Curtis Jarvis Carter v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 15, 2020
• Docket: 19A-CR-2489
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 15 2020, 9:19 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven R. Knecht Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Josiah J. Swinney Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Curtis Jarvis Carter, July 15, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2489 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Thomas C. Appellee-Plaintiff. Perrone, Judge Trial Court Cause No. 09D02-1803-F2-6

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020 Page 1 of 10 STATEMENT OF THE CASE [1] Appellant-Defendant, Curtis Carter (Carter), appeals his conviction for dealing

in a narcotic drug (heroin), a Level 2 felony, Ind. Code §§ 35-48-4-1(a)(2), -

(e)(1); and dealing in cocaine, a Level 3 felony, I.C. §§ 35-48-4-1(a)(2), -(d)(1).

[2] We affirm.

ISSUE [3] Carter presents the court with one issue, which we restate as: Whether the

State proved beyond a reasonable doubt that he possessed heroin and cocaine

sufficient to support his dealing convictions.

FACTS AND PROCEDURAL HISTORY [4] Carter and Darrell Wright (Wright) have the same mother. Although they had

fallen out of contact, the two became reacquainted in 2017. Prior to March 5,

2018, Carter and Wright had both been dealing drugs. Carter, who went by the

name Capo, mainly dealt in Monticello, Indiana, while Wright mainly dealt in

Lafayette, Indiana.

[5] On March 2, 2018, Carter texted username “TravD Friend” that “I’m almost

there[.]” (Exh. Vol. p. 45). About an hour later, TravD Friend texted Carter a

picture of a brownish substance on a scale that read “.84” and told Carter, “fuck

bro, .84 man[,]” “we cool tgo, just hook it up in the next one[,]” and “u need a

new scale haha[.]” (Exh. Vol. pp. 45, 47). Later that day, Carter and Wright

drove a rental car to Chicago for the weekend. While Carter was in Chicago

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020 Page 2 of 10 that Saturday, he received a text message from TravD Friend asking, “u for sure

gonna have the full g and gonna be in monti tomorrow rite?” to which Carter

responded, “Yea bro[.]” (Exh. Vol. p. 46). On Sunday when Carter and

Wright were still in Chicago, TravD Friend texted Carter, “bro!!! I need a .5

pronto” followed approximately two hours later by a text from TravD Friend to

Carter, simply stating, “broooooooo!” (Exh. Vol. p. 46). Carter also received

texts from username “halie” stating, “Capo wya man[,]” and “Lemme know

sum g. u said yu would be back yesterday. Im sick, my ppl sick.” (Exh. Vol. p.

50).

[6] On Monday, March 5, 2020, Wright and Carter left Chicago for Logansport,

Indiana, with Wright driving. The Cass County Drug Task Force (DTF) had

become aware that the phone number used by Carter to receive and send the

aforementioned text messages was associated with drug dealing. The DTF had

procured a ping warrant to track GPS data associated with the phone number.

The DTF had been monitoring the phone’s whereabouts in Chicago over the

weekend and knew that the phone was heading south on U.S. 35, where a DTF

official visually tied the ping signal to Carter and Wright’s car. After the DTF

official observed the car driven by Wright committing two traffic violations,

Deputy Ryan Preston (Deputy Preston) of the Cass County Sheriff’s

Department initiated a traffic stop on U.S. 35 near 475 North, assisted by

Officer Andrew Strong (Officer Strong) of the DTF, who arrived a short time

later.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020 Page 3 of 10 [7] Deputy Preston approached the driver’s side window while Officer Strong

approached the passenger side. Wright unrolled his window two inches to

speak to the deputy. When Deputy Preston received no response to his request

that Wright unroll his window further to ease communication, Deputy Preston

told Wright that he would have his canine partner conduct a free-air sniff of the

car. Wright placed the car in gear and sped away, leading Deputy Preston,

Officer Strong, and other assisting officers on a high-speed chase through rural

Cass County. On 200 North just east of U.S. 35, Wright drove through a

“Road Closed, High Water” barricade with Deputy Preston directly behind

him. Deputy Preston observed Wright stick his left hand out of the driver’s side

window and drop a baseball-sized object. Wright and Carter’s car stalled in the

high water, bringing the chase to an end. Deputy Preston searched the area

where he had seen Wright drop the object and discovered a plastic bag

containing what was later determined to be 72.48 grams of a heroin/fentanyl

mix and 5.19 grams of cocaine. A search of the car after Wright and Carter

were taken into custody revealed two cell phones on the passenger seat owned

by Carter, one of which was the cell phone that was the subject of the ping

warrant, one cell phone on the driver’s side, and one cell phone in the car’s

center console. A fifth cell phone was found in the back hatch of the car in a

backpack which also contained digital scales, small plastic baggies, a razor

blade, and latex gloves.

