FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

BART M. BETTEAU.                              GREGORY F. ZOELLER
Betteau Law Office, LLC                       Attorney General of Indiana
New Albany, Indiana
                                              IAN MCLEAN
                                              Deputy Attorney General
                                              Indianapolis, Indiana

                                                                            FILED
                                                                        Mar 15 2012, 9:09 am
                              IN THE
                   COURT OF APPEALS OF INDIANA                                  CLERK
                                                                              of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




CANON HARPER,                                 )
                                              )
      Appellant- Defendant,                   )
                                              )
             vs.                              )      No. 10A01-1012-CR-687
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee- Plaintiff,                    )


                    APPEAL FROM THE CLARK SUPERIOR COURT
                        The Honorable Jerome F. Jacobi, Judge
                           Cause No. 10D02-0811-FA-378




                                    March 15, 2012



                              OPINION - FOR PUBLICATION




ROBB, Chief Judge
                                         Case Summary and Issues

       Canon Harper was charged with dealing in cocaine, possession of cocaine, dealing

in a narcotic drug, and possession of a narcotic drug, all Class A felonies; two counts of

resisting law enforcement, battery of a law enforcement officer, and possession of

paraphernalia, all Class A misdemeanors; and maintaining a common nuisance, a Class D

felony. Prior to trial, Harper filed a motion to suppress evidence, and the trial court

denied his motion. Harper filed an interlocutory appeal, and this court affirmed the trial

court‟s denial of Harper‟s motion to suppress.1 A jury found Harper guilty on all counts.

He raises several issues which we combine and restate as: 1) whether the trial court erred

in admitting evidence seized from a law enforcement search; 2) whether the evidence is

sufficient to support his possession convictions; and 3) whether the trial court‟s

circumstantial evidence instruction constitutes fundamental error. Concluding the trial

court did not err in admitting evidence, the evidence is sufficient to support his

possession convictions, and the circumstantial evidence instruction did not give rise to

fundamental error, we affirm.

                                        Facts and Procedural History

       In November of 2008, Officer Jones and Officer Herrod of the Clark County

Sheriff‟s Department noticed a vehicle without a license plate light. Before the officers

could conduct a traffic stop, the vehicle pulled into the parking lot of a Bel-Air Motel and

parked, so the officers followed and parked in the parking lot. Two men exited the

vehicle. The passenger, Adrian Porch, was approaching a motel room, room 120, while

carrying a bag that appeared to be a purse. The driver, Harper, stood near the driver‟s

       1
           Harper v. State, 922 N.E.2d 75 (Ind. Ct. App. 2010), trans. denied.
                                                          2
door of the vehicle. Before Porch could enter the motel room, a woman inside, Chanel

Brown, slammed the room door. Officer Jones asked Porch to return to the vehicle,

grabbed the purse from him, and placed it on the hood of the vehicle. Officer Jones

informed Harper of the reason he pulled in behind him, and Harper started his vehicle to

check his license plate light.

        Officer Jones asked Porch if he would consent to a search of his person, and Porch

consented. Officer Jones then asked Porch and Harper who owned the purse, and both

men responded they did not own it. Harper then stated an ex-girlfriend left it in his

vehicle. Officer Jones asked if he could search the purse, and both men consented.

Officer Jones opened the purse and discovered forty-eight grams of cocaine, thirty grams

of heroin, scales, razor blades, and aluminum foil. Officer Jones placed Porch under

arrest, and Officer Herrod attempted to place Harper under arrest. During his attempt,

Harper physically resisted and forced Officer Herrod against the wall of the motel.

Officer Herrod struck his head against the wall, and Harper began to flee on foot. He was

apprehended before he could leave the parking lot.

