MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 30 2017, 9:40 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General of Indiana
Matthew R. Elliott
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Melvin D. Levy, January 30, 2017
Appellant-Defendant, Court of Appeals Case No.
20A03-1608-CR-2009
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Stephen R.
Appellee-Plaintiff. Bowers, Judge
Trial Court Cause No.
20D02-1511-F4-57
Pyle, Judge.
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Statement of the Case
[1] Melvin D. Levy (“Levy”) appeals his conviction and sentence for Level 4 felony
possession of cocaine.1 Levy was convicted pursuant to a jury trial in which
police officers introduced evidence of cocaine they had found during a search of
Levy’s bedroom. On appeal, Levy argues that: (1) there was not sufficient
evidence to prove that he constructively possessed the cocaine; and (2) his
sentence was inappropriate under Appellate Rule 7(B) in light of the nature of
his offense and his character. Because the State produced evidence that Levy
had the intent and capability to exercise dominion and control over the cocaine,
we conclude that there was sufficient evidence to prove he possessed the
cocaine. We also conclude that his sentence was not inappropriate in light of
the nature of his offense and his character.
[2] We affirm.
Issues
1. Whether there was sufficient evidence to prove that Levy
possessed cocaine.
2. Whether Levy’s sentence was inappropriate in light of the
nature of his offense and his character.
1
IND. CODE §§ 35-48-4-6(a), (c)(2) and I.C. § 35-48-1-16.5(1). Levy was also convicted of Class A
misdemeanor possession of a synthetic drug or a synthetic drug lookalike substance and Class B
misdemeanor possession of marijuana, but he does not appeal either of those convictions.
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Facts
[3] On November 19, 2016, two special units of the Elkhart City Police
Department executed a “no-knock” search warrant at 916 South Main Street to
search for evidence of drug activity.2 (Tr. 50). The officers “ram[med]” the
door in and then threw a “flash bang” on the stairs to distract the occupants of
the house.3 (Tr. 158). They then dispersed through the house and apprehended
six occupants inside, including Levy. They found Levy under a pool table in
the living room within an “arm’s reach” of a revolver, which was hidden in the
pool table. (Tr. 167).
[4] After apprehending the occupants of the house, the officers searched for
evidence of drugs and weapons. Meanwhile, Elkhart Corporal Greg Harder
(“Corporal Harder”) interviewed Levy, and Levy told Corporal Harder that his
bedroom was in the southwest corner of the house on the second floor. After
climbing the stairs to the second floor, that room would be the “second one on
the left.” (Tr. 67). While searching Levy’s room, the officers found cocaine,
synthetic marijuana, and marijuana. The bag of synthetic marijuana was
located inside of a pair of “Michael Jordan” shoes, and the bag of cocaine was
found inside of a gray winter hat. (Tr. 91). There was also a small bag of
marijuana near the headboard of the bed.
2
A “no-knock” search warrant allows police officers to enter a premise without first announcing their
presence. (Tr. 50).
3
A “flash bang” is a “device [used] to cause a distraction.” (Tr. 160).
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[5] In addition to drugs, Corporal Jason Gruber (“Corporal Gruber”) found letters
with Levy’s name on them on a shelving unit in his bedroom. Two of the
letters contained Levy’s name and the address 916 South Main Street. Another
letter had Levy’s name on it and a different address. Due to their pre-search
surveillance, the officers knew that Levy was also associated with the second
address. Because there was “so much clutter” Corporal Gruber removed the
letters from the shelving unit in Levy’s room and placed them in the middle of
the room where they would be easier to photograph. (Tr. 175).
[6] Subsequently, the State charged Levy with Level 5 felony possession of cocaine,
Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike
substance, and Class B misdemeanor possession of marijuana. The State also
charged Levy with enhancements to elevate his possession of cocaine charge to
a Level 4 felony and his possession of marijuana charge to a Class A
misdemeanor based on his prior conviction for dealing in cocaine.
[7] A jury trial was held on May 24 and 25, 2016. At trial, several officers testified
that Levy’s bedroom was the southwest bedroom on the second floor and that
they had found cocaine, marijuana, and synthetic marijuana in the room. The
owner of the house also testified that he had charged Levy rent to live in the
house and that Levy lived in the “second [room] on the left”—the southwest
room—at the top of the stairs. (Tr. 199). At the conclusion of the trial, the jury
found Levy guilty as charged. Levy then waived his right to a jury trial on his
conviction enhancements and pled guilty to having a prior conviction for
dealing in cocaine.
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[8] At the sentencing hearing, Levy requested that his sentences be suspended to
probation because he had a job lined up after his release and had five children
to support. The State introduced evidence that Levy had a prior criminal
history, including two misdemeanor convictions, two felony convictions, and
pending charges in a separate cause for being a serious violent felon in
possession of a firearm and possession of marijuana. The State also introduced
evidence that Levy had repeatedly violated his probation for some of those
convictions and had committed the current offense while he was out on bond
for his pending charges.
