Romell Colvin v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICK A. DUFF GREGORY F. ZOELLER
Duff Law, LLC Attorney General of Indiana
Evansville, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
Jul 16 2013, 9:42 am
IN THE
COURT OF APPEALS OF INDIANA
ROMELL COLVIN, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1212-CR-576
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Wayne S. Trockman, Judge
Cause No. 82D02-1011-FD-1108
July 16, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Romell Colvin (“Colvin”) appeals his conviction in Vanderburgh Superior Court
for Class D felony dealing in marijuana. Colvin argues that the State presented
insufficient evidence to support his conviction.
We disagree and affirm.
Facts and Procedural History
On November 1, 2010, Colvin’s then-girlfriend, Jernice Mitchell (“Mitchell”)
rented a car in Clarksville, Tennessee. Mitchell asked Colvin to travel to Calumet City,
Illinois, to pick up her brother, Jerome Morris (“Morris”) and bring him back to
Clarksville for the holidays. Mitchell did not list Colvin or Morris as authorized drivers
on the rental agreement, but Colvin left Clarksville, Tennessee around noon on
November 2, 2010, driving the car north by himself.
Colvin arrived in Calumet City, Illinois, at the home of Mitchell’s mother around
6:30 or 7:00 that evening. Upon Colvin’s arrival, Morris left in the rental car, and did not
return until the following morning. Colvin, who had not been prepared to spend the night
and had failed to pack extra clothes or toiletries, slept at Mitchell’s mother’s home until
Morris returned.
Around 5:00 a.m. on November 3, 2010, Morris returned with the rental car and
awakened Colvin so that the two could leave immediately. The two departed Calumet
City, Illinois, for Clarksville, Tennessee, and Morris drove for most of the trip. Around
11:30 a.m., the two stopped near Evansville, Indiana, and decided that Colvin should
drive.
2
Approximately five minutes later, at 11:35 a.m., Officer Lenny Reed (“Reed”) of
the Evansville Police Department was on assignment pursuant to an aggressive driving
grant1 on southbound Highway 41. Reed saw the vehicle, driven by Colvin, following
too closely to the vehicle in front of it, and initiated a traffic stop.
Colvin’s car had a Texas license plate, and when Reed asked Colvin and Morris to
produce their driver’s licenses, Colvin produced a Missouri license and Morris produced
an Illinois license. Colvin also produced the rental agreement. Reed informed Colvin
that he had been stopped for following too closely, which Colvin admitted. During their
brief initial conversation, Reed noticed that Colvin was nervous. Reed also smelled the
odor of raw marijuana emanating from the car.
When Reed examined the rental agreement, he saw that the car had been rented
from Enterprise Rent-A-Car Company of Tennessee (“Enterprise”) in Clarksville,
Tennessee. Although the agreement was valid from November 1 to November 8, 2010,
Reed saw that neither Morris nor Colvin was authorized to drive the car. Rather, the
rental agreement was only in Mitchell’s name, and the agreement stated, “NO OTHER
DRIVERS PERMITTED.” Ex. Vol. I, State’s Ex. 1 (emphasis in original). Colvin
informed Officer Reed that Mitchell was his girlfriend, and also that he had driven the car
to Chicago and was headed back to Clarksville, Tennessee.
Officer Reed called Enterprise, and was informed that neither Colvin nor Morris
was to have control of the car. Enterprise requested that the vehicle be towed to its
nearest rental facility. Reed also called a K-9 officer to the scene, because he had
1
An aggressive driving grant is a patrol order, under which police officers look for aggressive driving and
issue infractions for speeding, following too closely, and other dangerous driving habits.
3
smelled the odor of raw marijuana. Officer Brent Hoover (“Hoover”) arrived with his
police dog, Gonzo, shortly thereafter.
Upon Hoover’s arrival, Colvin was already outside the car, and Morris was asked
to step outside as well. Hoover also noted the scent of raw marijuana emanating from the
car before running Gonzo clockwise around the car. Gonzo alerted at the area of the
car’s trunk. According to protocol, Hoover ran Gonzo around the car in the opposite
direction to verify the alert. Gonzo again alerted at the area of the trunk, and Hoover then
opened the trunk, encountering the overwhelming scent of raw marijuana.
Inside the trunk, Hoover discovered a white, semi-opaque trash bag, and also a
small plastic shopping bag. Through the semi-opaque trash bag, Hoover could see green
material showing through. Upon opening the trash bag, Hoover encountered nine clear
gallon-sized baggies containing a green leafy substance that he recognized as marijuana
from his police training. Inside the shopping bag were jeans, a pair of shoes and a
toothbrush. Morris told Reed that the clothing belonged to him. The officers also found
three cell phones in the car. At that point, Morris and Colvin were arrested and searched
incident to arrest, and $1,150 in cash was found on Morris’s person.
Detective Chris Goergen of Evansville’s joint drug task force arrived to take
custody of the evidence, and to take a field weight of the marijuana baggies. The
baggies, altogether, weighed 4,000 grams, or approximately nine pounds. 2 The
investigating officers determined that the amount of marijuana found in the trunk was not
2
One pound is equivalent to approximately 454 grams.
