Shandell T. Willingham v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 28, 2016
• Docket: 15A05-1507-CR-1029
• Status: Published

Opinion

FILED MEMORANDUM DECISION Apr 28 2016, 6:52 am

Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court

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 Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Shandell T. Willingham, April 28, 2016 Appellant-Defendant, Court of Appeals Case No. 15A05-1507-CR-1029 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally A. Appellee-Plaintiff McLaughlin, Judge Trial Court Cause No. 15D02-1502-FB-5

Mathias, Judge.

[1] Shandell Willingham (“Willingham”) was convicted in Dearborn Superior

Court of Class B felony dealing in a narcotic drug, Level 4 felony dealing in a

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 1 of 12 narcotic drug, Level 6 felony possession of heroin, and Level 6 felony

maintaining a common nuisance. Willingham was also adjudicated a habitual

offender. Willingham appeals his convictions and raises three issues, which we

consolidate as the following two:

I. Whether sufficient evidence supports his convictions for heroin possession and dealing in heroin; and, II. Whether Willingham was denied a fair trial due to two instances of prosecutorial misconduct.

[2] We affirm.

Facts and Procedural History

[3] In October 2014, a confidential informant provided information to Detective

Norman Rimstidt (“Detective Rimstidt”) that a man named Shawn was dealing

heroin in Bright, Indiana. The informant provided Detective Rimstidt with the

heroin dealer’s cell phone number. The detective obtained a cell phone warrant

and learned that the cell phone number was registered to Willingham. Detective

Rimstidt also learned that the cell phone had connected to cell phone towers

near Bright.

[4] The detective also used Willingham’s cell phone number to search Facebook.

The number was linked to a Facebook page for “Shawn Will.” The page had

photos of Willingham and his girlfriend Kelly Kinnet (“Kinnet”). Thereafter,

Detective Rimstidt obtained a second search warrant for Willingham’s cell

phone and an arrest warrant for Willingham.

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 2 of 12 [5] The warrants were executed in the early morning hours on October 10, 2014, at

Kinnet’s residence in Bright, Indiana. Law enforcement officers entered the

home by using a battering ram to break down the door. Willingham and Kinnet

were arrested and removed from the home.

[6] Because he had been sleeping, Willingham was not wearing shoes and asked an

officer if he could have his shoes, which were in the living room. While

retrieving the shoes, Detective Carl Pieczonka smelled the odor of marijuana

and saw what he believed to be a marijuana cigarette and marijuana seeds.

Therefore, the detective applied for and received a search warrant for the

residence.

[7] During execution of the search warrant, the officers found marijuana, rolling

papers, hydrocodone pills, a spoon, a scale, steroids, cash, and syringes. The

spoon and the scale, which were later tested by the State Police Lab, contained

trace amounts of heroin. Fentanyl was also discovered on the scale. Fentanyl is

a cutting agent used in the sale of heroin.

[8] After obtaining Willingham’s cell phone, Detective Rimstidt observed one

hundred and forty-seven contacts with “doglick” in the names. Detective

Rimstidt knew that the phrase “doglick” is a reference to dealing heroin. Also,

after searching the data and text messages on Willingham’s cell phone,

Detective Rimstidt identified four young women who purchased heroin from

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 3 of 12 Willingham.1 One of the women later admitted that she sold Willingham the

scale that law enforcement officers found during the search of Kinnet’s

residence. In addition, Kinnet eventually admitted that Willingham gave her

heroin and she saw him deal heroin twice in Bright.

[9] On February 27, 2015, Willingham was charged with Class B felony dealing in

a narcotic drug (for acts occurring between March 1 and June 30, 2014), Level 4

felony dealing in a narcotic drug (for acts occurring between July 1 and October

9, 2014), Level 6 felony possession of heroin, and Level 6 felony maintaining a

common nuisance. The State also alleged that Willingham was a habitual

offender.

[10] A jury trial commenced on May 12, 2015, and Willingham was convicted as

charged. The jury also found that Willingham was a habitual offender. The

trial court ordered Willingham to serve an aggregate sentence of forty-five

years. Willingham now appeals.

Sufficient Evidence

[11] Willingham argues that the evidence is insufficient to prove that he possessed

heroin and that he was dealing in heroin. When the sufficiency of evidence is

challenged, we neither reweigh the evidence nor judge the credibility of

1 Emily Kage, one of the four women who testified against Willingham, was incarcerated and on house arrest for nearly the entire time period that Willingham was charged with dealing in heroin. Tr. p. 758. Kage testified that she and Willingham texted each other about purchasing heroin after her house arrest ended on September 30, 3014, but that she never actually obtained heroin from Willingham. Tr. p. 760.

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 4 of 12 witnesses. Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. Rather, we

recognize the exclusive province of the trier of fact to weigh any conflicting

evidence and we consider only the probative evidence supporting the conviction

and the reasonable inferences to be drawn therefrom. Id. If there is substantial

evidence of probative value from which a reasonable trier of fact could have

drawn the conclusion that the defendant was guilty of the crime charged

beyond a reasonable doubt, then the verdict will not be disturbed. Baumgartner

v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).

