MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                            Jan 30 2017, 9:40 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     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
Elizabeth A. Bellin                                      Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana
                                                         Matthew R. Elliott
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Melvin D. Levy,                                          January 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1608-CR-2009
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Plaintiff.                                      Bowers, Judge
                                                         Trial Court Cause No.
                                                         20D02-1511-F4-57



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017   Page 1 of 12
                                         Statement of the Case
[1]   Melvin D. Levy (“Levy”) appeals his conviction and sentence for Level 4 felony

      possession of cocaine.1 Levy was convicted pursuant to a jury trial in which

      police officers introduced evidence of cocaine they had found during a search of

      Levy’s bedroom. On appeal, Levy argues that: (1) there was not sufficient

      evidence to prove that he constructively possessed the cocaine; and (2) his

      sentence was inappropriate under Appellate Rule 7(B) in light of the nature of

      his offense and his character. Because the State produced evidence that Levy

      had the intent and capability to exercise dominion and control over the cocaine,

      we conclude that there was sufficient evidence to prove he possessed the

      cocaine. We also conclude that his sentence was not inappropriate in light of

      the nature of his offense and his character.


[2]   We affirm.


                                                       Issues
              1. Whether there was sufficient evidence to prove that Levy
              possessed cocaine.

              2. Whether Levy’s sentence was inappropriate in light of the
              nature of his offense and his character.




      1
       IND. CODE §§ 35-48-4-6(a), (c)(2) and I.C. § 35-48-1-16.5(1). Levy was also convicted of Class A
      misdemeanor possession of a synthetic drug or a synthetic drug lookalike substance and Class B
      misdemeanor possession of marijuana, but he does not appeal either of those convictions.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017         Page 2 of 12
                                                            Facts
[3]   On November 19, 2016, two special units of the Elkhart City Police

      Department executed a “no-knock” search warrant at 916 South Main Street to

      search for evidence of drug activity.2 (Tr. 50). The officers “ram[med]” the

      door in and then threw a “flash bang” on the stairs to distract the occupants of

      the house.3 (Tr. 158). They then dispersed through the house and apprehended

      six occupants inside, including Levy. They found Levy under a pool table in

      the living room within an “arm’s reach” of a revolver, which was hidden in the

      pool table. (Tr. 167).


[4]   After apprehending the occupants of the house, the officers searched for

      evidence of drugs and weapons. Meanwhile, Elkhart Corporal Greg Harder

      (“Corporal Harder”) interviewed Levy, and Levy told Corporal Harder that his

      bedroom was in the southwest corner of the house on the second floor. After

      climbing the stairs to the second floor, that room would be the “second one on

      the left.” (Tr. 67). While searching Levy’s room, the officers found cocaine,

      synthetic marijuana, and marijuana. The bag of synthetic marijuana was

      located inside of a pair of “Michael Jordan” shoes, and the bag of cocaine was

      found inside of a gray winter hat. (Tr. 91). There was also a small bag of

      marijuana near the headboard of the bed.




      2
       A “no-knock” search warrant allows police officers to enter a premise without first announcing their
      presence. (Tr. 50).
      3
          A “flash bang” is a “device [used] to cause a distraction.” (Tr. 160).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017         Page 3 of 12
[5]   In addition to drugs, Corporal Jason Gruber (“Corporal Gruber”) found letters

      with Levy’s name on them on a shelving unit in his bedroom. Two of the

      letters contained Levy’s name and the address 916 South Main Street. Another

      letter had Levy’s name on it and a different address. Due to their pre-search

      surveillance, the officers knew that Levy was also associated with the second

      address. Because there was “so much clutter” Corporal Gruber removed the

      letters from the shelving unit in Levy’s room and placed them in the middle of

      the room where they would be easier to photograph. (Tr. 175).


[6]   Subsequently, the State charged Levy with Level 5 felony possession of cocaine,

      Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike

      substance, and Class B misdemeanor possession of marijuana. The State also

      charged Levy with enhancements to elevate his possession of cocaine charge to

      a Level 4 felony and his possession of marijuana charge to a Class A

      misdemeanor based on his prior conviction for dealing in cocaine.


[7]   A jury trial was held on May 24 and 25, 2016. At trial, several officers testified

      that Levy’s bedroom was the southwest bedroom on the second floor and that

      they had found cocaine, marijuana, and synthetic marijuana in the room. The

      owner of the house also testified that he had charged Levy rent to live in the

      house and that Levy lived in the “second [room] on the left”—the southwest

      room—at the top of the stairs. (Tr. 199). At the conclusion of the trial, the jury

      found Levy guilty as charged. Levy then waived his right to a jury trial on his

      conviction enhancements and pled guilty to having a prior conviction for

      dealing in cocaine.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017   Page 4 of 12
[8]    At the sentencing hearing, Levy requested that his sentences be suspended to

       probation because he had a job lined up after his release and had five children

       to support. The State introduced evidence that Levy had a prior criminal

       history, including two misdemeanor convictions, two felony convictions, and

       pending charges in a separate cause for being a serious violent felon in

       possession of a firearm and possession of marijuana. The State also introduced

       evidence that Levy had repeatedly violated his probation for some of those

       convictions and had committed the current offense while he was out on bond

       for his pending charges.


