99 N.E.3d 274 (Ind.App. 2018), 34A05-1707-CR-1544, Cannon v. State

Docket Nº34A05-1707-CR-1544
Citation99 N.E.3d 274
Opinion JudgeBradford, Judge
Party NameDion CANNON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyATTORNEY FOR APPELLANT: Derick W. Steele, Deputy Public Defender, Kokomo, Indiana ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, Indiana
Judge Panel. Crone, J., concurs. Robb, Judge, dissenting.
Case DateApril 11, 2018
CourtCourt of Appeals of Indiana

Page 274

99 N.E.3d 274 (Ind.App. 2018)

Dion CANNON, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 34A05-1707-CR-1544

Court of Appeals of Indiana

April 11, 2018

Page 275

[Copyrighted Material Omitted]

Page 276

Appeal from the Howard Superior Court, The Hon. William C. Menges, Judge, Trial Court Cause No. 34D01-1511-F2-1036

ATTORNEY FOR APPELLANT: Derick W. Steele, Deputy Public Defender, Kokomo, Indiana

ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, Indiana

Bradford, Judge.

Case Summary

[¶ 1] In November of 2015, police visited the Kokomo home that Appellant-Defendant

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Dion Cannon shared with Alexandra Linville to execute an arrest warrant on Cannon. While one officer knocked on the door, another watching through a window observed Cannon place something on a shelf before answering the door. After arresting Cannon and obtaining a search warrant, police searching the shelves found marijuana, a loaded handgun, and approximately eighty-eight grams of heroin inside a vase. During Cannon’s trial on several charges, Linville testified over objection that she had assisted Cannon in dealing drugs prior to November of 2015 and that he sold heroin to support himself. The jury found Cannon guilty of Level 3 felony possession of a narcotic drug, Class A misdemeanor possession of marijuana, and Level 6 felony maintaining a common nuisance. The trial court sentenced Cannon to an aggregate sentence of fifteen years of incarceration. Cannon argues that the trial court abused its discretion in admitting Linville’s testimony regarding prior drug-dealing activity, the trial court’s final instruction regarding the evidence of other bad acts was ineffective, and his sentence is inappropriately harsh. Because we conclude that any error in the admission of evidence was harmless and that Cannon has not established that his sentence is inappropriate, we affirm.

Facts and Procedural History

[¶ 2] On November 18, 2015, Cannon had been in a relationship with Linville for eight or nine years; shared a child born on December 4, 2013, with her; and lived with her in her Kokomo home. On November 18, 2015, Cannon went to Linville’s place of business and borrowed $1800 from her (in addition to the $2200 he already had), money he told Linville he intended to spend on drugs. Later that evening, Kokomo Police Department officers went to Cannon and Linville’s home to serve an outstanding arrest warrant on Cannon.

[¶ 3] When Kokomo Police Officer Jayson Maynard knocked on the door, Cannon, who was alone in the house at the time, yelled, "Oh s***, just a minute." Tr. Vol. I 56. From a window, Sergeant Gary Taylor observed Cannon take something from a counter, conceal it in his hand, and place it somewhere in a shelving unit near the door. When Cannon opened the door, officers detected the odor of burnt marijuana coming from within the residence. After Cannon was handcuffed and read his rights, Sergeant Taylor asked Cannon what he had put on the shelf. Cannon replied that "it was marijuana, and that’s all the illegal drugs that [I have] in the house." Tr. Vol. I p. 57. Officers obtained a search warrant for the house.

[¶ 4] Inside a child’s bedroom, officers found an AK-47 on a shelf in a closet. Officers found a handgun on a high shelf in a bathroom. On the shelving unit where Sergeant Taylor had observed Cannon place something, the police discovered a handgun with a long "banana clip" with extra rounds. Tr. Vol. I p. 61. Police also found 16.23 grams of marijuana and a red vase that contained approximately 88 grams of heroin on the shelving unit. Another white substance, which appeared to be a possible cutting agent, was found in the house. A digital scale was found in a kitchen cabinet.

[¶ 5] On November 20, 2015, the State charged Cannon with Level 2 felony dealing in a narcotic drug, Level 3 felony possession of a narcotic drug, Level 5 felony neglect of a dependent, Level 6 felony theft of a firearm, Level 6 felony possession of marijuana, and Level 6 felony maintaining a common nuisance. On April 21, 2017, the State amended the charging information to reduce Cannon’s possession of marijuana charge to a Class A misdemeanor. Jury trial was conducted on April 28, May 1, and May 2, 2017.

