MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Aug 26 2019, 8:08 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John Kindley                                             Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dennis P. Bell,                                          August 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-321
        v.                                               Appeal from the Pulaski Superior
                                                         Court
State of Indiana,                                        The Honorable Crystal A. Kocher,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         66D01-1706-F6-99



Darden, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019                   Page 1 of 15
                                            Statement of the Case
[1]   Dennis P. Bell appeals his convictions of possession of methamphetamine, a
                            1                                                             2
      Level 6 felony; and possession of paraphernalia, a Class C misdemeanor. We

      affirm.


                                                    Issues
[2]   Bell raises two issues, which we restate as:


                 I.       Whether the trial court erred in denying Bell’s motion for
                          discharge.


                 II.      Whether there is sufficient evidence to support his
                          convictions.


                                   Facts and Procedural History
[3]   On June 19, 2017, at 2:25 a.m., Deputy Robert P. Foerg of the Pulaski County

      Sheriff’s Office was on patrol. He stopped a car after he saw it drive left of

      center while making a sharp turn. Bell was driving the car, and Kassie Gould

      was sitting in the front passenger seat. Deputy Foerg recognized them from

      past encounters.




      1
          Ind. Code § 35-48-4-6.1 (2014).
      2
          Ind. Code § 35-48-4-8.3 (2015).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 2 of 15
[4]   Deputy Foerg obtained their drivers’ licenses and the car’s registration and

      license plate number. He entered the information on his car’s computer and

      determined Bell’s and Gould’s licenses were valid. The deputy also learned the

      car was registered to Sherie McCrory, who he later discovered was Bell’s

      girlfriend. Next Deputy Foerg asked for backup, and another officer arrived.


[5]   Deputy Foerg returned to Bell’s car and asked him to step out for a pat down

      search for officer safety. Bell complied, and the officer did not find any

      weapons. At that point, Deputy Foerg issued an oral warning to Bell for

      driving left of center and then asked if he could search the car. Bell consented

      to a search. Bell denied having any illegal substances in the car.


[6]   Deputy Foerg also asked Gould to step out of the car and patted her down. She

      did not have any weapons, so he next had Bell and Gould stand with the other

      officer while he searched Bell’s car. During the search, which was recorded on

      Deputy Foerg’s body camera, he found a “cut plastic straw on the front

      passenger seat which contained a white powder.” Tr. Vol. 2, p. 190. He also

      found a package of straws on the floor in front of the passenger seat. The

      deputy then found a “pen tube that looked like it had a white powdery

      substance in it as well.” Id. at 191-92. Based on his experience and training,

      Deputy Foerg was aware that straws and pen tubes are items commonly used to

      ingest controlled substances. He field-tested the straw, and it tested positive for

      methamphetamine.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 3 of 15
[7]   The officers arrested Bell and Gould. After being handcuffed, Bell mumbled

      the name “Oscar,” but did not explain further. Tr. Vol. 2, p. 195. A portion of

      the straw was sent to the Indiana State Police Laboratory, and further testing

      confirmed that the straw contained methamphetamine.


[8]   On June 20, 2017, the State charged Bell with possession of methamphetamine,
                                                                                       3
      a Level 6 felony; maintaining a common nuisance, a Level 6 felony; and

      possession of paraphernalia, a Class C misdemeanor. That same day, the trial

      court issued an order determining that probable cause existed for the initial

      arrest. The trial court set bond in the sum of $5,000, 10% payable by cash or

      surety, and, apparently, set the matter for an initial hearing on July 13, 2017.

      Bell bonded out on June 20, 2017.


[9]   On July 13, 2017, the trial court held an initial hearing. Bell did not appear.

      The trial court issued an order indicating that an unidentified person had

      informed the trial court that Bell was “incarcerated in the Porter County Jail.”

      Appellant’s App. Vol. II, p. 24. The order further provided that upon the

      State’s request, the trial court issued a warrant for Bell’s arrest, ordering that he

      be held without bond upon apprehension. The trial court’s Chronological Case

      Summary is void of any notation of personal contact by Bell for approximately

      the next six to seven months.




      3
          Ind. Code § 35-45-1-5 (2016).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019       Page 4 of 15
[10]   Finally, on February 5, 2018, Bell filed with the trial court a pro se letter asking

       the court to schedule a new hearing date in his case. He apparently did not

       send a copy of the letter to the State via the prosecutor’s office. In his letter,

       Bell acknowledged he had failed to appear in court and explained he had been

       incarcerated in the Porter County Jail since July 12, 2017. He further explained

       that he expected to be released by April 2, 2018. Later that day, the trial court

       issued an order in which it interpreted Bell’s letter as a request to recall the

       arrest warrant. The trial court denied Bell’s request to recall the warrant that

       had been issued on July 13, 2017.


