      MEMORANDUM DECISION                                                                   FILED
                                                                                    May 24 2016, 9:33 am
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                                            CLERK
      Memorandum Decision shall not be regarded as                                      Indiana Supreme Court
                                                                                           Court of Appeals
      precedent or cited before any court except for the                                     and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Marielena Duerring                                       Gregory F. Zoeller
      South Bend, Indiana                                      Attorney General of Indiana
                                                               Marjorie Lawyer-Smith
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Tyrone D. Miller,                                       May 24, 2016

      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              71A04-1601-CR-24
              v.                                              Appeal from the St. Joseph Superior
                                                              Court.
                                                              The Honorable Jane Woodward
      State of Indiana,                                       Miller, Judge.
      Appellee-Plaintiff.                                     Cause No. 71D01-1506-F3-28




      Darden, Senior Judge


                                       Statement of the Case
[1]   Tyrone D. Miller appeals his conviction of possession of cocaine or a narcotic

      drug, a Level 5 felony. Ind. Code §§ 35-48-4-6 (2014), 35-48-1-16.5 (2014). We

      affirm.

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                                                    Issue
[2]   Miller raises one claim, which we restate as: whether the evidence is sufficient

      to sustain his conviction.

                               Facts and Procedural History
[3]   In early June 2015, Douglas Burch loaned his silver Jeep Liberty to Miller in

      exchange for cocaine. In the early morning hours of June 7, 2015, Zachary

      Grooms arrived at a police station in South Bend, St. Joseph County. Grooms

      reported he had been robbed by a man who drove a silver Jeep Liberty and

      wielded a handgun. He described the man as wearing tan shorts and a white

      tank top. Grooms also stated the assailant’s hair was in cornrows. Grooms

      told the officers the man stole his cell phone and wallet.


[4]   While speaking with Grooms, a police officer used an app to locate Grooms’

      cell phone. According to the app, Grooms’ cell phone was in the area of

      Caroline and Fox Streets in South Bend. Officers who were dispatched to the

      scene saw a silver Jeep Liberty parked outside a house at that location.


[5]   Police officers surrounded the house and ordered the occupants to come out.

      Victoria Miller, Miller’s wife, came outside. She declined to give the officers

      permission to enter and search. She also told the officers that she and Miller

      had been fighting for the last couple of days and were staying in separate

      bedrooms. Next, the officers sought and obtained a search warrant for the

      house. Before the search warrant arrived, an officer who was standing at the




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      northwest corner of the house heard a “thump” coming from inside the house,

      as if someone was moving furniture or bumping against a wall. Tr. p. 218.


[6]   After the warrant arrived, six to eight officers opened the home’s front door and

      entered. They encountered Miller, who “came from the back bedroom area of

      the house” and surrendered. Id. at 167.


[7]   Next, the officers searched the house. No one else was present. They found

      Grooms’ cell phone and wallet. Next, they entered the back bedroom of the

      house, which was the source of the “thump” an officer had heard while

      standing outside. When they examined the bed, they saw that a slit had been

      cut into the side of the mattress. A handgun was hidden inside. A size 2XL

      white tank top shirt was on the floor next to the bed.


[8]   In the kitchen, another officer found digital scales and a plastic bag. The bag

      contained a white powdery substance that was later identified as cocaine. The

      officers found a letter addressed to Miller near the cocaine.


[9]   The State charged Miller with armed robbery, a Level 3 felony; carrying a

      handgun without a license while having a felony conviction in the past fifteen

      years, a Level 5 felony; and possession of cocaine or a narcotic drug, a Level 5

      felony. A jury determined that Miller was not guilty of the first two charges but

      was guilty of possession of cocaine or a narcotic drug. The trial court sentenced

      Miller per the jury’s verdict, and this appeal followed.




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                                    Discussion and Decision
[10]   Miller does not challenge the officers’ search of the home, and he does not

       dispute that he owned the cocaine. Instead, he argues the evidence is

       insufficient to sustain his conviction as a Level 5 felony because he did not

       possess a firearm in the course of possessing cocaine. When reviewing a claim

       of sufficiency of the evidence, we do not reweigh the evidence or judge the

       credibility of witnesses. Daugherty v. State, 43 N.E.3d 1288, 1289 (Ind. Ct. App.

