MEMORANDUM DECISION FILED May 24 2016, 9:33 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyrone D. Miller, May 24, 2016
Appellant-Defendant, Court of Appeals Case No. 71A04-1601-CR-24 v. Appeal from the St. Joseph Superior Court. The Honorable Jane Woodward State of Indiana, Miller, Judge. Appellee-Plaintiff. Cause No. 71D01-1506-F3-28
Darden, Senior Judge
Statement of the Case [1] Tyrone D. Miller appeals his conviction of possession of cocaine or a narcotic
drug, a Level 5 felony. Ind. Code §§ 35-48-4-6 (2014), 35-48-1-16.5 (2014). We
affirm.
Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 1 of 6 Issue [2] Miller raises one claim, which we restate as: whether the evidence is sufficient
to sustain his conviction.
Facts and Procedural History [3] In early June 2015, Douglas Burch loaned his silver Jeep Liberty to Miller in
exchange for cocaine. In the early morning hours of June 7, 2015, Zachary
Grooms arrived at a police station in South Bend, St. Joseph County. Grooms
reported he had been robbed by a man who drove a silver Jeep Liberty and
wielded a handgun. He described the man as wearing tan shorts and a white
tank top. Grooms also stated the assailant’s hair was in cornrows. Grooms
told the officers the man stole his cell phone and wallet.
[4] While speaking with Grooms, a police officer used an app to locate Grooms’
cell phone. According to the app, Grooms’ cell phone was in the area of
Caroline and Fox Streets in South Bend. Officers who were dispatched to the
scene saw a silver Jeep Liberty parked outside a house at that location.
[5] Police officers surrounded the house and ordered the occupants to come out.
Victoria Miller, Miller’s wife, came outside. She declined to give the officers
permission to enter and search. She also told the officers that she and Miller
had been fighting for the last couple of days and were staying in separate
bedrooms. Next, the officers sought and obtained a search warrant for the
house. Before the search warrant arrived, an officer who was standing at the
Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 2 of 6 northwest corner of the house heard a “thump” coming from inside the house,
as if someone was moving furniture or bumping against a wall. Tr. p. 218.
[6] After the warrant arrived, six to eight officers opened the home’s front door and
entered. They encountered Miller, who “came from the back bedroom area of
the house” and surrendered. Id. at 167.
[7] Next, the officers searched the house. No one else was present. They found
Grooms’ cell phone and wallet. Next, they entered the back bedroom of the
house, which was the source of the “thump” an officer had heard while
standing outside. When they examined the bed, they saw that a slit had been
cut into the side of the mattress. A handgun was hidden inside. A size 2XL
white tank top shirt was on the floor next to the bed.
[8] In the kitchen, another officer found digital scales and a plastic bag. The bag
contained a white powdery substance that was later identified as cocaine. The
officers found a letter addressed to Miller near the cocaine.
[9] The State charged Miller with armed robbery, a Level 3 felony; carrying a
handgun without a license while having a felony conviction in the past fifteen
years, a Level 5 felony; and possession of cocaine or a narcotic drug, a Level 5
felony. A jury determined that Miller was not guilty of the first two charges but
was guilty of possession of cocaine or a narcotic drug. The trial court sentenced
Miller per the jury’s verdict, and this appeal followed.
Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 3 of 6 Discussion and Decision [10] Miller does not challenge the officers’ search of the home, and he does not
dispute that he owned the cocaine. Instead, he argues the evidence is
insufficient to sustain his conviction as a Level 5 felony because he did not
possess a firearm in the course of possessing cocaine. When reviewing a claim
of sufficiency of the evidence, we do not reweigh the evidence or judge the
credibility of witnesses. Daugherty v. State, 43 N.E.3d 1288, 1289 (Ind. Ct. App.
2015). Instead, we consider only the evidence supporting the judgment and any
reasonable inferences that can be drawn from the evidence. Smart v. State, 40
N.E.3d 963, 966 (Ind. Ct. App. 2015). We will affirm unless no rational fact-
finder could have found the defendant guilty beyond a reasonable doubt. Grott
v. State, 30 N.E.3d 777, 779 (Ind. Ct. App. 2015).
[11] In order to obtain a conviction against Miller as charged for possession of
cocaine as a Level 5 felony, the State was required to prove beyond a
reasonable doubt that: (1) Miller (2) without a valid prescription or order of a
practitioner (3) knowingly or intentionally possessed (4) cocaine or a narcotic
drug (5) while also possessing a firearm. Ind. Code §§ 35-48-4-6, 35-48-1-16.5.
