MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                   FILED
this Memorandum Decision shall not be
                                                                                     Aug 25 2020, 8:11 am
regarded as precedent or cited before any
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
Carlos I. Carrillo                                       Curtis T. Hill, Jr.
Carrillo Law LLC                                         Attorney General of Indiana
Greenwood, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Nashid Muhammad,                                         August 25, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2397
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1087-F4-28



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020        Page 1 of 25
                               Case Summary and Issues
[1]   Following a jury trial, Nashid Muhammad was found guilty of, among other

      crimes, domestic battery, a Class A misdemeanor; possession of marijuana, a

      Class B misdemeanor; and unlawful possession of a firearm by a serious violent

      felon, a Level 4 felony. The trial court sentenced Muhammad to an aggregate

      sentence of eleven and one-half years with two and one-half years suspended to

      probation. Muhammad appeals, raising the following issues for our review: (1)

      whether the trial court abused its discretion by admitting certain evidence

      allegedly obtained in violation of Muhammad’s rights under the Fourth

      Amendment to the United States Constitution and Article 1, section 11 of the

      Indiana Constitution, (2) whether the State presented sufficient evidence to

      support the above convictions, and (3) whether Muhammad’s sentence is

      inappropriate in light of the nature of his offenses and his character. We

      conclude that Muhammad’s rights were not violated under either constitutional

      provision and therefore, the trial court did not abuse its discretion in admitting

      evidence obtained from a valid search. We also conclude the State presented

      sufficient evidence to support the challenged convictions and Muhammad’s

      sentence is not inappropriate. We therefore affirm his convictions and sentence.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 2 of 25
                             Facts and Procedural History                                   1




[2]   Muhammad and Deidra Trail were involved in a relationship and had lived

      together for approximately one year. On July 8, 2018, Muhammad threw a

      Bluetooth speaker at Trail during an argument, striking her in the forehead. As

      a result, Trail sustained an injury to her forehead that lasted “[p]robably a week

      and a half.” Transcript, Volume II at 72. Following the incident, Muhammad

      left the residence in Trail’s car, a red Hyundai.


[3]   In the early morning hours of July 9, Officer Evan McCain of the Lafayette

      Police Department (“LPD”) was dispatched to an automobile accident

      involving a rolled over white Cadillac. When Officer McCain arrived on the

      scene, other officers were present, but the driver of the Cadillac had fled. Officer

      McCain ran the vehicle’s license plate through the Bureau of Motor Vehicles

      (“BMV”) database and discovered Paris Hill was the registered owner of the

      vehicle. Officer McCain familiarized himself with a BMV photograph of Hill

      and began checking the area to locate him.


[4]   Officer McCain had traveled approximately four blocks away from the accident

      scene when he drove by a red Hyundai and noticed an individual matching

      Hill’s description riding in the backseat. Officer McCain advised dispatch that




      1
        The facts in this case are comprised of testimony from the trial held on August 6, 2019, as well as evidence
      from the suppression hearing held on May 17 that is not in direct conflict with evidence introduced at the
      trial. See Kelley v. State, 825 N.E.2d 420, 426 (Ind. Ct. App. 2005).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020                    Page 3 of 25
      he had located Hill and followed the vehicle until another officer was in the

      area.


[5]   After the driver of the Hyundai failed to signal two hundred feet prior to a turn,

      Officer McCain initiated a traffic stop. LPD Officer Israel Salazar arrived on

      the scene and the two officers approached the vehicle. Four people were in the

      vehicle: Hill and his girlfriend were sitting in the back seats; another woman,

      Amanda, was in the driver’s seat; and Muhammad was sitting in the front

      passenger seat. The officers immediately identified the “[p]lain smell of burnt

      marijuana” emanating from the passenger compartment of the vehicle. Id. at

      101. Officer Salazar also noticed that Hill had “cuts and scrapes” that were

      consistent with an accident. Id. at 35. The officers then removed Hill and his

      girlfriend from the vehicle and placed them in handcuffs “for the hit and run

      investigation and then waited on other units to get there to assist with what had

      now . . . become a narcotics investigation[.]” Id. at 23. Muhammad and

      Amanda remained inside the vehicle.


