Angel M. Tolentino v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 27 2020, 8:53 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald R. Shuler Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana
Goshen, Indiana Jodi Kathryn Stein
Deputy Attorney General
Anthony J. Smith
Certified Legal Intern
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angel M. Tolentino, August 27, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-731
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Gretchen S. Lund,
Appellee-Plaintiff. Judge
The Honorable Eric S. Ditton,
Magistrate
Trial Court Cause No.
20D04-1910-F6-1325
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 1 of 8
[1] Angel M. Tolentino appeals his conviction for possession of methamphetamine
as a level 6 felony. He claims the evidence is insufficient to sustain his
conviction. We affirm.
Facts and Procedural History
[2] At about 8:00 p.m. on September 26, 2019, Elkhart Police Corporal Justin
Gage, a certified drug recognition expert, observed a Chevrolet Yukon make an
improper right-hand turn and drift left of the centerline and initiated a traffic
stop. Corporal Gage observed there were three occupants in the vehicle and did
not see any of the occupants switch seats. He approached the vehicle, and the
driver identified herself. Tolentino, who was seated in the front passenger seat,
identified himself as “Diego Perez-Sosa” and stated his date of birth was May
16, 1997. Transcript Volume II at 19. Tolentino “was very fidgety with his
hands and reaching around.” Id. at 20. The person seated in the vehicle’s rear
passenger seat identified herself as Marani Guzman. Sergeant Jason Ray, a
certified drug recognition expert and K-9 handler, arrived at the scene with a K-
9. The driver was unable to provide proof of insurance. Corporal Gage asked
Tolentino to exit the vehicle, and he initially did not do so and asked why he
needed to exit. Corporal Gage again asked Tolentino to exit the vehicle, and he
eventually complied. When Tolentino stepped out of the vehicle, Corporal
Gage noticed little specks of a white substance on the front side of his shorts
and the bottom of his shirt. Corporal Gage patted him down and Sergeant Ray
observed what appeared to be synthetic marijuana on the back of Tolentino’s
shorts. According to Corporal Gage, he maintained a clear line of sight of the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 2 of 8
two occupants who remained in the Yukon and the occupants did not make
any movements towards the front passenger seat. Sergeant Ray did not see the
occupants in the vehicle make any movements. The two remaining occupants
exited the vehicle and stood near the police vehicles.
[3] Sergeant Ray’s K-9 alerted following a free air sniff. Sergeant Ray observed
crystals in plain view, which he believed to be methamphetamine and which
“were loose just sitting on the seat.” Id. at 62. Corporal Gage then returned to
the front passenger seat and observed a small crystal-like white substance which
he immediately recognized from his training and experience to be
methamphetamine. Sergeant Ray performed a field test of the substance which
indicated a positive result for methamphetamine. The substance found on the
front passenger seat was later determined by a forensic scientist with Indiana
State Police Lab to contain methamphetamine and had a net weight of .06
grams.
[4] The officers further discovered a glass pipe with burnt methamphetamine
residue, a bag of methamphetamine, and a bag of a synthetic lookalike
substance on Guzman. According to Sergeant Ray, there were clothes in the
vehicle and the driver of the vehicle told him she had been sleeping in the
vehicle. When booking him at police detention, law enforcement determined
Tolentino’s correct identity and that his birth date was March 8, 1996.
[5] The State charged Tolentino with possession of methamphetamine as a level 6
felony. The court held a bench trial at which it heard testimony from Corporal
Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 3 of 8
Gage, Sergeant Ray, and the Indiana State Police Lab forensic scientist. The
court admitted a recording taken from Corporal Gage’s body camera showing
the search of the vehicle. During Corporal Gage’s testimony, the court
referenced the white specks on Tolentino’s shorts and asked,“[w]hether it’s now
or then or somewhere in between, did you ever have a thought of what you
thought those white specks were,” and Corporal Gage answered affirmatively.
Id. at 54. When asked “[w]hat did you think they were, even if they weren’t
tested,” he answered: “I would suspect them to be methamphetamine residue or
trace amounts of methamphetamine crystals.” Id.
[6] The court stated that it understood constructive possession was very fact
specific and it is possible for a person to enter a vehicle and not have knowledge
of something illegal in the vehicle, that here the methamphetamine was directly
under Tolentino and touching his body, Tolentino gave a false name and date
of birth to police, he was fidgeting, and he did not want to exit the vehicle. The
court stated that, considering all of the evidence and the specific facts of this
case, it found Tolentino guilty of possession of methamphetamine as a level 6
felony.
Discussion
[7] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder’s
role, not that of appellate courts, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id.Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 4 of 8
When confronted with conflicting evidence, we must consider it “most
favorably to the trial court’s ruling. Id. We will affirm unless no reasonable
factfinder could find the elements of the crime proven beyond a reasonable
doubt. Id. The evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict. Id. at 147.