A. Possession

[12] First, we address Willingham’s argument that the State failed to prove that he

possessed heroin. While searching Kinnet’s residence, law enforcement officers

found a spoon and a scale. These items were tested by the State Police Lab and

found to contain trace amounts of heroin. Willingham argues that the State

failed to prove that he had intent to possess the heroin because it was not visibly

apparent on the scale or spoon, and both he and Kinnet had access to the items.

[13] To prove that Willingham possessed the heroin, the State was required to prove

that he knowingly or intentionally possessed an identifiable amount of heroin.

See Ind. Code § 35-48-4-6; see also Beeler v. State, 807 N.E.2d 789, 792 (Ind. Ct.

App. 2004) (requiring that the State prove the defendant possessed an

identifiable amount of the illegal drug), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 5 of 12 [14] It is well settled that a possession conviction may rest upon proof of either

actual or constructive possession. Gray v. State, 957 N.E.2d 171, 174 (Ind.

2011). A defendant constructively possesses an item when he has both the

capability and the intent to maintain dominion and control over it. Id. Proof of

a possessory interest in the premises where the item is found satisfies the

capability prong, regardless of whether possession of the premises is exclusive.

Gee v. State, 810 N.E.2d 338, 340-41 (Ind. 2004).

[15] As for the intent prong, if a defendant’s possession of the premises is non-

exclusive, the inference of intent to maintain dominion and control must be

supported by additional circumstances pointing to the defendant’s knowledge of

the nature of the item and its presence. Id. at 341. Recognized “additional

circumstances” include: (1) incriminating statements; (2) attempted flight or

furtive gestures; (3) a setting that suggests drug manufacturing; (4) the proximity

of the item to the defendant; (5) whether the item was found in plain view; and

(6) the mingling of the item with other items the defendant owns. Id.

[16] Both Kinnet and Willingham lived at the residence in Bright, Indiana from

June 2014 to October 2014. Kinnet testified that Willingham gave her heroin

and they used it daily. Tr. pp. 438-39. She admitted that the spoon containing

the heroin residue that was found in the master bedroom belonged to her.

However, she stated that the scale found in the kitchen drawer containing

heroin residue belonged to Willingham. Tr. p. 444. The scale also contained

fentanyl, which is a diluting agent used in the sale of heroin.

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 6 of 12 [17] Shay Richardson (“Richardson”) testified that she purchased heroin from

Willingham and brought her own scales to weigh the heroin she bought.

Willingham asked to buy her scales, and she sold them to him for twenty

dollars. Tr. p. 668. The scales were new and still in the box. Richardson testified

that the scales she sold to Willingham were the same scales that the law

enforcement officers found in his home.

[18] This evidence is sufficient to prove that Willingham owned the scales, used

them to weigh heroin, and that he constructively possessed the heroin residue

found on the scales. Willingham’s argument that Richardson’s testimony

“cannot be trusted” is merely an invitation to reweigh the evidence and

credibility of the witnesses, which our court will not do.

B. Dealing

[19] Next, we consider whether the State presented sufficient evidence that

Willingham committed dealing in heroin. See I.C. § 35-48-4-1 (“A person who[]

knowingly or intentionally . . . delivers . . . a narcotic drug, pure or adulterated,

. . . commits dealing in . . . a narcotic drug[.]”). Detective Rimstidt analyzed the

data on Willingham’s cell phone and found one hundred and forty-seven

contacts with “doglick” in the names. The phrase “doglick” is a reference to

dealing heroin.

[20] After reviewing the cell phone data and text messages, Detective Rimstidt

identified four young women who purchased heroin from Willingham. At trial,

three of the four women testified that they purchased heroin from Willlingham.

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 7 of 12 Tr. pp. 631-32, 707-09, 741, 744-45. Kinnet testified that she saw Willingham

selling heroin on at least two occasions. Tr. pp. 463-71.

[21] Finally, law enforcement officers found items in Willingham’s home that are

indicative of dealing in heroin. These items include the scales, and baggies and

cellophane wrappers, which are used in packaging heroin.

[22] In his brief, Willingham challenges the credibility of these witnesses and their

ability to remember the events about which they testified. Willingham’s

argument on appeal is merely a request to reweigh the evidence and credibility

of these witnesses, which our court will not do. Under these facts and

circumstances, we conclude that the State presented sufficient evidence to prove

that Willingham committed dealing in heroin.

Prosecutorial Misconduct

[23] Willingham also argues that he was denied a fair trial due to two instances of

prosecutorial misconduct. When we review a properly preserved claim of

prosecutorial misconduct, “we determine (1) whether misconduct occurred, and

if so, (2) ‘whether the misconduct, under all of the circumstances, placed the

defendant in a position of grave peril to which he or she would not have been

subjected’ otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citations

omitted).

