FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

ERIC K. KOSELKE    STEVE CARTER
Indianapolis, Indiana    Attorney General of Indiana

             MICHAEL GENE WORDEN
            Deputy Attorney General
            Indianapolis, Indiana

GERALD L. STOKES,       )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 49A02-0212-CR-1081
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

there is a disagreement among the jurors as to any part of the testimony; or

the jury desires to be informed as to any point of law arising in the case;

the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.

I.C. § 34-36-1-6. Here, the parties agree that this statute does not apply because the jury did not express a disagreement over any item of testimony.
    Thus, since the mandatory language of Indiana Code section 34-36-1-6 does not apply in this case, the decision to allow the jury to view the videotape again is within the discretion of the trial court. See Sturma v. State, 683 N.E.2d 606, 609 (Ind. Ct. App. 1997); See Kiner v. State, 643 N.E.2d 950, 955 (Ind. Ct. App. 1994), reh’g denied. The trial court should consider three factors in deciding whether to permit the jury to take a copy of the exhibits to the jury room. Thacker v. State, 709 N.E.2d 3, 6 (Ind. 1999). Those factors are: (1) whether the material will aid the jury in a proper consideration of the case; (2) whether any party will be unduly prejudiced by submission of the material; and (3) whether the material may be subjected to improper use by the jury. Id.; Goodrich v. Indiana Michigan Power Company, 783 N.E.2d 793, 797-98 (Ind. Ct. App. 2003). Additionally,
[t]he trial judge must conduct the proceedings in a manner that facilitates ascertainment of the truth, insures fairness, and obtains economy of time and effort commensurate with the rights of both society and the criminal defendant…. Although this Court has been liberal in allowing the jury to rehear portions of the evidence, there are limitations on the trial court’s discretion. For example, trial courts may not allow the jury to review the testimony of an entire trial.

Id. (quoting James v. State, 613 N.E.2d 15, 23-4 (Ind. 1993)). While the trial court has discretion in determining what the jury may take with it to the jury room at the beginning of deliberations, that discretion is somewhat more limited in the situation where the jury interrupts its deliberations to request material to review. Id.; Harris v. State, 659 N.E.2d 522, 526 (Ind. 1995); Powell v. State, 644 N.E.2d 855, n.6 (Ind. 1994).
    In the present case, the trial court did not give the jury the videotape at the beginning of deliberations, but allowed them to view it in the jury room after deliberations had commenced. It is clear that the trial court could have given the jury the videotape at the beginning of deliberations. See Harris, 659 N.E.2d at 526 (holding it was proper for jury to have defendant’s videotaped confession during deliberations, and that the judge could later send a tape player to the jury room so that they could access the exhibit). It is also clear that the trial court could have given the jury the videotape during deliberations and allowed them to view the videotape in open court. See Sturma, 683 N.E.2d at 610 (holding that it was proper for the jury to view the videotape after deliberations began, in open court where the trial court can monitor the use of the videotape). However, we are presented with a slightly different situation when the evidence is not given to the jury in open court where the trial court can monitor the use of the videotape.
    In Lawson v. State, 664 N.E.2d 773 (Ind. Ct. App. 1996), trans. denied, we reinforced the court’s discussion in Powell, that:
It would be perfectly proper for a trial court to replay for the jury in open court either tapes of testimony or tapes that have been admitted into evidence, but that providing the jury with items after deliberation has begun, and not monitoring the use of the items, constituted error. However, the court in Powell specifically noted that its holding was limited to cases in which additional materials were provided to the jury following the onset of deliberation.

Lawson, 664 N.E.2d at 777 (citing Powell, 644 N.E.2d at 855). Here, we have a situation where additional materials were provided to the jury following the onset of deliberation. However, the court did not monitor the use of the videotape by playing it for the jury in open court, as suggested by Indiana Code section 34-36-1-6, Lawson, and Powell. Lawson, 664 N.E.2d at 773; Powell, 644 N.E.2d at 855. Rather, the trial court gave the videotape to the jury and provided the jury with the equipment and instructions to view the videotape on its own. Therefore, we find that the trial court abused its discretion in allowing the jury to review the videotape in the deliberation room without monitoring its use.
    Nevertheless, we find that this error was harmless. In particular, Stokes fails to demonstrate how or why the review of the videotape at issue unduly prejudiced his case or was subject to improper use by the jury. See Goodrich, 783 N.E.2d at 797-98. Our review of the evidence indicates that the videotape surveillance served to aid the jury in its consideration of the case. See Thacker, 709 N.E.2d at 7. Specifically, we believe that the videotape could aid the jury in determining the credibility of the testimony of the IPD officers regarding what occurred and in understanding to what extent, if any, Stokes participated in the illegal activity. Further, there was little risk that the jury would issue or give undue weight to this exhibit because the videotape was already played in open court. In fact, the record reveals that the jury viewed the videotape twice in court during the presentation of the evidence. Consequently, we find that the trial court did not abuse its discretion by sending the videotape to the jury to view on their own after the jury began its deliberations. See Harris, 659 N.E.2d at 527.
    Stokes further contends that the trial court erred in not allowing the jury to view the cocaine that was recovered from the windowsill at the 4346 North Crittenden residence. However, as mentioned above, the trial court has discretion in determining what evidence to allow the jury to view after deliberations have begun. See Sturma, 683 N.E.2d at 609. Although Stokes contends that the jury could have placed undue emphasis on the other exhibits that the trial court allowed the jury to review, we find this contention without merit. The record clearly shows that the jury was allowed to review photographs of the recovered cocaine. This photograph of the cocaine was admitted as an exhibit at trial and was sent to the jury with the other exhibits requested. As a result, we do not find that the trial court abused its discretion in denying the jury’s request to view the cocaine. See id.