[6]   After additional officers arrived, Officers McCain and Salazar re-approached

      the vehicle and this time, they noticed a pipe in the center console of the vehicle

      that had burnt marijuana residue in the bowl. Id. at 30. Muhammad and

      Amanda were removed from the vehicle, handcuffed, and placed in separate

      police cars. Based on the odor of marijuana and the presence of the pipe,

      officers conducted a search of the vehicle. One officer bumped into the glove

      compartment and a loaded .22 caliber handgun fell from the glove

      compartment to the front passenger floorboard. In the trunk, officers located a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 4 of 25
      second loaded .22 caliber handgun, a shotgun, ammunition, and a jar

      containing a plant-like material that field tested positive for marijuana.


[7]   At some point, Trail arrived on the scene to pick up her vehicle. While talking

      with Trail, Officer McCain observed a discolored lump on her forehead, and

      she told him how she sustained the injury. Officer McCain asked Trail if she

      owned any firearms or knew where the firearms in the vehicle came from; Trail

      indicated that she did not own any firearms.


[8]   The State charged Muhammad with Count I, unlawful possession of a firearm

      by a serious violent felon, a Level 4 felony; Count II, carrying a handgun

      without a license, a Level 5 felony; Count III, domestic battery, a Class A

      misdemeanor; Count IV, carrying a handgun without a license, a Class A

      misdemeanor; Count V, possession of marijuana, a Class B misdemeanor; and

      Count VI, invasion of privacy, a Class A misdemeanor.


[9]   The trial court held a pre-trial hearing on a motion to suppress evidence filed by

      Muhammad and denied his motion. At trial, over Muhammad’s objection, the

      trial court admitted into evidence pictures of the firearms and marijuana found

      inside the red Hyundai. The jury subsequently found Muhammad guilty of

      Counts III through VI and, in the second phase of trial, the trial court found

      Muhammad guilty of Counts I and II.2 The trial court sentenced Muhammad to




      2
       Due to double jeopardy concerns, the trial court dismissed Counts II and IV and entered judgment of
      conviction on the remaining counts. See Appealed Order at 2.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020               Page 5 of 25
       an aggregate sentence of eleven and one-half years with two and one-half years

       suspended to probation. Muhammad now appeals.



                                 Discussion and Decision
                                   I. Admission of Evidence
                                       A. Standard of Review
[10]   Muhammad argues the trial court erred in denying his motion to suppress;

       however, because he brings this appeal following his trial, rather than as an

       interlocutory appeal of the denial of his motion to suppress, we review this

       appeal as a challenge to the trial court’s admission of evidence at trial. Clark v.

       State, 994 N.E.2d 252, 259 (Ind. 2013). A trial court’s decision to admit or

       exclude evidence is reviewed for an abuse of discretion. Young v. State, 980

       N.E.2d 412, 417 (Ind. Ct. App. 2012). An abuse of discretion occurs when the

       trial court’s decision is clearly against the logic and effect of the facts and

       circumstances before it or when the court has misinterpreted the law. Id. We do

       not reweigh the evidence, and we consider conflicting evidence most favorable

       to the verdict. Patterson v. State, 958 N.E.2d 478, 482 (Ind. Ct. App. 2011). We

       also consider uncontested evidence favorable to the defendant. Id. The

       constitutionality of a search is a question of law, which we review de novo.

       Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013). Similarly, determinations of

       reasonable suspicion and probable cause are reviewed de novo. Myers v. State,

       839 N.E.2d 1146, 1150 (Ind. 2005).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 6 of 25
                                   B. The Fourth Amendment
[11]   Muhammad first argues that the trial court abused its discretion in admitting

       photos of the evidence found during the search because it was obtained in

       violation of his rights under the Fourth Amendment to the United States

       Constitution, which guarantees:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no Warrants shall issue, but upon
               probable cause, supported by Oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.


       This protection has been extended to the States through the Fourteenth

       Amendment. Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013). To deter state

       actors from violating the prohibition against unreasonable searches and

       seizures, evidence obtained in violation of the Fourth Amendment is generally

       inadmissible in a prosecution of the person whose rights were violated. Clark,

       994 N.E.2d at 260; see also Segura v. United States, 468 U.S. 796, 804 (1984)

       (noting the exclusionary rule encompasses both “primary evidence obtained as

       a direct result of an illegal search or seizure” and any “evidence later discovered

       and found to be a derivative of an illegality”). Under the Fourth Amendment,

       warrantless searches and seizures are per se unreasonable, subject to a “few

       specifically established and well-delineated exceptions.” Katz v. Unites States,

       389 U.S. 347, 357 (1967) (footnote omitted). When a defendant challenges a




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 7 of 25
       warrantless search, it is the State’s obligation to prove the search fell within an

       exception to the warrant requirement. Clark, 994 N.E.2d at 260.


