author: Altice, Judge.

text:
    In the Matter of the Civil Commitment of T.W., Appellant-Respondent, v. ST. VINCENT HOSPITAL AND HEALTH CARE CENTER, INC., Appellee-Petitioner
    Court of Appeals Case No. 18A-MH-1148
    Court of Appeals of Indiana.
    Filed November 21, 2018
    Attorney for Appellant: Joel M. Schumm, Indianapolis, Indiana
    Attorneys for Appellee: Andrew B. Howk, Matthew M. Schappa, Indianapolis, Indiana
   Altice, Judge.

Case Summary

[1] T.W. appeals the trial court's order for involuntary temporary commitment. He argues that the order is defective because it lacked the trial judge's signature and contained only the signature of a commissioner. Additionally, T.W. contends that there was insufficient evidence to support his temporary commitment.

[2] We affirm.

Facts & Procedural History

[3] T.W. is an intelligent young man in his late twenties who has been diagnosed with schizophrenia since 2013. T.W. does not accept this diagnosis but has participated in treatment and taken anti-psychotic medication at times. When properly medicated, T.W. is "very friendly, very engaging, [and] amiable". Transcript at 17. He is not aggressive and "does very well when he's on his medication." Id. at 20.

[4] A little over a year before the commitment hearing, T.W. was living with his mother until an incident occurred where he physically attacked her. T.W. was not taking his medication, and he became angry with his mother following a minor vehicle accident. He blamed her for distracting him while driving. When she responded and grabbed his hand, T.W. choked her and brought her to the ground. The police were called, and T.W. was taken to jail. No criminal charges were pursued against T.W., but he was taken before the court and ordered to take his medication. For the next eleven months, T.W. took his medication and attended outpatient treatment at Aspire. T.W. lived with his paternal grandmother, and his father (Father) regularly took him to treatment during this time.

[5] In December 2017, T.W. unilaterally decided to stop taking his medication. According to Father, T.W. eventually became more reclusive and withdrawn and was easily agitated. T.W. stopped attending treatment. His paranoid behaviors increased, and he made multiple reports to the FBI, including that a friend was a member of ISIS. In March 2018, T.W. left a note at the local library warning that a bomb or chemical weapon might be in the area. Local law enforcement and the FBI had multiple interactions with T.W.

[6] On or about March 22, 2018, T.W. told Father that he was going to kill him, which then resulted in a physical altercation. Father took the threat seriously and observed that T.W. expressed it with "more maliciousness" than prior threats. Id. at 20. The police were called, and T.W. was brought by police to the emergency department at St. Vincent Hospital.

[7] T.W. was admitted to St. Vincent Stress Center between March 22 and 29, 2018. His treating psychiatrist, Erika Cornett, M.D. (Dr. Cornett), found T.W.'s diagnosis of schizophrenia to be evident. She noted his multiple contacts with the FBI and his delusional beliefs. T.W., however, continued to refuse to accept this diagnosis. Upon his discharge on March 29, T.W. refused to take his prescribed anti-psychotic medications. He did agree, however, to attend outpatient treatment at Aspire and take medication for anxiety.

[8] On April 12, 2018, T.W. and Father had a meeting with members of the FBI. T.W. was warned by the FBI that his continued false reports could result in criminal charges. Father scheduled an emergency appointment at Aspire that same day. At this appointment, T.W. became threatening and aggressive toward staff.

[9] As a result of T.W.'s threatening behavior, a physician with Aspire filed an application for T.W.'s emergency detention on April 12, 2018. The physician's emergency statement indicated, regarding the immediacy of the danger, that T.W. "has been non compliant with medications, is actively hallucinating, is extremely paranoid and exhibits extreme mood lability and potential for violence." Appendix at 19. The emergency detention was judicially authorized, and T.W. was admitted to Community North Behavioral Health on the afternoon of April 12, 2018.

[10] T.W. was apparently transferred the following day to St. Vincent Stress Center and again treated by Dr. Cornett. Although T.W. exhibited paranoid delusions, he was not aggressive or agitated with Dr. Cornett. T.W. denied experiencing hallucinations, which had been reported by hospital staff. T.W. continued to reject his diagnosis, believing that he only suffers from OCD and anxiety. He took three doses of Risperdal, an anti-psychotic drug, but then refused to take any more due to the side effects, including extreme drowsiness.

[11] On April 17, 2018, St. Vincent Stress Center filed a petition for the temporary mental health commitment of T.W. In her physician's statement, Dr. Cornett opined that T.W. suffers from a psychiatric disorder, i.e., schizophrenia. In her professional opinion, Dr. Cornett also indicated that T.W. presents a substantial risk of harm to others and is, therefore, dangerous. Specifically, she noted that T.W. had threatened to kill Father and that Father is fearful of his safety if T.W. were released. Dr. Cornett also indicated that T.W. had acted threatening toward a therapist at the outpatient clinic. Dr. Cornett recommended a temporary commitment to the St. Vincent Stress Center.

[12] Commissioner Kelly M. Scanlan presided over the commitment hearing held on April 20, 2018, at which Dr. Cornett, Father, and T.W. testified. Dr. Cornett testified, among other things, that it was her professional opinion that T.W. was a potential danger to others. In this regard, she noted his refusal to take anti-psychotic medication and his resulting aggressive behavior. Specifically, she referenced his recent behavior at Aspire, his "several altercations" with Father, and reports that T.W. had threatened to "put a bullet in [Father's] head." Id. at 9. Dr. Cornett indicated a concern for "dangerousness and violence" if T.W. was released without the needed treatment. Id. at 12. Father echoed the same fears: "I mean ... the key is I just don't want it to get to a situation where he might actually hurt someone. Or hurt himself." Id. at 22. He emphasized that T.W. needs to be medicated and testified that T.W. "is in complete denial that he even has a problem". Id. Indeed, T.W. testified that he "fully disagree[d]" with his schizophrenia diagnosis and stated that he was "perfectly fine" when he stopped taking his medications. Id. at 25, 29.

[13] At the conclusion of the hearing, Commissioner Scanlan expressly found by clear and convincing evidence that T.W. suffers from a mental illness and that he is both a danger to others and gravely disabled. Thus, Commissioner Scanlan granted the temporary commitment. On the same date, Commissioner Scanlan signed the written order for temporary commitment. T.W. filed a notice of appeal from this order on May 14, 2018.

Discussion & Decision

Defective Order

[14] We initially address T.W.'s claim that the order for temporary commitment is defective because it contains only the signature of Commissioner Scanlan and lacked the required judge's signature. Indeed, at the time the order was issued, Indiana law expressly barred Commissioner Scanlan from entering a final appealable order in this case. See Ind. Code § 33-23-5-8 ; Capehart v. Capehart , 771 N.E.2d 657, 662 (Ind. Ct. App. 2002) ("magistrates and commissioners have identical authority").

[15] Regardless, T.W. has waived appellate review of this issue because he did not object to the commitment order at any point prior to this appeal. " '[I]t has been the long-standing policy of [the Indiana Supreme Court] to view the authority of the officer appointed to try the case not as affecting the jurisdiction of the court' - and so 'the failure of a party to object at trial to the authority of a court officer to enter a final appealable order waives the issue for appeal.' " In re Adoption of I.B. , 32 N.E.3d 1164, 1173 n.6 (Ind. 2015) (quoting Floyd v. State , 650 N.E.2d 28, 32 (Ind. 1994) ); see also City of Indianapolis v. Hicks , 932 N.E.2d 227, 231 (Ind. Ct. App. 2010) ("defects in the authority of a court officer, as opposed to jurisdiction of the trial court itself, to enter a final order will be waived if not raised through a timely objection"), trans. denied . "[A]ny objection to the authority of an adjudicative officer must be raised at the first instance the irregularity occurs, or at least within such time as the tribunal is able to remedy the defect." Hicks , 932 N.E.2d at 231.

[16] In Hicks , this court held that the appellant had waived a claim of error by failing to timely object to an order signed by a magistrate but not a judge. Id. We noted that the appellant called the trial court's attention to the error well after the deadline for ruling on the motion to correct error had expired. Id. In other words, the appellant "fail[ed] to challenge at the first instance an irregularity apparent on the face of the order" and "failed to raise the issue until a point when the trial court could no longer correct the error by issuing an amended order bearing the trial judge's signature." Id. Here, T.W. likewise failed to timely object to the order that was signed by only Commissioner Scanlan. We, therefore, conclude that he has waived the issue for our review.

Sufficiency of the Evidence

[17] On review, we look to the evidence most favorable to the trial court's decision and all reasonable inferences drawn therefrom. In re Commitment of J.B. , 766 N.E.2d 795, 799 (Ind. Ct. App. 2002). Thus, we will not reweigh the evidence or judge the credibility of witnesses. Civil Commitment of J.B. v. Community Hosp. N. , 88 N.E.3d 792, 795 (Ind. Ct. App 2017). "If the trial court's commitment order represents a conclusion that a reasonable person could have drawn, the order must be affirmed, even if other reasonable conclusions are possible." J.B. , 766 N.E.2d at 799.

[18] In an involuntary commitment case, the petitioner is required to prove by clear and convincing evidence: "(1) the individual is mentally ill and either dangerous or gravely disabled; and (2) detention or commitment of that individual is appropriate." Ind. Code § 12-26-2-5(e) (emphasis supplied). "Clear and convincing evidence requires the existence of a fact to be highly probable." J.B. , 88 N.E.3d at 795.

[19] On appeal, T.W. does not challenge the trial court's determination that he is mentally ill. Rather, he contends that there is insufficient evidence to establish that he is either dangerous or gravely disabled. Because only one of these factors need be established to support an involuntary commitment, we focus our analysis on the sufficiency of the evidence regarding whether T.W. is dangerous.

