Jesse Waymire v. State of Indiana (mem. dec. )

• Court: Indiana Court of Appeals
• Decided: February 14, 2020
• Docket: 19A-CR-1983
• 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 Feb 14 2020, 8:58 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 David W. Stone Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jesse Waymire, February 14, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1983 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark Dudley, Appellee-Plaintiff. Judge Trial Court Cause No. 48C06-1307-FB-1444

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020 Page 1 of 9 STATEMENT OF THE CASE

[1] Appellant-Defendant, Jesse Waymire (Waymire), appeals the trial court’s

revocation of his probation.

[2] We affirm.

ISSUE [3] Waymire presents this court with one issue on appeal, which we restate as:

Whether there was sufficient evidence to support the revocation of Waymire’s

probation.

FACTS AND PROCEDURAL HISTORY

[4] On January 14, 2014, Waymire pleaded guilty to Class B felony burglary and

Class D felony theft. The trial court subsequently sentenced Waymire to

fourteen years for the Class B felony conviction and two years for the Class D

felony conviction. Waymire’s sentences were to run concurrently, however, the

trial court suspended six years of his Class B felony sentence to probation. In

December 2018, Waymire was released from the Department of Correction

(DOC).

[5] On May 14, 2019, Anderson Police Department Officer Marty Dulworth

(Officer Dulworth) conducted a traffic stop of a vehicle driving left of center.

Upon initiating contact, he smelled an odor of marijuana emanating from the

vehicle. Officer Dulworth ordered the driver, as well as Waymire, who was

seated in the front passenger seat, to exit the vehicle. Officer Dulworth then

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020 Page 2 of 9 radioed for assistance. Officer Dulworth subsequently deployed Rico, a

narcotics-trained K-9 officer, to conduct a dog sniff by walking around the

perimeter of the vehicle. The K-9 alerted to the presence of narcotics inside the

vehicle. During the search of the vehicle, the police found a small plastic baggie

with white residue on the passenger seat where Waymire was seated. The

white substance field tested positive for methamphetamine. Under the driver’s

seat, a white knapsack bag was located. That knapsack bag was within

Waymire’s reach but not within the driver’s reach. The bag contained a white

crystal-like substance which tested positive for 75.6 grams of

methamphetamine.

[6] After obtaining a search warrant, the officers searched the home where

Waymire and the driver had been seen leaving from minutes before the traffic

stop. During a search of the home, the officers located Waymire’s birth

certificate in one of the bedrooms. Still inside the same bedroom, there were

DOC documents belonging to Waymire and a business card with information

relating to Waymire’s upcoming probation meeting was attached to a calendar.

Inside a nightstand, the officers found $1,961 in cash, and a plastic bag

containing white residue, which tested positive for methamphetamine. A bullet

proof vest, two rifles, and a handgun, were found inside a closet. Also, the

officers found a safe inside the closet. Using Waymire’s year of birth, 1993, the

officers were able to open the safe. There were two handguns and $9,000 inside

the safe.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020 Page 3 of 9 [7] On May 20, 2019, the Madison County Probation Office (Probation Office)

filed a notice of probation violation, alleging that Waymire had accumulated

two new offenses—i.e., Level 2 felony dealing in methamphetamine and Level 4

felony unlawful possession of a firearm by a serious violent felon (SVF).

Following a hearing, the trial court found by a preponderance of the evidence

that Waymire had committed two new offenses, revoked his probation, and

ordered him to serve the balance of his previously-suspended sentence in the

DOC.

[8] Waymire now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [9] “‘Probation is a matter of grace left to trial court discretion, not a right to which

a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.

App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)), trans.

denied. “Courts in probation revocation hearings ‘may consider any relevant

evidence bearing some substantial indicia of reliability.’” Id. (quoting Cox v.

State, 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the discretion of the trial

court to determine the conditions of a defendant’s probation and to revoke

probation if the conditions are violated.” Id. Our court has said that “all

probation requires ‘strict compliance’” because once the trial court extends this

grace and sets its terms and conditions, the probationer is expected to comply

with them strictly.” Id. at 731-32 (quoting Woods v. State, 892 N.E.2d 637, 641

(Ind. 2008)). “If the probationer fails to do so, then a violation has occurred.”

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020 Page 4 of 9 Id. We review a sanction imposed following revocation of probation for an

abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “‘An

abuse of discretion occurs where the decision is clearly against the logic and

effect of the facts and circumstances.’” Hutchison v. State, 82 N.E.3d 305, 310

(Ind. Ct. App. 2017) (quoting Prewitt, 878 N.E.2d at 188).

[10] Probation revocation is a two-step process. First, the trial court must make a

factual determination that a violation of a condition of probation occurred.

Heaton, 984 N.E.2d at 616. Second, if a violation is found, then the trial court

must determine the appropriate sanctions for the violation. Id. Waymire does

not appeal the sanction imposed; instead, he claims that the State did not

present sufficient evidence that he had committed additional offenses while on

[11] “When a probationer is accused of committing a criminal offense, an arrest

alone does not warrant the revocation of probation.” Johnson v. State, 692

N.E.2d 485, 487 (Ind. Ct. App. 1998). Likewise, the mere filing of a criminal

charge against a defendant does not warrant the revocation of probation. Martin

v. State, 813 N.E.2d 388, 391 (Ind. Ct. App. 2004). Instead, when the State

alleges that the defendant violated probation by committing a new criminal

offense, the State is required to prove—by a preponderance of the evidence—

that the defendant committed the offense. Heaton, 984 N.E.2d at 617. Here,

the State alleged that Waymire violated his probation by committing Level 2

felony dealing in methamphetamine, and Level 4 felony unlawful possession of

a firearm by an SVF.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020 Page 5 of 9 A. Level 2 Felony Dealing in Methamphetamine

[12] To obtain a conviction of dealing in methamphetamine as charged in this case,

the State was required to prove beyond a reasonable doubt that: (1) Waymire

(2) possessed with intent to deliver (3) at least 10 grams of methamphetamine.