[12]   “One exception to the warrant requirement is the search incident to arrest,

       which permits ‘a search of the arrestee’s person and the area within his or her

       control.’” Durstock v. State, 113 N.E.3d 1272, 1278 (Ind. Ct. App. 2018)

       (quoting Clark, 994 N.E.2d at 261 n.10), trans. denied. An officer may conduct a

       search incident to a lawful arrest if the officer has probable cause to make an

       arrest. Curry v. State, 90 N.E.3d 677, 687 (Ind. Ct. App. 2017), trans. denied.

       Probable cause exists “when the totality of the circumstances establishes ‘a fair

       probability’—not proof or a prima facie showing—of criminal activity,

       contraband, or evidence of a crime[.]” Hodges v. State, 125 N.E.3d 578, 582 (Ind.

       2019) (quoting Illinois v.Gates, 462 U.S. 213, 238 (1983)). The determination of

       probable cause is “to be based on the factual and practical considerations of

       everyday life upon which reasonable and prudent persons act.” State v. Hawkins,

       766 N.E.2d 749, 751 (Ind. Ct. App. 2002), trans. denied.


[13]   Muhammad argues that the evidence obtained from the search of the vehicle

       should have been excluded because there was no probable cause for his arrest.

       See Appellant’s Brief at 13. We disagree. At the suppression hearing and at trial,

       Officers McCain and Salazar testified that when they approached the vehicle,

       they smelled a strong odor emanating from inside the vehicle. Both officers

       further testified that, based on their training and experience, they knew the odor

       to be burnt marijuana. This evidence is sufficient to support a finding of

       probable cause to search the vehicle. See Hawkins, 766 N.E.2d at 752 (stating

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 8 of 25
       that “when a trained and experienced police officer detects the strong and

       distinctive odor of burnt marijuana coming from a vehicle, the officer has

       probable cause to search the vehicle”). After removing Hill and his girlfriend

       from the vehicle, officers returned to the vehicle and observed a pipe in the

       center console containing burnt marijuana residue. Officer McCain testified

       that the pipe was in plain view and in close proximity to Muhammad. At the

       time, Muhammad was still an occupant of the vehicle seated in the front

       passenger seat making it probable that he had control over the pipe. These facts

       and circumstances would have warranted a reasonable person to believe there

       was a fair probability that Muhammad had committed a criminal act, that is,

       possession of marijuana, and thus, provided probable cause for his lawful arrest.


[14]   Having determined Muhammad’s arrest was lawful, we now turn to the issue of

       whether the search incident to the arrest was proper. Muhammad contends the

       search of the vehicle was improper under the search incident to arrest exception

       because “it was unreasonable to believe that [he] (or the other occupants) would

       access the vehicle when they were already detained, placed in handcuffs, and

       put in separate squad cars.” Appellant’s Br. at 18.


[15]   The search incident to arrest exception to the warrant requirement was first

       articulated in the seminal case Chimel v. California, in which the United States

       Supreme Court held a search incident to arrest is justified only “for a search of

       the arrestee’s person and the area ‘within his immediate control’—construing

       that phrase to mean the area from within which he might gain possession of a

       weapon or destructible evidence.” 395 U.S. 752, 763 (1969). Years later, the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 9 of 25
       Supreme Court held that “when a policeman has made a lawful custodial arrest

       of the occupant of an automobile, he may, as a contemporaneous incident of

       that arrest, search the passenger compartment of that automobile.” New York v.

       Belton, 453 U.S. 454, 460 (1981) (footnotes omitted). Then in Arizona v. Gant,

       the Court held that “circumstances unique to the automobile context justify a

       search incident to arrest when it is reasonable to believe that evidence of the

       offense of arrest might be found in the vehicle.” 556 U.S. 332, 335 (2009).