[11]   The Chronological Case Summary indicates that the arrest warrant was served

       on Bell on March 12, 2018. The trial court held an initial hearing on March 13,

       2018. At the hearing, Bell appeared pro se and informed the trial court that he

       intended to hire an attorney. The trial court scheduled a pretrial hearing for

       April 30, 2018, and set an omnibus date of May 11, 2018. The trial court did

       not set a trial date at that time. Bell asked to be released on his original bond,

       but the trial court rejected his request and set bond at $10,000, with 10 percent

       cash or surety.


[12]   The trial court held a pretrial hearing as scheduled on April 30, 2018. Bell,

       again, appeared pro se. The trial court scheduled a final pretrial conference for

       June 12, 2018, but did not set a date for a jury trial.


[13]   On May 4, 2018, an attorney filed an appearance on behalf of Bell and a

       motion for discovery. On June 11, 2018, Bell, by counsel, filed a motion to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 5 of 15
       continue the final pretrial conference, asserting that the State had failed to

       provide requested discovery. The State indicated that it had complied with his

       discovery requests on June 7, 2017. The trial court granted the motion that

       same day and rescheduled the final pretrial conference for July 30, 2018. The

       Chronological Case Summary contains the following additional entry for June

       11, 2018: “Court has Dep. Pros. Atty. Gaumer verify status of time line

       regarding Criminal rule [sic] 4 in this cause. State informs the Court that time

       begins at the Defendant’s initial hearing on March 13, 2018.” Id. at 5.


[14]   On July 30, 2018, the parties appeared for the previously scheduled final

       pretrial conference. Bell, by counsel, requested a jury trial setting and further

       asked the trial court to schedule a deadline for a plea agreement. In addition,

       Bell told the trial court that he believed “there is a Criminal Rule 4 issue.” Id.

       After further discussion, Bell asked the trial court to schedule a status hearing to

       allow the court and the parties to resolve the Criminal Rule 4 issue. In

       response, the trial court scheduled a status hearing for August 9, 2018, ordering

       Bell to file “any motion regarding Criminal Rule 4” within seven days of July

       30, 2018. Id. The trial court further stated, “[a]ny delay from this date forward

       is charged to the Defendant for Criminal Rule 4 purposes.” Id. The trial court

       did not schedule a jury trial date at that time.


[15]   On August 8, 2018, Bell filed a motion for discharge pursuant to Criminal Rule

       4(C), with a supporting memorandum of law. On August 9, 2018, the trial

       court held a status conference as scheduled. During the status conference

       hearing, the trial court scheduled a jury trial for August 24, 2018, but Bell

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 6 of 15
       indicated that date was unacceptable because his counsel had a scheduling

       conflict. At Bell’s request, the trial court rescheduled the jury trial for August

       31, 2018. In addition, the trial court scheduled an evidentiary hearing for Bell’s

       motion for discharge, to be held on August 29, 2018. The trial court stated,

       “[t]he delay is charged to the Defendant.” Id. at 6.


[16]   On August 21, 2018, the trial court rescheduled the evidentiary hearing on

       Bell’s motion for discharge for August 23, 2018. On August 24, 2018, the trial

       court issued an order denying Bell’s motion for discharge and vacating the

       August 31, 2018 trial date. In that same order, the trial court scheduled the jury

       trial for November 7, 2018.


[17]   The trial court presided over the jury trial as scheduled on November 7, 2018.

       During the trial, Deputy Foerg testified, without any objection from Bell, that at

       the time of the traffic stop he, from an unnamed source, “had previously

       received information that [Bell] was manufacturing methamphetamine and

       using methamphetamine with Kassie Gould.” Tr. Vol. 2, p. 189. In addition,

       during cross-examination by Bell, the deputy further stated he was aware that,

       in a separate case, Gould had pleaded guilty to possession of methamphetamine

       in connection with the June 19, 2017 traffic stop and arrest. Moreover, after a

       conference with counsel and the approval of both parties, the trial court

       instructed the jury that the trial court had taken judicial notice that Gould had

       pleaded guilty to possession of methamphetamine in connection with the June

       19, 2017 traffic stop and arrest.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 7 of 15
[18]   The jury found Bell was guilty of possession of methamphetamine and

       possession of paraphernalia, but not guilty of maintaining a common nuisance.

       On January 8, 2019, the trial court imposed a sentence. This appeal followed.


                                    Discussion and Decision
                                           I. Criminal Rule 4
[19]   Bell argues he was entitled to have the case dismissed because the State failed to

       bring him to trial within one year of being charged. The State responds that the

       trial court did not err in denying Bell’s motion for discharge because any delay

       was due mostly to Bell’s incarceration in another county and his failure to

       timely inform the trial court and the prosecutor of his whereabouts.


