Opinion
24A-CR-480
08-30-2024
Lonnie Terrence Ivy, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Talisha Griffin Marion County Public Defender Agency Appellate Division Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Jane Spencer Craney, Judge Pro Tempore Trial Court Cause No. 49D28-2208-F3-20539
ATTORNEY FOR APPELLANT
Talisha Griffin Marion County Public Defender Agency Appellate Division Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] Lonnie Terrence Ivy appeals his convictions for possession of cocaine as a level 5 felony and dealing in marijuana as a level 6 felony. He contends the trial court abused its discretion in admitting certain evidence and the State presented insufficient evidence to support his convictions. We affirm in part, reverse in part, and remand.
Facts and Procedural History
[¶2] Ivy shares a three-bedroom house in Marion County with his two brothers, Lonzo and Terence. On July 29, 2022, officers with the Indianapolis Metropolitan Police Department Violence Reduction Task Force conducted a protective sweep of Ivy's house. Ivy was the only individual in the home at the time. During the initial sweep, Officer Brandon Brown found a brown wallet containing Ivy's driver's license in what officers referred to as "[B]edroom 1." Transcript Volume II at 166. Inside the closet in Bedroom 1, Officer Brown found a "big purple bookbag" which gave off the strong "odor of raw marijuana" and, when it was opened, he found a zippered bag within that contained what appeared to be "a large amount of marijuana." Id. at 167. Officer Brown halted the sweep and applied for a search warrant, which was granted.
The parties stipulated to not disclosing the reason for the protective sweep.
[¶3] During the subsequent search, officers discovered a black silk drawstring bag hanging on the closet door in Bedroom 1 that contained "small sandwich baggies that were all tied off" filled with what "looked to be cocaine," and which was later tested and determined to be 5.081 grams of cocaine. Id. at 169, 222. They also found a box of unused sandwich baggies "close to where" they found Ivy's wallet. Id. at 169. In addition, they found Ivy's birth certificate, health insurance card, two pieces of mail addressed to him, multiple heat seal bags typically used to seal narcotics, and two digital scales all in Bedroom 1. Officers did not "find any identification from anybody" other than Ivy in Bedroom 1. Id.
[¶4] Officers found identification for Ivy's "two brothers" in the "other two" bedrooms. Id. at 166. They found Lonzo's identification card in what they referred to as Bedroom 2 and Terence's identification card in what they referred to as Bedroom 3. Officers observed and took photographs of certain unique articles of clothing found in the closet in Bedroom 1. They located a sweatshirt that matched the sweatpants that Ivy was wearing at the time of the search, a pair of Jordan 11 high top shoes, two graphic t-shirts with pictures of Ivy and a female on them, and a graphic hoodie with numerous pictures of Ivy and another male printed on it.
During a sidebar following Ivy's objection to the admission of this evidence at trial, his counsel described the hoodie as "a silk screen collage" of Ivy's "deceased cousin and himself[.]" Transcript Volume II at 172.
[¶5] On August 2, 2022, the State charged Ivy with dealing in cocaine as a level 3 felony, possession of cocaine as a level 5 felony, dealing in marijuana as a level 6 felony, escape as a level 6 felony, and possession of a controlled substance as a class A misdemeanor. On December 14, 2023, the State discovered Ivy's Facebook page and observed that Ivy had posted photos of himself wearing some of the same clothing found in the closet in Bedroom 1. In one of the posts, Ivy was wearing the Jordan 11 shoes, a button/pin that matched one photographed on a sweatshirt found in the closet in Bedroom 1, and the graphic hoodie. In another post, Ivy was wearing one of the graphic t-shirts found in the closet in Bedroom 1 that depicted himself with a female. The State provided this discovery to Ivy and, on December 15, Ivy filed a motion to exclude the Facebook photos as well as the photo of the graphic hoodie.
[¶6] A jury trial began on December 18, 2023. Prior to the start of trial, the State moved to dismiss the escape and possession of a controlled substance charges. The trial court also heard arguments on Ivy's motion to exclude. Ivy argued that State's Exhibits 28, 30, and 31, consisting of the Facebook photos and the photo of the graphic hoodie, should be excluded because in some of the photos Ivy is making gestures with his hands. His counsel suggested the hand gestures in the photos could be interpreted as gang symbols and create a negative inference to the jury. When asked specifically by the court, "Are these gangbang symbols?", Ivy's counsel responded, "They could be. I don't know . . . ." Transcript Volume II at 41. Referring to a hand gesture in one of the photos on the hoodie, counsel stated, "I don't know what that is. It could be nothing. But it also could be something. And some of the jurors are going to interpret it as something." Id. at 43. One of the deputy prosecutors indicated that the hand gesture in the photo meant "Mahalo. Hawaii. He's just chilling." Id. at 44. An unidentified speaker in the courtroom also stated, "If you're in a fraternity alpha phi alpha this is their hand sign." Id. The other deputy prosecutor explained, "It's like a little peace sign." Id. The trial court agreed that the sign meant "Mahalo." Id. The court determined that the evidence was admissible and denied Ivy's motion to exclude. Ivy's counsel renewed her objection to the exhibits when they were offered at trial and the trial court admitted the exhibits over her objection.