[9]    The trial court found that Levy’s criminal record and repeated violations of

       probation from earlier sentences were aggravating factors; it did not find any

       mitigating factors. It sentenced him to ten (10) years, with eight (8) years

       executed and two (2) years suspended to probation, for his possession of

       cocaine conviction; one (1) year for his possession of a synthetic drug

       conviction; and 180 days for his possession of marijuana conviction. The trial

       court further ordered Levy to serve the sentences concurrently for a total

       executed sentence of eight (8) years. Levy now appeals.


                                                   Decision
[10]   On appeal, Levy argues that: (1) there was insufficient evidence to convict him

       of possession of cocaine; and (2) his sentence was inappropriate in light of the

       nature of his offense and his character. We will address each of these

       arguments in turn.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017   Page 5 of 12
       1. Sufficiency

[11]   Levy challenges his conviction for possession of cocaine by arguing that there

       was insufficient evidence that he constructively possessed the cocaine.

       Specifically, he asserts that there was no evidence that he knew about the

       cocaine, had exclusive control over the bedroom where the cocaine was found,

       or had the ability to maintain control over the cocaine.


[12]   In order to convict Levy for possession of cocaine, the State had to prove that

       he: “knowingly or intentionally possess[ed] cocaine (pure or adulterated)” in

       an amount that was “at least five (5) but less than ten (10) grams.”4 I.C. §§ 35-

       48-4-6(a), -(c)(2). Possession of the cocaine may be either actual or

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

       possession occurs when a person has direct physical control over the cocaine,

       and constructive possession occurs when a person has “‘the capability to

       maintain dominion and control over the [cocaine]; and (2) the intent to

       maintain dominion and control over [it].’” Id. at 733 (quoting Gray v. State, 957

       N.E.2d 171, 174 (Ind. 2011)).


[13]   When reviewing sufficiency of the evidence claims, we neither reweigh the

       evidence nor judge witness credibility. Perkins v. State, 57 N.E.3d 861, 864 (Ind.

       Ct. App. 2016). We consider only the evidence supporting the judgment and

       any reasonable inference that can be drawn from that evidence. Id. We will



       4
         In order for the offense to qualify as a Level 4 felony, the State also had to prove that enhancing
       circumstances applied, but those circumstances are not at issue here.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017                 Page 6 of 12
       affirm the conviction if there is substantial evidence of probative value

       supporting each element of the offense such that a reasonable trier of fact could

       have found the defendant guilty beyond a reasonable doubt. Id.


[14]   It is undisputed that Levy did not have actual possession over the cocaine.

       Instead, he argues that the State did not present sufficient evidence that he

       constructively possessed the cocaine. He reasons that the State did not prove

       that he had the intent to maintain dominion and control over the cocaine

       because there was no evidence he knew it existed, and the State did not prove

       that he had the capability to maintain dominion and control over it because he

       did not have exclusive control over the premises. He notes that several people

       lived in the residence at the time of the search, and the police did not find him

       near the bedroom where the cocaine was located.


[15]   To prove the intent element of constructive possession, the State must, as Levy

       asserts, demonstrate the defendant’s knowledge of the presence of the

       contraband. Crocker v. State, 989 N.E.2d 812, 822 (Ind. Ct. App. 2013), trans.

       denied. However, “‘[t]his knowledge may be inferred from either the exclusive

       dominion and control over the premise containing the contraband or, if the

       control is non-exclusive, evidence of additional circumstances pointing to the

       defendant’s knowledge of the presence of the contraband.’” Id. (quoting Taylor

       v. State, 482 N.E.2d 259, 261 (Ind. 1985)). Among the recognized “additional

       circumstances” are: (1) incriminating statements by the defendant; (2)

       attempted flight or furtive gestures; (3) a drug manufacturing setting; (4)

       proximity of the defendant to the contraband; (5) contraband is in plain view;

       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017   Page 7 of 12
       and (6) location of the contraband is in close proximity to items owned by the

       defendant. Jones v. State, 807 N.E.2d 58, 65 (Ind. Ct. App. 2004), trans. denied.


[16]   Levy argues that he did not have exclusive control over the residence or his

       bedroom because several other people lived in the house and used his room.

       However, we need not address whether Levy had exclusive control over his

       bedroom because, regardless, there were additional circumstances pointing to

       his knowledge of the contraband. See Crocker , 482 N.E.2d at 261 (stating that

       knowledge may be inferred from either exclusive domain and control over the

       premise containing the contraband or evidence of additional circumstances

       pointing to the defendant’s knowledge of the presence of the contraband).

       Specifically, the cocaine was close in proximity to items he owned. Corporal

       Gruber found three letters with Levy’s name on them on a shelving unit in the

       bedroom.5 Two of the letters listed the address of the house where the drugs

       were found, and another listed an address of a residence with which Levy was

       associated. The proximity of Levy’s letters to the cocaine was an additional

       circumstance indicating his knowledge of the cocaine. Thus, we may infer his

       knowledge and intent to maintain dominion and control over the drugs. See id.


