Angel M. Tolentino v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 27, 2020
• Docket: 20A-CR-731
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 27 2020, 8:53 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald R. Shuler Curtis T. Hill, Jr. Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Jodi Kathryn Stein Deputy Attorney General Anthony J. Smith Certified Legal Intern Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Angel M. Tolentino, August 27, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-731 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Gretchen S. Lund, Appellee-Plaintiff. Judge The Honorable Eric S. Ditton, Magistrate Trial Court Cause No. 20D04-1910-F6-1325

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 1 of 8 [1] Angel M. Tolentino appeals his conviction for possession of methamphetamine

as a level 6 felony. He claims the evidence is insufficient to sustain his

conviction. We affirm.

Facts and Procedural History

[2] At about 8:00 p.m. on September 26, 2019, Elkhart Police Corporal Justin

Gage, a certified drug recognition expert, observed a Chevrolet Yukon make an

improper right-hand turn and drift left of the centerline and initiated a traffic

stop. Corporal Gage observed there were three occupants in the vehicle and did

not see any of the occupants switch seats. He approached the vehicle, and the

driver identified herself. Tolentino, who was seated in the front passenger seat,

identified himself as “Diego Perez-Sosa” and stated his date of birth was May

16, 1997. Transcript Volume II at 19. Tolentino “was very fidgety with his

hands and reaching around.” Id. at 20. The person seated in the vehicle’s rear

passenger seat identified herself as Marani Guzman. Sergeant Jason Ray, a

certified drug recognition expert and K-9 handler, arrived at the scene with a K-

9. The driver was unable to provide proof of insurance. Corporal Gage asked

Tolentino to exit the vehicle, and he initially did not do so and asked why he

needed to exit. Corporal Gage again asked Tolentino to exit the vehicle, and he

eventually complied. When Tolentino stepped out of the vehicle, Corporal

Gage noticed little specks of a white substance on the front side of his shorts

and the bottom of his shirt. Corporal Gage patted him down and Sergeant Ray

observed what appeared to be synthetic marijuana on the back of Tolentino’s

shorts. According to Corporal Gage, he maintained a clear line of sight of the

Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 2 of 8 two occupants who remained in the Yukon and the occupants did not make

any movements towards the front passenger seat. Sergeant Ray did not see the

occupants in the vehicle make any movements. The two remaining occupants

exited the vehicle and stood near the police vehicles.

[3] Sergeant Ray’s K-9 alerted following a free air sniff. Sergeant Ray observed

crystals in plain view, which he believed to be methamphetamine and which

“were loose just sitting on the seat.” Id. at 62. Corporal Gage then returned to

the front passenger seat and observed a small crystal-like white substance which

he immediately recognized from his training and experience to be

methamphetamine. Sergeant Ray performed a field test of the substance which

indicated a positive result for methamphetamine. The substance found on the

front passenger seat was later determined by a forensic scientist with Indiana

State Police Lab to contain methamphetamine and had a net weight of .06

grams.

[4] The officers further discovered a glass pipe with burnt methamphetamine

residue, a bag of methamphetamine, and a bag of a synthetic lookalike

substance on Guzman. According to Sergeant Ray, there were clothes in the

vehicle and the driver of the vehicle told him she had been sleeping in the

vehicle. When booking him at police detention, law enforcement determined

Tolentino’s correct identity and that his birth date was March 8, 1996.

[5] The State charged Tolentino with possession of methamphetamine as a level 6

felony. The court held a bench trial at which it heard testimony from Corporal

Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 3 of 8 Gage, Sergeant Ray, and the Indiana State Police Lab forensic scientist. The

court admitted a recording taken from Corporal Gage’s body camera showing

the search of the vehicle. During Corporal Gage’s testimony, the court

referenced the white specks on Tolentino’s shorts and asked,“[w]hether it’s now

or then or somewhere in between, did you ever have a thought of what you

thought those white specks were,” and Corporal Gage answered affirmatively.

Id. at 54. When asked “[w]hat did you think they were, even if they weren’t

tested,” he answered: “I would suspect them to be methamphetamine residue or

trace amounts of methamphetamine crystals.” Id.

[6] The court stated that it understood constructive possession was very fact

specific and it is possible for a person to enter a vehicle and not have knowledge

of something illegal in the vehicle, that here the methamphetamine was directly

under Tolentino and touching his body, Tolentino gave a false name and date

of birth to police, he was fidgeting, and he did not want to exit the vehicle. The

court stated that, considering all of the evidence and the specific facts of this

case, it found Tolentino guilty of possession of methamphetamine as a level 6

felony.

