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 the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
P. JEFFREY SCHLESINGER GREGORY F. ZOELLER Crown Point, Indiana Attorney General of Indiana
KARL M. SCHARNBERG Deputy Attorney General
FILED Indianapolis, Indiana
Oct 04 2012, 9:21 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
MARCEL D. JOHNSON, ) ) Appellant-Defendant, ) ) vs. ) No. 45A05-1201-CR-28 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell, Judge Cause No. 45G03-1107-FB-64
October 4, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Marcel D. Johnson appeals his convictions of Class B felony dealing in cocaine1 and
Class A misdemeanor possession of marijuana.2 He presents three issues for our review:
1. Whether the trial court abused its discretion when it denied Johnson’s request
for mistrial;
2. Whether Johnson’s Sixth Amendment right to confront witnesses against him
was violated; and
3. Whether the State presented sufficient evidence to convict Johnson.
We affirm.
FACTS AND PROCEDURAL HISTORY
On July 25, 2011, Johnson participated in a controlled drug buy with a confidential
informant, John Grimes. While under police surveillance, Grimes contacted Johnson,
indicated he wished to purchase cocaine from Johnson, and met Johnson at a gas station.
Police gave Grimes money to purchase the cocaine, outfitted him with audio and video
recording equipment, and watched the drug transaction. Grimes approached a vehicle on the
passenger side, where Johnson was seated, had hand to hand contact with Johnson, and
returned to the officers with .22 grams of cocaine.
Officers approached the vehicle and arrested Johnson and the driver. They found
marijuana in the passenger side seat compartment. At the police station, Johnson told
officers, “It’s all my fault, it’s me, [the driver] had nothing to do with it.” (Tr. at 74.)
1 Ind. Code § 35-48-4-1. 2 Ind. Code § 35-48-4-11.
2 The State charged Johnson with Class B felony dealing in cocaine and Class A
misdemeanor possession of marijuana. A jury found Johnson guilty as charged, and the trial
court sentenced him to an aggregate sentence of twelve years incarcerated.
DISCUSSION AND DECISION
1. Denial of Mistrial
A mistrial is an “extreme remedy that is warranted only when less severe remedies
will not satisfactorily correct the error.” Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001).
“On appeal, the trial judge’s discretion in determining whether to grant a mistrial is afforded
great deference because the judge is in the best position to gauge the surrounding
circumstances of an event and its impact on the jury.” McManus v. State, 814 N.E.2d 253,
260 (Ind. 2004), reh’g denied. “When determining whether a mistrial is warranted, we
consider whether the defendant was placed in a position of grave peril to which he should not
have been subjected; the gravity of the peril is determined by the probable persuasive effect
on the jury’s decision.” James v. State, 613 N.E.2d 15, 22 (Ind. 1993). Reversal is usually
not required if the trial court admonished the jury to disregard the complained-of statement or
conduct. Simmons v. State, 760 N.E.2d 1154, 1162 (Ind. Ct. App. 2002).
The trial court granted Johnson’s motion in limine to exclude any reference at trial to
Johnson’s prior drug deals with Grimes. However, during trial, the following exchange
occurred between the prosecutor and Officer Smith:
[State]: At some point, did you have Mr. Grimes contact the person that you could buy from? [Smith]: Yes. [State]: Okay. And did he suggest a location where the buy would 3 occur? [Smith]: Mr. Grimes had given us information that he had bought crack cocaine before from several different locations from the defendant.
(Tr. at 151.) Johnson immediately objected and moved for a mistrial, arguing Officer
Smith’s testimony violated the motion in limine. The trial court denied Johnson’s request
and instead admonished the jury:
[Court]: All right. Ladies and gentlemen, the last statement from the detective is hearsay. I’m going to admonish you to disregard that statement. The statement about any prior contact with the confidential informant and the defendant will be disregarded by you during deliberations, not to be considered as any evidence in this matter.
(Id. at 154-55.) Johnson argues on appeal the trial court abused its discretion when it denied
his motion for mistrial because the statement placed him “in a position of grave peril.” (Br.
of Appellant at 6.) We disagree.
