Opinion
24A-CR-1382
11-27-2024
Curtis T. Cutler, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Zachary J. Stock Zachary J. Stock, Attorney at Law, P.C. Carmel, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General, Andrew M. Sweet Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hendricks Superior Court The Honorable Stephenie LeMay-Luken, Judge Trial Court Cause No. 32D05-2305-F4-18
ATTORNEY FOR APPELLANT Zachary J. Stock Zachary J. Stock, Attorney at Law, P.C. Carmel, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General, Andrew M. Sweet Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
VAIDIK, JUDGE
Case Summary
[¶1] Curtis T. Cutler was convicted of Level 4 felony unlawful possession of a firearm by a serious violent felon (SVF) and Level 6 felony possession of methamphetamine and found to be a habitual offender. He now appeals, arguing the evidence is insufficient to prove that he possessed the gun and drugs. We affirm.
Facts and Procedural History
[¶2] In May 2023, thirty-seven-year-old Cutler lived with T.G. and T.G.'s mother in an apartment in Plainfield. On May 11, the Plainfield Police Department was investigating T.G. in connection with an armed robbery and obtained a warrant to search the apartment for guns and drugs. When the police arrived at the apartment, Cutler was there. During the search, the police discovered that three cars were parked at the apartment: T.G.'s mother's car, a Chrysler 300 registered to Cutler's mother, and a Cadillac Escalade registered to Cutler's mother. Cutler consented to a search of the Escalade, but the police had to obtain a warrant to search the Chrysler.
[¶3] Inside the Chrysler, which was parked "right in front" of the apartment, an officer found a Glock 27 handgun under the driver's seat within reach of the driver. Tr. p. 40. The Glock 27 was in a Fobus brand paddle holster. An officer also found a Pringles can on the rear passenger seat. The can had a "false bottom," and pills containing what was later determined to be methamphetamine were found inside. Id. at 41. After being advised of his Miranda rights, Cutler told the police that the Chrysler belonged to his mother and that he didn't know who the gun and drugs belonged to.
[¶4] The police later obtained a search warrant for a buccal swab of Cutler and asked him to return to the apartment, but he "refused." Id. at 46. The police then obtained a search warrant for Cutler's cell-phone records and traced him to the South Bend area. On May 18, the Plainfield police, armed with a warrant for Cutler's arrest, went to South Bend to locate him. They found him and the Chrysler at a hotel. When Cutler was arrested, the keys to the Chrysler were in his pocket.
[¶5] The State charged Cutler with Level 4 felony unlawful possession of a firearm by an SVF (his SVF status is based on a 2012 conviction for Class B felony burglary), Level 6 felony possession of methamphetamine, and being a habitual offender. At the bench trial, a detective testified that he did a "deep dive" into Cutler's social media and found a photo of him wearing a Fobus brand paddle holster with what "look[ed] to be a Glock 27 attached to the holster." Id. at 53, 54. The detective also testified that he sent a buccal swab from Cutler as well as swabs from the grip, trigger, and slide of the Glock 27 to the Indiana State Police Laboratory for DNA analysis. A forensic scientist testified that the swabs from the Glock 27 contained the DNA from one person and that the DNA profile was at least one trillion times more likely to have originated from Cutler than from an unknown, unrelated individual, which provided "very strong support for the proposition that Curtis Cutler is included." Id. at 65. The trial court found Cutler guilty of both charges and that he is a habitual offender. The court explained:
I've reviewed the evidence and obviously was here for the testimony. I took a look at all the pictures again . . ., paying special focus to State's Exhibit 8 [Pringles can on backseat] and 14 [gun under driver's seat]. I am going to find that the Pringles container which contained the methamphetamine was inches, feet, a couple feet from the actual firearm itself which I viewed, looked specifically [at] in State's Exhibit 14.Id. at 75.
[¶6] Cutler now appeals.
Discussion and Decision
[¶7] Cutler contends the evidence is insufficient to support his convictions for unlawful possession of a firearm by an SVF and possession of methamphetamine. Specifically, he argues the evidence is insufficient to prove he possessed the gun and drugs. When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We only consider the evidence supporting the judgment and any reasonable inferences that can be drawn from the evidence. Id. A judgment will be affirmed if there is substantial evidence of probative value to support each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.
[¶8] Possession may be actual or constructive. Cutler argues the State failed to prove that he had either actual or constructive possession of the gun and drugs. Even assuming Cutler didn't have actual possession of the items, we find the evidence is sufficient to prove that he constructively possessed them. "A person constructively possesses [an item] 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." Sargent v. State, 27 N.E.3d 729, 732-33 (Ind. 2015) (quotation omitted). Cutler doesn't dispute that he was capable of maintaining dominion and control over the gun and drugs; he only disputes whether the State proved he had the intent to do so. See Appellant's Br. pp. 1011.
[¶9] "To prove the intent element, the State must demonstrate the defendant's knowledge of the presence of the contraband." Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). When the defendant has exclusive possession of the premises where the contraband is found, an inference is permitted that he knew of its presence. Collins v. State, 822 N.E.2d 214, 222 (Ind.Ct.App. 2005), trans. denied. Cutler claims his possession was non-exclusive because it was his mother's car. Where possession of the premises is non-exclusive, the inference is not permitted absent some additional circumstances indicating knowledge of the presence of the contraband. Id. The "additional circumstances" have been shown by various means: (1) incriminating statements by the defendant, (2) attempted flight or furtive gestures, (3) a drug-manufacturing setting, (4) proximity of the contraband to the defendant, (5) contraband in plain view, and (6) the mingling of the contraband with other items owned by the defendant. Id. These "additional circumstances" are non-exhaustive; ultimately, the question is whether a reasonable factfinder could conclude from the evidence that the defendant had knowledge of the contraband. Johnson v. State, 59 N.E.3d 1071, 1074 (Ind.Ct.App. 2016).
[¶10] Here, the evidence shows that although the Chrysler was registered to Cutler's mother, Cutler possessed the car on May 11, as it was parked outside his home while he was there. The gun, which had Cutler's DNA on it, was found under the driver's seat within reach of the driver, and the Pringles can with the methamphetamine in the false bottom was found "inches, feet" away on the rear passenger seat. When the police asked Cutler to return to the apartment for a buccal swab, he "refused" and went to South Bend. The police eventually tracked him and the Chrysler to a hotel there. Considering all these circumstances, the trier of fact could reasonably conclude that Cutler had knowledge of the presence of the gun and drugs in the Chrysler.
[¶11] Cutler argues that the fact that his DNA was found on the gun only proves that he possessed it "at some unknown point in the past" and not on May 11 in Hendricks County. Appellant's Br. p. 12. This, however, is merely a request for us to reweigh the evidence, which we don't do. We therefore affirm Cutler's convictions for unlawful possession of a firearm by an SVF and possession of methamphetamine.
Cutler raises as a separate issue that the evidence is insufficient to prove venue in Hendricks County. The evidence discussed above is sufficient to establish by a preponderance of the evidence that Cutler possessed the gun and drugs in Hendricks County. See Peacock v. State, 126 N.E.3d 892, 897 (Ind.Ct.App. 2019) (providing that the State must prove venue by a preponderance of the evidence).
[¶12] Affirmed.
Altice, C.J., and Crone, Sr. J., concur.