MEMORANDUM DECISION
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 establishing                                  FILED
the defense of res judicata, collateral                                  Oct 16 2018, 8:59 am
estoppel, or the law of the case.
                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Susan D. Rayl                                            Curtis T. Hill, Jr.
Smith Rayl Law Office, LLC                               Attorney General of Indiana
Indianapolis, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Johnny Rivers,                                           October 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-700
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jose Salinas,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G14-1606-F6-24513



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018                   Page 1 of 6
                                          Case Summary
[1]   Johnny Rivers was charged with Level 6 felony possession of a narcotic drug

      and Class A misdemeanor driving while suspended after police discovered

      heroin on the floor between the driver’s seat and the driver’s-side door of the

      vehicle Rivers owned and was driving. The trial court found him guilty as

      charged. Rivers contends that the evidence is insufficient to support the trial

      court’s finding that he constructively possessed heroin. Because we disagree,

      we affirm.



                            Facts and Procedural History
[2]   On June 22, 2016, Indianapolis Metropolitan Police Officer Joseph Kraeszig

      initiated a traffic stop after his license plate reader indicated the vehicle driven

      by Rivers was reported stolen. Rivers was accompanied by a female passenger.

      Both occupants were removed from the vehicle, and Rivers was placed into

      custody on suspicion of stealing the vehicle.


[3]   Sergeant Jeffrey Augustinovicz arrived on the scene to assist Officer Kraeszig

      and conducted a search of Rivers’s vehicle. On the floor between the driver’s

      seat and driver’s-side door, Sergeant Augustinovicz observed an unsealed

      plastic bag containing a “grayish-purplish substance” later determined to be

      0.65 grams of heroin. Tr. Vol. II p. 19. The heroin was found near a wallet and

      a cup, both of which belonged to Rivers. Rivers claimed to have owned the
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018   Page 2 of 6
      vehicle for two-and-one-half weeks prior to the traffic stop but denied having

      any knowledge of the heroin and explained that a few other persons had driven

      the vehicle since his purchase.


[4]   On June 27, 2016, the State charged Rivers with one count of Level 6 felony

      possession of a narcotic drug and one count of Class A misdemeanor driving

      while suspended. Following a bench trial held on February 14, 2018, the trial

      court found Rivers guilty as charged. The trial court sentenced Rivers to an

      aggregate sentence of 545 days of incarceration with 489 days suspended to

      probation.



                                 Discussion and Decision
[5]   Rivers contends that the State produced insufficient evidence to support his

      conviction for possession of a narcotic drug, namely, the trial court’s finding

      that he constructively possessed heroin. When reviewing the sufficiency of

      evidence to support a conviction, this court considers only probative evidence

      and reasonable inferences supporting the trial court’s decision. Young v. State,

      973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans. denied. It is the role of the

      factfinder, not this court, to assess witness credibility and weigh the evidence.

      Id. This court will affirm a conviction unless “no reasonable fact-finder could

      find the elements of the crime proven beyond a reasonable doubt.” Id.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018   Page 3 of 6
[6]   Although Rivers was not in actual possession of the heroin when it was

      discovered by officers, “a conviction for a possessory offense does not depend

      on catching a defendant red-handed.” Gray v. State, 957 N.E.2d 171, 174 (Ind.

      2011). In this case, the State sought to prove that the defendant possessed the

      drugs at a point in time other than its discovery by police, a doctrine referred to

      as constructive possession. Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App.

      2018), trans. denied. A defendant is in constructive possession of illegal drugs

      when the State demonstrates that the defendant has (i) the intent to maintain

      dominion and control over the drugs and (ii) the capability to maintain

      dominion and control over the drugs. Lampkins v. State, 682 N.E.2d 1268, 1275

      (Ind. 1997), reh’g, 685 N.E.2d 698 (Ind. 1997). A defendant’s possessory interest

      in the premises in which the drugs were found by officers is sufficient to

      establish the capability to maintain dominion and control over the drugs, even

      where the possessory interest is non-exclusive. Gray v. State, 957 N.E.2d 171,

      174 (Ind. 2011) (internal citations omitted).


[7]   When a defendant’s possessory interest of the premises is non-exclusive, the

      inference of intent to maintain dominion and control over the drugs must be

      proven by additional circumstances indicating the defendant’s knowledge of the

      nature and presence of the drugs. Lampkins at 1275. A non-exhaustive list of

      additional circumstances includes



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018   Page 4 of 6
              (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.


      Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App. 2018) (internal citations

      omitted), trans. denied. This collection of additional circumstances is not a

      balancing test with factors to be weighed but, rather, a non-exhaustive list of

      circumstances that have been found sufficient to prove constructive possession

      in certain cases. Id. at 279 n.2.

[8]   Rivers does not dispute that he had a possessory interest in the vehicle in which

      the heroin was discovered, which is sufficient to establish his capability to

      maintain dominion and control over the heroin. Although Rivers’s possessory

      interest was non-exclusive, there are additional circumstances that indicate his

      knowledge of the nature and presence of, and intent to maintain dominion and

      control of, the heroin. First is the close proximity of the heroin to Rivers. Rivers

      was driving, and the heroin was found on the floor between the driver’s seat

      and driver’s-side door. Moreover, the heroin would have been in the plain view

      of all persons as they entered the driver’s-side of the vehicle or looked down

      while sitting in the driver’s seat. Finally, Rivers admitted that the items mingled

      with the bag of heroin, i.e., a cup found in the driver’s-side door and wallet

      found in the driver’s seat, were his personal belongings. We conclude that these

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018   Page 5 of 6
      additional circumstances create a reasonable inference that Rivers had

      knowledge of the heroin and the intent to maintain dominion and control over

      it. Rivers has failed to establish that the State produced insufficient evidence to

      support the trial court’s determination that he constructively possessed the

      heroin.


[9]   The judgment of the trial court is affirmed.


      Bailey, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-700 | October 16, 2018   Page 6 of 6
