                                                                                  FILED
                                                                             Aug 08 2018, 10:10 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Jay A. Rigdon                                              Curtis T. Hill, Jr.
      Rockhill Pinnick LLP                                       Attorney General
      Warsaw, Indiana                                            Caryn N. Szyper
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Tavis Ray Crittendon,                                      August 8, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-206
              v.                                                 Appeal from the Kosciusko Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Michael W. Reed,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 43C01-1601-F6-61



      Vaidik, Chief Judge.



                                            Case Summary
[1]   Following a heroin overdose, the State charged Tavis Ray Crittendon with

      Level 6 felony possession of a narcotic drug. Following a bench trial, the trial

      judge found him guilty, reasoning that Crittendon admitted using heroin and

      Court of Appeals of Indiana | Opinion 18A-CR-206 | August 8, 2018                               Page 1 of 7
      had to possess the heroin in order to use it. Crittendon now appeals, arguing

      that he cannot be convicted of possessing the heroin he admitted consuming.

      Because this Court has already determined that a defendant can be found guilty

      of possessing the drug that was consumed (without the State having to

      introduce the drug into evidence), we affirm.



                             Facts and Procedural History
[2]   In the early-morning hours of January 25, 2016, Acacia Frye called 911 when

      she found Crittendon, her live-in boyfriend, unresponsive with blue lips.

      Acacia “immediately recognize[d] it as a [h]eroin overdose” and started

      administering CPR. Tr. p. 36.


[3]   When Deputy Christopher Francis with the Kosciusko County Sheriff’s

      Department arrived at the Warsaw house, medics were working on Crittendon.

      Crittendon, who appeared “heavily impaired,” was talking to the medics. Id. at

      14. As the medics transported Crittendon to the hospital, Deputy Francis spoke

      with Acacia because he wanted “to figure out exactly what [Crittendon] was on

      for his well-being.” Id. at 13-14. Acacia told him that there were narcotics in

      the house. Acacia then led Deputy Francis to a bedroom in the attic and lifted

      the mattress, revealing plastic baggies, a syringe, and a marijuana pipe. A

      powder in one of the bags field-tested positive for heroin. Acacia said she

      purchased the heroin the day before in South Bend. Id. at 33.




      Court of Appeals of Indiana | Opinion 18A-CR-206 | August 8, 2018         Page 2 of 7
[4]   Meanwhile, another deputy went to the hospital to speak with Crittendon. The

      interview was recorded. Crittendon told the deputy that he didn’t know about

      the items under the mattress. When the deputy asked Crittendon what

      happened, he said:


               I, uh, slipped up. Did some, well what I thought was a little bit
               of coke, some heroin. Went to sleep. Woke up to the ambulance
               being there and my girlfriend freaking out.


      Ex. 1.1 He told the deputy that he used the cocaine and heroin with an old

      friend at a gas station in Milford, a nearby town in Kosciusko County.


[5]   The State charged Crittendon with Level 6 felony possession of a narcotic

      drug.2 Crittendon filed a written waiver of his right to a jury trial (which was

      signed by both him and his attorney), see Appellant’s App. Vol. II pp. 22-23,

      and a bench trial was held.


[6]   At the bench trial, the State’s theory was that Crittendon possessed the heroin

      found under the mattress. Defense counsel’s theory was that Crittendon did not

      possess the heroin found under the mattress, that he used a different batch of

      heroin belonging to a friend, and that a person cannot be convicted of




      1
        Crittendon argues that the evidence is insufficient to prove that the drug he consumed was in fact heroin
      because he said during the interview that he “thought it was heroin.” Appellant’s Br. p. 18. As this passage
      reveals, Crittendon admitted that he used “what [he] thought was a little bit of coke” and “some heroin.”
      Thus, Crittendon expressed uncertainty to the cocaine, not the heroin.
      2
       The State also charged Crittendon with Level 6 felony possession of a syringe, but the court found him not
      guilty of that charge.

      Court of Appeals of Indiana | Opinion 18A-CR-206 | August 8, 2018                                 Page 3 of 7
      possessing a drug they consumed. The trial judge was not persuaded by defense

      counsel’s argument, finding that because Crittendon admitted to using heroin

      and that “[h]e had to possess it to consume it,” he was guilty of Level 6 felony

      possession of a narcotic drug. Tr. pp. 45, 47.


[7]   Crittendon now appeals.



                                  Discussion and Decision
[8]   Crittendon contends that he cannot be convicted of possessing the heroin he

      admitted consuming. Crittendon concedes that “[c]ase law does exist to equate

      consumption with possession”—that is, an Indiana Court of Appeals decision

      from 1974, Smith v. State, 161 Ind. App. 636, 316 N.E.2d 841 (1974), reh’g

      denied—but he claims that Smith is “no longer good law” because “it has not

      been cited in any subsequent appellate cases.” Appellant’s Br. p. 11.


[9]   Not so. This Court relied on Smith in 1991 in State v. Vorm, 570 N.E.2d 109

      (Ind. Ct. App. 1991). In Vorm, the defendant tested positive for cocaine

      metabolites during a drug screen while he was on work release and was charged

      with possession of cocaine. We said:


              Although we have not previously addressed the precise question
              at hand, whether the presence of cocaine metabolites in urine is
              prima facie evidence of possession of cocaine, our Third District,
              J. Garrard, stated in Smith v. State (1974), 161 Ind. App. 636, 316
              N.E.2d 841, 842, reh. denied:




      Court of Appeals of Indiana | Opinion 18A-CR-206 | August 8, 2018             Page 4 of 7
                        Also, although we find no Indiana decisions specifically
                        on point, it has been held that evidence showing a person
                        has a prohibited drug within his system is circumstantial
                        evidence tending to show he was in possession of the drug
                        prior to taking it. (Citation omitted).


