MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 25 2020, 8:11 am regarded as precedent or cited before any 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 Carlos I. Carrillo Curtis T. Hill, Jr. Carrillo Law LLC Attorney General of Indiana Greenwood, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Nashid Muhammad, August 25, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2397 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff, Judge Trial Court Cause No. 79D01-1087-F4-28
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 1 of 25 Case Summary and Issues [1] Following a jury trial, Nashid Muhammad was found guilty of, among other
crimes, domestic battery, a Class A misdemeanor; possession of marijuana, a
Class B misdemeanor; and unlawful possession of a firearm by a serious violent
felon, a Level 4 felony. The trial court sentenced Muhammad to an aggregate
sentence of eleven and one-half years with two and one-half years suspended to
probation. Muhammad appeals, raising the following issues for our review: (1)
whether the trial court abused its discretion by admitting certain evidence
allegedly obtained in violation of Muhammad’s rights under the Fourth
Amendment to the United States Constitution and Article 1, section 11 of the
Indiana Constitution, (2) whether the State presented sufficient evidence to
support the above convictions, and (3) whether Muhammad’s sentence is
inappropriate in light of the nature of his offenses and his character. We
conclude that Muhammad’s rights were not violated under either constitutional
provision and therefore, the trial court did not abuse its discretion in admitting
evidence obtained from a valid search. We also conclude the State presented
sufficient evidence to support the challenged convictions and Muhammad’s
sentence is not inappropriate. We therefore affirm his convictions and sentence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 2 of 25 Facts and Procedural History 1
[2] Muhammad and Deidra Trail were involved in a relationship and had lived
together for approximately one year. On July 8, 2018, Muhammad threw a
Bluetooth speaker at Trail during an argument, striking her in the forehead. As
a result, Trail sustained an injury to her forehead that lasted “[p]robably a week
and a half.” Transcript, Volume II at 72. Following the incident, Muhammad
left the residence in Trail’s car, a red Hyundai.
[3] In the early morning hours of July 9, Officer Evan McCain of the Lafayette
Police Department (“LPD”) was dispatched to an automobile accident
involving a rolled over white Cadillac. When Officer McCain arrived on the
scene, other officers were present, but the driver of the Cadillac had fled. Officer
McCain ran the vehicle’s license plate through the Bureau of Motor Vehicles
(“BMV”) database and discovered Paris Hill was the registered owner of the
vehicle. Officer McCain familiarized himself with a BMV photograph of Hill
and began checking the area to locate him.
[4] Officer McCain had traveled approximately four blocks away from the accident
scene when he drove by a red Hyundai and noticed an individual matching
Hill’s description riding in the backseat. Officer McCain advised dispatch that
1 The facts in this case are comprised of testimony from the trial held on August 6, 2019, as well as evidence from the suppression hearing held on May 17 that is not in direct conflict with evidence introduced at the trial. See Kelley v. State, 825 N.E.2d 420, 426 (Ind. Ct. App. 2005).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 3 of 25 he had located Hill and followed the vehicle until another officer was in the
area.
[5] After the driver of the Hyundai failed to signal two hundred feet prior to a turn,
Officer McCain initiated a traffic stop. LPD Officer Israel Salazar arrived on
the scene and the two officers approached the vehicle. Four people were in the
vehicle: Hill and his girlfriend were sitting in the back seats; another woman,
Amanda, was in the driver’s seat; and Muhammad was sitting in the front
passenger seat. The officers immediately identified the “[p]lain smell of burnt
marijuana” emanating from the passenger compartment of the vehicle. Id. at
101. Officer Salazar also noticed that Hill had “cuts and scrapes” that were
consistent with an accident. Id. at 35. The officers then removed Hill and his
girlfriend from the vehicle and placed them in handcuffs “for the hit and run
investigation and then waited on other units to get there to assist with what had
now . . . become a narcotics investigation[.]” Id. at 23. Muhammad and
Amanda remained inside the vehicle.
