Rickey R. Armour v. State of Indiana (mem. dec.) ( 2019 )

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