[9] The trial court found that Levy’s criminal record and repeated violations of
probation from earlier sentences were aggravating factors; it did not find any
mitigating factors. It sentenced him to ten (10) years, with eight (8) years
executed and two (2) years suspended to probation, for his possession of
cocaine conviction; one (1) year for his possession of a synthetic drug
conviction; and 180 days for his possession of marijuana conviction. The trial
court further ordered Levy to serve the sentences concurrently for a total
executed sentence of eight (8) years. Levy now appeals.
Decision
[10] On appeal, Levy argues that: (1) there was insufficient evidence to convict him
of possession of cocaine; and (2) his sentence was inappropriate in light of the
nature of his offense and his character. We will address each of these
arguments in turn.
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1. Sufficiency
[11] Levy challenges his conviction for possession of cocaine by arguing that there
was insufficient evidence that he constructively possessed the cocaine.
Specifically, he asserts that there was no evidence that he knew about the
cocaine, had exclusive control over the bedroom where the cocaine was found,
or had the ability to maintain control over the cocaine.
[12] In order to convict Levy for possession of cocaine, the State had to prove that
he: “knowingly or intentionally possess[ed] cocaine (pure or adulterated)” in
an amount that was “at least five (5) but less than ten (10) grams.”4 I.C. §§ 35-
48-4-6(a), -(c)(2). Possession of the cocaine may be either actual or
constructive. See Sargent v. State, 27 N.E.3d 729, 732-33 (Ind. 2015). Actual
possession occurs when a person has direct physical control over the cocaine,
and constructive possession occurs when a person has “‘the capability to
maintain dominion and control over the [cocaine]; and (2) the intent to
maintain dominion and control over [it].’” Id. at 733 (quoting Gray v. State, 957
N.E.2d 171, 174 (Ind. 2011)).
[13] When reviewing sufficiency of the evidence claims, we neither reweigh the
evidence nor judge witness credibility. Perkins v. State, 57 N.E.3d 861, 864 (Ind.
Ct. App. 2016). We consider only the evidence supporting the judgment and
any reasonable inference that can be drawn from that evidence. Id. We will
4
In order for the offense to qualify as a Level 4 felony, the State also had to prove that enhancing
circumstances applied, but those circumstances are not at issue here.
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affirm the conviction if there is substantial evidence of probative value
supporting each element of the offense such that a reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt. Id.
[14] It is undisputed that Levy did not have actual possession over the cocaine.
Instead, he argues that the State did not present sufficient evidence that he
constructively possessed the cocaine. He reasons that the State did not prove
that he had the intent to maintain dominion and control over the cocaine
because there was no evidence he knew it existed, and the State did not prove
that he had the capability to maintain dominion and control over it because he
did not have exclusive control over the premises. He notes that several people
lived in the residence at the time of the search, and the police did not find him
near the bedroom where the cocaine was located.
[15] To prove the intent element of constructive possession, the State must, as Levy
asserts, demonstrate the defendant’s knowledge of the presence of the
contraband. Crocker v. State, 989 N.E.2d 812, 822 (Ind. Ct. App. 2013), trans.
denied. However, “‘[t]his knowledge may be inferred from either the exclusive
dominion and control over the premise containing the contraband or, if the
control is non-exclusive, evidence of additional circumstances pointing to the
defendant’s knowledge of the presence of the contraband.’” Id. (quoting Taylor
v. State, 482 N.E.2d 259, 261 (Ind. 1985)). Among the recognized “additional
circumstances” are: (1) incriminating statements by the defendant; (2)
attempted flight or furtive gestures; (3) a drug manufacturing setting; (4)
proximity of the defendant to the contraband; (5) contraband is in plain view;
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and (6) location of the contraband is in close proximity to items owned by the
defendant. Jones v. State, 807 N.E.2d 58, 65 (Ind. Ct. App. 2004), trans. denied.
[16] Levy argues that he did not have exclusive control over the residence or his
bedroom because several other people lived in the house and used his room.
However, we need not address whether Levy had exclusive control over his
bedroom because, regardless, there were additional circumstances pointing to
his knowledge of the contraband. See Crocker , 482 N.E.2d at 261 (stating that
knowledge may be inferred from either exclusive domain and control over the
premise containing the contraband or evidence of additional circumstances
pointing to the defendant’s knowledge of the presence of the contraband).
Specifically, the cocaine was close in proximity to items he owned. Corporal
Gruber found three letters with Levy’s name on them on a shelving unit in the
bedroom.5 Two of the letters listed the address of the house where the drugs
were found, and another listed an address of a residence with which Levy was
associated. The proximity of Levy’s letters to the cocaine was an additional
circumstance indicating his knowledge of the cocaine. Thus, we may infer his
knowledge and intent to maintain dominion and control over the drugs. See id.