[¶7] At the conclusion of trial, the jury found Ivy guilty of possession of cocaine and dealing in marijuana, and not guilty of dealing in cocaine. The court sentenced Ivy to four years executed on the cocaine conviction, with three years to be served in the Department of Correction and one year to be served on home detention. The court imposed a concurrent two-year executed sentence on the marijuana conviction.
Discussion and Decision
I.
[¶8] During trial, Ivy objected to the admission of State's Exhibits 28, 30, and 31 which were photos of clothing found in the closet in Bedroom 1 and photos of Ivy's Facebook posts showing him wearing the same clothing. The State offered the photos to demonstrate that the clothing found during the search of Bedroom 1, in close proximity to the contraband, belonged to Ivy. Ivy contends the trial court abused its discretion when it admitted the photos as they depicted "Ivy, and others, making hand signs that the jury could interpret as gang signs." Appellant's Brief at 17 (capitalization omitted).
[¶9] The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs "where the decision is clearly against the logic and effect of the facts and circumstances." Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).
[¶10] Ivy acknowledges that evidence is relevant if it has "any tendency to make a fact more or less probable than it would be without the evidence," see Ind. Evidence Rule 401, but he cites to Ind. Evidence Rule 403 which provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." The risk of unfair prejudice relates to "the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest [making a] decision on an improper basis." Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021) (quoting D.R.C. v. State, 908 N.E.2d 215, 224 (Ind. 2009)). Because "all relevant evidence is 'inherently prejudicial' in a criminal prosecution," the weighing test under Evidence Rule 403 "boils down to a balance of probative value against the likely unfair prejudicial impact ... the evidence may have on the jury." Id. at 1194 (quoting Richmond v. State, 685 N.E.2d 54, 55-56 (Ind. 1997)). We afford trial courts wide latitude in weighing probative value against the danger of unfair prejudice. Id. at 1193.
[¶11] We agree with the State that the exhibits constituted evidence of probative value to help prove that Bedroom 1 belonged to Ivy and that he constructively possessed the contraband found therein. Ivy's suggestion that the jury "could" have interpreted the hand gestures depicted in some of the photos as gang signs was not based upon any testimony or evidence but is based upon mere speculation. Indeed, as noted above, Ivy's counsel admitted that she did not know the meaning behind any of the hand gestures, and the prosecutors, an unnamed person present during the pretrial hearing, and the trial judge, indicated that it was their understanding that the gestures were, in fact, not gang signs. The court concluded the probative value of the exhibits outweighed any prejudicial impact and our review of the record gives us no reason to second-guess the trial court's determination.
[¶12] Moreover, even assuming the trial court abused its discretion in admitting the exhibits, any error was harmless. An error in the admission of evidence does not require reversal unless it affects the substantial rights of a party. Stewart v. State, 754 N.E.2d 492, 496 (Ind. 2001). "The improper admission of evidence is harmless error when the conviction is supported by such substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction." Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998), reh'g denied.
[¶13] As we discuss more fully below, the State presented ample independent evidence of Ivy's guilt, specifically his constructive possession of the cocaine found in Bedroom 1, such that there is no substantial likelihood that the questioned exhibits contributed to the conviction. The State presented evidence of the numerous personal identification items belonging to Ivy found in Bedroom 1 along with an item of clothing that matched what he was wearing at the time of the search, and additional items suggesting a drug manufacturing setting. Under the circumstances, we cannot say that any error in the admission of the challenged exhibits affected Ivy's substantial rights.
II.
[¶14] Ivy challenges the sufficiency of the evidence to support his convictions for possession of cocaine and dealing in marijuana. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh'g denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if there exists evidence of probative value from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.
[¶15] To convict Ivy of possession of cocaine as a level 5 felony, the State was required to prove beyond a reasonable doubt that he knowingly or intentionally possessed cocaine (pure or adulterated) in an amount of at least five but less than ten grams. Ind. Code § 35-48-4-6(a), -(b)(1). It is well-established that possession of an item may be either actual or constructive. See Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh'g, 685 N.E.2d 698 (Ind. 1997). Ivy argues that the State failed to present sufficient evidence that he constructively possessed the cocaine found in Bedroom 1.
