MEMORANDUM DECISION FILED 08/22/2017, 10:58 am Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Davin Shaw Law Clerk Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Hiram Bankhead, August 22, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1701-CR-88 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda E. Brown, Appellee-Plaintiff. Judge The Honorable Peggy Hart, Magistrate Trial Court Cause No. 49G10-1609-CM-35718
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 1 of 7 Case Summary [1] On September 11, 2016, Officer Clayton Portell of the Indianapolis
Metropolitan Police Department (“IMPD”) pulled over a white Chevrolet
Tahoe because he could not read the temporary license plate in the window.
After he ran the license plate number, he noticed that the expiration date on the
license plate was different from the date shown by the Bureau of Motor Vehicle
(“BMV”) return. Thinking that the vehicle may be stolen, Officer Portell called
for another officer to come to the scene. Officer Portell approached the vehicle,
and asked Appellant-Defendant Hiram Bankhead to exit the vehicle. Upon
arriving at the scene, the other officer searched the vehicle and discovered a pill
bottle containing a Schedule IV controlled substance prescribed to Rita
Bankhead in the center console of the vehicle. Officer Portell asked Hiram
about the pills, to which Hiram responded that the pills were his mother’s and
that he had been taking them but was not aware that he could not do so.
[2] Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged
Hiram with Count 1, Class A misdemeanor possession of a controlled
substance and Count 2, Class C misdemeanor displaying an altered interim
license plate. Following a bench trial, Hiram was found guilty as charged and
was sentenced to 365 days with 361 days suspended for Count 1. Hiram asserts
that the State presented insufficient evidence to support the possession charge.
Because we disagree, we affirm.
Facts and Procedural History Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 2 of 7 [3] On September 11, 2016, while on patrol, Officer Portell observed a white
Chevrolet Tahoe traveling on Washington Street. Officer Portell noticed that
there was a temporary license plate “taped up to the right side of the vehicle.”
Tr. p. 5. However, Officer Portell testified that the way the license plate was
placed along with the tint on the window made the plate difficult to read.
[4] Due to the fact that he could not adequately read the license plate, Officer
Portell activated his lights and sirens and initiated a traffic stop. Officer Portell
then pulled up behind the vehicle and ran the plate. After running the plate,
Officer Portell noticed that the expiration date that he received on his lap top
was different from the one that appeared on the plate itself. According to the
BMV return, the plate’s expiration date was March 11, 2016. However, the
license plate itself showed that the plate expired on September 11, 2016. After
discovering that the plates were different, and thinking that the vehicle may
have been stolen, Officer Portell requested that another officer come to the
scene. Officer Portell then approached the vehicle.
[5] While walking towards the vehicle, Officer Portell noticed Hiram, who was the
driver and sole occupant of the vehicle, “moving around a lot.” Tr. p. 6.
Therefore, for his own safety, Officer Portell asked Hiram to exit the vehicle
and to walk to the back of the vehicle. While standing in between his and
Hiram’s vehicle, Officer Portell noticed that there was a printed out number
nine taped over the number three on the expiration date; thus explaining why
the expiration date on the license plate differed from the date from the BMV
return.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 3 of 7 [6] After confronting Hiram about the altered plate, Officer Portell asked him for
consent to search the vehicle. Hiram gave consent to search the vehicle and
IMPD Officer Dustin Carmack performed the search while Officer Portell
remained with Hiram. During his search, Officer Carmack opened the center
console of the vehicle and found a pill bottle sitting in plain view. The pill
bottle was prescribed to Hiram’s mother, Rita Bankhead, and it contained
Tramadol Hydrochloride, which is a Schedule IV controlled substance. When
questioned about the pills, Hiram admitted that he had been taking his mother’s
pills for pain in his shoulder and that he was unaware that he could not do so.
[7] Subsequently, the State charged Hiram with Count 1, Class A misdemeanor
possession of a controlled substance and Count 2, Class C misdemeanor
displaying an altered interim license plate. Following a bench trial, Hiram was
found guilty for both charges and was sentenced to 365 days with 361 days
suspended for Count 1. Hiram argues on appeal that the State presented
insufficient evidence to sustain his conviction for possession of a controlled
substance because the State failed to prove that he had exclusive or constructive
possession of the contraband. Because we disagree, we affirm.
Discussion and Decision [8] Hiram asserts that the State did not provide sufficient evidence to convict him
of possession of a controlled substance because they failed to prove that he had
knowledge or exclusive or constructive possession of the contraband. When
reviewing a sufficiency of the evidence claim, we will neither reweigh the
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 4 of 7 evidence nor asses the credibility of witnesses. Bell v. State, 31 N.E.3d 495, 499
(Ind. 2015). We will only consider the “probative evidence and reasonable
inferences drawn from the evidence that support the verdict.” Bocanegra v. State,
969 N.E.2d 1026, 1028 (Ind. Ct. App. 2012). If a reasonable trier of fact can
find a defendant guilty beyond a reasonable doubt based on the probative
evidence and reasonable inferences drawn from the evidence, we will affirm.
