Oct 31 2013, 5:17 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD J. FREW GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL R. HOUSTON, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1303-CR-84
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D04-1202-FD-157
October 31, 2013
OPINION - FOR PUBLICATION
KIRSCH, Judge
Michael R. Houston (“Houston”) was convicted after a jury trial of possession of
cocaine1 as a Class D felony. He appeals raising the following restated issue: whether
the State presented sufficient evidence to support his conviction.
We reverse.
FACTS AND PROCEDURAL HISTORY
During the early morning hours of January 29, 2012, Officer Stephanie Souther of
the Fort Wayne Police Department (“Officer Souther”) was working patrol in Fort
Wayne, Indiana when she saw a black Dodge Charger pull out of the lot of Broadway
Joe’s bar. The car’s windows were so darkly tinted that she could not see inside the
vehicle, but the car merely pulled across the street and parked in a lot there. Officer
Souther observed Houston, whom she recognized from prior encounters, walking away
from the car, but did nothing more at that time.
About an hour later, at 1:55 a.m., Officer Souther saw the car again moving at a
“pretty high rate of speed.” Tr. at 90. She decided to stop the car, but due to the dark tint
on the windows, she requested back-up before doing so. Officer Souther activated her
emergency lights, and the car eventually stopped after traveling a short distance. Once
her back-up arrived, the officer asked for the driver, who was later identified as Houston,
to exit the car first, and Houston complied. One by one, three other people exited the car
and came back to where Officer Souther stood. Luther Green (“Green”), who was
identified as the owner of the car, had been sitting in the back passenger-side seat;
1
See Ind. Code § 35-48-4-6.
2
Ashanti Hood (“Hood”) had been sitting in the front passenger seat; and Keosha Armour
has been seated in the back driver-side seat.
Officer Souther discovered that Houston did not have a valid driver’s license and
that the license plate on the car belonged to another car. Because the license plate did not
match the car, Officer Souther decided to tow it. Fort Wayne Police Officer Jason
Crowder (“Officer Crowder”) conducted an inventory search of the car before it was
towed. While performing the search, Officer Crowder discovered a small baggie with
white rock-like substance that he believed to be crack cocaine. This baggie was located
between the passenger seat and the center console area. Officer Souther conducted a
field test on the substance, and it tested positive for cocaine.
Houston was arrested for possession of cocaine and for driving without a valid
driver’s license. During the inventory search, officers also found a vial containing a
yellow-tinted liquid in the center console area. When Houston was being transported to
the jail, he told Officer Souther that the vial contained urine and explained that his uncle
had been riding in the car and urinated in the vial. Id. at 110. When Officer Souther
commented on how small the vial was, Houston denied knowledge of the vial. The vial
was never tested to determine its contents, but at trial, Green stated it was “anointing oil”
used by his church. Id. at 145.
The State charged Houston with possession of cocaine as a Class D felony. A jury
trial was conducted, at the conclusion of which, Houston was found guilty. Houston was
sentenced to three years with one year and 183 days executed and the balance suspended.
Houston now appeals.
3
DISCUSSION AND DECISION
Our standard of review for sufficiency claims is well-settled. When we review a
claim of sufficiency of the evidence, we do not reweigh the evidence or judge the
credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct. App.
2009) (citing Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003)). We look only to the
probative evidence supporting the judgment and the reasonable inferences therein to
determine whether a reasonable trier of fact could conclude the defendant was guilty
beyond a reasonable doubt. Id. If there is substantial evidence of probative value to
support the conviction, it will not be set aside. Id. It is the function of the trier of fact to
resolve conflicts of testimony and to determine the weight of the evidence and the
credibility of the witnesses. Yowler v. State, 894 N.E.2d 1000, 1002 (Ind. Ct. App.
2008).
Houston argues that the evidence presented at trial was not sufficient to support
his conviction for possession of cocaine. He contends that no evidence was presented to
indicate that he was in actual possession of the cocaine and that the evidence did not
prove beyond a reasonable doubt that he constructively possessed the drugs. Houston
asserts that he was not the owner of the car, that there were three other people present in
the car including the owner, and that there were no other circumstances that showed that
he had any knowledge of the presence of the cocaine. Houston further claims that there
was no evidence presented that he intended to maintain control over the cocaine. As a
result, Houston concludes that the evidence was insufficient to support his conviction.
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In order to convict Houston of possession of cocaine as a Class D felony, the State
was required to prove beyond a reasonable doubt that he did, without a valid prescription
or order of a practitioner acting in the course of his professional practice, knowingly or
intentionally possess cocaine, pure or adulterated. Ind. Code § 35-48-4-6. A conviction
for possession of contraband may rest upon proof of either actual or constructive
possession. Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct. App. 2009), trans.
denied. Actual possession occurs when a person has direct physical control over the
item. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Because Houston did not
have direct physical control over the cocaine found in the car, the State had to prove that
he had constructive possession of it.
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.” Id. Here,
Houston is not contesting that the capability prong was satisfied by the evidence, only
that the intent prong was not met.
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
5
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. (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.
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.” Tr. at
97-98. 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 testified that the officers did not ask them
about their knowledge of the cocaine. Id. at 127-28, 147, 175-76. 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.
6
Id. at 97-98, 131. There was also no evidence that the cocaine was contained near or
comingled with any items belonging to Houston.
The only evidence of constructive possession that the State points to is the
statement by Houston regarding the vial of yellow-tinted liquid found in the center
console area. The State contends that this statement was evidence that Houston was
aware of items in and around the console area. Such evidence fails because there was no
showing that the vial was connected to the cocaine in any way. Indeed, the evidence
established that the vial was in plain view in the console of the vehicle, not in the crevice
where the cocaine was found. In addition, the evidence failed to show that Houston even
knew what was in the vial because he incorrectly identified the contents of the vial as
urine, and Green testified that the vial actually contained anointing oil used in his church.
Id. at 145. We conclude that the evidence presented at trial was not sufficient to prove
the intent prong of constructive possession. We, therefore, reverse Houston’s conviction
for possession of cocaine.
Reversed.
ROBB, C.J., and RILEY, J., concur.
7
Michael R. Houston v. State of Indiana
Combined Opinion