MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Dec 15 2015, 5:39 am

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                         Gregory F. Zoeller
Brownsburg, Indiana                                     Attorney General of Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Walter Havvard,                                         December 15, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1503-CR-127
        v.                                              Appeal from the Marion County
                                                        Superior Court
State of Indiana,                                       The Honorable Shatrese M.
Appellee-Plaintiff.                                     Flowers, Judge
                                                        The Honorable Peggy R. Hart,
                                                        Commissioner
                                                        Trial Court Cause No.
                                                        49G20-1006-FA-048517



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-127 | December 15, 2015     Page 1 of 10
[1]   Walter Havvard (“Havvard”) appeals his conviction, after a jury trial, for

      dealing in cocaine as a Class A felony.1 Havvard argues that there was

      insufficient evidence proving that he constructively possessed cocaine. In

      addition, he claims that the search warrant in his case was invalid and that the

      trial court committed fundamental error in allowing certain testimony.

      Concluding that sufficient evidence supported his conviction, that he failed to

      preserve his challenge to the search warrant for appeal, and that no

      fundamental error occurred, we affirm Havvard’s conviction.


[2]   We affirm.


                                                        Issues
          1. Whether sufficient evidence supports Havvard’s conviction.

          2. Whether Havvard preserved his challenge to the search warrant for
             appeal.

          3. Whether the trial court erred in admitting certain evidence.

                                                        Facts
[3]   On June 18, 2010, narcotics detectives with the Indianapolis Metropolitan

      Police Department served a search warrant at 427 West Bernard Street. A

      court issued the search warrant on June 17 after detectives had conducted two

      controlled buys at the house within the prior week. Havvard was the only

      person in the house when the officers served the warrant. Detective James


      1
       IND. CODE § 35-48-4-1(a)(2). We note that effective July 1, 2014, the legislature enacted a new dealing in
      cocaine statute and that Class A felony dealing in cocaine, in this instance, is now a Level 2 felony. Because
      Havvard committed his crimes in 2010, we will apply the statute in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-127 | December 15, 2015           Page 2 of 10
      Fiscus (“Detective Fiscus”) read Havvard a copy of the search warrant and

      advised him of his Miranda rights.


[4]   Detectives searched the kitchen and found two plastic baggies on a shelf in a

      cabinet. One of the baggies contained 7.6922 grams of cocaine, and the other

      contained 4.4152 grams of cocaine. Another baggie in the kitchen contained

      .3941 grams of cocaine. In a cabinet next to the kitchen sink, detectives located

      two Pyrex measuring cups containing cocaine residue. Havvard’s fingerprint

      was found on the measuring cups. The detectives also found over 400 grams of

      marijuana, an assault rifle, digital scales, and approximately $200 in cash.


[5]   On June 23, 2010, the State charged Havvard with Class A felony dealing in

      cocaine, Class A felony possession of cocaine, Class C felony possession of

      cocaine and a firearm, Class B felony unlawful possession of a firearm by a

      serious violent felon, Class D felony dealing in marijuana, and Class D felony

      possession of marijuana. On June 7, 2011, the State alleged that Havvard was

      an habitual offender. On November 6, 2013, Havvard filed a motion to

      suppress, which the trial court denied on November 14, 2013.


[6]   On February 11, 2014, the State added a charge of Class A felony conspiracy to

      commit dealing in cocaine and amended the possession of cocaine charge to a

      Class C felony. Havvard’s first trial was held on May 20-21, 2014 and resulted

      in a mistrial because the jury could not reach a unanimous verdict. Havvard’s

      second trial was held on November 18-19, 2014.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-127 | December 15, 2015   Page 3 of 10
[7]    During the second trial, Detective Ryan Clark (“Detective Clark”), testified as

       an expert witness and explained to the jury how the evidence recovered at 427

       Bernard was indicative of someone dealing drugs. In addition, Detective Fiscus

       testified that after reading the search warrant and being advised of his Miranda

       rights, Havvard stated that he did not want to talk to the detective and that, “He

       didn’t live there.” (Tr. 425). Havvard did not object to either detectives’

       testimony. The jury convicted Havvard as charged.


[8]    At sentencing, the State dismissed all of the charges except for the dealing in

       cocaine charge and the habitual offender enhancement. The trial court entered

       judgment of conviction on the dealing charge and sentenced Havvard to thirty

       (30) years executed. The trial court also enhanced Havvard’s sentence for

       dealing cocaine by an additional thirty (30) years for being an habitual offender,

       for an aggregate sentence of sixty (60) years executed. Havvard now appeals.