[24] Willingham concedes that he failed to preserve the claims of prosecutorial

misconduct he raises in this appeal.

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 8 of 12 Our standard of review is different where a claim of prosecutorial misconduct has been procedurally defaulted for failure to properly raise the claim in the trial court, that is, waived for failure to preserve the claim of error. The defendant must establish not only the grounds for prosecutorial misconduct but must also establish that the prosecutorial misconduct constituted fundamental error. Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to “make a fair trial impossible.” In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) “constitute clearly blatant violations of basic and elementary principles of due process” and (b) “present an undeniable and substantial potential for harm.” The element of such harm is not established by the fact of ultimate conviction but rather “depends upon whether [the defendant’s] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled.” In evaluating the issue of fundamental error, our task in this case is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury— including evidence admitted at trial, closing argument, and jury instructions—to determine whether the misconduct had such an undeniable and substantial effect on the jury’s decision that a fair trial was impossible.

Id. at 667-68 (internal citations omitted and emphasis in original).

[25] First, Willingham argues that the State engaged in prosecutorial misconduct

during closing argument by “emphasizing the dangers inherent in the drug

trade” to the jury. Appellant’s Br. at 20. Specifically, the prosecutor argued:

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 9 of 12 . . . what’s this case really, really about. Is it about him or is it about what people like him are doing to our community? How do sixteen (16) year old kids, eighteen (18) year old kids, twenty (20) year old kids get addicted to heroin? It’s because people do what he did, what we’ve proven he did.

Tr. p. 904.

[26] We agree with Willingham that it is “misconduct for a prosecutor to request the

jury to convict a defendant for any reason other than his guilt” or “to phrase

final argument in a manner calculated to inflame the passions or prejudice of

the jury.” See Neville v. State, 976 N.E.2d 1252, 1264 (Ind. Ct. App. 2012), trans.

denied (citations omitted). No evidence indicated Willingham sold heroin to a

sixteen-year-old, and the prosecutor’s argument urged the jury to consider the

damage heroin has done to the community. For these reasons, the prosecutor’s

comments were improper.

[27] However, the statements were fleeting, and the State’s closing argument

consists primarily of a recitation of the evidence admitted at trial. Moreover, the

jury was twice instructed that the attorneys’ statements “are not evidence.”

Appellant’s App. pp. 284; 314. For these reasons, and considering the

overwhelming evidence of Willingham’s guilt admitted at trial and discussed

above, we cannot conclude that the prosecutor’s misconduct had such an

undeniable and substantial effect on the jury's decision that Willingham was

denied a fair trial. See e.g. Jerden v. State, 37 N.E.3d 494, 500 (Ind. Ct. App.

2015) (citing Coleman v. State, 750 N.E.2d 370, 375 (Ind. 2001) (“Where there is

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 10 of 12 overwhelming independent evidence of a defendant’s guilt, error made by a

prosecutor during the closing argument is harmless.”)).

[28] Finally, Willingham argues that the State engaged in prosecutorial misconduct

by eliciting testimony from State Trooper Joe Livers (“Trooper Livers”)

concerning the manner in which the arrest warrant was executed. Specifically, a

SWAT team assisted in executing the warrant in the early morning hours.

Trooper Livers testified that a battering ram was used to knock down Kinnet’s

front door, and then the officers used a flash bang explosive inside the residence

as a distraction device. The State also elicited testimony that SWAT teams are

“typically requested to come out and serve high risk warrants, um, active

shooter situations, anybody with a gun, um pretty high risk stuff.” Tr. pp. 315-

16.

[29] We agree with Willingham that the evidence of the extreme measures taken to

execute the arrest warrant, and particularly why law enforcement officers

generally use such methods, was not relevant to whether he possessed heroin

and was dealing in heroin.2 However, in the context of the trial, the evidence

admitted concerning execution of the arrest warrant was fleeting. From the

evidence admitted at trial, the jury could also logically infer that Willingham

was not dangerous and he was compliant with the officers who executed the

2 The State argues that Willingham’s counsel “first informed the jury that a flash bang device was used during execution of the first search warrant[.]” Appellee’s Br. at 13. However, in its opening statement, the State told the jury that Trooper Livers would testify that a flash bang device was used “to provide a distraction in the residence in order to affect a safe arrest.” Tr. p. 266.

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 11 of 12 arrest warrant. Finally, as we noted above, the State presented substantial

evidence of Willingham’s guilt. For all of these reasons, we conclude that

Willingham has not established that the alleged error was so prejudicial that

Willingham was denied a fair trial.

Conclusion

[30] The State presented sufficient evidence to prove that Willingham possessed

heroin and committed dealing in heroin. Although prosecutorial misconduct

occurred during trial, Willingham has not established that the error was so

prejudicial that he was denied a fair trial.

[31] Affirmed.

Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016 Page 12 of 12