MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Jan 18 2018, 8:55 am

regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
Karen Celestino-Horseman                                 Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jonathan J. Owens,                                       January 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1707-CR-1564
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Shatrese M. Flowers, Judge
                                                         The Honorable
                                                         James Kevin Snyder,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1603-F2-11379



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1564 | January 18, 2018           Page 1 of 10
[1]   Following a jury trial, Jonathan J. Owens (“Owens”) was convicted of

      possession of cocaine1 as a Level 4 felony. He was also found to be a habitual

      offender.2 On appeal, he raises the following restated issues:


                 I. Whether the evidence that he possessed cocaine was sufficient
                 to sustain his conviction; and


                 II. Whether the trial court erred in not declaring a mistrial
                 because of the State’s violation of a motion in limine.


[2]   We affirm.


                                       Facts and Procedural History
[3]   In March 2016, Owens lived in a boarding house on Concord Avenue in

      Indianapolis, Indiana. The boarding house had an unlocked entrance that led

      to a common area, off of which were individual, locked, sleeping rooms.

      Owens lived in one of the sleeping rooms.


[4]   On the morning of March 23, 2016, Detective Andrew Deddish (“Detective

      Deddish”) of the Indianapolis Metropolitan Police Department (“IMPD”) was

      conducting surveillance on the boarding house, to secure the premises for a

      search warrant that was to be executed on Owens’ room later that day. Around

      9:00 a.m., Detective Deddish saw Owens and a woman leave the boarding




      1
          See Ind. Code § 35-48-4-6.
      2
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1564 | January 18, 2018   Page 2 of 10
      house and enter a vehicle. Pursuant to a request from police, Owens headed to

      the IMPD station, where he was taken into custody and searched incident to

      the arrest. Police seized from Owens the key to his room and took it to

      Detective Deddish who, with a second officer, opened Owens’ room and

      searched it.


[5]   Owens’ room was small and cluttered, and during the search, police found a

      plastic chewing-gum container, which held a plastic bag containing 13.41 grams

      of crack cocaine. An electronic scale with visible cocaine residue as well as a

      box of plastic sandwich bags were also found in the room in plain view. Inside

      a pocket of a “denim type man’s coat,” Detective Deddish found $190 in cash.

      Tr. Vol. 2 at 87. The State charged Owens with Level 2 felony dealing in

      cocaine and Level 4 felony possession of cocaine. Thereafter, the trial court

      granted the State’s motion to amend the information to add a habitual offender

      allegation.


[6]   Before trial, Owens filed a motion in limine to prevent any mention of the fact

      that he was on parole at the time the police searched his room. The trial court

      granted that motion. During trial, Detective Deddish was asked what he did

      after he saw Owens and his companion leave the boarding house. Detective

      Deddish responded, “I continued to do surveillance on that location until I

      learned through the radio from Detective Thomas that defendant had arrived at

      roll call and that he was in custody there with parole.” Id. at 73. Defense

      counsel did not object; however, prosecutor Jon McDonald (“McDonald”)

      asked to approach the bench. There, defense counsel Josh Puryear (“Puryear”)

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1564 | January 18, 2018   Page 3 of 10
      said, “Obviously, that wasn’t supposed to happen.” Id. Citing the motion in

      limine, Puryear moved for a mistrial. McDonald asked, instead, for a limiting

      instruction and an admonishment to the jury. Id. at 73-74.


[7]   Outside the jury’s presence, the trial court made a record of the parties’

      arguments regarding the need for a mistrial. When asked about his testimony,

      Detective Deddish said he testified that “the Defendant had met with Parole at

      the Southwest District roll call.” Id. at 75. When the trial court commented

      that defense counsel had not objected to the testimony, Puryear said he did not

      immediately object because he did not want to “draw up too much attention to

      it.” Id. Believing that Detective Deddish’s testimony “invited too much

      speculation” on the part of the jury and could not be cured by an

      admonishment, Puryear repeated his request for a mistrial. Id. The trial court

      denied that motion, but granted defendant’s request that the testimony be

      stricken from the record. The trial court admonished the jury to disregard that

      testimony. Id. at 80-81.


