MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 26 2019, 8:08 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John Kindley Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana
Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dennis P. Bell, August 26, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-321 v. Appeal from the Pulaski Superior Court State of Indiana, The Honorable Crystal A. Kocher, Appellee-Plaintiff. Judge Trial Court Cause No. 66D01-1706-F6-99
Darden, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 1 of 15 Statement of the Case [1] Dennis P. Bell appeals his convictions of possession of methamphetamine, a 1 2 Level 6 felony; and possession of paraphernalia, a Class C misdemeanor. We
affirm.
Issues [2] Bell raises two issues, which we restate as:
I. Whether the trial court erred in denying Bell’s motion for discharge.
II. Whether there is sufficient evidence to support his convictions.
Facts and Procedural History [3] On June 19, 2017, at 2:25 a.m., Deputy Robert P. Foerg of the Pulaski County
Sheriff’s Office was on patrol. He stopped a car after he saw it drive left of
center while making a sharp turn. Bell was driving the car, and Kassie Gould
was sitting in the front passenger seat. Deputy Foerg recognized them from
past encounters.
1 Ind. Code § 35-48-4-6.1 (2014). 2 Ind. Code § 35-48-4-8.3 (2015).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 2 of 15 [4] Deputy Foerg obtained their drivers’ licenses and the car’s registration and
license plate number. He entered the information on his car’s computer and
determined Bell’s and Gould’s licenses were valid. The deputy also learned the
car was registered to Sherie McCrory, who he later discovered was Bell’s
girlfriend. Next Deputy Foerg asked for backup, and another officer arrived.
[5] Deputy Foerg returned to Bell’s car and asked him to step out for a pat down
search for officer safety. Bell complied, and the officer did not find any
weapons. At that point, Deputy Foerg issued an oral warning to Bell for
driving left of center and then asked if he could search the car. Bell consented
to a search. Bell denied having any illegal substances in the car.
[6] Deputy Foerg also asked Gould to step out of the car and patted her down. She
did not have any weapons, so he next had Bell and Gould stand with the other
officer while he searched Bell’s car. During the search, which was recorded on
Deputy Foerg’s body camera, he found a “cut plastic straw on the front
passenger seat which contained a white powder.” Tr. Vol. 2, p. 190. He also
found a package of straws on the floor in front of the passenger seat. The
deputy then found a “pen tube that looked like it had a white powdery
substance in it as well.” Id. at 191-92. Based on his experience and training,
Deputy Foerg was aware that straws and pen tubes are items commonly used to
ingest controlled substances. He field-tested the straw, and it tested positive for
methamphetamine.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 3 of 15 [7] The officers arrested Bell and Gould. After being handcuffed, Bell mumbled
the name “Oscar,” but did not explain further. Tr. Vol. 2, p. 195. A portion of
the straw was sent to the Indiana State Police Laboratory, and further testing
confirmed that the straw contained methamphetamine.
[8] On June 20, 2017, the State charged Bell with possession of methamphetamine, 3 a Level 6 felony; maintaining a common nuisance, a Level 6 felony; and
possession of paraphernalia, a Class C misdemeanor. That same day, the trial
court issued an order determining that probable cause existed for the initial
arrest. The trial court set bond in the sum of $5,000, 10% payable by cash or
surety, and, apparently, set the matter for an initial hearing on July 13, 2017.
Bell bonded out on June 20, 2017.
[9] On July 13, 2017, the trial court held an initial hearing. Bell did not appear.
The trial court issued an order indicating that an unidentified person had
informed the trial court that Bell was “incarcerated in the Porter County Jail.”
Appellant’s App. Vol. II, p. 24. The order further provided that upon the
State’s request, the trial court issued a warrant for Bell’s arrest, ordering that he
be held without bond upon apprehension. The trial court’s Chronological Case
Summary is void of any notation of personal contact by Bell for approximately
the next six to seven months.
3 Ind. Code § 35-45-1-5 (2016).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 4 of 15 [10] Finally, on February 5, 2018, Bell filed with the trial court a pro se letter asking
the court to schedule a new hearing date in his case. He apparently did not
send a copy of the letter to the State via the prosecutor’s office. In his letter,
Bell acknowledged he had failed to appear in court and explained he had been
incarcerated in the Porter County Jail since July 12, 2017. He further explained
that he expected to be released by April 2, 2018. Later that day, the trial court
issued an order in which it interpreted Bell’s letter as a request to recall the
arrest warrant. The trial court denied Bell’s request to recall the warrant that
had been issued on July 13, 2017.
