Kevin D. Leath v. State of Indiana

Indianapolis, IN - Criminal Defense lawyer represented defendant with a felony possession of cocaine charge.

] Leath and Toshawa are married and have children together, including seventeenyear-old J.S. In August of 2019, Toshawa and Leath separated, and he stopped

living in the family home. Around that same time a protective order was put in

place forbidding Leath from contacting Toshawa or visiting her property.

Toshawa's home has a small cellar that can only be accessed from outside the

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house and was mostly used for storage. The last time either Toshawa or J.S. had

gone in the cellar, there had been no bed, clothing, or food in it. After Leath

moved out, Toshawa and J.S. saw him on the property many times. Toshawa had

also seen Leath exit the cellar in the past and had smelled cigarette smoke and

heard noises coming from the cellar at times. On May 4, 2020, J.S. saw Leath in

their back yard talking to Winchester, a neighbor who lived in a house behind

theirs. J.S. saw the two men enter the cellar and called 911. Officer Smith

responded to the call and, as he was talking to Toshawa outside the home, the

cellar door opened and Leath and Winchester emerged. Leath approached Officer

Smith and informed him that there was an active warrant for his arrest. Officer

Smith confirmed that fact and placed Leath under arrest.

[3] Officer Smith then entered the cellar to confirm that no one else was present and,

based on his previous dealings with either Leath or Winchester, to ensure that the

two had not left any drugs behind. Though no one else was in the cellar, Officer

Smith discovered that someone appeared to have been living there. Officer Smith

found a bed, outfitted with pillows and blankets; clothing on a rack; food;

electronics; an Xbox 360; and numerous other personal items inside the cellar.

Officer Smith also discovered a digital scale, with white residue on top of it, lying

in plain view on top of the bed. Subsequent testing confirmed that the white

residue on the scale was cocaine. Leath informed police that the scale was his but

claimed that he had only used it to weigh pennies to sell on eBay. Leath

eventually claimed that he had given Winchester the scale when they were both

down in the cellar so that he could "do a line,” though he also claimed that the

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cocaine should not have still been down in the cellar and that it belonged to

Winchester. State's Ex. 6 at 12:10–12:50.

[4] The State charged Leath with Level 6 felony possession of cocaine, with the intent

to seek an enhanced penalty based on Leath's prior conviction for Class B felony

dealing in cocaine, and Class C misdemeanor possession of paraphernalia. A jury

found Leath guilty of possession of cocaine and not guilty of possession of

paraphernalia. Leath admitted to the prior conviction, which enhanced his

conviction to Level 5 felony possession of cocaine.

Discussion and Decision

[5] Leath contends that the State failed to produce sufficient evidence to sustain his

conviction for possession of cocaine. When evaluating a challenge to the

sufficiency of the evidence to support a conviction, we do not "reweigh the

evidence or judge the credibility of the witnesses,” nor do we intrude within the

factfinder's "exclusive province to weigh conflicting evidence.” Alkhalidi v. State,

753 N.E.2d 625, 627 (Ind. 2001). Rather, a conviction will be affirmed unless "no

reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt.” Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000). The evidence

need not exclude every reasonable hypothesis of innocence, but instead, "the

evidence is sufficient if an inference may reasonably be drawn from it to support

the verdict.” Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001). When we

are confronted with conflicting evidence, we must consider it "most favorably to

the [factfinder's] ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).

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[6] In order to convict Leath of Level 6 possession of cocaine, the State was required

to prove that he "knowingly or intentionally” possessed cocaine. Ind. Code § 35-

48-4-6(a). "A person engages in conduct 'knowingly' if, when he engages in the

conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-41-

2-2(b). He "engages in conduct 'intentionally' if, when he engages in the conduct,

it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a). Further, in order

to enhance Leath's conviction to the Level 5 felony, the State was required to

prove that "an enhancing circumstance” applied. See Ind. Code § 35-48-4-6-(b)(2).

Leath admitted to a prior conviction before trial which supported the enhancement

of his conviction to a Level 5 felony. See Id.

[7] "Possession can be actual or constructive.” Parks v. State, 113 N.E.3d 269, 273

(Ind. Ct. App. 2018). As the cocaine was not recovered from Leath's person,

Leath did not have actual possession of the cocaine at the time of his arrest. We

must therefore determine whether the State proved that he constructively possessed

it. Id. It is accepted that a factfinder may infer that a defendant "had the capability

to maintain dominion and control over contraband from the simple fact that the

defendant had a possessory interest in the premises on which an officer found the

item.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).

