Raihiem Johnson v. State of Indiana , 2016 Ind. App. LEXIS 343 ( 2016 )

FILED
Sep 16 2016, 8:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Neil L. Weisman Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Raihiem Johnson, September 16, 2016
Appellant-Defendant, Court of Appeals Case No.
71A04-1605-CR-1042
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff. Miller, Judge
Trial Court Cause No.
71D01-1505-F6-332
Najam, Judge.
Statement of the Case
[1] Raihiem Johnson appeals his conviction for possession of a narcotic drug, as a
Level 6 felony, following a jury trial. Johnson raises a single issue for our
review, namely, whether the State presented sufficient evidence to demonstrate
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that he constructively possessed heroin found in a vehicle Johnson had been
operating. We affirm.
Facts and Procedural History
[2] On May 18, 2015, St. Joseph County Police Department Officer Randy
Rodriguez observed Johnson driving a vehicle1 with an improperly affixed
license plate. Accordingly, Officer Rodriguez initiated a traffic stop and
approached the driver’s side window. As he exited his vehicle, Officer
Rodriguez observed Johnson stick his head out the driver’s window and look
back at him while Johnson’s hands remained “inside the vehicle
but . . . down in between the seats,” which looked like Johnson was “[s]tuffing
something” away. Tr. at 35-36. And, upon approaching Johnson, Officer
Rodriguez observed that Johnson “had both of his hands in between his seat
and the driver’s side door.” Id. at 35.
[3] Officer Rodriguez had Johnson and his passenger, Adam Weaver, who was in
the front passenger seat, exit the vehicle while he waited for a K-9 unit to
perform a sniff-search of the vehicle. Once the K-9 unit arrived, it alerted
officers to the presence of contraband in the vehicle. Officer Rodriguez then
searched the vehicle where he had seen Johnson’s hands and found heroin
wrapped in foil under the driver’s seat. Underneath the front of the driver’s
seat, Officer Rodriguez also found a small black box in which one might keep a
1
The mother of the vehicle’s passenger owned the vehicle.
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spare key, but this box had a “clear plastic baggie” that “contained
more . . . [h]eroin” wrapped in foil. Id. at 42.
[4] Officer Rodriguez then searched Johnson’s person and found a part of a pen
that had been cut at both ends and a piece of a credit card in one of Johnson’s
pockets. Inside the pen was a white powdery residue. Based on his training
and experience, Officer Rodriguez recognized the cut pen and credit card as
tools for ingesting narcotics. Officer Rodriguez also discovered foil in
Johnson’s wallet.
[5] Thereafter, the State charged Johnson with possession of a narcotic drug, as a
Level 6 felony. A jury found him guilty of that charge, and the trial court
entered its judgment of conviction and sentence accordingly. This appeal
ensued.
Discussion and Decision
[6] Johnson argues on appeal that the State failed to present sufficient evidence to
support his conviction. Our standard for reviewing the sufficiency of the
evidence needed to support a criminal conviction is as follows:
First, we neither reweigh the evidence nor judge the credibility of
witnesses. Second, we only consider the evidence supporting the
[verdict] and any reasonable inferences that can be drawn from
such evidence. A conviction will be affirmed if there is
substantial evidence of probative value supporting each element
of the offense such that a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt. It is the
job of the fact-finder to determine whether the evidence in a
particular case sufficiently proves each element of an offense, and
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we consider conflicting evidence most favorably to the trial
court’s ruling.
Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (citations and quotation
marks omitted).
[7] Here, Johnson asserts that the State did not present sufficient evidence to show
that he constructively possessed2 the heroin found inside the vehicle. As we
have explained:
In order to prove constructive possession of drugs, the State must
show that the defendant has both: (1) the intent to maintain
dominion and control over the drugs; and (2) the capability to
maintain dominion and control over the drugs. Wilkerson v. State,
918 N.E.2d 458, 462 (Ind. Ct. App. 2009) (emphasis added)
(quoting Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004)). “The
capability prong may be satisfied by ‘proof of a possessory
interest in the premises in which illegal drugs are found.’”
Monroe v. State, 899 N.E.2d 688, 692 (Ind. Ct. App. 2009) (citing
Gee, 810 N.E.2d at 340). “This is so regardless of whether the
possession of the premises is exclusive or not.”[3] Id. . . .
With regard to the intent prong of the test, where, as here, a
defendant’s possession of the premises upon which contraband is
found is not exclusive, the inference of intent to maintain
dominion and control over the drugs must be supported by
additional circumstances pointing to the defendant’s knowledge
of the nature of the controlled substances and their presence. Id.
2
The State does not suggest that Johnson had actual possession of the heroin found inside the vehicle.
3
Johnson does not suggest that the State failed to demonstrate that he had the capability to maintain
dominion and control over the heroin.
