MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Jan 11 2018, 8:50 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Frederick Vaiana                                         Curtis T. Hill, Jr.
Voyles Vaiana Lukemeyer Baldwin &                        Attorney General of Indiana
Webb
                                                         Caryn N. Szyper
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christian Burt,                                          January 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1708-CR-1793
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1607-F4-27134



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1793 | January 11, 2018           Page 1 of 8
                                               Case Summary
[1]   Christian Burt (“Burt”) appeals his convictions, following a jury trial, for

      dealing in cocaine, as a Level 2 felony,1 and dealing in a narcotic, as a Level 2

      felony.2 On appeal he raises the sole issue of whether the State presented

      sufficient evidence to support those convictions. We affirm.



                                 Facts and Procedural History
[2]   On the afternoon of July 13, 2016, Detective Eric Forestal (“Det. Forestal”), an

      undercover detective with the Indianapolis Metropolitan Police Department

      (“IMPD”), was conducting surveillance. He observed a man, later identified as

      Burt, exit an apartment building with an open beer bottle in his hand and walk

      towards a white Cadillac in the parking lot. Det. Forestal saw Burt open the

      trunk of the vehicle, pull back the liner, and place a semi-automatic handgun in

      the trunk. Burt then moved the trunk liner back in place and drove away in the

      vehicle. Det. Forestal followed Burt in his undercover vehicle and, when he

      observed Burt commit a traffic violation, he radioed for an officer in a marked

      police vehicle to conduct a traffic stop.


[3]   Shortly thereafter, IMPD Sergeant James Martin (“Sgt. Martin”), who was in a

      marked police vehicle, attempted to initiate a traffic stop on Burt’s vehicle using




      1
          Ind. Code § 35-48-4-1(a)(2) and (e)(1).
      2
          I.C. § 35-48-4-1(a)(2) and (e)(2).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1793 | January 11, 2018   Page 2 of 8
      his lights and sirens, but Burt did not stop right away. Sgt. Martin observed

      Burt fidgeting and moving around inside the car as he continued to drive. Burt

      then abruptly turned into a parking lot and stopped. As Sgt. Martin approached

      the vehicle, he saw Burt reaching down towards the center console area. Sgt.

      Martin asked Burt for his license and registration, and Burt’s hands were

      shaking badly as he attempted to find his wallet. Burt was the only occupant in

      the vehicle.


[4]   Det. Forestal arrived on the scene shortly after Burt stopped his vehicle. During

      the traffic stop, the officers learned that the white Cadillac was registered to

      Burt and to a female, later identified as Burt’s mother, and that Burt’s driving

      privileges had been suspended. After informing Burt of his Miranda rights, Det.

      Forestal asked Burt if he had any weapons in the vehicle. Burt denied

      knowledge of any weapons and said that it was not his car. Det. Forestal then

      told Burt that he saw him place a handgun in the trunk underneath the trunk

      liner and Burt “dropped his head.” Tr. at 30. Burt then admitted to placing the

      handgun in the trunk and admitted that he did not have a license to carry a

      firearm. The officers took Burt into custody and found $877 in cash on his

      person during a search incident to arrest.


[5]   The police had Burt’s car towed to a secure location and Det. Forestal obtained

      a warrant to search the vehicle. During the search, officers found a loaded .45

      caliber Taurus handgun sitting on top of a black plastic bag under the liner of

      the trunk. Inside the black plastic bag, officers found two plastic bags of

      cocaine with weights of 7.13 and 20.73 grams, one plastic bag of heroin with a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1793 | January 11, 2018   Page 3 of 8
      weight of 8.72 grams, and digital scales. The officers also found Burt’s 2007

      GED and his automotive repair paperwork from 2013 in the glove

      compartment. In the trunk, officers found mail dated September 1, 2015, with

      Burt’s name on it.


[6]   On July 15, 2016, the State charged Burt with unlawful possession of a firearm

      by a serious violent felon, a Level 4 felony,3 and operating a vehicle as a

      habitual traffic violator, a Level 6 felony.4 On July 22, the State amended the

      charging information to add charges for dealing in cocaine, as a Level 2 felony; 5

      dealing in a narcotic drug, as a Level 2 felony;6 possession of cocaine, as a Level

      3 felony;7 possession of a narcotic drug, as a Level 4 felony; 8 and carrying a

      handgun without a license, as a Class A misdemeanor. 9 The State subsequently

      filed motions to dismiss the unlawful possession of a firearm by a serious

      violent felon charge and the operating a vehicle as a habitual traffic violator

      charge, and the trial court granted those motions.




