Bryant Hughes v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 12, 2016
• Docket: 49A02-1602-CR-217
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be Oct 12 2016, 8:40 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing 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 Suzy St. John Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bryant Hughes October 12, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1602-CR-217 v. Appeal from the Marion County Superior Court State of Indiana, The Honorable Jose Salinas, Judge Appellee-Plaintiff. Trial Court Cause No. 49G14-1504-F6-12426

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016 Page 1 of 6 Case Summary [1] Following a bench trial, Bryan Hughes was found guilty of Level 6 felony

possession of cocaine. Hughes now appeals, arguing that the evidence is

insufficient to support his conviction. We affirm.

Facts and Procedural History [2] Around midnight on April 10, 2015, Officers Jon King and Melissa Lemrick of

the Indianapolis Metropolitan Police Department arrived at Hughes’ home to

serve Hughes with an arrest warrant. When the officers arrived, Hughes was

sitting on his front porch talking with a neighbor, who was standing in the

grass. The porch was dark so the officers used their flashlights. The officers

placed Hughes under arrest. In a search incident to arrest, Officer King began

removing Hughes’ personal belongings from his pockets and placing them on a

chair on the porch. Before placing the items on the chair, Officer King

confirmed that the chair was empty. While Officer King was still emptying

Hughes’ pockets, Officer Lemrick pointed out on the chair a small plastic bag

with a white substance in it, which both she and Officer King immediately

recognized as cocaine. Tr. p. 9. Hughes was arrested for possession of cocaine.

The white substance was later tested and confirmed to be 0.24 grams of

cocaine.

[3] The State charged Hughes with Level 6 felony possession of cocaine. During

the bench trial, Hughes testified that he did not have a bag of cocaine in his

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016 Page 2 of 6 pockets and that he had no knowledge of where the cocaine came from. Id. at

27. The trial court found him guilty:

I will note for the record that I think the testimony was pretty clear that when the officer conducted a patdown of the Defendant, he pulled things out – handfuls of things out of the Defendant’s pocket and put them on the chair. He noted for the record pretty clear that there was nothing on the chair prior to starting the search.

He did not – while I’m going to concede that he did not say, I knew what was in there when I pulled it out immediately – it had had to be pointed out to him by the second officer – it was pretty clear that nothing was on – he said nothing was on the chair prior, and that the substance was noted by the second officer as part of the stuff that was on the chair where the officer put it – where the officer was conducting a patdown was putting the things.

So the logical and reasonable conclusion was that the item, the contraband, came out of the Defendant’s pocket.

Id. at 42-43.

[4] Hughes now appeals.

Discussion and Decision [5] Hughes contends that the evidence is insufficient to support his conviction.

When reviewing the sufficiency of the evidence, we neither reweigh the

evidence nor determine the credibility of witnesses. Bailey v. State, 979 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016 Page 3 of 6 133, 135 (Ind. 2012). We look solely to the evidence most favorable to the

judgment together with all reasonable inferences to be drawn therefrom. Id. A

conviction will be affirmed if the probative evidence and reasonable inferences

to be drawn from the evidence could have allowed a reasonable trier of fact to

find the defendant guilty beyond a reasonable doubt. Id.

[6] A conviction for possession of cocaine may rest upon either actual or

constructive possession. Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct.

App. 2009), trans. denied. A person actually possesses contraband when he has

direct physical control over it. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).

“But a conviction for a possessory offense does not depend on catching a

defendant red-handed.” Id.

[7] We find that the State presented sufficient evidence to prove that Hughes had

actual possession of the cocaine.1 At trial, Officer King testified that it was dark

outside, that he and Officer Lemrick were using flashlights in order to see, that

the chair was empty before he placed Hughes’ personal items on the chair, that

he was the only one putting things in the chair, and that he was removing

“handfuls” of things from Hughes’ pockets. Tr. p. 8, 15, 16, 18. Officer King

also testified that Officer Lemrick called Officer King’s attention to the small

1 Because we find that the evidence is sufficient to prove that Hughes had actual possession of the cocaine, we do not address his constructive-possession argument.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016 Page 4 of 6 bag of cocaine only after Hughes’ personal effects were on the chair. Id. at 9,

12.

[8] Nevertheless, Hughes argues that we should reverse because, even though

Officer King testified on direct examination that Officer Lemrick pointed out

the bag of cocaine “on the chair,” id. at 9, he testified on cross-examination that

he could not recall if the bag was on the chair or in Officer Lemrick’s hand

when he first saw it, id. at 17. However, the trial court heard all of this

testimony and expressly concluded that “when [Officer King] conducted a

patdown of the Defendant . . . nothing was on the chair prior, and that the

substance was noted by the second officer as part of the stuff that was on the

chair where [Officer King] put it . . . .” Tr. p. 42-43. This Court will not

reweigh the evidence nor determine the credibility of witnesses; that role is

reserved for the finder of fact. See Bailey, 979 N.E.2d at 135.

[9] Based on the evidence, the trial court could reasonably conclude that the

cocaine found came from Hughes’ pockets and was therefore in his actual

possession.2 The evidence is sufficient to support Hughes’ Level 6 felony

conviction for possession of cocaine.

2 Hughes cites Boarman v. State, 509 N.E.2d 177 (Ind. 1987), and Polk v. State, 683 N.E.2d 567 (Ind. 1997), arguing that his circumstances are different. We disagree. In both Boarman and Polk, officers confirmed at the start of their shifts that no contraband was present in the backseats of their cars, before Boarman and Polk were placed in the backseats. After Boarman and Polk were taken out of the cars, contraband was found in the backseats. The Indiana Supreme Court held that this was sufficient to convict both defendants of actual possession of drugs. Similar to Boarman and Polk, Officer King confirmed that there was nothing in the chair

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016 Page 5 of 6 [10] Affirmed.

Baker, J., and Najam, J., concur.

before emptying the contents of Hughes’ pockets onto the chair where cocaine was subsequently found with Hughes’ other personal effects.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-217 | October 12, 2016 Page 6 of 6