      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                             Jun 19 2019, 10:10 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
      Randall J. Hammond                                       Curtis T. Hill, Jr.
      Deputy Public Defender                                   Attorney General of Indiana
      Leonard, Hammond, Thoma & Terrill
                                                               Tyler G. Banks
      Fort Wayne, Indiana                                      Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Rickey R. Armour,                                        June 19, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2970
              v.                                               Appeal from the
                                                               Allen Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Wendy W. Davis, Judge
                                                               Trial Court Cause No.
                                                               02D04-1802-F2-4



      Kirsch, Judge.


[1]   After arranging three controlled buys of heroin between Rickey R. Armour

      (“Armour”) and a confidential informant (“the CI”), police searched Armour’s


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019                  Page 1 of 20
      residence, finding more heroin and two handguns. Armour was later convicted

      after a jury trial of: dealing in cocaine or narcotic drug,1 as a Level 2 felony;

      two counts of dealing in cocaine or narcotic drug,2 as Level 3 felonies; dealing

      in cocaine or narcotic drug,3 as a Level 4 felony; unlawful possession of a

      firearm by a serious violent felon,4 a Level 4 felony; and maintaining a common

      nuisance,5 a Level 6 felony. Armour raises the following issues on appeal:


                 I.       Whether sufficient evidence supported his convictions; and


                 II.      Whether the trial court committed prejudicial error in
                          refusing Armour’s proposed instruction on constructive
                          possession.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On November 22, 2017, Detective Kurt Franceus (“Detective Franceus”) of the

      Fort Wayne Police Department coordinated a controlled buy where Armour

      would sell heroin to the CI. Tr. Vol. I at 116-18. The CI exchanged text

      messages with Armour. Id. Armour told the CI to drive to the intersection of




      1
          See Ind. Code § 35-48-4-1(e)(2).
      2
          See Ind. Code § 35-48-4-1(d).
      3
          See Ind. Code § 35-48-4-1(c).
      4
          See Ind. Code § 35-47-4-5(c).
      5
          See Ind. Code § 35-45-1-5(c).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 2 of 20
      Gaywood Drive and Rudisill Boulevard in Fort Wayne. Id. at 118. The CI

      told Detective Franceus that he had met Armour in that area before. Id.

      Detective Franceus searched the CI before the heroin purchase. Id. at 116-17.


[4]   Driving an unmarked police car, Detective Franceus took the CI to the

      designated intersection and parked nearby. Id. at 119. The CI texted Armour

      to let him know he had arrived. Id. at 120. After a few minutes, a Toyota

      Matrix drove up and parked behind Detective Franceus’s vehicle. Looking into

      his rearview mirror, Detective Franceus, who was familiar with Armour’s

      appearance, identified the driver and sole occupant of the Matrix as Armour.

      Id. The CI exited Detective Franceus’s vehicle, walked to Armour’s vehicle,

      entered the front passenger door, and handed Armour pre-recorded buy money.

      Id. at 122-24. Armour then gave the CI a “bindle,” which is a folded piece of

      paper; the bindle contained a chunky substance consistent with heroin. Id. at

      124. The substance was later confirmed to be 0.74 grams of heroin. Tr. Vol. II

      at 22. Detective Franceus drove away and went to a post-buy location where

      he searched the CI again. Tr. Vol. I at 126.


[5]   On December 1, 2017, Detective Franceus arranged a second controlled buy

      with the same CI and Armour. Id. at 128. Police believed that Armour resided

      at 526 East Rudisill Boulevard (“the house”), and, at the time of the second

      controlled buy, Sergeant Brad Schultz (“Sergeant Schultz”) of the Fort Wayne

      Police Department was watching the house. Id. at 165-66. The CI exchanged

      text messages with Armour to buy heroin. Id. at 129-30. Armour directed the

      CI to the same location as the first controlled buy. The CI was searched, given
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 3 of 20
      $120 in buy money, and Detective Franceus drove him to the intersection of

      Gaywood and Rudisill. Id. When they arrived, the CI texted Armour that he

      had arrived at the agreed buy location. Id. at 130.


