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 the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

P. JEFFREY SCHLESINGER                              GREGORY F. ZOELLER
Crown Point, Indiana                                Attorney General of Indiana

                                                    KARL M. SCHARNBERG
                                                    Deputy Attorney General

                                                                                  FILED
                                                    Indianapolis, Indiana

                                                                              Oct 04 2012, 9:21 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                      CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




MARCEL D. JOHNSON,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 45A05-1201-CR-28
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Diane Ross Boswell, Judge
                               Cause No. 45G03-1107-FB-64


                                         October 4, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Marcel D. Johnson appeals his convictions of Class B felony dealing in cocaine1 and

Class A misdemeanor possession of marijuana.2 He presents three issues for our review:

          1.      Whether the trial court abused its discretion when it denied Johnson’s request

                  for mistrial;

          2.      Whether Johnson’s Sixth Amendment right to confront witnesses against him

                  was violated; and

          3.      Whether the State presented sufficient evidence to convict Johnson.

We affirm.

                              FACTS AND PROCEDURAL HISTORY

          On July 25, 2011, Johnson participated in a controlled drug buy with a confidential

informant, John Grimes. While under police surveillance, Grimes contacted Johnson,

indicated he wished to purchase cocaine from Johnson, and met Johnson at a gas station.

Police gave Grimes money to purchase the cocaine, outfitted him with audio and video

recording equipment, and watched the drug transaction. Grimes approached a vehicle on the

passenger side, where Johnson was seated, had hand to hand contact with Johnson, and

returned to the officers with .22 grams of cocaine.

          Officers approached the vehicle and arrested Johnson and the driver. They found

marijuana in the passenger side seat compartment. At the police station, Johnson told

officers, “It’s all my fault, it’s me, [the driver] had nothing to do with it.” (Tr. at 74.)


1
    Ind. Code § 35-48-4-1.
2
    Ind. Code § 35-48-4-11.

                                                 2
       The State charged Johnson with Class B felony dealing in cocaine and Class A

misdemeanor possession of marijuana. A jury found Johnson guilty as charged, and the trial

court sentenced him to an aggregate sentence of twelve years incarcerated.

                             DISCUSSION AND DECISION

       1.     Denial of Mistrial

       A mistrial is an “extreme remedy that is warranted only when less severe remedies

will not satisfactorily correct the error.” Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001).

“On appeal, the trial judge’s discretion in determining whether to grant a mistrial is afforded

great deference because the judge is in the best position to gauge the surrounding

circumstances of an event and its impact on the jury.” McManus v. State, 814 N.E.2d 253,

260 (Ind. 2004), reh’g denied. “When determining whether a mistrial is warranted, we

consider whether the defendant was placed in a position of grave peril to which he should not

have been subjected; the gravity of the peril is determined by the probable persuasive effect

on the jury’s decision.” James v. State, 613 N.E.2d 15, 22 (Ind. 1993). Reversal is usually

not required if the trial court admonished the jury to disregard the complained-of statement or

conduct. Simmons v. State, 760 N.E.2d 1154, 1162 (Ind. Ct. App. 2002).

       The trial court granted Johnson’s motion in limine to exclude any reference at trial to

Johnson’s prior drug deals with Grimes. However, during trial, the following exchange

occurred between the prosecutor and Officer Smith:

       [State]:      At some point, did you have Mr. Grimes contact the person that
                     you could buy from?
       [Smith]:      Yes.
       [State]:      Okay. And did he suggest a location where the buy would
                                             3
                      occur?
       [Smith]:       Mr. Grimes had given us information that he had bought crack
                      cocaine before from several different locations from the
                      defendant.

(Tr. at 151.) Johnson immediately objected and moved for a mistrial, arguing Officer

Smith’s testimony violated the motion in limine. The trial court denied Johnson’s request

and instead admonished the jury:

       [Court]:       All right. Ladies and gentlemen, the last statement from the
                      detective is hearsay. I’m going to admonish you to disregard
                      that statement.
                      The statement about any prior contact with the confidential
                      informant and the defendant will be disregarded by you during
                      deliberations, not to be considered as any evidence in this
                      matter.

(Id. at 154-55.) Johnson argues on appeal the trial court abused its discretion when it denied

his motion for mistrial because the statement placed him “in a position of grave peril.” (Br.

of Appellant at 6.) We disagree.

       Our Indiana Supreme Court has identified a number of factors relevant to whether

striking improper testimony and admonishing the jury sufficiently cure any error:

       (1) the effect of constitutional provisions, statutes or rules relating to harmless
       error; (2) the degree of materiality of the testimony; (3) other evidence of guilt;
       (4) other evidence tending to prove the same fact; (5) other evidence that may
       cure the improper testimony; (6) possible waiver by the injured party; (7)
       whether the statement was volunteered by the witness and whether there had
       been deliberate action on the part of the prosecution to present the matter to the
       jury; (8) the penalty assessed; (9) whether or not the testimony, although
       volunteered by the witness, was in part brought out by action of the defendant
       or his counsel; (10) the existence of other errors; (11) whether the question of
       guilt is close or clear and compelling; (12) the standing and experience of the
       person giving the objectionable testimony; and (13) whether or not the
       objectionable testimony or misconduct was repeated.