[20]   An accused’s right to a speedy trial is guaranteed by article I, section 12 of the

       Indiana Constitution and by the Sixth Amendment to the United States

       Constitution. State v. Lindauer, 105 N.E.3d 211, 214 (Ind. Ct. App. 2018), trans.

       denied. Indiana Criminal Rule 4 was adopted to implement the right to a

       speedy trial. Id. The parties agree that Bell’s motion for discharge is governed

       by Indiana Criminal Rule 4(C), which provides in relevant part:


               No person shall be held on recognizance or otherwise to answer
               a criminal charge for a period in aggregate embracing more than
               one year from the date the criminal charge against such
               defendant is filed, or from the date of his arrest on such charge,
               whichever is later; except where a continuance was had on his
               motion, or the delay was caused by his act, or where there was
               not sufficient time to try him during such period because of
               congestion of the court calendar; . . . . Any defendant so held
               shall, on motion, be discharged.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 8 of 15
[21]   The State thus bears the burden of bringing the defendant to trial within Rule

       4(C)’s prescribed one-year deadline. State v. Larkin, 100 N.E.3d 700, 703 (Ind.

       2018). But the defendant’s actions during the relevant time period, including

       requesting continuances or otherwise causing delays, will extend the deadline:

       “When a continuance is had on motion of the defendant, or delay in trial is

       caused by his act, any time limitation contained in [Rule 4] shall be extended by

       the amount of the resulting period of such delay caused thereby.” Ind.

       Criminal Rule 4(F). The objective of Rule 4 is to move cases along and to

       provide the defendant with a timely trial, not to create a mechanism to avoid

       trial. Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000).


[22]   The State filed charges against Bell on June 20, 2017, but Bell was not brought

       to trial until November 7, 2018, 504 days later, well after the one-year

       prescribed deadline of June 20, 2018. Bell was entitled to discharge unless the

       delay was attributable to him. This issue presents a question of law applied to

       undisputed facts, and our standard of review is de novo. Austin v. State, 997

       N.E.2d 1027, 1039 (Ind. 2013).


[23]   The parties’ dispute focuses on the time period from July 13, 2017, when Bell

       failed to appear for his initial hearing, to February 5, 2018, when, on record,

       Bell notified the trial court in writing that he was incarcerated in another

       county. If that period of time, 207 days, is chargeable to Bell, then the trial

       deadline was extended by 207 days from June 20, 2018 to January 13, 2019,

       and the November 7, 2018 jury trial was held within the prescribed one-year

       deadline, in compliance with Rule 4(C).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 9 of 15
[24]   In Werner v. State, 818 N.E.2d 26, 27 (Ind. Ct. App. 2004), trans. denied, the

       State charged Werner with possession of marijuana. Werner appeared at

       several pretrial conferences, but on November 9, 2000, an unidentified

       individual called the offices of the county clerk to advise that Werner was

       incarcerated in another county. Werner failed to appear at a pretrial

       conference, and his bail bonding agent called the trial court’s bailiff to advise

       that Werner would be incarcerated in the other county for an indeterminate

       period of time. Subsequently, Werner was not released until May 23, 2001.


[25]   The trial court resumed pretrial proceedings after Werner’s release, but Werner

       eventually objected to a rescheduled trial date and moved to dismiss under Rule

       4(C). The trial court denied the motion, and Werner sought interlocutory

       review. On appeal, the key question was whether Werner’s objection was

       timely. In the course of answering the question, a panel of this Court had to

       determine which party was responsible for the delay that occurred between

       when Werner failed to appear for a pretrial conference and when he was

       released from incarceration in the other county. Werner argued that the time

       was not chargeable to him because he had arranged for two individuals to

       contact the trial court to provide notification of his incarceration in another

       county. The Werner court determined the calls were insufficient to provide

       proper notice to the trial court and to the prosecutor, concluding that a written

       notice on the record was required. As a result, the Werner court determined the

       period of time during which Werner was incarcerated in another county was

       chargeable to Werner.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 10 of 15
[26]   In the current case, the record reflects that the State informed the trial court of

       information, from an unknown source, that Bell was incarcerated in Porter

       County. But the record is silent as to the basis and credibility of the State’s

       information and whether it was reliable. The trial court did not receive proper

       confirmation of Bell’s incarceration until he personally provided written notice,

       upon which the State and the trial court could rely. Following the holding in

       Werner, we must conclude that the 207 days that elapsed between July 13, 2017

       and February 5, 2018, until Bell provided personal written notice to the trial

       court is chargeable to him. The delay extended the prescribed deadline under

       Rule 4(C) well past the jury trial date of November 7, 2018. The State fulfilled

       its duty under Rule 4(C), and the trial court did not err in denying Bell’s motion
                         4
       for discharge.


