FILED
MEMORANDUM DECISION
Apr 28 2016, 6:52 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
this Memorandum Decision shall not be Court of Appeals
and Tax Court
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
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shandell T. Willingham, April 28, 2016
Appellant-Defendant, Court of Appeals Case No.
15A05-1507-CR-1029
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Sally A.
Appellee-Plaintiff McLaughlin, Judge
Trial Court Cause No.
15D02-1502-FB-5
Mathias, Judge.
[1] Shandell Willingham (“Willingham”) was convicted in Dearborn Superior
Court of Class B felony dealing in a narcotic drug, Level 4 felony dealing in a
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narcotic drug, Level 6 felony possession of heroin, and Level 6 felony
maintaining a common nuisance. Willingham was also adjudicated a habitual
offender. Willingham appeals his convictions and raises three issues, which we
consolidate as the following two:
I. Whether sufficient evidence supports his convictions for heroin
possession and dealing in heroin; and,
II. Whether Willingham was denied a fair trial due to two instances of
prosecutorial misconduct.
[2] We affirm.
Facts and Procedural History
[3] In October 2014, a confidential informant provided information to Detective
Norman Rimstidt (“Detective Rimstidt”) that a man named Shawn was dealing
heroin in Bright, Indiana. The informant provided Detective Rimstidt with the
heroin dealer’s cell phone number. The detective obtained a cell phone warrant
and learned that the cell phone number was registered to Willingham. Detective
Rimstidt also learned that the cell phone had connected to cell phone towers
near Bright.
[4] The detective also used Willingham’s cell phone number to search Facebook.
The number was linked to a Facebook page for “Shawn Will.” The page had
photos of Willingham and his girlfriend Kelly Kinnet (“Kinnet”). Thereafter,
Detective Rimstidt obtained a second search warrant for Willingham’s cell
phone and an arrest warrant for Willingham.
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[5] The warrants were executed in the early morning hours on October 10, 2014, at
Kinnet’s residence in Bright, Indiana. Law enforcement officers entered the
home by using a battering ram to break down the door. Willingham and Kinnet
were arrested and removed from the home.
[6] Because he had been sleeping, Willingham was not wearing shoes and asked an
officer if he could have his shoes, which were in the living room. While
retrieving the shoes, Detective Carl Pieczonka smelled the odor of marijuana
and saw what he believed to be a marijuana cigarette and marijuana seeds.
Therefore, the detective applied for and received a search warrant for the
residence.
[7] During execution of the search warrant, the officers found marijuana, rolling
papers, hydrocodone pills, a spoon, a scale, steroids, cash, and syringes. The
spoon and the scale, which were later tested by the State Police Lab, contained
trace amounts of heroin. Fentanyl was also discovered on the scale. Fentanyl is
a cutting agent used in the sale of heroin.
[8] After obtaining Willingham’s cell phone, Detective Rimstidt observed one
hundred and forty-seven contacts with “doglick” in the names. Detective
Rimstidt knew that the phrase “doglick” is a reference to dealing heroin. Also,
after searching the data and text messages on Willingham’s cell phone,
Detective Rimstidt identified four young women who purchased heroin from
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Willingham.1 One of the women later admitted that she sold Willingham the
scale that law enforcement officers found during the search of Kinnet’s
residence. In addition, Kinnet eventually admitted that Willingham gave her
heroin and she saw him deal heroin twice in Bright.
[9] On February 27, 2015, Willingham was charged with Class B felony dealing in
a narcotic drug (for acts occurring between March 1 and June 30, 2014), Level 4
felony dealing in a narcotic drug (for acts occurring between July 1 and October
9, 2014), Level 6 felony possession of heroin, and Level 6 felony maintaining a
common nuisance. The State also alleged that Willingham was a habitual
offender.
[10] A jury trial commenced on May 12, 2015, and Willingham was convicted as
charged. The jury also found that Willingham was a habitual offender. The
trial court ordered Willingham to serve an aggregate sentence of forty-five
years. Willingham now appeals.
Sufficient Evidence
[11] Willingham argues that the evidence is insufficient to prove that he possessed
heroin and that he was dealing in heroin. When the sufficiency of evidence is
challenged, we neither reweigh the evidence nor judge the credibility of
1
Emily Kage, one of the four women who testified against Willingham, was incarcerated and on house arrest
for nearly the entire time period that Willingham was charged with dealing in heroin. Tr. p. 758. Kage
testified that she and Willingham texted each other about purchasing heroin after her house arrest ended on
September 30, 3014, but that she never actually obtained heroin from Willingham. Tr. p. 760.
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witnesses. Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. Rather, we
recognize the exclusive province of the trier of fact to weigh any conflicting
evidence and we consider only the probative evidence supporting the conviction
and the reasonable inferences to be drawn therefrom. Id. If there is substantial
evidence of probative value from which a reasonable trier of fact could have
drawn the conclusion that the defendant was guilty of the crime charged
beyond a reasonable doubt, then the verdict will not be disturbed. Baumgartner
v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).