                                                   Decision
[9]    Havvard appeals his conviction for dealing in cocaine as a Class A felony. On

       appeal, he claims that: (1) there was insufficient evidence to establish that he

       constructively possessed the cocaine found in the house; (2) the search warrant

       was invalid; and (3) the trial court erred in admitting certain evidence. We

       address each of his arguments in turn.


       1. Sufficiency of the Evidence

[10]   Havvard argues that insufficient evidence supports his conviction for dealing in

       cocaine.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-127 | December 15, 2015   Page 4 of 10
               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the [jury’s verdict].
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation
       marks and citations omitted) (emphasis in original).

[11]   To convict Havvard as charged, the State was required to prove that he

       knowingly possessed cocaine in an amount greater than three (3) grams with

       the intent to deliver said cocaine. I.C. § 35-48-4-1(a)(2); (App. 10). Havvard

       was not in actual possession of the cocaine found in the house. Thus, the State

       was required to prove that Havvard constructively possessed the cocaine.

       Evidence of constructive possession is sufficient where the State proves that the

       defendant had the intent and capability to maintain dominion and control over

       the contraband. Hardister v. State, 849 N.E.2d 563, 573 (Ind. 2006).

[12]   The intent element of constructive possession is shown if the State demonstrates

       the defendant’s knowledge of the presence of the contraband. Goliday v. State,

       708 N.E.2d 4, 6 (Ind. 1999). A defendant’s knowledge may be inferred from

       either the exclusive dominion and control over the premise containing the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-127 | December 15, 2015   Page 5 of 10
       contraband, or if the control is non-exclusive, evidence of additional

       circumstances pointing to the defendant’s knowledge of the presence of

       contraband. Id. These additional circumstances may include: (1) incriminating

       statements by the defendant; (2) attempted flight or furtive gestures; (3) a drug

       manufacturing setting; (4) proximity of the defendant to the drugs; (5) drugs in

       plain view; and (6) location of the drugs in close proximity to items owned by

       the defendant. Hardister, 849 N.E.2d at 574. The capability element of

       constructive possession is met when the State shows that the defendant is able

       to reduce the controlled substance to the defendant’s personal possession.

       Goliday, 708 N.E.2d at 6.


[13]   Here, the baggies containing cocaine, the Pyrex measuring cup containing

       cocaine residue, and the digital scale support a reasonable inference that the

       house was a drug manufacturing setting. In addition, Havvard was the only

       person in the house, and his fingerprint was on one of the measuring cups.

       Thus, there is a reasonable inference that he knew the cocaine was present in

       the house and had the intent possess it. Accordingly, sufficient evidence

       supports Havvard’s constructive possession of the cocaine, and in turn, his

       dealing in cocaine conviction.


       2. Search Warrant

[14]   Next, Havvard argues that the search warrant used in his case was invalid

       because the affidavit supporting the warrant did not establish probable cause to

       search the house. However, Havvard did not preserve this argument for appeal.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-127 | December 15, 2015   Page 6 of 10
[15]   When dealing with evidence alleged to have been illegally seized, a

       contemporaneous objection at the time the evidence is introduced at trial is

       required to preserve the issue for appeal, regardless of whether a motion to

       suppress was filed. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). The

       purpose of this rule is to allow the trial judge to consider the issue in light of any

       fresh developments and also to correct errors. Jackson v. State, 735 N.E.2d 1146,

       1152 (Ind. 2000). Here, Havvard did not object when the search warrant or any

       other evidence was introduced at trial. Rather, he affirmatively stated that he

       had no objection. Accordingly, Havvard waived his ability to challenge the

       search warrant on appeal. See, e.g., Brown, 929 N.E.2d at 207 (holding that the

       defendant was not allowed to challenge admissibility of evidence on appeal

       where he affirmatively stated he had no objection to evidence offered at trial).


       3. Admissibility of Evidence

[16]   Finally, Havvard asserts that the trial court erred by allowing Detective Clark’s

       improper opinion testimony and allowing Detective Fiscus to use his post-

       Miranda silence against him. Generally, a trial court’s ruling on the

       admissibility of evidence is reviewed for an abuse of discretion. Hope v. State,

       903 N.E.2d 977, 991 (Ind. Ct. App. 2009), trans. denied. We will reverse a trial

       court’s decision only if it is clearly against the logic and effect of the facts and

       circumstances of the case. Id. Even if the decision was an abuse of discretion,

       we will not reverse if the admission of evidence constituted harmless error. Id.


