MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  Nov 25 2019, 9:15 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael R. Fisher                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Suton A. Sykes,                                         November 25, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1073
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G21-1805-F2-15922



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1073 | November 25, 2019                   Page 1 of 7
                                          Case Summary
[1]   Suton A. Sykes (“Sykes”) was convicted of several offenses, including

      Possession of Cocaine, as a Level 4 felony.1 Sykes now challenges the

      sufficiency of evidence supporting his conviction of Possession of Cocaine.


[2]   We affirm.



                                   Facts and Procedural History
[3]   In April 2018, Sykes agreed to participate in a home-detention program

      supervised by Marion County Community Corrections (“MCCC”). Sykes

      signed a document acknowledging the requirements of the program, which

      included (1) a prohibition on the possession of ammunition and (2) an

      obligation to comply with applicable laws. Sykes also consented to searches

      conducted to ensure his compliance with the requirements of the program.


[4]   On May 15, 2018, Jill Jones (“Jones”) from MCCC—along with assisting

      officers from the Indianapolis Metropolitan Police Department (“IMPD”)—

      went to Sykes’s residence for a compliance check. Jones knocked on the door

      and said, “Community Corrections.” Tr. Vol. II at 37. An IMPD officer then

      heard movement, looked through a beveled glass window on the front door,

      and saw a person “scurrying” back and forth across the residence. Id. at 43.




      1
          Ind. Code § 35-48-4-6.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1073 | November 25, 2019   Page 2 of 7
      After two minutes, Sykes came to the door, stepped outside, and nearly closed

      the door behind him. Jones explained she was there for a compliance check,

      and Sykes allowed entry into the residence. Inside, there was an adult woman

      and two children. The officer who had observed the scurrying person believed

      that Sykes—and not any other occupant—fit the physical stature of the person

      he saw moving inside. At some point, law enforcement spoke with a different

      woman who was in the backyard and brought her inside the residence.


[5]   Jones began searching the master bedroom. In a nightstand drawer, she found

      ammunition, a bag of marijuana, and a marijuana pipe. Another MCCC staff

      member searched a backpack that was hanging on a closet door in the master

      bedroom. The backpack contained a scale with a white, powdery residue on it.

      Law enforcement froze the scene and obtained a search warrant. Officers then

      searched the residence. They found a baggie of 6.78 grams of cocaine under a

      chair in the master bedroom, and a gun on a couch in the living room. The gun

      was swabbed and later found to contain DNA matching Sykes’s DNA profile.


[6]   The State charged Sykes with several offenses. Following a bifurcated trial,

      Sykes was ultimately convicted of (1) Possession of Cocaine, as a Level 4

      felony; (2) Unlawful Possession of a Firearm by a Serious Violent Felon, a

      Level 4 felony;2 (3) Escape, as a Level 6 felony;3 and (4) Maintaining a




      2
          I.C. § 35-47-4-5(c).
      3
          I.C. § 35-44.1-3-4(b).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1073 | November 25, 2019   Page 3 of 7
      Common Nuisance, a Level 6 felony.4 The trial court imposed concurrent

      sentences on these counts, resulting in an aggregate sentence of ten years in the

      Indiana Department of Correction with two years suspended.


[7]   Sykes now appeals.



                                 Discussion and Decision
[8]   “A person may be convicted of an offense only if his guilt is proved beyond a

      reasonable doubt.” I.C. § 35-41-4-1. “When a defendant challenges the

      sufficiency of the evidence supporting a conviction, ‘we neither reweigh

      evidence nor judge witness credibility.’” Cardosi v. State, 128 N.E.3d 1277, 1283

      (Ind. 2019) (quoting McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018)).

      Instead, we “consider only the evidence most favorable to the judgment

      together with all reasonable inferences that may be drawn from the evidence.”

