Opinion
24A-CR-401
11-25-2024
Duane L. Keeling, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jennifer L. Koethe ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Ian Alexander Thomas McLean Supervising Deputy Attorney General
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case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 La Porte Circuit Court The Honorable Thomas Alevizos, Judge Trial Court Cause No. 46C01-2307-F4-001024
ATTORNEY FOR APPELLANT Jennifer L. Koethe
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Ian Alexander Thomas McLean Supervising Deputy Attorney General
MEMORANDUM DECISION
DEBOER, JUDGE.
Case Summary
[¶1] Duane L. Keeling was caught driving his Jeep with methamphetamine tucked under the shifting column on the driver's side and a loaded handgun between the driver's seat and the center console. He now claims the State presented insufficient evidence to prove he constructively possessed the contraband. He also prematurely challenges the validity of his guilty plea during the enhancement phase of the proceedings. Finding his arguments unavailing, we affirm in part and dismiss in part.
Facts and Procedural History
[¶2] Keeling was pulled over for a traffic stop by officers of the LaPorte Police Department. A K-9 alerted to the presence of narcotics on the passenger side of the vehicle. When the passenger exited the vehicle, she told Officer Simpson she had "a bubble," which Officer Simpson explained is slang for a pipe used to ingest methamphetamine. Transcript Vol. 2 at 66. Officer Simpson searched the passenger side of the Jeep and found the bubble and two baggies containing a substance that later tested positive for heroin and fentanyl. On the driver's side of the vehicle, the Officer located 3.15 grams of methamphetamine in a white crystal-like form in a clear bag "tucked underneath the shifting column." Tr. Vol. 2 at 69. When Officer Fisher asked Keeling about the contents of the car "[f]or safety reasons," Keeling admitted he had a gun next to the driver's seat and a box of ammunition under the driver's seat. Tr. Vol. 2 at 56. Officers found a 9mm Smith and Wesson in a holster, "tucked in between the driver's seat and the center console." Tr. Vol. 2 at 42. The handgun was loaded with one round in the chamber and additional rounds in the magazine.
[¶3] The State charged Keeling with being a serious violent felon in possession of a firearm (Count I), possession of methamphetamine (Count II), and being a habitual offender. A jury found Keeling guilty of possessing the firearm and the methamphetamine. Following the jury's verdicts and outside the presence of the jury, Keeling entered an "admission as to the enhancements for Counts I and II, and then the habitual offender enhancement." Tr. Vol. 2 at 141. After the trial court entered judgment of conviction, Keeling appealed.
Discussion and Decision
Constructive Possession
[¶4] Keeling argues the State failed to present sufficient evidence that he constructively possessed methamphetamine and the handgun. A sufficiency-of-the-evidence claim warrants a "deferential standard of review in which we 'neither reweigh the evidence nor judge witness credibility[.]'" Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the convictions unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is "not necessary that the evidence 'overcome every reasonable hypothesis of innocence.'" Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).
[¶5] To convict Keeling of Level 5 felony possession of methamphetamine, the State had to prove that Keeling knowingly or intentionally possessed five grams or less of pure or adulterated methamphetamine, that he did not have a valid prescription or order of a practitioner for the substance, and that he qualified for an enhancement because he had a prior conviction for dealing a controlled substance. See I.C. §§ 35-48-4-6.1(a); -1-16.5(1). To convict Keeling of Level 4 felony possession of a firearm by a serious violent felon, the State had to prove that he unlawfully, knowingly or intentionally, possessed a handgun and that he had previously been convicted of an offense designated as a serious violent felony. See I.C. § 35-47-4-5(c). As to both of his convictions, Keeling claims that he did not actually possess the contraband and, at trial, the State failed to prove he constructively possessed the items.
[¶6] Convictions for possession of illegal items can be based on either actual or constructive possession. Actual possession occurs when a person "has direct physical control over" an item. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). Here, there is no question that the drugs and handgun were not found directly in Keeling's possession; therefore, we must consider whether he constructively possessed the contraband.
[¶7] Constructive possession occurs 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. To prove "capability," the State must show "that the defendant is able to reduce the [contraband] to the defendant's personal possession." Shorter v. State, 151 N.E.3d 296, 305 (Ind.Ct.App. 2020), trans. denied. To satisfy "intent," the State must demonstrate that the individual had knowledge of the presence of the contraband. Id. at 306. Where the accused has exclusive possession of the vehicle in which the contraband is found, an inference is permitted that the person knew of [the contraband's] presence and was capable of controlling it. Griffin v. State, 945 N.E.2d 781, 784 (Ind.Ct.App. 2011). However, when possession of the premises is not exclusive, the inference is not permitted absent "evidence of additional circumstances pointing to the [accused]'s knowledge of the presence of the contraband." Shorter, 151 N.E.3d at 306. For purposes of establishing constructive possession, our Supreme Court has identified a non-exhaustive list of "additional circumstances" that bear on whether an individual knew of the presence of contraband:
(1) a defendant's incriminating statements; (2) a defendant's attempt[] to leave or mak[e] furtive gestures; (3) the location of contraband like drugs in settings suggesting manufacturing; (4) the item's proximity to the defendant; (5) the location of contraband within the defendant's plain view; and (6) the mingling of contraband with other items the defendant owns.Gray, 957 N.E.2d at 175.