[¶16] Constructive possession occurs when a person has the capability and intent to maintain control over the contraband. Id. The capability element is met when the State shows the defendant is able to reduce the contraband to his personal possession. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). To show the intent element, the State must demonstrate the defendant's knowledge of the presence of the contraband. Id. This knowledge may be inferred from either the exclusive control over the premises containing the contraband or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant's knowledge of the contraband's presence. Id. Some possible examples of such circumstances include (1) incriminating statements; (2) attempting to leave or making furtive gestures; (3) the location of contraband like drugs in settings suggesting manufacturing; (4) the item's proximity to the defendant; (5) the location of contraband within the defendant's plain view; and (6) the mingling of contraband with other items the defendant owns. Gray v. State, 957 N.E.2d 171, 175 (Ind. 2011).
[¶17] Here, Ivy's wallet, identification, birth certificate, and personal mail were all found in Bedroom 1, while his brothers' identifications were found in each of the other two bedrooms. What was subsequently determined to be 5.018 grams of cocaine was found in a bag inside the closet in Bedroom 1, in close proximity to clothing that additional evidence suggested belonged to Ivy. Moreover, in close proximity to Ivy's birth certificate and in plain view in Bedroom 1, officers located two digital scales and heat seal envelopes which officers testified are items indicative of a drug manufacturing setting. Officers also found baggies typically used to store and sell drugs in the closet near the cocaine, and a large amount of what officer's suspected was marijuana, which was additional evidence indicative of a drug manufacturing setting. Based upon the abovementioned circumstances, a reasonable jury could infer Ivy's knowledge of the cocaine's presence and his ability to control it. The State presented sufficient evidence to show that Ivy constructively possessed the cocaine found in Bedroom 1.
[¶18] As for Ivy's conviction for dealing in marijuana as a level 6 felony, the State was required to prove beyond a reasonable doubt that Ivy possessed with the intent to deliver marijuana in an amount of at least thirty grams but less than ten pounds. Ind. Code § 35-48-4-10(a)(2), -(c)(2). Ind. Code § 35-48-1-19(a) provides that marijuana is defined as: "any part of the plant genus Cannabis whether growing or not; the seeds thereof; the resin extracted from any part of the plant, including hashish and hash oil; any compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin." There are numerous related substances excluded from this definition. For example, hemp is specifically excluded, see Ind. Code § 35-48-1-19(b), and is defined under Indiana law as "the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta tetrahydrocannabinol [THC] concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis, for any part of the Cannabis sativa L. plant." Ind. Code § 15-15-13-6. As this Court has recognized, "in Indiana, the difference between a legal substance, such as hemp, and illegal marijuana is determined by the concentration of delta-9 THC in a particular substance; to be illegal, the concentration of delta-9 THC must be more than 0.3%." Toledo Rojo v. State, 202 N.E.3d 1085, 1088 (Ind.Ct.App. 2022), trans. denied.
[¶19] Ivy contends that the State failed to prove "(1) that the substance was marijuana, and (2) the amount involved was at least thirty (30) grams." Appellant's Brief at 10. The State concedes that the evidence presented was "insufficient to support the conviction for dealing [in] marijuana" because the State did not present evidence "of the delta-9 THC concentration or the weight" of "the suspected marijuana found in the bedroom." Appellee's Brief at 18-19. Accordingly, we reverse Ivy's conviction for dealing in marijuana. See Toledo Rojo, 202 N.E.3d at 1090 (reversing conviction based on insufficient evidence where officer testified that he knew substance seized was marijuana due to markers regarding sight and smell and holding this evidence insufficient to establish that substance was illegal marijuana with concentration of THC of 0.3% or more as required to convict for possession of marijuana); Fedij v. State, 186 N.E.3d 696, 709 (Ind.Ct.App. 2022) (reversing defendant's conviction for possession of marijuana due to State's failure to prove seized substance was illegal marijuana, as opposed to legal hemp, where officer testified that she could not distinguish between hemp and marijuana absent testing for concentration of THC and testing identified presence but not percent concentration of THC in substance).
[¶20] For the foregoing reasons, we affirm Ivy's conviction for possession of cocaine, reverse his conviction for dealing in marijuana, and remand with instructions for the trial court to vacate the marijuana conviction and sentence.
[¶21] Affirmed in part, reversed in part, and remanded.
May, J., and Pyle, J., concur.