COURT OF APPEALS OF INDIANA

Case Number: 49A02-1708-CR-1793

Judge: L. Mark Bailey

Court: COURT OF APPEALS OF INDIANA

Plaintiff's Attorney: Caryn N. Szyper
Deputy Attorney General

Defendant's Attorney: Frederick Vaiana

Description: On the afternoon of July 13, 2016, Detective Eric Forestal (“Det. Forestal”), an
undercover detective with the Indianapolis Metropolitan Police Department
(“IMPD”), was conducting surveillance. He observed a man, later identified as
Burt, exit an apartment building with an open beer bottle in his hand and walk
towards a white Cadillac in the parking lot. Det. Forestal saw Burt open the
trunk of the vehicle, pull back the liner, and place a semi-automatic handgun in
the trunk. Burt then moved the trunk liner back in place and drove away in the
vehicle. Det. Forestal followed Burt in his undercover vehicle and, when he
observed Burt commit a traffic violation, he radioed for an officer in a marked
police vehicle to conduct a traffic stop.
[3] Shortly thereafter, IMPD Sergeant James Martin (“Sgt. Martin”), who was in a
marked police vehicle, attempted to initiate a traffic stop on Burt’s vehicle using

1 Ind. Code § 35-48-4-1(a)(2) and (e)(1). 2 I.C. § 35-48-4-1(a)(2) and (e)(2).
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his lights and sirens, but Burt did not stop right away. Sgt. Martin observed
Burt fidgeting and moving around inside the car as he continued to drive. Burt
then abruptly turned into a parking lot and stopped. As Sgt. Martin approached
the vehicle, he saw Burt reaching down towards the center console area. Sgt.
Martin asked Burt for his license and registration, and Burt’s hands were
shaking badly as he attempted to find his wallet. Burt was the only occupant in
the vehicle.
[4] Det. Forestal arrived on the scene shortly after Burt stopped his vehicle. During
the traffic stop, the officers learned that the white Cadillac was registered to
Burt and to a female, later identified as Burt’s mother, and that Burt’s driving
privileges had been suspended. After informing Burt of his Miranda rights, Det.
Forestal asked Burt if he had any weapons in the vehicle. Burt denied
knowledge of any weapons and said that it was not his car. Det. Forestal then
told Burt that he saw him place a handgun in the trunk underneath the trunk
liner and Burt “dropped his head.” Tr. at 30. Burt then admitted to placing the
handgun in the trunk and admitted that he did not have a license to carry a
firearm. The officers took Burt into custody and found $877 in cash on his
person during a search incident to arrest.
[5] The police had Burt’s car towed to a secure location and Det. Forestal obtained
a warrant to search the vehicle. During the search, officers found a loaded .45
caliber Taurus handgun sitting on top of a black plastic bag under the liner of
the trunk. Inside the black plastic bag, officers found two plastic bags of
cocaine with weights of 7.13 and 20.73 grams, one plastic bag of heroin with a
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weight of 8.72 grams, and digital scales. The officers also found Burt’s 2007
GED and his automotive repair paperwork from 2013 in the glove
compartment. In the trunk, officers found mail dated September 1, 2015, with
Burt’s name on it.
[6] On July 15, 2016, the State charged Burt with unlawful possession of a firearm
by a serious violent felon, a Level 4 felony,3 and operating a vehicle as a
habitual traffic violator, a Level 6 felony.4 On July 22, the State amended the
charging information to add charges for dealing in cocaine, as a Level 2 felony;5
dealing in a narcotic drug, as a Level 2 felony;6 possession of cocaine, as a Level
3 felony;7 possession of a narcotic drug, as a Level 4 felony;8 and carrying a
handgun without a license, as a Class A misdemeanor.9 The State subsequently
filed motions to dismiss the unlawful possession of a firearm by a serious
violent felon charge and the operating a vehicle as a habitual traffic violator
charge, and the trial court granted those motions.