[16]   In Gant, the defendant was arrested for driving with a suspended license,

       handcuffed, and secured in the back of a police car. Police officers then

       searched his car and found drugs in the pocket of a jacket located on the

       backseat. The State justified the warrantless search as a search incident to

       arrest. The Court rejected that justification and noted that the search incident to

       arrest exception “derives from interests in officer safety and evidence

       preservation[.]” Id. at 338. The Court clarified that “[p]olice may search a

       vehicle incident to a recent occupant’s arrest only if the arrestee is within

       reaching distance of the passenger compartment at the time of the search or it is

       reasonable to believe the vehicle contains evidence of the offense of arrest.” Id.

       at 351 (emphasis added). Applying that principle, the Court concluded that the

       search of the defendant’s car was unreasonable because “police could not

       reasonably have believed either that [the defendant] could have accessed his car

       at the time of the search or that evidence of the offense for which he was

       arrested might have been found therein[.]” Id. at 344.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 10 of 25
[17]   Muhammad contends that Gant does not apply because he was secured away

       from the vehicle and “it was unreasonable to believe that [he] might access the

       vehicle” at the time of the search. Appellant’s Br. at 19. Although Muhammad

       is somewhat correct in that Gant does say the police may search a vehicle

       incident to arrest if the arrestee is within reaching distance of the vehicle, he

       fails to acknowledge the second justification for a search incident to arrest

       identified in Gant – police may also search a vehicle if “it is reasonable to

       believe the vehicle contains evidence of the offense of arrest.” 556 U.S. at 351.

       The circumstances here are different than the circumstances in Gant; that is, the

       defendant in Gant was arrested for driving with a suspended license. The Court

       noted that the police could not have reasonably found evidence of that offense

       in the vehicle. Here, Muhammad was arrested for possession of marijuana after

       officers smelled the odor of marijuana coming from the passenger compartment

       and saw the pipe containing marijuana in the center console. Given this

       evidence, it was reasonable for the officers to believe they would find additional

       evidence in the vehicle of the offense for which Muhammad was arrested and

       therefore, the search of the vehicle incident to arrest did not violate his Fourth

       Amendment rights.3




       3
         The State also argues that the warrantless search was justified by the automobile exception to the Fourth
       Amendment to the United States Constitution. Because we have concluded that the search was valid as
       incident to the arrest, we need not address the State’s alternative argument.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020                  Page 11 of 25
                                      C. Article 1, Section 11
[18]   Muhammad next argues that the search of the vehicle violated his rights under

       the Indiana Constitution because the officers “did not act reasonably.”

       Appellant’s Br. at 21. Article 1, section 11 of the Indiana Constitution

       guarantees:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularity
               describing the place to be searched, and the person or thing to be
               seized.


[19]   Although Article 1, section 11 is virtually identical to the Fourth Amendment

       textually, Indiana courts interpret the state constitutional provision differently

       from the federal provision: “The legality of a governmental search under the

       Indiana Constitution turns on an evaluation of the reasonableness of the police

       conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d

       356, 359 (Ind. 2005). We consider the following three factors in determining the

       reasonableness of a warrantless search: “1) the degree of concern, suspicion, or

       knowledge that a violation has occurred, 2) the degree of intrusion the method

       of the search or seizure imposes on the citizen’s ordinary activities, and 3) the

       extent of law enforcement needs.” Id. at 361. It is the State’s burden to

       demonstrate the reasonableness of the intrusion. State v. Gerschoffer, 763 N.E.2d

       960, 965 (Ind. 2002).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 12 of 25
[20]   Beginning with the first factor in Litchfield, Muhammad notes law

       enforcement’s initial concern was the automobile accident investigation and

       contends that once officers located Hill, their degree of concern was low. See

       Appellant’s Br. at 22. We, however, conclude that the degree of suspicion was

       high. Muhammad fails to acknowledge that when officers approached the

       Hyundai to conduct their investigation of the accident, both officers identified

       the strong odor of burnt marijuana coming from inside the vehicle. After the

       officers removed Hill and his girlfriend from the vehicle and secured them

       elsewhere, they returned and noticed a pipe in the center console, next to

       Muhammad, that contained burnt marijuana. This evidence, taken together

       with the reasonable inferences arising from such evidence, gave Officers

       McCain and Salazar a great deal of suspicion that a crime had been committed.

       Thus, this factor weighs in favor of the State.


