Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Jun 14 2013, 10:13 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DOUGLAS K. MAWHORR GREGORY F. ZOELLER Public Defender Agency Attorney General of Indiana Muncie, Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
REGGIE T. JOHNSON, ) ) Appellant-Defendant, ) ) vs. ) No. 18A04-1211-CR-569 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Thomas A. Cannon, Jr., Judge Cause No. 18C05-1202-FA-6
June 14, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issue
Following a jury trial, Reggie T. Johnson was convicted of possession of a
controlled substance, a Class C felony, and possession of marijuana, a Class A
misdemeanor. He now appeals, raising the following restated issue for our review:
whether the evidence was sufficient to sustain his possession of a controlled substance
conviction. Concluding the evidence was sufficient, we affirm.
Facts and Procedural History
On February 1, 2012, Muncie police arrived at the apartment shared by Johnson
and Megan Lucas to investigate a complaint of the strong odor of burnt marijuana. After
entering the apartment, police found a man identified as Deion Barber in the living room
and Johnson coming out of the kitchen. Johnson identified himself as “Deontae Barber.”
Transcript at 35. However, one of the police offers knew him as Reggie Johnson and ran
a warrants check. It was revealed that Johnson had two active warrants and he was thus
placed under arrest. As he was led out of the apartment, Johnson made a comment to
Lucas “not to say anything to the police and to shut up and keep her mouth shut.” Id. at
40. Lucas signed a written consent for a search of the apartment, and upon conducting
the search, police found marijuana, cocaine, several scales, drug paraphernalia, and a gun.
The officers also found a controlled substance—six and one-half pills of hydrocodone—
in a kitchen drawer; neither Johnson nor Lucas had a prescription for the pills.
The State charged Johnson with possession of cocaine, dealing in cocaine,
carrying a handgun without a license,1 possession of a controlled substance,2 and
1 The carrying a handgun charge was dismissed prior to trial.
2 possession of marijuana. During the jury trial, Lucas testified that Barber was Johnson’s
father and sometimes stayed with them in the apartment they shared. The jury found
Johnson guilty of possession of a controlled substance and possession of marijuana but
not guilty of possession of cocaine and dealing in cocaine. The trial court entered
judgments of conviction and sentenced Johnson accordingly. Johnson now appeals.
Additional facts will be provided as necessary.
Discussion and Decision
I. Standard of Review
Our standard of review for sufficiency claims is well-settled. We do not reweigh
the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855,
864 (Ind. Ct. App. 2010), trans. denied. We consider only the probative evidence and
reasonable inferences supporting the verdict. Id. It is not necessary that the evidence
overcome every reasonable hypothesis of innocence; the evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict. Id. We will affirm the
conviction unless no reasonable finder of fact could find the elements of the crime proven
beyond a reasonable doubt. Id. A conviction may be based upon circumstantial evidence
alone. Id.
II. Evidence of Constructive Possession
Johnson alleges that the evidence is not sufficient to support his conviction for
possession of a controlled substance. To convict Johnson of possession of a controlled
2 The possession of a controlled substance charge was brought as a Class C felony because the controlled substance was found within one thousand feet of a youth program center. See Ind. Code § 35-48-4-7(a). 3 substance, the State had to prove that he knowingly or intentionally possessed the
hydrocodone pills. See Ind. Code. § 35-48-4-7.
A conviction for possession of contraband may rest upon proof of either actual or
constructive possession. Conrad v. State, 747 N.E.2d 575, 582 (Ind. Ct. App. 2001),
trans. denied. The State does not claim that Johnson had actual possession of the
hydrocodone, but instead argues that he had constructive possession. In order to prove
constructive possession, the State must satisfy a two-prong test showing that Johnson
had both 1) the intent and 2) the capability to maintain dominion and control over the
contraband. Lampkins v. State, 685 N.E.2d 698, 699 (Ind. 1997). Johnson concedes that
he had the capability to maintain dominion and control over the hydrocodone pills
because he shared the apartment with Lucas and had access to the kitchen drawer where
they were stored. He argues, however, that the evidence was insufficient to establish that
he had the intent to maintain dominion and control.
