Johnny Rivers v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 16, 2018
• Docket: 18A-CR-700
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing FILED the defense of res judicata, collateral Oct 16 2018, 8:59 am estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Susan D. Rayl Curtis T. Hill, Jr. Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Johnny Rivers, October 16, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-700 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jose Salinas, Appellee-Plaintiff. Judge Trial Court Cause No. 49G14-1606-F6-24513

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018 Page 1 of 6 Case Summary [1] Johnny Rivers was charged with Level 6 felony possession of a narcotic drug

and Class A misdemeanor driving while suspended after police discovered

heroin on the floor between the driver’s seat and the driver’s-side door of the

vehicle Rivers owned and was driving. The trial court found him guilty as

charged. Rivers contends that the evidence is insufficient to support the trial

court’s finding that he constructively possessed heroin. Because we disagree,

we affirm.

Facts and Procedural History [2] On June 22, 2016, Indianapolis Metropolitan Police Officer Joseph Kraeszig

initiated a traffic stop after his license plate reader indicated the vehicle driven

by Rivers was reported stolen. Rivers was accompanied by a female passenger.

Both occupants were removed from the vehicle, and Rivers was placed into

custody on suspicion of stealing the vehicle.

[3] Sergeant Jeffrey Augustinovicz arrived on the scene to assist Officer Kraeszig

and conducted a search of Rivers’s vehicle. On the floor between the driver’s

seat and driver’s-side door, Sergeant Augustinovicz observed an unsealed

plastic bag containing a “grayish-purplish substance” later determined to be

0.65 grams of heroin. Tr. Vol. II p. 19. The heroin was found near a wallet and

a cup, both of which belonged to Rivers. Rivers claimed to have owned the Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018 Page 2 of 6 vehicle for two-and-one-half weeks prior to the traffic stop but denied having

any knowledge of the heroin and explained that a few other persons had driven

the vehicle since his purchase.

[4] On June 27, 2016, the State charged Rivers with one count of Level 6 felony

possession of a narcotic drug and one count of Class A misdemeanor driving

while suspended. Following a bench trial held on February 14, 2018, the trial

court found Rivers guilty as charged. The trial court sentenced Rivers to an

aggregate sentence of 545 days of incarceration with 489 days suspended to

probation.

Discussion and Decision [5] Rivers contends that the State produced insufficient evidence to support his

conviction for possession of a narcotic drug, namely, the trial court’s finding

that he constructively possessed heroin. When reviewing the sufficiency of

evidence to support a conviction, this court considers only probative evidence

and reasonable inferences supporting the trial court’s decision. Young v. State,

973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans. denied. It is the role of the

factfinder, not this court, to assess witness credibility and weigh the evidence.

Id. This court will affirm a 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 18A-CR-700 | October 16, 2018 Page 3 of 6 [6] Although Rivers was not in actual possession of the heroin when it was

discovered by officers, “a conviction for a possessory offense does not depend

on catching a defendant red-handed.” Gray v. State, 957 N.E.2d 171, 174 (Ind.

2011). In this case, the State sought to prove that the defendant possessed the

drugs at a point in time other than its discovery by police, a doctrine referred to

as constructive possession. Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App.

2018), trans. denied. A defendant is in constructive possession of illegal drugs

when the State demonstrates that the defendant has (i) the intent to maintain

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

dominion and control over the drugs. Lampkins v. State, 682 N.E.2d 1268, 1275

(Ind. 1997), reh’g, 685 N.E.2d 698 (Ind. 1997). A defendant’s possessory interest

in the premises in which the drugs were found by officers is sufficient to

establish the capability to maintain dominion and control over the drugs, even

where the possessory interest is non-exclusive. Gray v. State, 957 N.E.2d 171,

174 (Ind. 2011) (internal citations omitted).

[7] When a defendant’s possessory interest of the premises is non-exclusive, the

inference of intent to maintain dominion and control over the drugs must be

proven by additional circumstances indicating the defendant’s knowledge of the

nature and presence of the drugs. Lampkins at 1275. A non-exhaustive list of

additional circumstances includes

Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018 Page 4 of 6 (1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest 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.

Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App. 2018) (internal citations

omitted), trans. denied. This collection of additional circumstances is not a

balancing test with factors to be weighed but, rather, a non-exhaustive list of

circumstances that have been found sufficient to prove constructive possession

in certain cases. Id. at 279 n.2.

[8] Rivers does not dispute that he had a possessory interest in the vehicle in which

the heroin was discovered, which is sufficient to establish his capability to

maintain dominion and control over the heroin. Although Rivers’s possessory

interest was non-exclusive, there are additional circumstances that indicate his

knowledge of the nature and presence of, and intent to maintain dominion and

control of, the heroin. First is the close proximity of the heroin to Rivers. Rivers

was driving, and the heroin was found on the floor between the driver’s seat

and driver’s-side door. Moreover, the heroin would have been in the plain view

of all persons as they entered the driver’s-side of the vehicle or looked down

while sitting in the driver’s seat. Finally, Rivers admitted that the items mingled

with the bag of heroin, i.e., a cup found in the driver’s-side door and wallet

found in the driver’s seat, were his personal belongings. We conclude that these

Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018 Page 5 of 6 additional circumstances create a reasonable inference that Rivers had

knowledge of the heroin and the intent to maintain dominion and control over

it. Rivers has failed to establish that the State produced insufficient evidence to

support the trial court’s determination that he constructively possessed the

heroin.

[9] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018 Page 6 of 6