[20] An individual is dangerous for purposes of the involuntary commitment statute where he, "as a result of mental illness, presents a substantial risk that the individual will harm the individual or others." Ind. Code § 12-7-2-53. "The evidence must indicate 'that the behavior used as an index of a person's dangerousness would not occur but for the person's mental illness.' " J.B. , 88 N.E.3d at 796 (quoting B.M. v. Ind. Univ. Health , 24 N.E.3d 969, 972 (Ind. Ct. App. 2015), trans. denied ). In this case, the trial court specifically found that T.W. was a danger to others.

[21] T.W. argues that St. Vincent Stress Center failed to offer clear and convincing evidence that he presented a substantial risk to others. T.W. notes that there was no evidence that he threatened or harmed anyone at the hospital in the days leading up to his commitment hearing. Further, he argues that his physical attack of his mother took place more than a year before the commitment hearing.

[22] We reject T.W.'s invitation to reweigh the evidence. The record establishes that when unmedicated, T.W.'s schizophrenia takes over and he becomes aggressive, paranoid, delusional, and dangerous. T.W.'s violent attack of his mother - choking her and taking her to the ground - happened at a time when he was not taking anti-psychotic medication. This violence led to his immediate arrest. Thereafter, T.W. took his medication as prescribed and attended outpatient treatment at Aspire for about eleven months. During this time, T.W. was back to his old, non-violent self. He was "very friendly, very engaging, [and] amiable". Transcript at 17. This quickly changed when in December 2017, T.W. decided to stop taking his medication and attending treatment. As a result, T.W. became reclusive, withdrawn, and easily agitated. He made unfounded reports to the FBI regarding another individual and left a note at the library warning of a bomb or chemical weapons. Additionally, T.W. made violent, malicious threats against Father, which Father took seriously. T.W. also engaged in a physical confrontation with Father in late-March 2018, which led to police officers taking T.W. to the emergency department and a week-long admission to the St. Vincent Stress Center. Less than two weeks after his inpatient discharge, T.W. became threatening and aggressive toward Aspire staff during an outpatient therapy session on April 12, 2018. This led to his emergency involuntary detention that same day.

[23] Dr. Cornett testified that it was her professional opinion that T.W. was a potential danger to others due to his schizophrenia and refusal to take anti-psychotic medication. She indicated a concern for "dangerousness and violence" if T.W. was released without the needed treatment. Id. at 12. Father expressed similar fears that T.W. might actually hurt someone.

[24] "[A] trial court is not required to wait until harm has nearly or actually occurred before determining that an individual poses a substantial risk of harm to others." C.J. v. Health & Hosp. Corp. of Marion Cty. , 842 N.E.2d 407, 410 (Ind. Ct. App. 2006). Based on the evidence presented at the commitment hearing, a reasonable person could conclude that T.W. posed a substantial risk of harm to others. Thus, we affirm the trial court's conclusion that T.W. was dangerous to others at the time of his temporary involuntary commitment.

[25] Judgment affirmed.

Brown, J., concurs.

Tavitas, J., dissents with opinion.

[1] I respectfully dissent. I differ with the majority's determination that waiver analysis is dispositive here. I am guided by In Re Civil Commitment of L.J., No. 18A-MH-152, 113 N.E.3d 274, 276-77, 278, 2018 WL 5075089 (Ind. Ct. App. Oct. 18, 2018), in which a panel of this court recently held that the trial judge's entry of a blanket business record order summarily approving all of the commissioner's recommendations without review by the trial court warranted dismissal of the respondent's appeal and remand to the trial court judge to review the matter and enter a final order. The L.J. panel reasoned that, absent any evidence that the trial judge: (1) reviewed L.J.'s case; (2) specifically referenced L.J.'s civil commitment; (3) indicated an intention to affirm the commissioner's decision as the final order; and (4) entered the affirmation of the commissioner's work under a business record cause number associated with L.J., the panel was "left without any assurance that the court fulfilled its obligation to review and 'enter the final order.' " Id. at 278.

[2] Several rules and statutes are relevant here. Appellate Rule 5(A), governing appeals from final judgments, provides: "Except as provided in Rule 4, the Court of Appeals shall have jurisdiction in all appeals from Final Judgments of Circuit, Superior, Probate, and County Courts, notwithstanding any law, statute or rule providing for appeal directly to the Supreme Court of Indiana."

[3] Trial Rule 59(A) provides that a motion to correct error is a prerequisite for appeal only under the following circumstances:

(A) Motion to correct error--When mandatory. A Motion to Correct Error is not a prerequisite for appeal, except when a party seeks to address:
(1) Newly discovered material evidence, including alleged jury misconduct, capable of production within thirty (30) days of final judgment which, with reasonable diligence, could not have been discovered and produced at trial; or
(2) A claim that a jury verdict is excessive or inadequate.
All other issues and grounds for appeal appropriately preserved during trial may be initially addressed in the appellate brief.

Ind. Trial Rule 59(A) (bold emphasis in original, italics added).

[4] A number of Indiana statutes in Title 33, governing courts and court officers, are implicated. Indiana Code Section 33-23-5-5, enumerating the powers of a magistrate judge, states nineteen acts that a magistrate "may" take.

[5] In April 2018, when the commitment order was entered, Indiana Code Section 33-23-5-8 provided as follows:

Except as provided under sections 5(14) and 9(b) of this chapter, a magistrate:
(1) does not have the power of judicial mandate; and
(2) may not enter a final appealable order unless sitting as a judge pro tempore or a special judge.

Ind. Code § 33-23-5-8 (2008). Effective July 1, 2018, Indiana Code Section 33-23-5-8 was amended to eliminate the restriction on the ability of magistrates and commissioners to enter final appealable orders. The current statute, thus provides, "[e]xcept as provided under sections 5(14) and 9(b) of this chapter, a magistrate does not have the power of judicial mandate."

[6] Indiana Code Section 33-23-5-9 provides that, except in cases of a criminal trial or guilty plea hearing, a magistrate "shall report findings in an evidentiary hearing, a trial, or a jury's verdict to the court" and "[t]he court shall enter the final order."

[7] Indiana Code Section 33-33-49-16, which specifically enumerates the powers of probate hearing judges and commissioners and is applicable here, states that an appointed probate hearing judge or probate commission "shall be vested by the judge of the probate division with suitable powers for the handling of all probate matters" including:

(6) Taking or hearing evidence on or concerning matters described in this subsection or any other probate, guardianship, or trust matters in litigation before the court.
(7) Enforcing court rules.
(8) Making reports to the court concerning the judge's or commissioner's doings in the proceedings described in this subsection, including reports concerning the commissioner's findings and conclusions regarding the proceedings.
However, all matters handled by a hearing judge or commissioner under this subsection are under the final jurisdiction and decision of the judge of the probate division.

I.C. § 33-33-49-16 (emphasis added).

[8] Indiana Code Section 33-33-49-16(e) states,

A master commissioner appointed by the court under this section has the powers and duties prescribed for a magistrate under IC 33-23-5-5 through IC 33-23-5-9. A master commissioner shall report the findings in each of the matters before the master commissioner in writing to the judge or judges of the division to which the master commissioner is assigned or as designated by the rules of the court.

It is undisputed that the commissioner had authority to hear the petition for commitment; however, the commissioner did not have statutory authority to enter a final appealable order. See I.C. § 33-33-49-16(a) (stating that "all matters handled by a hearing judge or commissioner under this subsection are under the final jurisdiction and decision of the judge of the probate division"). I conclude, as did the majority, that the commissioner did not have authority to enter a final order here.

[9] The majority concludes that this issue is waived based on Floyd v. State , 650 N.E.2d 28 (Ind. 1994), and City of Indianapolis v. Hicks , 932 N.E.2d 227 (Ind. Ct. App. 2010), trans. denied . The instant case is distinguishable from Floyd and Hicks because this case involves a blanket policy of the trial court rather than a mere oversight. A rash of cases involving potentially defective commitment orders have appeared before us, and panels of this court have reached varying conclusions in conducting appellate review. In my view, much-needed clarity could be supplied in the form of a statute or court rule specifically tailored to cases in which litigants risk waiving their claims of error due, not to the litigant's acts or omissions, but rather, owing to the acts or omissions of presiding trial judges.

[10] The instant case is not a case in which an inadvertent oversight by the trial court resulted in a final order that was not approved by the trial court judge. Rather, here, as in L.J. , the trial court judge expressly abdicated his statutory duties under Indiana Code Section 33-33-49-16. The trial court judge issued a blanket order under the court business docket, which summarily approved all recommendations of the court commissioner without specifically reviewing the case(s) and indicating the trial court judge's intention to approve the commissioner's recommendations relating thereto. In so doing, the trial court clearly delegated to the commissioner, without statutory authority, the trial court's duty to render final decisions.

[11] Here, the trial court judge was required to enter a "decision," pursuant to Indiana Code Section 33-33-49-16(a) and failed to do so. The waiver analysis employed by the majority falls short under these unique circumstances because the respondent is penalized for failing to "timely" urge the trial court judge to perform his or her statutory duty. A litigant cannot waive a trial court judge's exercise of statutory responsibility.

[12] Deeming the defective order issue waived because it was not raised below effectively allows the trial court judge to abdicate his duties and obligates the litigant to remind the judge of his duties by filing a motion in the very court that has abandoned its duties. Such abdication by trial court judges should not be litigants' and appellate courts' problem to resolve.

[13] Again, I suspect that clarification, by statute or trial rule, of a litigant's risk of waiver under circumstances such as these may be necessary. Perhaps a trial rule that addresses such a defect would assist litigants who are filing an appeal inasmuch as a motion to correct error was not required here before T.W. initiated his appeal. By what mechanism does a litigant who finds him/herself in this situation receive notice of the significant, and likely certain, risk of waiver? A trial rule or statute that discusses waiver and prescribes a time frame for raising the issue before the trial court would put such a litigant on notice in cases in which the underlying order was not duly approved and counter-signed by the trial court judge.