To prove the intent element, the State must demonstrate Johnson’s knowledge of
the presence of the hydrocodone. See Conrad, 747 N.E.2d at 582. In cases where the
defendant had exclusive possession of the premises on which the contraband was found,
an inference is permitted that he knew of its presence. Holmes v. State, 785 N.E.2d 658,
661 (Ind. Ct. App. 2003). However, when possession of the premises was non-exclusive,
as was the case here, the inference is not permitted absent some additional circumstances.
Id. Those additional circumstances can include: “(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; and
(6) location of the contraband is in close proximity to items owned by the defendant.” Id. 4 The evidence most favorable to the conviction supports several of these additional
circumstances. For instance, Johnson acted suspiciously, initially giving police a false
name and later—after being placed under arrest—ordering Lucas not to say anything to
police. Several items commonly found in a drug manufacturing setting were also found
in the apartment. But, more specific to the hydrocodone pills themselves is evidence of
two factors: proximity of Johnson to the contraband and the contraband found in close
proximity to items owned by Johnson. Police observed Johnson coming out of the
kitchen where the hydrocodone pills were later found. Also, the hydrocodone pills were
found in a kitchen drawer that also contained a pipe and grinder used by Johnson to
smoke marijuana. As a result, we find that there was sufficient evidence of additional
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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 Jun 14 2013, 10:13 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DOUGLAS K. MAWHORR GREGORY F. ZOELLER Public Defender Agency Attorney General of Indiana Muncie, Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
REGGIE T. JOHNSON, ) ) Appellant-Defendant, ) ) vs. ) No. 18A04-1211-CR-569 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Thomas A. Cannon, Jr., Judge Cause No. 18C05-1202-FA-6
June 14, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issue
Following a jury trial, Reggie T. Johnson was convicted of possession of a
controlled substance, a Class C felony, and possession of marijuana, a Class A
misdemeanor. He now appeals, raising the following restated issue for our review:
whether the evidence was sufficient to sustain his possession of a controlled substance
conviction. Concluding the evidence was sufficient, we affirm.
Facts and Procedural History
On February 1, 2012, Muncie police arrived at the apartment shared by Johnson
and Megan Lucas to investigate a complaint of the strong odor of burnt marijuana. After
entering the apartment, police found a man identified as Deion Barber in the living room
and Johnson coming out of the kitchen. Johnson identified himself as “Deontae Barber.”
Transcript at 35. However, one of the police offers knew him as Reggie Johnson and ran
a warrants check. It was revealed that Johnson had two active warrants and he was thus
placed under arrest. As he was led out of the apartment, Johnson made a comment to
Lucas “not to say anything to the police and to shut up and keep her mouth shut.” Id. at
40. Lucas signed a written consent for a search of the apartment, and upon conducting
the search, police found marijuana, cocaine, several scales, drug paraphernalia, and a gun.
The officers also found a controlled substance—six and one-half pills of hydrocodone—
in a kitchen drawer; neither Johnson nor Lucas had a prescription for the pills.
The State charged Johnson with possession of cocaine, dealing in cocaine,
carrying a handgun without a license,1 possession of a controlled substance,2 and
1 The carrying a handgun charge was dismissed prior to trial.
2 possession of marijuana. During the jury trial, Lucas testified that Barber was Johnson’s
father and sometimes stayed with them in the apartment they shared. The jury found
Johnson guilty of possession of a controlled substance and possession of marijuana but
not guilty of possession of cocaine and dealing in cocaine. The trial court entered
judgments of conviction and sentenced Johnson accordingly. Johnson now appeals.
Additional facts will be provided as necessary.