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[¶ 6] Linville testified for the State at Cannon’s trial. Over objection, Linville testified that she would assist Cannon in drug-dealing by "taking him places[,]" she had driven him someplace in August of 2015 to sell heroin, and he sold heroin and cocaine to support himself. Tr. Vol. I p. 136. The trial court allowed the testimony as relevant to the questions of Cannon’s intent and knowledge. Linville also testified that she had never stored illegal drugs in the red vase and had never seen the heroin found inside the red vase before it was shown to her at trial. Among its other final instructions, the trial court instructed the jury that Evidence has been introduced that the defendant was involved in crimes, wrongful conduct or bad acts other than those charged in the Informations. This evidence has been received solely on the issue of defendant’s intent or knowledge. This evidence should be considered by you only for the limited purpose for which it was received.

Tr. Vol. II 32-33.

[¶ 7] The jury found Cannon guilty of Level 3 felony possession of a narcotic drug, Class A misdemeanor possession of marijuana, and Level 6 felony maintaining a common nuisance. On June 13, 2017, the trial court sentenced Cannon to fifteen years of incarceration for possession of a narcotic drug, one year for possession of marijuana, and two-and-a-half years for maintaining a common nuisance, all three sentences to be served concurrently.

Discussion and Decision

I. Evidence Concerning Other Bad Acts

[¶ 8] Cannon contends that the trial court abused its discretion in admitting testimony from Linville regarding other bad acts by him, specifically drug-dealing activity not charged in this case. We will only reverse a trial court’s decision on the admissibility of evidence upon a showing of an abuse of that discretion. Curley v. State, 777 N.E.2d 58, 60 (Ind.Ct.App. 2002). An abuse of discretion may occur if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id. The Court of Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind.Ct.App. 2005). We do not reweigh the evidence and consider the evidence most favorable to the trial court’s ruling. Hirshey v. State, 852 N.E.2d 1008, 1012 (Ind.Ct.App. 2006).

[¶ 9] Indiana Evidence Rule 404(b) provides that, in general, "[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character." We need not address the merits of Cannon’s evidentiary challenge if we conclude that "[e]rrors in the admission of evidence are to be disregarded as harmless unless they affect the substantial rights of the defendant." Goudy v. State, 689 N.E.2d 686, 694 (Ind. 1997). "The erroneous admission of evidence is harmless error where a guilty finding is supported by substantial independent evidence of guilt." Bates v. State, 495 N.E.2d 176, 178 (Ind. 1986). "However, reversal is warranted if the record as a whole reveals that the improper evidence was likely to have had a prejudicial impact on the average juror such that it contributed to the verdict." Sundling v. State, 679 N.E.2d 988, 994 (Ind.Ct.App. 1997).

[¶ 10] We conclude that the admission of evidence of other bad acts, even if

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the result of an abuse of discretion,1 can only be considered harmless. Although the heroin was not found on Cannon’s person, [t]here is ... no requirement that the accused’s actual possession of the contraband must be shown to have existed at precisely the same time as the law enforcement agency’s discovery of the contraband. Put another way, 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).

[¶ 11] Cases, like this one, where the State seeks to prove that the defendant’s possession of the contraband occurred at a time other than its discovery are referred to as "constructive possession" cases. A defendant is in the constructive possession of drugs when the State shows that the defendant has both (i) the intent to maintain dominion and control over the drugs and (ii) the capability to maintain dominion and control over the drugs. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), on reh’g, 685 N.E.2d 698 (Ind. 1997). The proof of a possessory interest in the premises on which illegal drugs are found is adequate to show the capability to maintain dominion and control over the items in question. Davenport v. State, 464 N.E.2d 1302, 1307 (Ind. 1984). In essence the law infers that the party in possession of the premises is capable of exercising dominion and control over all items on the premises. See id. ;

Martin v. State, 175 Ind.App. 503, 372 N.E.2d 1194, 1197 (1978) ("[A] house or apartment used as a residence is controlled by the person who lives in it and that person may be found in control of any drugs discovered therein, whether he is the owner, tenant, or merely an invitee."). And this is so whether possession of the premises is exclusive or not.

However, the law takes a different view when applying the intent prong of constructive possession. When a defendants possession of the premises on which drugs are found is not exclusive, then the inference of intent to maintain dominion and...

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