Our Indiana Supreme Court has identified a number of factors relevant to whether
striking improper testimony and admonishing the jury sufficiently cure any error:
(1) the effect of constitutional provisions, statutes or rules relating to harmless error; (2) the degree of materiality of the testimony; (3) other evidence of guilt; (4) other evidence tending to prove the same fact; (5) other evidence that may cure the improper testimony; (6) possible waiver by the injured party; (7) whether the statement was volunteered by the witness and whether there had been deliberate action on the part of the prosecution to present the matter to the jury; (8) the penalty assessed; (9) whether or not the testimony, although volunteered by the witness, was in part brought out by action of the defendant or his counsel; (10) the existence of other errors; (11) whether the question of guilt is close or clear and compelling; (12) the standing and experience of the person giving the objectionable testimony; and (13) whether or not the objectionable testimony or misconduct was repeated.
4 White v. State, 257 Ind. 64, 69, 272 N.E.2d 312, 314–15 (1971). We will examine a number
of these factors.
That Grimes and Johnson had been involved in drug transactions in the past could
reasonably be inferred from the fact Grimes knew he could contact Johnson to arrange a drug
deal with him. The officer’s reference to the relationship was fleeting, and the jury was
immediately admonished not to consider the testimony for multiple reasons. Finally, the
evidence of Johnson’s guilt was strong - Johnson admitted he was involved in the crime, and
the transaction occurred in clear view of the officers. Police saw Grimes complete the
transaction on the passenger side of the vehicle, where Johnson was seated, and the money
provided for the controlled buy was found in Johnson’s possession. Therefore, we cannot
hold the trial court abused its discretion when it denied Johnson’s motion for mistrial. See,
e.g., Owens v. State, 937 N.E.2d 880, 894 (Ind. Ct. App.
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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 the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
P. JEFFREY SCHLESINGER GREGORY F. ZOELLER Crown Point, Indiana Attorney General of Indiana
KARL M. SCHARNBERG Deputy Attorney General
FILED Indianapolis, Indiana
Oct 04 2012, 9:21 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
MARCEL D. JOHNSON, ) ) Appellant-Defendant, ) ) vs. ) No. 45A05-1201-CR-28 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell, Judge Cause No. 45G03-1107-FB-64
October 4, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Marcel D. Johnson appeals his convictions of Class B felony dealing in cocaine1 and
Class A misdemeanor possession of marijuana.2 He presents three issues for our review:
1. Whether the trial court abused its discretion when it denied Johnson’s request
for mistrial;
2. Whether Johnson’s Sixth Amendment right to confront witnesses against him
was violated; and
3. Whether the State presented sufficient evidence to convict Johnson.
We affirm.
FACTS AND PROCEDURAL HISTORY
On July 25, 2011, Johnson participated in a controlled drug buy with a confidential
informant, John Grimes. While under police surveillance, Grimes contacted Johnson,
indicated he wished to purchase cocaine from Johnson, and met Johnson at a gas station.
Police gave Grimes money to purchase the cocaine, outfitted him with audio and video
recording equipment, and watched the drug transaction. Grimes approached a vehicle on the
passenger side, where Johnson was seated, had hand to hand contact with Johnson, and
returned to the officers with .22 grams of cocaine.
Officers approached the vehicle and arrested Johnson and the driver. They found
marijuana in the passenger side seat compartment. At the police station, Johnson told
officers, “It’s all my fault, it’s me, [the driver] had nothing to do with it.” (Tr. at 74.)
1 Ind. Code § 35-48-4-1. 2 Ind. Code § 35-48-4-11.
2 The State charged Johnson with Class B felony dealing in cocaine and Class A
misdemeanor possession of marijuana. A jury found Johnson guilty as charged, and the trial
court sentenced him to an aggregate sentence of twelve years incarcerated.
DISCUSSION AND DECISION
1. Denial of Mistrial
A mistrial is an “extreme remedy that is warranted only when less severe remedies
will not satisfactorily correct the error.” Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001).