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(citing Gee, 810 N.E.2d at 341). Those additional circumstances
include:
(1) incriminating statements made by the defendant, (2)
attempted flight or furtive gestures, (3) location of
substances like drugs in settings that suggest
manufacturing, (4) proximity of the contraband to the
defendant, (5) location of the contraband within the
defendant’s plain view, and (6) the mingling of the
contraband with other items owned by the defendant.
Wilkerson, 918 N.E.2d at 462.
Houston v. State, 997 N.E.2d 407, 410 (Ind. Ct. App. 2013). In addition to the
above six circumstances, we have also recognized that the nature of the place in
which the contraband is found can be an additional circumstance that
demonstrates the defendant’s knowledge of the contraband. E.g., Carnes v. State,
480 N.E.2d 581, 587 (Ind. Ct. App. 1985), trans. denied. Those enumerated
circumstances are nonexhaustive; ultimately, our question is whether a
reasonable fact-finder could conclude from the evidence that the defendant
knew of the nature and presence of the contraband. See Gray v. State, 957
N.E.2d 171, 174-75 (Ind. 2011).
[8] Johnson asserts that the facts of his case are analogous to those in Houston. In
Houston, we held that the State failed to present sufficient evidence to
demonstrate that the driver of a vehicle constructively possessed contraband
found within the vehicle. 997 N.E.2d at 410-11. We reasoned as follows:
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In the present case, the evidence presented showed that the
cocaine was found inside the car in the “crevice between the
passenger seat and the center console.” Although this location
may have been within reach of the driver’s seat, where Houston
was seated, there was no evidence presented to show that
Houston had knowledge of the presence of the cocaine. No
testimony was presented to indicate that any of the occupants
were aware of the presence of the cocaine in the car. When
questioned by Officer Souther, Houston denied any knowledge of
the presence of the cocaine in the car, and both Green and
Hood[, the other occupants,] testified that the officers did not ask
them about their knowledge of the cocaine. No evidence was
presented that Houston attempted to flee or that he made any
furtive gestures. There was also no testimony to establish that
the cocaine was found in plain view of Houston as the driver of
the car, merely that it was found “in the crevice between the
passenger seat and the center console area” within reach of the
driver, but on the other side of the console. There was also no
evidence that the cocaine was contained near or comingled with
any items belonging to Houston.
Id. at 410 (citations omitted).
[9] We cannot agree with Johnson that the facts of Houston are analogous to the
facts in his case. Unlike in Houston, here numerous circumstances permitted a
reasonable fact-finder to conclude that Johnson had knowledge of the nature
and presence of the heroin. First, upon Officer Rodriguez initiating the traffic
stop, Johnson made furtive gestures. Specifically, he stuck his hands between
the driver’s side door and the seat.4 The heroin was found below the seat.
4
In his brief on appeal, Johnson asserts that Officer Rodriguez’s testimony regarding Johnson’s furtive
gestures is contradictory. We cannot agree. But, even if it were, Johnson’s argument would be that we
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Second, the heroin was in close proximity to Johnson; again, the heroin was
found directly under the seat in which Johnson had been sitting, not, as in
Houston, in a crevice between the passenger seat and the center console. Third,
the nature of the space demonstrates that Johnson knew of the nature and
presence of the heroin: it is highly unlikely that the vehicle’s other occupant
would or could, from the front passenger seat, access the space under the
driver’s seat without being observed by the stopping officer.
[10] We also agree with the State that the objects found on Johnson’s person support
the jury’s finding that he had knowledge of the nature and presence of the
heroin in the vehicle. Again, Officer Rodriguez found a cut pen containing a
white powdery residue, a piece of a credit card, and some foil on Johnson’s
person during the stop. Officer Rodriguez testified that the pen and piece of
credit card were consistent with objects used in the ingestion of heroin. He
further testified that the heroin discovered inside the vehicle had been wrapped
in foil. The significantly related characteristics of the items found on Johnson’s
person and the heroin found inside the vehicle that he had just been driving is
an additional circumstance that supports the fact-finder’s conclusion that
Johnson knew of the nature and presence of the heroin.
should credit that part of Officer Rodriguez’s testimony that is more favorable to Johnson over the testimony
that is less favorable. We will not reweigh the evidence on appeal; the jury had the whole of Officer
Rodriguez’s testimony before it and could weigh it accordingly.
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[11] In sum, the State presented sufficient evidence to demonstrate that Johnson had
the intent to maintain dominion and control over the heroin. As such, the State
met its burden to prove beyond a reasonable doubt that Johnson had committed
possession of a narcotic drug, as a Level 6 felony. We affirm his conviction.
[12] Affirmed.
Vaidik, C.J., and Baker, J., concur.
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