                                                                         FILED
      MEMORANDUM DECISION
                                                                    Apr 28 2016, 6:52 am

      Pursuant to Ind. Appellate Rule 65(D),                             CLERK
                                                                     Indiana Supreme Court
      this Memorandum Decision shall not be                             Court of Appeals
                                                                          and Tax Court

      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
      Leanna Weissmann                                         Gregory F. Zoeller
      Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Shandell T. Willingham,                                  April 28, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A05-1507-CR-1029
              v.                                               Appeal from the Dearborn
                                                               Superior Court
      State of Indiana,                                        The Honorable Sally A.
      Appellee-Plaintiff                                       McLaughlin, Judge
                                                               Trial Court Cause No.
                                                               15D02-1502-FB-5



      Mathias, Judge.


[1]   Shandell Willingham (“Willingham”) was convicted in Dearborn Superior

      Court of Class B felony dealing in a narcotic drug, Level 4 felony dealing in a


      Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016   Page 1 of 12
      narcotic drug, Level 6 felony possession of heroin, and Level 6 felony

      maintaining a common nuisance. Willingham was also adjudicated a habitual

      offender. Willingham appeals his convictions and raises three issues, which we

      consolidate as the following two:

          I.  Whether sufficient evidence supports his convictions for heroin
              possession and dealing in heroin; and,
          II. Whether Willingham was denied a fair trial due to two instances of
              prosecutorial misconduct.

[2]   We affirm.

                                     Facts and Procedural History

[3]   In October 2014, a confidential informant provided information to Detective

      Norman Rimstidt (“Detective Rimstidt”) that a man named Shawn was dealing

      heroin in Bright, Indiana. The informant provided Detective Rimstidt with the

      heroin dealer’s cell phone number. The detective obtained a cell phone warrant

      and learned that the cell phone number was registered to Willingham. Detective

      Rimstidt also learned that the cell phone had connected to cell phone towers

      near Bright.

[4]   The detective also used Willingham’s cell phone number to search Facebook.

      The number was linked to a Facebook page for “Shawn Will.” The page had

      photos of Willingham and his girlfriend Kelly Kinnet (“Kinnet”). Thereafter,

      Detective Rimstidt obtained a second search warrant for Willingham’s cell

      phone and an arrest warrant for Willingham.



      Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016   Page 2 of 12
[5]   The warrants were executed in the early morning hours on October 10, 2014, at

      Kinnet’s residence in Bright, Indiana. Law enforcement officers entered the

      home by using a battering ram to break down the door. Willingham and Kinnet

      were arrested and removed from the home.

[6]   Because he had been sleeping, Willingham was not wearing shoes and asked an

      officer if he could have his shoes, which were in the living room. While

      retrieving the shoes, Detective Carl Pieczonka smelled the odor of marijuana

      and saw what he believed to be a marijuana cigarette and marijuana seeds.

      Therefore, the detective applied for and received a search warrant for the

      residence.

[7]   During execution of the search warrant, the officers found marijuana, rolling

      papers, hydrocodone pills, a spoon, a scale, steroids, cash, and syringes. The

      spoon and the scale, which were later tested by the State Police Lab, contained

      trace amounts of heroin. Fentanyl was also discovered on the scale. Fentanyl is

      a cutting agent used in the sale of heroin.


[8]   After obtaining Willingham’s cell phone, Detective Rimstidt observed one

      hundred and forty-seven contacts with “doglick” in the names. Detective

      Rimstidt knew that the phrase “doglick” is a reference to dealing heroin. Also,

      after searching the data and text messages on Willingham’s cell phone,

      Detective Rimstidt identified four young women who purchased heroin from




      Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016   Page 3 of 12
       Willingham.1 One of the women later admitted that she sold Willingham the

       scale that law enforcement officers found during the search of Kinnet’s

       residence. In addition, Kinnet eventually admitted that Willingham gave her

       heroin and she saw him deal heroin twice in Bright.