[14] Due to the plain language of Indiana Code Section 33-33-49-16(a), I find that the order of commitment was not a final appealable order. As in L.J. , we should "reject the trial court's entry of a business record with no reference to specific case numbers as a method for adopting the findings and conclusions of a magistrate or commissioner as to any specific case heard during a specified time period" and determine that the underlying commitment order is not a final order. See L.J., No. 18A-MH-152, 113 N.E.3d at 278.

[15] For these reasons, the underlying commitment order here is defective because the trial judge did not specifically review and approve the commissioner's recommendations as to T.W. Accordingly, I would remand to the trial court for review and approval of the commissioner's recommended order for temporary commitment. I acknowledge that the issue is moot as to this particular appellant; however, to correct the record, such approval by the trial court judge is necessary.

      The details of the transfer are not in the record.

      This statute has since been amended, effective July 1, 2018. The amendment removed the limitation regarding magistrates (and, thus, commissioners) entering a final appealable order. I.C. § 33-23-5-9(a), however, still requires that the court "enter the final order" in instances such as this.

      The order was signed by Commissioner Scanlan on April 20, 2018, and T.W. filed his notice of appeal on May 14, 2018. T.W. had ample time between these dates where he could have filed an objection to the fact that the commitment order lacked a judge's signature.

      The dissent relies on a recent opinion issued by another panel of this court that found the identical issue (involving the same commissioner and judge) was not waived despite the fact that it was not raised at the trial level. See L.J. v. Health & Hosp. Corp , No. 18A-MH-152, 113 N.E.3d 274, 277 n.4, 2018 WL 5075089 (Ind. Ct. App. October 18, 2018). The L.J. court dismissed the appeal and remanded for the probate court judge to review the matter and enter a final order. We understand the strong desire to address the clear impropriety of the trial court's handling of the matter, which appears to be a pattern, but we cannot agree with its ultimate decision to dismiss the appeal. Our Supreme Court has expressly disapproved of decisions similar to L.J. :
      We conclude that it is improper for a reviewing court to dismiss an appeal on these grounds where no showing has been made that the issue was properly preserved. Instead, the reviewing court should deny relief on grounds of waiver. Because the following recent decisions of the Court of Appeals hold that the proper procedure in such situations is to dismiss the appeal without regard for whether the issue has been properly preserved, the decisions are disapproved : Cartwright v. State (1993), Ind. App., 621 N.E.2d 1164 ; Kirby v. State (1993), Ind. App., 619 N.E.2d 967 ; Hill v. State (1993), Ind. App., 611 N.E.2d 133 (2-1 decision, Buchanan, J., dissenting); Scruggs v. State (1993), 609 N.E.2d 1148, 1150 (2-1 decision, Buchanan, J., dissenting), after remand , (1994), Ind. App., 637 N.E.2d 175 ; Green v. State (1989), Ind. App., 540 N.E.2d 130, reh'g denied , (1989), 544 N.E.2d 172, trans. denied . We cite Senior Judge Buchanan's dissents in the Scruggs and Hill cases as correct statements of the law and precedent in this regard. We commend the Court of Appeals for properly applying these principles in Briscoe v. State [ (1994), Ind. App., 639 N.E.2d 1058] and, accordingly, deny transfer in Briscoe .
      Floyd , 650 N.E.2d at 32-33 (emphasis supplied). Indeed, the first case in the list disapproved by the Supreme Court - Cartwright - is on par with this case. There, a referee issued a judgment that was not adopted or approved by the trial court. Our court determined, like the dissent does here, that we lacked jurisdiction because no appealable final judgment existed. Cartwright , 621 N.E.2d at 1165. We explained: "While a referee, magistrate or commissioner may preside at a trial, they are not empowered to enter a final order or judgment." Id. Based on the trial judge's failure to adopt and approve the referee's judgment, we concluded:
      We regret the inconvenience this causes to both the appellant and appellee. However, it is incumbent upon the trial judges of this state to either properly appoint a judge pro tempore or a special judge, or to adopt and approve the actions of commissioners, magistrates and referees. Without strict adherence to the rules for the use of substitute judges, we lack jurisdiction to entertain the appeal.
      Id. In Floyd , our Supreme Court rejected this type of analysis. We fail to see how the scale of the trial court's violation of the relevant statutes grants us the ability to disregard the Court's directive in Floyd .

      Because we conclude sufficient evidence was presented with respect to dangerousness, we need not consider T.W.'s argument related to the trial court's conclusion that he was gravely disabled. See id. at 410 n.3.

      Appellate Rule 4 governs the jurisdiction of our supreme court.


source: Caselaw Access Project

author: Mathias, Judge.

license: Public Domain

text:
    Pierre A. SMITH, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-478
    Court of Appeals of Indiana.
    FILED November 29, 2018
    Attorneys for Appellant: Valerie K. Boots, Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Chandra K. Hein, Ian McLean, Deputy Attorneys General, Indianapolis, Indiana
   Mathias, Judge.

[1] Pierre Smith ("Smith") was convicted in Marion Superior Court of Level 4 felony unlawful possession of a firearm by a serious violent felon. Smith appeals and argues that the State failed to prove that he constructively possessed the firearm.

[2] We affirm.

Facts and Procedural History

[3] At approximately 8:00 p.m. on May 31, 2017, Indianapolis Metropolitan Police Department Officer William Wogan ("Officer Wogan") was on patrol in his district when he observed Smith driving a silver Chevrolet Monte Carlo. Smith "rolled" a stop sign and then turned right onto East Eleventh Street. Tr. p. 40. The officer followed Smith onto East Eleventh Street and observed that Smith failed to stop at the stop sign at the intersection of East Eleventh and LaSalle Street. Smith then proceeded northbound on LaSalle Street.

[4] As the officer turned northbound onto LaSalle, he saw Smith's vehicle "suddenly slow down [and] pull to the right." Tr. p. 44. The tires on the passenger side of the vehicle hit the curb, and the car jolted. Id. At that point, Officer Wogan activated his lights to initiate a traffic stop. While Smith's vehicle was stopped at the curb, the officer saw Smith moving around in the vehicle and shift from the middle of the front seat back to the driver's seat. Tr. pp. 44-45. The officer could not see the passenger side of Smith's vehicle because a parked car partially blocked the officer's view.

[5] Smith then pulled away from the curb and continued to drive northbound on LaSalle Street with Officer Wogan in pursuit with his lights activated. Officer Wogan radioed for assistance.

[6] Smith turned right onto Thirteenth Street and drove approximately one-half of the block before stopping his vehicle. Because Smith initially fled from him before stopping, the officer considered the traffic stop high risk. The officer instructed Smith to turn his vehicle off, exit the vehicle, and walk back toward Officer Wogan. Smith complied with the officer's commands.

[7] Officer Wogan obtained Smith's name and date of birth and determined that Smith did not have a driver's license, active arrest warrants, or a handgun permit. Because Smith cooperated and Officer Wogan was "not tasked with traffic enforcement," the officer released Smith and instructed him that a licensed driver would need to pick up Smith and the car. Tr. pp. 48-49. Before Smith was allowed to return to the vehicle, Officer Brett Lorah ("Officer Lorah") made a quick sweep of the vehicle to check for weapons. Officer Lorah did not find any weapons but did notice that the front passenger window of the vehicle was in a lowered position.

[8] Because Smith's driving behavior had piqued Officer Wogan's curiosity, after the traffic stop was complete, Officer Wogan and Officer Lorah returned to the area on LaSalle Street where Smith had pulled his vehicle over to the curb just before Officer Wogan initiated the traffic stop. The officers stood on the sidewalk in front of 1213 LaSalle Street, an abandoned property, and saw a black and silver 9mm semi-automatic pistol laying in the grass approximately fifteen feet from the curb. Tr. p. 52. Just after locating the gun, the officers saw Smith driving his vehicle "backwards on Thirteenth Street." Id. Smith then stopped in the intersection, turned south on LaSalle Street, and drove by the officer. Smith and Officer Wogan made eye contact as Smith drove by. As Smith was driving without a license after being directed not to do so, Officer Wogan instructed Officer Lorah to stop Smith, which he did just a few blocks away.

[9] Officer Wogan believed the pistol belonged to Smith and arrested him for carrying a handgun without a license. The officer recovered the pistol and observed scratches on the side of the pistol that had been laying on the freshly mown grass. The officer opined that the scratches looked "relatively fresh." Tr. p. 57. The officer believed that the markings and damage to the pistol "would be consistent with being thrown across concrete and on the ground." Tr. p. 59. And based on its appearance, the officer did not believe that the pistol had been exposed to the elements for any significant length of time.

[10] The State charged Smith with Level 4 felony unlawful possession of a firearm by a serious violent felon, and a jury trial was held on January 23, 2018. At trial, Officer Wogan testified that due to his observations "that [he] had of the driving behavior and the movements of Mr. Smith, where we located the firearm and the fact that no one was around, we came to the conclusion that Mr. Smith had thrown the firearm out the window when he pulled over." Tr. p. 64.

[11] The jury found Smith guilty as charged. Smith waived his right to a jury trial on his status as a serious violent felon. The trial court found that Smith is a serious violent felon and entered judgment of conviction for Level 4 felony possession of a firearm by a serious violent felon. On February 22, 2018, the trial court ordered Smith to serve ten years, eight years executed in the Department of Correction and two years suspended to probation. Smith appeals his conviction.

Standard of Review

[12] Our standard of review for claims of insufficient evidence is well settled: we neither reweigh the evidence nor judge the credibility of the witnesses, and we consider only the evidence most favorable to the verdict and the reasonable inferences that can be drawn from this evidence. Knight v. State , 42 N.E.3d 990, 993 (Ind. Ct. App. 2015). We will not disturb the jury's verdict if substantial evidence of probative value supports it. Id. As an appellate court, we respect the jury's exclusive province to weigh conflicting evidence. Id.

