MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                       May 30 2017, 9:48 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
Alan K. Wilson                                          Curtis T. Hill, Jr.
Muncie, Indiana                                         Attorney General of Indiana

                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Reggie Thomas Johnson,                                  May 30, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A02-1607-CR-1712
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Linda Ralu Wolf,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        18C03-1412-F4-4



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1607-CR-1712 | May 30, 2017      Page 1 of 10
                                         Statement of the Case
[1]   Reggie Thomas Johnson appeals his convictions, following a jury trial, for

      dealing in cocaine, as a Level 4 felony, and possession of marijuana, as a Class

      B misdemeanor.1 He raises the following three issues on appeal:

              1.       Whether the trial court abused its discretion when it
                       admitted evidence of Johnson’s acts prior to the date
                       alleged in the charging information.


              2.       Whether the trial court abused its discretion when it
                       admitted evidence seized pursuant to an automobile
                       inventory search.


              3.       Whether the State presented sufficient evidence to support
                       Johnson’s convictions.


[2]   We affirm.


                                   Facts and Procedural History
[3]   For two weeks prior to November 10, 2014, Justin King and Megan Stephens

      rented room 135 at the Bestway Inn in Muncie and allowed Johnson to use the

      room in exchange for marijuana, prescription medications, and other

      contraband. King witnessed Johnson selling drugs out of room 135 several

      times during the two-week period. King and Stephens also allowed an

      acquaintance of Johnson’s, Alvin Jordan, to use their room to sell drugs.



      1
       Johnson does not challenge his conviction for possession of a controlled substance, as a Class A
      misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1607-CR-1712 | May 30, 2017             Page 2 of 10
[4]   During that same two-week period, Johnson’s friend Kayley Hesher picked him

      up several times in her stepfather’s black Chevrolet Tahoe and drove him places

      at his request. Hesher saw Johnson with marijuana and pills in his possession

      while he was in her car. Hesher also witnessed Johnson “hand [something] off”

      in folded pieces of paper to others when stopped. Tr. Vol. II at 129.


[5]   The Muncie Police Department (“MPD”) Narcotics Unit had been conducting

      surveillance and believed that Johnson was conducting a drug-dealing operation

      in room 135 at the Bestway Inn. On November 10, the MPD Narcotics Unit

      set up a controlled buy to take place in room 135 with Johnson as the target.

      The confidential informant (“the C.I.”) was to buy 0.10 grams of heroin from

      Johnson with $180 in marked bills. The C.I. entered room 135 and bought

      heroin from Jordan.


[6]   Immediately after the controlled buy, Hesher and Johnson arrived at the

      Bestway Inn in her black Tahoe. Hesher and Johnson went inside room 135 for

      a few minutes and then exited with Jordan. Hesher, Johnson, and Jordan

      entered the black Tahoe. Hesher drove the vehicle, Johnson sat in the front

      passenger seat, and Jordan sat in the back seat behind Hesher.


[7]   Daleville Police Department Reserve Officer John Jett assisted MPD with

      surveillance during and after the November 10 controlled buy in room 135 of

      the Bestway Inn. After the buy, Officer Jett followed the black Tahoe that

      Hesher, Johnson, and Jordan had just entered. Johnson had an active warrant




      Court of Appeals of Indiana | Memorandum Decision 18A02-1607-CR-1712 | May 30, 2017   Page 3 of 10
       out for his arrest. Accordingly, Officer Jett radioed for uniformed officers in a

       marked vehicle to stop the Tahoe, which they did.


[8]    When the police officers stopped the truck, Johnson told Hesher to “stay calm.”

       Tr. Vol. II at 136-37. Hesher then saw Johnson put money and “a baggie” in

       his pants. Id. at 137. As Officer Jett approached the passenger side of the

       vehicle, where Johnson was sitting, he smelled an odor of raw marijuana

       emanating from the vehicle. Officer Jett instructed Johnson to exit the vehicle,

       advised Johnson that he was under arrest, and did a pat-down search of

       Johnson. Officer Jett found $875—including $110 of the marked money the

       C.I. had used in the controlled buy—and Xanax pills on Johnson’s person.


[9]    Officer Jett then searched the black Tahoe. In a pocket on the back of the

       driver’s seat, Officer Jett found a plastic bag containing a green, plant-like

       substance; a white plastic bag containing a white, rock-like substance; and a

       clear plastic bag with Xanax and other prescription pills in it. Officer Jett also

       found two cellular telephones and a set of scales on the floor between the two

       back seats. Based on his training and experience, Officer Jett believed that the

       plant-like substance was marijuana and the rock-like substance was cocaine.

       Later testing confirmed that the baggies contained 57.97 grams of marijuana

       and 4.05 grams of cocaine. Officers then executed a search warrant for room

       135 and seized other contraband.


