MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 17 2018, 9:25 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John P. Tuskey Curtis T. Hill, Jr.
Mishawaka, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Philip D. Hartsough, September 17, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-545
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Michael A.
Appellee-Plaintiff. Christofeno, Judge
Trial Court Cause No.
20C01-1702-F5-46
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018 Page 1 of 8
Case Summary
[1] Philip D. Hartsough was convicted following a bench trial of possession of
methamphetamine as a Level 5 felony. He appeals and claims that the State
did not present sufficient evidence that the methamphetamine, found on the
ground near his feet during his arrest, was his.
[2] We affirm.
Facts & Procedural History
[3] As part of their duties on February 24, 2017, Goshen Police Department
Officers Zachary Miller and Cody Brown were assigned to serve arrest
warrants. At that time, Hartsough had one or more outstanding warrants in
Elkhart County. Officers Miller and Brown were advised, as they began their
shift, that a vehicle belonging to Hartsough was parked around the 300 block of
South Seventh Street, which “is a well-known area for . . . drug activity[,]”
particularly methamphetamine. Transcript Vol. II at 14-15. Around 4:40 a.m.,
Officers Miller and Brown went to that area and observed a parked pick-up
truck, which they identified as belonging to Hartsough. The officers noticed an
illuminated radio light inside the truck, and, using a flashlight, Officer Miller
looked inside and saw a man later identified as Hartsough “hunched over” the
steering wheel. Id. at 17. Officer Miller announced his presence and both
officers gave Hartsough verbal commands to exit the vehicle.
[4] Because Hartsough was not exiting the car as ordered, Officer Miller became
concerned for officer safety, and he backed away and drew his firearm. About
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this time, Hartsough opened the door. With Officer Miller’s assistance,
Hartsough stepped out of the vehicle with his hands out and open. Hartsough
was sluggish, slow to react, and his speech was slow, which indicated to the
officers that Hartsough might be under the influence of an illegal substance. As
Hartsough stepped out, Officer Miller took his arms, and Officer Brown told
him to turn around and put his hands behind his back. Officer Brown’s body
camera was operating at the time, and photos from the video footage showed
that there was nothing on the pavement near the driver’s side door as
Hartsough was starting to step out.
[5] The officers handcuffed Hartsough, and, during Officer Brown’s search of
Hartsough, he found in Hartsough’s front jacket pocket a BIC ballpoint pen
casing, which the officers recognized as an object commonly used to ingest
illegal substances. Officer Miller looked down at the ground where Hartsough
had exited the vehicle and saw, within a few inches of Hartsough’s feet, two
clear baggies, one of which contained a white, crystal-like substance and the
other contained a yellow-orange piece of paper with “N7” on it. Id. at 35.
Officer Miller picked up the baggies from the wet pavement, noting that the
baggies were dry. The crystal-like substance later tested positive for
methamphetamine.
[6] On February 27, 2017, the State charged Hartsough with one count of
possession of methamphetamine, enhanced from a Level 6 to a Level 5 felony
based on a previous conviction for dealing in a controlled substance. A bench
trial was held on September 6, 2017. Prior to trial, Hartsough stipulated that
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the crystal-like substance recovered by the officers was 0.35 grams of
methamphetamine.
[7] At trial, Officer Miller testified that as he and Officer Brown were walking
toward the residence on South Seventh Street where they believed Hartsough to
be staying, they saw the parked pick-up truck and approached it. He explained
that, when checking a vehicle, it was routine for officers to not only look inside
of it, but also check around the exterior of it to view what, if anything, was on
the ground in the area. Officer Miller testified that he looked on the ground
with a flashlight around the pick-up truck and saw nothing other than the
pavement and curb where the vehicle was parked. He confirmed that there was
no “foot traffic” or anyone walking by the area at the time that he and Officer
Brown were arresting Hartsough. Id. at 41. Officer Miller acknowledged that
he did not see anything drop from Hartsough’s hands, lap, body, but noted that
he was “focused on [Hartsough’s] hands.” Id. at 38.
[8] Officer Brown testified to serving warrants with Officer Miller on the night in
question, noting that the first time they went to the residence on South Seventh
Street, Hartsough was not in his vehicle, but was when they returned at 4:40
a.m. Officer Brown recalled the pavement being wet at that time due to rain.
Officer Brown said that he and Officer Miller gave multiple commands for
Hartsough to exit the vehicle, but he “wasn’t complying.” Id. at 50. He
estimated it took five to eight verbal commands before Hartsough complied.
Officer Brown activated his body camera as he was standing on the passenger
side of the vehicle, before walking over to the driver’s side to arrest Hartsough.