Discussion and Decision

[13] Smith argues that the State failed to prove beyond a reasonable doubt that he "constructively possessed the handgun that police found abandoned on the front lawn of a vacant house." Appellant's Br. at 10. Indiana Code section 35-47-4-5(c) provides: "A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Level 4 felony." A conviction for possession of a firearm may rest upon proof of either actual or constructive possession. See Houston v. State , 997 N.E.2d 407, 409-10 (Ind. Ct. App. 2013).

[14] Actual possession is the direct physical control of the gun.

Bradshaw v. State , 818 N.E.2d 59, 62 (Ind. Ct. App. 2004). In this case, there is no evidence that the officers saw the gun in Smith's possession.

[15] "Constructive possession occurs when somebody has the intent and capability to maintain dominion and control over the item." Henderson v. State , 715 N.E.2d 833, 835 (Ind. 1999). A person constructively possesses contraband 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).

[16] "To prove capability, the State must show that the defendant is able to reduce the contraband to [his] personal possession." K.F. v. State , 961 N.E.2d 501, 510 (Ind. Ct. App. 2012), trans. denied . To prove intent, the State must establish the defendant's knowledge of the presence of the contraband. Id. When possession of the premises where the contraband is found is non-exclusive, the defendant's knowledge may not be inferred absent some additional circumstances indicating knowledge of the presence of the contraband and the ability to control it. Gaynor v. State , 914 N.E.2d 815, 819 (Ind. Ct. App. 2009), trans. denied . "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; and (6) location of the contraband is in close proximity to items owned by the defendant." Id. at 819-20 (quoting Holmes v. State , 785 N.E.2d 658, 660-61 (Ind. Ct. App. 2003) ).

[17] It is well-settled that "conviction for possessory offenses does not depend on the accused being 'caught red-handed' in the act by the police." Wilburn v. State , 442 N.E.2d 1098, 1101 (Ind. 1982). Moreover, it is "not necessary that the evidence 'overcome every reasonable hypothesis of innocence.' The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict." Drane v. State , 867 N.E.2d 144, 146-47 (Ind. 2007) (citation omitted).

[18] Smith argues that the evidence is insufficient to support his conviction because Officer Wogan did not see a handgun in his possession, and he did not see Smith throw a handgun from his vehicle. Smith further argues that he did not make any incriminating statements to the officers, the handgun was found in a high crime area in the yard of an abandoned house, and the gun was not found within close proximity to him. Moreover, Smith argues that his flight from the police only establishes "consciousness of guilt of not having a valid driver's license." Appellant's Br. at 15.

[19] Officer Wogan found the handgun laying in the grass near to the area that Smith pulled over and hit the curb. While Smith was stopped at the curb, the officer saw Smith shift from the middle of the front seat back to the driver's seat. Tr. pp. 44-45. Officer Wogan activated his lights to initiate a traffic stop, and Smith fled in his vehicle. Smith eventually stopped, and during the ensuing traffic stop, Officer Lorah observed that the passenger side window of the vehicle was lowered.

[20] After Officer Wogan returned to the area where Smith stopped his car and hit the curb, the officer found the handgun. Based on its appearance, the officer did not believe that the pistol had been exposed to the elements for any significant length of time. The officer recovered the pistol and observed scratches on the side of the pistol that had been laying on the freshly mown grass. He determined that the scratches looked "relatively fresh." Tr. p. 57. The officer believed that the markings and damage to the pistol "would be consistent with being thrown across concrete and on the ground." Tr. p. 59. The officer did not observe any other individuals in the area near the abandoned property either before or after the traffic stop.

[21] Finally, just after Officer Wogan found the handgun, the officer saw Smith driving his vehicle "backwards on Thirteenth Street." Id. at 52. Smith then stopped in the intersection, turned south on LaSalle Street, and drove by the officer. Smith and Officer Wogan made eye contact as Smith drove by.

[22] In Brent v. State , 957 N.E.2d 648, 652 (Ind. Ct. App. 2011), trans. denied , the defendant was a front seat passenger, rather than the driver. Police officers were investigating a possible illegal drug transaction and initiated a traffic stop. The vehicle did not stop initially but did briefly stop next to a parked vehicle. The driver eventually stopped the vehicle, and during the traffic stop, the officers smelled fresh marijuana. The driver was arrested for resisting law enforcement, and the passenger, Brent, was removed from the car and handcuffed. When an officer returned to the area where the driver had briefly stopped the vehicle, he found a plastic baggie containing marijuana. Thereafter, Brent was charged with and convicted of possession of marijuana.

[23] On appeal, our court observed that Brent did not make incriminating statements, the marijuana was not found in close proximity to any items owned by him, and the driver's flight was beyond Brent's control. Brent did not flee or make any furtive gestures when the driver finally stopped the vehicle. Moreover, our court attributed any suspicion resulting from the suspect car stopping briefly so close to another vehicle to the driver, and not to Brent. Our court noted that the officer did not observe anything thrown out of the vehicle's passenger side window and did not testify that he observed "a throwing motion." Id. at 651.

[24] Finally, our court discussed the trial court's reliance on the fact that the marijuana was found where the vehicle had briefly stopped and agreed that it was not simply a coincidence that a baggie containing marijuana was found in that spot. However, we observed:

We agree that the likelihood of a coincidence is low, and have searched for case law that explains when a coincidence is so unlikely that it leads to a reasonable inference that may support a conviction. "Coincidence" case law generally either looks inward to other factual circumstances to emphasize the unlikelihood of a coincidence and that something more intentional must have occurred, or highlights the lack of additional evidence and concludes that without more, the evidence presented does not lead to any inferences.
Based on the evidence presented, we are inclined to follow the latter approach in this case. An officer[']s gut feeling and deduction based solely on the same do not amount to evidence that Brent possessed marijuana. The fact that Brent's driver momentarily stopped the suspect vehicle so that Brent, as the passenger, was sitting (inside the car) in the same spot where Officer Lushin later found the marijuana outside the car, would not lead a fact-finder to reasonably infer Brent's constructive possession of the marijuana.

Id. at 651-52.

[25] We reached the opposite result in Womack v. State , 738 N.E.2d 320 (Ind. Ct. App. 2000), trans. denied . In that case, Womack was approached by police investigating a domestic disturbance, and he fled on foot. While Womack was running, he reached into his pockets and made a motion as if throwing something. Id. at 322-23. Soon thereafter, the police searched the area where Womack made the throwing motion, and a baggie containing marijuana was found. Although it had been lightly snowing, the baggie was covered by droplets of water and was free of snow. Id. at 323. Our court affirmed Womack's conviction after concluding that the evidence was sufficient to support his conviction for marijuana possession. Id. at 324

[26] Here, Smith fled from the officer, there were no other individuals in the area, and the gun was found in front of an abandoned house. And like the marijuana found in Womack , in this case the officer did not believe that the gun had been exposed to the elements for any significant length of time. The officer also observed that the grass in the yard where the gun was found had been freshly cut. Moreover, the gun bore scratch marks that were likely received when it clattered across the concrete. Importantly, shortly after the traffic stop concluded, Smith drove his vehicle without a license, in order to return to the area where the gun was located after he was instructed to have a licensed driver pick up his car.

[27] From these facts, a reasonable jury could find that Smith had intent to maintain dominion and control over the contraband, and therefore, that he constructively possessed the handgun at issue. For this reason, we affirm his conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon.

[28] Affirmed.

Riley, J., and Tavitas, J., concur.

      Smith was also charged with Class A misdemeanor driving while suspended, but that charge was dismissed one day before Smith's jury trial.

      We held oral argument in this case at North Newton High School in Morocco, Indiana, on October 23, 2018. We thank the school and its faculty, staff and students for their gracious hospitality. We also thank Newton Circuit Court Judge Jeryl Leach for sponsoring the oral argument. Finally, we commend counsel for the quality of their oral and written advocacy.


author: Tavitas, Judge.

text:
    Sebastian DURSTOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 15A01-1711-CR-2718
    Court of Appeals of Indiana.
    FILED December 4, 2018
    Attorney for Appellant: R. Patrick Magrath, Madison, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caryn N. Szyper, Deputy Attorney General, Indianapolis, Indiana
   Tavitas, Judge.

Case Summary

[1] Sebastian Durstock appeals his conviction for dealing in a narcotic drug, a Level 2 felony. This case involves the analysis of the Fourth Amendment and exceptions to the warrant requirement. We affirm.

Issues

[2] Durstock raises three issues, which we restate as:

I. Whether the trial court abused its discretion by admitting evidence found during a pat down search of Durstock.
II. Whether the evidence is sufficient to sustain Durstock's conviction for dealing in a narcotic drug, a Level 2 felony.
III. Whether Durstock's sentence is inappropriate.

Facts

[3] On the morning of January 13, 2017, Officer David Schwarz of the Lawrenceburg Police Department was dispatched to an apartment in Lawrenceburg regarding an unconscious female, later identified as Chyanne Thompson. Emergency medical services arrived at the same time as Officer Schwarz. They discovered Candy Gaylord giving Thompson chest compressions. Given Thompson's symptoms, Officer Schwarz suspected that Thompson had overdosed on opiates.

[4] As the emergency medical personnel were assisting Thompson, Officer Schwarz heard water running in the bathroom. Officer Schwarz saw Durstock leave the bathroom and sit on the couch in the living room. Officer Schwarz talked to Gaylord and learned that Gaylord was the resident of the apartment. Gaylord gave Officer Bill Lynam permission to search the bathroom of the apartment, where he located a brown backpack. Gaylord and Durstock denied that the backpack belonged to them, and Gaylord gave the officer permission to search the backpack. Officer Lynam discovered a loaded handgun wrapped in a wet bandana, digital scales, men's clothing, and men's deodorant.

