Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                            Jun 12 2013, 9:00 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

GREGORY L. FUMAROLO                               GREGORY F. ZOELLER
Fort Wayne, Indiana                               Attorney General of Indiana

                                                  KARL M. SCHARNBERG
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

JAWYAN JAMES TOWNES,                              )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 02A03-1210-CR-441
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable Wendy W. Davis, Judge
                            Cause No. 02D04-1205-FD-703



                                         June 12, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Jawyan Townes appeals his conviction for possession of marijuana, as a Class D

felony, following a jury trial. Townes raises two issues on appeal:

       1. Whether the evidence is sufficient to sustain his conviction.

       2. Whether the State deprived him of his Sixth Amendment right to a
          defense by telling a defense witness she would be prosecuted if she
          continued with her testimony.

       We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On the evening of May 16, 2012, the Fort Wayne Police Department received an

anonymous telephone call that Townes, who was wanted on an active arrest warrant, was

walking near an apartment complex located at Nine Drive in Fort Wayne. A special unit

of the Fort Wayne Police Department proceeded to the area in an attempt to serve a

warrant on Townes. Detective Robert Hallo, through the use of binoculars, identified

Townes, who was wearing a blue Kansas City Royals baseball hat, walking outside of

one of the buildings.

       Townes began running after he spotted a marked squad car approaching the

apartment complex. Detective Martin Grooms, who was already out of his car, shouted,

“Stop! Police!” Transcript at 102. Townes, recognizing the police officers closing in on

him, ducked into an apartment. Detectives surrounded the apartment and knocked on the

door. Michael Corbitt answered. Detective Grooms asked Corbitt if Townes was inside

the apartment, and Corbitt answered affirmatively.       The detectives went inside the

apartment and called for Townes to come out.


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       Townes walked out of the bathroom holding a bottle of vodka that he threw at the

officers. One of the officers shot Townes with a Taser, and Townes dropped to the

ground. Subsequently, the officers arrested him.

       In the bathroom Townes had exited, officers found in the bathtub two cellophane

baggies, which contained 42.4 grams of marijuana, and a blue Kansas City Royals

baseball hat. After Townes was taken out of the apartment, Virginia Wilkin, who lived in

the apartment with her boyfriend, Corbitt, arrived and gave the officers permission to

search the apartment.

       The State charged Townes with possession of marijuana, a Class D felony, and

two counts of resisting law enforcement, Class A misdemeanors. At trial, Sergeant

Thomas Strausborger testified that he had asked Wilkin while investigating her apartment

if there was marijuana or a baseball hat in the shower the last time she used her bathroom

and she responded no. Id. at 175. Sergeant Strausborger also testified that he had asked

Corbitt the same question, and that Corbitt had stated that he had taken a shower only one

hour before Townes entered the apartment and there was no marijuana or hat in the

bathtub at that time. Id. at 175.

       Further, Townes called Wilkin as the defense’s sole witness. Wilkin testified that

detectives had asked her permission to search the apartment. When asked what she had

told the police, Wilkin stated, “I hesitated for a minute because I knew there was drugs

and paraphernalia in my apartment . . . .” Id. at 228. At that point, the trial court

interrupted Wilkins and dismissed the jury, and a lengthy sidebar ensued.




                                            3
       The court informed Wilkin of her Fifth Amendment rights, and both the judge and

the deputy prosecuting attorney articulated concerns about whether Wilkin understood

that she may be incriminating herself. The prosecuting attorney also expressed that he

had “an officer sitting right here,” a reference that Wilkin could be charged based on her

testimony. Id. at 231. Additionally, the trial court stated concern for the witness, saying,

“I’m afraid of what she’s going to testify to and . . . this detective, he’s probably going to

turn to the prosecutor and want to take her into custody.” Id. at 233. Townes’ attorney

responded: “here’s what I don’t feel comfortable with right now. The Court is not

intending to do this, but you’re now telling the witness who has been advised of her

rights and who wants to testify that she might be arrested if she testifies.” Id. at 233.