      Id. at 1283 (quoting McCallister, 91 N.E.3d at 558). We will affirm the

      conviction if there is “substantial evidence of probative value supporting each

      element of the crime from which a reasonable trier of fact could have found the

      defendant guilty beyond a reasonable doubt.” McElfresh v. State, 51 N.E.3d 103,

      107 (Ind. 2016) (quoting Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)).


[9]   A person who knowingly or intentionally possesses cocaine commits a Level 6

      felony. See I.C. § 35-48-4-6(a). The offense is elevated to a Level 4 felony if the




      4
          I.C. § 35-45-1-5(c).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1073 | November 25, 2019   Page 4 of 7
       person (1) possesses between five grams and ten grams and (2) an enhancing

       circumstance applies. See I.C. § 35-48-4-6(c). One such circumstance is that the

       person has a prior conviction for dealing in cocaine. See I.C. § 35-48-1-16.5.


[10]   On appeal, Sykes focuses only on whether there is sufficient evidence he

       knowingly or intentionally possessed the cocaine found under the chair.

       Despite the narrow challenge, we nevertheless observe there is ample evidence

       law enforcement found between five grams and ten grams of cocaine, in that

       there was evidence a baggie contained 6.78 grams of cocaine. Moreover, there

       is ample evidence of an applicable enhancing circumstance, in that the State

       presented evidence Sykes previously pleaded guilty to dealing in cocaine.


[11]   Turning, then, to the issue of possession, the State satisfies this element by

       proving either actual possession or constructive possession. Sargent v. State, 27

       N.E.3d 729, 732-33 (Ind. 2015). “Actual possession occurs when a person has

       direct physical control over the item.” Id. at 723. Constructive possession

       occurs “when the person has (1) the capability to maintain dominion and

       control over the item; and (2) the intent to maintain dominion and control over

       it.” Id. (quoting Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011)). “A trier of fact

       may infer that a defendant had the capability to maintain dominion and control

       over contraband from the simple fact that the defendant had a possessory

       interest in the premises on which an officer found the item.” Gray, 957 N.E.2d

       at 174. This inference is permissible “even when that possessory interest is not

       exclusive.” Id. However, when that possessory interest is not exclusive, there

       must be “additional circumstances pointing to the defendant’s knowledge of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1073 | November 25, 2019   Page 5 of 7
       presence and the nature of the item.” Id. at 175. The Indiana Supreme Court

       has identified a non-exhaustive list of “additional circumstances,” including


               (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.


[12]   Here, there is evidence Jones knocked on the door to Sykes’s residence and

       announced, “Community Corrections.” Tr. Vol. II at 37. It then took Sykes

       about two minutes to answer the door. Meanwhile, a person of Sykes’s stature

       was observed scurrying back and forth inside the residence. When Sykes

       eventually answered the door, he stepped out and nearly closed the door behind

       him—obscuring the view into the residence. Sykes admitted that he lived in the

       residence. Moreover, the police found a baggie of cocaine under a chair in the

       bedroom. In that bedroom, there was mail addressed to Sykes.


[13]   Sykes asserts there is a lack of additional circumstances that would support a

       reasonable inference he knew about the cocaine. However, evidence ties Sykes

       to the bedroom where the cocaine was hidden. Moreover, as the State points

       out, the cocaine was “discovered in a place that was consistent with a rushed

       attempt at concealment.” Appellee’s Br. at 9. In light of the scurrying in the

       house, a fact-finder could reasonably infer Sykes was attempting to conceal the

       cocaine during the two minutes before he answered the door. We therefore
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1073 | November 25, 2019   Page 6 of 7
       conclude there is sufficient evidence of additional circumstances to support a

       conviction predicated upon a theory of constructive possession of the cocaine.


[14]   There is sufficient evidence from which a fact-finder could conclude, beyond a

       reasonable doubt, Sykes committed Possession of Cocaine, as a Level 4 felony.


[15]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1073 | November 25, 2019   Page 7 of 7