[5] Durstock appeared to be "nervous and shaking and sweaty." Tr. Vol. II p. 102. After learning of the firearm, Officer Troy Cochran decided to perform a pat down search of Durstock for officer safety. Officer Cochran asked Durstock if Durstock "had anything that we needed to be concerned about." Id. at 103. Durstock removed a lighter, cigarettes, a cell phone, and lip balm from his pockets. Durstock put his hand in one of his pockets and removed his hand without removing anything from his pocket. Durstock's movements made Officer Schwarz suspicious, and he asked Durstock to stand for a pat down for weapons.

[6] Officer Schwarz felt a "tubular object" in Durstock's pocket that was "consistent with being a syringe." Id. at 62. Officer Schwarz removed the item from Durstock's pocket and found that it was, in fact, a syringe. Officer Schwarz then arrested Durstock for possession of a hypodermic syringe. See Ind. Code § 16-42-19-18. Durstock was placed in handcuffs, and Officer Schwarz performed a search incident to the arrest. Officer Schwarz found several items in Durstock's pockets, including three bullets and a black bag that contained $331 in cash, rolling papers, and a plastic bag containing a white powder. The white powder was later identified as 6.06 grams of fentanyl.

[7] After several amendments, the State ultimately charged Durstock with dealing in a narcotic drug, a Level 2 felony; possession of a narcotic drug, a Level 4 felony; and possession of a narcotic drug, a Level 5 felony. At Durstock's jury trial, Durstock objected to the admission of evidence found during the pat down search, and the trial court overruled the objection. During the jury trial, several recorded jail telephone calls made by Durstock were admitted into evidence. In one of the calls, Durstock stated that he had been "hustling," which a detective testified was slang for dealing. Ex. 45. The jury found Durstock guilty as charged.

[8] Due to double jeopardy concerns, the trial court entered judgment of conviction only on dealing in a narcotic drug, a Level 2 felony. The trial court sentenced Durstock to seventeen and one-half years with two and one-half years suspended to probation. Durstock now appeals.

Analysis

I. Admission of Evidence

[9] Durstock argues that the trial court erred by denying his motion to suppress. However, because Durstock appeals from a completed jury trial, the issue is more appropriately framed as whether the trial court properly admitted the evidence at trial. Clark v. State , 994 N.E.2d 252, 259 (Ind. 2013). "The general admission of evidence at trial is a matter we leave to the discretion of the trial court." Id. at 259-60. "We review these determinations for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights." Id. at 260.

[10] Durstock argues that the pat down search was improper because the officers had no reasonable suspicion that Durstock was armed and dangerous. The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures by prohibiting them without a warrant supported by probable cause. U.S. Const. amend. IV. "The fundamental purpose of the Fourth Amendment to the United States Constitution is to protect the legitimate expectations of privacy that citizens possess in their persons, their homes, and their belongings." Taylor v. State , 842 N.E.2d 327, 330 (Ind. 2006). This protection has been "extended to the states through the Fourteenth Amendment." Bradley v. State , 54 N.E.3d 996, 999 (Ind. 2016). "As a deterrent mechanism, evidence obtained in violation of this rule is generally not admissible in a prosecution against the victim of the unlawful search or seizure absent evidence of a recognized exception." Clark , 994 N.E.2d at 260. "When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search." Bradley , 54 N.E.3d at 999.

[11] In Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court permitted a:

reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Terry , 392 U.S. at 27, 88 S.Ct. at 1883 (internal citations and footnote omitted); see also Wilson v. State , 745 N.E.2d 789, 792 (Ind. 2001).

[12] Durstock argues that the officers had "no reasonable suspicion that Durstock was armed and dangerous" and that the "pat-down of Durstock was illegal and any evidence obtained as a result should have been suppressed." Appellant's Br. p. 13. The State argues that the pat down was proper because: (1) officers had indications that Durstock was involved in drug activity and was acting nervous; (2) a loaded handgun was found in a backpack in the restroom, where Durstock had recently been; (3) the backpack also contained men's clothing; and (4) Gaylord, the apartment's female resident, denied ownership of the backpack.

[13] Under the circumstances, we conclude that a reasonably prudent man would be warranted in the belief that his safety was potentially in danger, and we cannot say that the pat down search violated the Fourth Amendment. The officers were aware that a loaded handgun had been found wrapped in a wet bandana in a backpack in the restroom, which Durstock had recently occupied. The backpack contained men's clothing, and the female resident of the apartment denied ownership of the backpack. Durstock, who was acting strangely, was the only male in the apartment. The officers were reasonably concerned that the weapon belonged to Durstock and that their safety was in jeopardy. The pat down search was proper. See, e.g., Johnson v. State , 38 N.E.3d 658, 663 (Ind. Ct. App. 2015) (holding that a pat down search for weapons was proper where the defendant kept placing his hand in his pocket and refused an officer's multiple commands to remove his hand from his pocket), trans. denied .

[14] Durstock next argues that, even if the pat down was proper, the removal of the syringe from his pocket was improper. "The purpose of a protective search authorized by Terry 'is not to discover evidence of a crime, but rather to allow the officer to pursue his investigation without fear of violence.' " Clanton v. State , 977 N.E.2d 1018, 1025 (Ind. Ct. App. 2012) (quoting Minnesota v. Dickerson , 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993) ). "During this limited search, an officer is permitted to remove an item that feels like a weapon from an individual's outer clothing to determine whether the item is in fact a weapon." Id. "In addition, the 'plain-feel doctrine' approved by Dickerson permits an officer to remove non-weapon contraband during a Terry frisk if the contraband is detected during an initial patdown for weapons and if the incriminating nature of the contraband is immediately ascertained by the officer." Id. (citing Harris v. State , 878 N.E.2d 534, 538-39 (Ind. Ct. App. 2007), trans. denied ).

[15] Durstock argues that the "tube" detected by the officer was not immediately ascertainable as contraband. The State contends that the officer immediately realized that the tubular object was a syringe and that the removal of the object from Durstock's pocket was proper. We agree with the State. The officer testified that he felt a "tubular object" in Durstock's pocket that was "consistent with being a syringe." Tr. Vol. II p. 62. The syringe's identity was immediately apparent to the officer based on its shape, and the officer's warrantless seizure of the syringe was justified under the plain feel doctrine. See, e.g., Wright v. State , 766 N.E.2d 1223, 1234 (Ind. Ct. App. 2002) (holding that the officer's seizure of rock cocaine was justified under the plain feel doctrine).

[16] Because the removal of the item from Durstock's pocket was permissible, the officers properly arrested Durstock for possession of a syringe. The possession of a hypodermic syringe is a Level 6 felony. See Ind. Code § 16-42-19-18. One exception to the warrant requirement is the search incident to arrest, which permits "a search of the arrestee's person and the area within his or her control." Clark , 994 N.E.2d at 261 n.10. Accordingly, once a person is arrested, officers are not required to obtain a warrant before conducting a further search of the arrestee's person. This search incident to Durstock's arrest resulted in the officers finding the fentanyl and cash in Durstock's pocket. We conclude that the officers' discovery of the fentanyl and cash in Durstock's pocket did not violate the Fourth Amendment, and the trial court properly admitted the evidence.

[17] In sum, the pat down search, the removal of the syringe under the plain feel doctrine, and the search incident to arrest, are exceptions to the warrant requirement of the Fourth Amendment. The evidence obtained was properly admitted.

II. Sufficiency of the Evidence

[18] Durstock challenges the sufficiency of the evidence with respect to his conviction for dealing in a narcotic, a Level 2 felony. When there is a challenge to the sufficiency of the evidence, "[w]e neither reweigh evidence nor judge witness credibility." Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), reh'g denied, cert. denied , 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986) ), reh'g denied, cert. denied , --- U.S. ----, 137 S. Ct. 1082, 197 L.Ed.2d 195 (2017).

Instead, "we 'consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom.' " Id. (quoting Bieghler, 481 N.E.2d at 84 ). "We will affirm the judgment if it is supported by 'substantial evidence of probative value even if there is some conflict in that evidence.' " Id. (quoting Bieghler, 481 N.E.2d at 84 ); see also McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though there was conflicting evidence, it was "beside the point" because that argument "misapprehend[s] our limited role as a reviewing court"). Further, "[w]e will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) ).

[19] Durstock was convicted of dealing in a narcotic drug, a Level 2 felony, which is governed by Indiana Code Section 35-48-4-1. At the time of Durstock's offense, the State was required to prove that Durstock knowingly possessed with intent to deliver "a narcotic drug, pure or adulterated, classified in schedule I or II," and that "the amount of the drug involved is at least five (5) grams but less than ten (10) grams and an enhancing circumstance applies." Ind. Code § 35-48-4-1(a)(2), (e)(2). One enhancing circumstance occurs when the "person committed the offense while in possession of a firearm." I.C. § 35-48-1-16.5(2).

[20] Durstock challenges only whether the State proved an intent to deliver. Indiana Code Section 35-48-4-1(b) provides:

A person may be convicted of an offense under subsection (a)(2) only if:
(1) there is evidence in addition to the weight of the drug that the person intended to manufacture, finance the manufacture of, deliver, or finance the delivery of the drug; or
(2) the amount of the drug involved is at least twenty-eight (28) grams.

The fentanyl here weighed slightly over six grams. Consequently, the State was required to show "evidence in addition to the weight of the drug that [Durstock] intended to ... deliver ... the drug." I.C. § 35-48-4-1(b). "Intent, being a mental state, can only be established by considering the behavior of the relevant actor, the surrounding circumstances, and the reasonable inferences to be drawn therefrom." Richardson v. State , 856 N.E.2d 1222, 1227 (Ind. Ct. App. 2006), trans. denied . Circumstantial evidence showing possession with intent to deliver may support a conviction. Id.