                                   II. Sufficiency of the Evidence
[27]   Bell claims the State failed to present sufficient evidence that he knowingly or

       intentionally possessed methamphetamine or paraphernalia. The State

       responds that there is ample evidence that Bell constructively possessed the

       straw that contained methamphetamine in this case.




       4
        Bell raises additional arguments about delays that occurred after February 5, 2018, but it is unnecessary to
       address those arguments because they did not affect the 207-day extension caused by Bell’s failure to provide
       written notification of his incarceration in another county.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019                  Page 11 of 15
[28]   Our standard of review for challenges to the sufficiency of evidence is well-

       settled:


               When reviewing sufficiency of evidence to support a conviction,
               we consider only the probative evidence and reasonable
               inferences supporting the trial court’s decision. 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. To preserve this structure, when we are confronted
               with conflicting evidence, we consider it most favorably to the
               trial court’s ruling. We affirm a conviction unless no reasonable
               fact-finder could find the elements of the crime proven beyond a
               reasonable doubt. 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.


       Parks v. State, 113 N.E.3d 269, 272-73 (Ind. Ct. App. 2018) (citations omitted).


[29]   To obtain a conviction for possession of methamphetamine as a Level 6 felony,

       the State was required to prove beyond a reasonable doubt that: (1) Bell (2)

       knowingly or intentionally (3) possessed methamphetamine (pure or

       adulterated) (4) without a valid prescription or order of a practitioner acting in

       the course of the practitioner’s professional practice. Ind. Code § 35-48-4-

       6.1(a). To obtain a conviction for possessing paraphernalia as a Class C

       misdemeanor, the State was required to prove beyond a reasonable doubt that:

       (1) Bell (2) knowingly or intentionally (3) possessed an instrument, device, or

       another object that he intended to use (4) for introducing a controlled substance

       into his body. Ind. Code § 35-48-4-8.3.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 12 of 15
[30]   A conviction for possession of contraband may be founded upon actual or

       constructive possession. Holmes v. State, 785 N.E.2d 658, 660 (Ind. Ct. App.

       2003). The State does not argue that Bell actually possessed the

       methamphetamine and straw, so we turn to constructive possession.

       Constructive possession is the actual knowledge of the presence and illegal

       character of contraband and the intent and capability to maintain dominion and

       control over it. Macklin v. State, 701 N.E.2d 1247, 1251 (Ind. Ct. App. 1998).


[31]   If a person does not have exclusive control of the premises where contraband

       was found, then intent to maintain dominion and control may be inferred from

       additional circumstances that indicate that the person knew of the presence of

       the contraband. Allen v. State, 787 N.E.2d 473, 483 (Ind. Ct. App. 2003), trans.

       denied. 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 defendant to the drugs; (5) drugs in

       plain view; and (6) location of the drugs in close proximity to items owned by

       the defendant. Id.


[32]   In this case, Bell was authorized to drive McCrory’s car, but he did not have

       exclusive control of the car’s premises because Gould was inside with him. We

       must examine the circumstances to determine whether Bell knew of the

       presence of the contraband and possessed the intent and capability to control it.

       The shortened straw containing methamphetamine was clearly visible on the

       passenger seat, near where Bell had been sitting, next to a pen tube. The State

       presented testimony as to how Gould was dressed, indicating she had few

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 13 of 15
       pockets in which to hide the straw on her person. Also, there was evidence that

       a package of straws was found on the floor of the car in front of the passenger

       seat. The straw that was found on the seat, which contained white, powdery

       residue, was not concealed in a container. In addition, Deputy Foerg testified

       to the jury, without objection from Bell, that he “had previously received

       information that [Bell] was manufacturing methamphetamine and using

       methamphetamine with Kassie Gould.” Tr. Vol. 2, p. 189. Further, upon an

       agreement by both parties, the trial court was allowed to inform the jury that

       Gould had been convicted of possession of methamphetamine in connection

       with the June 19, 2017 traffic stop and arrest.


[33]   This is sufficient evidence from which a jury could find beyond a reasonable

       doubt that Bell knew about the presence of the contraband and possessed the

       requisite intent and capability to control it. See Macklin, 710 N.E.2d at 1251

       (evidence sufficient to support constructive possession of cocaine; defendant

       was driver of car, and cocaine was found on driver’s seat, in the open; driver

       also provided false identification); cf. Grim v. State, 797 N.E.2d 825, 832 (Ind.

       Ct. App. 2003) (insufficient evidence to support constructive possession of a

       narcotic drug; drug was hidden in a case under the passenger seat, and there

       was no evidence the defendant (the driver) knew it was there).


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


[35]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 14 of 15
Mathias, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019   Page 15 of 15