[9]    On February 27, 2015, Willingham was charged with Class B felony dealing in

       a narcotic drug (for acts occurring between March 1 and June 30, 2014), Level 4

       felony dealing in a narcotic drug (for acts occurring between July 1 and October

       9, 2014), Level 6 felony possession of heroin, and Level 6 felony maintaining a

       common nuisance. The State also alleged that Willingham was a habitual

       offender.

[10]   A jury trial commenced on May 12, 2015, and Willingham was convicted as

       charged. The jury also found that Willingham was a habitual offender. The

       trial court ordered Willingham to serve an aggregate sentence of forty-five

       years. Willingham now appeals.


                                              Sufficient Evidence

[11]   Willingham argues that the evidence is insufficient to prove that he possessed

       heroin and that he was dealing in heroin. When the sufficiency of evidence is

       challenged, we neither reweigh the evidence nor judge the credibility of




       1
         Emily Kage, one of the four women who testified against Willingham, was incarcerated and on house arrest
       for nearly the entire time period that Willingham was charged with dealing in heroin. Tr. p. 758. Kage
       testified that she and Willingham texted each other about purchasing heroin after her house arrest ended on
       September 30, 3014, but that she never actually obtained heroin from Willingham. Tr. p. 760.

       Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016         Page 4 of 12
       witnesses. Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing

       McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. Rather, we

       recognize the exclusive province of the trier of fact to weigh any conflicting

       evidence and we consider only the probative evidence supporting the conviction

       and the reasonable inferences to be drawn therefrom. Id. If there is substantial

       evidence of probative value from which a reasonable trier of fact could have

       drawn the conclusion that the defendant was guilty of the crime charged

       beyond a reasonable doubt, then the verdict will not be disturbed. Baumgartner

       v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).

               A. Possession


[12]   First, we address Willingham’s argument that the State failed to prove that he

       possessed heroin. While searching Kinnet’s residence, law enforcement officers

       found a spoon and a scale. These items were tested by the State Police Lab and

       found to contain trace amounts of heroin. Willingham argues that the State

       failed to prove that he had intent to possess the heroin because it was not visibly

       apparent on the scale or spoon, and both he and Kinnet had access to the items.


[13]   To prove that Willingham possessed the heroin, the State was required to prove

       that he knowingly or intentionally possessed an identifiable amount of heroin.

       See Ind. Code § 35-48-4-6; see also Beeler v. State, 807 N.E.2d 789, 792 (Ind. Ct.

       App. 2004) (requiring that the State prove the defendant possessed an

       identifiable amount of the illegal drug), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016   Page 5 of 12
[14]   It is well settled that a possession conviction may rest upon proof of either

       actual or constructive possession. Gray v. State, 957 N.E.2d 171, 174 (Ind.

       2011). A defendant constructively possesses an item when he has both the

       capability and the intent to maintain dominion and control over it. Id. Proof of

       a possessory interest in the premises where the item is found satisfies the

       capability prong, regardless of whether possession of the premises is exclusive.

       Gee v. State, 810 N.E.2d 338, 340-41 (Ind. 2004).


[15]   As for the intent prong, if a defendant’s possession of the premises is non-

       exclusive, the inference of intent to maintain dominion and control must be

       supported by additional circumstances pointing to the defendant’s knowledge of

       the nature of the item and its presence. Id. at 341. Recognized “additional

       circumstances” include: (1) incriminating statements; (2) attempted flight or

       furtive gestures; (3) a setting that suggests drug manufacturing; (4) the proximity

       of the item to the defendant; (5) whether the item was found in plain view; and

       (6) the mingling of the item with other items the defendant owns. Id.


[16]   Both Kinnet and Willingham lived at the residence in Bright, Indiana from

       June 2014 to October 2014. Kinnet testified that Willingham gave her heroin

       and they used it daily. Tr. pp. 438-39. She admitted that the spoon containing

       the heroin residue that was found in the master bedroom belonged to her.

       However, she stated that the scale found in the kitchen drawer containing

       heroin residue belonged to Willingham. Tr. p. 444. The scale also contained

       fentanyl, which is a diluting agent used in the sale of heroin.



       Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016   Page 6 of 12
[17]   Shay Richardson (“Richardson”) testified that she purchased heroin from

       Willingham and brought her own scales to weigh the heroin she bought.