(2) possesses, with intent to :

(A) manufacture;
(B) finance the manufacture of;
(C) deliver; or
(D) finance the delivery of;

cocaine, a narcotic drug, or metamphetamine, pure or adulterated, classified in schedule I or II;

commits dealing in cocaine, a narcotic drug, or methamphetamine, a Class B felony, except as provided in subsection (b).

The offense is a Class A felony if:

(1) the amount of the drug involved weighs three (3) grams or more;

Thus, in order to convict Stokes of dealing in cocaine, the State was required to prove that Stokes knowingly possessed cocaine with the intent to deliver the cocaine. See I.C. § 35-48-4-1.
    First, Stokes alleges that the State failed to prove beyond a reasonable doubt that he possessed cocaine, as required for a conviction on charges of dealing in cocaine under Indiana Code section 35-48-4-1(2). Stokes claims that the State merely proved the presence of cocaine in the 4346 North Crittenden residence.
Stokes is correct that the State did not offer direct evidence that he had sold or was planning to sell the cocaine, but circumstantial evidence of possession with intent to deliver is sufficient to support the conviction. Upon appellate review, such evidence does not have to overcome every reasonable hypothesis of innocence but need only generate a reasonable inference of guilt. Mills v. State, 512 N.E.2d 846, 848 (Ind. 1987). In the instant case, the record shows Stokes entering and exiting the 4346 North Crittenden residence on several occasions with different unidentified persons. At times, the videotape surveillance shows Stokes reaching into the windowsill at the 4346 North Crittenden residence and recovering something in his hands. The record further reveals that when the 4346 North Crittenden residence was searched, the IPD officers recovered cocaine from the same windowsill inside the house. Based upon this evidence, we find that it was reasonable for the fact finder to infer that Stokes possessed the cocaine that was found at the residence, given the number of times he was present at the residence and was observed reaching into the windowsill to obtain cocaine. See Mills, 512 N.E.2d at 88. As a result, we find that this evidence was sufficient to support the jury’s determination that Stokes possessed cocaine with the intent to deliver.
    Stokes also argues that the evidence is insufficient to support his conviction because he contends that there is no evidence to prove that he intended to deliver cocaine as required under Indiana Code section 35-48-4-1. Intent is a mental function; therefore, absent an admission, the trier of fact must resort to reasonable inferences based upon an examination of the surrounding circumstances to determine whether, from the person’s conduct and the natural consequences thereof, a showing or inference of intent to commit that conduct exists. Isom v. State, 589 N.E.2d 245, 247 (Ind. Ct. App. 1992). Stokes acknowledges that intent to deliver may be proved by circumstantial evidence. Frierson v. State, 572 N.E.2d 536, 537 (Ind. Ct. App. 1991).
    Here, the record reveals that when the black female in the blue floppy hat returned to the 4346 North Crittenden residence for the second time, Stokes walked off of the porch to meet her. The woman and Stokes met in the area between 4344 North Crittenden and 4346 North Crittenden and walked to the back of the residence. Detective Stout testified that Stokes and the woman were out of his view for approximately twenty-nine seconds before they reappeared. Once they returned to Stouts view, he observed the woman lift up her T-shirt and put something inside of her bra. The woman then drove away, while Stokes returned to the porch at 4340 North Crittenden. The record shows that Detective Stout notified other IPD officers regarding what occurred and that Detective Kincaid had a patrol car stop the car driven by the woman. The record further reveals that Detective Kincaid retrieved crack cocaine from inside the woman’s bra. Thus, we find that it was reasonable for the trier of fact to infer from this evidence is that Stokes sold the crack cocaine, recovered from the woman’s bra, to her. See Alspach, 755 N.E.2d at 210.
    Furthermore, the record indicates that Stokes entered the vacant residence at 4346 North Crittenden on several occasions with an unidentified person. The record reflects that while in the residence, Stokes went to the windowsill by the side door of 4346 North Crittenden and picked up a white object. The record also shows that when Stokes exited the vacant house, he no longer had the white object in his hands; however, he had his hand cupped as if something was in it. Thus, it is reasonable to infer that the white object Detective Stout observed Stokes retrieve from the windowsill from the 4346 North Crittenden residence was the cocaine that was subsequently recovered. See Isom, 589 N.E.2d at 247 (possession of a large amount of a controlled substance is circumstantial evidence of intent to deliver, and the greater the amount in possession, the stronger the inference he intends it for delivery and not for personal consumption).
We also find that it was reasonable for the trier of fact to infer that Stokes sold some of this cocaine to the unidentified persons observed entering and exiting the residence. Nevertheless, Stokes contends that his conviction cannot stand because the State did not produce testimony that he delivered cocaine to anyone. However, as we have previously mentioned, intent to deliver may be proved by circumstantial evidence. Frierson, 572 N.E.2d at 537.
Thus, we conclude that a reasonable jury could have found beyond a reasonable doubt that Stokes knowingly possessed cocaine and intended to deliver it. See I.C. § 35-48-4-1. As a result, we find that the evidence was sufficient to sustain Stokes’ conviction for dealing in cocaine.