Melvin D. Levy v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 30, 2017
• Docket: 20A03-1608-CR-2009
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 30 2017, 9:40 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Bellin Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana Matthew R. Elliott Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Melvin D. Levy, January 30, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1608-CR-2009 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Stephen R. Appellee-Plaintiff. Bowers, Judge Trial Court Cause No. 20D02-1511-F4-57

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 1 of 12 Statement of the Case [1] Melvin D. Levy (“Levy”) appeals his conviction and sentence for Level 4 felony

possession of cocaine.1 Levy was convicted pursuant to a jury trial in which

police officers introduced evidence of cocaine they had found during a search of

Levy’s bedroom. On appeal, Levy argues that: (1) there was not sufficient

evidence to prove that he constructively possessed the cocaine; and (2) his

sentence was inappropriate under Appellate Rule 7(B) in light of the nature of

his offense and his character. Because the State produced evidence that Levy

had the intent and capability to exercise dominion and control over the cocaine,

we conclude that there was sufficient evidence to prove he possessed the

cocaine. We also conclude that his sentence was not inappropriate in light of

the nature of his offense and his character.

[2] We affirm.

Issues 1. Whether there was sufficient evidence to prove that Levy possessed cocaine.

2. Whether Levy’s sentence was inappropriate in light of the nature of his offense and his character.

1 IND. CODE §§ 35-48-4-6(a), (c)(2) and I.C. § 35-48-1-16.5(1). Levy was also convicted of Class A misdemeanor possession of a synthetic drug or a synthetic drug lookalike substance and Class B misdemeanor possession of marijuana, but he does not appeal either of those convictions.

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 2 of 12 Facts [3] On November 19, 2016, two special units of the Elkhart City Police

Department executed a “no-knock” search warrant at 916 South Main Street to

search for evidence of drug activity.2 (Tr. 50). The officers “ram[med]” the

door in and then threw a “flash bang” on the stairs to distract the occupants of

the house.3 (Tr. 158). They then dispersed through the house and apprehended

six occupants inside, including Levy. They found Levy under a pool table in

the living room within an “arm’s reach” of a revolver, which was hidden in the

pool table. (Tr. 167).

[4] After apprehending the occupants of the house, the officers searched for

evidence of drugs and weapons. Meanwhile, Elkhart Corporal Greg Harder

(“Corporal Harder”) interviewed Levy, and Levy told Corporal Harder that his

bedroom was in the southwest corner of the house on the second floor. After

climbing the stairs to the second floor, that room would be the “second one on

the left.” (Tr. 67). While searching Levy’s room, the officers found cocaine,

synthetic marijuana, and marijuana. The bag of synthetic marijuana was

located inside of a pair of “Michael Jordan” shoes, and the bag of cocaine was

found inside of a gray winter hat. (Tr. 91). There was also a small bag of

marijuana near the headboard of the bed.

2 A “no-knock” search warrant allows police officers to enter a premise without first announcing their presence. (Tr. 50). 3 A “flash bang” is a “device [used] to cause a distraction.” (Tr. 160).

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 3 of 12 [5] In addition to drugs, Corporal Jason Gruber (“Corporal Gruber”) found letters

with Levy’s name on them on a shelving unit in his bedroom. Two of the

letters contained Levy’s name and the address 916 South Main Street. Another

letter had Levy’s name on it and a different address. Due to their pre-search

surveillance, the officers knew that Levy was also associated with the second

address. Because there was “so much clutter” Corporal Gruber removed the

letters from the shelving unit in Levy’s room and placed them in the middle of

the room where they would be easier to photograph. (Tr. 175).

[6] Subsequently, the State charged Levy with Level 5 felony possession of cocaine,

Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike

substance, and Class B misdemeanor possession of marijuana. The State also

charged Levy with enhancements to elevate his possession of cocaine charge to

a Level 4 felony and his possession of marijuana charge to a Class A

misdemeanor based on his prior conviction for dealing in cocaine.

[7] A jury trial was held on May 24 and 25, 2016. At trial, several officers testified

that Levy’s bedroom was the southwest bedroom on the second floor and that

they had found cocaine, marijuana, and synthetic marijuana in the room. The

owner of the house also testified that he had charged Levy rent to live in the

house and that Levy lived in the “second [room] on the left”—the southwest

room—at the top of the stairs. (Tr. 199). At the conclusion of the trial, the jury

found Levy guilty as charged. Levy then waived his right to a jury trial on his

conviction enhancements and pled guilty to having a prior conviction for

dealing in cocaine.

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 4 of 12 [8] At the sentencing hearing, Levy requested that his sentences be suspended to

probation because he had a job lined up after his release and had five children

to support. The State introduced evidence that Levy had a prior criminal

history, including two misdemeanor convictions, two felony convictions, and

pending charges in a separate cause for being a serious violent felon in

possession of a firearm and possession of marijuana. The State also introduced

evidence that Levy had repeatedly violated his probation for some of those

convictions and had committed the current offense while he was out on bond

for his pending charges.