Discussion and Decision
I. Standard of Review
Our standard of review for sufficiency claims is well-settled. We do not reweigh
the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855,
864 (Ind. Ct. App. 2010), trans. denied. We consider only the probative evidence and
reasonable inferences supporting the verdict. Id. It is not necessary that the evidence
overcome every reasonable hypothesis of innocence; the evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict. Id. We will affirm the
conviction unless no reasonable finder of fact could find the elements of the crime proven
beyond a reasonable doubt. Id. A conviction may be based upon circumstantial evidence
alone. Id.
II. Evidence of Constructive Possession
Johnson alleges that the evidence is not sufficient to support his conviction for
possession of a controlled substance. To convict Johnson of possession of a controlled
2 The possession of a controlled substance charge was brought as a Class C felony because the controlled substance was found within one thousand feet of a youth program center. See Ind. Code § 35-48-4-7(a). 3 substance, the State had to prove that he knowingly or intentionally possessed the
hydrocodone pills. See Ind. Code. § 35-48-4-7.
A conviction for possession of contraband may rest upon proof of either actual or
constructive possession. Conrad v. State, 747 N.E.2d 575, 582 (Ind. Ct. App. 2001),
trans. denied. The State does not claim that Johnson had actual possession of the
hydrocodone, but instead argues that he had constructive possession. In order to prove
constructive possession, the State must satisfy a two-prong test showing that Johnson
had both 1) the intent and 2) the capability to maintain dominion and control over the
contraband. Lampkins v. State, 685 N.E.2d 698, 699 (Ind. 1997). Johnson concedes that
he had the capability to maintain dominion and control over the hydrocodone pills
because he shared the apartment with Lucas and had access to the kitchen drawer where
they were stored. He argues, however, that the evidence was insufficient to establish that
he had the intent to maintain dominion and control.
To prove the intent element, the State must demonstrate Johnson’s knowledge of
the presence of the hydrocodone. See Conrad, 747 N.E.2d at 582. In cases where the
defendant had exclusive possession of the premises on which the contraband was found,
an inference is permitted that he knew of its presence. Holmes v. State, 785 N.E.2d 658,
661 (Ind. Ct. App. 2003). However, when possession of the premises was non-exclusive,
as was the case here, the inference is not permitted absent some additional circumstances.
Id. Those additional circumstances can include: “(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; and
(6) location of the contraband is in close proximity to items owned by the defendant.” Id. 4 The evidence most favorable to the conviction supports several of these additional
circumstances. For instance, Johnson acted suspiciously, initially giving police a false
name and later—after being placed under arrest—ordering Lucas not to say anything to
police. Several items commonly found in a drug manufacturing setting were also found
in the apartment. But, more specific to the hydrocodone pills themselves is evidence of
two factors: proximity of Johnson to the contraband and the contraband found in close
proximity to items owned by Johnson. Police observed Johnson coming out of the
kitchen where the hydrocodone pills were later found. Also, the hydrocodone pills were
found in a kitchen drawer that also contained a pipe and grinder used by Johnson to
smoke marijuana. As a result, we find that there was sufficient evidence of additional
circumstances from which the jury could infer that Johnson had the intent to maintain
dominion and control over the hydrocodone pills found in the kitchen drawer. See Ladd
v. State, 710 N.E.2d 188, 191 (Ind. Ct. App. 1999) (finding the evidence sufficient to
establish constructive possession when there was evidence that fulfilled two of the
categories of additional circumstances—contraband in plain view and contraband in close
proximity to items owned by the defendant).
Johnson points to Lucas’s testimony that the kitchen drawer contraband was hers
alone and that neither Johnson nor Barber owned the hydrocodone pills to argue that she
was one who constructively possessed the contraband. However, possession need not be
exclusive and contraband can be possessed jointly. Conrad, 747 N.E.2d at 583.
Moreover, this argument is merely an invitation for us to reweigh the evidence and assess
the credibility of the witnesses, which we cannot do on appeal. See id. The evidence was
sufficient to support Johnson’s conviction for possession of a controlled substance. 5 Conclusion
The evidence was sufficient to establish that Johnson constructively possessed the
contraband. We therefore affirm his convictions.
Affirmed.
FREIDLANDER, J., and CRONE, J., concur.