Katie J. Love v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Apr 25 2018, 9:36 am
Memorandum Decision shall not be regarded as
CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brandon E. Murphy Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Katie J. Love, April 25, 2018
Appellant-Defendant, Court of Appeals Case No.
38A02-1706-CR-1455
v. Appeal from the Jay Superior Court.
The Honorable Max C. Ludy, Jr.,
Judge.
State of Indiana, Trial Court Cause No.
Appellee-Plaintiff. 38D01-1612-CM-0282
Darden, Senior Judge
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Statement of the Case
1
[1] Katie Love (Katie) was convicted of possession of paraphernalia as a Class C
misdemeanor. She appeals after her bench trial contending that there is
insufficient evidence to support that conviction. We affirm.
Issues
[2] The issues Katie presents for our review are as follows:
I. Whether there was sufficient evidence admitted at Katie’s
bench trial to establish beyond a reasonable doubt that she
was in constructive possession of paraphernalia she
intended to use to introduce a controlled substance into
her body; and
II. Whether the trial court abused its discretion and violated
Katie’s Fifth and Sixth Amendment rights by considering
inadmissible hearsay evidence outside the record.
Facts and Procedural History
[3] Pennville Town Marshal Keith Farmer was dispatched on the evening of
November 23, 2016, to the scene of a church at the intersection of Highway 1
and Highway 26, approximately three miles south of Pennville, Indiana, in Jay
County. A person had reported that there was a car in the parking lot with
several occupants inside who were nonresponsive. Farmer immediately
proceeded to the location indicated by the report.
1
Ind. Code § 35-48-4-8.3(b)(1) (2015).
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[4] Upon arriving, Town Marshal Farmer found two cars in the parking lot of the
church. One car belonged to the person who had contacted dispatch. Farmer
approached the driver’s side door of the other car and observed a female driver,
a female front-seat passenger, and a male passenger in the back seat behind the
front-seat passenger. All three occupants appeared to be passed out or asleep
and the car’s engine was still running. Katie was the female in the front seat on
the passenger side. Farmer described the interior of the car as having a bench
seat in the back and two bucket seats in the front. He could not determine
whether the car was in park or was in drive when he first approached it.
[5] Farmer knocked on the driver’s side window, but none of the car’s occupants
responded. One of the car doors was unlocked. When Farmer opened the
door, the interior lights of the car came on and the driver, Sandra Love, woke
up first. After asking Sandra if she was alright, he noticed that the front-seat
passenger, Katie, awoke. A few seconds later, the passenger in the back seat
behind Katie, Blake Hall, awoke. The car was registered to Sandra Love.
[6] Farmer asked Sandra Love to turn the car’s engine off. Because of her
condition, however, she was unable to do so. Farmer then reached inside the
car, verified that the car was in park, turned off the ignition, and took the keys.
[7] Farmer became suspicious that criminal activity had been going on when he
observed a glass pipe, which appeared to have some type of residue in it, on the
center console near the gear shift of the car between Sandra and Katie. Farmer
had already called for medics and continued talking to Sandra to determine her
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condition. Farmer did not remove any of the occupants from the car, as he
awaited the arrival of the medics on the scene.
[8] Medics arrived within a few minutes of his call for assistance. As the medics
unpacked their gear, Farmer assisted Sandra in exiting the car. He described
her condition as being unable to stand without assistance, she had to lean
against the car, and she could not walk. He testified that she appeared to be
very intoxicated.
[9] Once the medics began attending to Sandra, Farmer then approached Katie.
According to Farmer, Katie was also intoxicated and disoriented. She was
sweating, her eyes were half-closed and glassy, and her speech was slow and
slurred. He testified that she was able to somewhat follow what he was saying
and engaged in limited conversation with him to a certain extent but not fully.
He further testified that it did not appear that she understood why he was there.
[10] As Farmer was helping Hall exit from the back seat of Sandra’s car, he noticed
another glass pipe between Hall’s feet on the floor of the car. Farmer testified
that he discovered a bag containing a substance that looked like marijuana, but
was different, “on Mr. Hall’s person.” Tr. p. 16. Over the objection of counsel
for Katie as being irrelevant to her charges, the trial court allowed Farmer to
testify as to the full extent of the facts and circumstances surrounding his
investigation which included his testimony that he discovered a second, much
larger, bag of the substance in the crotch area of Hall’s pants between his
underwear and pants. Id.Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 4 of 10
[11] Katie was released at the scene. Sandra was transported to the hospital and
Hall was arrested. The probable cause affidavit pertinent to charges filed
against Sandra and Hall, which was not admitted at Katie’s trial, is included in
the record on appeal for the charges against Katie only because it was referred
to in the trial court’s Order on trial and is the basis of support of Katie’s
allegation of reversible error. The probable cause affidavit includes the
following information: “[Hall] stated that the material in the bags was ‘spice’.”
Appellant’s App. Vol. II, p. 10.
[12] On December 5, 2016, the State charged Katie with one count of Class B
misdemeanor public intoxication and one count of Class C misdemeanor
possession of paraphernalia. At the conclusion of Katie’s bench trial, wherein,
Farmer was the only witness to testify, the trial court found Katie guilty of the
lesser offense, possession of paraphernalia, but not guilty of public intoxication,
the more serious offense.
[13] We note that in a criminal case the trial court is not required to make either
findings of fact or conclusions of law. Dozier v. State, 709 N.E.2d 27, 30 (Ind.
Ct. App. 1999) (citing Nation v. State, 445 N.E.2d 565, 570 (Ind. 1983)).
[14] Specifically, the trial court’s “Order on Trial” included the following findings:
3. All three (3) individuals were impaired, and they were
intoxicated, in the opinion of Pennville Town Marshal, Keith Farmer.
