MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Jul 15 2020, 9:19 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
Steven R. Knecht                                          Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana
                                                          Josiah J. Swinney
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Curtis Jarvis Carter,                                     July 15, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2489
        v.                                                Appeal from the Cass Superior
                                                          Court
State of Indiana,                                         The Honorable Thomas C.
Appellee-Plaintiff.                                       Perrone, Judge
                                                          Trial Court Cause No.
                                                          09D02-1803-F2-6



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020                 Page 1 of 10
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Curtis Carter (Carter), appeals his conviction for dealing

      in a narcotic drug (heroin), a Level 2 felony, Ind. Code §§ 35-48-4-1(a)(2), -

      (e)(1); and dealing in cocaine, a Level 3 felony, I.C. §§ 35-48-4-1(a)(2), -(d)(1).


[2]   We affirm.


                                                    ISSUE
[3]   Carter presents the court with one issue, which we restate as: Whether the

      State proved beyond a reasonable doubt that he possessed heroin and cocaine

      sufficient to support his dealing convictions.


                      FACTS AND PROCEDURAL HISTORY
[4]   Carter and Darrell Wright (Wright) have the same mother. Although they had

      fallen out of contact, the two became reacquainted in 2017. Prior to March 5,

      2018, Carter and Wright had both been dealing drugs. Carter, who went by the

      name Capo, mainly dealt in Monticello, Indiana, while Wright mainly dealt in

      Lafayette, Indiana.


[5]   On March 2, 2018, Carter texted username “TravD Friend” that “I’m almost

      there[.]” (Exh. Vol. p. 45). About an hour later, TravD Friend texted Carter a

      picture of a brownish substance on a scale that read “.84” and told Carter, “fuck

      bro, .84 man[,]” “we cool tgo, just hook it up in the next one[,]” and “u need a

      new scale haha[.]” (Exh. Vol. pp. 45, 47). Later that day, Carter and Wright

      drove a rental car to Chicago for the weekend. While Carter was in Chicago

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020   Page 2 of 10
      that Saturday, he received a text message from TravD Friend asking, “u for sure

      gonna have the full g and gonna be in monti tomorrow rite?” to which Carter

      responded, “Yea bro[.]” (Exh. Vol. p. 46). On Sunday when Carter and

      Wright were still in Chicago, TravD Friend texted Carter, “bro!!! I need a .5

      pronto” followed approximately two hours later by a text from TravD Friend to

      Carter, simply stating, “broooooooo!” (Exh. Vol. p. 46). Carter also received

      texts from username “halie” stating, “Capo wya man[,]” and “Lemme know

      sum g. u said yu would be back yesterday. Im sick, my ppl sick.” (Exh. Vol. p.

      50).


[6]   On Monday, March 5, 2020, Wright and Carter left Chicago for Logansport,

      Indiana, with Wright driving. The Cass County Drug Task Force (DTF) had

      become aware that the phone number used by Carter to receive and send the

      aforementioned text messages was associated with drug dealing. The DTF had

      procured a ping warrant to track GPS data associated with the phone number.

      The DTF had been monitoring the phone’s whereabouts in Chicago over the

      weekend and knew that the phone was heading south on U.S. 35, where a DTF

      official visually tied the ping signal to Carter and Wright’s car. After the DTF

      official observed the car driven by Wright committing two traffic violations,

      Deputy Ryan Preston (Deputy Preston) of the Cass County Sheriff’s

      Department initiated a traffic stop on U.S. 35 near 475 North, assisted by

      Officer Andrew Strong (Officer Strong) of the DTF, who arrived a short time

      later.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020   Page 3 of 10
[7]   Deputy Preston approached the driver’s side window while Officer Strong

      approached the passenger side. Wright unrolled his window two inches to

      speak to the deputy. When Deputy Preston received no response to his request

      that Wright unroll his window further to ease communication, Deputy Preston

      told Wright that he would have his canine partner conduct a free-air sniff of the

      car. Wright placed the car in gear and sped away, leading Deputy Preston,

      Officer Strong, and other assisting officers on a high-speed chase through rural

      Cass County. On 200 North just east of U.S. 35, Wright drove through a

      “Road Closed, High Water” barricade with Deputy Preston directly behind

      him. Deputy Preston observed Wright stick his left hand out of the driver’s side

      window and drop a baseball-sized object. Wright and Carter’s car stalled in the

      high water, bringing the chase to an end. Deputy Preston searched the area

      where he had seen Wright drop the object and discovered a plastic bag

      containing what was later determined to be 72.48 grams of a heroin/fentanyl

      mix and 5.19 grams of cocaine. A search of the car after Wright and Carter

      were taken into custody revealed two cell phones on the passenger seat owned

      by Carter, one of which was the cell phone that was the subject of the ping

      warrant, one cell phone on the driver’s side, and one cell phone in the car’s

      center console. A fifth cell phone was found in the back hatch of the car in a

      backpack which also contained digital scales, small plastic baggies, a razor

      blade, and latex gloves.