[¶8] "The State is not required to prove all additional circumstances when showing that a defendant had the intent to maintain dominion and control over contraband." Canfield v. State, 128 N.E.3d 563, 573 (Ind.Ct.App. 2019), trans. denied. Rather, "the State is required to show that whatever factor . . . it relies upon in support of the intent prong of constructive possession, those factors . . . must demonstrate the probability that the defendant was aware of the presence of the contraband and its illegal character." Gee v. State, 810 N.E.2d 338, 344 (Ind. 2004).
[¶9] Keeling essentially argues that because the K-9 alerted on the passenger side of the vehicle and the passenger herself admitted to possessing illegal substances, we can reasonably infer that he did not constructively possess the methamphetamine found under the steering column. However, a K-9's positive alert that illegal substances are present is not side-specific to the car but rather provides "probable cause to believe there [a]re drugs in the vehicle" and supports a reasonable inference "that any of the vehicle's occupants had at least constructive possession of drugs." Richard v. State, 7 N.E.3d 347, 349-50 (Ind.Ct.App. 2014) (the K-9 alerted officers to the presence of narcotics near the driver's door, while the methamphetamine was found in possession of the passenger), trans. denied (emphasis added). The passenger admitted to the possession of narcotics which were of a different type and packaged differently than the white crystal-like drugs found "tucked underneath the shifting column." Tr. Vol. 2 at 69. The passenger's drugs, which she kept in her purse, were a reddish-brown mix of heroin and fentanyl, packaged in a green dime bag; whereas the white crystal-like methamphetamine was in a clear bag on the driver's side of the vehicle, where Keeling had been operating the vehicle. Contrary to Keeling's allegation that the "clear-or a white color" residue in the neck of the passenger's "bubble" pipe was similar to the methamphetamine located under the gear shift, the record reflects that the substance in the pipe was not tested by the Indiana State Police laboratory. Tr. Vol. 2 at 66, 90. The different locations of the illegal substances, packaging, appearance, and quantities support a reasonable inference that Keeling and his passenger each had their own narcotics in the car.
[¶10] Considering Keeling's ownership of the vehicle, his proximity to the gear-shift column as the driver of the Jeep, and the specific location of the methamphetamine "tucked underneath the shifting column" on the driver's side of the center console, we conclude that the State presented sufficient evidence of probative value that Keeling had the intent and capability to reduce the drugs to his physical possession. Tr. Vol. 2 at 69; see Gee, 810 N.E.2d at 340.
[¶11] Keeling concedes that the evidence supporting his constructive possession of the handgun is "arguably stronger." Appellant's Br. at 14. After Keeling admitted that a gun was in the vehicle he had been driving, the officers retrieved a loaded handgun tucked between the driver's seat and the center console and a box of ammunition from underneath the driver's seat. Keeling's argument that the gun had been purchased by another individual and no fingerprints or DNA evidence was collected from the weapon is unavailing because Keeling's familiarity with the presence and location of the handgun is sufficient to establish his capability and intent to maintain control over the handgun. See Gray, 957 N.E.2d at 174.
[¶12] We therefore conclude that the State presented sufficient evidence beyond a reasonable doubt to support Keeling's convictions for constructive possession of methamphetamine and the handgun.
Guilty Plea
[¶13] Keeling raises a second issue. After Keeling was found guilty, he admitted to the court he had previously been convicted of dealing in methamphetamine when he possessed the handgun and methamphetamine, thereby enhancing Counts I and II. Furthermore, he conceded that he was a habitual offender. The trial court accepted his admissions and sentenced him accordingly. Keeling now challenges the validity of his plea on direct appeal.
[¶14] While "defendants who can show that they were coerced or misled into pleading guilty by the judge, prosecutor or defense counsel" may present a colorable claim for relief, "under our precedent," if Keeling "wishes to challenge his guilty plea, he cannot do so through this direct appeal." State v. Moore, 678 N.E.2d 1258, 1266 (Ind. 1997); Davis v. State, 217 N.E.3d 1229, 1234 (Ind. 2023). "One consequence of pleading guilty is restriction of the ability to challenge the conviction on direct appeal." Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996) (criminal defendants may not challenge the validity of a guilty plea to a criminal charge by way of a direct appeal.) As we have previously explained, "the issue of whether [a] defendant's guilty plea was knowing and voluntar[y] may not be decided by this court on direct appeal, but instead should be pursued by filing a petition for post-conviction relief." Davis, 217 N.E.3d at 1234 (quoting Jones v. State, 675 N.E.2d 1084, 1090 (Ind. 1996)): see also, Stringer v. State, 899 N.E.2d 748, 750 (Ind.Ct.App. 2009) ("[A] direct appeal is not the appropriate avenue for Stringer to challenge the validity of his plea of guilty to the enhancement charges against him.")
[¶15] Keeling may not challenge the validity of his guilty plea through a direct appeal as such claims must be raised in a petition for post-conviction relief. See Hoskins v. State, 143 N.E.3d 358, 361 (Ind.Ct.App. 2020).
Conclusion
[¶16] The State presented sufficient evidence to support Keeling's convictions for possession of methamphetamine and for possession of a firearm as a serious violent felon. Because Keeling's challenge to the validity of his guilty plea during the enhancement phase of the trial must be presented by way of a petition for post-conviction relief, we dismiss that part of his appeal without prejudice.
[¶17] Affirmed in part and dismissed in part without prejudice.
May, J., and Tavitas, J., concur.