See Ind. Code § 35-48-4-1.1(a)(2), (e)(1).

[13] A conviction for a drug offense may be supported by actual or constructive

possession. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on

reh’g, 685 N.E.2d 698 (Ind. 1997). “Actual possession occurs when a person

has direct physical control over the item.” Sargent v. State, 27 N.E.3d 729, 733

(Ind. 2015). Where, as here, the State “cannot show actual possession, it may

nonetheless prevail on proof of constructive possession.” Id. Waymire argues

that the State failed to establish that he constructively possessed the

methamphetamine. In proving constructive possession, the State must show

“that the defendant has both (i) the intent to maintain dominion and control

over the drugs and (ii) the capability to maintain dominion and control over the

drugs.” Id. Further, where, as here, “possession of the automobile in which

drugs are found is not exclusive, the inference of intent must be supported by

additional circumstances pointing to the defendant’s knowledge of the nature of

the controlled substances and their presence.” Lampkins, 682 N.E.2d at 1275.

Our supreme court has identified “various means” of showing the required

additional circumstances, including—but not limited to—proof of “(1)

incriminating statements by the defendant, (2) attempted flight or furtive

gestures, (3) location of substances like drugs in settings that suggest

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020 Page 6 of 9 manufacturing, (4) proximity of the contraband to the defendant, (5) location of

the contraband within the defendant’s plain view, and (6) the mingling of the

contraband with other items owned by the defendant.” Henderson v. State, 715

N.E.2d 833, 836 (Ind. 1999).

[14] Here, the intent and capability elements were both met. A baggie of

methamphetamine was found in the passenger seat where Waymire was seated.

Further, a knapsack bag located under the driver’s seat and positioned in such a

way that only Waymire could easily grab it, contained over 75 grams of

methamphetamine. Additionally, a large amount of cash, a plastic bag with

white residue that tested positive for methamphetamine, along with firearms,

were inside a bedroom containing Waymire’s personal belongings.

[15] Based on the foregoing, we conclude that the proximity of the

methamphetamine recovered in the vehicle and in the bedroom containing

Waymire’s personal belongings, strongly suggests that Waymire had both the

intent and capability to maintain dominion and control over the

methamphetamine recovered. See Henderson, 715 N.E.2d at 836. Thus, we

conclude that the State proved by a preponderance that Waymire committed

Level 2 felony dealing in methamphetamine.

B. Level 4 Felony Unlawful Possession of a Firearm by an SVF.

[16] Waymire also contends that the State failed to prove by a preponderance of the

evidence that he committed Level 4 felony unlawful possession of a firearm by

an SVF. In order to convict Waymire of unlawful possession of a firearm by an

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020 Page 7 of 9 SVF, the State had to prove that he was an SVF and: “knowingly or

intentionally possesse[d] a firearm.” I.C. § 35-47-4-5(c). Waymire does not

dispute his prior conviction for Class B felony burglary, which is a crime

included in the statute’s list of serious violent felonies. See I.C. § 35-43-2-1. “A

person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

aware of a high probability that he is doing so.” I.C. § 35-41-2-2(b).

[17] Waymire argues that there is no evidence that demonstrates that he

constructively possessed the firearms that were recovered during the search of

the home which he claims he did not exclusively possess. Possession of a

firearm may be either actual or constructive. Causey v. State, 808 N.E.2d 139,

143 (Ind. Ct. App. 2004). A person who has direct and physical control over a

firearm has actual possession, whereas a person who has the intent and

capability to maintain control over a firearm has constructive possession. Id.

To prove intent, the State must demonstrate that the defendant knew of the

firearm’s presence. Id. Such knowledge may be inferred from either exclusive

dominion over the premises containing the firearm or from evidence of

additional circumstances showing that the defendant had knowledge of the

firearm’s presence. Id.

[18] Following the search of the house Waymire and the driver had been seen

leaving prior to the traffic stop, the police recovered Waymire’s birth certificate

in one of the bedrooms. Still inside the same bedroom, there were DOC

documents belonging to Waymire, and a business card with details pertaining

to Waymire’s future probation meeting. Additionally, the officers found a safe,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020 Page 8 of 9 which they were able to open using the combination of 1993, which is the year

Waymire was born. Inside the safe and closet, the officers found a total of three

handguns and two rifles. Because Waymire’s personal documents were

recovered in the bedroom in which the firearms were discovered, we conclude

that he had the intent and capability to maintain dominion and control over the

firearms. Thus, we conclude that the State presented sufficient evidence by a

preponderance of the evidence to support Waymire’s Level 4 felony unlawful

possession of a firearm by an SVF.

CONCLUSION [19] In sum, we conclude that the State presented sufficient evidence by a

preponderance of the evidence that Waymire committed additional offenses

while on probation. Thus, we conclude that the trial court did not abuse its

discretion by revoking Waymire’s probation.

[20] Affirmed.

[21] Baker, J. and Brown, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020 Page 9 of 9