                                                                                 FILED
                                                                            Sep 16 2016, 8:22 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Neil L. Weisman                                          Gregory F. Zoeller
      South Bend, Indiana                                      Attorney General of Indiana

                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Raihiem Johnson,                                         September 16, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               71A04-1605-CR-1042
              v.                                               Appeal from the St. Joseph
                                                               Superior Court
      State of Indiana,                                        The Honorable Jane Woodward
      Appellee-Plaintiff.                                      Miller, Judge
                                                               Trial Court Cause No.
                                                               71D01-1505-F6-332



      Najam, Judge.


                                       Statement of the Case
[1]   Raihiem Johnson appeals his conviction for possession of a narcotic drug, as a

      Level 6 felony, following a jury trial. Johnson raises a single issue for our

      review, namely, whether the State presented sufficient evidence to demonstrate

      Court of Appeals of Indiana | Opinion 71A04-1605-CR-1042 | September 16, 2016                  Page 1 of 8
      that he constructively possessed heroin found in a vehicle Johnson had been

      operating. We affirm.


                                    Facts and Procedural History
[2]   On May 18, 2015, St. Joseph County Police Department Officer Randy

      Rodriguez observed Johnson driving a vehicle1 with an improperly affixed

      license plate. Accordingly, Officer Rodriguez initiated a traffic stop and

      approached the driver’s side window. As he exited his vehicle, Officer

      Rodriguez observed Johnson stick his head out the driver’s window and look

      back at him while Johnson’s hands remained “inside the vehicle

      but . . . down in between the seats,” which looked like Johnson was “[s]tuffing

      something” away. Tr. at 35-36. And, upon approaching Johnson, Officer

      Rodriguez observed that Johnson “had both of his hands in between his seat

      and the driver’s side door.” Id. at 35.


[3]   Officer Rodriguez had Johnson and his passenger, Adam Weaver, who was in

      the front passenger seat, exit the vehicle while he waited for a K-9 unit to

      perform a sniff-search of the vehicle. Once the K-9 unit arrived, it alerted

      officers to the presence of contraband in the vehicle. Officer Rodriguez then

      searched the vehicle where he had seen Johnson’s hands and found heroin

      wrapped in foil under the driver’s seat. Underneath the front of the driver’s

      seat, Officer Rodriguez also found a small black box in which one might keep a




      1
          The mother of the vehicle’s passenger owned the vehicle.


      Court of Appeals of Indiana | Opinion 71A04-1605-CR-1042 | September 16, 2016   Page 2 of 8
      spare key, but this box had a “clear plastic baggie” that “contained

      more . . . [h]eroin” wrapped in foil. Id. at 42.


[4]   Officer Rodriguez then searched Johnson’s person and found a part of a pen

      that had been cut at both ends and a piece of a credit card in one of Johnson’s

      pockets. Inside the pen was a white powdery residue. Based on his training

      and experience, Officer Rodriguez recognized the cut pen and credit card as

      tools for ingesting narcotics. Officer Rodriguez also discovered foil in

      Johnson’s wallet.


[5]   Thereafter, the State charged Johnson with possession of a narcotic drug, as a

      Level 6 felony. A jury found him guilty of that charge, and the trial court

      entered its judgment of conviction and sentence accordingly. This appeal

      ensued.


                                     Discussion and Decision
[6]   Johnson argues on appeal that the State failed to present sufficient evidence to

      support his conviction. Our standard for reviewing the sufficiency of the

      evidence needed to support a criminal conviction is as follows:

              First, we neither reweigh the evidence nor judge the credibility of
              witnesses. Second, we only consider the evidence supporting the
              [verdict] and any reasonable inferences that can be drawn from
              such evidence. A conviction will be affirmed if there is
              substantial evidence of probative value supporting each element
              of the offense such that a reasonable trier of fact could have
              found the defendant guilty beyond a reasonable doubt. It is the
              job of the fact-finder to determine whether the evidence in a
              particular case sufficiently proves each element of an offense, and
      Court of Appeals of Indiana | Opinion 71A04-1605-CR-1042 | September 16, 2016   Page 3 of 8
                we consider conflicting evidence most favorably to the trial
                court’s ruling.


      Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (citations and quotation

      marks omitted).


[7]   Here, Johnson asserts that the State did not present sufficient evidence to show

      that he constructively possessed2 the heroin found inside the vehicle. As we

      have explained:

                In order to prove constructive possession of drugs, the State must
                show that the defendant has both: (1) the intent to maintain
                dominion and control over the drugs; and (2) the capability to
                maintain dominion and control over the drugs. Wilkerson v. State,
                918 N.E.2d 458, 462 (Ind. Ct. App. 2009) (emphasis added)
                (quoting Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004)). “The
                capability prong may be satisfied by ‘proof of a possessory
                interest in the premises in which illegal drugs are found.’”
                Monroe v. State, 899 N.E.2d 688, 692 (Ind. Ct. App. 2009) (citing
                Gee, 810 N.E.2d at 340). “This is so regardless of whether the
                possession of the premises is exclusive or not.”[3] Id. . . .


                With regard to the intent prong of the test, where, as here, a
                defendant’s possession of the premises upon which contraband is
                found is not exclusive, the inference of intent to maintain
                dominion and control over the drugs must be supported by
                additional circumstances pointing to the defendant’s knowledge
                of the nature of the controlled substances and their presence. Id.