4. According to Blake Hall, a substance found in the vehicle
was “spice[.]”
....
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6. A fair inference from the evidence is that all three (3)
individuals were intoxicated from the smoking of “spice”.
7. A search of the vehicle disclosed a glass smoking pipe on
the front seat console, and another glass pipe was on the backseat
floor.
8. The evidence presented gives rise to the inference that all
three (3) of the individuals had used the glass pipes in order to
ingest the “spice”.
Id. at 28.
Discussion and Decision
[15] Katie waived jury trial and the matter was submitted to the trial court in a
bench trial. There is a strong presumption that the trial court knows the law,
and will consider only properly admitted evidence in reaching its decision. See,
Dumas v. State, 803 N.E.2d 1113, 1121 (Ind. 2004); Moran v. State, 622 N.E.2d
157, 159 (Ind. 1993).
[16] Katie now appeals contending that the evidence is insufficient to establish,
beyond a reasonable doubt, that she possessed paraphernalia intended for use to
introduce a controlled substance into her body. Ind. Code § 35-48-4-8.3(b)(1).
Upon review of a challenge to the sufficiency of the evidence, we consider only
the evidence introduced during trial and reasonable inferences most favorable to
the convictions, neither reweighing evidence nor reassessing witness credibility.
Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment
unless no reasonable factfinder could find the defendant guilty. Id.Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018 Page 6 of 10
[17] To establish that Katie committed possession of paraphernalia, the State was
required to prove beyond a reasonable doubt that she knowingly or
intentionally possessed an instrument, a device, or another object that she
intended to use for introducing a controlled substance into her body. Ind. Code
§ 35-48-4-8.3(b)(1).
[18] Possession can be either actual or constructive. Sargent v. State, 27 N.E.3d 729,
732-33 (Ind. 2015). Actual possession occurs when a person has direct physical
control over the item. Id. If the State cannot show actual possession, it may
nonetheless prevail on proof of constructive possession. Id. “A person
constructively possesses [an item] 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.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011)
(citing Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g,
685 N.E.2d 698 (Ind. 1997)).
[19] It is undisputed that the evidence herein establishes that the glass pipe located
on the center console of the car between the driver and Katie was within her
reach. Therefore, it is reasonable to assume that she could have exercised
dominion and control over the glass pipe. Further, without objection, Marshal
Farmer testified that in his experience in law enforcement, glass pipes such as
the one he observed are used to ingest marijuana, or substances bearing similar
characteristics as marijuana, such as spice. Given Katie’s proximity to the glass
pipe in the center of Sandra’s car, in addition to Katie’s physical condition as
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described by Farmer, the trial court could reasonably infer that she had ingested
an illicit substance or intended to do so.
[20] Alone mere possession of paraphernalia, when a statute requires evidence of
intent, is not sufficient to establish that crime without additional evidence of
intent. Sluder v. State, 997 N.E.2d 1178, 1181 (Ind. Ct. App. 2013). “The intent
to introduce a controlled substance into one’s body may be inferred from
circumstantial evidence.” Id. Evidence of the character of the instrument or
instruments alone cannot sustain the element of intent. McConnell v. State, 540
N.E.2d 100, 102 (Ind. Ct. App. 1989).
[21] Farmer’s unchallenged testimony as to his training and experience as a law
enforcement officer and that he had encountered glass pipes before, which are
typically used to ingest marijuana or other illegal substances was admitted into
evidence. Farmer additionally testified that in his experience in law
enforcement he had encountered marijuana and spice before. He stated that the
substance he found in the bags had “the appearance, the characteristics of
synthetic cannabinoids or spice.” Tr. p. 15.
[22] Katie argues that the evidence is insufficient because the lab reports for the
substances recovered from Hall’s possession were not admitted into evidence
and that the glass pipes were not sent for testing of the residue found therein. A
similar argument was presented in Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct.
App. 2010), trans. denied. In Boggs, the defendant argued that his conviction
should be reversed because there was no direct evidence of the chemical
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makeup or identification of the substances because there was no testing by the
Indiana State Police Laboratory. In Clifton v. State, 499 N.E.2d 256, 258 (Ind.
1986), a case discussed in Boggs, our supreme court held that the identity of a
drug can be proved by circumstantial evidence. The supreme court further
elaborated in a case also discussed in Boggs, Vasquez v. State, 741 N.E.2d 1214,
1216-17 (Ind. 2001), that someone sufficiently experienced with a drug may
establish its identity, as may other circumstantial evidence. The court noted,
however, that chemical analysis, although one way, is perhaps the best way to
establish the identity of the substance. Id. at 1216.
[23] In the present case, while it might have been better for the State to have
presented evidence of testing by the Indiana State Police Laboratory, and
wherein it may have been better for the trial court not to have referred to Hall’s
statement made to Marshal Farmer upon being arrested, such does not warrant
reversal in this case. “[I]n a criminal case the trial court is not required to make
either findings of fact or conclusions of law.” Dozier v. State, 709 N.E.2d 27, 30
(Ind. Ct. App. 1999) (citing Nation v. State, 445 N.E.2d 565, 570 (Ind. 1983)).
[24] In this case, taking into consideration the totality of the undisputed facts and
circumstances and the evidence presented during the course of trial, also while
acknowledging that there is a strong presumption that the trial court knows the
law and that the trial court would apply it properly, we consider the trial court’s
reference to Hall’s statement to Farmer in the context in which it was admitted
at trial was superfluous and had no effect on the trial court’s decision that the
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State has established with independent evidence the elements of the offense
with which Katie was charged beyond a reasonable doubt.
Conclusion
[25] In light of the foregoing, we affirm the trial court’s judgment.
Mathias, J., and Crone, J., concur.
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