[6] After additional officers arrived, Officers McCain and Salazar re-approached
the vehicle and this time, they noticed a pipe in the center console of the vehicle
that had burnt marijuana residue in the bowl. Id. at 30. Muhammad and
Amanda were removed from the vehicle, handcuffed, and placed in separate
police cars. Based on the odor of marijuana and the presence of the pipe,
officers conducted a search of the vehicle. One officer bumped into the glove
compartment and a loaded .22 caliber handgun fell from the glove
compartment to the front passenger floorboard. In the trunk, officers located a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 4 of 25 second loaded .22 caliber handgun, a shotgun, ammunition, and a jar
containing a plant-like material that field tested positive for marijuana.
[7] At some point, Trail arrived on the scene to pick up her vehicle. While talking
with Trail, Officer McCain observed a discolored lump on her forehead, and
she told him how she sustained the injury. Officer McCain asked Trail if she
owned any firearms or knew where the firearms in the vehicle came from; Trail
indicated that she did not own any firearms.
[8] The State charged Muhammad with Count I, unlawful possession of a firearm
by a serious violent felon, a Level 4 felony; Count II, carrying a handgun
without a license, a Level 5 felony; Count III, domestic battery, a Class A
misdemeanor; Count IV, carrying a handgun without a license, a Class A
misdemeanor; Count V, possession of marijuana, a Class B misdemeanor; and
Count VI, invasion of privacy, a Class A misdemeanor.
[9] The trial court held a pre-trial hearing on a motion to suppress evidence filed by
Muhammad and denied his motion. At trial, over Muhammad’s objection, the
trial court admitted into evidence pictures of the firearms and marijuana found
inside the red Hyundai. The jury subsequently found Muhammad guilty of
Counts III through VI and, in the second phase of trial, the trial court found
Muhammad guilty of Counts I and II.2 The trial court sentenced Muhammad to
2 Due to double jeopardy concerns, the trial court dismissed Counts II and IV and entered judgment of conviction on the remaining counts. See Appealed Order at 2.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 5 of 25 an aggregate sentence of eleven and one-half years with two and one-half years
suspended to probation. Muhammad now appeals.
Discussion and Decision I. Admission of Evidence A. Standard of Review [10] Muhammad argues the trial court erred in denying his motion to suppress;
however, because he brings this appeal following his trial, rather than as an
interlocutory appeal of the denial of his motion to suppress, we review this
appeal as a challenge to the trial court’s admission of evidence at trial. Clark v.
State, 994 N.E.2d 252, 259 (Ind. 2013). A trial court’s decision to admit or
exclude evidence is reviewed for an abuse of discretion. Young v. State, 980
N.E.2d 412, 417 (Ind. Ct. App. 2012). An abuse of discretion occurs when the
trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it or when the court has misinterpreted the law. Id. We do
not reweigh the evidence, and we consider conflicting evidence most favorable
to the verdict. Patterson v. State, 958 N.E.2d 478, 482 (Ind. Ct. App. 2011). We
also consider uncontested evidence favorable to the defendant. Id. The
constitutionality of a search is a question of law, which we review de novo.
Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013). Similarly, determinations of
reasonable suspicion and probable cause are reviewed de novo. Myers v. State,
839 N.E.2d 1146, 1150 (Ind. 2005).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 6 of 25 B. The Fourth Amendment [11] Muhammad first argues that the trial court abused its discretion in admitting
photos of the evidence found during the search because it was obtained in
violation of his rights under the Fourth Amendment to the United States
Constitution, which guarantees:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This protection has been extended to the States through the Fourteenth
Amendment. Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013). To deter state
actors from violating the prohibition against unreasonable searches and
seizures, evidence obtained in violation of the Fourth Amendment is generally
inadmissible in a prosecution of the person whose rights were violated. Clark,
994 N.E.2d at 260; see also Segura v. United States, 468 U.S. 796, 804 (1984)
(noting the exclusionary rule encompasses both “primary evidence obtained as
a direct result of an illegal search or seizure” and any “evidence later discovered
and found to be a derivative of an illegality”). Under the Fourth Amendment,
warrantless searches and seizures are per se unreasonable, subject to a “few
specifically established and well-delineated exceptions.” Katz v. Unites States,
389 U.S. 347, 357 (1967) (footnote omitted). When a defendant challenges a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 7 of 25 warrantless search, it is the State’s obligation to prove the search fell within an
exception to the warrant requirement. Clark, 994 N.E.2d at 260.