                                               4
White v. State, 257 Ind. 64, 69, 272 N.E.2d 312, 314–15 (1971). We will examine a number

of these factors.

       That Grimes and Johnson had been involved in drug transactions in the past could

reasonably be inferred from the fact Grimes knew he could contact Johnson to arrange a drug

deal with him. The officer’s reference to the relationship was fleeting, and the jury was

immediately admonished not to consider the testimony for multiple reasons. Finally, the

evidence of Johnson’s guilt was strong - Johnson admitted he was involved in the crime, and

the transaction occurred in clear view of the officers. Police saw Grimes complete the

transaction on the passenger side of the vehicle, where Johnson was seated, and the money

provided for the controlled buy was found in Johnson’s possession. Therefore, we cannot

hold the trial court abused its discretion when it denied Johnson’s motion for mistrial. See,

e.g., Owens v. State, 937 N.E.2d 880, 894 (Ind. Ct. App. 2010) (violation of motion in limine

cured by admonishment and striking of statement), reh’g denied.

       2.     Sixth Amendment Rights

       The Sixth Amendment to the United States Constitution provides that “in all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him.” The Indiana Constitution expands this right to include “the right . . . to meet witnesses

face-to-face.” Ind. Const., Art. 1, § 13(a). Our Indiana Supreme Court has interpreted this

right “requires that a defendant be afforded an opportunity to conduct effective cross-

examination of the State’s witnesses in order to test their believability.” Kilpatrick v. State,

746 N.E.2d 52, 59 (Ind. 2001). Johnson argues he was denied his Sixth Amendment right to

                                               5
confront Grimes, who did not testify at Johnson’s trial. We disagree, because Grimes was

not a witness against Johnson at trial, and thus the Sixth Amendment does not apply to this

situation. See Parker v. State, 773 N.E.2d 867, 871 (Ind. Ct. App. 2002) (Parker not

deprived of right of confrontation because informant’s role was “collateral” and, as such, he

was not a witness against Parker).

       3.     Sufficiency of the Evidence

       When reviewing sufficiency of evidence to support a conviction, we consider only the

probative evidence and reasonable inferences supporting the fact-finder’s decision. Drane v.

State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not ours, to assess

witness credibility and weigh the evidence to determine whether it is sufficient to support a

conviction. Id. To preserve this structure, when we are confronted with conflicting

evidence, we consider it most favorably to the trial court’s ruling. Id. We affirm a

conviction unless no reasonable fact-finder could find the elements of the crime proven

beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome

every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference

reasonably may be drawn from it to support the trial court’s decision. Id. at 147.

              a.     Class B felony dealing in cocaine

       To prove Johnson committed Class B felony dealing in cocaine, the State must have

presented evidence that he knowingly or intentionally delivered cocaine to another person.

Ind. Code § 35-48-4-1(a). At trial, the State presented evidence Grimes called Johnson to

arrange to purchase cocaine, Johnson was present at the scene of the controlled buy, the

                                             6
controlled buy occurred on the passenger side of the vehicle where Johnson was seated,

Grimes returned to the officers’ car with cocaine, the money for the controlled buy was found

in the center console of the vehicle, and Johnson told officers, “It’s all my fault, it’s me, [the

driver] had nothing to do with it.” (Tr. at 74.) Johnson’s arguments that Grimes may have

secreted the cocaine in his buttocks and that the driver was the person selling drugs are

invitations for us to reweigh the evidence and judge the credibility of witnesses, which we

cannot do. See Drane, 867 N.E.2d at 146 (appellate court may not reweigh evidence or judge

credibility of witnesses).

               b.     Class A misdemeanor possession of marijuana

       To prove Johnson committed Class A misdemeanor possession of marijuana, the State

must have presented evidence he knowingly or intentionally possessed marijuana. Ind. Code

§ 35-48-4-11(1). Police found marijuana on the door sill of the passenger side of the vehicle

next to where Johnson had been sitting. Johnson argues the State did not prove he “exercised

control over the bag of marijuana or was aware of its presence.” (Br. of Appellant at 12.)

We disagree.

       A conviction may rest on constructive possession of contraband. Gray v. State, 957

N.E.2d 171, 174 (Ind. 2011). A person constructively possesses contraband when he has the

capability and intent to maintain dominion and control over it. Id. When, as in the instant

case, the possession of the premises in which the contraband is found is non-exclusive, the

State must demonstrate intent with evidence of additional circumstances, such as:

       (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
                                              7
       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. The State presented sufficient evidence Johnson constructively possessed the marijuana.

He was seated on the side of the vehicle where the marijuana was found, the marijuana was

in plain view, and Johnson stated the driver was not involved in the commission of the crime.

                                     CONCLUSION

       The trial court did not abuse its discretion when it denied Johnson’s motion for

mistrial based on Officer Smith’s statement in violation of the motion in limine because the

trial court properly admonished the jury not to consider the statement. Johnson’s Sixth

Amendment right to cross-examine Grimes was not violated because Grimes was not a

witness during Johnson’s trial. Finally, the State presented sufficient evidence to convict

Johnson of Class B felony dealing in cocaine and Class A misdemeanor possession of

marijuana. Accordingly, we affirm.

       Affirmed.

KIRSCH, J., and NAJAM, J., concur.




                                             8