However, the law takes a different view when applying the intent

prong of constructive possession. When a defendant's possession

of the premises on which drugs are found is not exclusive, then the

inference of intent to maintain dominion and control over the

drugs "must be supported by additional circumstances pointing to

the defendant's knowledge of the nature of the controlled

substances and their presence.” [Lampkins v. State, 682 N.E.2d

1268, 1275 (Ind. 1997), on reh'g, 685 N.E.2d 698 (Ind. 1997)]. The

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"additional circumstances” have been shown by various means:

(1) incriminating statements made by the defendant, (2) attempted

flight or furtive gestures, (3) location of substances like drugs in

settings that suggest manufacturing, (4) proximity of the

contraband to the defendant, (5) location of the contraband within

the defendant's plain view, and (6) the mingling of the contraband

with other items owned by the defendant. Henderson v. State, 715

N.E.2d 833, 836 (Ind. 1999).

Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004).

[8] Leath argues that the State failed to present sufficient evidence from which a jury

could reasonably infer that he had a possessory interest in the cellar where law

enforcement found cocaine, and therefore failed to prove that he had constructive

possession of the cocaine. The cellar where the cocaine was found was a small,

lightly furnished room, located underneath Leath's estranged wife's home.

Toshawa had observed Leath exiting the cellar on prior occasions after he no

longer lived with her in the home. Leath would also have known, because he lived

on the property previously, that the cellar was unoccupied, usually left unlocked,

and that Toshawa and their children rarely entered the cellar. Leath also admitted

that the scale, which had cocaine on it and was recovered from the cellar, was his.

See Jones v. State, 807 N.E.2d 58, 65—66 (Ind. Ct. App. 2006) ("And again,

personal items of Jones were found inside the residence, and Johnson identified the

duplex as Jones' residence. Based on that evidence, the State proved that Jones had

a possessory interest in the premises.”)

[9] Leath argues that "[i]t is just as likely, however, that Winchester, not Leath, had a

possessory interest in the cellar.” Appellant's Br. p. 13. Specifically, Leath points

to the facts that Winchester walked through Toshawa's yard frequently; the cellar

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door did not have a lock; the cellar door faced Winchester's residence; and,

Toshawa had observed Winchester, to whom she had given her internet password,

standing on the back porch using her internet. Leath's argument amounts to

nothing more than a request that we reweigh the evidence, which we will not do.

Alkhalidi, 753 N.E.2d at 627. The State provided sufficient evidence for the jury to

conclude that Leath had a possessory interest in the cellar, and therefore had

constructive possession of the cocaine.

[10]Further, even if Leath had no possessory interest in the cellar, the State has

provided sufficient evidence to establish constructive possession by "pointing to the

defendant's knowledge of the nature of the controlled substances and their

presence.” Gee, 810 N.E.2d at 341. Leath was observed entering the cellar with

Winchester and exiting the cellar with Winchester. Immediately after police

observed Leath and Winchester exit the cellar, police discovered cocaine in plain

view in the cellar. "[A]n inference of intent to maintain dominion or control” is

supported as long as a "contraband's incriminating character” is "immediately

apparent” and a defendant is in "proximity to contraband in plain view[.]” Gray,

957 N.E.2d at 175 (quotations omitted). Again, Leath admitted to owning the

scale on which the cocaine was found, another circumstance from which the jury

could infer that Leath constructively possessed the cocaine. See Gee, 810 N.E.2d at

341. Leath also admitted that he was aware of the presence of cocaine in the

cellar.

[11]Leath argues that his behavior does not "point to the defendant's knowledge of the

nature of the controlled substances and their presence.” Id. Specifically, Leath

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points to the fact that, upon exiting the cellar with Winchester and noticing the

officer observing him, he approached Officer Smith and informed him that there

was an active warrant for his arrest. First, one could just as easily infer that

Leath's decision to be forthcoming regarding the warrant for his arrest is suggestive

of an intent to redirect Officer Smith's attention away from the cellar. Second, this

is another request that we reweigh the evidence, which we will not do. See

Alkhalidi, 753 N.E.2d at 627.

The judgment of the trial court is affirm.