[12] “One exception to the warrant requirement is the search incident to arrest,
which permits ‘a search of the arrestee’s person and the area within his or her
control.’” Durstock v. State, 113 N.E.3d 1272, 1278 (Ind. Ct. App. 2018)
(quoting Clark, 994 N.E.2d at 261 n.10), trans. denied. An officer may conduct a
search incident to a lawful arrest if the officer has probable cause to make an
arrest. Curry v. State, 90 N.E.3d 677, 687 (Ind. Ct. App. 2017), trans. denied.
Probable cause exists “when the totality of the circumstances establishes ‘a fair
probability’—not proof or a prima facie showing—of criminal activity,
contraband, or evidence of a crime[.]” Hodges v. State, 125 N.E.3d 578, 582 (Ind.
2019) (quoting Illinois v.Gates, 462 U.S. 213, 238 (1983)). The determination of
probable cause is “to be based on the factual and practical considerations of
everyday life upon which reasonable and prudent persons act.” State v. Hawkins,
766 N.E.2d 749, 751 (Ind. Ct. App. 2002), trans. denied.
[13] Muhammad argues that the evidence obtained from the search of the vehicle
should have been excluded because there was no probable cause for his arrest.
See Appellant’s Brief at 13. We disagree. At the suppression hearing and at trial,
Officers McCain and Salazar testified that when they approached the vehicle,
they smelled a strong odor emanating from inside the vehicle. Both officers
further testified that, based on their training and experience, they knew the odor
to be burnt marijuana. This evidence is sufficient to support a finding of
probable cause to search the vehicle. See Hawkins, 766 N.E.2d at 752 (stating
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 8 of 25 that “when a trained and experienced police officer detects the strong and
distinctive odor of burnt marijuana coming from a vehicle, the officer has
probable cause to search the vehicle”). After removing Hill and his girlfriend
from the vehicle, officers returned to the vehicle and observed a pipe in the
center console containing burnt marijuana residue. Officer McCain testified
that the pipe was in plain view and in close proximity to Muhammad. At the
time, Muhammad was still an occupant of the vehicle seated in the front
passenger seat making it probable that he had control over the pipe. These facts
and circumstances would have warranted a reasonable person to believe there
was a fair probability that Muhammad had committed a criminal act, that is,
possession of marijuana, and thus, provided probable cause for his lawful arrest.
[14] Having determined Muhammad’s arrest was lawful, we now turn to the issue of
whether the search incident to the arrest was proper. Muhammad contends the
search of the vehicle was improper under the search incident to arrest exception
because “it was unreasonable to believe that [he] (or the other occupants) would
access the vehicle when they were already detained, placed in handcuffs, and
put in separate squad cars.” Appellant’s Br. at 18.
[15] The search incident to arrest exception to the warrant requirement was first
articulated in the seminal case Chimel v. California, in which the United States
Supreme Court held a search incident to arrest is justified only “for a search of
the arrestee’s person and the area ‘within his immediate control’—construing
that phrase to mean the area from within which he might gain possession of a
weapon or destructible evidence.” 395 U.S. 752, 763 (1969). Years later, the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 9 of 25 Supreme Court held that “when a policeman has made a lawful custodial arrest
of the occupant of an automobile, he may, as a contemporaneous incident of
that arrest, search the passenger compartment of that automobile.” New York v.
Belton, 453 U.S. 454, 460 (1981) (footnotes omitted). Then in Arizona v. Gant,
the Court held that “circumstances unique to the automobile context justify a
search incident to arrest when it is reasonable to believe that evidence of the
offense of arrest might be found in the vehicle.” 556 U.S. 332, 335 (2009).