3 I.C. § 35-47-4-5(c). 4 I.C. § 9-30-10-16(a)(2). 5 I.C. § 35-48-4-1(a)(2) and (e)(1). 6 I.C. § 35-48-4-1(a)(2) and (e)(2). 7 I.C. § 35-48-4-6(a) and (d)(2). 8 I.C. § 35-48-4-6(a) and (c)(2). 9 I.C. § 35-47-2-1.
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[7] Following Burt’s June 20, 2017, jury trial, the jury found him guilty as charged
on all remaining counts. At the sentencing hearing on July 14, the trial court
vacated Burt’s convictions for possession of cocaine and possession of a
narcotic drug. The trial court then sentenced Burt to ten years executed for
Level 2 felony dealing in cocaine; ten years executed for Level 2 felony dealing
in a narcotic drug; and 365 days executed for Class A misdemeanor carrying a
handgun without a license. The court ordered the sentences to run
concurrently. This appeal ensued.
Discussion and Decision
[8] Burt challenges the sufficiency of the evidence to support his convictions for
dealing in cocaine and dealing in a narcotic, both as Level 2 felonies. Our
standard of review of the sufficiency of the evidence is well-settled:
When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.
Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.
Moreover, “[a] conviction may be based on circumstantial evidence alone so
long as there are reasonable inferences enabling the factfinder to find the
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defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d
385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied.
[9] To support Burt’s convictions of dealing in cocaine and dealing in a narcotic
drug as Level 2 felonies, the State was required to prove that Burt knowingly or
intentionally possessed minimum amounts10 of the drugs with the intent to
deliver11 them. I.C. § 35-48-4-1. A person actually possesses contraband when
he or she has direct physical control over it. Gray v. State, 957 N.E.2d 171, 174
(Ind. 2011). Here, Burt did not actually possess the cocaine and heroin; he did
not have direct physical control over either drug because they were in the trunk
of the car.
[10] However, "[w]hen the State cannot show actual possession, a conviction for
possessing contraband may rest instead on proof of constructive possession."
Id. A person constructively possesses contraband when the person has (1) the
capability to maintain dominion and control over the item, and (2) the intent to
maintain dominion and control over it. Id. The capability element may be
inferred “from the simple fact that the defendant had a possessory interest in the
premises” where the contraband was found, regardless of whether the
possessory interest is exclusive. Id. “To prove the intent element, the State

10 Burt does not dispute that the amounts of the cocaine and heroin were within the statutory minimum required to prove a Level 2 felony. 11 Burt challenges only the sufficiency of the evidence to show his intent to possess the contraband; he does not challenge the sufficiency of the evidence to show intent to deliver the contraband.
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must demonstrate the defendant’s knowledge of the presence of the
contraband,” and such knowledge may be inferred from the defendant’s
“exclusive dominion and control over the premises containing the contraband.”
Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) (holding evidence sufficient to
show constructive possession of contraband found in the trunk of the car where
the defendant did not own the car, but had a key to the trunk and had several
personal belongings throughout the car).
[11] This case is indistinguishable from Goliday. Burt’s capability to maintain
dominion and control over the contraband in the trunk could be inferred from
the facts that he had a key to the trunk; the undercover officer earlier had
witnessed Burt opening the trunk and placing a gun on top of the bag
containing the contraband; and Burt’s personal belongings—including his
gun—were found in the trunk near the contraband and throughout the car. See
id. And Burt’s exclusive possession of the vehicle was sufficient to raise a
reasonable inference of his intent to maintain dominion and control over the
contraband. Id. (noting the intent element of constructive possession does not
require proof of exclusive ownership of the premises; rather, intent may be
inferred by a showing of exclusive possession of the premises); see also State v.
Emry, 753 N.E.2d 19, 22 (Ind. Ct. App. 2001) (“Since Emry had exclusive
control over the vehicle, it was proper for the jury to infer that Emry had the
intent and capability to exert dominion and control over the marijuana.”).

Outcome: The State provided sufficient evidence to sustain Burt’s convictions for dealing in cocaine and dealing in a narcotic.

Affirmed.

Plaintiff's Experts:

Defendant's Experts:

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