       Vorm, 570 N.E.2d at 110. We held that evidence that a person has cocaine

       metabolites in their system is circumstantial evidence of prior possession of

       cocaine but that additional evidence is needed. Id. at 110-11. In other words,

       the presence of cocaine metabolites in a person’s system, by itself, is not enough

       to support a conviction for possession of cocaine. Because there was no

       evidence showing that Vorm knowingly or intentionally possessed cocaine, we

       reversed his conviction.


[10]   We revisited the issue in 2015 in Smart v. State, 40 N.E.3d 963 (Ind. Ct. App.

       2015), reh’g denied. In Smart, a car containing three people—Dylan Smart,

       Janelle King, and Christina Perry—was pulled over. Smart was in the front

       passenger seat, and Janelle was the driver. During the traffic stop, Smart

       moved around excessively and had constantly twitching eyes. Janelle told the

       officer that there was a syringe in the car and that it belonged to Smart. The

       officer then found two syringes behind the driver’s seat, one on the floorboard

       and the other in a backpack. Both syringes contained a brown fluid; a field test

       on one of the syringes was positive for methamphetamine or ecstasy. Smart

       denied that the backpack was his, but he admitted using “speed” (a street name

       for methamphetamine) by injecting it and that he had done so in the car. Smart

       had fresh “track marks” on his wrist.

       Court of Appeals of Indiana | Opinion 18A-CR-206 | August 8, 2018            Page 5 of 7
[11]   The State charged Smart with, among other things, Class D felony possession

       of methamphetamine. At trial, Smart testified that Janelle had offered him

       “some speed” that was already loaded into a syringe and that Janelle helped

       him inject it and then kept the syringe. Smart then admitted using meth.

       Christina also testified, and she admitted injecting the meth supplied by Janelle.


[12]   On appeal, Smart, relying on Vorm, argued that the evidence was insufficient to

       support his conviction for possessing meth. We held:


               We find Vorm distinguishable. Here, even if we do not consider
               the results of the field test, we conclude that the evidence is
               sufficient to show that Smart possessed methamphetamine.
               Unlike in Vorm, Smart, King, and Perry all admitted to injecting
               methamphetamine on the evening in question. Smart had fresh
               track marks on his arm and was exhibiting symptoms of
               methamphetamine use. Our supreme court has recently held that
               “[t]he State is not required to introduce the subject contraband to
               obtain a conviction for dealing or possession.” Helton v.
               State, 907 N.E.2d 1020, 1024 (Ind. 2009). “The identity and
               quantity of a controlled substance, and the defendant’s
               possession of or dealing in narcotics, may all be established
               through witness testimony and circumstantial
               evidence.” Id. Given the circumstantial evidence and the
               witness testimony here, we conclude that the evidence is
               sufficient to sustain Smart’s conviction for Class D felony
               possession of methamphetamine.


       Id. at 967.


[13]   Critically, Crittendon does not acknowledge either Vorm or Smart in his

       appellant’s brief. The State cites Smart in its appellee’s brief, and Crittendon did


       Court of Appeals of Indiana | Opinion 18A-CR-206 | August 8, 2018          Page 6 of 7
       not file a reply brief. Based on both Vorm and Smart, we find that the evidence

       is sufficient to support Crittendon’s conviction for possession of a narcotic drug.

       That is, Crittendon admitted using heroin shortly before waking up to medics,

       and he showed clear signs of a heroin overdose. Although Crittendon argues

       that there is a “public policy argument to be made against equating

       consumption . . . with possession” because it discourages people from seeking

       medical assistance, public-policy arguments should be made to the General

       Assembly. We therefore affirm Crittendon’s conviction for Level 6 felony

       possession of a narcotic drug.3


[14]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       3
         Crittendon also argues that there was a “fatal variance” between the charging information, which, “when
       read in conjunction with the Affidavit of Probable Cause, clearly references the heroin found in the
       bedroom,” and the judge’s actual finding that Crittendon “possessed heroin at a gas station in Milford.”
       Appellant’s Br. pp. 12-13. Crittendon, however, did not make a fatal-variance claim either before or after the
       judge announced he was finding Crittendon guilty and has therefore waived this issue. See Neff v. State, 915
       N.E.2d 1026, 1031 (Ind. Ct. App. 2009) (“As a general rule, failure to make a specific objection at trial
       waives any material variance issue.”), aff’d on reh’g, 922 N.E.2d 44 (Ind. Ct. App. 2010), trans. denied.
       Finally, Crittendon argues that he did not validly waive his right to a jury trial. He acknowledges the Indiana
       Supreme Court’s decision in Kellems v. State, 849 N.E.2d 1110 (Ind. 2006), which holds that a waiver of the
       right to a jury trial can be done either in writing or in open court, but asks us to “overrule” it and “formulate
       a black-line rule” that such a waiver can only be done in open court. Appellant’s Br. p. 18. We cannot do so.
       See Gill v. Gill, 72 N.E.3d 945, 949 (Ind. Ct. App. 2017) (explaining that it is not the role of the Indiana Court
       of Appeals to reconsider or declare invalid decisions of the Indiana Supreme Court), trans. denied.

       Court of Appeals of Indiana | Opinion 18A-CR-206 | August 8, 2018                                     Page 7 of 7