[8]   Wright and Carter were placed under arrest and booked on charges of dealing

      and possessing heroin and cocaine. While he was being booked, Carter called


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020   Page 4 of 10
      his girlfriend and told her at one point during their conversation, “I made my

      own bed. I gotta lay in it.” (Exh. 31 at 3:00). Throughout the day of March 5,

      2018, Carter continued to receive texts on his cell phone. Username “halie”

      texted him, “U back g?”, “Capo, wtf let me know something Im sick as fuck”

      and “Dude please hmu[.]” (Exh. Vol. 50). Username “Dustin” asked Carter,

      “When u gonna be down u needing a ride here?” and, receiving no response

      from Carter, texted him, “Julie is feelin sick n been drivin me crazy askin when

      u was supposed to be here a million times or if I talked to you yet[.]” (Exh.

      Vol. p. 51).


[9]   On March 5, 2018, the State filed an Information, charging Carter with Level 2

      felony dealing in a narcotic drug (heroin), Level 3 felony possession of a

      narcotic drug (heroin), Level 3 felony dealing in cocaine, Level 5 felony

      possession of cocaine, Level 6 felony resisting law enforcement, and Class B

      misdemeanor visiting a common nuisance. On September 4, 2019, the trial

      court convened Carter’s two-day jury trial. Prior to the commencement of trial,

      the trial court granted the State’s motion to dismiss the visiting a common

      nuisance charge. The jury heard testimony that Chicago is a “source city” for

      heroin, that baggies, gloves, razor blades, and digital scales are all used by drug

      dealers to package narcotics for sale, and that possession of 72.48 grams of

      heroin was more indicative of a dealer than a user. (Tr. p. 178). Carter’s text

      messages were admitted at trial, including those referring to Carter’s clients

      being sick. A DTF officer explained to the jury that opioid users such as heroin

      addicts feel sick when they experience withdrawal. Carter testified on his own


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020   Page 5 of 10
       behalf that, prior to March 5, 2018, he had been dealing drugs in Monticello

       and that most of the text messages admitted at trial were about heroin, but he

       denied any knowledge of the heroin and cocaine found in the car on March 5,

       2018. The prosecutor argued during closing statements that Carter and Wright

       had jointly possessed the heroin and cocaine. The jury found Carter guilty on

       all charges except for resisting law enforcement.


[10]   On October 1, 2019, the trial court held Carter’s sentencing hearing. The trial

       court found Carter’s criminal history to be an aggravating circumstance, and it

       found no mitigating circumstances. Due to double jeopardy concerns, the trial

       court did not sentence Carter for his possession of heroin and possession of

       cocaine convictions. The trial court sentenced Carter to twenty years for

       dealing in a narcotic drug (heroin) and to ten years for dealing in cocaine, to be

       served consecutively, for an aggregate sentence of thirty years.


                               DISCUSSION AND DECISION
                                              I. Standard of Review

[11]   Carter challenges the evidence supporting his conviction. It is well-established

       that when we review the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an

       appellate court to assess witness credibility or to weigh the evidence. Id. We

       will affirm the conviction unless no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020   Page 6 of 10
                                           II. Constructive Possession

[12]   The State charged Carter in the dealing Counts with “knowingly or

       intentionally possess[ing] with the intent to deliver [h]eroin . . . having a weight

       of at least 10 grams” and “knowingly or intentionally possess[ing] with intent to

       deliver cocaine . . . having a weight of at least 5 grams, but less than 10

       grams[.]” (Appellant’s App. Vol. II, p. 15). Thus, in order to prove the dealing

       offenses, the State was required to show that Carter possessed the heroin and

       cocaine found in the car on March 5, 2018. Carter argues that the evidence

       showed that only Wright possessed them.


[13]   If a person does not have direct physical control over an item, he may,

       nevertheless, constructively possesses it if he has the capability and intent to

       maintain dominion and control over it. Gray v. State, 957 N.E.2d 171, 174 (Ind.