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The camera’s video footage was admitted at trial without objection and played
for the trial court. Officer Brown testified to discovering in Hartsough’s pocket
the BIC pen casing, which he said “is commonly used to ingest narcotics” and
“is commonly referred to as a tooter.” Id. at 56. Officer Brown testified that he
did not observe Hartsough make furtive movements while in the truck, but
noted that he could not see Hartsough’s hands at that time. Officer Brown did
not see anything drop from Hartsough’s hands, lap, pocket, pants, or jacket.
[9] The trial court took the matter under advisement, and on December 5, 2017,
issued an order finding Hartsough guilty as charged. In its order, the trial court
observed, “While the Defendant testified that he did not have any drugs on him
or in the vehicle, the [trial] Court found the Defendant’s testimony to be
unreliable.” Appellant’s Appendix Vol. II at 45. The trial court continued,
There is no evidence to suggest that the officers planted the
methamphetamine. There is no evidence to suggest that
someone else planted the methamphetamine. The only
reasonable conclusion is that the Defendant [] Hartsough
deposited the methamphetamine on the ground outside of his
vehicle so that he could make the very argument which he made
to the Court, that being that he did not know it was
methamphetamine and he does not know how it got to be outside
of his vehicle.
Id. at 45-46. The trial court also found “unbelievable” Hartsough’s claim that
he thought it was a complete pen that was in his pocket. Id. at 46. Following a
sentencing hearing, the trial court imposed a six-year sentence at the Indiana
Department of Correction. Hartsough now appeals.
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Discussion & Decision
[10] Hartsough contends that the State failed to present sufficient evidence to
convict him of possession of methamphetamine. When reviewing a conviction
for the sufficiency of the evidence, we do not reweigh evidence or reassess the
credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). We
view all evidence and reasonable inferences drawn therefrom in a light most
favorable to the conviction and will affirm “if there is substantial evidence of
probative value supporting each element of the crime from which a reasonable
trier of fact could have found the defendant guilty beyond a reasonable doubt.”
Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). It is not
necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007).
[11] To convict Hartsough of Level 5 felony possession of methamphetamine as
charged, the State was required to prove that he: (1) knowingly or intentionally
(2) possessed methamphetamine, and (3) the amount of the drug was less than
five grams and an enhancing circumstance applied. See Ind. Code § 35-48-4-
6.1(a), (b)(2), 35-48-1-16.5(1). On appeal, Hartsough does not challenge that
the substance was methamphetamine, the amount of it, or that he had a prior
qualifying conviction to elevate his offense. Rather, his argument on appeal is
that the State failed to prove that the methamphetamine found on the ground
near his feet belonged to him. Hartsough urges that it is undisputed that he
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exited the vehicle with his hands out and open, and because the officers did not
see anything fall from his lap or body, or otherwise see him make furtive
gestures, there was insufficient evidence from which to conclude that Hartsough
disposed of the contraband as he stepped out of the pick-up truck. We disagree.
[12] The State presented evidence that, as the officers were serving arrest warrants in
an area known for drug activity, they found Hartsough slumped over in the
driver’s seat of his vehicle. Officer Miller testified that as he approached the
parked pick-up truck, he looked, but did not see, anything on the ground
around the vehicle. Consistent with Officer Miller’s testimony, Officer Brown’s
body-camera footage did not show anything on the pavement as Hartsough
exited through the driver’s-side door. Indeed, Hartsough does not dispute that
there were no baggies on the ground near the driver’s side door before he exited
the truck. While Officer Brown was searching Hartsough, Officer Miller saw
the two clear baggies on the ground, a few inches from Hartsough’s feet. The
officers both testified that there were no people walking by the area during the
arrest. Officer Miller also testified that the pavement was wet from rain, but the
baggies were dry, supporting the inference that they had been on the ground
only for a short period of time. Although Hartsough testified that he did not
have any drugs on him or in the vehicle, the trial court found his testimony in
that regard to be “unreliable.” Appellant’s Appendix Vol. II at 45. Similarly,
although Hartsough testified he did not know that the pen found in his pocket
was hollow, the trial court found such testimony was “also [] unbelievable.” Id.
at 46.
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[13] Direct evidence of Hartsough discarding the methamphetamine is not required,
as circumstantial evidence alone is sufficient to sustain a conviction. Maul v.
State, 731 N.E.2d 438, 439 (Ind. 2000); Floyd v. State, 791 N.E.2d 206, 210 (Ind.
Ct. App. 2003), trans. denied. Based on the record before us, we find that the
State presented sufficient evidence to convict Hartsough of Level 5 felony
possession of methamphetamine.
[14] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
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