Burton v. State

• Citation: 21 N.E.3d 897 (Table)
• Decision Date: 08 October 2014
• Docket Number: No. 49A02–1401–CR–10.,49A02–1401–CR–10.
• Parties: Dominique BURTON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

21 N.E.3d 897 (Table)

Dominique BURTON, Appellant–Defendant
v.
STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1401–CR–10.

Court of Appeals of Indiana.

Oct. 8, 2014.

Chris Palmer Frazier, Marion County Public Defender, Agency, Appellate Division, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl Scharnberg, Larry Allen, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BRADFORD, Judge.

CASE SUMMARY

On August 25, 2012, members of the Indiana State Police initiated a traffic stop after observing a vehicle, which was registered to Appellant–Defendant Dominique Burton, make a left turn without signaling. At the time of the stop, Burton was sitting in the front passenger seat of the vehicle. The troopers smelled the odor of alcoholic beverage emanating from the vehicle and observed that the occupants of the vehicle displayed excessive nervousness. The canine companion of one of the troopers also indicated the presence of narcotics. Following a search of the area indicated by the canine companion, the troopers recovered two bags of cocaine, having a street value of approximately $2200, and a set of digital scales from the vehicle's glove box.

Burton appeals following his conviction for Class C felony possession of cocaine. On appeal, Burton contends that the evidence is insufficient to sustain his conviction. Specifically, Burton claims that Appellee–Plaintiff the State of Indiana (the “State”) failed to prove beyond a reasonable doubt that he constructively possessed the cocaine in question. For its part, the State contends that the evidence presented at trial is sufficient to sustain Burton's conviction. Concluding that the evidence is sufficient to sustain Burton's conviction, we affirm.

FACTS AND PROCEDURAL HISTORY¹

On August 25, 2012, Burton and Ernest Payne were traveling in a vehicle on the south side of Indianapolis. Payne was driving the vehicle, which was registered to Burton, and Burton was sitting in the front passenger seat. Sergeant Dean Wildauer of the Indiana State Police initiated a traffic stop and pulled the vehicle over after he observed the vehicle turn without signaling. Indiana State Trooper Adam Buchta stopped to assist Sergeant Wildauer.

As Sergeant Wildauer approached the vehicle, he observed that Burton “was looking straight ahead and [was] not wanting to make eye contact” with him. Tr. p. 21. This made Sergeant Wildauer “a little leery.” Tr. p. 21. With respect to Payne, Sergeant Wildauer turned the investigation over to Trooper Buchta after he noticed the smell of alcoholic beverage coming from the vehicle.

As he began his investigation, Trooper Buchta observed that both Burton and Payne appeared to be “extremely nervous.” Tr. p. 41. Specifically, they were “[s]tuttering with their words, talking real fast, shaking.” Tr. p. 41. Trooper Buchta observed that Burton and Payne appeared to be more nervous than the average traffic violators and passengers that he comes into contact with. In light of the smell of alcoholic beverage coming from the vehicle, Trooper Buchta requested that Payne exit the vehicle and complete certain field sobriety tests.

While Trooper Buchta administered the field sobriety tests on Payne, Sergeant Wildauer moved to the rear of the vehicle. From that position, Sergeant Wildauer noticed that Burton “was making a lot of movements in the vehicle.” Tr. p. 23. While Sergeant Wildauer could not see exactly what Burton was doing with his hands, he observed Burton adjust his body so that he could watch Trooper Buchta and Sergeant Wildauer in the vehicle's mirrors. Sergeant Wildauer also observed Burton's shoulders dip as if he were trying to hide something. Based on Sergeant Wildauer's training and experience, he believed that Burton was trying to be “sly” about his movements. Tr. p. 24.

Fearing that Burton might be trying to hide a weapon, Sergeant Wildauer asked Burton to exit the vehicle while Trooper Buchta completed his investigation of Payne. Once out of the vehicle, Burton began looking around, as if examining flight possibilities. Burton's actions outside of the vehicle made Sergeant Wildauer “even more nervous.” Tr. p. 25.

Trooper Buchta's canine companion subsequently alerted Trooper Buchta of the possible presence of narcotics near the front passenger seat of the vehicle. Trooper Buchta and Sergeant Wildauer searched the area indicated by Trooper Buchta's canine companion and found two bags containing cocaine and a digital scale in the vehicle's glove box. Sergeant Wildauer deduced, in light of his training and experience, that the cocaine was likely for distribution, as its street value was approximately $2200. Burton and Payne were placed under arrest following the discovery of the cocaine.

On August 27, 2012, the State charged Burton with Class C felony possession of cocaine.² The trial court conducted a bench trial on October 22, 2013, following which, the trial court found Burton guilty as charged. On December 10, 2013, the trial court sentenced Burton to a four-year term, with twenty-eight days executed and the remainder suspended. Burton was also placed on probation for a term of two years. This appeal follows.

DISCUSSION

Burton contends that the evidence is insufficient to sustain his conviction for Class C felony possession of cocaine. Specifically, Burton claims that the evidence is insufficient to prove that he constructively possessed the cocaine found in his vehicle.

A. Standard of Review

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when

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