A. Possession
[12] First, we address Willingham’s argument that the State failed to prove that he
possessed heroin. While searching Kinnet’s residence, law enforcement officers
found a spoon and a scale. These items were tested by the State Police Lab and
found to contain trace amounts of heroin. Willingham argues that the State
failed to prove that he had intent to possess the heroin because it was not visibly
apparent on the scale or spoon, and both he and Kinnet had access to the items.
[13] To prove that Willingham possessed the heroin, the State was required to prove
that he knowingly or intentionally possessed an identifiable amount of heroin.
See Ind. Code § 35-48-4-6; see also Beeler v. State, 807 N.E.2d 789, 792 (Ind. Ct.
App. 2004) (requiring that the State prove the defendant possessed an
identifiable amount of the illegal drug), trans. denied.
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[14] It is well settled that a possession conviction may rest upon proof of either
actual or constructive possession. Gray v. State, 957 N.E.2d 171, 174 (Ind.
2011). A defendant constructively possesses an item when he has both the
capability and the intent to maintain dominion and control over it. Id. Proof of
a possessory interest in the premises where the item is found satisfies the
capability prong, regardless of whether possession of the premises is exclusive.
Gee v. State, 810 N.E.2d 338, 340-41 (Ind. 2004).
[15] As for the intent prong, if a defendant’s possession of the premises is non-
exclusive, the inference of intent to maintain dominion and control must be
supported by additional circumstances pointing to the defendant’s knowledge of
the nature of the item and its presence. Id. at 341. Recognized “additional
circumstances” include: (1) incriminating statements; (2) attempted flight or
furtive gestures; (3) a setting that suggests drug manufacturing; (4) the proximity
of the item to the defendant; (5) whether the item was found in plain view; and
(6) the mingling of the item with other items the defendant owns. Id.
[16] Both Kinnet and Willingham lived at the residence in Bright, Indiana from
June 2014 to October 2014. Kinnet testified that Willingham gave her heroin
and they used it daily. Tr. pp. 438-39. She admitted that the spoon containing
the heroin residue that was found in the master bedroom belonged to her.
However, she stated that the scale found in the kitchen drawer containing
heroin residue belonged to Willingham. Tr. p. 444. The scale also contained
fentanyl, which is a diluting agent used in the sale of heroin.
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[17] Shay Richardson (“Richardson”) testified that she purchased heroin from
Willingham and brought her own scales to weigh the heroin she bought.
Willingham asked to buy her scales, and she sold them to him for twenty
dollars. Tr. p. 668. The scales were new and still in the box. Richardson testified
that the scales she sold to Willingham were the same scales that the law
enforcement officers found in his home.
[18] This evidence is sufficient to prove that Willingham owned the scales, used
them to weigh heroin, and that he constructively possessed the heroin residue
found on the scales. Willingham’s argument that Richardson’s testimony
“cannot be trusted” is merely an invitation to reweigh the evidence and
credibility of the witnesses, which our court will not do.
B. Dealing
[19] Next, we consider whether the State presented sufficient evidence that
Willingham committed dealing in heroin. See I.C. § 35-48-4-1 (“A person who[]
knowingly or intentionally . . . delivers . . . a narcotic drug, pure or adulterated,
. . . commits dealing in . . . a narcotic drug[.]”). Detective Rimstidt analyzed the
data on Willingham’s cell phone and found one hundred and forty-seven
contacts with “doglick” in the names. The phrase “doglick” is a reference to
dealing heroin.
[20] After reviewing the cell phone data and text messages, Detective Rimstidt
identified four young women who purchased heroin from Willingham. At trial,
three of the four women testified that they purchased heroin from Willlingham.
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Tr. pp. 631-32, 707-09, 741, 744-45. Kinnet testified that she saw Willingham
selling heroin on at least two occasions. Tr. pp. 463-71.
[21] Finally, law enforcement officers found items in Willingham’s home that are
indicative of dealing in heroin. These items include the scales, and baggies and
cellophane wrappers, which are used in packaging heroin.
[22] In his brief, Willingham challenges the credibility of these witnesses and their
ability to remember the events about which they testified. Willingham’s
argument on appeal is merely a request to reweigh the evidence and credibility
of these witnesses, which our court will not do. Under these facts and
circumstances, we conclude that the State presented sufficient evidence to prove
that Willingham committed dealing in heroin.
Prosecutorial Misconduct
[23] Willingham also argues that he was denied a fair trial due to two instances of
prosecutorial misconduct. When we review a properly preserved claim of
prosecutorial misconduct, “we determine (1) whether misconduct occurred, and
if so, (2) ‘whether the misconduct, under all of the circumstances, placed the
defendant in a position of grave peril to which he or she would not have been
subjected’ otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citations
omitted).
[24] Willingham concedes that he failed to preserve the claims of prosecutorial
misconduct he raises in this appeal.