4
consistent with personal use.3 The baggies were then delivered to the State Police Lab,
and a forensic scientist tested a sample of the contents from two of the baggies, both of
which tested positive for marijuana.
Just over a year later, on November 8, 2011, Colvin was charged in Vanderburgh
Superior Court with Class D felony dealing in marijuana. Colvin was convicted in a jury
trial on November 15, 2012. On December 10, 2012, the trial court sentenced Colvin to a
two-year sentence in the Department of Correction, the entirety suspended to probation.
Colvin now appeals.
Discussion and Decision
Colvin argues that the State presented insufficient evidence to support his
conviction. Our standard of review for a challenge to the sufficiency of the evidence is
well settled. This court does not reweigh evidence, nor will we consider the credibility of
witnesses. Allen v. State, 798 N.E.2d 490, 500 (Ind. Ct. App. 2003) (citing Cox v. State,
774 N.E.2d 1025, 1028-29 (Ind. Ct. App. 2002)). We will consider only evidence that is
favorable to the verdict, along with reasonable and logical references that may be drawn
therefrom. Id. (citing Alspach v. State, 755 N.E.2d 209, 2010 (Ind. Ct. App. 2001), trans.
denied). If there is substantial evidence of probative value to support the trier of fact’s
verdict, we will affirm the conviction. Id. Circumstantial evidence alone may sustain a
conviction if the circumstantial evidence supports a reasonable inference of guilt. Id.(citing Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000)).
3
Specifically, Detective Goergen testified that an amount of marijuana for personal use is typically
around 30 grams, and the amount and manner in which the marijuana in this case was packaged indicated
intent to distribute.
5
Colvin argues that the State failed to present sufficient evidence because it relied
on a theory of constructive possession but failed to prove that Colvin had both the
capability and intent to exercise control over the marijuana. Indiana Code section 35-49-
4-10 states, in relevant part:
A person who knowingly or intentionally . . . delivers marijuana . . . pure or
adulterated; or possesses, with intent to . . . deliver marijuana . . . commits
dealing in marijuana. . . . The offense is a Class D felony if . . . the amount
involved is more than thirty (30) grams but less than ten (10) pounds of
marijuana.
Possession can be sole or joint, actual or constructive. The State’s theory in this case was
that Morris and Colvin possessed the nine pounds of marijuana jointly, and that Colvin,
in operating the car, had constructive possession of the marijuana.
This court has held that “[c]onstructive possession is established by showing the
defendant has the intent and capability to maintain dominion and control over the
contraband.” Godar v. State, 643 N.E.2d 12, 14 (Ind. Ct. App. 1994), trans. denied,
(citing Jackson v. State, 588 N.E.2d 588, 591 (Ind. Ct. App. 1992). A trier of fact may
infer the requisite intent from the voluntary commission of the act. Id. (citing Johnson v.
State, 617 N.E.2d 559, 563 (Ind. Ct. App. 1993)). Joint possession can be established
without any showing that the defendant had actual physical control of the contraband. Id.However, in a case of non-exclusive possession, the State must prove that the defendant
had actual knowledge of the presence and illegal character of the substance. Id.Circumstantial evidence that is indicative of actual knowledge can include factors such as
proximity of the contraband to the defendant, furtive gestures, and the place where the
contraband is found. Carnes v. State, 480 N.E.2d 581, 586 (Ind. Ct. App. 1985).
6
Colvin contends that the State’s proffered evidence failed to establish that he had
actual knowledge of the marijuana. However, the State did introduce evidence to
establish that Colvin was driving the car, that he and Morris had been in the car for
around seven hours that day, that Colvin behaved nervously throughout his interactions
with police, and that the scent of the raw marijuana was noticeable from outside the
vehicle. In light of that evidence, a reasonable trier of fact could infer that Colvin, too,
could smell the marijuana and was thus aware of its presence. See Adams v. State, 946
N.E.2d 630, 633 (Ind. Ct. App. 2011), summarily aff’d in relevant part, 960 N.E. 793,
796 (Ind. 2012) (holding that where a police officer could smell marijuana through the
open passenger-side window of a vehicle, knowledge of marijuana could be imputed to
the passenger). Additionally, because Colvin was driving the vehicle at the time of the
stop and had also driven it from Tennessee to Illinois, the jury could also infer that
Colvin had the capability to access the car’s trunk and the marijuana.
Colvin’s nervous demeanor also supports constructive possession, because it could
reasonably be considered a furtive gesture. Cf. Godar, 643 N.E.2d at 15 (holding that a
passenger in proximity to concealed drugs who did not act furtively did not demonstrate
knowledge of its presence). Finally, the jury reasonably found that Morris and Colvin
intended to deliver the marijuana for dealing based on the amount of marijuana found and
the long interstate journey taken by the men in the rental car neither was authorized to
drive. See Berry v. State, 574 N.E.2d 960, 963 (Ind. Ct. App. 1991), trans. denied
(holding that possession of large amount of a narcotic substance is circumstantial
evidence of intent to deliver).
7
This court does not reweigh evidence on appeal. Allen, 798 N.E.2d at 500. The
circumstantial evidence in this case, together with the reasonable inferences the jury
made from that evidence, is sufficient to uphold Colvin’s conviction on appeal.
Affirmed.
BAKER, J., and MAY, J., concur.
8