[16] In Gant, the defendant was arrested for driving with a suspended license,
handcuffed, and secured in the back of a police car. Police officers then
searched his car and found drugs in the pocket of a jacket located on the
backseat. The State justified the warrantless search as a search incident to
arrest. The Court rejected that justification and noted that the search incident to
arrest exception “derives from interests in officer safety and evidence
preservation[.]” Id. at 338. The Court clarified that “[p]olice may search a
vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of the search or it is
reasonable to believe the vehicle contains evidence of the offense of arrest.” Id.
at 351 (emphasis added). Applying that principle, the Court concluded that the
search of the defendant’s car was unreasonable because “police could not
reasonably have believed either that [the defendant] could have accessed his car
at the time of the search or that evidence of the offense for which he was
arrested might have been found therein[.]” Id. at 344.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 10 of 25 [17] Muhammad contends that Gant does not apply because he was secured away
from the vehicle and “it was unreasonable to believe that [he] might access the
vehicle” at the time of the search. Appellant’s Br. at 19. Although Muhammad
is somewhat correct in that Gant does say the police may search a vehicle
incident to arrest if the arrestee is within reaching distance of the vehicle, he
fails to acknowledge the second justification for a search incident to arrest
identified in Gant – police may also search a vehicle if “it is reasonable to
believe the vehicle contains evidence of the offense of arrest.” 556 U.S. at 351.
The circumstances here are different than the circumstances in Gant; that is, the
defendant in Gant was arrested for driving with a suspended license. The Court
noted that the police could not have reasonably found evidence of that offense
in the vehicle. Here, Muhammad was arrested for possession of marijuana after
officers smelled the odor of marijuana coming from the passenger compartment
and saw the pipe containing marijuana in the center console. Given this
evidence, it was reasonable for the officers to believe they would find additional
evidence in the vehicle of the offense for which Muhammad was arrested and
therefore, the search of the vehicle incident to arrest did not violate his Fourth
Amendment rights.3
3 The State also argues that the warrantless search was justified by the automobile exception to the Fourth Amendment to the United States Constitution. Because we have concluded that the search was valid as incident to the arrest, we need not address the State’s alternative argument.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 11 of 25 C. Article 1, Section 11 [18] Muhammad next argues that the search of the vehicle violated his rights under
the Indiana Constitution because the officers “did not act reasonably.”
Appellant’s Br. at 21. Article 1, section 11 of the Indiana Constitution
guarantees:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularity describing the place to be searched, and the person or thing to be seized.
[19] Although Article 1, section 11 is virtually identical to the Fourth Amendment
textually, Indiana courts interpret the state constitutional provision differently
from the federal provision: “The legality of a governmental search under the
Indiana Constitution turns on an evaluation of the reasonableness of the police
conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d
356, 359 (Ind. 2005). We consider the following three factors in determining the
reasonableness of a warrantless search: “1) the degree of concern, suspicion, or
knowledge that a violation has occurred, 2) the degree of intrusion the method
of the search or seizure imposes on the citizen’s ordinary activities, and 3) the
extent of law enforcement needs.” Id. at 361. It is the State’s burden to
demonstrate the reasonableness of the intrusion. State v. Gerschoffer, 763 N.E.2d
960, 965 (Ind. 2002).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 12 of 25 [20] Beginning with the first factor in Litchfield, Muhammad notes law
enforcement’s initial concern was the automobile accident investigation and
contends that once officers located Hill, their degree of concern was low. See
Appellant’s Br. at 22. We, however, conclude that the degree of suspicion was
high. Muhammad fails to acknowledge that when officers approached the
Hyundai to conduct their investigation of the accident, both officers identified
the strong odor of burnt marijuana coming from inside the vehicle. After the
officers removed Hill and his girlfriend from the vehicle and secured them
elsewhere, they returned and noticed a pipe in the center console, next to
Muhammad, that contained burnt marijuana. This evidence, taken together
with the reasonable inferences arising from such evidence, gave Officers
McCain and Salazar a great deal of suspicion that a crime had been committed.
Thus, this factor weighs in favor of the State.
[21] Second, the degree of intrusion was low. The degree of intrusion is assessed
from the defendant’s point of view. Mundy v. State, 21 N.E.3d 114, 118 (Ind. Ct.
