Halsema v. State
| Decision Date | 27 February 2003 |
| Docket Number | No. 79A02-0207-CR-545.,79A02-0207-CR-545. |
| Citation | 783 N.E.2d 1199 |
| Parties | Frank L. HALSEMA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Phillip R. Smith, Helmerick & Smith Lafayette, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Frank Halsema ("Halsema") was convicted of Class A felony possession of methamphetamine,1 Class A misdemeanor possession of marijuana,2 Class A misdemeanor reckless possession of paraphernalia,3 and Class A misdemeanor false informing4 in Tippecanoe Circuit Court. He also admitted to being an habitual substance offender.5 The trial court sentenced Halsema to forty years for Class A felony possession of methamphetamine, and one year on each of the three Class A misdemeanor convictions, to be served concurrently. The trial court also enhanced Halsema's sentence by five years for the habitual substance offender determination, for a total sentence of forty-five years. The trial court then suspended six months of that sentence. Halsema appeals and raises the following issues:
I. Whether there was sufficient evidence to support Halsema's convictions for possession of marijuana and reckless possession of paraphernalia;
II. Whether there was sufficient evidence that Halsema possessed at least three grams of methamphetamine within one thousand feet of a school; and,
III. Whether the jury's verdicts finding Halsema guilty of possession of methamphetamine, possession of marijuana, and reckless possession of paraphernalia are inconsistent.
Finding that there was sufficient evidence to support Halsema's convictions and that the verdicts were not inconsistent, we affirm.
On September 15, 2001, at approximately 11:15 p.m., Kevin Flynn, a patrol officer with the West Lafayette Police Department ("Officer Flynn"), observed a vehicle with a defective exhaust traveling west on U.S. Highway 52, and noted that the passenger in the vehicle was not wearing a seatbelt. As Officer Flynn followed the vehicle, he saw it swerve across the center line twice, and therefore, he initiated a traffic stop.
When Officer Flynn activated his emergency lights to stop the vehicle, he observed the two men in the vehicle bending down and making furtive gestures. Before Officer Flynn approached the vehicle, two other officers with the West Lafayette Police Department, Officers Rogers and Harris, arrived on the scene. Officer Flynn then approached the driver's side of the vehicle, and Officer Rogers approached the passenger's side. As Officer Flynn looked inside the vehicle, he immediately saw a case of beer in the backseat of the vehicle. He also noticed an open can of beer on the passenger side floorboard. Officer Flynn then asked the driver, Ritchie Halsema ("Ritchie"), for his driver's license. Ritchie informed Officer Flynn that his license had been suspended, and Ritchie was therefore placed under arrest. Tr. pp. 29, 32. When the officers asked the passenger to identify himself, the passenger indicated that his name was Lonnie Halsema; however, the passenger was later identified as Frank Halsema.
As Officer Harris was giving Halsema a citation for not wearing his seatbelt, he saw a clear plastic bag containing a green leafy substance, which he suspected was marijuana, on the passenger side floorboard of the vehicle. Therefore, Halsema was also placed under arrest. The officers then searched the vehicle and found several individually wrapped bags of methamphetamine located throughout the vehicle, and a hollowed out ballpoint pen on the end of which there was a tan colored residue located on the passenger side floorboard. The total amount of methamphetamine found in the vehicle was 112 grams. In the trunk of the vehicle, the officers also found scales, Aderal pills, and drug paraphernalia pipes.
The vehicle was registered to Juliet Whiteley ("Whiteley"), Halsema's ex-girlfriend, and the address listed on the registration was 1216 Shenandoah Drive, Lafayette, Indiana. Both Ritchie and Halsema told Officer Harris that they resided at that address. Tr. p. 129. That residence is also located within 1000 feet of a school.
Officers Flynn, Rogers, Harris, and an additional officer, Lieutenant Dunscomb, then proceeded to 1216 Shenandoah Drive. Upon arriving at that address, they spoke to Whiteley, who agreed to speak with the officers and gave the officers consent to search the residence. Roger Ferguson ("Ferguson") and Whiteley's child were also at the residence at that time. During the search of the house, methamphetamine was found on Whiteley's person and in a cigarette package dropped by Ferguson. Methamphetamine was also found in a dresser drawer in the bedroom where Ritchie had been staying. Additionally, plastic bags, twist ties, tinfoil, and a digital scale were found in the dresser drawer.