[6]   As Detective Franceus and the CI waited for Armour, Sergeant Schultz saw “a

      tall thin male black subject with long braids,” consistent with a description of

      Armour, exit the house and enter a white Monte Carlo, a vehicle police had

      already determined that Armour was known to drive. Id. at 166. As the Monte

      Carlo drove away, Sergeant Schultz followed it to the location where Detective

      Franceus and the CI were waiting. Id. at 130, 167. Detective Franceus

      identified Armour as the driver of the Monte Carlo. Id. at 130. The CI exited

      Detective Franceus’s vehicle, walked directly to the Monte Carlo, and entered

      the vehicle. Id. During the thirty seconds that the CI was inside of Armour’s

      vehicle, he handed the buy money to Armour. Id. at 129-31. The CI returned

      to Detective Franceus’s vehicle with 0.84 grams of heroin. Tr. Vol. II at 22.

      When Armour drove away, Sergeant Schultz followed him back to the house,

      which Armour entered. Tr. Vol. I at 167.


[7]   Detective Franceus arranged a third controlled buy for January 22, 2018. Id. at

      134. The CI texted Armour, who instructed the CI to meet Armour at the same

      location as the previous controlled buys. Id. at 135. The CI was searched,

      given money, and driven to the buy location by Detective Franceus. Id.

      Meanwhile, Detective Mark Walters (“Detective Walters”) of the Fort Wayne

      Police Department watched the house. Id. at 138, 171-72. He saw Armour pull

      up in the Toyota Matrix, exit the vehicle, approach the door at the house, open
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 4 of 20
      the door with a key, and enter. Id. at 173. Armour later left the house and

      drove to meet the CI. Id. at 136, 174. Armour parked in front of Detective

      Franceus’s vehicle. Id. at 136-37. The CI exited Detective Franceus’s vehicle,

      walked to Armour’s vehicle, entered it, and emerged thirty seconds later with

      1.4 grams of heroin. Id. at 131, 138; Tr. Vol. II at 22. After Detective Franceus

      departed, the CI was again searched. Tr. Vol. I at 139. Detective Walters

      followed Armour after the purchase and saw Armour return to the house. Id. at

      174-75.


[8]   Detective Franceus obtained a search warrant for the house, and the warrant

      was executed on January 30, 2018. Id. at 141. When officers entered the

      house, Armour and a female were sitting on the living room floor near a couch;

      the butt of a handgun could be seen jutting out from underneath the couch. 6 Id.

      at 142, 144, 188; State’s Exs. 9, 10. Also near that couch were two cell phones;

      the number for one of the cell phones matched the number of the cell phone

      that the CI used to contact Armour. Tr. Vol. I at 144; State’s Ex. 9. The master

      bedroom contained two closets, one containing female clothes and the other

      containing male clothes. Tr. Vol. I at 204. Inside the male closet, officers found

      a box containing paperwork bearing Armour’s name; one paper was an

      employment earnings statement, and the other paper was a receipt issued by an

      Allen County court in an infraction case. Tr. Vol. I at 225; State’s Exs. 14, 15.



      6
       Police found a second gun in a nightstand in the master bedroom, but we discuss only one handgun, the
      one found on the living room floor, except where reference to the second handgun is appropriate. Tr. Vol. I at
      147.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019                    Page 5 of 20
       Also inside that closet, officers found: (1) a bag containing 18.03 grams of

       heroin; (2) $1,100.00 in cash, which was inside a shirt pocket; and two digital

       scales. Tr. Vol. I at 206; Tr. Vol. II at 22; State’s Ex. 16. On the floor of the

       closet was a small safe, and Armour was in possession of the key that opened

       the safe. Tr. Vol. I at 206.


[9]    Armour was charged as follows: Count I - dealing in cocaine or narcotic drug,

       a Level 2 felony; Counts II and III - dealing in cocaine or narcotic drug, as

       Level 3 felonies; Count IV - dealing in cocaine or narcotic drug, a Level 4

       felony; Count V - unlawful possession of a firearm by a serious violent felon, a

       Level 4 felony; Count VI - maintaining a common nuisance, a Level 6 felony;

       and Count VII - possession of marijuana, hash oil, hashish, salvia, or a

       synthetic drug, a Class B misdemeanor, which was later dismissed. Appellant’s

       App. Vol. II at 13, 22-31.