[21] Durstock argues that the evidence is insufficient to show that he intended to deliver the fentanyl. We conclude that Durstock's argument is merely a request to reweigh the evidence, which we cannot do. The State presented evidence that Durstock admitted in a recorded jail call that he was "hustling," which a detective testified was slang for dealing. Ex. 45. The evidence of the recorded call along with evidence that Durstock was in possession of digital scales, a handgun, and $331 in cash are sufficient to demonstrate that Durstock intended to deliver the fentanyl. Accordingly, the evidence is sufficient to sustain Durstock's conviction for dealing in a narcotic drug, a Level 2 felony.

III. Inappropriate Sentence

[22] Next, Durstock argues that his sentence is inappropriate.

Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence "is inappropriate in light of the nature of the offense and the character of the offender." McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018). The defendant bears the burden to persuade this court that his or her sentence is inappropriate. Phipps v. State, 90 N.E.3d 1190, 1198 (Ind. 2018). Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment "should receive considerable deference." Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). The principal role of appellate review is to attempt to "leaven the outliers." Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017). Whether we regard a sentence as inappropriate at the end of the day turns on "our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case." Cardwell, 895 N.E.2d at 1224.

[23] In determining whether a sentence is inappropriate, we look to the statutory ranges established for the classification of the relevant offense. Durstock was convicted of a Level 2 felony. The sentence for a Level 2 felony ranges from ten years to thirty years, with an advisory sentence of seventeen and one-half years. Ind. Code § 35-50-2-4.5. Here, the trial court imposed an advisory sentence of seventeen and one-half years with two and one-half years suspended to probation.

[24] Durstock argues that his criminal history was minimal, he struggled with addiction, and he had the support of his family. Durstock also contends that his involvement "in the criminal enterprise was extremely minimal" and claimed that the fentanyl belonged to Thompson. Appellant's Br. p. 18.

[25] The nature of the offense is that Durstock was in Gaylord's apartment when Thompson overdosed and required police and emergency medical services to respond. Durstock's backpack was found in the bathroom of the apartment, and the backpack contained a loaded handgun wrapped in a wet bandana and digital scales. When officers performed a pat down search of Durstock, they found a syringe in his pocket and arrested him. In a search incident to the arrest, the officers also located several additional items in Durstock's pockets, including three bullets and a black bag that contained $331 in cash, rolling papers, and a plastic bag containing a white powder. The white powder was later identified as 6.06 grams of fentanyl. In a recorded jail telephone call in May 2017, Durstock admitted to a friend that he had been "hustling" with Thompson, which a detective testified was slang for dealing. Ex. 45. During Durstock's testimony, he admitted that the gun belonged to him.

[26] A review of Durstock's character reveals that twenty-three-year-old Durstock pleaded guilty to domestic battery, a Class A misdemeanor, in 2012. Durstock failed to appear at a review hearing on that charge, and a warrant was issued for his arrest.

[27] Durstock dropped out of high school in the tenth grade and has a six-year-old child. Durstock claims that he has never been ordered to pay child support. Durstock noted that he started using methamphetamine six years ago and was a daily user. He also advised that he used marijuana a couple times each week and previously used heroin on a daily basis. Durstock was unemployed at the time of his arrest.

[28] At sentencing, the trial court noted that Durstock's testimony and statements to the officers conflicted with other evidence and his own statements in the recorded jail telephone calls. The trial court found that Durstock's "dishonesty in these proceedings and with investigating officers" reflected "on his lack of remorse for his actions in this matter ...." Tr. Vol. II p. 128. The trial court believed that Durstock "actually delivered the fentanyl to Ms. Thompson, which resulted in her overdose." Id.

[29] Given the significant amount of fentanyl that Durstock possessed, his possession of the handgun, his substance abuse, and the trial court's statements on Durstock's dishonesty and lack of remorse, we cannot say that the advisory sentence, which the trial court imposed here, was inappropriate.

Conclusion

[30] The trial court properly admitted evidence of the fentanyl found in Durstock's pocket. The evidence is sufficient to sustain Durstock's conviction, and his sentence is not inappropriate. We affirm.

[31] Affirmed.

Bailey, J., and Altice, J., concur.

      Oral argument was held in this matter on November 13, 2018, at Ivy Tech Community College - Columbus. We thank counsel for their presentations and Ivy Tech Community College - Columbus for its hospitality.

      At the jury trial, Durstock presented an "oral motion to suppress," and the trial court held a hearing on the motion to suppress outside the presence of the jury. Tr. Vol. II pp. 48-49. The trial court denied the motion.

      Durstock makes no argument under the Indiana Constitution.

      Amended by Pub. L. No. 252-2017, § 21 (eff. July 1, 2017).


author: Pyle, Judge.

text:
    Aaron A. NEGASH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-840
    Court of Appeals of Indiana.
    FILED December 11, 2018
    Attorney for Appellant: Talisha Griffin, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana
   Pyle, Judge.

Statement of the Case

[1] Aaron Negash ("Negash") appeals his convictions, following a bench trial, for Class A misdemeanor carrying a handgun without a license and Class A misdemeanor possession of a synthetic drug or lookalike substance. Negash argues that: (1) the trial court abused its discretion when it admitted the synthetic marijuana he possessed into evidence because it had been seized pursuant to an illegal search; (2) there was insufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court erred by ordering Negash to pay probation fees.

[2] We conclude that: (1) the trial court properly admitted the evidence; (2) there was sufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court did not err in imposing probation fees. However, we remand to the trial court to hold an indigency hearing upon the completion of Negash's sentence.

[3] We affirm and remand with instructions.

Issues

1. Whether the trial court abused its discretion when it admitted the synthetic marijuana into evidence.
2. Whether there was sufficient evidence to support Negash's carrying a handgun without a license conviction.
3. Whether the trial court abused its discretion by ordering Negash to pay probation fees.

Facts

[4] On the night of May 22, 2017, police from the Indianapolis Metropolitan Police Department were dispatched to the Living Room Lounge in Indianapolis on a report of shots fired. When Officer Matthew Plummer ("Officer Plummer") and Sergeant Mark Gregory ("Sgt. Gregory") arrived on scene, a suspect was already in custody. They learned that another vehicle was involved in the incident and that a vehicle with three occupants was parked behind the building. Officer Plummer and Sgt. Gregory "walked up and started conversing with the occupants in the vehicle." (Tr. 12).

[5] Negash, who identified himself as "Moses," was seated in the driver's seat of the vehicle. (Tr. 23). There was one front-seat passenger and one back-seat passenger. Officer Plummer spoke with Negash and the back-seat passenger and informed them that he and Sgt. Gregory were investigating a report of shots fired. Officer Plummer asked the occupants whether they "had [ ] heard anything, [and] [whether] there [were] any weapons in the vehicle[.]" (Tr. 12). The three occupants responded "no." (Tr. 12). While Officer Plummer focused on Negash and the back-seat passenger, Sgt. Gregory spoke to the front-seat passenger, who was "moving around, reaching for the glovebox, going for his wristband, [and] pulling his shirt up." (Tr. 13). The back-seat passenger did not say anything to Officer Plummer, but he pointed to Negash and made "the outline [of] a gun with his index finger and his thumb." (Tr. 13).

[6] Officer Plummer then asked Negash to step out of the vehicle. As Negash stepped out of the vehicle, Officer Plummer observed "a huge bulge in [Negash's] right pocket, sticking out, protruding." (Tr. 14). Officer Plummer immediately conducted a pat-down of the outer layer of Negash's clothing and felt "a baggie of narcotics." (Tr. 14). During the pat-down, Officer Plummer also "looked down as [he] patted down and [could] see straight into the pocket." (Tr. 15). Based on his experiences as a law enforcement officer, Officer Plummer recognized that the baggie contained synthetic marijuana. Officer Plummer arrested Negash and seized the synthetic marijuana. The police then searched the vehicle and located a handgun in the glovebox. The hammer of the handgun was cocked back and the gun was loaded.

[7] Negash stood at the hood of the police vehicle while Officer Plummer was in the same vehicle trying to verify Negash's identity in the computer system. Sgt. Gregory leaned into Officer Plummer's window and asked, "is someone going to be arrested for the gun?" (Tr. 27). Negash interjected and stated, "I have a permit for that gun. It's in the trunk." (Tr. 27). Officer Plummer went to the trunk but did not find a gun permit.

[8] The State charged Negash with Class A misdemeanor carrying a handgun without a license and Class A misdemeanor possession of a synthetic drug or lookalike substance. A bench trial was held on February 13, 2018. At trial, Officer Plummer and Moses Negash testified to the facts above. When the State introduced the synthetic marijuana into evidence, defense counsel objected and stated the following:

I do object to State's exhibit 1, Your Honor, and I would call for the baggie and its contents and the testimony around it to be excluded under the application of the exclusionary rule. It's fruit of the poisonous tree from an unlawful search.
* * *
When he asked Mr. Negash to step out of the car, it became a detention, and at that time Mr. Negash was not advised of his [P]irtle rights.
* * *
It wasn't a gun, and he used further intrusive means of looking into my client's pocket and violated his right to having a warrant for any search or consenting to a search by being read his [P]irtle rights and waiving those rights.

(Tr. 18). The trial court overruled the objection and admitted the synthetic marijuana into evidence. The trial court found Negash guilty of both counts.

[9] Thereafter, the trial court held a sentencing hearing. During this hearing, the trial court ordered Negash to "do [ ] [three hundred and five] (305) days on probation with the standard conditions and fees." (Tr. 62). Additionally, the sentencing order, under the "Amount/Comment" section of "Part IV Sentencing Conditions[,]" provided, in relevant part, that: Negash would be subject to all "standard conditions and fees" of probation. (App. Vol. II at 13). Further, the sentencing order, under the "Court Costs and Fees" section of "Part V Monetary Obligations[,]" provided, in relevant part, that Negash was obligated to pay: a $50.00 adult probation administrative fees; a $281.30 adult probation month and initial user fee; and a $8.70 probation user fee. (App. Vol. II at 14). The probation order for Negash lists fourteen standard conditions, including "pay all Court-ordered fines, costs, fees and restitution as directed." (App. Vol. II at 15). The special conditions section of the probation order includes that same conditions as in the sentencing order. The trial court imposed a sentence of thirty (30) days in the Marion County Jail, with the remaining three hundred and five (305) days to be served on probation with all the standard conditions and fees for each of the Class A misdemeanor convictions. The trial court ordered both convictions to run concurrently. Negash now appeals.