On September 18, 2001, Halsema was charged with dealing in methamphetamine, as a Class A felony, possession of methamphetamine, as a Class A felony, maintaining a common nuisance, as a Class D felony, possession of marijuana, as a Class A misdemeanor, reckless possession of paraphernalia, as a Class A misdemeanor, and false informing, as a Class A misdemeanor. On September 27, 2001, Halsema was also charged with conspiracy to commit dealing in methamphetamine, as a Class A felony, and with being an habitual substance offender.
A jury trial was held on May 28 and 29, 2002. At trial, Whiteley testified that on September 14, 2001, Halsema had stated that there was "some Mexican sellin' four gram eight balls for a hundred and forty-six dollars," and during that night, Whiteley saw Halsema with methamphetamine in his possession. Tr. p. 216. She also stated that on September 15, 2001, Whiteley observed Halsema and Ritchie "baggin' up and cuttin' up" methamphetamine in the bedroom where Ritchie was staying. Tr. p. 215.
The jury found Halsema guilty of Class A felony possession of methamphetamine, Class A misdemeanor possession of marijuana, Class A misdemeanor reckless possession of paraphernalia, and Class A misdemeanor false informing. The jury reached not guilty verdicts on all other counts. Halsema then admitted to being an habitual substance offender.
A sentencing hearing was held on June 24, 2002. The trial court sentenced Halsema to forty years for Class A felony possession of methamphetamine, and one year on each of the three Class A misdemeanor convictions, to be served concurrently. The trial court also enhanced Halsema's sentence by five years for the habitual substance offender determination, for a total sentence of forty-five years. The trial court then suspended six months of that sentence. Halsema now appeals.
Our standard of review for sufficiency claims is well settled. We do not reweigh the evidence or assess the credibility of witnesses. Thompson v. State, 728 N.E.2d 155, 159 (Ind.2000). We look to the evidence and the reasonable inferences to be drawn therefrom that support the judgment. Id. Where there is substantial evidence of probative value to support the judgment, it will not be disturbed. Jordan v. State, 691 N.E.2d 487, 489 (Ind. Ct.App.1998).
Halsema argues that his convictions for possession of marijuana and reckless possession of paraphernalia were not supported by sufficient evidence because the State failed to prove that he constructively possessed the marijuana and paraphernalia found in the vehicle. To sustain a conviction for possession of marijuana, the State had to present sufficient evidence that Halsema knowingly or intentionally possessed the marijuana found in the vehicle. See Ind.Code § 35-48-4-11 (1998). Similarly, to obtain a conviction for reckless possession of the paraphernalia found in the vehicle, the State had to prove that Halsema recklessly possessed "a raw material, an instrument, a device, or other object that is to be used primarily for" introducing a controlled substance into the person's body, "testing the strength, effectiveness, or purity of a controlled substance," or "enhancing the effect of a controlled substance." See Ind.Code § 35-48-4-8.3 (1998).
"In order to prove constructive possession, the State must show that the defendant has both (1) the intent to maintain dominion and control and (2) the capability to maintain dominion and control over the contraband." Goliday v. State, 708 N.E.2d 4, 6 (Ind.1999). The State must demonstrate the defendant's knowledge of the presence of the methamphetamine to prove the intent element. See Armour v. State, 762 N.E.2d 208, 216 (Ind. Ct.App.2002),
trans. denied.
"This knowledge may be inferred from either the exclusive dominion and control over the premise containing the contraband or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant's knowledge of the presence of the contraband." The defendant's proximity to contraband "in plain view" is an "additional circumstance" that will support an inference of intent in this context.6 Also, "a substance can be possessed jointly by the defendant and another without any showing that the defendant had actual physical control thereof." However, when possession is nonexclusive the State must demonstrate that the defendant had actual knowledge of the presence and illegal character of the substance.
Id. (internal citations omitted). To prove that the defendant had the capability to maintain dominion and control over the contraband, the State must demonstrate that the defendant is able to reduce the controlled substance to his personal possession. Id.
In this case, Halsema was sitting in the passenger seat of the vehicle. Officer Harris testified that a clear plastic bag containing marijuana was found on the front...
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Halsema v. State
...of the drugs was at least three grams. In Frank Halsema's case, one panel of the Court of Appeals said yes. See Halsema v. State, 783 N.E.2d 1199, 1205 (Ind.Ct. App.2003) (holding that jurors can "use their common sense and experience to determine whether [the drugs were] at least three gra......