Jeremy Ross v. State of Indiana ( 2020 )

FILED
Sep 02 2020, 8:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael C. Borschel Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Ross, September 2, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-561
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff. Judge
The Honorable Richard E.
Hagenmaier, Magistrate
Trial Court Cause No.
49G21-1904-F6-14974
Bradford, Chief Judge.
Court of Appeals of Indiana | Opinion 20A-CR-561| September 2, 2020 Page 1 of 9
Case Summary
[1] In January of 2020, Jeremy Ross was convicted of Level 2 felony
methamphetamine dealing, Level 3 felony methamphetamine possession, and
Class A misdemeanor marijuana possession, for which he received an aggregate
sentence of ten years with seven years suspended. Ross contends that the trial
court erroneously admitted prior statements he made to law enforcement which
were obtained in violation of his Miranda rights and that there was insufficient
evidence to sustain his methamphetamine-dealing and methamphetamine-
possession convictions. Because we disagree, we affirm.
Facts and Procedural History
[2] On April 16, 2019, Lawrence Police Officer Havis Harris responded to an
apartment complex in Marion County after being advised of a trespass
involving Ross. While in route, Officer Harris was also advised by dispatch that
there was an outstanding warrant for Ross’s arrest. Upon arrival, Officer Harris
identified Ross driving his vehicle and initiated a traffic stop. Officer Harris
confirmed Ross’s identify and smelled the odor of raw marijuana emanating
from inside the vehicle. Ross was handcuffed and detained by assisting officers
while Officer Harris began a search of Ross’s vehicle. During the search, Officer
Harris discovered a clear Tupperware container containing contraband on the
passenger-side floorboard. As Officer Harris removed the Tupperware container
from the vehicle, Ross stated “[p]lease ma’am, that’s the only way, that’s the
only way I can, that’s the only way I can pay my bills.” State’s Ex. 1. Officer
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Harris opened the container and showed it to Ross, to which he stated, “that’s
the only way I can pay my bills.” State’s Ex. 1. Inside the container, Officer
Harris discovered approximately 100 pill tablets and marijuana. Subsequent
laboratory testing confirmed that the Tupperware container contained 13.64
grams of marijuana and methamphetamine tablets with a combined weight of
10.6307 grams.
[3] On September 10, 2019, the State charged Ross with Level 2 felony
methamphetamine dealing, Level 3 felony methamphetamine possession, and
Class A misdemeanor marijuana possession. Ross moved to suppress, inter alia,
the statements he made to police, arguing that they were obtained in violation
of his Miranda rights, which motion the trial court denied on November 12,
2019. On January 23, 2020, a jury trial was held, at which Ross renewed his
objection to the admission of his statements to police, which was overruled by
the trial court. At the conclusion of trial, Ross was found guilty as charged. On
February 12, 2020, the trial court sentenced Ross to an aggregate sentence of
ten years of incarceration with seven years suspended.
Discussion and Decision
I. Miranda Violation
[4] Ross contends that the trial court erroneously admitted the statements he made
to Officer Harris because they were allegedly obtained in violation of Miranda.
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. Payne v. State, 854 N.E.2d 7, 13 (Ind. Ct. App. 2006). “An abuse of
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discretion occurs if a trial court’s decision is clearly against the logic and effect
of the facts and circumstances before the court.” Id. Specifically, Ross
challenges the admission of two statements. First, as Officer Harris removed the
Tupperware container from Ross’s vehicle, he stated, “[p]lease ma’am, that’s
the only way, that’s the only way I can, that’s the only way I can pay my bills.”
State’s Ex. 1. Second, after Officer Harris opened the container and showed it
to Ross, he stated, “that’s the only way I can pay my bills.” State’s Ex. 1.
[5] Miranda rights only apply when a person is subject to a custodial interrogation.
White v. State, 772 N.E.2d 408, 412 (Ind. 2002). “When an accused is subjected
to custodial interrogation, the prosecution may not use statements stemming
from that interrogation unless it demonstrates that use of procedural safeguards
effective to secure the accused’s privilege against self-incrimination.” Davies v.
State, 730 N.E.2d 726, 733 (Ind. Ct. App. 2000) (citing Miranda v. Arizona, 384
U.S. 436, 444 (1966)), trans. denied, cert. denied. We determine whether a person
was in custody using an objective test, “asking whether a reasonable person
under the same circumstances would believe themselves to be under arrest or
not free to resist the entreaties of the police.” White, 772 N.E.2d at 412. Given
that Ross was detained and handcuffed by the assisting officers, there is no
dispute that he was in custody for purposes of Miranda.
[6] We conclude, however, that Officer Harris was not interrogating Ross, at least
when he made his first statement to her. “Under Miranda, interrogation includes
express questioning and words or actions on the part of the police that the
police know are reasonably likely to elicit an incriminating response from the
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suspect.” Id. (internal quotations omitted). Statements that are volunteered do
not amount to interrogation. Id.