        Other officers then arrived, including Officer Mobley, who discussed the incident

with the motel‟s manager. They discovered Harper had rented the motel room. Soon

after, the manager terminated the rental of the room,2 ordered its inhabitants to leave, and

gave officers consent to search the room.                 Inside the motel room, Officer Mobley

discovered approximately three grams of heroin and a coffee grinder, blender, razor

blade, and flour sifter. Harper was charged with dealing in cocaine, possession of


        2
          The parties entered agreed stipulations, one of which was the fact that the motel manager evicted the
occupants of Harper‟s room after Harper‟s arrest.
                                                      3
cocaine, dealing in a narcotic drug, and possession of a narcotic drug, all Class A

felonies; two counts of resisting law enforcement, battery of a law enforcement officer,

and possession of paraphernalia, all Class A misdemeanors; and maintaining a common

nuisance, a Class D felony. He was sentenced to an aggregate term of forty years in

prison. Additional facts will be supplied as necessary.

                                 Discussion and Decision

                                I. Admission of Evidence

                                 A. Standard of Review

       Trial courts have broad discretion regarding the admissibility of evidence. Kelley

v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). We therefore only reverse a trial

court‟s ruling on the admissibility of evidence when the trial court abused its discretion.

Id. An abuse of discretion occurs when a decision is clearly against the logic and effect

of the facts and circumstances before the court. Id.

                                  B. Search of the Purse

       In response to Harper‟s argument that the warrantless search of the purse was

unreasonable and in violation of Article 1, section 11 of the Indiana Constitution, the

State contends the law of the case doctrine applies and any new argument by Harper is

waived. “The law of the case doctrine mandates that an appellate court‟s determination

of a legal issue binds the trial court and ordinarily restricts the court on appeal in any

subsequent appeal involving the same case and relevantly similar facts.” Hopkins v.

State, 782 N.E.2d 988, 990 (Ind. 2003). A court may revisit its own prior decisions or

those of a coordinate court, but courts should generally shy away from such review

unless the initial decision was clearly erroneous and would work manifest injustice. Id.
                                             4
      After the trial court denied Harper‟s pre-trial motion to suppress evidence found in

the purse seized from Porch, Harper and Porch appealed to this court, arguing the

admission of such evidence violated both the Fourth Amendment of the United States

Constitution and Article 1, Section 11 of the Indiana Constitution. We affirmed the trial

court‟s denial, concluding neither Constitutional provision was violated because Harper

and Porch consented to Officer Jones‟ search of the purse. Harper v. State, 922 N.E.2d

75, 80-82 (Ind. Ct. App. 2010), trans. denied. Harper now asks us to once again review

whether the admission of evidence from the purse violates Article 1, Section 11 of the

Indiana Constitution. To determine the reasonableness of a search and seizure under

Article 1, Section 11 of the Indiana Constitution, we balance: “(1) the degree of concern,

suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion the

method of the search or seizure imposes on the citizen‟s ordinary activities; and (3) the

extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).

      Our prior decision in this case was not clearly erroneous. We concluded that

although the search of the purse was not reasonable, an exception to the search warrant

requirement arose because both Porch and Harper verbally consented to the search of the

purse. Harper, 922 N.E.2d at 81. The record substantiates the conclusion that the men

consented. Thus, the law of the case doctrine applies; the trial court did not err in

admitting evidence seized from the search of the purse.

                             C. Search of the Motel Room

      Harper next argues the trial court erred in admitting evidence from the motel room

because the search of the motel room violated Article 1, Section 11 of the Indiana

Constitution. This issue was not discussed in our prior opinion for this case. We have
                                            5
previously held that a hotel room is a “home” for purposes of Article 1, Section 11 of the

Indiana Constitution.   Willis v. State, 780 N.E.2d 423, 428 (Ind. Ct. App. 2002).

However, we need not conduct the balancing test for an Article 1, Section 11

determination because the manager of the motel evicted Harper immediately upon his

arrest and then gave officers permission to search the room. Even if a search were

unreasonable under Litchfield, it would not violate Article 1, Section 11 of the Indiana

Constitution if the owner of the property gives voluntary consent to police officers to

search the property. See Melton v. State, 705 N.E.2d 564, 566 (Ind. Ct. App. 1999)

(stating “when an individual gives the State permission to search either his person or

property, the governmental intrusion is presumably reasonable”). Thus, the evidence

seized from the motel room was properly admitted.