Id. We consider conflicting evidence “most favorably to the trial court’s
ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). Moreover, it is “not
necessary that the evidence ‘overcome every reasonable hypothesis of
innocence.’” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting Moore v.
State, 652 N.E.2d 53, 55 (Ind. 1995)).
[9] In order to convict Hiram of the charged offense, the State was required to
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MEMORANDUM DECISION FILED 08/22/2017, 10:58 am Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Davin Shaw Law Clerk Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Hiram Bankhead, August 22, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1701-CR-88 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda E. Brown, Appellee-Plaintiff. Judge The Honorable Peggy Hart, Magistrate Trial Court Cause No. 49G10-1609-CM-35718
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 1 of 7 Case Summary [1] On September 11, 2016, Officer Clayton Portell of the Indianapolis
Metropolitan Police Department (“IMPD”) pulled over a white Chevrolet
Tahoe because he could not read the temporary license plate in the window.
After he ran the license plate number, he noticed that the expiration date on the
license plate was different from the date shown by the Bureau of Motor Vehicle
(“BMV”) return. Thinking that the vehicle may be stolen, Officer Portell called
for another officer to come to the scene. Officer Portell approached the vehicle,
and asked Appellant-Defendant Hiram Bankhead to exit the vehicle. Upon
arriving at the scene, the other officer searched the vehicle and discovered a pill
bottle containing a Schedule IV controlled substance prescribed to Rita
Bankhead in the center console of the vehicle. Officer Portell asked Hiram
about the pills, to which Hiram responded that the pills were his mother’s and
that he had been taking them but was not aware that he could not do so.
[2] Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged
Hiram with Count 1, Class A misdemeanor possession of a controlled
substance and Count 2, Class C misdemeanor displaying an altered interim
license plate. Following a bench trial, Hiram was found guilty as charged and
was sentenced to 365 days with 361 days suspended for Count 1. Hiram asserts
that the State presented insufficient evidence to support the possession charge.
Because we disagree, we affirm.
Facts and Procedural History Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 2 of 7 [3] On September 11, 2016, while on patrol, Officer Portell observed a white
Chevrolet Tahoe traveling on Washington Street. Officer Portell noticed that
there was a temporary license plate “taped up to the right side of the vehicle.”
Tr. p. 5. However, Officer Portell testified that the way the license plate was
placed along with the tint on the window made the plate difficult to read.
[4] Due to the fact that he could not adequately read the license plate, Officer
Portell activated his lights and sirens and initiated a traffic stop. Officer Portell
then pulled up behind the vehicle and ran the plate. After running the plate,
Officer Portell noticed that the expiration date that he received on his lap top
was different from the one that appeared on the plate itself. According to the
BMV return, the plate’s expiration date was March 11, 2016. However, the
license plate itself showed that the plate expired on September 11, 2016. After
discovering that the plates were different, and thinking that the vehicle may
have been stolen, Officer Portell requested that another officer come to the
scene. Officer Portell then approached the vehicle.
[5] While walking towards the vehicle, Officer Portell noticed Hiram, who was the
driver and sole occupant of the vehicle, “moving around a lot.” Tr. p. 6.
Therefore, for his own safety, Officer Portell asked Hiram to exit the vehicle
and to walk to the back of the vehicle. While standing in between his and
Hiram’s vehicle, Officer Portell noticed that there was a printed out number
nine taped over the number three on the expiration date; thus explaining why
the expiration date on the license plate differed from the date from the BMV
return.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 3 of 7 [6] After confronting Hiram about the altered plate, Officer Portell asked him for
consent to search the vehicle. Hiram gave consent to search the vehicle and
IMPD Officer Dustin Carmack performed the search while Officer Portell
remained with Hiram. During his search, Officer Carmack opened the center
console of the vehicle and found a pill bottle sitting in plain view. The pill
bottle was prescribed to Hiram’s mother, Rita Bankhead, and it contained
Tramadol Hydrochloride, which is a Schedule IV controlled substance. When
questioned about the pills, Hiram admitted that he had been taking his mother’s
pills for pain in his shoulder and that he was unaware that he could not do so.