       Eventually a deputy public defender came and advised Wilkin. Subsequently,

Wilkin asserted her Fifth Amendment privilege against self-incrimination and decided

not to testify. At the conclusion of the trial, the jury convicted Townes of all three counts

as charged and the trial court sentenced accordingly. Townes now appeals.

                             DISCUSSION AND DECISION

                         Issue One: Sufficiency of the Evidence

       Townes contends that the evidence is insufficient to support his conviction for

possession of marijuana. The court cannot reweigh the evidence or judge the credibility

of witnesses. Bradley v. State, 765 N.E.2d 204 (Ind. Ct. App. 2002). The court should

examine the evidence most favorable to the verdict and all reasonable inferences that may

be drawn accordingly. Id. The court will sustain a conviction only when each material




                                              4
element of the charge is supported by evidence in the record from which a rational trier of

fact could have found guilt beyond a reasonable doubt. Id.

       Indiana has characterized the possession of contraband as either actual or

constructive. Henderson v. State, 765 N.E.2d 833, 835 (Ind. 2002). Actual possession

occurs when a person has direct physical control over the item.         Id.   Constructive

possession occurs when someone has the (1) intent to maintain dominion and control and

(2) the capability to maintain dominion and control over the contraband. Goliday v.

State. 708 N.E.2d 4, 6 (Ind. 1999) (citing Lampkins v. State, 685 N.E.2d 698, 699 (Ind.

1997)).

          In cases where the accused has exclusive possession of the premises where the

contraband is found, an inference is permitted that the accused had knowledge of the

contraband and was capable of controlling it. Holmes v. State, 785 N.E.2d 658, 661 (Ind.

Ct. App. 2003). However, in cases where the accused has non-exclusive possession of

the premises, as in the instant case, the inference is not permitted absent additional

circumstances indicating knowledge of the presence of the contraband and the ability to

control it. See id. Additional circumstances demonstrating that a person has knowledge

of the presence of the contraband and the ability to control it include: 1) incriminating

statements by the defendant; 2) attempted flight or furtive gestures; 3) location of

substances like drugs in settings that suggest manufacturing; 4) proximity of the

contraband to the defendant; 5) location of the contraband within the defendant’s plain

view; and 6) the mingling of the contraband with other items owned by the defendant.

Henderson, 715 N.E.2d at 836. Townes was convicted of non-exclusive constructive


                                            5
possession based upon proof of four of the above circumstances:         attempted flight,

proximity, plain view, and the mingling of the contraband with defendant’s items.

      In Collins v. State, police were called to a house where a resident had been shot.

822 N.E.2d 214 (Ind. Ct. App. 2005). After he had attempted to flee, the police entered

the home and found Collins, sitting on a couch. The police found a gun on the same

couch and two more guns in plain view in a bedroom where many of Collins’ personal

items were, such as an envelope addressed to Collins, Collins’ clothes, and photographs

belonging to Collins. This court ruled that there was “substantial evidence that Collins

constructively possessed” the firearms. Id. at 223. We held that, although Collins was

only a visitor to the residence, the evidence showed that he constructively possessed the

firearms because he was sitting in close proximity to one gun, several of his items were

found in the bedroom where two other guns were found, and guns were found in plain

view. Id. at 222.

      The additional circumstances demonstrating constructive possession in Collins are

similar to the circumstances in the instant case. Townes fled from the police officers and

into a stranger’s apartment. When police entered the apartment, Townes came out of the

bathroom and stood in the doorway. Townes was the only person to come out of the

bathroom. Further, the hat that Detective Hallo had seen Townes wearing earlier was

found in the bathtub next to the drugs in plain view. Thus, each of the four additional

circumstances were present to indicate that Townes had knowledge of the presence of the

contraband and the ability to control it: (1) attempted flight; (2) proximity; (3) plain

view; and (4) personal items belonging to Townes resting next to the drugs.           See


                                            6
Henderson, 715 N.E.2d at 836. As was the case in Collins, although Townes was in

another person’s apartment, the circumstances favorable to the verdict support the

inference that he was aware of the marijuana’s presence and was the only person capable

of controlling it at the time when police encountered him. See, id.