[17] Regarding the capability element of constructive possession, proof of a
possessory interest in the premises in which the illegal drugs are found is
5
Levy asserts that the letters were found in a dresser in the hallway rather than his bedroom. However,
Corporal Gruber testified that he found the letters on a shelving unit in Levy’s bedroom, and we will not
reweigh the evidence. See Perkins, 57 N.E.3d at 864.
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adequate to show the defendant’s capability to maintain dominion and control
over the contraband. Id. at 66. A defendant’s possessory interest in the
premises does not require actual ownership. Id. A house or apartment used as
a residence is controlled by the person who lives in it, and that person may be
found in control of any drugs discovered therein, whether he is the owner,
tenant, or merely an invitee. Id.
[18] Levy admitted that he lived in the southwest bedroom at 916 South Main
Street, which is where the cocaine was found. Further, Levy’s landlord testified
that Levy paid rent and lived in the southwest corner bedroom on the second
floor. Accordingly, we conclude that there was sufficient evidence that Levy
had a possessory interest in the house and bedroom where the cocaine was
found and, therefore, had the capability to exercise dominion and control over
the cocaine. As we have already found that Levy had the intent to exercise
dominion and control over the cocaine, we thus conclude that he had
constructive possession of the drugs and that there was sufficient evidence to
support his conviction.
2. Inappropriate Sentence
[19] Next, Levy argues that his sentence was inappropriate in light of the nature of
his offense and his character. While sentencing decisions rest within the sound
discretion of the trial court, a reviewing court may revise a sentence pursuant to
Appellate Rule 7(B) if, “‘after due consideration of the trial court’s decision,’” it
finds that the sentence is inappropriate in light of the nature of the offense and
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the character of the offender. Holt v. State, 62 N.E.3d 462, 465 (Ind. Ct. App.
2016) (quoting Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 208 (Ind. 2007)). Whether a sentence is inappropriate
ultimately turns on the “‘culpability of the defendant, the severity of the crime,
the damage done to others, and a myriad of other factors that come to light in a
given case.’” Id. (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)).
[20] Here, Levy argues that he should have been sentenced to the advisory sentence
for Level 4 felony possession of cocaine. INDIANA CODE § 35-50-2-4 provides
that the sentencing range for a Level 4 felony is two (2) to twelve (12) years, and
the advisory sentence is six (6) years. As Levy was sentenced to ten (10) years
with two (2) years suspended to probation, his sentence is longer than the
advisory sentence. Nevertheless, we find that Levy’s sentence was not
inappropriate in light of the nature of his offense and his character.
[21] As for the nature of his offense, Levy argues that “given the fact that [he] was
one of many individuals in the home who had the potential for possessing the
cocaine found, his culpability was diminished significantly.” (Levy’s Br. 15).
We do not find this argument persuasive as Levy was convicted of possessing
the cocaine, not the other people in the house. Instead, we find that the nature
of Levy’s offense supports his sentence. Officers commenced an investigation
of Levy’s residence after they received multiple citizen complaints of possible
drug activity and drug transactions at the residence. Then, when officers
searched the residence, they found significant amounts of drugs and
paraphernalia used for dealing drugs, such as baggies and scales. Levy was
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convicted of possessing three different types of drugs—cocaine, synthetic
marijuana, and marijuana—and had scales and ammunition in his bedroom.
[22] As for his character, Levy notes that he has five children, had secured
employment for his release, had been employed for two years prior to his arrest,
had attended church, and enjoyed spending time with his children. However,
Levy’s criminal record is also a strong indication of his character. He has two
prior misdemeanor convictions from 2005 and 2006—one no financial
responsibility conviction and one weapons-carrying conviction. Then, in 2007,
he was convicted of felony dealing in cocaine or a narcotic drug and had his
probation revoked for that conviction. After he was released from the
Department of Correction, he violated his parole and was found guilty of Class
D felony escape. Subsequently, on August 26, 2015, he was charged with Level
4 felony unlawful possession of a firearm by a serious violent felon; Class B
misdemeanor possession of marijuana; and Class A misdemeanor possession of
marijuana with a prior conviction. While he was on bond in that case, he
committed the offenses underlying the instant case. He also admitted to using
marijuana while out on bond. These offenses and his overall criminal history
indicate Levy’s complete disregard and disrespect for the law. Further, we find
it notable that Levy’s offenses have increased in severity over time and that he
has previously been convicted of other drug crimes. In light of this evidence of
Levy’s character, we conclude that his sentence was not inappropriate.
[23]
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[24] Affirmed.
Baker, J., and Mathias, J., concur.
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