[8] Wright and Carter were placed under arrest and booked on charges of dealing

and possessing heroin and cocaine. While he was being booked, Carter called

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020 Page 4 of 10 his girlfriend and told her at one point during their conversation, “I made my

own bed. I gotta lay in it.” (Exh. 31 at 3:00). Throughout the day of March 5,

2018, Carter continued to receive texts on his cell phone. Username “halie”

texted him, “U back g?”, “Capo, wtf let me know something Im sick as fuck”

and “Dude please hmu[.]” (Exh. Vol. 50). Username “Dustin” asked Carter,

“When u gonna be down u needing a ride here?” and, receiving no response

from Carter, texted him, “Julie is feelin sick n been drivin me crazy askin when

u was supposed to be here a million times or if I talked to you yet[.]” (Exh.

Vol. p. 51).

[9] On March 5, 2018, the State filed an Information, charging Carter with Level 2

felony dealing in a narcotic drug (heroin), Level 3 felony possession of a

narcotic drug (heroin), Level 3 felony dealing in cocaine, Level 5 felony

possession of cocaine, Level 6 felony resisting law enforcement, and Class B

misdemeanor visiting a common nuisance. On September 4, 2019, the trial

court convened Carter’s two-day jury trial. Prior to the commencement of trial,

the trial court granted the State’s motion to dismiss the visiting a common

nuisance charge. The jury heard testimony that Chicago is a “source city” for

heroin, that baggies, gloves, razor blades, and digital scales are all used by drug

dealers to package narcotics for sale, and that possession of 72.48 grams of

heroin was more indicative of a dealer than a user. (Tr. p. 178). Carter’s text

messages were admitted at trial, including those referring to Carter’s clients

being sick. A DTF officer explained to the jury that opioid users such as heroin

addicts feel sick when they experience withdrawal. Carter testified on his own

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020 Page 5 of 10 behalf that, prior to March 5, 2018, he had been dealing drugs in Monticello

and that most of the text messages admitted at trial were about heroin, but he

denied any knowledge of the heroin and cocaine found in the car on March 5,

2018. The prosecutor argued during closing statements that Carter and Wright

had jointly possessed the heroin and cocaine. The jury found Carter guilty on

all charges except for resisting law enforcement.

[10] On October 1, 2019, the trial court held Carter’s sentencing hearing. The trial

court found Carter’s criminal history to be an aggravating circumstance, and it

found no mitigating circumstances. Due to double jeopardy concerns, the trial

court did not sentence Carter for his possession of heroin and possession of

cocaine convictions. The trial court sentenced Carter to twenty years for

dealing in a narcotic drug (heroin) and to ten years for dealing in cocaine, to be

served consecutively, for an aggregate sentence of thirty years.

DISCUSSION AND DECISION I. Standard of Review

[11] Carter challenges the evidence supporting his conviction. It is well-established

that when we review 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 not our role as an

appellate court to assess witness credibility or to weigh the evidence. Id. We

will affirm the conviction unless no reasonable fact-finder could find the

elements of the crime proven beyond a reasonable doubt. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020 Page 6 of 10 II. Constructive Possession

[12] The State charged Carter in the dealing Counts with “knowingly or

intentionally possess[ing] with the intent to deliver [h]eroin . . . having a weight

of at least 10 grams” and “knowingly or intentionally possess[ing] with intent to

deliver cocaine . . . having a weight of at least 5 grams, but less than 10

grams[.]” (Appellant’s App. Vol. II, p. 15). Thus, in order to prove the dealing

offenses, the State was required to show that Carter possessed the heroin and

cocaine found in the car on March 5, 2018. Carter argues that the evidence

showed that only Wright possessed them.

[13] If a person does not have direct physical control over an item, he may,

nevertheless, constructively possesses it if he has the capability and intent to

maintain dominion and control over it. Gray v. State, 957 N.E.2d 171, 174 (Ind.