[8]   The jury trial continued, and Owens was found guilty of Level 4 felony

      possession of cocaine, but not guilty of dealing in cocaine. Owens waived his

      right to a jury trial on the habitual offender allegation and admitted to being a

      habitual offender. The trial court sentenced Owens to nine years for the

      possession conviction and enhanced that sentence by six years for the habitual

      finding. Owens now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1564 | January 18, 2018   Page 4 of 10
                                      Discussion and Decision

                                        I.       Sufficient Evidence
[9]    Owens argues that there was insufficient evidence that he possessed the cocaine

       found in his room. The deferential standard of review for sufficiency claims is

       well settled. When we review the sufficiency of evidence to support a

       conviction, we do not reweigh the evidence or assess the credibility of the

       witnesses. Wilson v. State, 39 N.E.3d 705, 716 (Ind. Ct. App. 2015), trans.

       denied. We consider only the evidence most favorable to the verdict and the

       reasonable inferences that can be drawn from that evidence. Id. We will not

       disturb the jury’s verdict if there is substantial evidence of probative value to

       support it. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App. 2014), trans. denied.

       We will affirm unless no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.

       2012). As the reviewing court, we respect “the jury’s exclusive province to

       weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

       It is not necessary that the evidence overcome every reasonable hypothesis of

       innocence. Wilson, 39 N.E.3d at 716. The evidence is sufficient if an inference

       may reasonably be drawn from it to support the verdict. Id. A conviction may

       be based upon circumstantial evidence alone. Id.


[10]   To convict Owens, the State was required to prove beyond a reasonable doubt

       that he possessed cocaine. See Ind. Code § 35-48-4-6. Owens contends that the

       evidence was insufficient to prove he had possession of the cocaine that was

       found in his room. Appellant’s Br. at 8-9. Actual possession of contraband
       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1564 | January 18, 2018   Page 5 of 10
       occurs when a person has direct physical control over the item. Gee v. State, 810

       N.E.2d 338, 340 (Ind. 2004). Here, Owens was not present when the police

       seized the cocaine, and thus, he did not have actual possession of the drugs.

       However, possession of cocaine can also be proven under the theory of

       constructive possession. Id.


[11]   “A defendant is in the constructive possession of drugs when the State shows

       that the defendant has both (i) the intent to maintain dominion and control over

       the drugs and (ii) the capability to maintain dominion and control over the

       drugs.” Id. “‘Control in this sense concerns the defendant’s relation to the

       place where the substance is found: whether the defendant has the power, by

       way of legal authority or in a practical sense, to control the place where, or the

       item in which, the substance is found.’” Allen v. State, 787 N.E.2d 473, 482

       (Ind. Ct. App. 2003) (quoting Martin v. State, 175 Ind. App. 503, 507, 372

       N.E.2d 1194, 1197 (1978)), trans. denied. In this case, the State presented

       evidence that Owens had a key to the room where the drugs were located, and

       his companion did not have a key. In addition, without qualification, Owens

       stipulated that he did “reside and live” in the room. Appellant’s Br. at 10 (citing

       State’s Ex. 9). Once the State shows that a defendant has a possessory interest in

       the premises where a seized item is found, the jury may infer that the defendant

       had the capacity to maintain dominion and control, regardless of whether the

       possessory interest was exclusive. Gray v. State, 957 N.E.2d 171, 174 (Ind.

       2011) (citing Gee, 810 N.E.2d at 340).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1564 | January 18, 2018   Page 6 of 10
[12]   As to the intent to maintain control, if possession of the premises is exclusive,

       the jury may also infer this prong of the constructive-possession analysis. Id.

       But, if the possessory interest is not exclusive, as Owens contends, the State

       must show some additional evidence to show the defendant’s intent. Id. at 174-

       75. This evidence can include any statement of the defendant; furtive gestures

       or fleeing; whether the contraband was found in a manufacturing setting; the

       location of the contraband relative to the defendant; whether the contraband

       was found in plain view; and any mingling of contraband with a defendant’s

       other property. Id. at 175.


[13]   Here, it would have been reasonable for the jury to infer that Owens had the

       intent to maintain dominion and control over the drugs and the capability to

       maintain dominion and control over the drugs, given that he admitted he lived

       in the room, he had the only key to it, a scale for drugs was found in plain view,

       and the drugs were found close by the scales. We find sufficient evidence was

       presented to support Owens’ conviction for possession of cocaine.