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Our standard of review is different where a claim of prosecutorial
misconduct has been procedurally defaulted for failure to
properly raise the claim in the trial court, that is, waived for
failure to preserve the claim of error. The defendant must
establish not only the grounds for prosecutorial misconduct but
must also establish that the prosecutorial misconduct constituted
fundamental error. Fundamental error is an extremely narrow
exception to the waiver rule where the defendant faces the heavy
burden of showing that the alleged errors are so prejudicial to the
defendant's rights as to “make a fair trial impossible.” In other
words, to establish fundamental error, the defendant must show
that, under the circumstances, the trial judge erred in not sua
sponte raising the issue because alleged errors (a) “constitute
clearly blatant violations of basic and elementary principles of
due process” and (b) “present an undeniable and substantial
potential for harm.” The element of such harm is not established
by the fact of ultimate conviction but rather “depends upon
whether [the defendant’s] right to a fair trial was detrimentally
affected by the denial of procedural opportunities for the
ascertainment of truth to which he otherwise would have been
entitled.” In evaluating the issue of fundamental error, our task in
this case is to look at the alleged misconduct in the context of all
that happened and all relevant information given to the jury—
including evidence admitted at trial, closing argument, and jury
instructions—to determine whether the misconduct had such an
undeniable and substantial effect on the jury’s decision that a fair trial
was impossible.
Id. at 667-68 (internal citations omitted and emphasis in original).
[25] First, Willingham argues that the State engaged in prosecutorial misconduct
during closing argument by “emphasizing the dangers inherent in the drug
trade” to the jury. Appellant’s Br. at 20. Specifically, the prosecutor argued:
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. . . what’s this case really, really about. Is it about him or is it
about what people like him are doing to our community? How
do sixteen (16) year old kids, eighteen (18) year old kids, twenty
(20) year old kids get addicted to heroin? It’s because people do
what he did, what we’ve proven he did.
Tr. p. 904.
[26] We agree with Willingham that it is “misconduct for a prosecutor to request the
jury to convict a defendant for any reason other than his guilt” or “to phrase
final argument in a manner calculated to inflame the passions or prejudice of
the jury.” See Neville v. State, 976 N.E.2d 1252, 1264 (Ind. Ct. App. 2012), trans.
denied (citations omitted). No evidence indicated Willingham sold heroin to a
sixteen-year-old, and the prosecutor’s argument urged the jury to consider the
damage heroin has done to the community. For these reasons, the prosecutor’s
comments were improper.
[27] However, the statements were fleeting, and the State’s closing argument
consists primarily of a recitation of the evidence admitted at trial. Moreover, the
jury was twice instructed that the attorneys’ statements “are not evidence.”
Appellant’s App. pp. 284; 314. For these reasons, and considering the
overwhelming evidence of Willingham’s guilt admitted at trial and discussed
above, we cannot conclude that the prosecutor’s misconduct had such an
undeniable and substantial effect on the jury's decision that Willingham was
denied a fair trial. See e.g. Jerden v. State, 37 N.E.3d 494, 500 (Ind. Ct. App.
2015) (citing Coleman v. State, 750 N.E.2d 370, 375 (Ind. 2001) (“Where there is
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overwhelming independent evidence of a defendant’s guilt, error made by a
prosecutor during the closing argument is harmless.”)).
[28] Finally, Willingham argues that the State engaged in prosecutorial misconduct
by eliciting testimony from State Trooper Joe Livers (“Trooper Livers”)
concerning the manner in which the arrest warrant was executed. Specifically, a
SWAT team assisted in executing the warrant in the early morning hours.
Trooper Livers testified that a battering ram was used to knock down Kinnet’s
front door, and then the officers used a flash bang explosive inside the residence
as a distraction device. The State also elicited testimony that SWAT teams are
“typically requested to come out and serve high risk warrants, um, active
shooter situations, anybody with a gun, um pretty high risk stuff.” Tr. pp. 315-
16.
[29] We agree with Willingham that the evidence of the extreme measures taken to
execute the arrest warrant, and particularly why law enforcement officers
generally use such methods, was not relevant to whether he possessed heroin
and was dealing in heroin.2 However, in the context of the trial, the evidence
admitted concerning execution of the arrest warrant was fleeting. From the
evidence admitted at trial, the jury could also logically infer that Willingham
was not dangerous and he was compliant with the officers who executed the
2
The State argues that Willingham’s counsel “first informed the jury that a flash bang device was used
during execution of the first search warrant[.]” Appellee’s Br. at 13. However, in its opening statement, the
State told the jury that Trooper Livers would testify that a flash bang device was used “to provide a
distraction in the residence in order to affect a safe arrest.” Tr. p. 266.
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arrest warrant. Finally, as we noted above, the State presented substantial
evidence of Willingham’s guilt. For all of these reasons, we conclude that
Willingham has not established that the alleged error was so prejudicial that
Willingham was denied a fair trial.
Conclusion
[30] The State presented sufficient evidence to prove that Willingham possessed
heroin and committed dealing in heroin. Although prosecutorial misconduct
occurred during trial, Willingham has not established that the error was so
prejudicial that he was denied a fair trial.
[31] Affirmed.
Kirsch, J., and Brown, J., concur.
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