[21]   Second, the degree of intrusion was low. The degree of intrusion is assessed

       from the defendant’s point of view. Mundy v. State, 21 N.E.3d 114, 118 (Ind. Ct.

       App. 2014). Here, Muhammad was already detained when the officers searched

       the vehicle, which belonged to his girlfriend and in which he had no ownership

       interest. See Masterson v. State, 843 N.E.2d 1001, 1007 (Ind. Ct. App. 2006)

       (considering, in evaluating the second Litchfield factor, that it was unclear to the

       police that the defendant owned the vehicle because it was registered to another

       individual), trans. denied. Furthermore, the interior search of the vehicle

       occurred after midnight. See Myers v. State, 839 N.E.2d 1146, 1154 (Ind. 2005)

       (noting that, with respect to the second Litchfield factor, “the intrusion, at least


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 13 of 25
       as to public notice and embarrassment, [can be] somewhat lessened because of

       the hour and place of the search”). Under these circumstances, the search was

       unlikely to impose a significant intrusion on Muhammad’s ordinary activities.

       Because the degree of intrusion was low, this factor also weighs in favor of the

       State.


[22]   Finally, when determining the extent of law enforcement needs, we consider

       the nature and immediacy of the governmental concern. Masterson, 843 N.E.2d

       at 1007. Here, we conclude the extent of law enforcement needs was high

       because the officers had probable cause to believe one of the occupants had

       been involved in a hit and run. In addition, the officers identified the smell of

       burnt marijuana – leading them to believe the occupants were in possession of

       or concealing illegal drugs. The articulated needs of law enforcement were

       heightened and therefore, this factor also weighs in favor of the State. Under the

       totality of the circumstances, we conclude that the search of the vehicle was

       reasonable and did not violate Muhammad’s rights under Article 1, section 11

       of the Indiana Constitution.


[23]   In sum, because Muhammad’s rights under the federal and state constitutions

       were not violated, the trial court did not abuse its discretion in admitting

       pictures of the evidence seized from the vehicle.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 14 of 25
                               II. Sufficiency of the Evidence
                                         A. Standard of Review
[24]   Muhammad challenges the sufficiency of the evidence of his possession of a

       firearm, marijuana, and battery convictions. When reviewing the sufficiency of

       the evidence required to support a criminal conviction, we do not reweigh the

       evidence or judge the credibility of the witnesses. Bailey v. State, 907 N.E.2d

       1003, 1005 (Ind. 2009). Instead, we consider only the evidence supporting the

       verdict and any reasonable inferences that can be drawn therefrom. Morris v.

       State, 114 N.E.3d 531, 535 (Ind. Ct. App. 2018), trans. denied. And we consider

       conflicting evidence most favorably to the verdict. Silvers v. State, 114 N.E.3d

       931, 936 (Ind. Ct. App. 2018). “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.” Bailey, 907 N.E.2d at 1005. It

       is not necessary for the evidence to overcome every reasonable hypothesis of

       innocence; it is sufficient if an inference may reasonably be drawn from the

       evidence to support the verdict. Silvers, 114 N.E.3d at 936.


              B. Constructive Possession of a Firearm and Marijuana
[25]   Muhammad first contends that the State presented insufficient evidence to

       support his convictions for unlawful possession of a firearm by a serious violent




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 15 of 25
       felon and possession of marijuana.4 Specifically, he argues that the State failed

       to prove that he constructively possessed a firearm and marijuana.


[26]   To convict Muhammad of unlawful possession of a firearm by a serious violent

       felon as a Level 4 felony, the State was required to prove beyond a reasonable

       doubt that Muhammad, a serious violent felon, knowingly or intentionally

       possessed a firearm. See Ind. Code § 35-47-4-5(c) (2018). And to convict

       Muhammad of possession of marijuana as a Class B misdemeanor, the State

       was required to prove beyond a reasonable doubt that Muhammad knowingly

       or intentionally possessed marijuana (pure or adulterated). See Ind. Code § 35-

       48-4-11(a).