      3
          I.C. § 35-47-4-5(c).
      4
          I.C. § 9-30-10-16(a)(2).
      5
          I.C. § 35-48-4-1(a)(2) and (e)(1).
      6
          I.C. § 35-48-4-1(a)(2) and (e)(2).
      7
          I.C. § 35-48-4-6(a) and (d)(2).
      8
          I.C. § 35-48-4-6(a) and (c)(2).
      9
          I.C. § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1793 | January 11, 2018   Page 4 of 8
[7]   Following Burt’s June 20, 2017, jury trial, the jury found him guilty as charged

      on all remaining counts. At the sentencing hearing on July 14, the trial court

      vacated Burt’s convictions for possession of cocaine and possession of a

      narcotic drug. The trial court then sentenced Burt to ten years executed for

      Level 2 felony dealing in cocaine; ten years executed for Level 2 felony dealing

      in a narcotic drug; and 365 days executed for Class A misdemeanor carrying a

      handgun without a license. The court ordered the sentences to run

      concurrently. This appeal ensued.



                                 Discussion and Decision
[8]   Burt challenges the sufficiency of the evidence to support his convictions for

      dealing in cocaine and dealing in a narcotic, both as Level 2 felonies. Our

      standard of review of the sufficiency of the evidence is well-settled:


              When reviewing the sufficiency of the evidence needed to
              support a criminal conviction, we neither reweigh evidence nor
              judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
              (Ind. 2009). “We consider only the evidence supporting the
              judgment and any reasonable inferences that can be drawn from
              such evidence.” 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.


      Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

      Moreover, “[a] conviction may be based on circumstantial evidence alone so

      long as there are reasonable inferences enabling the factfinder to find the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1793 | January 11, 2018   Page 5 of 8
       defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d

       385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied.


[9]    To support Burt’s convictions of dealing in cocaine and dealing in a narcotic

       drug as Level 2 felonies, the State was required to prove that Burt knowingly or

       intentionally possessed minimum amounts10 of the drugs with the intent to

       deliver11 them. I.C. § 35-48-4-1. A person actually possesses contraband when

       he or she has direct physical control over it. Gray v. State, 957 N.E.2d 171, 174

       (Ind. 2011). Here, Burt did not actually possess the cocaine and heroin; he did

       not have direct physical control over either drug because they were in the trunk

       of the car.


[10]   However, "[w]hen the State cannot show actual possession, a conviction for

       possessing contraband may rest instead on proof of constructive possession."

       Id. A person constructively possesses contraband when the person has (1) the

       capability to maintain dominion and control over the item, and (2) the intent to

       maintain dominion and control over it. Id. The capability element may be

       inferred “from the simple fact that the defendant had a possessory interest in the

       premises” where the contraband was found, regardless of whether the

       possessory interest is exclusive. Id. “To prove the intent element, the State




       10
          Burt does not dispute that the amounts of the cocaine and heroin were within the statutory minimum
       required to prove a Level 2 felony.
       11
          Burt challenges only the sufficiency of the evidence to show his intent to possess the contraband; he does
       not challenge the sufficiency of the evidence to show intent to deliver the contraband.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1793 | January 11, 2018             Page 6 of 8
       must demonstrate the defendant’s knowledge of the presence of the

       contraband,” and such knowledge may be inferred from the defendant’s

       “exclusive dominion and control over the premises containing the contraband.”

       Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) (holding evidence sufficient to

       show constructive possession of contraband found in the trunk of the car where

       the defendant did not own the car, but had a key to the trunk and had several

       personal belongings throughout the car).


[11]   This case is indistinguishable from Goliday. Burt’s capability to maintain

       dominion and control over the contraband in the trunk could be inferred from

       the facts that he had a key to the trunk; the undercover officer earlier had

       witnessed Burt opening the trunk and placing a gun on top of the bag

       containing the contraband; and Burt’s personal belongings—including his

       gun—were found in the trunk near the contraband and throughout the car. See

       id. And Burt’s exclusive possession of the vehicle was sufficient to raise a

       reasonable inference of his intent to maintain dominion and control over the

       contraband. Id. (noting the intent element of constructive possession does not

       require proof of exclusive ownership of the premises; rather, intent may be

       inferred by a showing of exclusive possession of the premises); see also State v.

       Emry, 753 N.E.2d 19, 22 (Ind. Ct. App. 2001) (“Since Emry had exclusive

       control over the vehicle, it was proper for the jury to infer that Emry had the

       intent and capability to exert dominion and control over the marijuana.”).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1793 | January 11, 2018   Page 7 of 8
                                               Conclusion
[12]   The State provided sufficient evidence to sustain Burt’s convictions for dealing

       in cocaine and dealing in a narcotic.


[13]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1793 | January 11, 2018   Page 8 of 8