[10]   At trial, Stephanie Phommachanh (“Stephanie”), Armour’s girlfriend, testified

       that Armour was not living at the house when the search warrant was executed

       but that he did occasionally spend the night. Tr. Vol. II at 35-36. She admitted

       that she and Armour had lived together at the house for some time but

       explained that Armour moved out so that they could figure out their

       relationship. Id. Stephanie also testified that at the time of the search warrant,

       her brother in law, Breondon Pinkston (“Pinkston”), was living with her. Id. at

       28-30. She further explained that because Pinkston was living with her, she

       gave him one of the two closets in the master bedroom to store his things. Id. at



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 6 of 20
       34-35. Stephanie also testified that the cash found in the closet was hers and

       that she owned the two guns found in the residence. Id. at 32-33.


[11]   At trial, Armour proposed the following final instruction on constructive

       possession:


               Constructive possession is the intent and capability to maintain
               dominion and control over the item. Proof of a possessory
               interest in the dwelling where the item is found might be
               adequate to show the capability to maintain control over the
               item. However, when possession of the dwelling is not exclusive, the
               inference of intent must be supported by additional circumstances that
               point to the Defendant’s knowledge of the nature of the item and
               its presence. Mere presence where an item is located or
               association with person [sic] who possess [sic] the item is not
               alone sufficient to support a finding of constructive possession.


       Appellant’s App. Vol. II at 102 (emphasis added). The trial court rejected this

       instruction and instead gave the definition of possession from the Indiana

       Pattern Jury Instructions:


               The word “possess” means to own or to exert control over. The
               word “possession” can take on several, but related, meanings.


               There are two kinds of “possession” - actual possession and
               constructive possession. A person who knowingly has direct
               physical control of a thing at a given time is then in actual
               possession of it. A person who, although not in actual
               possession, knowingly has both the power and the intention at a
               given time to exercise control over a thing, either directly or
               through another person or persons, is then in constructive
               possession of it.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 7 of 20
        Possession may be sole or joint. If one person alone has actual or
        constructive possession of a thing, then the possession is sole. If
        two or more persons share actual or constructive possession of a
        thing, then possession is joint.


        Possession may be actual or constructive, and either alone or
        jointly with others.


Appellant’s App. Vol. II at 118. See Ind. Pattern Jury Instructions-Criminal

14.3060. The jury found Armour guilty on all counts. Tr. Vol. II at 90, 101;

Appellant’s App. Vol. II at 133, 135-36. The trial court sentenced Armour to

concurrent terms for all six counts, resulting in an aggregate sentence of twenty-

five years. Id. at 135. Armour now appeals his convictions.


                               Discussion and Decision

                              I.       Sufficiency of Evidence
Armour argues that the evidence was insufficient to support each of his six

convictions.


        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.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 8 of 20
       Parks v. State, 113 N.E.3d 269, 272 (Ind. Ct. App. 2018) (internal citations

       omitted). It is not necessary that evidence overcome every reasonable

       hypothesis of innocence. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016).

       Evidence is sufficient to support the verdict if an inference may reasonably be

       drawn from the evidence. Id.


[12]   Armour makes one set of arguments for the convictions arising out of the three

       controlled buys7 and another set of arguments for the convictions arising out of

       the drugs and weapons found at the house.8 As to the convictions arising out of

       the controlled buys, Armour argues that: 1) during each controlled buy, no

       officer witnessed the actual exchange of heroin and cash between Armour and

       the CI; and 2) the evidence as to Armour’s identify as the perpetrator was

       insufficient. As to his claim that the State did not provide sufficient evidence to

       identify him as the perpetrator, Armour observes that there was no video

       surveillance of the drug transactions or still pictures taken of the transactions.

       Id. at 175. He also notes that Detective Franceus testified that he could identify

       the driver as Armour during the first two buys, but Armour questions the

       reliability of the identification because Armour claims Detective Franceus saw

       him Armour only through the rear-view mirror of Detective Franceus’s car. Id.