                             II. Sufficiency of the Evidence

                                 A. Standard of Review

      Our standard of reviewing claims of sufficiency of the evidence is well settled.

We consider only the probative evidence and reasonable inferences supporting the

verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We do

not reweigh the evidence or assess witness credibility. Id. We consider conflicting

evidence most favorably to the trial court‟s ruling, and we will affirm the conviction

unless no reasonable trier of fact could find the elements of the crime proven beyond a

reasonable doubt. Id. The evidence is sufficient if an inference may reasonably be drawn

from it to support the verdict, and a conviction may be based on circumstantial evidence

alone. Id.

                         B. Possession and Dealing Convictions
                                            6
         Harper argues insufficient evidence exists to support his convictions for dealing in

cocaine, dealing in a narcotic, possession of cocaine, possession of a narcotic, and

possession of paraphernalia.3 Although Harper did not physically possess any of the

contraband, an accused may be convicted of possession charges based upon constructive

possession. White v. State, 772 N.E.2d 408, 413 (Ind. 2002). “Constructive possession

will support a possession conviction if the State shows that the defendant had both the

capability and the intent to maintain dominion and control over the contraband.” Id. A

defendant‟s intent and ability to maintain dominion and control over contraband can be

inferred from the mere fact that the defendant had a possessory interest in the premises on

which the contraband was found. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). But if

the possessory interest is not exclusive, additional circumstances must exist to show a

defendant‟s intent to maintain dominion and control. Id. at 175. Our supreme court

identified a non-exhaustive list of circumstances to consider:

         (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.

         As to Harper‟s convictions, he argues the evidence is insufficient to establish that

he had the intent or ability to control the contraband both from the purse and the motel

room. Harper acknowledges his possessory interests in the vehicle and motel room.

         3
           Indiana Code section 35-48-4-1 provides the elements for the crimes of dealing in cocaine or a narcotic
drug. The State must show the defendant knowingly or intentionally manufactures, finances the manufacture of,
delivers, or finances the delivery of cocaine or a narcotic drug, or that he possessed cocaine or a narcotic drug with
the intent to take one of those actions. Here, because the State‟s case proceeded under the theory that Harper
possessed such contraband with the intent to take one of those actions, establishing that the defendant possessed or
constructively possessed cocaine or a narcotic drug is a prerequisite to conviction.
                                                          7
With respect to contraband discovered in the purse, however, he argues the possessory

interest rule does not apply if the contraband is under the direct control of a guest on the

person‟s premises, citing Crowder v. State, 398 N.E.2d 1352 (Ind. Ct. App. 1980) for

support. In Crowder, this court concluded Crowder did not have constructive possession

of marijuana where a passenger in his car possessed marijuana in his pocket. Id. at 1355.

         Unlike Crowder, where the passenger of the vehicle possessed the contraband

directly on his person, here the contraband was not on Porch‟s person. Rather, the

contraband was in a purse removed from Harper‟s vehicle. Further, although both men

denied ownership of the purse, Harper claimed it belonged to an ex-girlfriend. Despite

the fact that Porch carried the purse when getting out of the vehicle, it was not Porch‟s

purse.     Harper‟s possessory interest in the vehicle is sufficient to establish his

constructive possession of the purse.

         With respect to contraband discovered in the motel, Harper contends the

possessory interest rule does not apply to possession of a premises where the possession

is non-exclusive, citing Pier v. State, 400 N.E.2d 209 (Ind. Ct. App. 1980) for support. In

Pier, this court concluded that because the defendant had been absent from his premises

for forty-eight hours prior to the time marijuana was found on said premises and because

other persons had access to the premises during that time, the evidence was insufficient to

support a finding of constructive possession. Id. at 212. Unlike Pier, however, where the

evidence established the defendant had been absent from his premises for forty-eight

hours prior to when contraband was found, here, the evidence demonstrates otherwise.

Harper checked into the motel room on November 11, 2008. Police officers discovered

the contraband in the motel room later the same day. Further, despite Harper‟s absence
                                             8
from the motel room when police officers arrived, Harper was in the act of returning to

the motel room with additional contraband. The possessory interest rule still applies, and

thus, the evidence sufficiently demonstrates Harper had constructive possession of the

contraband discovered in the motel room.

