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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. ATTORNEY FOR APPELLANT: ANDREW B. ARNETT Indianapolis, Indiana

FILED
Jul 09 2008, 9:16 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana ARTURO RODRIGUEZ II Deputy Attorney General Indianapolis, Indiana

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

No. 73A01-0709-CR-427

APPEAL FROM THE SHELBY SUPERIOR COURT The Honorable Jack A. Tandy, Judge Cause No. 73D01-0608-FA-22

JULY 9, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION SHARPNACK, Senior Judge

Christopher Cross appeals his conviction in a bench trial of 1) dealing cocaine as a class A felony; 2) attempted dealing cocaine as a class A felony; 3) possession of cocaine as a class A felony; 4) maintaining a common nuisance as a class D felony; 5) resisting law enforcement as a class A misdemeanor; 6) carrying a handgun without a permit after a felony conviction as a class C felony; and 7) use of a firearm in a controlled substance offense, as well as his adjudication as both an habitual substance offender and an habitual offender. He also appeals the sentence imposed thereon. We affirm. Cross raises two issues for our review: I. Whether there is sufficient evidence to support Cross' convictions of dealing in cocaine, attempted dealing in cocaine, and possession of cocaine, all class A felonies; and II. Whether the trial court erred in sentencing Cross. In August 2006, Larry Sizemore assisted the Shelbyville Police Department by setting up a drug transaction involving Sizemore, Cross, and John Mellentine. Sizemore attempted to call Cross, from whom he had bought drugs in the past. When Sizemore reached Cross' voice mail, Sizemore called Mellentine, who told Sizemore he could reach Cross. Mellentine telephoned Cross and told him that Sizemore wanted to purchase $200.00 worth of cocaine. Cross and Mellentine drove to Sizemore's Shelbyville hotel room. Shelbyville Police Department Officer Bart Smith was parked down the street at the Bear's Den Youth Center, which was about 120 feet from the hotel. When Cross and Mellentine arrived at the hotel, Officer Smith radioed the officers that were hiding in Sizemore's 2

hotel bathroom. When Cross pulled a bag of cocaine out of his pocket, the police entered the room and yelled, "Police. Down." Tr. at 120. Cross reached for his waistband, which led Officer Ed Hadley to believe that Cross was reaching for a weapon. Officer Hadley tackled Cross, and the two men fell on the floor. Cross continued to struggle with the officer and reach for his waistband. After subduing Cross, Officer Hadley felt a gun slide down Cross' leg. A subsequent search of Cross revealed the gun and three grams of cocaine. The State charged Cross with multiple counts. Following a bench trial, the court convicted Cross of all counts and adjudicated him to be an habitual substance offender as well as an habitual offender. Following the sentencing hearing, the trial court "adopted" the following aggravating circumstances set forth in the presentence report: 1) Cross has a history of criminal behavior; 2) Cross is in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility; and 3) Cross threatened the life of a witness/co-defendant by means of a letter. Appellant's App. at 46. The court found no mitigating factors, and sentenced Cross to 1) thirty years for dealing in cocaine, 2) thirty years for possession of cocaine, 3) three years for maintaining a common nuisance, 4) one year for resisting law enforcement, and 5) eight years for carrying a handgun without a permit with a prior felony conviction, all sentences to run concurrently. 1 The court enhanced Cross' thirty-year sentence by twenty years for his habitual offender

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The trial court merged the conviction for attempted dealing cocaine with the conviction for dealing cocaine.

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adjudication, for a total sentence of fifty years. 2 Cross appeals his convictions and sentence. I. Sufficiency of the Evidence Our standard of review for sufficiency of the evidence is well settled. We neither reweigh the evidence nor reassess the credibility of witnesses. Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999). Rather, we consider the evidence most favorable to the verdict and draw all reasonable inferences supporting the ruling below. Id. We will affirm the conviction if there is probative evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. O'Connell v. State, 742 N.E.2d 943, 949 (Ind. 2001). A. Dealing in Cocaine and Attempted Dealing in Cocaine To convict Cross of class A felony dealing in cocaine, the State had to prove that Cross knowingly or intentionally possessed three grams or more of cocaine with intent to deliver it. See Ind. Code

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