App. 2014). Here, Muhammad was already detained when the officers searched
the vehicle, which belonged to his girlfriend and in which he had no ownership
interest. See Masterson v. State, 843 N.E.2d 1001, 1007 (Ind. Ct. App. 2006)
(considering, in evaluating the second Litchfield factor, that it was unclear to the
police that the defendant owned the vehicle because it was registered to another
individual), trans. denied. Furthermore, the interior search of the vehicle
occurred after midnight. See Myers v. State, 839 N.E.2d 1146, 1154 (Ind. 2005)
(noting that, with respect to the second Litchfield factor, “the intrusion, at least
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 13 of 25 as to public notice and embarrassment, [can be] somewhat lessened because of
the hour and place of the search”). Under these circumstances, the search was
unlikely to impose a significant intrusion on Muhammad’s ordinary activities.
Because the degree of intrusion was low, this factor also weighs in favor of the
State.
[22] Finally, when determining the extent of law enforcement needs, we consider
the nature and immediacy of the governmental concern. Masterson, 843 N.E.2d
at 1007. Here, we conclude the extent of law enforcement needs was high
because the officers had probable cause to believe one of the occupants had
been involved in a hit and run. In addition, the officers identified the smell of
burnt marijuana – leading them to believe the occupants were in possession of
or concealing illegal drugs. The articulated needs of law enforcement were
heightened and therefore, this factor also weighs in favor of the State. Under the
totality of the circumstances, we conclude that the search of the vehicle was
reasonable and did not violate Muhammad’s rights under Article 1, section 11
of the Indiana Constitution.
[23] In sum, because Muhammad’s rights under the federal and state constitutions
were not violated, the trial court did not abuse its discretion in admitting
pictures of the evidence seized from the vehicle.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 14 of 25 II. Sufficiency of the Evidence A. Standard of Review [24] Muhammad challenges the sufficiency of the evidence of his possession of a
firearm, marijuana, and battery convictions. When reviewing the sufficiency of
the evidence required to support a criminal conviction, we do not reweigh the
evidence or judge the credibility of the witnesses. Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009). Instead, we consider only the evidence supporting the
verdict and any reasonable inferences that can be drawn therefrom. Morris v.
State, 114 N.E.3d 531, 535 (Ind. Ct. App. 2018), trans. denied. And we consider
conflicting evidence most favorably to the verdict. Silvers v. State, 114 N.E.3d
931, 936 (Ind. Ct. App. 2018). “We will affirm if there is substantial evidence of
probative value such that a reasonable trier of fact could have concluded the
defendant was guilty beyond a reasonable doubt.” Bailey, 907 N.E.2d at 1005. It
is not necessary for the evidence to overcome every reasonable hypothesis of
innocence; it is sufficient if an inference may reasonably be drawn from the
evidence to support the verdict. Silvers, 114 N.E.3d at 936.
B. Constructive Possession of a Firearm and Marijuana [25] Muhammad first contends that the State presented insufficient evidence to
support his convictions for unlawful possession of a firearm by a serious violent
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 15 of 25 felon and possession of marijuana.4 Specifically, he argues that the State failed
to prove that he constructively possessed a firearm and marijuana.
[26] To convict Muhammad of unlawful possession of a firearm by a serious violent
felon as a Level 4 felony, the State was required to prove beyond a reasonable
doubt that Muhammad, a serious violent felon, knowingly or intentionally
possessed a firearm. See Ind. Code § 35-47-4-5(c) (2018). And to convict
Muhammad of possession of marijuana as a Class B misdemeanor, the State
was required to prove beyond a reasonable doubt that Muhammad knowingly
or intentionally possessed marijuana (pure or adulterated). See Ind. Code § 35-
48-4-11(a).