2011). When a defendant has exclusive possession of the premises where the

item was found, an inference arises that he knew of the presence of the item and

was capable of controlling it. Id. However, if possession of the premises is not

exclusive, as is the case here, a trier of fact may still infer that a defendant had

the requisite intent if additional circumstances indicate a defendant’s knowledge

of the presence and nature of the item. Id. Examples of these additional

circumstances include incriminating statements by the defendant, attempted

flight or furtive gestures, a drug manufacturing setting, proximity of the

defendant to the item, whether the item is in plain view, and other items

belonging to the defendant in close proximity to the item. Id. These are merely

examples of additional circumstances which may show constructive possession.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020 Page 7 of 10 Cannon v. State, 99 N.E.3d 274, 279-80 (Ind. Ct. App. 2018), trans. denied. Other

circumstances may just as reasonably demonstrate the requisite knowledge. Id.

at 280.

[14] Carter acknowledges that the evidence showed that he was capable of

exercising control over the heroin and cocaine at issue. However, he argues his

possessory interest in the car was not exclusive due to Wright’s presence and

that the State failed to show additional circumstances pointing to his knowledge

of the presence and nature of the heroin and cocaine. While we agree with

Carter’s argument that his mere presence in the car as a passenger was not

adequate to demonstrate the requisite knowledge, we disagree with him that the

State failed to show adequate additional circumstances indicating that

knowledge. Carter’s text messages and his own admissions at trial showed that

Carter and Wright were both dealing drugs, Carter was actively dealing heroin

in the days leading up to the March 5, 2018, traffic stop, and Carter had clients

who expected him to deliver heroin on Sunday, March 4, 2018. During that

weekend, Carter and Wright visited Chicago, a “source city” for heroin, even as

Carter’s clients continued to inquire when he was to return. (Tr. p. 178). After

the traffic stop was initiated, Wright was observed tossing a dealer’s amount of

heroin and over 5 grams of cocaine out of the window of the car, and the

subsequent search of the car yielded a backpack containing the tools of the drug

dealer’s trade, namely scales, a razor blade, gloves, and baggies. On the same

day that he was arrested and booked on heroin and cocaine dealing charges,

Carter’s clients continued to inquire about heroin, and Carter told his girlfriend

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020 Page 8 of 10 in a phone call that “I made my own bed. I gotta lay in it.” (Exh. 31 at 3:00).

The jury could have reasonably inferred from these additional circumstances

that Carter travelled to Chicago to procure heroin to satisfy his impatient

customers and that he, therefore, knew that the heroin and the cocaine

packaged with it were in the car.

[15] Carter attempts to argue otherwise by directing our attention to myriad

circumstances which he contends undercut the State’s showing, such as his

testimony at trial that he did not know about the heroin and cocaine until the

officer retrieved it from where it was thrown and that he had been smoking

marijuana right before the traffic stop, which he would never had done if he had

known there were other drugs in the car. Carter invites us to speculate that the

bag containing the heroin and cocaine was small enough to be secreted under

Wright’s clothing, making his contention that he had not known about the

drugs more probable. These arguments are unavailing, as crediting them would

entail consideration of the evidence that does not support the jury’s verdict

and/or a reweighing of the evidence on our part. Doing so would be contrary

to our standard of review. See Drane, 867 N.E.2d at 146.

[16] Carter also argues that the absence of any incriminating statements or flight on

his part, the fact that the heroin and cocaine were not found in a manufacturing

setting, and the absence of any of his belongings found near the heroin and

cocaine all meant that the State failed to make its case. However, Carter’s

argument overlooks his comment to his girlfriend that “I made my own bed. I

gotta lay in it[,]” which the jury could have reasonably inferred to be an

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020 Page 9 of 10 inculpatory statement. (Exh. 31 at 3:00). In addition, the factors listed in

constructive possession jurisprudence are not necessary or exclusive. See

Cannon, 99 N.E.3d at 280 (“[T]he listed circumstances are not exhaustive.”). In

other words, the absence of one or more of the circumstances which may prove

constructive possession does not render the State’s showing inadequate.

Because the evidence supported a reasonable inference that Carter knew about

the heroin and cocaine in the car, we affirm the jury’s verdict.

CONCLUSION [17] Based on the foregoing, we conclude that the State proved beyond a reasonable

doubt that Carter possessed heroin and cocaine sufficient to support his dealing

convictions.

[18] Affirmed.

Mathias, J. and Tavitas, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020 Page 10 of 10