FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS    STEVE CARTER
Indianapolis, Indiana    Attorney General of Indiana

MATTHEW D. FISHER
Deputy Attorney General
Indianapolis, Indiana

KEVIN MASSEY,           )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 49A02-0310-CR-851
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

This affiant bases his belief on the following information: that within the past seventy-two (72) hours of 1-16-02, a confidential, credible and reliable informant came personally to this affiant and stated that within the past seventy-two (72) hours of 1-16-02, he/she was personally in the location of 3508 N. Butler Ave., Indianapolis, Marion County, Indiana and observed in the possession of a B/M 20 yrs. old, 5' 7"' tall, 270 lbs., with a medium afro wearing a black leather jacket and blue jeans, a substance said informant believed to be Cocaine, an extract of Coca. Said informant was further told by the B/M 20 yrs. old, 5' 7"' tall, 270 lbs., with a medium afro wearing a black leather jacket and blue jeans, that the substance he/she had in his/her possession was in fact Cocaine, an extract of Coca and was for sale. Said informant is known personally by this affiant to be a past user of cocaine, an extract of Coca, and knows Cocaine, an extract of Coca by its appearance and the manner in which it is packaged for sale. Said informant is reliable in that information provided by the informant in the past has resulted in at least three (3) seizures of controlled substances and these cases have resulted in convictions in court. Said informant is confidential in that revealing the identity of the informant could directly endanger the life of the informant and would destroy any future use of the informant.

Based upon the above information, I am requesting a search warrant be issued for the residence located at 3508 N. Butler Ave., Indianapolis, Marion County, Indiana. Said residence is described as a single story-single family residence white in color with blue trim, and has the numerals 3508 affixed to the front of the residence to be searched. Said residence consists of a living room, dining area, kitchen, bedroom(s) and bathroom(s). I request this search to include all rooms, closets, drawers, shelves and personal effects contained therein and thereon where Cocaine, an extract of Coca may be concealed.

I further request this search to include the person of the B/M 20 yrs. old, 5' 7" tall, 270 lbs., with a medium afro wearing a black leather jacket and blue jeans.

Id. at 258-59. In reversing, we explained:
Here, Officer Smiley stated in his affidavit that, while a confidential informant was in Merritt’s residence on one occasion, an unidentified black male offered to sell the informant what appeared to be cocaine. Officer Smiley did not state that the unidentified black male frequented, resided, or concealed contraband at 3508 North Butler Avenue nor did he state that there was good cause to believe that the black male would possess cocaine in the residence when the warrant was obtained. See Doss v. State, 649 N.E.2d 1045, 1048-49 (Ind. Ct. App. 1995) (finding affidavit lacked indicia of probable cause because it omitted important factual details). Moreover, contrary to the State’s assertions, the affidavit did not set forth facts from which a reasonable inference could be drawn that numerous drug transactions had taken place at the residence, or that the residence was a “crack house.” Accordingly, the trial court abused its discretion in denying Merritt’s motion to suppress. See Methene v. State, 720 N.E.2d 384, 390 (Ind. Ct. App. 1999) (noting the requirement that an affidavit for a search warrant must apprise the magistrate of the underling [sic] facts and circumstances which tend to show that probable cause exists for the search).

Id. at 260-61.
    Massey claims the affidavit in his case is so similar to Merritt we should hold Officer Crooke’s affidavit was insufficient. We acknowledge Officer Crooke’s affidavit does not state “Massey owned, occupied, or otherwise used 1473 West 34th Street to possess or sell cocaine.” (Appellant’s Br. at 14.) Nevertheless, the affidavit in this case is distinguishable from the affidavit in Merritt in three ways: (1) the male selling the cocaine was identified as Massey, rather than being unidentified; (2) it provided: “Said informant also advised that he/she has observed large quantities of cocaine, money and weapons inside 1473 W. 34th St.;” and (3) it also provided: “The informant stated that Massey always has a pistol on his person and had observed several weapons inside the residence.” (State’s Ex. 1.) Those statements indicate the confidential informant knew Massey before the current drug purchase and had been in the house at 1473 W. 34th Street on other occasions when drugs, money, and weapons were present. See footnote This was not the one-time interaction with an unknown dealer that occurred in Merritt. Accordingly, our facts are distinguishable from Merritt. See footnote The affidavit and reasonable inferences therefrom provided sufficient evidence for a reasonable person to believe drugs would be found in the house at 1473 W. 34th Street.
    Second, regarding the credibility of the informant, Massey cites Ind. Code § 35-33-5-2, which provides in relevant part:
(b) when based on hearsay, the Affidavit must either:
    (1) contain reliable information establishing the credibility of the source and each of the declarants of the hearsay and establish that there is a factual basis for the information furnished; or
    (2) contain information that establishes that the totality of the circumstances corroborates the hearsay.