      2
          The State does not suggest that Johnson had actual possession of the heroin found inside the vehicle.
      3
        Johnson does not suggest that the State failed to demonstrate that he had the capability to maintain
      dominion and control over the heroin.

      Court of Appeals of Indiana | Opinion 71A04-1605-CR-1042 | September 16, 2016                       Page 4 of 8
              (citing Gee, 810 N.E.2d at 341). Those additional circumstances
              include:


                       (1) incriminating statements made by the defendant, (2)
                       attempted flight or furtive gestures, (3) location of
                       substances like drugs in settings that suggest
                       manufacturing, (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.


              Wilkerson, 918 N.E.2d at 462.


      Houston v. State, 997 N.E.2d 407, 410 (Ind. Ct. App. 2013). In addition to the

      above six circumstances, we have also recognized that the nature of the place in

      which the contraband is found can be an additional circumstance that

      demonstrates the defendant’s knowledge of the contraband. E.g., Carnes v. State,

      480 N.E.2d 581, 587 (Ind. Ct. App. 1985), trans. denied. Those enumerated

      circumstances are nonexhaustive; ultimately, our question is whether a

      reasonable fact-finder could conclude from the evidence that the defendant

      knew of the nature and presence of the contraband. See Gray v. State, 957

      N.E.2d 171, 174-75 (Ind. 2011).


[8]   Johnson asserts that the facts of his case are analogous to those in Houston. In

      Houston, we held that the State failed to present sufficient evidence to

      demonstrate that the driver of a vehicle constructively possessed contraband

      found within the vehicle. 997 N.E.2d at 410-11. We reasoned as follows:



      Court of Appeals of Indiana | Opinion 71A04-1605-CR-1042 | September 16, 2016   Page 5 of 8
               In the present case, the evidence presented showed that the
               cocaine was found inside the car in the “crevice between the
               passenger seat and the center console.” Although this location
               may have been within reach of the driver’s seat, where Houston
               was seated, there was no evidence presented to show that
               Houston had knowledge of the presence of the cocaine. No
               testimony was presented to indicate that any of the occupants
               were aware of the presence of the cocaine in the car. When
               questioned by Officer Souther, Houston denied any knowledge of
               the presence of the cocaine in the car, and both Green and
               Hood[, the other occupants,] testified that the officers did not ask
               them about their knowledge of the cocaine. No evidence was
               presented that Houston attempted to flee or that he made any
               furtive gestures. There was also no testimony to establish that
               the cocaine was found in plain view of Houston as the driver of
               the car, merely that it was found “in the crevice between the
               passenger seat and the center console area” within reach of the
               driver, but on the other side of the console. There was also no
               evidence that the cocaine was contained near or comingled with
               any items belonging to Houston.


      Id. at 410 (citations omitted).


[9]   We cannot agree with Johnson that the facts of Houston are analogous to the

      facts in his case. Unlike in Houston, here numerous circumstances permitted a

      reasonable fact-finder to conclude that Johnson had knowledge of the nature

      and presence of the heroin. First, upon Officer Rodriguez initiating the traffic

      stop, Johnson made furtive gestures. Specifically, he stuck his hands between

      the driver’s side door and the seat.4 The heroin was found below the seat.



      4
        In his brief on appeal, Johnson asserts that Officer Rodriguez’s testimony regarding Johnson’s furtive
      gestures is contradictory. We cannot agree. But, even if it were, Johnson’s argument would be that we

      Court of Appeals of Indiana | Opinion 71A04-1605-CR-1042 | September 16, 2016                      Page 6 of 8
       Second, the heroin was in close proximity to Johnson; again, the heroin was

       found directly under the seat in which Johnson had been sitting, not, as in

       Houston, in a crevice between the passenger seat and the center console. Third,

       the nature of the space demonstrates that Johnson knew of the nature and

       presence of the heroin: it is highly unlikely that the vehicle’s other occupant

       would or could, from the front passenger seat, access the space under the

       driver’s seat without being observed by the stopping officer.


[10]   We also agree with the State that the objects found on Johnson’s person support

       the jury’s finding that he had knowledge of the nature and presence of the

       heroin in the vehicle. Again, Officer Rodriguez found a cut pen containing a

       white powdery residue, a piece of a credit card, and some foil on Johnson’s

       person during the stop. Officer Rodriguez testified that the pen and piece of

       credit card were consistent with objects used in the ingestion of heroin. He

       further testified that the heroin discovered inside the vehicle had been wrapped

       in foil. The significantly related characteristics of the items found on Johnson’s

       person and the heroin found inside the vehicle that he had just been driving is

       an additional circumstance that supports the fact-finder’s conclusion that

       Johnson knew of the nature and presence of the heroin.




       should credit that part of Officer Rodriguez’s testimony that is more favorable to Johnson over the testimony
       that is less favorable. We will not reweigh the evidence on appeal; the jury had the whole of Officer
       Rodriguez’s testimony before it and could weigh it accordingly.

       Court of Appeals of Indiana | Opinion 71A04-1605-CR-1042 | September 16, 2016                     Page 7 of 8
[11]   In sum, the State presented sufficient evidence to demonstrate that Johnson had

       the intent to maintain dominion and control over the heroin. As such, the State

       met its burden to prove beyond a reasonable doubt that Johnson had committed

       possession of a narcotic drug, as a Level 6 felony. We affirm his conviction.


[12]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




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