Katie J. Love v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 25, 2018
• Docket: 38A02-1706-CR-1455
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 25 2018, 9:36 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana

Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Katie J. Love, April 25, 2018

Appellant-Defendant, Court of Appeals Case No. 38A02-1706-CR-1455 v. Appeal from the Jay Superior Court. The Honorable Max C. Ludy, Jr., Judge. State of Indiana, Trial Court Cause No. Appellee-Plaintiff. 38D01-1612-CM-0282

Darden, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 1 of 10 Statement of the Case 1 [1] Katie Love (Katie) was convicted of possession of paraphernalia as a Class C

misdemeanor. She appeals after her bench trial contending that there is

insufficient evidence to support that conviction. We affirm.

Issues [2] The issues Katie presents for our review are as follows:

I. Whether there was sufficient evidence admitted at Katie’s bench trial to establish beyond a reasonable doubt that she was in constructive possession of paraphernalia she intended to use to introduce a controlled substance into her body; and II. Whether the trial court abused its discretion and violated Katie’s Fifth and Sixth Amendment rights by considering inadmissible hearsay evidence outside the record.

Facts and Procedural History [3] Pennville Town Marshal Keith Farmer was dispatched on the evening of

November 23, 2016, to the scene of a church at the intersection of Highway 1

and Highway 26, approximately three miles south of Pennville, Indiana, in Jay

County. A person had reported that there was a car in the parking lot with

several occupants inside who were nonresponsive. Farmer immediately

proceeded to the location indicated by the report.

1 Ind. Code § 35-48-4-8.3(b)(1) (2015).

Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 2 of 10 [4] Upon arriving, Town Marshal Farmer found two cars in the parking lot of the

church. One car belonged to the person who had contacted dispatch. Farmer

approached the driver’s side door of the other car and observed a female driver,

a female front-seat passenger, and a male passenger in the back seat behind the

front-seat passenger. All three occupants appeared to be passed out or asleep

and the car’s engine was still running. Katie was the female in the front seat on

the passenger side. Farmer described the interior of the car as having a bench

seat in the back and two bucket seats in the front. He could not determine

whether the car was in park or was in drive when he first approached it.

[5] Farmer knocked on the driver’s side window, but none of the car’s occupants

responded. One of the car doors was unlocked. When Farmer opened the

door, the interior lights of the car came on and the driver, Sandra Love, woke

up first. After asking Sandra if she was alright, he noticed that the front-seat

passenger, Katie, awoke. A few seconds later, the passenger in the back seat

behind Katie, Blake Hall, awoke. The car was registered to Sandra Love.

[6] Farmer asked Sandra Love to turn the car’s engine off. Because of her

condition, however, she was unable to do so. Farmer then reached inside the

car, verified that the car was in park, turned off the ignition, and took the keys.

[7] Farmer became suspicious that criminal activity had been going on when he

observed a glass pipe, which appeared to have some type of residue in it, on the

center console near the gear shift of the car between Sandra and Katie. Farmer

had already called for medics and continued talking to Sandra to determine her

Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 3 of 10 condition. Farmer did not remove any of the occupants from the car, as he

awaited the arrival of the medics on the scene.

[8] Medics arrived within a few minutes of his call for assistance. As the medics

unpacked their gear, Farmer assisted Sandra in exiting the car. He described

her condition as being unable to stand without assistance, she had to lean

against the car, and she could not walk. He testified that she appeared to be

very intoxicated.

[9] Once the medics began attending to Sandra, Farmer then approached Katie.

According to Farmer, Katie was also intoxicated and disoriented. She was

sweating, her eyes were half-closed and glassy, and her speech was slow and

slurred. He testified that she was able to somewhat follow what he was saying

and engaged in limited conversation with him to a certain extent but not fully.

He further testified that it did not appear that she understood why he was there.