       7
        The convictions arising from the controlled buys are Counts II and III, dealing in cocaine or narcotic drug,
       as Level 3 felonies, and Count IV, dealing in cocaine or narcotic drug, a Level 4 felony.
       8
        The convictions arising from the contraband found at the house are Count I, dealing in cocaine or narcotic
       drug, a Level 2 felony; Count V, unlawful possession of a firearm by a serious violent felon, a Level 4 felony;
       and Count VI, maintaining a common nuisance, a Level 6 felony.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019                      Page 9 of 20
       at 120, 130. As to the third controlled buy, Armour correctly notes that

       Detective Franceus admitted that he could not make a positive identification of

       the person who sold heroin to the CI. Id. at 136.


[13]   Pursuant to Indiana Code section 35-48-4-1(a)(1)(C) the State was required to

       prove that Armour knowingly or intentionally delivered heroin to the CI.

       Furthermore, the State was required to show that Armour possessed the heroin

       before the buy and before he transferred it to the CI. See Ind Code § 35-48-1-11

       (“Delivery” is defined as “an actual or constructive transfer from one (1) person

       to another of a controlled substance . . . .”). “A properly conducted controlled

       buy will permit an inference the defendant had prior possession of a controlled

       substance.” Watson v. State, 839 N.E.2d 1291, 1293 (Ind. Ct. App. 2005).


[14]   We reject Armour’s sufficiency of evidence claims regarding the controlled

       buys. First, the State presented sufficient evidence that Armour was the person

       who sold heroin to the CI. For two of the drug buys, Detective Franceus

       identified Armour as the driver and sole occupant of the vehicle that arrived

       after the CI arranged the heroin sales. Tr. Vol. I at 120, 130. For the third buy,

       although Detective Franceus could not see Armour, Armour was driving the

       same vehicle that he had driven to the first controlled buy. Id. at 120; 136-37.

       Also, other officers followed Armour from the house and then back to the

       house. Id. at 171-75. One of the officers, Sergeant Schultz, saw someone who

       matched Armour’s description – a black male with shoulder-length braids -

       enter the house. Id. at 173-74. Further, the CI contacted the same phone

       number for each of the buys and a cell phone with this phone number was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 10 of 20
       found in the living room at the house, the residence where Armour was located

       when police executed the search warrant. Id. at 135, 144, 153. Second, the

       State presented sufficient evidence that the drug transactions actually occurred.

       During each of the three controlled buys, the CI entered Armour’s car only

       briefly before returning to Detective Franceus’s car with heroin. Id. at 120, 123-

       24, 129-31, 136, 138; Tr. Vol. II at 22. Third, because Armour does not

       challenge the propriety of the controlled buys, we may infer that Armour

       possessed the heroin before meeting the CI. See Watson, 839 N.E.2d at 1293.

       Thus, the State presented sufficient evidence to support Armour’s convictions

       arising out of the three controlled buys. Armour’s arguments impermissibly ask

       us to reweigh the evidence. See Parks, 113 N.E.3d at 272.


[15]   Armour also contends the State failed to present sufficient evidence to support

       the convictions arising out of the drugs and weapons that the police found when

       they executed the search warrant at the house. His argument rests on one

       assertion - he did not possess or constructively possess the heroin and handgun.

       As to the heroin, Armour argues that he did not have access to the closet and

       shoebox where the heroin was found. In support, he cites Stephanie’s

       testimony that he no longer lived at the house. See Tr. Vol. II at 28; 35-36.

       Thus, Armour argues that because he “was not living at the residence at the

       time, it is hard to say that anything in the home belonged to him.” Appellant’s

       Br. at 24. Citing Stephanie’s testimony again, Armour argues that the eighteen

       grams of heroin found in the shoebox belonged to Pinkston, Stephanie’s

       brother-in-law. Tr. Vol. I at 145-46, 206-07, 224-25; Tr. Vol. II at 28, 30.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 11 of 20
       Continuing to rely on Stephanie’s testimony, Armour claims that the $1,100,

       which was found in the pocket of a shirt, belonged to Stephanie. Tr. Vol. II at

       36-37.


[16]   As to the handgun, Armour contends, as he did with the heroin, that there was

       no evidence that he had access to the handgun or that he owned the handgun.

       He cites Stephanie’s testimony that she owned both handguns. Tr. Vol. II at 32-

       33. He also observes that both handguns were sent for fingerprint analysis, and

       Armour’s fingerprints could not be found on either handgun and that a DNA

       analyst testified that she could not confirm that Armour had ever handled either

       gun. Tr. Vol. I at 155; Tr. Vol. II at 4.