[12] Miller claims not to have owned, or been aware of, the handgun the police
found in the mattress. Possession of contraband such as a firearm need not be
actual but, rather, can be constructive. Mack v. State, 23 N.E.3d 742, 759 (Ind.
Ct. App. 2014), trans. denied. In order to prove constructive possession, the
State must show the defendant has both (1) the intent and (2) the capability to
Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 4 of 6 maintain dominion and control over the contraband. Thompson v. State, 966
N.E.2d 112, 122 (Ind. Ct. App. 2012), trans. denied.
[13] To prove the intent element, the State must demonstrate the defendant’s
knowledge of the presence of the contraband. Id. If the defendant has
possession of the premises where contraband is discovered, but that possession
is not exclusive, the defendant’s knowledge may be inferred from additional
circumstances. Id. The additional circumstances may include: (1)
incriminating statements by the defendant; (2) attempted flight or furtive
gestures; (3) a drug manufacturing setting; (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. Ables v. State, 848 N.E.2d 293, 297 (Ind. Ct. App. 2006).
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MEMORANDUM DECISION FILED May 24 2016, 9:33 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyrone D. Miller, May 24, 2016
Appellant-Defendant, Court of Appeals Case No. 71A04-1601-CR-24 v. Appeal from the St. Joseph Superior Court. The Honorable Jane Woodward State of Indiana, Miller, Judge. Appellee-Plaintiff. Cause No. 71D01-1506-F3-28
Darden, Senior Judge
Statement of the Case [1] Tyrone D. Miller appeals his conviction of possession of cocaine or a narcotic
drug, a Level 5 felony. Ind. Code §§ 35-48-4-6 (2014), 35-48-1-16.5 (2014). We
affirm.
Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 1 of 6 Issue [2] Miller raises one claim, which we restate as: whether the evidence is sufficient
to sustain his conviction.
Facts and Procedural History [3] In early June 2015, Douglas Burch loaned his silver Jeep Liberty to Miller in
exchange for cocaine. In the early morning hours of June 7, 2015, Zachary
Grooms arrived at a police station in South Bend, St. Joseph County. Grooms
reported he had been robbed by a man who drove a silver Jeep Liberty and
wielded a handgun. He described the man as wearing tan shorts and a white
tank top. Grooms also stated the assailant’s hair was in cornrows. Grooms
told the officers the man stole his cell phone and wallet.
[4] While speaking with Grooms, a police officer used an app to locate Grooms’
cell phone. According to the app, Grooms’ cell phone was in the area of
Caroline and Fox Streets in South Bend. Officers who were dispatched to the
scene saw a silver Jeep Liberty parked outside a house at that location.
[5] Police officers surrounded the house and ordered the occupants to come out.
Victoria Miller, Miller’s wife, came outside. She declined to give the officers
permission to enter and search. She also told the officers that she and Miller
had been fighting for the last couple of days and were staying in separate
bedrooms. Next, the officers sought and obtained a search warrant for the
house. Before the search warrant arrived, an officer who was standing at the
Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 2 of 6 northwest corner of the house heard a “thump” coming from inside the house,
as if someone was moving furniture or bumping against a wall. Tr. p. 218.
[6] After the warrant arrived, six to eight officers opened the home’s front door and
entered. They encountered Miller, who “came from the back bedroom area of
the house” and surrendered. Id. at 167.
[7] Next, the officers searched the house. No one else was present. They found
Grooms’ cell phone and wallet. Next, they entered the back bedroom of the
house, which was the source of the “thump” an officer had heard while
standing outside. When they examined the bed, they saw that a slit had been
cut into the side of the mattress. A handgun was hidden inside. A size 2XL
white tank top shirt was on the floor next to the bed.
[8] In the kitchen, another officer found digital scales and a plastic bag. The bag
contained a white powdery substance that was later identified as cocaine. The
officers found a letter addressed to Miller near the cocaine.
[9] The State charged Miller with armed robbery, a Level 3 felony; carrying a
handgun without a license while having a felony conviction in the past fifteen
years, a Level 5 felony; and possession of cocaine or a narcotic drug, a Level 5
felony. A jury determined that Miller was not guilty of the first two charges but
was guilty of possession of cocaine or a narcotic drug. The trial court sentenced
Miller per the jury’s verdict, and this appeal followed.
Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 3 of 6 Discussion and Decision [10] Miller does not challenge the officers’ search of the home, and he does not
dispute that he owned the cocaine. Instead, he argues the evidence is
insufficient to sustain his conviction as a Level 5 felony because he did not
possess a firearm in the course of possessing cocaine. When reviewing a claim
of sufficiency of the evidence, we do not reweigh the evidence or judge the
credibility of witnesses. Daugherty v. State, 43 N.E.3d 1288, 1289 (Ind. Ct. App.
2015). Instead, we consider only the evidence supporting the judgment and any
reasonable inferences that can be drawn from the evidence. Smart v. State, 40
N.E.3d 963, 966 (Ind. Ct. App. 2015). We will affirm unless no rational fact-
finder could have found the defendant guilty beyond a reasonable doubt. Grott
v. State, 30 N.E.3d 777, 779 (Ind. Ct. App. 2015).
[11] In order to obtain a conviction against Miller as charged for possession of
cocaine as a Level 5 felony, the State was required to prove beyond a
reasonable doubt that: (1) Miller (2) without a valid prescription or order of a
practitioner (3) knowingly or intentionally possessed (4) cocaine or a narcotic
drug (5) while also possessing a firearm. Ind. Code §§ 35-48-4-6, 35-48-1-16.5.
[12] Miller claims not to have owned, or been aware of, the handgun the police
found in the mattress. Possession of contraband such as a firearm need not be
actual but, rather, can be constructive. Mack v. State, 23 N.E.3d 742, 759 (Ind.
Ct. App. 2014), trans. denied. In order to prove constructive possession, the
State must show the defendant has both (1) the intent and (2) the capability to
Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 4 of 6 maintain dominion and control over the contraband. Thompson v. State, 966
N.E.2d 112, 122 (Ind. Ct. App. 2012), trans. denied.
[13] To prove the intent element, the State must demonstrate the defendant’s
knowledge of the presence of the contraband. Id. If the defendant has
possession of the premises where contraband is discovered, but that possession
is not exclusive, the defendant’s knowledge may be inferred from additional
circumstances. Id. The additional circumstances may include: (1)
incriminating statements by the defendant; (2) attempted flight or furtive
gestures; (3) a drug manufacturing setting; (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. Ables v. State, 848 N.E.2d 293, 297 (Ind. Ct. App. 2006).
[14] In this case, Miller did not immediately leave the house when the police
ordered all occupants to come outside. Instead, he stayed inside, and an officer
heard noises consistent with moving furniture coming from the back bedroom
while awaiting the arrival of the search warrant. Thus, Miller engaged in
furtive movements. When the officers finally entered the house pursuant to the
search warrant, Miller approached them from the back bedroom, which is
where the handgun was later found hidden in a slit cut into the mattress.
Victoria had told the officers she and Miller were sleeping in separate
bedrooms; that he slept in the front bedroom and she slept in the back bedroom.
As a result, Miller was found in proximity to the handgun. In addition, his
property was mingled with the handgun, because the police found a 2XL sized
Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 5 of 6 tank top, which resembled the shirt Grooms saw his assailant wearing, in the
back bedroom near the bed where the gun had been hidden. Police found a
letter addressed to Miller in the kitchen near the cocaine and scales.
[15] Miller points to testimony by Victoria, who told the jury: (1) Miller was not
regularly staying at her house during the time period in question; (2) she owned
the handgun; (3) she had cut the slit in the mattress and hidden the handgun
inside on a prior occasion; and (4) she owned the tank top shirt. This argument
is, in substance, a request to reweigh the evidence, which our standard of
review forbids. Further, we note Victoria denied knowing about the cocaine
that the police found in the kitchen.
[16] There is sufficient evidence to establish beyond a reasonable doubt that Miller
was aware of, and constructively possessed, the handgun. See Mack, 23 N.E.3d
N.E.2d 742, 759 (Ind. Ct. App. 2014) (evidence sufficient to prove constructive
possession where contraband was found in defendant’s room, near his personal
property), trans. denied. As a result, the jury’s verdict must be sustained, and
Miller’s conviction stands.
Conclusion [17] For the reasons stated above, we affirm the judgment of the trial court.
[18] Affirmed.
Najam, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 6 of 6