[27] A person actually possesses contraband when they have direct physical control
over it, but “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). When
the State cannot show actual possession, a conviction may rest on proof of
constructive possession. Id. A person constructively possesses an item when
they have both the capability and the intent to maintain dominion and control
over the item. Id. Because there was no evidence that Muhammad physically
4 Muhammad’s argument with respect to his possession of a firearm focuses primarily on the State’s failure to prove he constructively possessed a firearm with respect to Count II, carrying a handgun without a license. See Appellant’s Br. at 23-25. However, the trial court vacated this conviction due to double jeopardy concerns when it entered judgment of conviction for Count I, unlawful possession of a firearm by a serious violent felon. See Appealed Order at 2. Nonetheless, Muhammad acknowledges that his argument and analysis for carrying a handgun without a license also applies to his unlawful possession of a firearm by a serious violent felon conviction. See id. at 25. Either way, the crucial question is whether Muhammad constructively possessed the firearms found in the vehicle.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 16 of 25 possessed a firearm or marijuana, the State prosecuted Muhammad under a
theory of constructive possession.
[28] “When constructive possession is asserted, the State must demonstrate the
defendant’s knowledge of the contraband[, which] may be inferred from . . . the
exclusive dominion and control over the premise containing the contraband[.]”
Woods v. State, 471 N.E.2d 691, 694 (Ind. 1984). If the control or possession of
the premises is non-exclusive, there must be evidence of additional
circumstances pointing to the defendant’s knowledge of the contraband. Id.
Recognized additional circumstances include: (1) incriminating statements 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. Henderson v. State, 715 N.E.2d 833, 836 (Ind. 1999).
These circumstances are not exclusive and ultimately, the question is whether a
reasonable fact-finder could conclude from the evidence that the defendant
knew of the nature and presence of the contraband. Johnson v. State, 59 N.E.3d
1071, 1074 (Ind. Ct. App. 2016).
[29] Here, Muhammad did not have exclusive possession of the vehicle because
there were three other passengers in the vehicle at the time of the search. Cf.
Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) (holding that the defendant had
exclusive possession of a vehicle when he was the only person in the car at the
time he was stopped even though he alleged he had borrowed the car); Holmes v.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 17 of 25 State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003) (holding a defendant did not
have exclusive control over a vehicle when he was merely a passenger).
Therefore, evidence of “additional circumstances” pointing to Muhammad’s
knowledge of the nature and presence of the firearms and marijuana is required
to support his conviction.
[30] Although Muhammad was not in exclusive possession of the vehicle at the time
of the stop, testimony at trial revealed that hours before, he and Trail had an
argument at their residence and shortly thereafter, he drove away in Trail’s
vehicle, which she allowed him to use “fairly freely[.]” Tr., Vol. II at 70. Trail
testified that even though the vehicle belonged to her, she did not know where
the drugs or guns came from. In addition, Muhammad was in close proximity
to contraband, some of which was in plain view. Officers located a pipe
containing burnt marijuana residue in plain view in the center console, which
was next to Muhammad who was sitting in the front passenger seat. And the
incriminating nature of the pipe was readily apparent, as Officer Salazar
testified that he observed a “green rubber pipe with marijuana still in it.” Id. at
35; see Gray, 957 N.E.2d at 175 (stating that a defendant’s proximity to
contraband in plain view supports an inference of intent to maintain dominion
or control if the contraband’s incriminating character is immediately apparent).
Furthermore, while searching the passenger compartment of the vehicle, an
officer bumped the glove compartment and one of the .22 caliber handguns fell
from the compartment onto the passenger side floorboard – the same location
where Muhammad sat in the vehicle.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 18 of 25 [31] Based on this evidence, we conclude that a reasonable factfinder could infer
that Muhammad knew of the nature and presence of the contraband and there
was sufficient evidence to demonstrate that he constructively possessed a
firearm and marijuana.
C. Domestic Battery [32] Muhammad also argues there was insufficient evidence to support his
conviction for domestic battery. To convict Muhammad of domestic battery as
a Class A misdemeanor, the State was required to prove beyond a reasonable
doubt that he knowingly or intentionally touched Trail in a rude, insolent, or
angry manner. See Ind. Code § 35-42-2-1.3(a) (2016). 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.” Ind. Code § 35-41-2-2(b). “Evidence of
touching, however slight, is sufficient to support a conviction for battery.” Ball
v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011), trans. denied. The crux of
Muhammad’s argument is that he did not hit or touch Trail and he did not have
the necessary intent to commit the offense. See Appellant’s Br. at 27-28.