                                                 II. Mistrial
[14]   Owens next contends that the trial court erred when it denied his motion for a

       mistrial on the grounds that the State had violated the motion in limine

       pertaining to his being a parolee. “Because the trial court is best positioned to

       assess the circumstances of an error and its probable impact on the jury, ‘[t]he

       denial of a mistrial lies within the sound discretion of the trial court,’ and [an

       appellate court] reviews only for abuse of that discretion.” Lucio v. State, 907


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1564 | January 18, 2018   Page 7 of 10
       N.E.2d 1008, 1010 (Ind. 2009) (quoting Gill v. State, 730 N.E.2d 709, 712 (Ind.

       2000)). “We afford the trial court such deference on appeal because the trial

       court is in the best position to evaluate the relevant circumstances of an event

       and its impact on the jury.” Stokes v. State, 919 N.E.2d 1240, 1243 (Ind. Ct.

       App. 2010), trans. denied. To prevail on appeal from the denial of a motion for a

       mistrial, “[T]he appellant must demonstrate the statement or conduct in

       question was so prejudicial and inflammatory that he was placed in a position

       of grave peril to which he should not have been subjected.” Id. “We determine

       the gravity of the peril based upon the probable persuasive effect of the

       misconduct on the jury’s decision rather than upon the degree of impropriety of

       the conduct.” Id.


[15]   The trial court granted Owens’ motion in limine to prevent the State from

       introducing evidence that Owens was on parole at the time of the search of his

       room, which resulted in police finding cocaine. When asked what he did after

       Owens and his companion left the boarding house, Detective Deddish

       responded, “I continued to do surveillance on that location until I learned

       through the radio from Detective Thomas that defendant had arrived at roll call

       and that he was in custody there with parole.” Tr. Vol 2 at 73. Defense counsel

       did not immediately object. Instead, an attorney for the State asked if counsel

       could approach the bench. The trial court excused the jury, defense counsel

       asked for a mistrial, and the parties presented their arguments.


[16]   The trial court denied Owens’ request for a mistrial and admonished the jury,

       saying:

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1564 | January 18, 2018   Page 8 of 10
               Alright, ladies and gentlemen, hope you had a good break. Prior
               to the break Detective Deddish was testifying on direct
               examination. Part of that testimony indicated that the defendant
               was put in touch with parole. That evidence has since been
               stricken from the record. And, what that means for you, is in
               Preliminary Instruction Number 10, as it was read, it states that
               occasionally the court may strike evidence from the record after
               you’ve already seen or heard it. You must not consider such
               evidence in making your decision. And, what that means for you
               is, that part that has been stricken from the record cannot be used
               during any of your thought or deliberation during the trial of this
               case. You may only consider that evidence which you heard,
               and has been admitted into court. So, that statement has not
               been admitted into court, and you may not use it or consider it
               for any reason, alright? Alright.


       Id. at 82. Owens contends that this was not a proper admonishment because

       the trial court characterized Detective Deddish as having said, “defendant was

       put in touch with parole,” when the transcript reflects that he said, “defendant

       had arrived at roll call and that he was in custody there with parole.”

       Appellant’s Br. at 13-14 (citing Tr. Vol 2 at 73, 83).


[17]   A mistrial is an extreme sanction warranted only when no other cure can be

       expected to rectify the situation. Stokes, 919 N.E.2d at 1243. Reversible error is

       seldom found when the trial court has admonished the jury to disregard a

       statement made during the proceedings because a timely and accurate

       admonition to the jury is presumed to sufficiently protect a defendant’s rights

       and remove any error created by the objectionable statement. Id. Here, the trial

       court struck from the record Detective Deddish’s testimony pertaining to parole

       and admonished the jury to disregard that evidence. Owens contends that the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1564 | January 18, 2018   Page 9 of 10
       trial court “admonished the jury to disregard a statement never made by

       Detective Deddish.” Appellant’s Br. at 13. We disagree, but even if the trial

       court did so, Owens has failed to show that Detective Deddish’s statement

       placed him in grave peril. Indeed, the jury acquitted him of the more serious

       Level 2 felony dealing in cocaine charge. The trial court did not abuse its

       discretion when it denied Owens’ request for mistrial.


[18]   Affirmed.


[19]   Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1564 | January 18, 2018   Page 10 of 10