[10] As Farmer was helping Hall exit from the back seat of Sandra’s car, he noticed

another glass pipe between Hall’s feet on the floor of the car. Farmer testified

that he discovered a bag containing a substance that looked like marijuana, but

was different, “on Mr. Hall’s person.” Tr. p. 16. Over the objection of counsel

for Katie as being irrelevant to her charges, the trial court allowed Farmer to

testify as to the full extent of the facts and circumstances surrounding his

investigation which included his testimony that he discovered a second, much

larger, bag of the substance in the crotch area of Hall’s pants between his

underwear and pants. Id.

Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 4 of 10 [11] Katie was released at the scene. Sandra was transported to the hospital and

Hall was arrested. The probable cause affidavit pertinent to charges filed

against Sandra and Hall, which was not admitted at Katie’s trial, is included in

the record on appeal for the charges against Katie only because it was referred

to in the trial court’s Order on trial and is the basis of support of Katie’s

allegation of reversible error. The probable cause affidavit includes the

following information: “[Hall] stated that the material in the bags was ‘spice’.”

Appellant’s App. Vol. II, p. 10.

[12] On December 5, 2016, the State charged Katie with one count of Class B

misdemeanor public intoxication and one count of Class C misdemeanor

possession of paraphernalia. At the conclusion of Katie’s bench trial, wherein,

Farmer was the only witness to testify, the trial court found Katie guilty of the

lesser offense, possession of paraphernalia, but not guilty of public intoxication,

the more serious offense.

[13] We note that in a criminal case the trial court is not required to make either

findings of fact or conclusions of law. Dozier v. State, 709 N.E.2d 27, 30 (Ind.

Ct. App. 1999) (citing Nation v. State, 445 N.E.2d 565, 570 (Ind. 1983)).

[14] Specifically, the trial court’s “Order on Trial” included the following findings:

3. All three (3) individuals were impaired, and they were intoxicated, in the opinion of Pennville Town Marshal, Keith Farmer. 4. According to Blake Hall, a substance found in the vehicle was “spice[.]” ....

Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 5 of 10 6. A fair inference from the evidence is that all three (3) individuals were intoxicated from the smoking of “spice”. 7. A search of the vehicle disclosed a glass smoking pipe on the front seat console, and another glass pipe was on the backseat floor. 8. The evidence presented gives rise to the inference that all three (3) of the individuals had used the glass pipes in order to ingest the “spice”. Id. at 28.

Discussion and Decision [15] Katie waived jury trial and the matter was submitted to the trial court in a

bench trial. There is a strong presumption that the trial court knows the law,

and will consider only properly admitted evidence in reaching its decision. See,

Dumas v. State, 803 N.E.2d 1113, 1121 (Ind. 2004); Moran v. State, 622 N.E.2d

157, 159 (Ind. 1993).

[16] Katie now appeals contending that the evidence is insufficient to establish,

beyond a reasonable doubt, that she possessed paraphernalia intended for use to

introduce a controlled substance into her body. Ind. Code § 35-48-4-8.3(b)(1).

Upon review of a challenge to the sufficiency of the evidence, we consider only

the evidence introduced during trial and reasonable inferences most favorable to

the convictions, neither reweighing evidence nor reassessing witness credibility.

Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment

unless no reasonable factfinder could find the defendant guilty. Id.

Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 6 of 10 [17] To establish that Katie committed possession of paraphernalia, the State was

required to prove beyond a reasonable doubt that she knowingly or

intentionally possessed an instrument, a device, or another object that she

intended to use for introducing a controlled substance into her body. Ind. Code

§ 35-48-4-8.3(b)(1).