[11] The Chronological Case Summary indicates that the arrest warrant was served
on Bell on March 12, 2018. The trial court held an initial hearing on March 13,
2018. At the hearing, Bell appeared pro se and informed the trial court that he
intended to hire an attorney. The trial court scheduled a pretrial hearing for
April 30, 2018, and set an omnibus date of May 11, 2018. The trial court did
not set a trial date at that time. Bell asked to be released on his original bond,
but the trial court rejected his request and set bond at $10,000, with 10 percent
cash or surety.
[12] The trial court held a pretrial hearing as scheduled on April 30, 2018. Bell,
again, appeared pro se. The trial court scheduled a final pretrial conference for
June 12, 2018, but did not set a date for a jury trial.
[13] On May 4, 2018, an attorney filed an appearance on behalf of Bell and a
motion for discovery. On June 11, 2018, Bell, by counsel, filed a motion to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 5 of 15 continue the final pretrial conference, asserting that the State had failed to
provide requested discovery. The State indicated that it had complied with his
discovery requests on June 7, 2017. The trial court granted the motion that
same day and rescheduled the final pretrial conference for July 30, 2018. The
Chronological Case Summary contains the following additional entry for June
11, 2018: “Court has Dep. Pros. Atty. Gaumer verify status of time line
regarding Criminal rule [sic] 4 in this cause. State informs the Court that time
begins at the Defendant’s initial hearing on March 13, 2018.” Id. at 5.
[14] On July 30, 2018, the parties appeared for the previously scheduled final
pretrial conference. Bell, by counsel, requested a jury trial setting and further
asked the trial court to schedule a deadline for a plea agreement. In addition,
Bell told the trial court that he believed “there is a Criminal Rule 4 issue.” Id.
After further discussion, Bell asked the trial court to schedule a status hearing to
allow the court and the parties to resolve the Criminal Rule 4 issue. In
response, the trial court scheduled a status hearing for August 9, 2018, ordering
Bell to file “any motion regarding Criminal Rule 4” within seven days of July
30, 2018. Id. The trial court further stated, “[a]ny delay from this date forward
is charged to the Defendant for Criminal Rule 4 purposes.” Id. The trial court
did not schedule a jury trial date at that time.
[15] On August 8, 2018, Bell filed a motion for discharge pursuant to Criminal Rule
4(C), with a supporting memorandum of law. On August 9, 2018, the trial
court held a status conference as scheduled. During the status conference
hearing, the trial court scheduled a jury trial for August 24, 2018, but Bell
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 6 of 15 indicated that date was unacceptable because his counsel had a scheduling
conflict. At Bell’s request, the trial court rescheduled the jury trial for August
31, 2018. In addition, the trial court scheduled an evidentiary hearing for Bell’s
motion for discharge, to be held on August 29, 2018. The trial court stated,
“[t]he delay is charged to the Defendant.” Id. at 6.
[16] On August 21, 2018, the trial court rescheduled the evidentiary hearing on
Bell’s motion for discharge for August 23, 2018. On August 24, 2018, the trial
court issued an order denying Bell’s motion for discharge and vacating the
August 31, 2018 trial date. In that same order, the trial court scheduled the jury
trial for November 7, 2018.
[17] The trial court presided over the jury trial as scheduled on November 7, 2018.
During the trial, Deputy Foerg testified, without any objection from Bell, that at
the time of the traffic stop he, from an unnamed source, “had previously
received information that [Bell] was manufacturing methamphetamine and
using methamphetamine with Kassie Gould.” Tr. Vol. 2, p. 189. In addition,
during cross-examination by Bell, the deputy further stated he was aware that,
in a separate case, Gould had pleaded guilty to possession of methamphetamine
in connection with the June 19, 2017 traffic stop and arrest. Moreover, after a
conference with counsel and the approval of both parties, the trial court
instructed the jury that the trial court had taken judicial notice that Gould had
pleaded guilty to possession of methamphetamine in connection with the June
19, 2017 traffic stop and arrest.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 7 of 15 [18] The jury found Bell was guilty of possession of methamphetamine and
possession of paraphernalia, but not guilty of maintaining a common nuisance.
On January 8, 2019, the trial court imposed a sentence. This appeal followed.
