Johnny Rivers v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing FILED
the defense of res judicata, collateral Oct 16 2018, 8:59 am
estoppel, or the law of the case.
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan D. Rayl Curtis T. Hill, Jr.
Smith Rayl Law Office, LLC Attorney General of Indiana
Indianapolis, Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Johnny Rivers, October 16, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-700
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jose Salinas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G14-1606-F6-24513
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018 Page 1 of 6
Case Summary
[1] Johnny Rivers was charged with Level 6 felony possession of a narcotic drug
and Class A misdemeanor driving while suspended after police discovered
heroin on the floor between the driver’s seat and the driver’s-side door of the
vehicle Rivers owned and was driving. The trial court found him guilty as
charged. Rivers contends that the evidence is insufficient to support the trial
court’s finding that he constructively possessed heroin. Because we disagree,
we affirm.
Facts and Procedural History
[2] On June 22, 2016, Indianapolis Metropolitan Police Officer Joseph Kraeszig
initiated a traffic stop after his license plate reader indicated the vehicle driven
by Rivers was reported stolen. Rivers was accompanied by a female passenger.
Both occupants were removed from the vehicle, and Rivers was placed into
custody on suspicion of stealing the vehicle.
[3] Sergeant Jeffrey Augustinovicz arrived on the scene to assist Officer Kraeszig
and conducted a search of Rivers’s vehicle. On the floor between the driver’s
seat and driver’s-side door, Sergeant Augustinovicz observed an unsealed
plastic bag containing a “grayish-purplish substance” later determined to be
0.65 grams of heroin. Tr. Vol. II p. 19. The heroin was found near a wallet and
a cup, both of which belonged to Rivers. Rivers claimed to have owned the
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vehicle for two-and-one-half weeks prior to the traffic stop but denied having
any knowledge of the heroin and explained that a few other persons had driven
the vehicle since his purchase.
[4] On June 27, 2016, the State charged Rivers with one count of Level 6 felony
possession of a narcotic drug and one count of Class A misdemeanor driving
while suspended. Following a bench trial held on February 14, 2018, the trial
court found Rivers guilty as charged. The trial court sentenced Rivers to an
aggregate sentence of 545 days of incarceration with 489 days suspended to
probation.
Discussion and Decision
[5] Rivers contends that the State produced insufficient evidence to support his
conviction for possession of a narcotic drug, namely, the trial court’s finding
that he constructively possessed heroin. When reviewing the sufficiency of
evidence to support a conviction, this court considers only probative evidence
and reasonable inferences supporting the trial court’s decision. Young v. State,
973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans. denied. It is the role of the
factfinder, not this court, to assess witness credibility and weigh the evidence.
Id. This court will affirm a conviction unless “no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt.” Id.Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018 Page 3 of 6
[6] Although Rivers was not in actual possession of the heroin when it was
discovered by officers, “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). In this case, the State sought to prove that the defendant possessed the
drugs at a point in time other than its discovery by police, a doctrine referred to
as constructive possession. Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App.
2018), trans. denied. A defendant is in constructive possession of illegal drugs
when the State demonstrates that the defendant has (i) the intent to maintain
dominion and control over the drugs and (ii) the capability to maintain
dominion and control over the drugs. Lampkins v. State, 682 N.E.2d 1268, 1275
(Ind. 1997), reh’g, 685 N.E.2d 698 (Ind. 1997). A defendant’s possessory interest
in the premises in which the drugs were found by officers is sufficient to
establish the capability to maintain dominion and control over the drugs, even
where the possessory interest is non-exclusive. Gray v. State, 957 N.E.2d 171,
174 (Ind. 2011) (internal citations omitted).
[7] When a defendant’s possessory interest of the premises is non-exclusive, the
inference of intent to maintain dominion and control over the drugs must be
proven by additional circumstances indicating the defendant’s knowledge of the
nature and presence of the drugs. Lampkins at 1275. A non-exhaustive list of
additional circumstances includes
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(1) incriminating statements made 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.
Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App. 2018) (internal citations
omitted), trans. denied. This collection of additional circumstances is not a
balancing test with factors to be weighed but, rather, a non-exhaustive list of
circumstances that have been found sufficient to prove constructive possession
in certain cases. Id. at 279 n.2.
[8] Rivers does not dispute that he had a possessory interest in the vehicle in which
the heroin was discovered, which is sufficient to establish his capability to
maintain dominion and control over the heroin. Although Rivers’s possessory
interest was non-exclusive, there are additional circumstances that indicate his
knowledge of the nature and presence of, and intent to maintain dominion and
control of, the heroin. First is the close proximity of the heroin to Rivers. Rivers
was driving, and the heroin was found on the floor between the driver’s seat
and driver’s-side door. Moreover, the heroin would have been in the plain view
of all persons as they entered the driver’s-side of the vehicle or looked down
while sitting in the driver’s seat. Finally, Rivers admitted that the items mingled
with the bag of heroin, i.e., a cup found in the driver’s-side door and wallet
found in the driver’s seat, were his personal belongings. We conclude that these
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additional circumstances create a reasonable inference that Rivers had
knowledge of the heroin and the intent to maintain dominion and control over
it. Rivers has failed to establish that the State produced insufficient evidence to
support the trial court’s determination that he constructively possessed the
heroin.
[9] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
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