[7] Subsequently, the State charged Hiram with Count 1, Class A misdemeanor
possession of a controlled substance and Count 2, Class C misdemeanor
displaying an altered interim license plate. Following a bench trial, Hiram was
found guilty for both charges and was sentenced to 365 days with 361 days
suspended for Count 1. Hiram argues on appeal that the State presented
insufficient evidence to sustain his conviction for possession of a controlled
substance because the State failed to prove that he had exclusive or constructive
possession of the contraband. Because we disagree, we affirm.
Discussion and Decision [8] Hiram asserts that the State did not provide sufficient evidence to convict him
of possession of a controlled substance because they failed to prove that he had
knowledge or exclusive or constructive possession of the contraband. When
reviewing a sufficiency of the evidence claim, we will neither reweigh the
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 4 of 7 evidence nor asses the credibility of witnesses. Bell v. State, 31 N.E.3d 495, 499
(Ind. 2015). We will only consider the “probative evidence and reasonable
inferences drawn from the evidence that support the verdict.” Bocanegra v. State,
969 N.E.2d 1026, 1028 (Ind. Ct. App. 2012). If a reasonable trier of fact can
find a defendant guilty beyond a reasonable doubt based on the probative
evidence and reasonable inferences drawn from the evidence, we will affirm.
Id. We consider conflicting evidence “most favorably to the trial court’s
ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). Moreover, it is “not
necessary that the evidence ‘overcome every reasonable hypothesis of
innocence.’” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting Moore v.
State, 652 N.E.2d 53, 55 (Ind. 1995)).
[9] In order to convict Hiram of the charged offense, the State was required to
prove that he, “without a valid prescription or order of a practitioner acting in
the course of the practitioner’s professional practice, knowingly or intentionally
possess[ed] a controlled substance (pure or adulterated) classified in schedule I,
II, III, or IV.” Ind. Code § 35-48-4-7. Hiram contends that the State did not
meet its burden to prove beyond a reasonable doubt that he had exclusive or
constructive possession of the contraband. Hiram also alleges that because the
State could not prove that he had knowledge that the contraband was in the
vehicle, it could not be said that he had either the intent or capability to control
the contraband. However, given Hiram’s exclusive possession of the vehicle at
the time of the traffic stop, as well as him admitting to taking the drugs, his
suspicious movements during the traffic stop, and the proximity of the
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 5 of 7 contraband to him, we believe that the State produced sufficient evidence to
sustain the possession conviction.
[10] Hiram had exclusive possession of the vehicle because he was the sole occupant
and driver of the vehicle at the time of the arrest. See Whitney v. State, 726
N.E.2d 823, 827 (Ind. Ct. App. 2000) (court determined that the driver had
exclusive possession of the vehicle because he was the driver and sole occupant
of the vehicle when he was stopped by the police). “In cases where the accused
has exclusive possession of the premises on which the contraband is found, an
inference is permitted that he or she knew of the presence of contraband and
was capable of controlling it.” Holmes v. State, 785 N.E.2d 658, 661 (Ind. Ct.
App. 2003). Being the sole occupant and driver of the vehicle infers Hiram’s
exclusive possession over the vehicle and, subsequently, his knowledge that the
contraband was in the vehicle. Therefore, the trial court justifiably inferred
Hiram’s knowledge of as well as his intent to possess the contraband.
[11] Moreover, we believe that the State provided sufficient evidence to establish
that Hiram had constructive possession of the contraband. “Constructive
possession is established by showing that the defendant has the intent and
capability to maintain dominion and control over the contraband.” Id. at 660.
The following circumstances permit the trier of fact to infer intent: a
defendant’s incriminating statements; a defendant’s attempting to leave or
making furtive gestures; the location of the contraband in settings suggesting
manufacturing; the item’s proximity to the defendant; the location of the
contraband within the defendant’s plain view; and the mingling of contraband
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 6 of 7 with other items the defendant owns. Gray v. State, 957 N.E.2d 171, 175 (Ind.
2011). We believe that the following three circumstances are applicable to this
case: Hiram’s incriminating statement, Hiram making furtive gestures, and the
item’s proximity to Hiram.
[12] During trial, Officer Portell testified that Hiram admitted to taking the pills, and
that he was unaware that it was illegal to do so. Officer Portell also recalls that
after he pulled Hiram over, he could see Hiram moving around in the driver’s
seat. These movements made Officer Portell concerned for his safety which is
why he approached Hiram and asked him to exit his vehicle. Moreover, while
Hiram did not have the pill bottle on his person, the pill bottle was found sitting
in close proximity to Hiram, in plain view in the center console that was “right
next to the driver’s seat.” Tr. p. 22. Given these facts, we conclude that the
State provided sufficient evidence to prove that Hiram had knowledge of the
contraband and the intent and capability to possess the contraband to support
the possession conviction.
[13] The judgment of the trial court is affirmed.
May, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017 Page 7 of 7