Massey claims “there is nothing in this Affidavit, which attest [sic] to [sic] credibility or reliability of this ‘Confidential Informant.’” (Appellant’s Br. at 16.) We disagree.
Officer Crooke’s affidavit provided:
Said Informant is reliable in that information provided by the informant in the past has resulted in two (2) seizures of controlled substances with arrest pending. The Informant has also provided this affiant with information, which has been corroborated as being truthful. This informant has also provided information in the past that resulted in one arrest and is awaiting trial.

(State’s Ex. 1.) That an informant has provided information in the past that led to seizures of controlled substances and an arrest is sufficient to demonstrate the informant is credible and reliable. See, e.g., Tinnin v. State, 275 Ind. 203, 208, 416 N.E.2d 116, 119 (Ind. 1981) (“It is well established that a statement in an affidavit declaring that the informant has previously supplied valid information is sufficient to satisfy the statutory requirement of facts as to the credibility of the informant.”).
    2.    Sufficiency of Evidence
Massey claims the evidence was insufficient to support his convictions of dealing in cocaine, a Class A felony, possession of cocaine and a firearm, a Class C felony, and possession of a handgun by a serious violent felon, a Class B felony, because he did not knowingly possess the cocaine or the guns. See footnote When we review challenges to the sufficiency of the evidence, we may neither reweigh the evidence nor assess the credibility of the witnesses. Iddings v. State, 772 N.E.2d 1006, 1015 (Ind. Ct. App. 2002), trans. denied 783 N.E.2d 700 (Ind. 2002). Rather, we look at the evidence and reasonable inferences therefrom most favorable to the conviction. Id. If substantial evidence of probative value would have allowed a reasonable jury to find the defendant guilty beyond a reasonable doubt, then we must affirm the jury’s finding. Id.
    The State presented sufficient evidence Massey knowingly possessed the cocaine or firearms. Possession of an item may be either actual or constructive. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). “Actual possession occurs when a person has direct physical control over the item.” Id. As the firearms and cocaine at issue were neither on nor near Massey’s person, he was not in actual possession of the items.
Constructive possession occurs when someone has “the intent and capability to maintain dominion and control over the item.” Id. As we have explained:
In order to prove constructive possession, the State must show that the defendant has both (1) the intent to maintain dominion and control and (2) the capability to maintain dominion and control over the contraband. To prove the intent element, the State must demonstrate the defendant’s knowledge of the presence of the contraband, which may be inferred from either the exclusive dominion and control over the premises containing the contraband or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant’s knowledge of the presence of the contraband. The capability requirement is met when the State shows that the defendant is able to reduce the contraband to the defendant’s personal possession. Proof of a possessory interest in the premises in which contraband is found is adequate to show the capability to maintain control and dominion over the items in question. Possession of contraband by the defendant need not be exclusive and it can be possessed jointly.

Iddings, 722 N.E.2d at 1015. Additional circumstances that support finding a defendant had the intent and capability to maintain dominion and control over contraband kept in non-exclusive premises include:
(1) incriminating statements 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.

Ladd v. State, 710 N.E.2d 188, 190 (Ind. Ct. App. 1999).
    Massey claims the evidence was insufficient to prove he ever “exercised any control over” the guns. (Appellant’s Br. at 19.) The two guns Massey was charged with possessing were found in his upstairs bedroom in the house where Massey lived with his wife and children. Accordingly, Massey had non-exclusive control over the premises. However, the evidence indicates Massey had knowledge of the guns, because he told the police officers they would find the guns in a duffle bag in the closet and under the mattress. In addition, as the guns were found in Massey’s bedroom, Massey had the ability to “reduce the contraband to the defendant’s personal possession.” Iddings, 722 N.E.2d at 1015. This evidence is sufficient to prove Massey knowingly possessed the two handguns. See footnote
    Regarding the large amounts of cocaine found in the Pepsi machine in the garage and the pocket of the black leather jacket in the bedroom, Massey claims the evidence was insufficient to prove he had knowledge of the existence of the cocaine, especially because Malcolm Howard, who allegedly lived in Massey’s garage for two or three years prior to the search, testified the cocaine in the Pepsi machine and in the jacket was his. When access to premises is non-exclusive, the State must provide “evidence of additional circumstances pointing to the defendant’s knowledge of the presence of the contraband.” Id. Massey had a key in his pocket that fit the Pepsi machine in his garage. Howard testified he had to get a key from Massey if he wanted to access the Pepsi machine. Massey had cocaine on his person and ran away when he saw the police approaching his residence. The jacket containing the cocaine was hanging on Massey’s bedroom door. From these facts, a jury could reasonably infer Massey had knowledge of the cocaine in the Pepsi machine and in the jacket pocket.
3.    Consecutive Sentences
    Finally, Massey asserts the trial court erred when it ordered him to serve a twenty-year sentence for unlawful possession of a firearm by a serious violent felon consecutive to his fifty-year sentence for dealing in cocaine. Generally a trial court has discretion to determine a defendant’s sentence, and we may not reverse absent an abuse of that discretion. Ratliff v. State, 741 N.E.2d 424, 431 (Ind. Ct. App. 2000), trans. denied 753 N.E.2d 10 (Ind. 2001). However, a court may not order a sentence in excess of the statutory limits prescribed by the legislature. Id.
Massey claims his sentence violates Ind. Code § 35-50-1-2(c), which in relevant part provides:
Except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class higher than the most serious of the felonies for which the person has been convicted.