Discussion

[7] When reviewing the sufficiency of the evidence to support a conviction, we

consider only the probative evidence and reasonable inferences supporting the

verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder’s

role, not that of appellate courts, to assess witness credibility and weigh the

evidence to determine whether it is sufficient to support a conviction. Id. Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 4 of 8 When confronted with conflicting evidence, we must consider it “most

favorably to the trial court’s ruling. Id. We will affirm unless no reasonable

factfinder could find the elements of the crime proven beyond a reasonable

doubt. Id. The evidence is sufficient if an inference may reasonably be drawn

from it to support the verdict. Id. at 147.

[8] Tolentino argues he was sitting on a miniscule amount of methamphetamine in

a vehicle which belonged to someone else, he did not have exclusive control

over the vehicle, it looked like the driver was living in the vehicle, and it is

unreasonable under these circumstances to conclude that he had the requisite

knowledge of the methamphetamine. He points out that another occupant of

the vehicle was found with a glass pipe and a baggie of almost three grams of

methamphetamine.

[9] Ind. Code § 35-48-4-6.1 provides: “A person who, without a valid prescription

or order of a practitioner acting in the course of the practitioner’s professional

practice, knowingly or intentionally possesses methamphetamine (pure or

adulterated) commits possession of methamphetamine, a Level 6 felony . . . .”

[10] It is well-established that possession of an item may be either actual or

constructive. Canfield v. State, 128 N.E.3d 563, 572 (Ind. Ct. App. 2019) (citing

Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g, 685

N.E.2d 698 (Ind. 1997)), trans. denied. Actual possession occurs when a person

has direct physical control over an item. Grubbs v. State, 132 N.E.3d 451, 453

(Ind. Ct. App. 2019) (citing Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011)),

Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 5 of 8 reh’g denied. Constructive possession occurs when a person has the capability to

maintain dominion and control over the item and the intent to maintain

dominion and control over it. Canfield, 128 N.E.3d at 572 (citing Lampkins, 682

N.E.2d at 1275). The capability element of constructive possession is met when

the State shows that the defendant is able to reduce the contraband to the

defendant’s personal possession. Id. (citing Goliday v. State, 708 N.E.2d 4, 6

(Ind. 1999)). The intent element of constructive possession is shown if the State

demonstrates the defendant’s knowledge of the presence of the contraband. Id.

(citing Goliday, 708 N.E.2d at 6).

[11] A defendant’s knowledge 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 contraband. Id. (citing Goliday, 708 N.E.2d at 6).

These additional circumstances may include: “(1) a defendant’s incriminating

statements; (2) a defendant’s attempting to leave or making furtive gestures; (3)

the location of contraband like drugs in settings suggesting manufacturing; (4)

the item’s proximity to the defendant; (5) the location of contraband within the

defendant’s plain view; and (6) the mingling of contraband with other items the

defendant owns.” Id. at 572-573 (citing Gray, 957 N.E.2d at 175). The State is

not required to prove all additional circumstances when showing that a

defendant had the intent to maintain dominion and control over contraband.

Id. at 573 (citing Gee v. State, 810 N.E.2d 338, 344 (Ind. 2004)).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 6 of 8 [12] The evidence most favorable to Tolentino’s conviction reveals that, when

Corporal Gage approached the Chevrolet Yukon, Tolentino was seated in the

front passenger seat and provided a false name and date of birth. Corporal

Gage testified that Tolentino was “very fidgety with his hands and reaching

around.” Transcript Volume II at 20. When asked to exit the vehicle,

Tolentino initially refused and asked why he needed to exit. When Tolentino

eventually stepped out of the vehicle, Corporal Gage noticed a white substance

on the front side of his shorts and the bottom of his shirt, and Sergeant Ray

noticed there was a substance on the back of his shorts. When asked what he

thought the white specks were on Tolentino’s shorts, Corporal Gage, a certified

drug recognition expert, testified: “I would suspect them to be

methamphetamine residue or trace amounts of methamphetamine crystals.” Id.

at 54. Corporal Gage testified that he maintained a clear line of sight of the two

occupants who remained in the Yukon after Tolentino exited the vehicle and

that the occupants did not make any movements towards the front passenger

seat, and Sergeant Ray similarly testified that he did not see the occupants of

the vehicle make any kind of movements. After the K-9 alerted, Sergeant Ray

observed the methamphetamine crystals in plain view “loose just sitting on the

seat,” and Corporal Gage returned to the front passenger seat and also observed

the crystals which he immediately recognized to be methamphetamine. Id. at

62. The crystals found on the front passenger seat were determined to contain

methamphetamine and had a net weight of .06 grams.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 7 of 8 [13] Based upon the record and the facts of this case, we conclude that the State

presented evidence of probative value from which a reasonable trier of fact

could have found that Tolentino committed the offense of possession of

methamphetamine as a level 6 felony and that his arguments amount to an

invitation to reweigh the evidence.

[14] For the foregoing reasons, we affirm Tolentino’s conviction.

[15] Affirmed.

Robb, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 8 of 8