FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PHILLIP R. SMITH, STEVE CARTER
Helmerick & Smith Attorney General of Indiana
Lafayette, Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FRANK L. HALSEMA, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-0207-CR-545
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald C. Johnson, Judge
Cause No. 79D01-0109-CF-92
February 27, 2003
OPINION - FOR PUBLICATION
MATHIAS, Judge
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 informing[4] 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.
Facts and Procedural History
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.
I. Sufficiency of the Evidence
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).
A. Convictions for Possession of Marijuana and Reckless Possession of
Paraphernalia
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 floorboard on the passenger side of the
vehicle in plain view. Tr. p. 124. Officer Flynn stated that on the
passenger side floorboard he found a hollowed out ballpoint pen on the end
of which there was a tan colored residue that had been used to smoke
methamphetamine, and a bag of methamphetamine was found in the crack
between the driver and passenger seats, on the passenger side of the
vehicle. Tr. pp. 40, 42. Additionally, when Officer Harris initiated the
traffic stop, he observed Ritchie and Halsema bending down and making
furtive gestures.
Given Halsema’s proximity to the marijuana and paraphernalia, which
were in plain view, the evidence presented at trial established that
Halsema had both the intent and capability to maintain dominion and control
over the contraband. Under these facts and circumstances, the evidence was
sufficient to prove that Halsema constructively possessed the marijuana and
the paraphernalia.
B. Possession of Methamphetamine
Halsema also argues that the evidence was insufficient to sustain his
conviction for possession of methamphetamine, as a Class A felony. Indiana
Code section 35-48-4-6 provides:
(a) A person who, . . . knowingly or intentionally possesses . . .
methamphetamine (pure or adulterated) commits possession of . . .
methamphetamine.
(b) the offense is:
(3) a class A felony if the person possesses the . . .
methamphetamine in an amount (pure or adulterated) weighing at
least three (3) grams:
(B) in, on, or within one thousand (1,000) feet of:
(i) school property;
(ii) a public park;
(iii) a family housing complex; or
(iv) a youth program center.
Ind. Code § 35-48-4-6 (1998 & Supp. 2002). Halsema argues that although
Whiteley’s residence is within 1000 feet of a school, there was no evidence
presented at trial that scientifically proved 1) that the substance that
Whiteley saw at her residence was methamphetamine or 2) the weight of that
substance. Halsema also states that the only stipulation between himself
and the State was that substance found in the vehicle was methamphetamine
with a total weight of 112 grams.
Initially, we note that “‘a criminal conviction may be based solely
upon circumstantial evidence.’” Hill v. State, 773 N.E.2d 336, 347 (Ind.
Ct. App. 2002) (quoting Woodson v. State, 542 N.E.2d 1331, 1333 (Ind.
1989)). Additionally, “the identity of a drug can be proven by
circumstantial evidence.” Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind.
2001) (citation omitted).
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 that night Whiteley saw Halsema with
methamphetamine in his possession. Tr. p. 216. Whiteley also stated that
on September 15, 2001, she saw Halsema and Ritchie “baggin’ up and cuttin’
up” methamphetamine in the bedroom where Ritchie was staying. Tr. p. 215.
Whiteley stated that she saw a “chunk [of methamphetamine] about the size
of a charcoal.” Tr. p. 220. Also, during the search of Whiteley’s
residence, Officer Harris found a bag of methamphetamine in a dresser
drawer in that bedroom, which was admitted into evidence at trial. Tr. pp.
171, 173.
The State argues that this evidence is sufficient to establish that
Halsema possessed over three grams of methamphetamine in Whiteley’s
residence, which is within 1000 feet of a school. In its Appellee’s brief,
the State contends that although it
did not introduce any testimony regarding the weight of the
methamphetamine, the jurors were able to examine the bag and use their
common sense and experience to determine whether the methamphetamine
was at least three grams. Further, the jurors were able to compare
the weight of the methamphetamine found in the dresser to the
methamphetamine found in the car, which was 112 grams.
Br. of Appellee at 8.