[10]   The State charged Johnson with, among other things, dealing in cocaine, as a

       Level 4 felony; possession of a controlled substance, as a Class A misdemeanor;


       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-CR-1712 | May 30, 2017   Page 4 of 10
       and possession of marijuana, as a Class B misdemeanor, based on the evidence

       seized from the Tahoe on November 10, 2014. At Johnson’s ensuing jury trial,

       the trial court admitted, over Johnson’s objection, evidence of events that

       occurred in room 135 for the two weeks prior to November 10. The jury found

       Johnson guilty of dealing in cocaine, possession of marijuana, and possession

       of a controlled substance. The trial court entered judgment of conviction and

       sentenced Johnson accordingly. This appeal ensued.


                                      Discussion and Decision
                Issue One: Admissibility of Johnson’s Acts Prior to November 10

[11]   On appeal, Johnson first asserts that the trial court abused its discretion when it

       admitted into evidence Johnson’s conduct from the hotel room prior to

       November 10, 2014. The trial court has broad discretion to rule on the

       admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We

       review such rulings for an abuse of that discretion. Id. We will reverse only

       when the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances and the error affects a party’s substantial rights. Id.


[12]   Johnson argues that his actions for the two weeks prior to November 10 were

       not intrinsic to the charged offenses. “Other acts are ‘intrinsic’ if they occur at

       the same time and under the same circumstances as the crimes charged.”

       Bennett v. State, 5 N.E.3d 498, 509 (Ind. Ct. App. 2014) (quotation marks

       omitted), trans. denied; see also Ind. Evidence Rule 404(b). Further, “evidence of

       happenings near in time and place that complete the story of the crime is


       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-CR-1712 | May 30, 2017   Page 5 of 10
       admissible even if it tends to establish the commission of other crimes not

       included among those being prosecuted.” Bennett, 5 N.E.3d at 509 (quotation

       marks and alterations omitted); see also United States v. Strong, 485 F.3d 985, 990

       (7th Cir. 2007) (“An act is ‘inextricably intertwined’ with the charged crime

       [and therefore admissible under Federal Rule of Evidence 404(b)] if it completes

       the story of the crime, creates a chronological or conceptual void in the story if

       omitted, helps to explain the circumstances surrounding the charged crime[,] or

       tends to prove an essential element of the charged crime.”).


[13]   We hold that the trial court did not abuse its discretion when it admitted the

       challenged evidence. Johnson’s two-week relationship to the hotel room at

       which the controlled buy occurred; his relationships to King, Stephens, and

       Hesher, who were all witnesses at Johnson’s trial; and Jordan’s actions at that

       same room and with those same people were all essential to the story of the

       events of November 10. As such, we affirm the trial court’s judgment on this

       issue.2


                                          Issue Two: Inventory Search

[14]   Johnson next asserts that Officer Jett’s inventory search of Hesher’s Tahoe was

       contrary to Johnson’s rights under the Fourth Amendment to the United States

       Constitution and Article 1, Section 11 of the Indiana Constitution. But we

       agree with the State that Johnson, who was merely a passenger in the Tahoe


       2
          Insofar as Johnson’s argument on appeal might be that the trial court abused its discretion when it admitted
       the challenged evidence under Indiana Evidence Rule 403, we conclude that the trial court also did not abuse
       its discretion under that Rule.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-CR-1712 | May 30, 2017               Page 6 of 10
       and had no ownership, control, possession, or interest in that vehicle, lacks

       standing under the Fourth Amendment and Article 1, Section 11 to challenge

       the officer’s search of it. See Rakas v. Illinois, 439 U.S. 128, 148-49 (1978);

       Campos v. State, 885 N.E.2d 590, 598-99 (Ind. 2008). As such, we reject

       Johnson’s challenge to Officer Jett’s inventory search of the Tahoe.


                                Issue Three: Sufficiency of the Evidence

[15]   Finally, Johnson contends that the State failed to present sufficient evidence to

       support his convictions. Our standard of review on a claim of insufficient

       evidence is well-established:

               When reviewing a claim that the evidence introduced at trial was
               insufficient to support a conviction, we consider only the
               probative evidence and reasonable inferences that support the
               trial court’s finding of guilt. Drane v. State, 867 N.E.2d 144 (Ind.
               2007). We likewise consider conflicting evidence in the light
               most favorable to the trial court’s finding. Wright v. State, 828
               N.E.2d 904 (Ind. 2005). It is therefore not necessary that the
               evidence overcome every reasonable hypothesis of innocence.
               Drane, 867 N.E.2d at 147. Instead, we will affirm the conviction
               unless no reasonable trier of fact could have found the elements
               of the crime beyond a reasonable doubt. Jenkins v. State, 726
               N.E.2d 268, 270 (Ind. 2000).


       Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011) (footnote omitted).


[16]   To convict Johnson of dealing in cocaine, as a Level 4 felony, the State was

       required to show that he possessed cocaine with the intent to deliver it. Ind.