[17]   To prove constructive possession, the State must show that a defendant has

       both 1) the intent to maintain dominion and control over the contraband and 2)

       the capability to maintain dominion and control over the contraband. Goliday

       v. State, 708 N.E.2d 4, 6 (Ind. 1999). To prove dominion and control, the State

       must demonstrate that a defendant is able to reduce the controlled substance to

       his personal possession. Matthews v. State, 792 N.E.2d 934, 936-37 (Ind. Ct.

       App. 2003). A substance can be possessed jointly by a defendant and another

       without any showing that the defendant physically possessed the object.

       Armour v. State, 762 N.E.2d 208, 216 (Ind. Ct. App. 2002), trans. denied.

       However, when possession is non-exclusive, the State must show that the

       defendant had actual knowledge of the presence and illegal nature of the

       substance. Id. “This knowledge may be inferred from either the exclusive

       dominion and control over the premise containing the contraband, or, where,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 12 of 20
       as here, the control is non-exclusive, with evidence of additional circumstances

       pointing to the defendant's knowledge of the presence of the contraband.”

       Ericksen v. State, 68 N.E.3d 597, 601 (Ind. Ct. App. 2017), trans. denied

       (emphasis added). Additional circumstances include: 1) proximity of the

       defendant to the contraband; 2) location of the contraband within the

       defendant’s plain view; and 3) location of the contraband within close

       proximity of items owned by the defendant. Id. The third additional

       circumstance is highly relevant in determining whether the defendant knew

       about the presence and nature of the contraband. Jones v. State, 807 N.E.2d 58,

       65-66 (Ind. Ct. App. 2004) (bills and receipts, made out to defendant, in close

       proximity to contraband constituted evidence of additional circumstances that

       proved Jones had the intent to maintain dominion and control over the

       contraband), trans. denied.


[18]   Here, we find that the evidence sufficiently established that Armour

       constructively possessed the heroin found in the shoebox and the handgun

       found on the living room floor. First, the jury could have reasonably inferred

       that Armour resided at the house instead of just stopping by sporadically.

       During one of the controlled buys, an officer saw Armour enter the house with

       a key. Tr. Vol. I at 173. Officers saw a framed picture of Armour and his

       girlfriend and three children at the residence. Id. at 220; State’s Ex. 20. Police

       found paperwork bearing Armour’s name inside one of the closets. Tr. Vol. I at

       206; State’s Exs. 14, 15. Police found the heroin in a closet that contained male

       clothing; the clothing was consistent with Armour’s size. Tr. Vol. I at 205. On

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 13 of 20
       the floor of the closet was a small safe, and Armour was in possession of the

       key that opened the safe. Id. at 206. Thus, the State’s evidence sufficiently

       established that Armour constructively possessed the heroin. Cf. Wilkerson v.

       State, 918 N.E.2d 458 (Ind. Ct. App. 2009) (court affirmed finding defendant

       constructively possessed cocaine found in shoebox in bedroom closet of house

       where he lived). Armour’s reliance on Stephanie’s testimony is an

       impermissible request to reweigh the evidence. See Parks, 113 N.E.3d at 272.


[19]   As to the handgun, the State’s evidence also sufficiently established that

       Armour constructively possessed the handgun. Police found the handgun in

       plain view on the living room floor, and Armour was sitting on the floor within

       a few feet of the handgun. Tr. Vol. I at 142, 144, 188, 190. Because the

       handgun was in such close proximity to Armour, it was reasonable to infer that

       he had the ability to reduce the handgun to his personal possession. Armour’s

       arguments that he never handled the handguns and that Stephanie owned both

       handguns ask us to reweigh the evidence. See Parks, 113 N.E.3d at 272. Thus,

       there was sufficient evidence that Armour constructively possessed the

       handgun. Cf. Massey v. State, 816 N.E.2d 979 (Ind. Ct. App. 2004) (evidence

       sufficient to support finding that defendant exercised control over guns to

       establish constructive possession of firearms, although he had non-exclusive

       control; guns were found in his upstairs bedroom in home where defendant

       lived with his wife and children, and thus defendant had ability to reduce guns

       to his personal possession).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 14 of 20
[20]   Armour’s final sufficiency argument challenges his conviction for Count VI,

       maintaining a common nuisance.9 Armour contends the evidence showed that

       he did not live in the house and that the heroin belonged to Pinkston.

