs in close proximity to items owned by the defendant. Id.
In the case before us, Branch was standing in the kitchen of an almost empty house when the officers entered through the rear door. He had $700 on his person. A search of the kitchen yielded an electronic scale, several boxes of plastic baggies, and a razor blade. Powder cocaine was visible on the scale's top plate and small crumbs of cocaine were next to the razor blade. Detective Mann testified that the objects found are characteristic of cocaine and cocaine dealing. Besides Branch's presence in the kitchen, the officers also found his fingerprints on the battery inside the scale. The battery was of an uncommon type; it was flat and circular and must be pressed in a small compartment on the scale. Because there would be very little reason to touch this battery except to put it in the scale, the jury could reasonably infer that Branch knew the scale was in the kitchen cabinet.
Branch's presence in the empty kitchen indicates that he was capable of exercising control over the items. It is clear that he had previously touched the scale to insert the battery and cocaine was visible on the scale's surface. From the condition of the house—empty, with the exception to a couple of couches, a television and gaming station in the living room—the jury could infer that the residence was specifically used for drug activity. In sum, the evidence reflects that a reasonable inference can be made that Branch was aware of the presence of cocaine on the scale and that he had both the capability and intent to maintain dominion and control over it.
Nevertheless, Branch now asserts that the State failed to establish that a minor was present within 1000 feet of the school and/or family housing complex. Typically, a person who knowingly or intentionally possesses cocaine commits possession of cocaine, a Class D felony. I.C. § 35-48-4-6(a). The offense becomes a Class B felony if the person possesses less than three grams of cocaine in, on, or within 1000 feet of a public park, school, or family housing complex. I.C. § 35-48-4-6(b)(2)(B).
Indiana Code section 35-48-4-16 provides,
To overcome this defense, the State must disprove one of the two elements beyond a reasonable doubt. Harrison v. State, 901 N.E.2d 635, 642 (Ind. Ct. App. 2009).
The record reflects that along with Branch, the officers found M.M. in the residence when they executed the search warrant. At trial, the State submitted certified birth certificates for both individuals, which established that Branch was nearly four years older than M.M. and M.M. was less than eighteen years old at the time. Accordingly, because the State clearly disproved one of the prongs of the statutory defense, we need not analyze whether Branch was merely briefly within 1000 feet of the school and/or family housing complex. In sum, based on the evidence before us, we conclude that the State presented sufficient evidence to sustain Branch's conviction.
Based on the foregoing, we conclude that (1) the trial court properly denied Branch's motion to dismiss; (2) Branch waived his argument concerning the minor witness' testimony; (3) the trial court did not abused its discretion when it refused to tender a "mere presence" instruction; and (4) the State presented sufficient evidence to sustain Branch's conviction.
Affirmed.
DARDEN, J., and BARNES, J., concur.