[17]   We note that Havvard did not object when any of the challenged testimony was

       offered. Failure to object to evidence at trial results in waiver of the issue for

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-127 | December 15, 2015   Page 7 of 10
       appellate review unless admitting the evidence constituted fundamental error.

       Southward v. State, 957 N.E.2d 975, 978 (Ind. Ct. App. 2011). The fundamental

       error doctrine is exceedingly narrow. Id. “Fundamental error is an error that

       makes a fair trial impossible or constitutes clearly blatant violations of basic and

       elementary principles of due process presenting an undeniable and substantial

       potential for harm.” Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009).


[18]   Regarding the improper opinion testimony, Havvard claims that Detective

       Clark offered an opinion regarding Havvard’s guilt. Indiana Evidence Rule

       704(b) provides that “[w]itnesses may not testify to opinions concerning intent,

       guilt, or innocence in a criminal case; the truth or falsity of allegations; whether

       a witness has testified truthfully; or legal conclusions.” However, we have

       stated:

                 a police officer or law enforcement official who is offered and
                 qualified as an expert in the area of drugs, drug trade, drug
                 trafficking, etc., may offer testimony as to whether particular
                 facts tend to be more or less consistent with dealing in drugs.
                 However, the expert may not make conclusions as to whether the
                 defendant is a dealer or whether the defendant had the intent to
                 deal or deliver. . . . In essence, the expert may comment on the
                 facts of the case, but must refrain from making any conclusions
                 as to the defendant’s intent, guilt, or innocence.


       Scisney v. State, 690 N.E.2d 342, 346 (Ind. Ct. App. 1997), aff’d in relevant part,

       701 N.E.2d 847 (Ind. 1998).


[19]   Here, Detective Clark did what precedent allows him to do. That is, he

       commented on the facts of the case and stated that those facts were consistent
       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-127 | December 15, 2015   Page 8 of 10
       with trafficking cocaine and marijuana. Cf. Williams v. State, 48S05–1507–CR–

       424, 2015 WL 6447736 at 3–4 (Ind. Oct. 26, 2015) (holding that detective’s

       testimony was inadmissible where he stated that, “there’s zero doubt in my

       mind that that was a transaction for cocaine”). Because Detective Clark made

       no specific statements declaring Havvard’s guilt, no error, let alone

       fundamental error, occurred. See, e.g., id.


[20]   Lastly, Havvard claims that the trial court allowed Detective Fiscus to use his

       post-Miranda silence for impeachment purposes or as substantive evidence,

       violating Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976). In Doyle, the United

       States Supreme Court held that using a defendant’s post-arrest, post-Miranda

       silence to impeach an exculpatory story told for the first time at trial violates

       that defendant’s due process rights. Id. Doyle “rests on ‘the fundamental

       unfairness of implicitly assuring a suspect that his silence will not be used

       against him and then using his silence to impeach an explanation subsequently

       offered at trial.’” Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S.Ct. 634, 638

       (1986) (quoting South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 923

       (1983)).


[21]   Again, we find no error, let alone fundamental error, occurred. Here, Detective

       Fiscus testified that he read Havvard his Miranda rights, that Havvard told him

       that he did not want to talk to the detective, and that he did not live in the

       house. While Havvard claims that even mentioning his post-Miranda silence is

       error, we have held that “a jury’s knowledge that a defendant initially remained

       silent is not a problem when that knowledge is not used to subvert the defense

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-127 | December 15, 2015   Page 9 of 10
       in Doyle fashion.” Mendenhall v. State, 963 N.E.2d 553, 565 (Ind. Ct. App.

       2012), trans. denied.


[22]   To subvert Havvard’s defense in a Doyle fashion, the State would have had to

       use his silence to impeach an explanation offered by Havvard at trial. See

       Wainwright, 474 U.S. 291. However, Havvard did not testify at trial, and he

       does not call our attention to any defense offered that the State impeached with

       his silence. Accordingly, no Doyle violation occurred, and we affirm Havvard’s

       conviction.


       Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-127 | December 15, 2015   Page 10 of 10