Discussion and Decision I. Criminal Rule 4 [19] Bell argues he was entitled to have the case dismissed because the State failed to
bring him to trial within one year of being charged. The State responds that the
trial court did not err in denying Bell’s motion for discharge because any delay
was due mostly to Bell’s incarceration in another county and his failure to
timely inform the trial court and the prosecutor of his whereabouts.
[20] An accused’s right to a speedy trial is guaranteed by article I, section 12 of the
Indiana Constitution and by the Sixth Amendment to the United States
Constitution. State v. Lindauer, 105 N.E.3d 211, 214 (Ind. Ct. App. 2018), trans.
denied. Indiana Criminal Rule 4 was adopted to implement the right to a
speedy trial. Id. The parties agree that Bell’s motion for discharge is governed
by Indiana Criminal Rule 4(C), which provides in relevant part:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; . . . . Any defendant so held shall, on motion, be discharged. Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 8 of 15 [21] The State thus bears the burden of bringing the defendant to trial within Rule
4(C)’s prescribed one-year deadline. State v. Larkin, 100 N.E.3d 700, 703 (Ind.
2018). But the defendant’s actions during the relevant time period, including
requesting continuances or otherwise causing delays, will extend the deadline:
“When a continuance is had on motion of the defendant, or delay in trial is
caused by his act, any time limitation contained in [Rule 4] shall be extended by
the amount of the resulting period of such delay caused thereby.” Ind.
Criminal Rule 4(F). The objective of Rule 4 is to move cases along and to
provide the defendant with a timely trial, not to create a mechanism to avoid
trial. Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000).
[22] The State filed charges against Bell on June 20, 2017, but Bell was not brought
to trial until November 7, 2018, 504 days later, well after the one-year
prescribed deadline of June 20, 2018. Bell was entitled to discharge unless the
delay was attributable to him. This issue presents a question of law applied to
undisputed facts, and our standard of review is de novo. Austin v. State, 997
N.E.2d 1027, 1039 (Ind. 2013).
[23] The parties’ dispute focuses on the time period from July 13, 2017, when Bell
failed to appear for his initial hearing, to February 5, 2018, when, on record,
Bell notified the trial court in writing that he was incarcerated in another
county. If that period of time, 207 days, is chargeable to Bell, then the trial
deadline was extended by 207 days from June 20, 2018 to January 13, 2019,
and the November 7, 2018 jury trial was held within the prescribed one-year
deadline, in compliance with Rule 4(C).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 9 of 15 [24] In Werner v. State, 818 N.E.2d 26, 27 (Ind. Ct. App. 2004), trans. denied, the
State charged Werner with possession of marijuana. Werner appeared at
several pretrial conferences, but on November 9, 2000, an unidentified
individual called the offices of the county clerk to advise that Werner was
incarcerated in another county. Werner failed to appear at a pretrial
conference, and his bail bonding agent called the trial court’s bailiff to advise
that Werner would be incarcerated in the other county for an indeterminate
period of time. Subsequently, Werner was not released until May 23, 2001.
[25] The trial court resumed pretrial proceedings after Werner’s release, but Werner
eventually objected to a rescheduled trial date and moved to dismiss under Rule
4(C). The trial court denied the motion, and Werner sought interlocutory
review. On appeal, the key question was whether Werner’s objection was
timely. In the course of answering the question, a panel of this Court had to
determine which party was responsible for the delay that occurred between
when Werner failed to appear for a pretrial conference and when he was
released from incarceration in the other county. Werner argued that the time
was not chargeable to him because he had arranged for two individuals to
contact the trial court to provide notification of his incarceration in another
county. The Werner court determined the calls were insufficient to provide
proper notice to the trial court and to the prosecutor, concluding that a written
notice on the record was required. As a result, the Werner court determined the
period of time during which Werner was incarcerated in another county was
chargeable to Werner.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 10 of 15 [26] In the current case, the record reflects that the State informed the trial court of
information, from an unknown source, that Bell was incarcerated in Porter
County. But the record is silent as to the basis and credibility of the State’s
information and whether it was reliable. The trial court did not receive proper
confirmation of Bell’s incarceration until he personally provided written notice,
upon which the State and the trial court could rely. Following the holding in
Werner, we must conclude that the 207 days that elapsed between July 13, 2017
and February 5, 2018, until Bell provided personal written notice to the trial
court is chargeable to him. The delay extended the prescribed deadline under
Rule 4(C) well past the jury trial date of November 7, 2018. The State fulfilled
its duty under Rule 4(C), and the trial court did not err in denying Bell’s motion 4 for discharge.