[9] The trial court found that Levy’s criminal record and repeated violations of

probation from earlier sentences were aggravating factors; it did not find any

mitigating factors. It sentenced him to ten (10) years, with eight (8) years

executed and two (2) years suspended to probation, for his possession of

cocaine conviction; one (1) year for his possession of a synthetic drug

conviction; and 180 days for his possession of marijuana conviction. The trial

court further ordered Levy to serve the sentences concurrently for a total

executed sentence of eight (8) years. Levy now appeals.

Decision [10] On appeal, Levy argues that: (1) there was insufficient evidence to convict him

of possession of cocaine; and (2) his sentence was inappropriate in light of the

nature of his offense and his character. We will address each of these

arguments in turn.

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 5 of 12 1. Sufficiency

[11] Levy challenges his conviction for possession of cocaine by arguing that there

was insufficient evidence that he constructively possessed the cocaine.

Specifically, he asserts that there was no evidence that he knew about the

cocaine, had exclusive control over the bedroom where the cocaine was found,

or had the ability to maintain control over the cocaine.

[12] In order to convict Levy for possession of cocaine, the State had to prove that

he: “knowingly or intentionally possess[ed] cocaine (pure or adulterated)” in

an amount that was “at least five (5) but less than ten (10) grams.”4 I.C. §§ 35-

48-4-6(a), -(c)(2). Possession of the cocaine may be either actual or

constructive. See Sargent v. State, 27 N.E.3d 729, 732-33 (Ind. 2015). Actual

possession occurs when a person has direct physical control over the cocaine,

and constructive possession occurs when a person has “‘the capability to

maintain dominion and control over the [cocaine]; and (2) the intent to

maintain dominion and control over [it].’” Id. at 733 (quoting Gray v. State, 957

N.E.2d 171, 174 (Ind. 2011)).

[13] When reviewing sufficiency of the evidence claims, we neither reweigh the

evidence nor judge witness credibility. Perkins v. State, 57 N.E.3d 861, 864 (Ind.

Ct. App. 2016). We consider only the evidence supporting the judgment and

any reasonable inference that can be drawn from that evidence. Id. We will

4 In order for the offense to qualify as a Level 4 felony, the State also had to prove that enhancing circumstances applied, but those circumstances are not at issue here.

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 6 of 12 affirm the conviction if there is substantial evidence of probative value

supporting each element of the offense such that a reasonable trier of fact could

have found the defendant guilty beyond a reasonable doubt. Id.

[14] It is undisputed that Levy did not have actual possession over the cocaine.

Instead, he argues that the State did not present sufficient evidence that he

constructively possessed the cocaine. He reasons that the State did not prove

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

because there was no evidence he knew it existed, and the State did not prove

that he had the capability to maintain dominion and control over it because he

did not have exclusive control over the premises. He notes that several people

lived in the residence at the time of the search, and the police did not find him

near the bedroom where the cocaine was located.

[15] To prove the intent element of constructive possession, the State must, as Levy

asserts, demonstrate the defendant’s knowledge of the presence of the

contraband. Crocker v. State, 989 N.E.2d 812, 822 (Ind. Ct. App. 2013), trans.

denied. However, “‘[t]his knowledge may be inferred from either the exclusive

dominion and control over the premise containing the contraband or, if the

control is non-exclusive, evidence of additional circumstances pointing to the

defendant’s knowledge of the presence of the contraband.’” Id. (quoting Taylor

v. State, 482 N.E.2d 259, 261 (Ind. 1985)). Among the recognized “additional

circumstances” are: (1) incriminating statements by the defendant; (2)

attempted flight or furtive gestures; (3) a drug manufacturing setting; (4)

proximity of the defendant to the contraband; (5) contraband is in plain view;

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 7 of 12 and (6) location of the contraband is in close proximity to items owned by the

defendant. Jones v. State, 807 N.E.2d 58, 65 (Ind. Ct. App. 2004), trans. denied.

[16] Levy argues that he did not have exclusive control over the residence or his

bedroom because several other people lived in the house and used his room.

However, we need not address whether Levy had exclusive control over his

bedroom because, regardless, there were additional circumstances pointing to

his knowledge of the contraband. See Crocker , 482 N.E.2d at 261 (stating that

knowledge may be inferred from either exclusive domain and control over the

premise containing the contraband or evidence of additional circumstances

pointing to the defendant’s knowledge of the presence of the contraband).

Specifically, the cocaine was close in proximity to items he owned. Corporal

Gruber found three letters with Levy’s name on them on a shelving unit in the

bedroom.5 Two of the letters listed the address of the house where the drugs

were found, and another listed an address of a residence with which Levy was

associated. The proximity of Levy’s letters to the cocaine was an additional

circumstance indicating his knowledge of the cocaine. Thus, we may infer his

knowledge and intent to maintain dominion and control over the drugs. See id.