[18] Possession can be either actual or constructive. Sargent v. State, 27 N.E.3d 729,

732-33 (Ind. 2015). Actual possession occurs when a person has direct physical

control over the item. Id. If the State cannot show actual possession, it may

nonetheless prevail on proof of constructive possession. Id. “A person

constructively possesses [an item] when the person has (1) the capability to

maintain dominion and control over the item; and (2) the intent to maintain

dominion and control over it.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011)

(citing Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g,

685 N.E.2d 698 (Ind. 1997)).

[19] It is undisputed that the evidence herein establishes that the glass pipe located

on the center console of the car between the driver and Katie was within her

reach. Therefore, it is reasonable to assume that she could have exercised

dominion and control over the glass pipe. Further, without objection, Marshal

Farmer testified that in his experience in law enforcement, glass pipes such as

the one he observed are used to ingest marijuana, or substances bearing similar

characteristics as marijuana, such as spice. Given Katie’s proximity to the glass

pipe in the center of Sandra’s car, in addition to Katie’s physical condition as

Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 7 of 10 described by Farmer, the trial court could reasonably infer that she had ingested

an illicit substance or intended to do so.

[20] Alone mere possession of paraphernalia, when a statute requires evidence of

intent, is not sufficient to establish that crime without additional evidence of

intent. Sluder v. State, 997 N.E.2d 1178, 1181 (Ind. Ct. App. 2013). “The intent

to introduce a controlled substance into one’s body may be inferred from

circumstantial evidence.” Id. Evidence of the character of the instrument or

instruments alone cannot sustain the element of intent. McConnell v. State, 540

N.E.2d 100, 102 (Ind. Ct. App. 1989).

[21] Farmer’s unchallenged testimony as to his training and experience as a law

enforcement officer and that he had encountered glass pipes before, which are

typically used to ingest marijuana or other illegal substances was admitted into

evidence. Farmer additionally testified that in his experience in law

enforcement he had encountered marijuana and spice before. He stated that the

substance he found in the bags had “the appearance, the characteristics of

synthetic cannabinoids or spice.” Tr. p. 15.

[22] Katie argues that the evidence is insufficient because the lab reports for the

substances recovered from Hall’s possession were not admitted into evidence

and that the glass pipes were not sent for testing of the residue found therein. A

similar argument was presented in Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct.

App. 2010), trans. denied. In Boggs, the defendant argued that his conviction

should be reversed because there was no direct evidence of the chemical

Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 8 of 10 makeup or identification of the substances because there was no testing by the

Indiana State Police Laboratory. In Clifton v. State, 499 N.E.2d 256, 258 (Ind.

1986), a case discussed in Boggs, our supreme court held that the identity of a

drug can be proved by circumstantial evidence. The supreme court further

elaborated in a case also discussed in Boggs, Vasquez v. State, 741 N.E.2d 1214,

1216-17 (Ind. 2001), that someone sufficiently experienced with a drug may

establish its identity, as may other circumstantial evidence. The court noted,

however, that chemical analysis, although one way, is perhaps the best way to

establish the identity of the substance. Id. at 1216.

[23] In the present case, while it might have been better for the State to have

presented evidence of testing by the Indiana State Police Laboratory, and

wherein it may have been better for the trial court not to have referred to Hall’s

statement made to Marshal Farmer upon being arrested, such does not warrant

reversal in this case. “[I]n a criminal case the trial court is not required to make

either findings of fact or conclusions of law.” Dozier v. State, 709 N.E.2d 27, 30

(Ind. Ct. App. 1999) (citing Nation v. State, 445 N.E.2d 565, 570 (Ind. 1983)).

[24] In this case, taking into consideration the totality of the undisputed facts and

circumstances and the evidence presented during the course of trial, also while

acknowledging that there is a strong presumption that the trial court knows the

law and that the trial court would apply it properly, we consider the trial court’s

reference to Hall’s statement to Farmer in the context in which it was admitted

at trial was superfluous and had no effect on the trial court’s decision that the

Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 9 of 10 State has established with independent evidence the elements of the offense

with which Katie was charged beyond a reasonable doubt.

Conclusion [25] In light of the foregoing, we affirm the trial court’s judgment.

Mathias, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 10 of 10