       Constructive possession of drugs provides sufficient evidence for maintaining a

       common nuisance. Jones, 807 N.E.2d at 67. Maintaining a structure as a

       common nuisance does not require a person’s ownership of the premises. Mack

       v. State, 23 N.E.3d 742, 758 (Ind. Ct. App. 2014), trans. denied. Instead, a

       structure used as a residence is controlled by the person who lives in it, and that

       person may be found in control of any drugs discovered inside the residence,

       whether he is the owner, tenant, or just an invitee. Id.


[21]   Here, the jury could have reasonably inferred that Armour resided at the home

       instead of just visiting sporadically. During one of the controlled buys, an

       officer saw Armour enter the house with a key. Tr. Vol. I at 173. When officers

       executed the search warrant at the home, they saw a framed picture of Armour

       and his girlfriend and three children. Id. at 220; State’s Ex. 20. Police found

       paperwork bearing Armour’s name in one of the closets. Tr. Vol. I at 206.

       Armour possessed a key to a small safe in the same bedroom closet. Id. This

       evidence that Armour resided at the home, and the evidence that he




       9
        “A person who knowingly or intentionally maintains a common nuisance commits maintaining a common
       nuisance, a Level 6 felony.” Ind. Code § 35-45-1-5(c).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019         Page 15 of 20
       constructively possessed the heroin found in the closest, provided sufficient

       evidence to support Armour’s conviction for maintaining a common nuisance.


                        II.      Instruction on Constructive Possession
[22]   Armour argues that the trial court committed prejudicial error when it refused

       his tendered instruction on constructive possession. Armour proposed the

       following final instruction on constructive possession:


               Constructive possession is the intent and capability to maintain
               dominion and control over the item. Proof of a possessory
               interest in the dwelling where the item is found might be
               adequate to show the capability to maintain control over the
               item. However, when possession of the dwelling is not exclusive,
               the inference of intent must be supported by additional circumstances
               that point to the Defendant’s knowledge of the nature of the item
               and its presence. Mere presence where an item is located or
               association with person [sic] who possess [sic] the item is not
               alone sufficient to support a finding of constructive possession.


       Appellant’s App. Vol. I at 102 (emphasis added). The trial court rejected this

       instruction and instead gave the definition of possession contained within the

       Indiana Pattern Jury Instructions, which does not include language about

       “additional circumstances”:


               The word “possess” means to own or to exert control over. The
               word “possession” can take on several, but related, meanings.
               There are two kinds of “possession”- actual possession and
               constructive possession. A person who knowingly has direct
               physical control of a thing at a given time is then in actual
               possession of it. A person who, although not in actual
               possession, knowingly has both the power and the intention at a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 16 of 20
               given time to exercise control over a thing, either directly or
               through another person or persons, is then in constructive
               possession of it.


               Possession may be sole or joint. If one person alone has actual or
               constructive possession of a thing, then the possession is sole. If
               two or more persons share actual or constructive possession of a
               thing, then possession is joint.


               Possession may be actual or constructive, and either alone or
               jointly with others.


       Id. at 118. See Ind. Pattern Jury Instructions-Criminal 14.3060.


[23]   Jury instruction is left to the sound discretion of the trial court. O’Connell v.

       State, 970 N.E.2d 168, 172 (Ind. Ct. App. 2012. When we review a trial court’s

       refusal to give a proposed instruction, we ask whether the proposed instruction:

       1) is a correct statement of the law; 2) is supported by the evidence; 3) was

       already covered by other instructions. Id. Even if we find that a trial court

       erred in refusing a defendant’s proposed instruction, we will not reverse a

       conviction unless a defendant shows that his substantial rights have been

       prejudiced. Coats v. State, 697 N.E.2d 1261, 1262 (Ind. Ct. App. 1998), trans.

       denied; see also Peterson v. State, 699 N.E.2d 701, 706 (Ind. Ct. App. 1998).


[24]   Armour first argues that his proposed instruction correctly stated that where

       possession of a residence is non-exclusive, the State must show “additional

       circumstances” to establish that a person knew about the presence of the




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 17 of 20
       controlled substance to prove the person’s intent to possess the controlled

       substance. In support, he quotes Bergfield v. State:.