Decision

[10] On appeal, Negash argues that: (1) the trial court abused its discretion when it admitted the synthetic marijuana he possessed into evidence because it had been seized pursuant to an illegal search; (2) there was insufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court erred in imposing probation fees. We will review each argument in turn.

1. Admission of Evidence

[11] First, Negash argues that the trial court abused its discretion when it admitted into evidence the synthetic marijuana Officer Plummer had seized. Specifically, he argues that the search that produced the synthetic marijuana was illegal because it violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.

[12] The admission of evidence is generally left to the discretion of the trial court. Hammond v. State , 82 N.E.3d 880, 884 (Ind. Ct. App. 2017). We review admissibility challenges for an abuse of that discretion and will reverse only when the admission of evidence is clearly against the logic and effect of the facts and circumstances before the court and the error affects the party's substantial rights. Id. " '[W]hen an appellant's challenge to such a ruling is predicated on an argument that impugns the constitutionality of the search or seizure of evidence, it raises a question of law, and we consider that question de novo.' " Id. (quoting Guilmette v. State , 14 N.E.3d 38, 40-41 (Ind. 2014) ). Generally speaking, evidence obtained pursuant to an unlawful search must be excluded at trial. Clark v. State , 994 N.E.2d 252, 266 (Ind. 2013).

A. United States Constitution

[13] The Fourth Amendment to the United States Constitution provides that citizens have the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. CONST. amend. IV. We begin by noting that there are three levels of police investigation, two of which implicate the Fourth Amendment and one of which does not. Overstreet v. State , 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), reh'g denied , trans denied . First, the Fourth Amendment requires that an arrest or detention that lasts for more than a short period of time must be justified by probable cause. Id. Second, the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion that criminal activity has or is about to occur. Id. The third level of investigation occurs when a police officer makes a casual and brief inquiry of a citizen, which involves neither an arrest nor a stop. Id. This third level is a consensual encounter in which the Fourth Amendment is not implicated. Id. The Fourth Amendment is not triggered unless an encounter between a law enforcement officer and a citizen loses its consensual nature. Id.

[14] A law enforcement officer's approach to a vehicle parked in a public place does not itself implicate the Fourth Amendment. Powell v. State , 912 N.E.2d 853, 861 (Ind. Ct. App. 2009). While the individual remains free to leave, the encounter is consensual and there has been no violation of the individual's Fourth Amendment rights. State v. Calmes , 894 N.E.2d 199, 202 (Ind. Ct. App. 2008). "Detention turns on an evaluation, under all the circumstances, of whether a reasonable person would feel free to disregard the police and go about his or her business." Finger v. State , 799 N.E.2d 528, 532 (Ind. 2003). Examples of circumstances under which a reasonable person would believe he was not free to leave include: (1) the threatening presence of several officers, (2) the display of a weapon by an officer, (3) physical touching of the person, or (4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled. Overstreet , 724 N.E.2d at 664.

[15] Here, Negash was seated in a vehicle that was parked behind the Living Room Lounge. The record reveals that Officer Plummer and Sgt. Gregory approached the vehicle on foot. The officers displayed no weapons as they approached Negash's vehicle. Nor did they use any language or speak in a tone of voice which mandated compliance. We cannot say that Officer Plummer's approach to the parked vehicle and initial contact with Negash constituted an investigatory stop or seizure under the Fourth Amendment. Therefore, Officer Plummer did not have to possess reasonable suspicion of wrong doing in order to approach the vehicle to ask Negash and other occupants their purpose for being in the area. See Overstreet , 724 N.E.2d at 664 (holding that an interaction between an officer and the defendant was a consensual encounter and thus the officer was not required to possess reasonable suspicion of wrongdoing to approach the defendant).

[16] Negash argues that Officer Plummer's request for Negash to exit the vehicle and subsequent pat-down of Negash's pocket violated the Fourth Amendment. It is well-settled that an officer may conduct a

reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

Wilson v. State , 745 N.E.2d 789, 792 (Ind. 2001) (quoting Terry v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). After Officer Plummer explained that he was there investigating a report of shots fired and asked Negash and the back-seat passenger if they had heard anything, the back-seat passenger pointed to Negash and made "the outline [of] a gun with his index finger and his thumb." (Tr. 13). Additionally, the front seat passenger acted suspiciously by "moving around, reaching for the glovebox, going for his waistband, [and] pulling his shirt up." (Tr. 13). See Wyoming v. Houghton , 526 U.S. 295, 304-05, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (noting that "a car passenger ... will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing"). Taken together, we conclude that Officer Plummer had reason to believe that he was dealing with an individual who was likely armed and dangerous, thus supporting his request that Negash step out of the vehicle and the subsequent pat down. As soon as Negash stepped out of the vehicle, Officer Plummer observed "a huge bulge in his right pocket, sticking out, protruding." (Tr. 14). Officer Plummer then conducted a limited search of Negash's outer clothing and felt "a baggie of narcotics," which he could also see inside of Negash's right pocket. (Tr. 14). Because Officer Plummer saw the synthetic marijuana, seizure of the baggie was proper pursuant to the "plain view doctrine." See Corwin v. State , 962 N.E.2d 118, 122 (Ind. Ct. App. 2011) (holding that the warrantless seizure of contraband is justified during a Terry frisk if the object's identity as contraband is "immediately apparent or instantaneously ascertainable"), trans. denied . See also Hannibal v. State , 804 N.E.2d 206, 210-11 (Ind. Ct. App. 2004) (concluding that the seizure of marijuana was proper under the plain view doctrine). Therefore, the initial encounter, request for Negash to exit the vehicle, and subsequent pat down did not violate the Fourth Amendment.

B. Article 1, Section 11 of the Indiana Constitution

[17] Negash also asserts that Officer Plummer's initial approach towards the vehicle and subsequent pat-down violated Article 1, Section 11 of the Indiana Constitution. Article 1, Section 11, like the Fourth Amendment, prohibits unreasonable searches and seizures. However, the legality of a search under the Indiana Constitution "turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances." Litchfield v. State , 824 N.E.2d 356, 359 (Ind. 2005). Reasonableness of a search depends on a balance of: (1) the degree of concern, suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities; and (3) the extent of law enforcement needs. Id. at 361. "It is the State's burden to show that its intrusion into 'those areas of life that Hoosiers regard as private,' was reasonable under the totality of the circumstances." Austin v. State , 997 N.E.2d 1027, 1034 (Ind. 2013) (quoting State v. Quirk , 842 N.E.2d 334, 339-40 (Ind. 2006) ).

[18] The State argues that Negash has waived this state constitutional claim because he did not object to the admission of evidence on those grounds before the trial court. At trial, Negash objected to the search on the grounds he was not provided with the warnings required under Pirtle v. State , 263 Ind. 16, 323 N.E.2d 634 (1975), and that the search violated the Fourth Amendment. On appeal, his argument is based on the factors from Litchfield . "It is well-settled in Indiana that a defendant may not argue one ground for objection at trial and then raise new grounds on appeal." Gill v. State , 730 N.E.2d 709, 711 (Ind. 2000). Accordingly, we agree with the State that Negash has waived his state constitutional claim. See Redfield v. State , 78 N.E.3d 1104, 1108 (Ind. Ct. App. 2017) (finding waiver when, "in his arguments to the trial court, Redfield mentioned Article 1, Section 11 but did not provide any independent analysis under that provision of the laws and facts"), trans. denied .

[19] Waiver notwithstanding, it is clear that Officer Plummer's initial approach and subsequent pat-down were reasonable under Article 1, Section 11. Specifically, he had a high degree of suspicion that a violation had occurred because he was in the process of investigating a report of shots fired with an alleged suspect still at large; the front-seat passenger was acting suspiciously and making furtive gestures; and the back-seat passenger pointed to Negash and made "the outline [of] a gun with his index finger and his thumb." (Tr. 13). Then, Officer Plummer observed a "huge bulge in [Negash's] right pocket, sticking out, protruding." (Tr. 14). Officer Plummer then patted down the outer layer of Negash's clothing and felt "a baggie of narcotics," and he could see the baggie of synthetic marijuana in Negash's pocket. (Tr. 14).

[20] In addition, the degree of intrusion was slight. The record reveals that the police approached Negash's vehicle on foot and did not impede his movement. Officer Plummer did not display a weapon, show any force, or put his hands on Negash until he had reason to believe that Negash was armed and dangerous. Even then, the degree of intrusion for the initial search was low. See Robinson v. State , 5 N.E.3d 362, 368 (Ind. 2014) (describing a Terry stop as a "relatively minor" intrusion).

[21] Finally, law enforcement needs were high. The police were investigating a shooting where an alleged suspect was still at large. As detailed above, based on the front-seat passenger's behavior and the backseat passenger's signal that Negash possessed a gun, Officer Plummer needed to conduct a pat down of Negash for weapons for police and public safety.

[22] In light of the above factors, we conclude that Officer Plummer's search was reasonable and did not violate the Indiana Constitution. Because we have also found that the search did not violate the Fourth Amendment, we, thus, also conclude that the trial court did not abuse its discretion in admitting into evidence the synthetic marijuana discovered in Negash's pocket.

2. Sufficiency of Evidence

[23] Next, Negash challenges the sufficiency of the evidence for his carrying a handgun without a license conviction. He specifically contends that there is insufficient evidence that he possessed the handgun. Our standard of review for sufficiency of evidence claims is well-settled. We do not assess the credibility of the witnesses or reweigh the evidence in determining whether the evidence is sufficient. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). We consider only the probative evidence and reasonable inferences supporting the verdict. Id. Reversal is appropriate only when no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not required to overcome every reasonable hypothesis of innocence and is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. at 147.