       Willingham asked to buy her scales, and she sold them to him for twenty

       dollars. Tr. p. 668. The scales were new and still in the box. Richardson testified

       that the scales she sold to Willingham were the same scales that the law

       enforcement officers found in his home.

[18]   This evidence is sufficient to prove that Willingham owned the scales, used

       them to weigh heroin, and that he constructively possessed the heroin residue

       found on the scales. Willingham’s argument that Richardson’s testimony

       “cannot be trusted” is merely an invitation to reweigh the evidence and

       credibility of the witnesses, which our court will not do.

               B. Dealing


[19]   Next, we consider whether the State presented sufficient evidence that

       Willingham committed dealing in heroin. See I.C. § 35-48-4-1 (“A person who[]

       knowingly or intentionally . . . delivers . . . a narcotic drug, pure or adulterated,

       . . . commits dealing in . . . a narcotic drug[.]”). Detective Rimstidt analyzed the

       data on Willingham’s cell phone and found one hundred and forty-seven

       contacts with “doglick” in the names. The phrase “doglick” is a reference to

       dealing heroin.

[20]   After reviewing the cell phone data and text messages, Detective Rimstidt

       identified four young women who purchased heroin from Willingham. At trial,

       three of the four women testified that they purchased heroin from Willlingham.

       Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016   Page 7 of 12
       Tr. pp. 631-32, 707-09, 741, 744-45. Kinnet testified that she saw Willingham

       selling heroin on at least two occasions. Tr. pp. 463-71.

[21]   Finally, law enforcement officers found items in Willingham’s home that are

       indicative of dealing in heroin. These items include the scales, and baggies and

       cellophane wrappers, which are used in packaging heroin.


[22]   In his brief, Willingham challenges the credibility of these witnesses and their

       ability to remember the events about which they testified. Willingham’s

       argument on appeal is merely a request to reweigh the evidence and credibility

       of these witnesses, which our court will not do. Under these facts and

       circumstances, we conclude that the State presented sufficient evidence to prove

       that Willingham committed dealing in heroin.


                                        Prosecutorial Misconduct

[23]   Willingham also argues that he was denied a fair trial due to two instances of

       prosecutorial misconduct. When we review a properly preserved claim of

       prosecutorial misconduct, “we determine (1) whether misconduct occurred, and

       if so, (2) ‘whether the misconduct, under all of the circumstances, placed the

       defendant in a position of grave peril to which he or she would not have been

       subjected’ otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citations

       omitted).

[24]   Willingham concedes that he failed to preserve the claims of prosecutorial

       misconduct he raises in this appeal.



       Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016   Page 8 of 12
               Our standard of review is different where a claim of prosecutorial
               misconduct has been procedurally defaulted for failure to
               properly raise the claim in the trial court, that is, waived for
               failure to preserve the claim of error. The defendant must
               establish not only the grounds for prosecutorial misconduct but
               must also establish that the prosecutorial misconduct constituted
               fundamental error. Fundamental error is an extremely narrow
               exception to the waiver rule where the defendant faces the heavy
               burden of showing that the alleged errors are so prejudicial to the
               defendant's rights as to “make a fair trial impossible.” In other
               words, to establish fundamental error, the defendant must show
               that, under the circumstances, the trial judge erred in not sua
               sponte raising the issue because alleged errors (a) “constitute
               clearly blatant violations of basic and elementary principles of
               due process” and (b) “present an undeniable and substantial
               potential for harm.” The element of such harm is not established
               by the fact of ultimate conviction but rather “depends upon
               whether [the defendant’s] right to a fair trial was detrimentally
               affected by the denial of procedural opportunities for the
               ascertainment of truth to which he otherwise would have been
               entitled.” In evaluating the issue of fundamental error, our task in
               this case is to look at the alleged misconduct in the context of all
               that happened and all relevant information given to the jury—
               including evidence admitted at trial, closing argument, and jury
               instructions—to determine whether the misconduct had such an
               undeniable and substantial effect on the jury’s decision that a fair trial
               was impossible.


       Id. at 667-68 (internal citations omitted and emphasis in original).


