Tiara White v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 17, 2017
• Docket: 49A02-1702-CR-244
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Aug 17 2017, 8:33 am

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 Bernice A.N. Corley Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tiara White, August 17, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1702-CR-244 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1507-F2-26391

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 1 of 12 Case Summary [1] Tiara White (“White”) appeals her conviction of Possession of a Narcotic

Drug, as a Level 4 felony.1 We affirm.

Issues [2] White presents two issues, which we restate as:

I. Whether the trial court abused its discretion in admitting evidence procured during a residential search because the search warrant was not supported by probable cause; and

II. Whether sufficient evidence supports her conviction.

Facts and Procedural History [3] On July 20, 2015, Brandon Beeler (“Beeler”) died of a heroin overdose, and

Detective Bridget Foy (“Detective Foy”) of the Hancock County Sheriff’s

Department was dispatched to investigate his death. Beeler’s mother, Kirsten

Calhoun (“Calhoun”) told Detective Foy that Beeler was addicted to heroin,

and that when Calhoun went to wake Beeler for his rehabilitation appointment,

she found Beeler in the bathroom of their New Palestine residence. Detective

Foy located Beeler’s body in the bathroom, and saw a syringe and a spoon with

a white rock and powdery residue on the bathroom sink.

1 Ind. Code §§ 35-48-4-6(a), -6(c). We refer throughout to those statutes in effect at the time of the offense.

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 2 of 12 [4] Further investigation led Detective Foy to speak with Angela Davis (“Davis”),

who was with Beeler the night before his death, and with Isaac Williams

(“Williams”), a friend of Beeler’s who was also addicted to heroin. Based on

information obtained from Davis and Williams, Detective Foy sought and

obtained a warrant to search an apartment occupied by White and Jerry Turner

(“Turner”). A subsequent search of the apartment yielded approximately 20

grams of heroin and more than $1,000 of cash in the master bedroom, as well as

digital scales, razor blades, and plastic baggies in a kitchen drawer. White and

Turner were arrested, and White was charged with Dealing in a Narcotic Drug,

as a Level 2 felony;2 Possession of a Narcotic Drug, as a Level 4 felony; and

Maintaining a Common Nuisance, as a Level 6 felony. 3

[5] During an August 22, 2016 bench trial, White objected to the admission of

evidence procured during the search. White also moved for judgment on the

evidence as to each count, and obtained judgement on the evidence as to the

charge of Maintaining a Common Nuisance. The trial court took the

remaining counts under advisement, and later found White guilty of Possession

of a Narcotic Drug, and not guilty of Dealing in a Narcotic Drug.

[6] A sentencing hearing was held on January 12, 2017, and White received a

sentence of six years, with three of those years to be executed, and three years

2 I.C. § 35-48-4-1(a)(2). 3 I.C. § 35-48-4-13(b)(1).

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 3 of 12 suspended. As to the executed time, the trial court ordered White to serve one

year in the Department of Correction and two years in home detention.

[7] White now appeals.

Discussion and Decision Admission of Evidence [8] “Admission of evidence is generally left to the discretion of the trial court, and

thus we review admissibility challenges for abuse of that discretion.” Jacobs v.

State, No. 49S02-1706-CR-438, slip op. at 3 (Ind. June 29, 2017). However,

when “admissibility turns on questions of constitutionality relating to the search

and seizure of that evidence, our review is de novo.” Id.

[9] The Fourth Amendment to the United States Constitution and Article 1,

section 11 of the Indiana Constitution afford protection against warrants issued

without probable cause, and the right is further codified in Indiana Code section

35-33-5-2. “The existence of probable cause is evaluated pursuant to the

‘totality-of-the-circumstances’ test.” Eaton v. State, 889 N.E.2d 297, 299 (Ind.

2008) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). That is, “[i]n

deciding whether to issue a search warrant, “[t]he task of the issuing magistrate

is simply to make a practical, common-sense decision whether, given all the

circumstances set forth in the [probable cause] affidavit . . . there is a fair

probability that contraband or evidence of a crime will be found in a particular

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 4 of 12 place.” Jackson v. State, 908 N.E.2d 1140, 1142 (Ind. 2009) (quoting Gates, 462

U.S. at 238).

[10] When a reviewing court—whether a trial court or appellate court—evaluates

the existence of probable cause, the court is to determine whether the magistrate

issuing the search warrant had a “‘substantial basis’ for concluding that

probable cause existed.” Id. (citing Gates, 462 U.S. at 238-239). “A substantial

basis requires the reviewing court, with significant deference to the magistrate’s

determination, to focus on whether reasonable inferences drawn from the

totality of the evidence support the determination of probable cause.” Id.