       Code § 35-48-4-1 (2014). To prove that Johnson possessed marijuana, as a

       Class B misdemeanor, the State was required to show that he knowingly or
       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-CR-1712 | May 30, 2017   Page 7 of 10
       intentionally possessed marijuana. I.C. § 35-48-4-11. Possession can be actual

       or constructive. Here, the parties dispute only whether Johnson constructively

       possessed the contraband.


[17]   A person constructively possesses contraband 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. There is no question that Johnson

       had the capability to maintain dominion and control over the cocaine and

       marijuana inside the Tahoe, as that contraband was within his reach. Holmes v.

       State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003). Thus, we turn to whether a

       reasonable fact-finder could conclude on these facts that Johnson had the intent

       to possess that contraband.


[18]   For such issues, our ultimate question is “whether a reasonable fact-finder

       could conclude from the evidence that the defendant knew of the nature and

       presence of the contraband.” Johnson v. State, 59 N.E.3d 1071, 1074 (Ind. Ct.

       App. 2016). We have previously enumerated several nonexhaustive facts that

       the fact-finder might consider where, as here, a defendant’s possession of the

       premises in which the contraband is found is not exclusive:

               (1) incriminating statements made 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.


       Wilkerson v. State, 918 N.E.2d 458, 462 (Ind. Ct. App. 2009).
       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-CR-1712 | May 30, 2017   Page 8 of 10
[19]   We agree with the State that a reasonable fact-finder could have concluded that

       Johnson knew of the nature and presence of the contraband inside the Tahoe.

       First, with respect to the marijuana discovered inside the vehicle, Officer Jett

       testified that, as he approached the Tahoe upon initiating the traffic stop, he

       smelled the odor of raw marijuana emanating from the vehicle. That is, the

       odor of raw marijuana was strong enough to be smelled outside of the vehicle; a

       reasonable fact-finder could conclude that it must have been obvious within the

       vehicle. We conclude that this fact, in addition to the proximity of the

       marijuana to Johnson, is sufficient evidence from which a reasonable fact-finder

       could conclude that Johnson knew of the marijuana inside the vehicle.


[20]   With respect to the cocaine, the following facts most favorable to the judgment

       support the fact-finder’s conclusion that Johnson knew of its nature and

       presence inside the vehicle:


            The cocaine was within close proximity to Johnson and Jordan.
            Upon the initiation of the traffic stop, Johnson told Hesher, who was
             driving the Tahoe, to stay calm. While this is not in-and-of-itself an
             incriminating statement, a reasonable fact-finder could nonetheless infer
             from that statement that Johnson told Hesher to stay calm because he
             knew that she was nervous about the contraband inside the vehicle being
             discovered.
            Also upon the initiation of the traffic stop, Johnson made furtive
             gestures. Specifically, he placed money and Xanax pills into his pants.
            A large amount of cash—which he had shoved into his pants upon the
             initiation of the traffic stop—was found on Johnson’s person and
             included some of the C.I.’s buy money commingled with other cash.
            Jordan, who was in the back seat, had engaged the C.I. in the controlled
             buy just minutes before entering the Tahoe. Thus, a reasonable fact-
             finder could conclude that the commingling of the C.I.’s money with
       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-CR-1712 | May 30, 2017   Page 9 of 10
             Johnson’s, which, again, was found on Johnson’s person, demonstrates
             that Jordan and Johnson were acting together.3
            Xanax pills were found in a plastic baggie in the back-seat pocket along
             with the cocaine and marijuana. Again, Xanax pills were also found on
             Johnson’s person, and the fact-finder also could have reasonably
             concluded that Johnson knew of the presence and nature of the
             marijuana. Thus, the cocaine was commingled with other items over
             which the fact-finder could have reasonably concluded that Johnson had
             control, which creates a reasonable inference that Johnson also had
             control over the cocaine.
            Scales and two cell phones were discovered lying on the floor of the back
             seat of the Tahoe, in plain view of the vehicle’s occupants. As such, the
             Tahoe was comparable to a manufacturing setting.
            The evidence before the jury demonstrates that Johnson’s presence in the
             Tahoe was not incidental. Rather, his criminal activity was conducted in
             substantial part from the Tahoe.

       In sum, the evidence taken as a whole supports a reasonable inference that

       Johnson had constructive possession of the contraband in the Tahoe. Insofar as

       Johnson separately argues that the State failed to prove intent to deliver, his

       argument is merely a request to reweigh the evidence, which we will not do.

       We affirm Johnson’s convictions.


[21]   Affirmed.


       Bailey, J., and May, J., concur.




       3
          The State asserts on appeal that, even if the evidence is insufficient to support Johnson’s convictions under
       a theory of constructive possession, we must still affirm under the State’s alternative theory of accomplice
       liability, which the State argued to the jury. We need not consider the State’s alternative theory given our
       disposition, but we note that Johnson has not challenged the accomplice-liability theory on appeal.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-CR-1712 | May 30, 2017                Page 10 of 10