[8] Tolentino argues he was sitting on a miniscule amount of methamphetamine in
a vehicle which belonged to someone else, he did not have exclusive control
over the vehicle, it looked like the driver was living in the vehicle, and it is
unreasonable under these circumstances to conclude that he had the requisite
knowledge of the methamphetamine. He points out that another occupant of
the vehicle was found with a glass pipe and a baggie of almost three grams of
methamphetamine.
[9] Ind. Code § 35-48-4-6.1 provides: “A person who, without a valid prescription
or order of a practitioner acting in the course of the practitioner’s professional
practice, knowingly or intentionally possesses methamphetamine (pure or
adulterated) commits possession of methamphetamine, a Level 6 felony . . . .”
[10] It is well-established that possession of an item may be either actual or
constructive. Canfield v. State, 128 N.E.3d 563, 572 (Ind. Ct. App. 2019) (citing
Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g, 685
N.E.2d 698 (Ind. 1997)), trans. denied. Actual possession occurs when a person
has direct physical control over an item. Grubbs v. State, 132 N.E.3d 451, 453
(Ind. Ct. App. 2019) (citing Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011)),
Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 5 of 8
reh’g denied. Constructive possession occurs when a person has the capability to
maintain dominion and control over the item and the intent to maintain
dominion and control over it. Canfield, 128 N.E.3d at 572 (citing Lampkins, 682
N.E.2d at 1275). The capability element of constructive possession is met when
the State shows that the defendant is able to reduce the contraband to the
defendant’s personal possession. Id. (citing Goliday v. State, 708 N.E.2d 4, 6
(Ind. 1999)). The intent element of constructive possession is shown if the State
demonstrates the defendant’s knowledge of the presence of the contraband. Id.(citing Goliday, 708 N.E.2d at 6).
[11] A defendant’s knowledge may be inferred from either the exclusive dominion
and control over the premises containing the contraband, or, if the control is
non-exclusive, evidence of additional circumstances pointing to the defendant’s
knowledge of the presence of contraband. Id. (citing Goliday, 708 N.E.2d at 6).
These additional circumstances may include: “(1) a defendant’s incriminating
statements; (2) a defendant’s attempting to leave or making furtive gestures; (3)
the location of contraband like drugs in settings suggesting manufacturing; (4)
the item’s proximity to the defendant; (5) the location of contraband within the
defendant’s plain view; and (6) the mingling of contraband with other items the
defendant owns.” Id. at 572-573 (citing Gray, 957 N.E.2d at 175). The State is
not required to prove all additional circumstances when showing that a
defendant had the intent to maintain dominion and control over contraband.
Id. at 573 (citing Gee v. State, 810 N.E.2d 338, 344 (Ind. 2004)).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 6 of 8
[12] The evidence most favorable to Tolentino’s conviction reveals that, when
Corporal Gage approached the Chevrolet Yukon, Tolentino was seated in the
front passenger seat and provided a false name and date of birth. Corporal
Gage testified that Tolentino was “very fidgety with his hands and reaching
around.” Transcript Volume II at 20. When asked to exit the vehicle,
Tolentino initially refused and asked why he needed to exit. When Tolentino
eventually stepped out of the vehicle, Corporal Gage noticed a white substance
on the front side of his shorts and the bottom of his shirt, and Sergeant Ray
noticed there was a substance on the back of his shorts. When asked what he
thought the white specks were on Tolentino’s shorts, Corporal Gage, a certified
drug recognition expert, testified: “I would suspect them to be
methamphetamine residue or trace amounts of methamphetamine crystals.” Id.
at 54. Corporal Gage testified that he maintained a clear line of sight of the two
occupants who remained in the Yukon after Tolentino exited the vehicle and
that the occupants did not make any movements towards the front passenger
seat, and Sergeant Ray similarly testified that he did not see the occupants of
the vehicle make any kind of movements. After the K-9 alerted, Sergeant Ray
observed the methamphetamine crystals in plain view “loose just sitting on the
seat,” and Corporal Gage returned to the front passenger seat and also observed
the crystals which he immediately recognized to be methamphetamine. Id. at
62. The crystals found on the front passenger seat were determined to contain
methamphetamine and had a net weight of .06 grams.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 7 of 8
[13] Based upon the record and the facts of this case, we conclude that the State
presented evidence of probative value from which a reasonable trier of fact
could have found that Tolentino committed the offense of possession of
methamphetamine as a level 6 felony and that his arguments amount to an
invitation to reweigh the evidence.
[14] For the foregoing reasons, we affirm Tolentino’s conviction.
[15] Affirmed.
Robb, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020 Page 8 of 8