       2011). When a defendant has exclusive possession of the premises where the

       item was found, an inference arises that he knew of the presence of the item and

       was capable of controlling it. Id. However, if possession of the premises is not

       exclusive, as is the case here, a trier of fact may still infer that a defendant had

       the requisite intent if additional circumstances indicate a defendant’s knowledge

       of the presence and nature of the item. Id. Examples of these additional

       circumstances include incriminating statements by the defendant, attempted

       flight or furtive gestures, a drug manufacturing setting, proximity of the

       defendant to the item, whether the item is in plain view, and other items

       belonging to the defendant in close proximity to the item. Id. These are merely

       examples of additional circumstances which may show constructive possession.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020   Page 7 of 10
       Cannon v. State, 99 N.E.3d 274, 279-80 (Ind. Ct. App. 2018), trans. denied. Other

       circumstances may just as reasonably demonstrate the requisite knowledge. Id.

       at 280.


[14]   Carter acknowledges that the evidence showed that he was capable of

       exercising control over the heroin and cocaine at issue. However, he argues his

       possessory interest in the car was not exclusive due to Wright’s presence and

       that the State failed to show additional circumstances pointing to his knowledge

       of the presence and nature of the heroin and cocaine. While we agree with

       Carter’s argument that his mere presence in the car as a passenger was not

       adequate to demonstrate the requisite knowledge, we disagree with him that the

       State failed to show adequate additional circumstances indicating that

       knowledge. Carter’s text messages and his own admissions at trial showed that

       Carter and Wright were both dealing drugs, Carter was actively dealing heroin

       in the days leading up to the March 5, 2018, traffic stop, and Carter had clients

       who expected him to deliver heroin on Sunday, March 4, 2018. During that

       weekend, Carter and Wright visited Chicago, a “source city” for heroin, even as

       Carter’s clients continued to inquire when he was to return. (Tr. p. 178). After

       the traffic stop was initiated, Wright was observed tossing a dealer’s amount of

       heroin and over 5 grams of cocaine out of the window of the car, and the

       subsequent search of the car yielded a backpack containing the tools of the drug

       dealer’s trade, namely scales, a razor blade, gloves, and baggies. On the same

       day that he was arrested and booked on heroin and cocaine dealing charges,

       Carter’s clients continued to inquire about heroin, and Carter told his girlfriend


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020   Page 8 of 10
       in a phone call that “I made my own bed. I gotta lay in it.” (Exh. 31 at 3:00).

       The jury could have reasonably inferred from these additional circumstances

       that Carter travelled to Chicago to procure heroin to satisfy his impatient

       customers and that he, therefore, knew that the heroin and the cocaine

       packaged with it were in the car.


[15]   Carter attempts to argue otherwise by directing our attention to myriad

       circumstances which he contends undercut the State’s showing, such as his

       testimony at trial that he did not know about the heroin and cocaine until the

       officer retrieved it from where it was thrown and that he had been smoking

       marijuana right before the traffic stop, which he would never had done if he had

       known there were other drugs in the car. Carter invites us to speculate that the

       bag containing the heroin and cocaine was small enough to be secreted under

       Wright’s clothing, making his contention that he had not known about the

       drugs more probable. These arguments are unavailing, as crediting them would

       entail consideration of the evidence that does not support the jury’s verdict

       and/or a reweighing of the evidence on our part. Doing so would be contrary

       to our standard of review. See Drane, 867 N.E.2d at 146.


[16]   Carter also argues that the absence of any incriminating statements or flight on

       his part, the fact that the heroin and cocaine were not found in a manufacturing

       setting, and the absence of any of his belongings found near the heroin and

       cocaine all meant that the State failed to make its case. However, Carter’s

       argument overlooks his comment to his girlfriend that “I made my own bed. I

       gotta lay in it[,]” which the jury could have reasonably inferred to be an

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020   Page 9 of 10
       inculpatory statement. (Exh. 31 at 3:00). In addition, the factors listed in

       constructive possession jurisprudence are not necessary or exclusive. See

       Cannon, 99 N.E.3d at 280 (“[T]he listed circumstances are not exhaustive.”). In

       other words, the absence of one or more of the circumstances which may prove

       constructive possession does not render the State’s showing inadequate.

       Because the evidence supported a reasonable inference that Carter knew about

       the heroin and cocaine in the car, we affirm the jury’s verdict.


                                             CONCLUSION
[17]   Based on the foregoing, we conclude that the State proved beyond a reasonable

       doubt that Carter possessed heroin and cocaine sufficient to support his dealing

       convictions.


[18]   Affirmed.


       Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2489 | July 15, 2020   Page 10 of 10
