MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Sep 17 2018, 9:25 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John P. Tuskey                                           Curtis T. Hill, Jr.
Mishawaka, Indiana                                       Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Philip D. Hartsough,                                     September 17, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-545
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Plaintiff.                                      Christofeno, Judge
                                                         Trial Court Cause No.
                                                         20C01-1702-F5-46



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018                 Page 1 of 8
                                             Case Summary
[1]   Philip D. Hartsough was convicted following a bench trial of possession of

      methamphetamine as a Level 5 felony. He appeals and claims that the State

      did not present sufficient evidence that the methamphetamine, found on the

      ground near his feet during his arrest, was his.


[2]   We affirm.


                                   Facts & Procedural History
[3]   As part of their duties on February 24, 2017, Goshen Police Department

      Officers Zachary Miller and Cody Brown were assigned to serve arrest

      warrants. At that time, Hartsough had one or more outstanding warrants in

      Elkhart County. Officers Miller and Brown were advised, as they began their

      shift, that a vehicle belonging to Hartsough was parked around the 300 block of

      South Seventh Street, which “is a well-known area for . . . drug activity[,]”

      particularly methamphetamine. Transcript Vol. II at 14-15. Around 4:40 a.m.,

      Officers Miller and Brown went to that area and observed a parked pick-up

      truck, which they identified as belonging to Hartsough. The officers noticed an

      illuminated radio light inside the truck, and, using a flashlight, Officer Miller

      looked inside and saw a man later identified as Hartsough “hunched over” the

      steering wheel. Id. at 17. Officer Miller announced his presence and both

      officers gave Hartsough verbal commands to exit the vehicle.


[4]   Because Hartsough was not exiting the car as ordered, Officer Miller became

      concerned for officer safety, and he backed away and drew his firearm. About

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018   Page 2 of 8
      this time, Hartsough opened the door. With Officer Miller’s assistance,

      Hartsough stepped out of the vehicle with his hands out and open. Hartsough

      was sluggish, slow to react, and his speech was slow, which indicated to the

      officers that Hartsough might be under the influence of an illegal substance. As

      Hartsough stepped out, Officer Miller took his arms, and Officer Brown told

      him to turn around and put his hands behind his back. Officer Brown’s body

      camera was operating at the time, and photos from the video footage showed

      that there was nothing on the pavement near the driver’s side door as

      Hartsough was starting to step out.


[5]   The officers handcuffed Hartsough, and, during Officer Brown’s search of

      Hartsough, he found in Hartsough’s front jacket pocket a BIC ballpoint pen

      casing, which the officers recognized as an object commonly used to ingest

      illegal substances. Officer Miller looked down at the ground where Hartsough

      had exited the vehicle and saw, within a few inches of Hartsough’s feet, two

      clear baggies, one of which contained a white, crystal-like substance and the

      other contained a yellow-orange piece of paper with “N7” on it. Id. at 35.

      Officer Miller picked up the baggies from the wet pavement, noting that the

      baggies were dry. The crystal-like substance later tested positive for

      methamphetamine.


[6]   On February 27, 2017, the State charged Hartsough with one count of

      possession of methamphetamine, enhanced from a Level 6 to a Level 5 felony

      based on a previous conviction for dealing in a controlled substance. A bench

      trial was held on September 6, 2017. Prior to trial, Hartsough stipulated that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018   Page 3 of 8
      the crystal-like substance recovered by the officers was 0.35 grams of

      methamphetamine.


[7]   At trial, Officer Miller testified that as he and Officer Brown were walking

      toward the residence on South Seventh Street where they believed Hartsough to

      be staying, they saw the parked pick-up truck and approached it. He explained

      that, when checking a vehicle, it was routine for officers to not only look inside

      of it, but also check around the exterior of it to view what, if anything, was on

      the ground in the area. Officer Miller testified that he looked on the ground

      with a flashlight around the pick-up truck and saw nothing other than the

      pavement and curb where the vehicle was parked. He confirmed that there was

      no “foot traffic” or anyone walking by the area at the time that he and Officer

      Brown were arresting Hartsough. Id. at 41. Officer Miller acknowledged that

      he did not see anything drop from Hartsough’s hands, lap, body, but noted that

      he was “focused on [Hartsough’s] hands.” Id. at 38.


[8]   Officer Brown testified to serving warrants with Officer Miller on the night in

      question, noting that the first time they went to the residence on South Seventh

      Street, Hartsough was not in his vehicle, but was when they returned at 4:40

      a.m. Officer Brown recalled the pavement being wet at that time due to rain.

      Officer Brown said that he and Officer Miller gave multiple commands for

      Hartsough to exit the vehicle, but he “wasn’t complying.” Id. at 50. He

      estimated it took five to eight verbal commands before Hartsough complied.