[11] In challenging the existence of probable cause, White focuses on whether the

information provided by Davis and Williams was sufficiently reliable or

corroborated to justify issuance of the search warrant. Information obtained

from informants must be reliable under the totality of the circumstances.

Kellems v. State, 842 N.E.2d 352, 356 (Ind. 2006), reversed on reh’g on other

grounds; see also Gates, 462 U.S. at 232 (noting that “[r]igid legal rules are ill-

suited to an area of such diversity” as evaluating the reliability of information

provided in support of a search warrant application). Moreover, when a

probable cause affidavit is based on hearsay, the affidavit must either:

(1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 5 of 12 (2) contain information that establishes that the totality of the circumstances corroborates the hearsay.

I.C. § 35-33-5-2(b). Furthermore, “[a]s a general rule, stale information will not

support a finding of probable cause.” Shell v. State, 927 N.E.2d 413, 418 (Ind.

Ct. App. 2010). However, staleness cannot be determined by “merely counting

the number of days between the occurrence of the facts relied upon and the

warrant’s issuance.” Id. Rather, whether information is stale “must be

determined by the facts and circumstances of each particular case.” Id.

[12] Here, the probable cause affidavit included information obtained through

separate interviews with Davis and Williams, both of whom willingly

cooperated with police. From Davis, Detective Foy learned that on the evening

before his death, Beeler said that he owed someone money and needed to go

pay him. Beeler borrowed Davis’s phone and twice tried to call a certain phone

number. Someone with that phone number later called back, and Beeler spoke

with the caller for a few minutes. Davis thought that Beeler called the person

“Juicy Jay” or “Juice.” After the call, Beeler asked Davis to drive him toward

the Lawrence area so that he could pay the person. Beeler then directed Davis

to an apartment complex off of 46th Street in Indianapolis. Davis waited in the

car while Beeler went into a building and returned.

[13] After stopping at the apartment complex, Beeler wanted to visit a Wal-Mart

store so that he could purchase allergy medicine. When they reached the store,

Davis again waited in the car, and grew suspicious when it took twenty-five

minutes for Beeler to return with a Wal-Mart bag. Beeler was also acting Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 6 of 12 differently when he returned. At Beeler’s suggestion, the two then went back to

his New Palestine residence, where Beeler went into the bathroom for several

minutes. Both Davis and Calhoun checked on Beeler by speaking with him

through the door, and Beeler eventually flushed the toilet, ran the sink for a

several minutes, and emerged. By this point, Davis was annoyed with Beeler

and left the residence around 11:30 p.m. Davis later sent Beeler a text message

around 2:00 a.m. that was marked “read” by Beeler, but Davis did not receive a

response from Beeler, who died at some point later that morning.

[14] Davis agreed to drive Detective Foy to the apartment complex in Indianapolis,

noting that she was uncertain how to get there because Beeler had navigated,

but that she remembered what the apartments looked like. However, after a

few hours of looking, Davis was unable to locate the apartment complex.

[15] Detective Foy then learned from Calhoun that Williams—Beeler’s friend, who

was also addicted to heroin—may be able to locate “Juice.” Detective Foy

spoke with Williams, who said he was familiar with “Juice,” and had been to

“Juice’s” apartment several times while Beeler bought heroin. Williams

provided an Alsuda Court address, and identified the specific apartment as

being on the bottom floor in the back to the left—police later learned that this

description fit the location of Apartment C. Williams also gave Detective Foy a

phone number for “Juice” that matched the one that Beeler had called, and a

review of Beeler’s phone records showed several calls to and from that number.

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 7 of 12 [16] Detective Foy contacted Davis, who agreed to again try to locate the apartment

complex she had visited with Beeler. Detective Foy drove to the area of 46th

Street and Fall Creek Parkway in Indianapolis, and Davis was able to guide

Detective Foy from that point. Davis identified the building Beeler entered,

which had the same Alsuda Court address provided by Williams.

[17] Based upon this information, a warrant was issued, and the police conducted a

search of Apartment C three days after Beeler’s death.

[18] In challenging the existence of probable cause, White focuses on the reliability

of the information provided by Davis and Williams, and points out that only

Williams gave sufficient information to identify Apartment C. White contends

that the information provided by Davis alone “lends no facts that would lead a

reasonably prudent person to believe that a search of the premises [would]

uncover evidence of narcotics” in Apartment C. Appellant’s Br. at 12. White

also notes that Williams gave no timeline concerning his observation of drug

activity occurring at the apartment, and argues that this information is stale.