[27]   A person actually possesses contraband when they have direct physical control

       over it, but “a conviction for a possessory offense does not depend on catching

       a defendant red-handed.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). When

       the State cannot show actual possession, a conviction may rest on proof of

       constructive possession. Id. A person constructively possesses an item when

       they have both the capability and the intent to maintain dominion and control

       over the item. Id. Because there was no evidence that Muhammad physically




       4
         Muhammad’s argument with respect to his possession of a firearm focuses primarily on the State’s failure to
       prove he constructively possessed a firearm with respect to Count II, carrying a handgun without a license.
       See Appellant’s Br. at 23-25. However, the trial court vacated this conviction due to double jeopardy concerns
       when it entered judgment of conviction for Count I, unlawful possession of a firearm by a serious violent
       felon. See Appealed Order at 2. Nonetheless, Muhammad acknowledges that his argument and analysis for
       carrying a handgun without a license also applies to his unlawful possession of a firearm by a serious violent
       felon conviction. See id. at 25. Either way, the crucial question is whether Muhammad constructively
       possessed the firearms found in the vehicle.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020                 Page 16 of 25
       possessed a firearm or marijuana, the State prosecuted Muhammad under a

       theory of constructive possession.


[28]   “When constructive possession is asserted, the State must demonstrate the

       defendant’s knowledge of the contraband[, which] may be inferred from . . . the

       exclusive dominion and control over the premise containing the contraband[.]”

       Woods v. State, 471 N.E.2d 691, 694 (Ind. 1984). If the control or possession of

       the premises is non-exclusive, there must be evidence of additional

       circumstances pointing to the defendant’s knowledge of the contraband. Id.

       Recognized additional circumstances include: (1) incriminating statements 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. Henderson v. State, 715 N.E.2d 833, 836 (Ind. 1999).

       These circumstances are not exclusive and ultimately, the question is whether a

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

       knew of the nature and presence of the contraband. Johnson v. State, 59 N.E.3d

       1071, 1074 (Ind. Ct. App. 2016).


[29]   Here, Muhammad did not have exclusive possession of the vehicle because

       there were three other passengers in the vehicle at the time of the search. Cf.

       Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) (holding that the defendant had

       exclusive possession of a vehicle when he was the only person in the car at the

       time he was stopped even though he alleged he had borrowed the car); Holmes v.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 17 of 25
       State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003) (holding a defendant did not

       have exclusive control over a vehicle when he was merely a passenger).

       Therefore, evidence of “additional circumstances” pointing to Muhammad’s

       knowledge of the nature and presence of the firearms and marijuana is required

       to support his conviction.


[30]   Although Muhammad was not in exclusive possession of the vehicle at the time

       of the stop, testimony at trial revealed that hours before, he and Trail had an

       argument at their residence and shortly thereafter, he drove away in Trail’s

       vehicle, which she allowed him to use “fairly freely[.]” Tr., Vol. II at 70. Trail

       testified that even though the vehicle belonged to her, she did not know where

       the drugs or guns came from. In addition, Muhammad was in close proximity

       to contraband, some of which was in plain view. Officers located a pipe

       containing burnt marijuana residue in plain view in the center console, which

       was next to Muhammad who was sitting in the front passenger seat. And the

       incriminating nature of the pipe was readily apparent, as Officer Salazar

       testified that he observed a “green rubber pipe with marijuana still in it.” Id. at

       35; see Gray, 957 N.E.2d at 175 (stating that a defendant’s proximity to

       contraband in plain view supports an inference of intent to maintain dominion

       or control if the contraband’s incriminating character is immediately apparent).

       Furthermore, while searching the passenger compartment of the vehicle, an

       officer bumped the glove compartment and one of the .22 caliber handguns fell

       from the compartment onto the passenger side floorboard – the same location

       where Muhammad sat in the vehicle.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 18 of 25
[31]   Based on this evidence, we conclude that a reasonable factfinder could infer

       that Muhammad knew of the nature and presence of the contraband and there

       was sufficient evidence to demonstrate that he constructively possessed a

       firearm and marijuana.


                                           C. Domestic Battery
[32]   Muhammad also argues there was insufficient evidence to support his

       conviction for domestic battery. To convict Muhammad of domestic battery as

       a Class A misdemeanor, the State was required to prove beyond a reasonable

       doubt that he knowingly or intentionally touched Trail in a rude, insolent, or

       angry manner. See Ind. Code § 35-42-2-1.3(a) (2016). A person engages in

       conduct “knowingly” if, “when he engages in the conduct, he is aware of a high

       probability that he is doing so.” Ind. Code § 35-41-2-2(b). “Evidence of

       touching, however slight, is sufficient to support a conviction for battery.” Ball

       v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011), trans. denied. The crux of

       Muhammad’s argument is that he did not hit or touch Trail and he did not have

       the necessary intent to commit the offense. See Appellant’s Br. at 27-28.