                     C. Maintaining a Common Nuisance Conviction

        Harper next argues insufficient evidence exists to support his conviction for

maintaining a common nuisance. To convict Harper of maintaining a common nuisance,

the State was required to prove beyond a reasonable doubt that Harper “knowingly or

intentionally maintain[ed] a building, structure, vehicle, or other place that [was] used

one (1) or more times: . . . for unlawfully: (A) manufacturing; (B) keeping; (C) offering

for sale; (D) selling; (E) delivering; or (F) financing the delivery of; controlled

substances, or items of drug paraphernalia . . . .” Ind. Code § 35-48-4-13(b).

        As discussed above, sufficient evidence was presented for the finder of fact to

conclude Harper intended to maintain dominion or control of the contraband located both

in the purse and the motel room. Further, the evidence revealed Porch and Harper were

taking contraband to the motel room in Harper‟s vehicle and that contraband was being

kept in Harper‟s motel room. The evidence supporting a conviction for maintaining a

common nuisance was sufficient for a finder of fact to convict Harper of the offense for

either the contraband delivered in the vehicle or the separate contraband kept in the motel

room.

                                    III. Jury Instructions

        Harper argues, for the first time, that the trial court erred in instructing the jury

regarding circumstantial evidence. “Instructing the jury lies within the sole discretion of
                                              9
the trial court, and considering the instructions as a whole and in reference to each other,

we will not reverse an abuse of that discretion unless the instructions as a whole mislead

the jury as to the law in the case.” Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002)

(citing Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind. 1996)). Usually, failure to object

to an instruction in a timely fashion results in the waiver of a challenge to the instruction

upon appeal. Sanders v. State, 764 N.E.2d 705, 710 (Ind. Ct. App. 2002), trans. denied,

cert. denied, 537 U.S. 916 (2002). However, waiver does not apply if the instruction

constituted fundamental error. Id. Fundamental error occurs only if the error was so

prejudicial to the rights of the appellant that he could not have had a fair trial. Id. at 710-

11. “To rise to the level of fundamental error, the error must constitute a blatant violation

of basic principles, the harm or potential for harm must be substantial, and the resulting

error must deny the defendant fundamental due process.” Maul v. State, 731 N.E.2d 438,

440 (Ind. 2000) (quotation and citation omitted).

       Harper now objects, for the first time, to Final Instruction 7:

       Direct evidence means evidence that directly proves a fact, without an
       inference, and which in itself, if true, conclusively establishes that fact.
       Circumstantial evidence means evidence that proves a fact from which an
       inference of the existence of another fact may be drawn.
       An inference is a deduction of fact that may logically and reasonably be
       drawn from another fact or group of facts.
       It is NOT necessary that facts be proved by direct evidence. Both direct
       evidence and circumstantial evidence are acceptable as a means of proof.
       Neither is necessarily entitled to any greater weight than the other. You
       should give the greatest weight to the evidence which convinces you most
       strongly of its truthfulness. There is no requirement that the State present
       direct evidence. Furthermore, a guilty verdict may be supported by
       circumstantial evidence if it is sufficient to convince you beyond a
       reasonable doubt of guilt.

Appendix of Appellant at 214 (emphasis in original).

                                              10
       Harper raises several arguments regarding Final Instruction 7. First, he argues the

capitalization of the word “not” in the last paragraph “unfairly stresses that direct

evidence is not necessary for conviction.” Brief of Appellant at 33. Second, he argues

the statement “[n]either [direct nor circumstantial evidence] is necessarily entitled to any

greater weight than the other” is incorrect. Id. Last, he contends an instruction regarding

circumstantial evidence is in error if it does not include language stating “where proof of

guilt is by circumstantial evidence only, it must be so conclusive and point so

convincingly to the guilt of the Accused that the evidence excludes every reasonable

theory of innocence.” Id.

