ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kenneth T. Roberts Jeffrey Modisett
Roberts & Bishop Attorney General of Indiana
Randi F. Elfenbaum
Deputy Attorney General
SUPREME COURT OF INDIANA
MALCOM GOODNER, ) ) Appellant (Defendant Below ), ) ) v. ) 49S00-9608-CR-533 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
SHEPARD, Chief Justice.
Malcom Goodner brings this direct appeal of his convictions for dealing in cocaine, a class A felonySee footnote 1 ; possession of cocaine,
a class C felonySee footnote
; and the finding that he is a habitual offender.
The court merged Goodner's two cocaine convictions, sentencing him
to thirty-five years for dealing in cocaine and adding thirty years
for the habitual finding.
Goodner presents four issues for our review:
1) Whether the trial court erred in finding there was probable cause to issue a search warrant;
2) Whether the court properly admitted a recording of his
3) Whether there was sufficient evidence that Goodner
possessed the cocaine; and
4) Whether there was sufficient evidence that Goodner
intended to deliver the cocaine.
magistrate issued a search warrant for Goodner's home and for two
suspects, Goodner and Timothy Hayes.
On October 6, 1995, two officers executed the search warrant
at Goodner's residence. A young boy greeted them at the door and
allowed them entry. Goodner was not home, but he arrived while the
officers were searching the apartment. The officers showed Goodner
the search warrant, and Goodner agreed to help them search.
Goodner resided in the apartment with four others, and a fifth,
Steve Evans, stayed periodically. Goodner admitted they
occasionally kept drugs in the apartment. After searching through
a bedroom closet and one other area, Goodner turned to a bedroom
drawer. He pulled out a ginseng bottle and removed all the pills,
exposing several bindles of crack cocaine in the bottom. The
cocaine was wrapped in nine individual bags and weighed a total of
8.2529 grams. In the same drawer, the officers found Goodner's
Social Security card. They also discovered a glass plate with
residue on it
and sandwich bags.
The police arrested Goodner and took him to their roll call site. They read Goodner his Miranda rights, and he signed a waiver. Goodner then gave the police a taped statement in which he admitted the cocaine belonged to him and that he intended to sell it. Goodner also explained his connection to Evans, admitting the two had been involved in drug deals over the past two to three months. Goodner added that on this particular occasion Evans
bought a half-ounce of cocaine for $500 and "fronted" a quarter
ounce to Goodner for him to sell. Goodner was expected to sub-
divide and sell the cocaine, ultimately paying Evans cost of $250
for the quarter ounce taken on credit. By the time of the search,
Goodner had already made two sales.
II. Admission of the Recorded Confession
Indiana Rule of Evidence 404(b) generally allows evidence of
prior misconduct to be introduced unless such evidence is used to
imply the defendant is of bad character or to infer the charged
crime was committed in conformity with that character. Id.
Ind.Evidence Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
A trial court is afforded broad discretion when ruling on the
admissibility of evidence. Moore v. State, 637 N.E.2d 816, 818
(Ind. 1994). Absent a requisite showing of abuse, the trial
court's decision will not be disturbed. Id.
Goodner's statements, which the trial court determined fell into several of Rule 404(b)'s exceptions, can be divided into three main categories: statements regarding his prior conviction, statements about his previous possession and dealing of cocaine
with Evans, and statements concerning his cocaine sales earlier in
the week of his arrest.
As for Goodner's claim concerning statements about his earlier
arrests, the court granted Goodner's motion in limine requesting
his statements about his previous arrest be withheld from the jury.
The record shows that those particular statements were not admitted at trial. The court redacted those designated portions of the tape.
Goodner's statements concerning his cocaine possession and drug activities prior to his arrest were properly admitted not only to counter Goodner's testimony indicating his purported intent to aid police in a set up operation of Evans, but also to demonstrate his intent to deliver the cocaine. During trial, Goodner offered evidence that he worked as an informant for the police. According to Goodner, however, no one told him that he had been deactivated. He testified about calling Detective Poston a few months before his arrest to discuss Evans' cocaine dealings. Goodner tried to establish that he possessed the cocaine as part of a ploy to assist the police in arresting Evans. Goodner's recorded statements regarding his previous drug deals with Evans directly rebut his professed intent. Goodner provides a specific contrary intent within the meaning of Wickizer v. State: evidence may be used to show intent when defendant goes beyond merely denying the charge to affirmatively presenting a contrary intent. Wickizer v. State, 626
N.E.2d 795 (Ind. 1993). The trial court, therefore, correctly
admitted his statements concerning his ongoing cocaine dealings
Similarly, the trial court appropriately admitted Goodner's
statements regarding his two sales earlier that week. Goodner's
statements concerning transactions that week, however, were part of
a plan that encompassed the charged offense: disposition of a
half-ounce of cocaine. The concerns that led us in Wickizer to
adopt a narrow construction of the intent exception do not appear
applicable to evidence of acts that are part of the "plan" for the
charged offense within the meaning of plan under Rule 404(b).See footnote
The trial court properly admitted Goodner's taped statement
under the exceptions to Evid.R. 404(b).
III. The Evidence of Intent to Possess
This Court has long-recognized that a conviction based on
possession of narcotics may rest upon proof of either actual or
constructive possession. Fyock v. State, 436 N.E.2d 1089, 1096
(Ind. 1982) . "Constructive possession is the intent and capability
to maintain dominion and control over the illegal drugs." Fassoth
v. State, 525 N.E.2d 318, 323 (Ind. 1988). The State does not need
to prove actual physical possession to establish possession; proof
of constructive possession is sufficient. Davenport v. State, 464
N.E.2d 1302 (Ind. 1984). Moreover, exclusive possession is not
required. Johnson v. State, 617 N.E.2d 559 (Ind. Ct. App. 1993).
The substance can be jointly possessed without a showing that the
defendant had actual physical control. Id.
The circumstances lead to the conclusion that
possessed the cocaine. During the search of the apartment, it was
Goodner who discovered the cocaine hidden in a drawer at the bottom
a ginseng bottle, not the police. A police officer then found
Goodner's Social Security card in the same drawer. Goodner
admitted the cocaine was his. He also admitted splitting it with
Evans, selling part earlier in the week, and intending to sell the
rest. This was more than sufficient evidence to prove Goodner had
actual possession of the cocaine.
Goodner claims the State failed to establish his intent to
deliver the cocaine.
We do not reweigh the evidence or judge the reliability of the
witnesses when assessing the sufficiency of the evidence on appeal.
James v. State, 265 Ind. 384, 354 N.E.2d 236 (1976). Instead, the
evidence is considered in a light favorable to the verdict,
combined with any reasonable inferences which may be supported by
that evidence. Id.
Intent is a mental state, and the trier of fact often must
infer its existence from surrounding circumstances when determining
whether the requisite intent exists. Mason v. State, 532 N.E.2d
1169 (Ind. 1989). Here, however,
the State provided the jury with
direct evidence: Goodner's admissions.
The jury could also infer intent from the substantial amount of cocaine found in his apartment and from its individual
Goodner possessed more than 8.25 grams of cocaine.
The cocaine, which was packaged in nine separate bags, was a larger
amount than a cocaine user would generally keep for personal use.
The estimated street value was over $500. Detective Canon
testified he knew how cocaine is packaged and was familiar with the
price of cocaine on the street. He estimated that the individual
bags would each sell for approximately eighty dollars, and Goodner
himself referred to the bags as "fifties" in his recorded
statement. The amount of cocaine, its packaging, Goodner's taped
statements, and the detective's testimony are sufficient to prove
Goodner's intent to deliver the cocaine.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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