[33] The evidence most favorable to the verdict is that Muhammad and Trail were
involved in an argument throughout the day on July 8, 2018. When
Muhammad was stopped by police early the next morning, Trail went to the
scene to retrieve her vehicle. When Trail arrived, Officer McCain noticed a
discolored “lump on [her] forehead” and asked her what happened. Tr., Vol. II
at 112. Officer McCain testified that Trail told him Muhammad threw a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 19 of 25 Bluetooth speaker at her and it hit her in the head. This constitutes the requisite
“touching” contemplated in the statute. See Matthews v. State, 476 N.E.2d 847,
850 (Ind. 1985) (“While battery requires defendant to have intended to touch
another person, defendant need not personally touch another person since
battery may be committed by the unlawful touching by defendant or by any
other substance put in motion by defendant.”). Trail also testified that her
injury was painful and that the lump on her forehead lasted “[p]robably a week
and a half.” Tr., Vol. II at 72. A factfinder could conclude this evidence, taken
together with all reasonable inferences therefrom, establishes that Muhammad
knowingly threw a Bluetooth speaker at Trail in a rude, insolent, or angry
manner that caused her injury. Muhammad notes that Trail recanted her
statement to Officer McCain and testified at trial that Muhammad “threw a
speaker across the room . . . not at me, I don’t feel, but over towards my
direction and it didn’t hit me but I turned . . . and hit my head on the TV.” Id.
at 68-69. However, the jury was in the best position to hear all the evidence,
weigh Trail’s testimony, and make a determination of her credibility. We will
not second-guess the jury’s determination and to do so would require us to
reweigh the evidence and judge witness credibility, which we cannot do. See
Bailey, 907 N.E.2d at 1005.5
5 Muhammad also argues that the State failed to prove that the offense occurred on the date alleged in the charging information. The State alleged that Muhammad committed battery “[o]n or about July 9, 2018” and Trail testified that the battery took place on July 8. Appellant’s Appendix, Volume 2 at 18. “Where, as here, time is not an element of the offense, the State is not required to prove the offense occurred on the precise
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 20 of 25 III. Inappropriate Sentence [34] Muhammad contends that his sentence is inappropriate because neither his
offenses nor his character warrants the sentence imposed by the trial court.
[35] Article 7, sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of sentences through Indiana Appellate Rule 7(B).
King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) provides,
“The Court may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Sentencing decisions rest within the discretion of the trial court and
should receive considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222
(Ind. 2008). “Such deference should prevail unless overcome by compelling
evidence portraying in a positive light the nature of the offense (such as
accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[36] Generally, the defendant bears the burden of demonstrating his sentence is
inappropriate under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
date alleged, and its presentation of evidence is not limited to events on that date.” Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014). The State is only required to prove the offense occurred within the statute of limitations. Poe v. State, 775 N.E.2d 681, 686 (Ind. Ct. App. 2002) (“Under Indiana law, the phrase ‘on or about June 23, 2000’ clearly does not limit the State to only the events of June 23, 2000[.]”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 21 of 25 2006), and we may look to any factors in the record for such a determination,
Reis v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether
we regard a sentence as [in]appropriate at the end of the day turns on our sense
of the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell,
895 N.E.2d at 1224.
A. Nature of the Offense [37] We begin our analysis of the nature of the offense with the advisory sentence,
which is the starting point selected by our legislature as an appropriate sentence
for the crime committed. Reis, 88 N.E.3d at 1104. Muhammad was convicted of
unlawful possession of a firearm by a serious violent felon, a Level 4 felony.