       Still, Townes maintains that the prosecution made no effort to link Townes to the

hat found in the bathtub. The hat was a “fitted” hat, meaning that it was particularly

sized to an individual, but the State did not introduce evidence that the hat fit Townes.

Further, there is no evidence that the State examined the hat for a hair sample that would

match Townes’. Nevertheless, these arguments are merely requests for this court to

reweight the evidence, which we will not do.

       Additionally, Townes cites three Indiana Court of Appeals cases that were

reversed because the State failed to show additional circumstances indicating, beyond a

reasonable doubt, that a defendant knew the contraband was present.1 Townes maintains

that his case is analogous to those three cases. Yet, each of those cases is distinguishable

on the facts. Not one of the cases Townes cites include facts that satisfy any of the

additional circumstances required to show constructive possession. Here, however, four

of the additional circumstances are present in the instant case. Accordingly, the State

presented sufficient evidence to support Townes’ conviction.

             Issue Two: Defendant’s Sixth Amendment Right to a Defense

       The Sixth Amendment to the Constitution of the United States, along with Article

I, Sections 12 and 13 of the Indiana Constitution, provide that a fundamental element of


       1
          See Brent v. State, 957 N.E.2d 648 (Ind. Ct. App. 2012); Chandler v. State, 816 N.E.2d 464
(Ind. Ct. App. 2004); Smith v. State, 787 N.E.2d 458 (Ind. Ct. App. 2003).
                                                 7
due process of law is the right of an accused to present witnesses in his own defense.

Those witnesses must be “free to testify without fear of governmental retaliation.”

United States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988) (quoting United States v.

Blackwell, 694 F.2d 1325, 1334 (D.C. Cir. 1982)).

       The United States Supreme Court has held that errors under the Sixth Amendment

are subject to a harmless error analysis. Brecht v. Abrahamson, 507 U.S. 617, 619

(1993). Error is deemed harmless when “there is no substantial likelihood the error

contributed to the verdict, or, in other words, that the error was unimportant.” Collins,

822 N.E.2d at 221 (quoting Bennett v. State, 787 N.E.2d 938, 944 (Ind. Ct. App. 2003)).

       The State first asserts that Townes failed to properly preserve review of this issue

by failing to object on Sixth Amendment grounds at trial. A defendant waives review of

an issue by failing to make a proper objection on appropriate grounds at trial. Robinson

v. State, 730 N.E.2d 185, 193 (Ind. Ct. App. 2000). A trial objection must state the

specific ground for objection if it is not apparent from the context. Malone v. State, 700

N.E.2d 780, 784 (Ind. 1998). Further, we prefer to resolve issues on their merits. Shane

v. Home Depot USA, Inc., 869 N.E.2d 1232, 1234 (Ind. Ct. App. 2007).

       In the instant case, the trial court stopped Wilkin’s testimony out of concern that

the witness was going to incriminate herself. Townes’ counsel then stated, “here’s what I

don’t feel comfortable with right now. The Court is not intending to do this, but you’re

now telling this witness who has been advised of her rights and wants to testify that she

might be arrested if she testifies. I don’t think that’s fair.” Tr. at 233. Though the word

“objection” is not stated by the counsel, nevertheless, it is apparent from his words and


                                            8
the context that he is stating a specific objection based on his belief that his ability to

present a defense is being jeopardized.

       The Indiana Supreme Court has held that a trial court judge may advise a witness

of her right to avoid self-incrimination; however, the judge may not do so in a threatening

or browbeating manner. Diggs v. State, 531 N.E.2d 461, 464 (Ind. 1988) (citing Webb v.