      Officer Brown activated his body camera as he was standing on the passenger

      side of the vehicle, before walking over to the driver’s side to arrest Hartsough.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018   Page 4 of 8
      The camera’s video footage was admitted at trial without objection and played

      for the trial court. Officer Brown testified to discovering in Hartsough’s pocket

      the BIC pen casing, which he said “is commonly used to ingest narcotics” and

      “is commonly referred to as a tooter.” Id. at 56. Officer Brown testified that he

      did not observe Hartsough make furtive movements while in the truck, but

      noted that he could not see Hartsough’s hands at that time. Officer Brown did

      not see anything drop from Hartsough’s hands, lap, pocket, pants, or jacket.


[9]   The trial court took the matter under advisement, and on December 5, 2017,

      issued an order finding Hartsough guilty as charged. In its order, the trial court

      observed, “While the Defendant testified that he did not have any drugs on him

      or in the vehicle, the [trial] Court found the Defendant’s testimony to be

      unreliable.” Appellant’s Appendix Vol. II at 45. The trial court continued,


              There is no evidence to suggest that the officers planted the
              methamphetamine. There is no evidence to suggest that
              someone else planted the methamphetamine. The only
              reasonable conclusion is that the Defendant [] Hartsough
              deposited the methamphetamine on the ground outside of his
              vehicle so that he could make the very argument which he made
              to the Court, that being that he did not know it was
              methamphetamine and he does not know how it got to be outside
              of his vehicle.


      Id. at 45-46. The trial court also found “unbelievable” Hartsough’s claim that

      he thought it was a complete pen that was in his pocket. Id. at 46. Following a

      sentencing hearing, the trial court imposed a six-year sentence at the Indiana

      Department of Correction. Hartsough now appeals.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018   Page 5 of 8
                                        Discussion & Decision
[10]   Hartsough contends that the State failed to present sufficient evidence to

       convict him of possession of methamphetamine. When reviewing a conviction

       for the sufficiency of the evidence, we do not reweigh evidence or reassess the

       credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). We

       view all evidence and reasonable inferences drawn therefrom in a light most

       favorable to the conviction and will affirm “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.”

       Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). It is not

       necessary that the evidence overcome every reasonable hypothesis of

       innocence; rather, the evidence is sufficient if an inference may reasonably be

       drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147

       (Ind. 2007).


[11]   To convict Hartsough of Level 5 felony possession of methamphetamine as

       charged, the State was required to prove that he: (1) knowingly or intentionally

       (2) possessed methamphetamine, and (3) the amount of the drug was less than

       five grams and an enhancing circumstance applied. See Ind. Code § 35-48-4-

       6.1(a), (b)(2), 35-48-1-16.5(1). On appeal, Hartsough does not challenge that

       the substance was methamphetamine, the amount of it, or that he had a prior

       qualifying conviction to elevate his offense. Rather, his argument on appeal is

       that the State failed to prove that the methamphetamine found on the ground

       near his feet belonged to him. Hartsough urges that it is undisputed that he

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018   Page 6 of 8
       exited the vehicle with his hands out and open, and because the officers did not

       see anything fall from his lap or body, or otherwise see him make furtive

       gestures, there was insufficient evidence from which to conclude that Hartsough

       disposed of the contraband as he stepped out of the pick-up truck. We disagree.


[12]   The State presented evidence that, as the officers were serving arrest warrants in

       an area known for drug activity, they found Hartsough slumped over in the

       driver’s seat of his vehicle. Officer Miller testified that as he approached the

       parked pick-up truck, he looked, but did not see, anything on the ground

       around the vehicle. Consistent with Officer Miller’s testimony, Officer Brown’s

       body-camera footage did not show anything on the pavement as Hartsough

       exited through the driver’s-side door. Indeed, Hartsough does not dispute that

       there were no baggies on the ground near the driver’s side door before he exited

       the truck. While Officer Brown was searching Hartsough, Officer Miller saw

       the two clear baggies on the ground, a few inches from Hartsough’s feet. The

       officers both testified that there were no people walking by the area during the

       arrest. Officer Miller also testified that the pavement was wet from rain, but the

       baggies were dry, supporting the inference that they had been on the ground

       only for a short period of time. Although Hartsough testified that he did not

       have any drugs on him or in the vehicle, the trial court found his testimony in

       that regard to be “unreliable.” Appellant’s Appendix Vol. II at 45. Similarly,

       although Hartsough testified he did not know that the pen found in his pocket

       was hollow, the trial court found such testimony was “also [] unbelievable.” Id.

       at 46.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018   Page 7 of 8
[13]   Direct evidence of Hartsough discarding the methamphetamine is not required,

       as circumstantial evidence alone is sufficient to sustain a conviction. Maul v.

       State, 731 N.E.2d 438, 439 (Ind. 2000); Floyd v. State, 791 N.E.2d 206, 210 (Ind.

       Ct. App. 2003), trans. denied. Based on the record before us, we find that the

       State presented sufficient evidence to convict Hartsough of Level 5 felony

       possession of methamphetamine.


[14]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018   Page 8 of 8