[7] Our review of the record reveals that Ross’s first statement was volunteered. As
Officer Harris was removing the Tupperware container containing the
contraband from Ross’s vehicle, Ross stated, “[p]lease ma’am, that’s the only
way, that’s the only way I can, that’s the only way I can pay my bills.” State’s
Ex. 1. There were no questions asked by the officers, and Officer Harris simply
removing a piece of contraband from the vehicle cannot be regarded as an
action reasonably likely to elicit an incriminating response. Regarding Ross’s
second statement, even assuming, arguendo, that Officer Harris’s removal of the
Tupperware lid and presentation of the container to Ross were actions
reasonably likely to elicit an incriminating response from Ross, the statement is
merely cumulative of his first statement. Consequently, the admission of the
second statement, even if erroneous, can only be considered harmless error. See
Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017) (“The improper
admission of evidence is harmless error when the erroneously admitted
evidence is merely cumulative of other evidence before the trier of fact.”), trans.
denied. Ross has failed to establish that the trial court abused its discretion in
this regard.
II. Sufficiency of the Evidence
[8] Ross contends that the State produced insufficient evidence to sustain his
convictions for Level 2 felony methamphetamine dealing and Level 3 felony
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methamphetamine possession. When reviewing the sufficiency of evidence to
support a conviction, we consider only the probative evidence and reasonable
inferences supporting the factfinder’s decision. Young v. State, 973 N.E.2d 1225,
1226 (Ind. Ct. App. 2012), trans. denied. It is the role of the factfinder, not ours,
to assess witness credibility and weigh the evidence. Id. We will affirm a
conviction unless “no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id.
[9] Specifically, Ross contends that the State failed to provide sufficient evidence to
establish that he possessed the methamphetamine. Although Ross was not in
actual possession of the methamphetamine when it was discovered by officers,
“a conviction for a possessory offense does not depend on catching a defendant
red-handed.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). In cases where the
State cannot show actual possession, a conviction for possession of contraband
may rest instead on proof of constructive possession. Id. “A person
constructively possesses contraband when the person has (1) the capability to
maintain dominion and control over the item; and (2) the intent to maintain
dominion and control over it.” Id. The factfinder “may infer that a defendant
had the capability to maintain dominion and control over contraband from the
simple fact that the defendant had a possessory interest in the premises on
which an officer found the item.” Id. In order to prove the intent element, the
State must establish the defendant’s knowledge of the presence of the
contraband, which may be inferred from the defendant’s exclusive dominion
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and control over the premise containing the contraband. Goliday v. State, 708
N.E.2d 4, 6 (Ind. 1999).
[10] Here, there is no dispute that the vehicle belonged to Ross, which established
that he had the capability to maintain dominion and control over the
methamphetamine. Moreover, the record indicates that Ross had exclusive
dominion and control over the vehicle containing the methamphetamine,
proving his intent. Officer Harris testified that prior to stopping Ross, she had
observed him driving the vehicle. Officer Harris also testified that she had not
observed any other individuals inside or exiting Ross’s vehicle nor any
individuals walking in the area. Last, when Officer Harris removed the
Tupperware container containing the methamphetamine and marijuana, Ross
stated, “[p]lease ma’am, that’s the only way, that’s the only way I can, that’s
the only way I can pay my bills.” State’s Ex. 1. That statement alone is a clear
admission that the methamphetamine and marijuana belonged to Ross. Ross
attempts to overcome this inference of exclusive control by claiming, as he did
at trial, that an unknown female, whom he was trying to sell a purse to, placed
the contraband in his vehicle and fled upon the arrival of law enforcement.
Ross’s argument is merely an invitation to reweigh the evidence and judge
witness credibility, which we will not do. Young, 973 N.E.2d at 1226.
[11] We affirm the trial court’s judgment.
Najam, J., concurs.
Mathias, J., concurs with opinion.
Court of Appeals of Indiana | Opinion 20A-CR-561| September 2, 2020 Page 7 of 9
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Ross, Court of Appeals Case No.
20A-CR-561
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Mathias, Judge, concurring.
[12] I write separately to note that it appears that Ross was never advised of his
Miranda rights: even after he was placed in restraints and informed that he had
an outstanding warrant, even as the police searched his car, and even after he
was taken to the police station where the police continued to talk to him. Had
the officers taken this simple precaution, shortly after they informed him of
their warrant for his arrest, they would have ensured that all of Ross’s
statements would be admissible in court. By failing to do so, they took the risk
that any response to any interrogation would be inadmissible.
[13] What happened in this case is unique. From the time officers approached Ross
in his motor vehicle, Ross continuously volunteered information to the officers
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in an effort to explain and extricate himself from the situation. Instead, his
conversations made things worse for him. As the saying goes, Ross “cooked his
own goose.”
[14] I also believe that Officer Harris’s action of showing the content of the
container to Ross was reasonably likely to elicit an incriminating response from
him. In other words, he was subject to custodial interrogation. However,
because his response was merely cumulative of his previous statement, which
was volunteered, I agree that any error in the admission of Ross’s statement
was harmless.
[15] With these observations, I fully concur in Chief Judge Bradford’s opinion in
this case.
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