[25]   First, Willingham argues that the State engaged in prosecutorial misconduct

       during closing argument by “emphasizing the dangers inherent in the drug

       trade” to the jury. Appellant’s Br. at 20. Specifically, the prosecutor argued:



       Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016   Page 9 of 12
               . . . what’s this case really, really about. Is it about him or is it
               about what people like him are doing to our community? How
               do sixteen (16) year old kids, eighteen (18) year old kids, twenty
               (20) year old kids get addicted to heroin? It’s because people do
               what he did, what we’ve proven he did.


       Tr. p. 904.

[26]   We agree with Willingham that it is “misconduct for a prosecutor to request the

       jury to convict a defendant for any reason other than his guilt” or “to phrase

       final argument in a manner calculated to inflame the passions or prejudice of

       the jury.” See Neville v. State, 976 N.E.2d 1252, 1264 (Ind. Ct. App. 2012), trans.

       denied (citations omitted). No evidence indicated Willingham sold heroin to a

       sixteen-year-old, and the prosecutor’s argument urged the jury to consider the

       damage heroin has done to the community. For these reasons, the prosecutor’s

       comments were improper.


[27]   However, the statements were fleeting, and the State’s closing argument

       consists primarily of a recitation of the evidence admitted at trial. Moreover, the

       jury was twice instructed that the attorneys’ statements “are not evidence.”

       Appellant’s App. pp. 284; 314. For these reasons, and considering the

       overwhelming evidence of Willingham’s guilt admitted at trial and discussed

       above, we cannot conclude that the prosecutor’s misconduct had such an

       undeniable and substantial effect on the jury's decision that Willingham was

       denied a fair trial. See e.g. Jerden v. State, 37 N.E.3d 494, 500 (Ind. Ct. App.

       2015) (citing Coleman v. State, 750 N.E.2d 370, 375 (Ind. 2001) (“Where there is



       Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016   Page 10 of 12
       overwhelming independent evidence of a defendant’s guilt, error made by a

       prosecutor during the closing argument is harmless.”)).

[28]   Finally, Willingham argues that the State engaged in prosecutorial misconduct

       by eliciting testimony from State Trooper Joe Livers (“Trooper Livers”)

       concerning the manner in which the arrest warrant was executed. Specifically, a

       SWAT team assisted in executing the warrant in the early morning hours.

       Trooper Livers testified that a battering ram was used to knock down Kinnet’s

       front door, and then the officers used a flash bang explosive inside the residence

       as a distraction device. The State also elicited testimony that SWAT teams are

       “typically requested to come out and serve high risk warrants, um, active

       shooter situations, anybody with a gun, um pretty high risk stuff.” Tr. pp. 315-

       16.


[29]   We agree with Willingham that the evidence of the extreme measures taken to

       execute the arrest warrant, and particularly why law enforcement officers

       generally use such methods, was not relevant to whether he possessed heroin

       and was dealing in heroin.2 However, in the context of the trial, the evidence

       admitted concerning execution of the arrest warrant was fleeting. From the

       evidence admitted at trial, the jury could also logically infer that Willingham

       was not dangerous and he was compliant with the officers who executed the




       2
        The State argues that Willingham’s counsel “first informed the jury that a flash bang device was used
       during execution of the first search warrant[.]” Appellee’s Br. at 13. However, in its opening statement, the
       State told the jury that Trooper Livers would testify that a flash bang device was used “to provide a
       distraction in the residence in order to affect a safe arrest.” Tr. p. 266.

       Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016             Page 11 of 12
       arrest warrant. Finally, as we noted above, the State presented substantial

       evidence of Willingham’s guilt. For all of these reasons, we conclude that

       Willingham has not established that the alleged error was so prejudicial that

       Willingham was denied a fair trial.

                                                  Conclusion

[30]   The State presented sufficient evidence to prove that Willingham possessed

       heroin and committed dealing in heroin. Although prosecutorial misconduct

       occurred during trial, Willingham has not established that the error was so

       prejudicial that he was denied a fair trial.


[31]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1507-CR-1029 | April 28, 2016   Page 12 of 12