                [W]hen possession of the premises is not exclusive, the inference
                of intent must be supported by additional circumstances pointing
                to an accused’s knowledge of the nature of the controlled
                substances and their presence.


       531 N.E.2d 486, 490 (Ind. 1988); see also Macklin v. State, 701 N.E.2d 1247, 1251

       (Ind. Ct. App. 1998).10 Thus, Armour contends that the instruction is a correct

       statement of the law. He also argues that the evidence supported giving his

       proposed instruction because the evidence established, at most, that his

       possession of the house was non-exclusive. Notably, the State agrees that

       Armour’s proposed instruction was a correct statement of the law and that the

       evidence supported giving the instruction. See Appellee’s Br. at 18.


[25]   Here, we agree that the instruction was a correct statement of the law. See

       O’Connell, 970 N.E.2d at 172; Bergfield, 531 N.E.2d at 490; see also Appellee’s Br.

       at 18. We also agree with Armour that his proposed instruction was not

       covered by other instructions. Finally, we agree that the evidence supported the




       10
         The State correctly observes that Bergfield and Macklin address: (1) what constitutes sufficient evidence of
       constructive possession to support a conviction, not how constructive possession should be defined in a jury
       instruction; and (2) that our appellate courts have cautioned against using language from sufficiency-of-
       evidence cases to determine the proper language of an instruction. See, e.g., Batchelor v. State, 119 N.E.3d 550,
       563 (Ind. 2019); Ludy v. State, 784 N.E.2d 459, 462 (Ind. 2003). However, the State does not demonstrate
       how our courts’ misgivings about using sufficiency-of- evidence cases to determine the appropriate language
       for an instruction apply here, specifically that using language from a sufficiency case for an instruction could
       place too much emphasis on certain facts. See Brooks v. State, 113 N.E.3d 782, 785 (Ind. Ct. App. 2018).
       Thus, we have no qualms about looking to Bergfield and Macklin for guidance on this issue.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019                      Page 18 of 20
       giving of the instruction because even though the evidence supported the

       inference that Armour resided at the home, the evidence left open the

       possibility that his possession of the home was non-exclusive as the evidence

       supported that Stephanie also resided there. See O’Connell, 970 N.E.2d at 172.

       Therefore, in refusing Armour’s instruction, the trial court committed error.


[26]   However, the error was not prejudicial. In Coats v. State, 697 N.E.2d 1261, 1263

       (Ind. Ct. App. 1998), trans. denied, we found that the trial court erred by refusing

       Coats’s tendered instruction that would have advised the jury that in a

       prosecution for operating a motor vehicle while suspended, the State must

       prove that a defendant knew that his license was suspended. However, we

       found that the error was harmless because, at trial, the State introduced Bureau

       of Motor Vehicles records showing that it had mailed notice of Coats’s

       suspension to him. Id. at 1263-64. Thus, we held that the trial court’s improper

       refusal to give the tendered instruction did not require reversal. Id. at 1264.


[27]   Here, the refusal to give the instruction was likewise harmless because the State

       presented substantial evidence of Armour’s intent to constructively possess the

       heroin and handgun. See Bergfield, 531 N.E.2d at 490; Macklin, 701 N.E.2d at

       1251. For instance, police found the heroin in a closet that contained male

       clothing, and the clothing was consistent with Armour’s size. Tr. Vol. I at 205.

       They also found a small safe on the floor in the closet, and Armour possessed

       the key to the safe. Id. at 206. Police also found a box that contained

       paperwork bearing Armour’s name. Id.; State’s Exs. 14, 15. As to the handgun,

       the officers saw Armour sitting on the living room floor within a few feet of the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 19 of 20
       handgun, which was in Armour’s plain view. Id. at 142, 144, 188; State’s Exs. 9,

       10. Thus, because the State presented substantial evidence of additional

       circumstances about Armour’s intent to possess the heroin and handgun, the

       trial court’s refusal of Armour’s proposed instruction did not prejudice his

       substantial rights. See Coats, 697 N.E.2d at 1262.


[28]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2970 | June 19, 2019   Page 20 of 20