[17] Regarding the capability element of constructive possession, proof of a

possessory interest in the premises in which the illegal drugs are found is

5 Levy asserts that the letters were found in a dresser in the hallway rather than his bedroom. However, Corporal Gruber testified that he found the letters on a shelving unit in Levy’s bedroom, and we will not reweigh the evidence. See Perkins, 57 N.E.3d at 864.

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 8 of 12 adequate to show the defendant’s capability to maintain dominion and control

over the contraband. Id. at 66. A defendant’s possessory interest in the

premises does not require actual ownership. Id. A house or apartment used as

a residence is controlled by the person who lives in it, and that person may be

found in control of any drugs discovered therein, whether he is the owner,

tenant, or merely an invitee. Id.

[18] Levy admitted that he lived in the southwest bedroom at 916 South Main

Street, which is where the cocaine was found. Further, Levy’s landlord testified

that Levy paid rent and lived in the southwest corner bedroom on the second

floor. Accordingly, we conclude that there was sufficient evidence that Levy

had a possessory interest in the house and bedroom where the cocaine was

found and, therefore, had the capability to exercise dominion and control over

the cocaine. As we have already found that Levy had the intent to exercise

dominion and control over the cocaine, we thus conclude that he had

constructive possession of the drugs and that there was sufficient evidence to

support his conviction.

2. Inappropriate Sentence

[19] Next, Levy argues that his sentence was inappropriate in light of the nature of

his offense and his character. While sentencing decisions rest within the sound

discretion of the trial court, a reviewing court may revise a sentence pursuant to

Appellate Rule 7(B) if, “‘after due consideration of the trial court’s decision,’” it

finds that the sentence is inappropriate in light of the nature of the offense and

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 9 of 12 the character of the offender. Holt v. State, 62 N.E.3d 462, 465 (Ind. Ct. App.

2016) (quoting Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 208 (Ind. 2007)). Whether a sentence is inappropriate

ultimately turns on the “‘culpability of the defendant, the severity of the crime,

the damage done to others, and a myriad of other factors that come to light in a

given case.’” Id. (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)).

[20] Here, Levy argues that he should have been sentenced to the advisory sentence

for Level 4 felony possession of cocaine. INDIANA CODE § 35-50-2-4 provides

that the sentencing range for a Level 4 felony is two (2) to twelve (12) years, and

the advisory sentence is six (6) years. As Levy was sentenced to ten (10) years

with two (2) years suspended to probation, his sentence is longer than the

advisory sentence. Nevertheless, we find that Levy’s sentence was not

inappropriate in light of the nature of his offense and his character.

[21] As for the nature of his offense, Levy argues that “given the fact that [he] was

one of many individuals in the home who had the potential for possessing the

cocaine found, his culpability was diminished significantly.” (Levy’s Br. 15).

We do not find this argument persuasive as Levy was convicted of possessing

the cocaine, not the other people in the house. Instead, we find that the nature

of Levy’s offense supports his sentence. Officers commenced an investigation

of Levy’s residence after they received multiple citizen complaints of possible

drug activity and drug transactions at the residence. Then, when officers

searched the residence, they found significant amounts of drugs and

paraphernalia used for dealing drugs, such as baggies and scales. Levy was

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 10 of 12 convicted of possessing three different types of drugs—cocaine, synthetic

marijuana, and marijuana—and had scales and ammunition in his bedroom.

[22] As for his character, Levy notes that he has five children, had secured

employment for his release, had been employed for two years prior to his arrest,

had attended church, and enjoyed spending time with his children. However,

Levy’s criminal record is also a strong indication of his character. He has two

prior misdemeanor convictions from 2005 and 2006—one no financial

responsibility conviction and one weapons-carrying conviction. Then, in 2007,

he was convicted of felony dealing in cocaine or a narcotic drug and had his

probation revoked for that conviction. After he was released from the

Department of Correction, he violated his parole and was found guilty of Class

D felony escape. Subsequently, on August 26, 2015, he was charged with Level

4 felony unlawful possession of a firearm by a serious violent felon; Class B

misdemeanor possession of marijuana; and Class A misdemeanor possession of

marijuana with a prior conviction. While he was on bond in that case, he

committed the offenses underlying the instant case. He also admitted to using

marijuana while out on bond. These offenses and his overall criminal history

indicate Levy’s complete disregard and disrespect for the law. Further, we find

it notable that Levy’s offenses have increased in severity over time and that he

has previously been convicted of other drug crimes. In light of this evidence of

Levy’s character, we conclude that his sentence was not inappropriate.

[23]

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 11 of 12 [24] Affirmed.

Baker, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017 Page 12 of 12