       We cannot say Final Instruction 7 constitutes fundamental error. First, even if

capitalizing the word “not” gives it emphasis, it does not change the meaning of the

sentence. The meaning of the sentence is not in error, and we cannot say that this added

emphasis resulted in an unfair trial. Second, Harper‟s argument about the statement

concerning weight given to direct and circumstantial evidence is incorrect. In Samuels v.

State, 505 N.E.2d 120, 124 (Ind. Ct. App. 1987), this court analyzed a portion of a jury

instruction almost identical to the last paragraph in Final Instruction 7 and concluded it

was not in error. We noted “[i]t is axiomatic that instructions which imply a particular

perspective on matters of evidentiary weight and credibility invade the province of the

jury” and that “[t]he instruction may well be drafted more clearly to inform the jury that

neither type [of] evidence is necessarily entitled to more weight than the other. However,

there was no error in giving the instruction, particularly when it was given with an

instruction which bound the jury to link weight with persuasiveness as to truth.” Id.


                                            11
(emphasis in original). Final Instruction 7 is not in error. It properly assigns the role of

determining evidentiary weight to the jury.

       Last, regarding Harper‟s claim that an instruction stating the need for

circumstantial evidence to exclude every “reasonable theory of innocence” should have

been included, our supreme court recently reformulated our position on the use and

language of this instruction. In Hampton v. State, 961 N.E.2d 480, 490 (Ind. 2012), our

supreme court concluded “when the trial court determines that the defendant‟s conduct

required for the commission of a charged offense, the actus reus, is established by

circumstantial evidence, the jury should be instructed” with a requirement that proof “be

so conclusive and sure as to exclude every reasonable theory of innocence.” Id. at 491.

In formulating this position, the court reasoned that requiring the instruction in cases

where there is any direct evidence of the fact that a criminal offense has occurred would

result in the instruction rarely being used, and requiring the instruction in cases where

direct evidence is lacking for any single element would necessitate the instruction‟s use

in almost all criminal cases because mens rea is often shown only by circumstantial

evidence. Id. at 490-91. Thus, the court required the instruction‟s use when the trial

court determines that the actus reus of a crime was established only by circumstantial

evidence. Id. at 491.

       “Direct evidence is „[e]vidence that is based on personal knowledge or observation

and that, if true, proves a fact without inference or presumption.‟            Conversely,

circumstantial evidence is „[e]vidence based on inference and not on personal knowledge

or observation.‟” Id. at 489 (quoting Black‟s Law Dictionary 636 (9th ed. 2009)). Here,

the actus reus of each conviction was established by direct evidence, at least in part. As
                                              12
to Harper‟s possession, dealing, and maintaining a common nuisance convictions, as

discussed above, the State relied upon the theory of constructive possession in proving its

case, which necessitates a showing that the accused have the capability and intent to

maintain dominion and control over the contraband. The direct evidence presented

included evidence of Harper‟s possessory interest in both the vehicle and motel room,

which is sufficient to establish his constructive possession of the contraband, the actus

reus of his possession and dealing convictions, and sufficient to establish Harper

maintained a vehicle or other place at least once for the purpose of keeping, selling, or

delivering controlled substances or items of paraphernalia, the actus reus of his

maintaining a common nuisance conviction. As to Harper‟s resisting law enforcement

and battery of a law enforcement officer convictions, Officer Jones testified that he

observed Harper resist Officer Herrod‟s attempt to place him under arrest and the fight

that ensued, during which Officer Herrod hit his head against the wall of the motel. This

is direct evidence of the actus reus of Harper‟s convictions for resisting law enforcement

and battery of a law enforcement officer. Thus, pursuant to Hampton, an instruction

requiring the exclusion of every reasonable theory of innocence was not necessary.

Further, Final Instruction 7 did not prevent Harper from having a fair trial and therefore

does not constitute fundamental error.

                                         Conclusion

       The trial court did not abuse its discretion in admitting evidence from the purse or

motel room, the evidence is sufficient to support Harper‟s convictions, and Final

Instruction 7 does not constitute fundamental error.       We therefore affirm Harper‟s

convictions.
                                            13
      Affirmed.

NAJAM, J., and VAIDIK, J., concur.




                                     14