Texas 409 U.S. 95, 99 (U.S. 1972)). Furthermore, a prosecutor’s warning of criminal

charges during a personal interview with a witness improperly denies the defendant the

use of that witness’s testimony regardless of the prosecutor’s good intentions. Diggs, 531

N.E.2d at 464. A prosecutor may not prevent nor discourage a defense witness from

testifying. Id.

       In the instant case, the trial court stopped Wilkin’s testimony after she stated that

she knew there were drugs and paraphernalia in her apartment. The court advised Wilkin

that anything she said could be used against her, and, therefore, his recommendation was

for her to consult a lawyer on how to proceed. There were no threatening words or

browbeating from the court. The nearest the court came to a threat was when it stated,

“I’m afraid of what she’s going to testify to and . . . I know this detective, that he’s

probably going to turn to the prosecutor and want to take her into custody.” Tr. at 233.

That statement was neither threatening nor browbeating because, in the context of the rest

of the transcript, it is clear that the court’s concern was that Wilkin know her rights.

Further, after speaking with Wilkin several times about her rights, the trial court stated

that it was prepared to move forward with the testimony. Id. at 234.




                                             9
       The prosecutor’s statement, however, is another story and is analogous to Collins.

In Collins, the defendant also asserted that he was denied his right to call witnesses

guaranteed under the Sixth Amendment to the United State Constitution. 822 N.E.2d at

220. Wyneka Blount, the owner of the home, had told the prosecutor that she was going

to testify that the gun found on the couch where Collins had been sitting belonged to her

and that the two guns in the back room belonged to someone other than Collins. The

prosecutor told Blount that if she testified to those things, he would arrest her “the

moment she stepped off the witness stand.” Id. at 220. Blount then consulted an attorney

who advised her not to testify, and she took his advice.        On appeal, we held that the

prosecuting attorney violated Collin’s Sixth Amendment right to obtain witnesses in his

favor. Id. at 221. However, we went on to say that the prosecutor’s act was harmless

error because it was unlikely that the error contributed to the verdict. Id. at 221; see also

Shouse v. State, 849 N.E.2d 650 (Ind. Ct. App. 2006) (denying a mistrial because, even

though the deputy prosecutor intimidated a defense witness, that error was harmless

considering the overwhelming evidence of guilt).

       Here, the prosecutor said that a police officer sitting in the court-room was ready

to arrest Wilkin if she said anything incriminating in her testimony.            This could

reasonably be construed as intimidating and threatening and, thus, in violation the Sixth

Amendment. Nevertheless, we hold that any error here was harmless.

       Prior to exercising the Fifth Amendment, Wilkin testified that there were drugs in

her apartment, but they were her boyfriend’s and were located “in his room,” as opposed

to any other location in the house, such as the bathtub. Tr. at 230. Further, Sergeant


                                             10
Strausborger testified at trial that he had asked Wilkin if there was marijuana or a

baseball hat in the shower the last time she used her bathroom and she responded no. Id.

at 175. Sergeant Strausborger testified that he had asked Corbitt the same question, and

that Corbitt had stated that he had taken a shower only one hour before Townes entered

the apartment and there was no marijuana or hat in the bathtub at that time. Id. at 175.

Based on the testimony by Wilkin and Sergeant Strausborger, even if Wilkin had testified

that the drugs in the bathtub could have been her boyfriend’s, this testimony would have

been contradicted by several statements she had already made both to the jury and to

Sergeant Strausborger. Thus, we hold that any Sixth Amendment violation was harmless

error.

                                      Conclusion

         The State presented sufficient evidence to sustain Townes’ conviction for

possession of marijuana, a Class D Felony, and any error committed by the State under

the Sixth Amendment was harmless.

         Affirmed.

BAILEY, J., and BARNES, J., concur.




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