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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.

FILED
Feb 17 2012, 8:53 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: CRAIG PERSINGER Marion, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
BARRY COOK, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 27A05-1107-CR-402

APPEAL FROM THE GRANT CIRCUIT COURT The Honorable Mark E. Spitzer, Judge Cause No. 27C01-1010-FA-346

February 17, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Barry Cook appeals the trial courts judgment convicting him of possession of cocaine, as a Class B felony, following a jury trial. Cook presents a single issue for review: whether the evidence is sufficient to support his conviction for the Class B felony offense. We reverse and remand with instructions. FACTS AND PROCEDURAL HISTORY On October 12, 2010, Marion Police Officers Joel Thomas and Sergeant Richard Eastes were dispatched to investigate a disturbance at 1492 East Chandler Court in the Eagle Trace Apartments. Officer Thomas arrived first and heard someone crying inside the building. When Sergeant Eastes arrived, the two officers determined that the crying was coming from Apartment 4. They went upstairs to the apartment door and knocked, and Rachel Bowman, the tenant, opened the door. The officers then heard a crashing sound from inside,1 and they entered the apartment. Once inside, the officers observed Cook exiting the bathroom. Officer Thomas ordered Cook to keep his hands in view and to walk toward the officer. Instead of complying, Cook turned right into the kitchen, out of view of the officers. Being familiar with the layout of the apartments in the complex, Officer Thomas walked left through the living room to intercept Cook, and Sergeant Eastes quickly followed Cook from the other direction into the kitchen. Once Sergeant Eastes had Cook in view in the kitchen, the officer saw Cook drop items from his hands onto the floor. The officers later collected
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The officers later determined that the noise was made by James Little as he was falling out of a chair. They found Little lying on the kitchen floor.

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the items Cook had dropped: keys, cigarillos, and a baggie containing 1.5 grams of cocaine. The State charged Cook with possession of cocaine within 1000 feet of a family housing complex, a Class B felony; possession of cocaine, as a Class D felony; intimidation, as a Class D felony; and battery resulting in bodily injury, as a Class A misdemeanor. At the start of trial the State dismissed the latter three charges and

proceeded with their case on Class B felony possession of cocaine. Cook asserted a defense under Indiana Code Section 35-48-4-16. At the conclusion of the trial, the jury returned a guilty verdict. The trial court subsequently sentenced Cook to fifteen years executed. Cook now appeals. DISCUSSION AND DECISION Cook contends that the evidence is insufficient to support his conviction for possession of cocaine within 1000 feet of a family housing complex, a Class B felony. When the sufficiency of the evidence to support a conviction is challenged, we neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005). It is the job of the factfinder to determine whether the evidence in a particular case sufficiently proves each element of an offense, and we consider conflicting evidence most favorably to the trial courts ruling. Id. at 906.

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To prove the offense of possession of cocaine, as a Class D felony, the State was required to show beyond a reasonable doubt that Cook knowingly or intentionally possessed less than three grams of cocaine. See Ind. Code

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