“On appeal, the trial judge’s discretion in determining whether to grant a mistrial is afforded
great deference because the judge is in the best position to gauge the surrounding
circumstances of an event and its impact on the jury.” McManus v. State, 814 N.E.2d 253,
260 (Ind. 2004), reh’g denied. “When determining whether a mistrial is warranted, we
consider whether the defendant was placed in a position of grave peril to which he should not
have been subjected; the gravity of the peril is determined by the probable persuasive effect
on the jury’s decision.” James v. State, 613 N.E.2d 15, 22 (Ind. 1993). Reversal is usually
not required if the trial court admonished the jury to disregard the complained-of statement or
conduct. Simmons v. State, 760 N.E.2d 1154, 1162 (Ind. Ct. App. 2002).
The trial court granted Johnson’s motion in limine to exclude any reference at trial to
Johnson’s prior drug deals with Grimes. However, during trial, the following exchange
occurred between the prosecutor and Officer Smith:
[State]: At some point, did you have Mr. Grimes contact the person that you could buy from? [Smith]: Yes. [State]: Okay. And did he suggest a location where the buy would 3 occur? [Smith]: Mr. Grimes had given us information that he had bought crack cocaine before from several different locations from the defendant.
(Tr. at 151.) Johnson immediately objected and moved for a mistrial, arguing Officer
Smith’s testimony violated the motion in limine. The trial court denied Johnson’s request
and instead admonished the jury:
[Court]: All right. Ladies and gentlemen, the last statement from the detective is hearsay. I’m going to admonish you to disregard that statement. The statement about any prior contact with the confidential informant and the defendant will be disregarded by you during deliberations, not to be considered as any evidence in this matter.
(Id. at 154-55.) Johnson argues on appeal the trial court abused its discretion when it denied
his motion for mistrial because the statement placed him “in a position of grave peril.” (Br.
of Appellant at 6.) We disagree.
Our Indiana Supreme Court has identified a number of factors relevant to whether
striking improper testimony and admonishing the jury sufficiently cure any error:
(1) the effect of constitutional provisions, statutes or rules relating to harmless error; (2) the degree of materiality of the testimony; (3) other evidence of guilt; (4) other evidence tending to prove the same fact; (5) other evidence that may cure the improper testimony; (6) possible waiver by the injured party; (7) whether the statement was volunteered by the witness and whether there had been deliberate action on the part of the prosecution to present the matter to the jury; (8) the penalty assessed; (9) whether or not the testimony, although volunteered by the witness, was in part brought out by action of the defendant or his counsel; (10) the existence of other errors; (11) whether the question of guilt is close or clear and compelling; (12) the standing and experience of the person giving the objectionable testimony; and (13) whether or not the objectionable testimony or misconduct was repeated.
4 White v. State, 257 Ind. 64, 69, 272 N.E.2d 312, 314–15 (1971). We will examine a number
of these factors.
That Grimes and Johnson had been involved in drug transactions in the past could
reasonably be inferred from the fact Grimes knew he could contact Johnson to arrange a drug
deal with him. The officer’s reference to the relationship was fleeting, and the jury was
immediately admonished not to consider the testimony for multiple reasons. Finally, the
evidence of Johnson’s guilt was strong - Johnson admitted he was involved in the crime, and
the transaction occurred in clear view of the officers. Police saw Grimes complete the
transaction on the passenger side of the vehicle, where Johnson was seated, and the money
provided for the controlled buy was found in Johnson’s possession. Therefore, we cannot
hold the trial court abused its discretion when it denied Johnson’s motion for mistrial. See,
e.g., Owens v. State, 937 N.E.2d 880, 894 (Ind. Ct. App. 2010) (violation of motion in limine
cured by admonishment and striking of statement), reh’g denied.