Massey notes he was convicted of a Class A felony. The next more-serious class of felony is murder, for which the presumptive sentence is fifty-five years. See Ind. Code § 35-50-2-3. Accordingly, Massey argues, his total sentence could not exceed fifty-five years. We agree.
    
    An “episode of criminal conduct” is defined by statute as “offenses or a connected series of offenses that are closely related in time, place, and circumstance.” Ind. Code § 35-50-1-2(b). Examples of a single episode of criminal conduct include “the simultaneous robbery of seven individuals, the killing of several people with successive shots from a gun, the successive burning of three pieces of property, or such contemporaneous and related crimes as burglary and larceny, or kidnapping and robbery.” Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995).
    

    Massey was a serious violent felon in possession of a handgun and simultaneously was in possession of such a large amount of cocaine that his intent to deal could be inferred. Under these circumstances, his convictions arose from a single episode of criminal conduct. See footnote Accordingly, the trial court erred when it ordered Massey to serve a sentence longer than fifty-five years.
    

SULLIVAN, Judge, concurring

    I concur with respect to the validity of the search warrant issued in this case and in the affirmance of the trial court’s ruling upon the defendant’s Motion to Suppress. I write separately to set forth a caveat with respect to the degree of deference we must accord to the issuance of a warrant and to the review of that warrant issuance by the trial court in ruling upon a Motion to Supress.
    The standard of review when the initial reviewing court validates the issuance of the warrant is clear as stated in Judge May’s lead opinion. It is not quite clear, however, what deference we give at the appellate review stage if the trial court review has resulted in granting a defendant’s Motion to Suppress. See Allen v. State , 798 N.E.2d 490, 503 (Ind. Ct. App. 2003) (Sullivan, J., concurring), and Breitweiser v. State, 704 N.E.2d 496, 502 (Ind. Ct. App. 1999) (Sullivan, J., concurring).
    Furthermore, I concur that the evidence was sufficient to support Massey’s conviction of Dealing in Cocaine as a Class A felony and his conviction of Possession of a Handgun by a Serious Violent Felon as a Class B felony. Massey’s appellate argument, however, is not restricted to those two disparate convictions. Rather, he asserts that the evidence was insufficient to demonstrate his knowing possession “of the large amounts of cocaine found in the Pepsi machine and the jacket pocket of the black jacket . . . .” Appellant’s Brief at 17 (emphasis supplied). Additionally, as to the firearms recovered by police in the bedroom closet and under the mattress, Massey challenges the sufficiency of the evidence not only as to a single firearm essential to the Class B felony conviction, but rather as to the “firearms recovered as a result of the search warrant.” Id. (emphasis supplied).
    Nevertheless, Massey makes no challenge to any one or more of the five convictions upon grounds that the jury might possibly have looked to the same evidence with regard to the multiple cocaine convictions or with regard to the two separate convictions which rested upon possession of a handgun. See Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Accordingly, I concur in the affirmance of the convictions upon Counts I, III, IV, V, and VI. See footnote
    I also concur that Massey’s possession of a handgun and possession of the large amount of cocaine involved in his Dealing Cocaine conviction arose out of the same criminal episode and that therefore, his consecutive sentences may not exceed fifty-five years. I write separately upon this issue however, to express my view that even if Ratliff v. State, 741 N.E.2d 424 (Ind. Ct. App. 2000), trans. denied, was correctly decided under the facts of that case, Ratliff is distinguishable. Nevertheless, my assessment of Indiana case law tells me Ratliff was wrongly decided. As Judge May’s lead opinion in this case notes, the crimes in Ratliff did not occur simultaneously. That fact, however, does not justify a conclusion to the effect that in order to have a single criminal episode all the crimes under analysis must have been committed simultaneously.
    If such were the case we would have to hold that Ballard v. State, 715 N.E.2d 1276 (Ind. Ct. App. 1999) and Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. App. 2000), trans. denied, both discussed in Ratliff, are not merely distinguishable but were erroneously decided. In Ballard, the defendant committed a residential entry and only after that offense had been consummated did he batter the two persons who were in the apartment he entered. Clearly the crimes were not simultaneous. Yet the panel of this court held the offenses to be a single criminal episode.
    Similarly, in Purdy, the defendant battered his girlfriend during a domestic dispute. When police were dispatched, he resisted and after being subdued, he threatened to kill one of the officers while being placed in the paddy wagon. He was convicted of battery, resisting law enforcement, and intimidation. All sentences were consecutive. This court reversed, holding the offenses, though disparate and not simultaneous, were part of a single criminal episode.
    The facts in the case before us are clearly more reflective of a single criminal episode than those in Ballard, and Purdy. For this reason I agree that the aggregate sentences in this case may not exceed fifty-five years.