[17]   Regarding the capability element of constructive possession, proof of a

       possessory interest in the premises in which the illegal drugs are found is




       5
         Levy asserts that the letters were found in a dresser in the hallway rather than his bedroom. However,
       Corporal Gruber testified that he found the letters on a shelving unit in Levy’s bedroom, and we will not
       reweigh the evidence. See Perkins, 57 N.E.3d at 864.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017           Page 8 of 12
       adequate to show the defendant’s capability to maintain dominion and control

       over the contraband. Id. at 66. A defendant’s possessory interest in the

       premises does not require actual ownership. Id. A house or apartment used as

       a residence is controlled by the person who lives in it, and that person may be

       found in control of any drugs discovered therein, whether he is the owner,

       tenant, or merely an invitee. Id.


[18]   Levy admitted that he lived in the southwest bedroom at 916 South Main

       Street, which is where the cocaine was found. Further, Levy’s landlord testified

       that Levy paid rent and lived in the southwest corner bedroom on the second

       floor. Accordingly, we conclude that there was sufficient evidence that Levy

       had a possessory interest in the house and bedroom where the cocaine was

       found and, therefore, had the capability to exercise dominion and control over

       the cocaine. As we have already found that Levy had the intent to exercise

       dominion and control over the cocaine, we thus conclude that he had

       constructive possession of the drugs and that there was sufficient evidence to

       support his conviction.


       2. Inappropriate Sentence


[19]   Next, Levy argues that his sentence was inappropriate in light of the nature of

       his offense and his character. While sentencing decisions rest within the sound

       discretion of the trial court, a reviewing court may revise a sentence pursuant to

       Appellate Rule 7(B) if, “‘after due consideration of the trial court’s decision,’” it

       finds that the sentence is inappropriate in light of the nature of the offense and


       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017   Page 9 of 12
       the character of the offender. Holt v. State, 62 N.E.3d 462, 465 (Ind. Ct. App.

       2016) (quoting Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 208 (Ind. 2007)). Whether a sentence is inappropriate

       ultimately turns on the “‘culpability of the defendant, the severity of the crime,

       the damage done to others, and a myriad of other factors that come to light in a

       given case.’” Id. (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)).


[20]   Here, Levy argues that he should have been sentenced to the advisory sentence

       for Level 4 felony possession of cocaine. INDIANA CODE § 35-50-2-4 provides

       that the sentencing range for a Level 4 felony is two (2) to twelve (12) years, and

       the advisory sentence is six (6) years. As Levy was sentenced to ten (10) years

       with two (2) years suspended to probation, his sentence is longer than the

       advisory sentence. Nevertheless, we find that Levy’s sentence was not

       inappropriate in light of the nature of his offense and his character.


[21]   As for the nature of his offense, Levy argues that “given the fact that [he] was

       one of many individuals in the home who had the potential for possessing the

       cocaine found, his culpability was diminished significantly.” (Levy’s Br. 15).

       We do not find this argument persuasive as Levy was convicted of possessing

       the cocaine, not the other people in the house. Instead, we find that the nature

       of Levy’s offense supports his sentence. Officers commenced an investigation

       of Levy’s residence after they received multiple citizen complaints of possible

       drug activity and drug transactions at the residence. Then, when officers

       searched the residence, they found significant amounts of drugs and

       paraphernalia used for dealing drugs, such as baggies and scales. Levy was

       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017   Page 10 of 12
       convicted of possessing three different types of drugs—cocaine, synthetic

       marijuana, and marijuana—and had scales and ammunition in his bedroom.


[22]   As for his character, Levy notes that he has five children, had secured

       employment for his release, had been employed for two years prior to his arrest,

       had attended church, and enjoyed spending time with his children. However,

       Levy’s criminal record is also a strong indication of his character. He has two

       prior misdemeanor convictions from 2005 and 2006—one no financial

       responsibility conviction and one weapons-carrying conviction. Then, in 2007,

       he was convicted of felony dealing in cocaine or a narcotic drug and had his

       probation revoked for that conviction. After he was released from the

       Department of Correction, he violated his parole and was found guilty of Class

       D felony escape. Subsequently, on August 26, 2015, he was charged with Level

       4 felony unlawful possession of a firearm by a serious violent felon; Class B

       misdemeanor possession of marijuana; and Class A misdemeanor possession of

       marijuana with a prior conviction. While he was on bond in that case, he

       committed the offenses underlying the instant case. He also admitted to using

       marijuana while out on bond. These offenses and his overall criminal history

       indicate Levy’s complete disregard and disrespect for the law. Further, we find

       it notable that Levy’s offenses have increased in severity over time and that he

       has previously been convicted of other drug crimes. In light of this evidence of

       Levy’s character, we conclude that his sentence was not inappropriate.


[23]




       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017   Page 11 of 12
[24]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2009 | January 30, 2017   Page 12 of 12