[24] In order to convict Negash of carrying a handgun without a license, the State was required to prove beyond a reasonable doubt that Negash "carr[ied] a handgun in any vehicle or on or about [his] body without being licensed under this chapter to carry a handgun." I.C. § 35-47-2-1. To prove that a defendant possessed contraband, the State may prove either actual or constructive possession. Eckrich v. State , 73 N.E.3d 744, 746 (Ind. Ct. App. 2017), trans. denied . Actual possession occurs "when a person has direct physical control over [an] item." Sargent v. State , 27 N.E.3d 729, 733 (Ind. 2015). When a person does not have direct physical control over an item, as was the case here, the person may still have constructive possession of the item if he " 'has (1) the capability to maintain dominion and control of [it]; and (2) the intent to maintain dominion and control over it.' " Id. (quoting Gray v. State , 957 N.E.2d 171, 174 (Ind. 2011) ). In cases where the accused has exclusive possession of the premises on which the contraband is found, an inference is permitted that he knew of the presence of the contraband and was capable of controlling it. Harrison v. State , 32 N.E.3d 240, 248 (Ind. Ct. App. 2015), trans. denied . "[W]hen possession of the premises is non-exclusive, th[e] inference is permitted only if some additional circumstances indicate the defendant's knowledge of the presence of the contraband and the ability to control it." Id. Some of these recognized additional circumstances include: (1) incriminating statements made by the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the contraband; (5) the contraband being in plain view; and (6) the location of the contraband being in close proximity to items owned by the defendant. Id.

[25] Here, Negash had the capability to maintain dominion and control over the handgun. The State meets this requirement when it "shows that the defendant is able to reduce the [contraband] to [the] defendant's personal possession." Lampkins v. State , 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh'g on other grounds , 685 N.E.2d 698 (Ind. 1997). Because the handgun was in the glove compartment and easily within reach of the driver's seat, Negash was able to reduce the handgun to his personal possession. See id. at 1275.

[26] Although Negash did not have exclusive possession of the vehicle where the firearm was found, there were additional circumstances proving Negash's knowledge of the presence of the handgun and ability to control it. First, Negash made an incriminating statement. When Sgt. Gregory asked Officer Plummer if "someone [was] going to be arrested for the gun," Negash interjected, "I have a permit for that gun. It's in the trunk." (Tr. 27). This claim of possessing a permit for the gun suggests Negash owned the handgun. In addition, the glovebox containing the handgun was in close proximity to Negash. Together, the incriminating statement and the Negash's close proximity to the handgun demonstrate the additional circumstances required to show his knowledge of the handgun and ability to maintain dominion and control over it.

[27] Based on this evidence, we find there was sufficient evidence that Negash constructively possessed the handgun to support his conviction for carrying a handgun without a license. Negash's arguments are simply a request that we reweigh the evidence, which we cannot do. See Drane , 867 N.E.2d at 146.

3. Probation Fees

[28] Finally, Negash challenges the trial court's decision regarding probation fees. He raises two, alternative arguments. First, Negash argues that the trial court "did not intend to impose the [probation] fees listed in the Sentencing Order." (Negash's Br. 28). Alternatively, he argues that if the trial court did impose fees, the trial court abused its discretion because it did not conduct an indigency hearing to determine if he is capable of paying the fees assessed to him.

[29] "Sentencing decisions include decisions to impose fees and costs[,]" and "we review a trial court's sentencing decision for an abuse of discretion." Coleman v. State , 61 N.E.3d 390, 392 (Ind. Ct. App. 2016). An abuse of discretion occurs "when the sentencing decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deduction to be drawn therefrom." Id. " 'If the fees imposed by the trial court fall within the parameters provided by statute, we will not find an abuse of discretion.' " Id. (quoting Berry v. State , 950 N.E.2d 798, 799 (Ind. Ct. App. 2011) ).

[30] The statute governing probation provides that whenever a trial court places a person on probation, the court is required to, among other things, "specify in the record the conditions of probation[.]" IND. CODE § 35-38-2-1(a). "If the person was convicted of a misdemeanor , the court may order the person to pay the user's fee prescribed under subsection (e)." I.C. § 35-38-2-1(b) (emphasis added). Subsection (e) sets forth a list of fees, including the maximum amount for an initial probation user's fee, and the maximum and minimum amount for a monthly probation user's fee, that the trial "court may order each person convicted of a misdemeanor to pay[.]" I.C. § 35-38-2-1(e) (emphasis added).

[31] In Marion County, a local rule also provides that,

whenever an individual is placed on probation ... the following fees and costs shall be imposed under the Probation Court or Probation Order unless the sentencing Judge specifically modifies the Order. The fees and costs collected under the Court or Probation Order shall be applied in this following descending order of priority:
Administrative fee
Probation User fee
...

Marion LR49-CR00-115(b).

[32] First, Negash argues that the trial court "did not intend to impose" any probation fees. (Negash's Br. 28). Negash acknowledges that the trial court listed probation fees on the sentencing order, but he argues that because the ordered amount lines for the Probation Administrative Fee, Initial Probation User Fee, and Monthly Probation Fee on the order of probation form are blank, "such action shows [that] the trial court did not intend to impose the fees listed in the Sentencing Order." (Negash's Br. 28). The State responds that the trial court did order specific statutory probation fees on page two of the sentencing order: a $50.00 adult probation administrative fee; a $281.30 adult probation monthly and initial user fee; and a $8.70 probation user fee. The State contends that the "trial court did not abuse its discretion by ordering probation fees on page two of the [Marion County Sentencing] order instead of on page three." (State's Br. 2).

[33] The "Marion County Sentencing Order" consisted of four pages. (see App. Vol. II 13-16). Pages one and two are made up of the sentencing order. Pages three and four are made up of the probation order. At sentencing, the trial court ordered Negash to "do those [three hundred and five] (305) days on probation with the standard conditions and fees." (Tr. 62). Additionally, the sentencing order, under the "Amount/Comment" section of "Part IV Sentencing Conditions[,]" provided, in relevant part, that: Negash would be subject to all "standard conditions and fees" of probation. (App. Vol. II at 13). Importantly, the sentencing order also included a section for monetary obligations. That section of Negash's order reads as follows:

Tabular or graphic material set at this point is not displayable.

(App. Vol. II at 14). Further, the order of probation provides, in relevant part, as follows:

Tabular or graphic material set at this point is not displayable.

(App. Vol. II at 15). Negash is correct that the lines to fill out the fee amounts for the Probation Administrative Fee; Initial User Fee; and Monthly Probation Fee on the order of probation within the Marion County Sentencing Order are blank. However, the special conditions section on the order of probation includes all standard conditions and fees of probation. Based on the above, the trial court exercised its discretion and ordered probation fees.

[34] Turning to Negash's alternative argument, we agree that the trial court is required to hold an indigency hearing when imposing probation fees. See Johnson v. State , 27 N.E.3d 793, 795 (Ind. Ct. App. 2015) (explaining that a trial court is required to hold an indigency hearing for probation fees); see also I.C. § 33-37-2-3 (providing that a court must conduct an indigency hearing when imposing costs); I.C. § 35-38-1-18 (providing that a court must conduct an indigency hearing when imposing a fine). However, there is no requirement as to when the indigency hearing must be held. See Johnson , 27 N.E.3d at 795. In regards to probation fees, our Court has explained that "[a] trial court acts within its authority when it chooses to wait and see if a defendant can pay probation fees before it finds the defendant indigent." Id. See also Whedon v. State , 765 N.E.2d 1276, 1279 (Ind. 2002) (explaining that "a defendant's financial resources are more appropriately determined not at the time of initial sentencing but at the conclusion of incarceration, thus allowing consideration of whether the defendant may have accumulated assets through inheritance or otherwise"). "At the latest, an indigency hearing for probation fees should be held at the time a defendant completes his sentence." Johnson , 27 N.E.3d at 795. Therefore, because the trial court imposed probation fees, it will need to hold an indigency hearing, at the latest, at the time that Negash completes his sentence.

[35] Affirmed and remanded with instructions.

Najam, J., and Crone, J., concur.

      Ind. Code § 35-47-2-1.

      I.C. § 35-48-4-11.5.

      Moses Negash ("Moses") is Negash's brother. During the bench trial, Moses testified that he owned the handgun and vehicle. He further testified that he allowed Negash to use the vehicle that night and left the handgun in his car that day, something he does not normally do.

      In explaining how he was able to identify that the baggie contained synthetic marijuana, Officer Plummer testified as follows:
      Since I've been downtown, synthetic marijuana has plagued the downtown district. I've only been downtown for approximately, a little over two years. I've come into contact with it approximately 100 plus times. I'm familiar with it. I'm familiar with how individuals act while smoking the spice. And then just, it's something I've come across a lot in my investigations downtown.
      (Tr. 15-16).

      In Terry v. Ohio , the Supreme Court defined a "Terry" frisk as a pat down search that involves a "carefully limited search of the outer clothing of the suspect in an attempt to discover weapons which might be used to assault [an officer]." Shinault v. State , 668 N.E.2d 274, 277 (Ind. Ct. App. 1996).

      Subsection (e) of Indiana Code § 35-38-2-1 provides as follows:
      In addition to any other conditions of probation, the court may order each person convicted of a misdemeanor to pay:
      (1) not more than a fifty dollar ($50) initial probation user's fee; (2) a monthly probation user's fee of not less than ten dollars ($10) nor more than twenty dollars ($20) for each month that the person remains on probation; (3) the costs of the laboratory test or series of tests to detect and confirm the presence of the human immunodeficiency virus (HIV) antigen and antibodies to the human immunodeficiency virus (HIV) if such tests are required by the court under section 2.3 of this chapter; and (4) administrative fee of fifty dollars ($50); to either the probation department or the clerk.