[33]   The evidence most favorable to the verdict is that Muhammad and Trail were

       involved in an argument throughout the day on July 8, 2018. When

       Muhammad was stopped by police early the next morning, Trail went to the

       scene to retrieve her vehicle. When Trail arrived, Officer McCain noticed a

       discolored “lump on [her] forehead” and asked her what happened. Tr., Vol. II

       at 112. Officer McCain testified that Trail told him Muhammad threw a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 19 of 25
Bluetooth speaker at her and it hit her in the head. This constitutes the requisite

“touching” contemplated in the statute. See Matthews v. State, 476 N.E.2d 847,

850 (Ind. 1985) (“While battery requires defendant to have intended to touch

another person, defendant need not personally touch another person since

battery may be committed by the unlawful touching by defendant or by any

other substance put in motion by defendant.”). Trail also testified that her

injury was painful and that the lump on her forehead lasted “[p]robably a week

and a half.” Tr., Vol. II at 72. A factfinder could conclude this evidence, taken

together with all reasonable inferences therefrom, establishes that Muhammad

knowingly threw a Bluetooth speaker at Trail in a rude, insolent, or angry

manner that caused her injury. Muhammad notes that Trail recanted her

statement to Officer McCain and testified at trial that Muhammad “threw a

speaker across the room . . . not at me, I don’t feel, but over towards my

direction and it didn’t hit me but I turned . . . and hit my head on the TV.” Id.

at 68-69. However, the jury was in the best position to hear all the evidence,

weigh Trail’s testimony, and make a determination of her credibility. We will

not second-guess the jury’s determination and to do so would require us to

reweigh the evidence and judge witness credibility, which we cannot do. See

Bailey, 907 N.E.2d at 1005.5




5
  Muhammad also argues that the State failed to prove that the offense occurred on the date alleged in the
charging information. The State alleged that Muhammad committed battery “[o]n or about July 9, 2018” and
Trail testified that the battery took place on July 8. Appellant’s Appendix, Volume 2 at 18. “Where, as here,
time is not an element of the offense, the State is not required to prove the offense occurred on the precise


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020                Page 20 of 25
                                    III. Inappropriate Sentence
[34]   Muhammad contends that his sentence is inappropriate because neither his

       offenses nor his character warrants the sentence imposed by the trial court.


[35]   Article 7, sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of sentences through Indiana Appellate Rule 7(B).

       King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) provides,

       “The Court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” Sentencing decisions rest within the discretion of the trial court and

       should receive considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222

       (Ind. 2008). “Such deference should prevail unless overcome by compelling

       evidence portraying in a positive light the nature of the offense (such as

       accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good

       character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[36]   Generally, the defendant bears the burden of demonstrating his sentence is

       inappropriate under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind.




       date alleged, and its presentation of evidence is not limited to events on that date.” Blount v. State, 22 N.E.3d
       559, 569 (Ind. 2014). The State is only required to prove the offense occurred within the statute of limitations.
       Poe v. State, 775 N.E.2d 681, 686 (Ind. Ct. App. 2002) (“Under Indiana law, the phrase ‘on or about June 23,
       2000’ clearly does not limit the State to only the events of June 23, 2000[.]”), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020                    Page 21 of 25
       2006), and we may look to any factors in the record for such a determination,

       Reis v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether

       we regard a sentence as [in]appropriate at the end of the day turns on our sense

       of the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell,

       895 N.E.2d at 1224.


                                     A. Nature of the Offense
[37]   We begin our analysis of the nature of the offense with the advisory sentence,

       which is the starting point selected by our legislature as an appropriate sentence

       for the crime committed. Reis, 88 N.E.3d at 1104. Muhammad was convicted of

       unlawful possession of a firearm by a serious violent felon, a Level 4 felony.