[19] Although White parses aspects of the information provided by both Williams

and Davis, the essential inquiry is whether the information was reliable under

the totality of the circumstances. Here, Davis and Williams both directed

police to a person named “Juice,” provided the same phone number for this

person, identified the same apartment building, and informed police that Beeler

had been in contact with “Juice.” According to Williams, Beeler bought heroin

at “Juice’s” apartment, and according to Davis, Beeler had visited an apartment

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 8 of 12 to pay “Juice” on the night before Beeler died of a heroin overdose. Even if

Williams did not provide a timeline for his encounters with “Juice,” Davis

provided fresh information corroborating Williams’s account, including that

Beeler acted differently after spending a prolonged time alone in a Wal-Mart

shortly after leaving the apartment. The information provided supports the

reasonable inference that Beeler obtained heroin while at the apartment.

[20] Ultimately, our review of the probable cause affidavit leads us to conclude that

the information contained therein was sufficiently reliable under the totality of

the circumstances, with the accounts of Davis and Williams matching in key

respects. Moreover, staleness did not render the information unreliable. Thus,

the warrant was supported by probable cause, and the trial court properly

admitted evidence obtained during the search.4

Sufficiency of the Evidence [21] When reviewing the sufficiency of the evidence, we look only at the probative

evidence and reasonable inferences supporting the judgment. Love v. State, 73

N.E.3d 693, 696 (Ind. 2017). We do not assess the credibility of witnesses or

reweigh the evidence, and will affirm the conviction unless no reasonable fact-

finder could find the elements of the crime proven beyond a reasonable doubt.

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).

4 Having concluded that the warrant was supported by probable cause, we do not reach White’s alternative contention that the police could not rely on the good-faith exception to the probable cause requirement.

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 9 of 12 [22] To convict White of Possession of a Narcotic Drug as charged, the State was

required to prove that White knowingly or intentionally possessed at least ten

but less than twenty-eight grams of heroin. See I.C. § 35-48-4-6(a), -6(c). White

does not dispute that a sufficient quantity of heroin was found in her residence,

but challenges whether the State proved that she knowingly or intentionally

possessed the drugs.

[23] To satisfy the element of possession, the State may prove actual possession or

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

“Actual possession occurs when a person has direct physical control over the

item” whereas constructive possession occurs when the person has (1) the

capability to maintain dominion and control over the item, and (2) the intent to

maintain dominion and control over the item. Id. Here, given White’s absence

when the drugs were seized, the State sought to prove constructive possession.

[24] The evidence favorable to the judgment indicates that police found twenty

grams of heroin in the master bedroom of an apartment White shared with

Turner. The heroin was in a nightstand drawer. A picture of White was in the

bedroom, and her name badge was on top of a shared dresser. In that dresser,

the police found more than $1,000 in cash, mostly in $20 denominations, which

is a denomination frequently used to purchase heroin. Moreover, a drawer in

the kitchen contained several items associated with drug activity—digital scales,

a razor blade, and plastic baggies with torn-off corners.

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 10 of 12 [25] Generally, “[t]he proof of a possessory interest in the premises on which illegal

drugs are found is adequate to show the capability to maintain dominion and

control over the items in question.” Gee v. State, 810 N.E.2d 338, 340 (Ind.

2004). However, where, as here, “possession of the premises on which drugs

are found is not exclusive, then the inference of intent to maintain dominion

and control over the drugs ‘must be supported by additional circumstances

pointing to the defendant’s knowledge of the nature of the controlled substances

and their presence.’” Id. at 341 (quoting Lampkins v. State, 682 N.E.2d 1268,

1275 (Ind. 1997), modified on reh’g on other grounds). The location of contraband

“has been identified as an additional circumstance from which a trier of fact

could conclude that the defendant had the requisite intent.” Id. at 344.

[26] White contends that the requisite proof of additional circumstances was lacking

because no possessions attributable to her were found in the nightstand drawer

with the heroin, there was men’s clothing in the drawers with the cash, and the

items in the kitchen were not “inherently criminal in nature.” Appellant’s Br.

at 18. White argues that this case is factually similar to Gee, in which our

supreme court reversed several drug-related convictions where drugs in a shared

residence were found in basement laundry room cabinets. In reversing the

convictions, the Court specifically noted that basement laundry room cabinets

were unlike other more frequently used areas of the home, observing that

“nothing in human experience tells us that anyone in particular, as a matter of

course, is in and out of laundry room cabinets.” Gee, 810 N.E.2d at 344. Here,

however, the contraband was found in an area far more personal to White—her

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 11 of 12 shared bedroom—and additional evidence found in the shared dresser and the

kitchen supports the inference that White knew of the presence of heroin and its

illegal character. Accordingly, there is sufficient evidence from which the trier

of fact could conclude that White constructively possessed the contraband.

Conclusion [27] The trial court did not abuse its discretion in admitting evidence procured

during the search. There is sufficient evidence supporting White’s conviction.

[28] Affirmed.

Vaidik, C.J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-244 | August 17, 2017 Page 12 of 12