Given the jury’s common sense and ability to compare the apparent
amount of the methamphetamine found in the dresser to that found in the
vehicle, and Whiteley’s description of the methamphetamine, the State
presented sufficient evidence to establish that the substance was
methamphetamine weighing more than three grams.[7] Under these facts and
circumstances, there was sufficient evidence to support Halsema’s
conviction for Class A felony possession of methamphetamine.
II. Inconsistent Verdicts
Although our courts rarely reverse a conviction under a theory of
inconsistent verdicts, “it is plainly the law in Indiana that we will
review verdicts for consistency and take corrective action if necessary.”
Owsley v. State, 769 N.E.2d 181, 183 (Ind. Ct. App. 2002) (citation
omitted).
“When reviewing the consistency of jury verdicts, we will take
corrective action only when the verdicts are ‘extremely contradictory
and irreconcilable.’ We will not attempt to interpret the thought
process of the jury in arriving at its verdict, and “perfect logical
consistency is not required.”
Edwards v. State, 730 N.E.2d 1286, 1290 (Ind. Ct. App. 2000) (quoting Jones
v. State, 689 N.E.2d 722, 724 (Ind. 1997)) (internal citations omitted).
Halsema argues that his convictions for possession of marijuana and
reckless possession of paraphernalia are inconsistent with his conviction
of Class A felony possession of methamphetamine. Halsema basically
contends that because the jury believed that he constructively possessed
the contraband in the vehicle, they should have only believed that he
constructively possessed the methamphetamine in the vehicle, and not at
Whiteley’s residence, which was within 1000 feet of a school. Br. of
Appellant at 13-14.
This is merely an additional claim that the evidence was not
sufficient to support his Class A felony possession of methamphetamine
conviction. However, as we stated above, there was sufficient evidence to
support Halsema’s conviction for Class A felony possession of
methamphetamine, and it was not inconsistent for the jury to find that he
constructively possessed the methamphetamine at Whiteley’s residence and
constructively possessed the marijuana and paraphernalia in the vehicle.
Conclusion
There was sufficient evidence presented at trial that Halsema
constructively possessed the marijuana and paraphernalia found in the
vehicle. Also, the evidence was sufficient to sustain Halsema’s conviction
for Class A felony possession of methamphetamine. Finally, the jury’s
verdicts finding Halsema guilty of possession of marijuana, reckless
possession of paraphernalia, and possession of methamphetamine were not
inconsistent.
Affirmed.
BAKER, J., and RILEY, J., concur.
-----------------------
[1] Ind. Code § 35-48-4-6 (1998 & Supp. 2002).
[2] Ind. Code § 35-48-4-11 (1998).
[3] Ind. Code § 35-48-4-8.3 (1998).
[4] Ind. Code § 35-44-2-2 (1998 & Supp. 2002).
[5] Ind. Code § 35-50-2-10 (1998 & Supp. 2002).
[6] Such additional circumstances include: “(1) incriminating statements
made by the defendant; (2) attempted flight or furtive gestures; (3) a
manufacturing setting; (4) proximity of the defendant to the contraband;
(5) location of the contraband within the plain view of the defendant; and
(6) location of the contraband within close proximity of items owned by the
defendant.” Bradley v. State, 765 N.E.2d 204, 212 (Ind. Ct. App. 2002).
[7] In Wattley v. State, 721 N.E.2d 353 (Ind. Ct. App. 1999), our court
held that “[w]hen a defendant is charged with a drug offense that is
determined by the weight of the substance involved, the State must prove
that the scale used to weigh the substance was tested before and after its
use.” Id. at 355-56. In that case, our court reduced a Class A felony
dealing in cocaine conviction to a Class B felony because although the
cocaine’s weight was 3.5 grams, no evidence of the scale’s accuracy was
admitted into evidence. Id. at 356. The facts of this case are
distinguishable from those in Wattley because here 1) no scale was used to
weigh the methamphetamine and 2) Whiteley’s description of the
methamphetamine clearly indicated that its weight was significantly more
than three grams.