       The sentencing range for a Level 4 felony is two years to twelve years with an

       advisory sentence of six years. See Ind. Code § 35-50-2-5.5. The trial court

       sentenced Muhammad to nine years – a sentence that is above the advisory

       sentence but below the maximum sentence allowed. Muhammad was also

       convicted of domestic battery and invasion of privacy, both Class A

       misdemeanors. A person convicted of a Class A misdemeanor shall be

       imprisoned for not more than one year. See Ind. Code § 35-50-3-2. On each

       count, the trial court sentenced Muhammad to 365 days, a sentence clearly

       permitted by statute. Last, Muhammad was convicted of possession of

       marijuana as a Class B misdemeanor. A person who commits a Class B

       misdemeanor shall not be imprisoned for more than 180 days, Ind. Code § 35-

       50-3-3, and here, the trial court sentenced Muhammad to 180 days. Notably,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 22 of 25
       the trial court could have sentenced Muhammad to a total sentence of fourteen

       and one-half years in the DOC. The trial court, however, sentenced him to

       eleven and one-half years in the DOC. Therefore, Muhammad’s total sentence

       was not as lengthy as it could have been.


[38]   The nature of the offense is also found in the details and circumstances

       surrounding the offenses and the defendant’s participation therein. Perry v. State,

       78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, Muhammad and Trail got into an

       argument and he threw a Bluetooth speaker at Trail’s forehead, which caused a

       discolored, painful lump on her forehead that lasted more than one week.

       Muhammad then left their home in Trail’s car. Later, officers initiated a traffic

       stop and, after smelling marijuana, conducted a search of the vehicle and

       discovered marijuana and multiple loaded firearms. Although the nature of

       Muhammad’s crimes is not particularly egregious, we are unpersuaded that the

       nature of his crimes warrants a lesser sentence. Muhammad has failed to

       demonstrate that the nature of his offenses renders his sentence inappropriate.


                                  B. Character of the Offender
[39]   “A defendant’s life and conduct are illustrative of his or her character.” Morris,

       114 N.E.3d at 539. One relevant factor in assessing character is a defendant’s

       criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).

       The significance of criminal history varies based on the gravity, nature, and

       number of prior offenses in relation to the current offense. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 23 of 25
[40]   Here, Muhammad’s extensive criminal history began in 1993 when he was

       adjudicated a delinquent child for acts that, if committed by an adult, would

       constitute possession of a stolen vehicle. His adult criminal history consists of

       four felony convictions and three misdemeanors, several of which were

       convictions for crimes related to the instant offenses, namely carrying a

       handgun without a license, illegal possession of ammunition, and domestic

       battery. Muhammad’s criminal history illustrates a blatant disregard for the rule

       of law and shows that despite his frequent contact with our criminal justice

       system, he was not deterred from committing the instant crimes. See id.


[41]   Further, the record reveals that Muhammad has a history of mental illness and

       substance abuse. At the sentencing hearing, Muhammad testified that he was

       addicted to heroin and methamphetamine and on July 9, he received a call

       from Hill, from whom he typically got drugs, informing him that Hill had been

       in a car accident and needed help. See Tr., Vol. II at 167. Muhammad stated he

       “sprung to action[,]” in part, because he “figure[d he] could get [illegal drugs]

       for free if [he] help[ed] and save[d Hill] out of this situation.” Id. Therefore,

       Muhammad’s involvement in the instant offenses, to some extent, was driven

       by his need to fuel his addiction illustrating that, despite his extensive criminal

       history, he continues to struggle with substance abuse and associate himself

       with people who are involved with illegal drugs.


[42]   Muhammad does not offer clear examples of his good character. Although

       Muhammad has an associate degree and has maintained employment, neither



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 24 of 25
       amount to compelling evidence that his character is so positive as to warrant a

       reduction in his sentence.


[43]   Considering the nature of Muhammad’s offenses and character, we are not

       persuaded that his sentence is inappropriate. Therefore, his eleven and one-half

       year aggregate sentence is affirmed.



                                               Conclusion
[44]   Muhammad’s rights were not violated under the Fourth Amendment to the

       United States Constitution or Article 1, section 11 of the Indiana Constitution

       and therefore, the trial court did not abuse its discretion in admitting evidence

       obtained from the search of the vehicle. We also conclude the State presented

       sufficient evidence to support Muhammad’s convictions and his sentence is not

       inappropriate in light of the nature of the offenses and his character.

       Accordingly, we affirm.


[45]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020   Page 25 of 25