       2015). Instead, we consider only the evidence supporting the judgment and any

       reasonable inferences that can be drawn from the evidence. Smart v. State, 40

       N.E.3d 963, 966 (Ind. Ct. App. 2015). We will affirm unless no rational fact-

       finder could have found the defendant guilty beyond a reasonable doubt. Grott

       v. State, 30 N.E.3d 777, 779 (Ind. Ct. App. 2015).


[11]   In order to obtain a conviction against Miller as charged for possession of

       cocaine as a Level 5 felony, the State was required to prove beyond a

       reasonable doubt that: (1) Miller (2) without a valid prescription or order of a

       practitioner (3) knowingly or intentionally possessed (4) cocaine or a narcotic

       drug (5) while also possessing a firearm. Ind. Code §§ 35-48-4-6, 35-48-1-16.5.


[12]   Miller claims not to have owned, or been aware of, the handgun the police

       found in the mattress. Possession of contraband such as a firearm need not be

       actual but, rather, can be constructive. Mack v. State, 23 N.E.3d 742, 759 (Ind.

       Ct. App. 2014), trans. denied. In order to prove constructive possession, the

       State must show the defendant has both (1) the intent and (2) the capability to


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       maintain dominion and control over the contraband. Thompson v. State, 966

       N.E.2d 112, 122 (Ind. Ct. App. 2012), trans. denied.


[13]   To prove the intent element, the State must demonstrate the defendant’s

       knowledge of the presence of the contraband. Id. If the defendant has

       possession of the premises where contraband is discovered, but that possession

       is not exclusive, the defendant’s knowledge may be inferred from additional

       circumstances. Id. The additional circumstances may include: (1)

       incriminating statements by the defendant; (2) attempted flight or furtive

       gestures; (3) a drug manufacturing setting; (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. Ables v. State, 848 N.E.2d 293, 297 (Ind. Ct. App. 2006).


[14]   In this case, Miller did not immediately leave the house when the police

       ordered all occupants to come outside. Instead, he stayed inside, and an officer

       heard noises consistent with moving furniture coming from the back bedroom

       while awaiting the arrival of the search warrant. Thus, Miller engaged in

       furtive movements. When the officers finally entered the house pursuant to the

       search warrant, Miller approached them from the back bedroom, which is

       where the handgun was later found hidden in a slit cut into the mattress.

       Victoria had told the officers she and Miller were sleeping in separate

       bedrooms; that he slept in the front bedroom and she slept in the back bedroom.

       As a result, Miller was found in proximity to the handgun. In addition, his

       property was mingled with the handgun, because the police found a 2XL sized

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       tank top, which resembled the shirt Grooms saw his assailant wearing, in the

       back bedroom near the bed where the gun had been hidden. Police found a

       letter addressed to Miller in the kitchen near the cocaine and scales.


[15]   Miller points to testimony by Victoria, who told the jury: (1) Miller was not

       regularly staying at her house during the time period in question; (2) she owned

       the handgun; (3) she had cut the slit in the mattress and hidden the handgun

       inside on a prior occasion; and (4) she owned the tank top shirt. This argument

       is, in substance, a request to reweigh the evidence, which our standard of

       review forbids. Further, we note Victoria denied knowing about the cocaine

       that the police found in the kitchen.


[16]   There is sufficient evidence to establish beyond a reasonable doubt that Miller

       was aware of, and constructively possessed, the handgun. See Mack, 23 N.E.3d

       N.E.2d 742, 759 (Ind. Ct. App. 2014) (evidence sufficient to prove constructive

       possession where contraband was found in defendant’s room, near his personal

       property), trans. denied. As a result, the jury’s verdict must be sustained, and

       Miller’s conviction stands.


                                                Conclusion
[17]   For the reasons stated above, we affirm the judgment of the trial court.


[18]   Affirmed.


       Najam, J., and Mathias, J., concur.



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