The sentencing range for a Level 4 felony is two years to twelve years with an
advisory sentence of six years. See Ind. Code § 35-50-2-5.5. The trial court
sentenced Muhammad to nine years – a sentence that is above the advisory
sentence but below the maximum sentence allowed. Muhammad was also
convicted of domestic battery and invasion of privacy, both Class A
misdemeanors. A person convicted of a Class A misdemeanor shall be
imprisoned for not more than one year. See Ind. Code § 35-50-3-2. On each
count, the trial court sentenced Muhammad to 365 days, a sentence clearly
permitted by statute. Last, Muhammad was convicted of possession of
marijuana as a Class B misdemeanor. A person who commits a Class B
misdemeanor shall not be imprisoned for more than 180 days, Ind. Code § 35-
50-3-3, and here, the trial court sentenced Muhammad to 180 days. Notably,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 22 of 25 the trial court could have sentenced Muhammad to a total sentence of fourteen
and one-half years in the DOC. The trial court, however, sentenced him to
eleven and one-half years in the DOC. Therefore, Muhammad’s total sentence
was not as lengthy as it could have been.
[38] The nature of the offense is also found in the details and circumstances
surrounding the offenses and the defendant’s participation therein. Perry v. State,
78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, Muhammad and Trail got into an
argument and he threw a Bluetooth speaker at Trail’s forehead, which caused a
discolored, painful lump on her forehead that lasted more than one week.
Muhammad then left their home in Trail’s car. Later, officers initiated a traffic
stop and, after smelling marijuana, conducted a search of the vehicle and
discovered marijuana and multiple loaded firearms. Although the nature of
Muhammad’s crimes is not particularly egregious, we are unpersuaded that the
nature of his crimes warrants a lesser sentence. Muhammad has failed to
demonstrate that the nature of his offenses renders his sentence inappropriate.
B. Character of the Offender [39] “A defendant’s life and conduct are illustrative of his or her character.” Morris,
114 N.E.3d at 539. One relevant factor in assessing character is a defendant’s
criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).
The significance of criminal history varies based on the gravity, nature, and
number of prior offenses in relation to the current offense. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 23 of 25 [40] Here, Muhammad’s extensive criminal history began in 1993 when he was
adjudicated a delinquent child for acts that, if committed by an adult, would
constitute possession of a stolen vehicle. His adult criminal history consists of
four felony convictions and three misdemeanors, several of which were
convictions for crimes related to the instant offenses, namely carrying a
handgun without a license, illegal possession of ammunition, and domestic
battery. Muhammad’s criminal history illustrates a blatant disregard for the rule
of law and shows that despite his frequent contact with our criminal justice
system, he was not deterred from committing the instant crimes. See id.
[41] Further, the record reveals that Muhammad has a history of mental illness and
substance abuse. At the sentencing hearing, Muhammad testified that he was
addicted to heroin and methamphetamine and on July 9, he received a call
from Hill, from whom he typically got drugs, informing him that Hill had been
in a car accident and needed help. See Tr., Vol. II at 167. Muhammad stated he
“sprung to action[,]” in part, because he “figure[d he] could get [illegal drugs]
for free if [he] help[ed] and save[d Hill] out of this situation.” Id. Therefore,
Muhammad’s involvement in the instant offenses, to some extent, was driven
by his need to fuel his addiction illustrating that, despite his extensive criminal
history, he continues to struggle with substance abuse and associate himself
with people who are involved with illegal drugs.
[42] Muhammad does not offer clear examples of his good character. Although
Muhammad has an associate degree and has maintained employment, neither
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 24 of 25 amount to compelling evidence that his character is so positive as to warrant a
reduction in his sentence.
[43] Considering the nature of Muhammad’s offenses and character, we are not
persuaded that his sentence is inappropriate. Therefore, his eleven and one-half
year aggregate sentence is affirmed.
Conclusion [44] Muhammad’s rights were not violated under the Fourth Amendment to the
United States Constitution or Article 1, section 11 of the Indiana Constitution
and therefore, the trial court did not abuse its discretion in admitting evidence
obtained from the search of the vehicle. We also conclude the State presented
sufficient evidence to support Muhammad’s convictions and his sentence is not
inappropriate in light of the nature of the offenses and his character.
Accordingly, we affirm.
[45] Affirmed.
May, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 25 of 25