2. Sixth Amendment Rights
The Sixth Amendment to the United States Constitution provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” The Indiana Constitution expands this right to include “the right . . . to meet witnesses
face-to-face.” Ind. Const., Art. 1, § 13(a). Our Indiana Supreme Court has interpreted this
right “requires that a defendant be afforded an opportunity to conduct effective cross-
examination of the State’s witnesses in order to test their believability.” Kilpatrick v. State,
746 N.E.2d 52, 59 (Ind. 2001). Johnson argues he was denied his Sixth Amendment right to
5 confront Grimes, who did not testify at Johnson’s trial. We disagree, because Grimes was
not a witness against Johnson at trial, and thus the Sixth Amendment does not apply to this
situation. See Parker v. State, 773 N.E.2d 867, 871 (Ind. Ct. App. 2002) (Parker not
deprived of right of confrontation because informant’s role was “collateral” and, as such, he
was not a witness against Parker).
3. Sufficiency of the Evidence
When reviewing sufficiency of evidence to support a conviction, we consider only the
probative evidence and reasonable inferences supporting the fact-finder’s decision. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). 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. Id. To preserve this structure, when we are confronted with conflicting
evidence, we consider it most favorably to the trial court’s ruling. Id. We affirm a
conviction unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. 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. Id. at 147.
a. Class B felony dealing in cocaine
To prove Johnson committed Class B felony dealing in cocaine, the State must have
presented evidence that he knowingly or intentionally delivered cocaine to another person.
Ind. Code § 35-48-4-1(a). At trial, the State presented evidence Grimes called Johnson to
arrange to purchase cocaine, Johnson was present at the scene of the controlled buy, the
6 controlled buy occurred on the passenger side of the vehicle where Johnson was seated,
Grimes returned to the officers’ car with cocaine, the money for the controlled buy was found
in the center console of the vehicle, and Johnson told officers, “It’s all my fault, it’s me, [the
driver] had nothing to do with it.” (Tr. at 74.) Johnson’s arguments that Grimes may have
secreted the cocaine in his buttocks and that the driver was the person selling drugs are
invitations for us to reweigh the evidence and judge the credibility of witnesses, which we
cannot do. See Drane, 867 N.E.2d at 146 (appellate court may not reweigh evidence or judge
credibility of witnesses).
b. Class A misdemeanor possession of marijuana
To prove Johnson committed Class A misdemeanor possession of marijuana, the State
must have presented evidence he knowingly or intentionally possessed marijuana. Ind. Code
§ 35-48-4-11(1). Police found marijuana on the door sill of the passenger side of the vehicle
next to where Johnson had been sitting. Johnson argues the State did not prove he “exercised
control over the bag of marijuana or was aware of its presence.” (Br. of Appellant at 12.)
We disagree.
A conviction may rest on constructive possession of contraband. Gray v. State, 957
N.E.2d 171, 174 (Ind. 2011). A person constructively possesses contraband when he has the
capability and intent to maintain dominion and control over it. Id. When, as in the instant
case, the possession of the premises in which the contraband is found is non-exclusive, the
State must demonstrate intent with evidence of additional circumstances, such as:
(1) a defendant’s incriminating statements; (2) a defendant’s attempting to leave or making furtive gestures; (3) the location of contraband like drugs in 7 settings suggesting manufacturing; (4) the item’s proximity to the defendant; (5) the location of contraband within the defendant’s plain view; and (6) the mingling of contraband with other items the defendant owns.
Id. The State presented sufficient evidence Johnson constructively possessed the marijuana.
He was seated on the side of the vehicle where the marijuana was found, the marijuana was
in plain view, and Johnson stated the driver was not involved in the commission of the crime.
CONCLUSION
The trial court did not abuse its discretion when it denied Johnson’s motion for
mistrial based on Officer Smith’s statement in violation of the motion in limine because the
trial court properly admonished the jury not to consider the statement. Johnson’s Sixth
Amendment right to cross-examine Grimes was not violated because Grimes was not a
witness during Johnson’s trial. Finally, the State presented sufficient evidence to convict
Johnson of Class B felony dealing in cocaine and Class A misdemeanor possession of
marijuana. Accordingly, we affirm.
Affirmed.
KIRSCH, J., and NAJAM, J., concur.