Cannon v. State
Decision Date | 11 April 2018 |
Docket Number | Court of Appeals Case No. 34A05–1707–CR–1544 |
Citation | 99 N.E.3d 274 |
Parties | Dion CANNON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
Court | Indiana Appellate Court |
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
[1] In November of 2015, police visited the Kokomo home that Appellant–Defendant 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.
[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.
[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
[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).
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.
Gee v. State , 810 N.E.2d 338, 340–41 (Ind. 2004). A non-exhaustive list of what...
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