II. Sufficiency of the Evidence [27] Bell claims the State failed to present sufficient evidence that he knowingly or
intentionally possessed methamphetamine or paraphernalia. The State
responds that there is ample evidence that Bell constructively possessed the
straw that contained methamphetamine in this case.
4 Bell raises additional arguments about delays that occurred after February 5, 2018, but it is unnecessary to address those arguments because they did not affect the 207-day extension caused by Bell’s failure to provide written notification of his incarceration in another county.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 11 of 15 [28] Our standard of review for challenges to the sufficiency of evidence is well-
settled:
When reviewing sufficiency of evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the trial court’s decision. It is the fact- finder’s role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when we are confronted with conflicting evidence, we consider it most favorably to the trial court’s ruling. We affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the trial court’s decision.
Parks v. State, 113 N.E.3d 269, 272-73 (Ind. Ct. App. 2018) (citations omitted).
[29] To obtain a conviction for possession of methamphetamine as a Level 6 felony,
the State was required to prove beyond a reasonable doubt that: (1) Bell (2)
knowingly or intentionally (3) possessed methamphetamine (pure or
adulterated) (4) without a valid prescription or order of a practitioner acting in
the course of the practitioner’s professional practice. Ind. Code § 35-48-4-
6.1(a). To obtain a conviction for possessing paraphernalia as a Class C
misdemeanor, the State was required to prove beyond a reasonable doubt that:
(1) Bell (2) knowingly or intentionally (3) possessed an instrument, device, or
another object that he intended to use (4) for introducing a controlled substance
into his body. Ind. Code § 35-48-4-8.3.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 12 of 15 [30] A conviction for possession of contraband may be founded upon actual or
constructive possession. Holmes v. State, 785 N.E.2d 658, 660 (Ind. Ct. App.
2003). The State does not argue that Bell actually possessed the
methamphetamine and straw, so we turn to constructive possession.
Constructive possession is the actual knowledge of the presence and illegal
character of contraband and the intent and capability to maintain dominion and
control over it. Macklin v. State, 701 N.E.2d 1247, 1251 (Ind. Ct. App. 1998).
[31] If a person does not have exclusive control of the premises where contraband
was found, then intent to maintain dominion and control may be inferred from
additional circumstances that indicate that the person knew of the presence of
the contraband. Allen v. State, 787 N.E.2d 473, 483 (Ind. Ct. App. 2003), trans.
denied. The additional circumstances may 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. Id.
[32] In this case, Bell was authorized to drive McCrory’s car, but he did not have
exclusive control of the car’s premises because Gould was inside with him. We
must examine the circumstances to determine whether Bell knew of the
presence of the contraband and possessed the intent and capability to control it.
The shortened straw containing methamphetamine was clearly visible on the
passenger seat, near where Bell had been sitting, next to a pen tube. The State
presented testimony as to how Gould was dressed, indicating she had few
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 13 of 15 pockets in which to hide the straw on her person. Also, there was evidence that
a package of straws was found on the floor of the car in front of the passenger
seat. The straw that was found on the seat, which contained white, powdery
residue, was not concealed in a container. In addition, Deputy Foerg testified
to the jury, without objection from Bell, that he “had previously received
information that [Bell] was manufacturing methamphetamine and using
methamphetamine with Kassie Gould.” Tr. Vol. 2, p. 189. Further, upon an
agreement by both parties, the trial court was allowed to inform the jury that
Gould had been convicted of possession of methamphetamine in connection
with the June 19, 2017 traffic stop and arrest.
[33] This is sufficient evidence from which a jury could find beyond a reasonable
doubt that Bell knew about the presence of the contraband and possessed the
requisite intent and capability to control it. See Macklin, 710 N.E.2d at 1251
(evidence sufficient to support constructive possession of cocaine; defendant
was driver of car, and cocaine was found on driver’s seat, in the open; driver
also provided false identification); cf. Grim v. State, 797 N.E.2d 825, 832 (Ind.
Ct. App. 2003) (insufficient evidence to support constructive possession of a
narcotic drug; drug was hidden in a case under the passenger seat, and there
was no evidence the defendant (the driver) knew it was there).
Conclusion [34] For the reasons stated above, we affirm the judgment of the trial court.
[35] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 14 of 15 Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 15 of 15