MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Jun 29 2018, 7:46 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
O’Connor & Auersch                                       Attorney General
Indianapolis, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Quincy Hawkins,                                          June 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1710-CR-2490
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff                                       Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1508-F1-30160



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2490 | June 29, 2018             Page 1 of 6
                                                Case Summary
[1]   Quincy Hawkins appeals his conviction for level 4 felony possession of a

      narcotic drug following a jury trial. Hawkins argues that there was insufficient

      evidence to support his conviction. Finding that the evidence was sufficient, we

      affirm.


                                   Facts and Procedural History
[2]   The evidence most favorable to the verdict shows that on August 21, 2015,

      officers with the Indianapolis Metropolitan Police Department SWAT team

      executed a no-knock search warrant on Hawkins’s home. In an effort to keep

      everyone safe, the SWAT team broke a window and used a flash bang, a

      diversionary device meant to disorient the occupants of a residence, as they

      announced their presence by yelling that they had a search warrant.


[3]   The flash bang woke and frightened Hawkins and his girlfriend, Maleisha

      Robinson, who had been sleeping in the master bedroom. Fearing that his

      home was under attack, Hawkins rolled out of bed, grabbed a rifle, and began

      shooting through the bedroom window and siding of the house.1 The police did




      1
        This case offers yet another vivid illustration of the dangers of using flash bangs during search warrant
      executions. Officer safety is frequently cited as a justification for flash bang usage, but Hawkins’s startled
      (and violent) reaction to the flash bang’s explosion actually put the lives of the SWAT team members at risk.
      In Watkins v. State, our supreme court cautioned that flash bangs “should be the exception in search warrant
      executions” and that “[t]heir extraordinary degree of intrusion will in many cases make a search
      constitutionally unreasonable.” 85 N.E.3d 597, 603 (Ind. 2017). We have serious concerns about what
      appears to be an upsurge in the use of flash bangs, as well as about the standards (if any) that govern their
      use.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2490 | June 29, 2018               Page 2 of 6
      not return fire because they could not see the shooter, but continued to

      announce their presence. Hawkins laid down his weapon when he heard the

      police yelling. Robinson and two house guests exited the home, and Hawkins

      exited moments later. All the occupants were taken into custody.


[4]   The police then searched the home. In addition to finding several firearms and

      a few bongs throughout the house, the police found a plastic bag containing less

      than a gram of heroin in a bathroom shower and less than a gram of marijuana

      on the dining room floor. The police also found two white paper envelopes on

      the dresser in the master bedroom. Each envelope contained hydrocodone pills

      that weighed a combined total of 15.73 grams.


[5]   The State charged Hawkins with level 1 felony attempted murder, level 5 felony

      battery by means of a deadly weapon, level 6 felony maintaining a common

      nuisance, level 4 felony possession of a narcotic drug (hydrocodone), level 6

      felony possession of a narcotic drug (heroin), and class C misdemeanor

      possession of drug paraphernalia. At trial, Robinson claimed that she obtained

      the hydrocodone pills via a prescription that she filled at a pharmacy, and she

      subsequently separated the pills into the envelopes. The jury convicted

      Hawkins of the two possession charges and the paraphernalia charge, but found

      him not guilty on the other charges. Hawkins was sentenced to seven years.

      This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2490 | June 29, 2018   Page 3 of 6
                                      Discussion and Decision
[6]   Hawkins challenges the sufficiency of the evidence supporting his level 4 felony

      conviction. In reviewing an insufficient evidence claim, we do not reweigh the

      evidence or judge the credibility of witnesses. Bailey v. State, 907 N.E.2d 1003,

      1005 (Ind. 2009). Rather, we consider only the evidence that supports the

      judgment and the reasonable inferences arising therefrom. Id. “We will affirm

      if there is substantial evidence of probative value such that a reasonable trier of

      fact could have concluded the defendant was guilty beyond a reasonable

      doubt.” Id.


[7]   A person who knowingly possesses a narcotic drug without a valid prescription

      commits possession of a narcotic drug, a level 4 felony if the amount of the drug

      involved is at least ten but less than twenty-eight grams. Ind. Code § 35-48-4-

      6(a), -(c)(1). A person actually possesses contraband when he has “direct

      physical control over it.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). If

      actual possession cannot be proven, then a conviction for possessing

      contraband may rest on constructive possession. Id. A person constructively

      possesses contraband when he has the intent and capability to maintain

      dominion and control over it. Id. Hawkins argues that the evidence presented

      at trial does not establish that he possessed the hydrocodone. He concedes that

      he had the capability to maintain dominion and control of the hydrocodone,

      but argues that the State failed to establish the intention to do so.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2490 | June 29, 2018   Page 4 of 6
[8]   A trier of fact may infer that the intent element is satisfied based on a

      defendant’s possessory interest in the premises on which the contraband is

      found. Id. Circumstantial evidence is required to support this inference when

      the possessory interest is not exclusive. Id. Among the additional

      circumstances that will support an inference of intent to control the contraband

      are:


              (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 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. at 175. This list is not exhaustive, as other circumstances could just as

      reasonably demonstrate a defendant’s requisite knowledge. Id.


[9]   Here, the hydrocodone pills were found in envelopes on top of a dresser in the

      master bedroom. It is undisputed that Hawkins regularly slept there and that he

      was sleeping there when the raid occurred. Thus, the envelopes containing

      contraband were in immediate proximity to where Hawkins was sleeping.2 The

      presence of the bongs, marijuana, and heroin in plain view would support an

      inference that Hawkins intended to maintain dominion and control over the

      envelopes and their contents. Based on Hawkins’s knowledge that the other




      2
       On page 11 of his brief, Hawkins cites this Court’s memorandum decision in Funk v. State, No. 27A02-1601-
      CR-170 (Ind. Ct. App. Dec. 29, 2016), trans. denied (2017), in violation of Indiana Appellate Rule 65(D).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2490 | June 29, 2018           Page 5 of 6
       drugs and drug paraphernalia were in the house, the jury could reasonably infer

       that he also had knowledge of and intended to maintain dominion and control

       over the pills inside the envelopes as well. Moreover, the jury was free to

       disbelieve Robinson’s claim that the pills were hers, especially since no

       prescription was found in the home or produced at trial.


[10]   Hawkins merely invites this Court to reweigh the evidence and judge the

       credibility of the witnesses’ testimony. We must decline this invitation.

       Therefore, we affirm Hawkins’s conviction.


[11]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2490 | June 29, 2018   Page 6 of 6
