Philip D. Hartsough v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 17 2018, 9:25 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John P. Tuskey Curtis T. Hill, Jr. Mishawaka, Indiana Attorney General of Indiana

Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Philip D. Hartsough, September 17, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-545 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Michael A. Appellee-Plaintiff. Christofeno, Judge Trial Court Cause No. 20C01-1702-F5-46

Altice, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018 Page 1 of 8

Case Summary [1] Philip D. Hartsough was convicted following a bench trial of possession of

methamphetamine as a Level 5 felony. He appeals and claims that the State

did not present sufficient evidence that the methamphetamine, found on the

ground near his feet during his arrest, was his. [2] We affirm.

Facts & Procedural History [3] As part of their duties on February 24, 2017, Goshen Police Department

Officers Zachary Miller and Cody Brown were assigned to serve arrest

warrants. At that time, Hartsough had one or more outstanding warrants in

Elkhart County. Officers Miller and Brown were advised, as they began their

shift, that a vehicle belonging to Hartsough was parked around the 300 block of

South Seventh Street, which “is a well-known area for . . . drug activity[,]”

particularly methamphetamine. Transcript Vol. II at 14-15. Around 4:40 a.m.,

Officers Miller and Brown went to that area and observed a parked pick-up

truck, which they identified as belonging to Hartsough. The officers noticed an

illuminated radio light inside the truck, and, using a flashlight, Officer Miller

looked inside and saw a man later identified as Hartsough “hunched over” the

steering wheel. Id. at 17. Officer Miller announced his presence and both

officers gave Hartsough verbal commands to exit the vehicle. [4] Because Hartsough was not exiting the car as ordered, Officer Miller became

concerned for officer safety, and he backed away and drew his firearm. About

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this time, Hartsough opened the door. With Officer Miller’s assistance,

Hartsough stepped out of the vehicle with his hands out and open. Hartsough

was sluggish, slow to react, and his speech was slow, which indicated to the

officers that Hartsough might be under the influence of an illegal substance. As

Hartsough stepped out, Officer Miller took his arms, and Officer Brown told

him to turn around and put his hands behind his back. Officer Brown’s body

camera was operating at the time, and photos from the video footage showed

that there was nothing on the pavement near the driver’s side door as

Hartsough was starting to step out. [5] The officers handcuffed Hartsough, and, during Officer Brown’s search of

Hartsough, he found in Hartsough’s front jacket pocket a BIC ballpoint pen

casing, which the officers recognized as an object commonly used to ingest

illegal substances. Officer Miller looked down at the ground where Hartsough

had exited the vehicle and saw, within a few inches of Hartsough’s feet, two

clear baggies, one of which contained a white, crystal-like substance and the

other contained a yellow-orange piece of paper with “N7” on it. Id. at 35.

Officer Miller picked up the baggies from the wet pavement, noting that the

baggies were dry. The crystal-like substance later tested positive for

methamphetamine. [6] On February 27, 2017, the State charged Hartsough with one count of

possession of methamphetamine, enhanced from a Level 6 to a Level 5 felony

based on a previous conviction for dealing in a controlled substance. A bench

trial was held on September 6, 2017. Prior to trial, Hartsough stipulated that

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the crystal-like substance recovered by the officers was 0.35 grams of

methamphetamine. [7] At trial, Officer Miller testified that as he and Officer Brown were walking

toward the residence on South Seventh Street where they believed Hartsough to

be staying, they saw the parked pick-up truck and approached it. He explained

that, when checking a vehicle, it was routine for officers to not only look inside

of it, but also check around the exterior of it to view what, if anything, was on

the ground in the area. Officer Miller testified that he looked on the ground

with a flashlight around the pick-up truck and saw nothing other than the

pavement and curb where the vehicle was parked. He confirmed that there was

no “foot traffic” or anyone walking by the area at the time that he and Officer

Brown were arresting Hartsough. Id. at 41. Officer Miller acknowledged that

he did not see anything drop from Hartsough’s hands, lap, body, but noted that

he was “focused on [Hartsough’s] hands.” Id. at 38. [8] Officer Brown testified to serving warrants with Officer Miller on the night in

question, noting that the first time they went to the residence on South Seventh

Street, Hartsough was not in his vehicle, but was when they returned at 4:40

a.m. Officer Brown recalled the pavement being wet at that time due to rain.

Officer Brown said that he and Officer Miller gave multiple commands for

Hartsough to exit the vehicle, but he “wasn’t complying.” Id. at 50. He

estimated it took five to eight verbal commands before Hartsough complied.

Officer Brown activated his body camera as he was standing on the passenger

side of the vehicle, before walking over to the driver’s side to arrest Hartsough.

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The camera’s video footage was admitted at trial without objection and played

for the trial court. Officer Brown testified to discovering in Hartsough’s pocket

the BIC pen casing, which he said “is commonly used to ingest narcotics” and

“is commonly referred to as a tooter.” Id. at 56. Officer Brown testified that he

did not observe Hartsough make furtive movements while in the truck, but

noted that he could not see Hartsough’s hands at that time. Officer Brown did

not see anything drop from Hartsough’s hands, lap, pocket, pants, or jacket. [9] The trial court took the matter under advisement, and on December 5, 2017,

issued an order finding Hartsough guilty as charged. In its order, the trial court

observed, “While the Defendant testified that he did not have any drugs on him

or in the vehicle, the [trial] Court found the Defendant’s testimony to be

unreliable.” Appellant’s Appendix Vol. II at 45. The trial court continued,

There is no evidence to suggest that the officers planted the methamphetamine. There is no evidence to suggest that someone else planted the methamphetamine. The only reasonable conclusion is that the Defendant [] Hartsough deposited the methamphetamine on the ground outside of his vehicle so that he could make the very argument which he made to the Court, that being that he did not know it was methamphetamine and he does not know how it got to be outside of his vehicle.

Id. at 45-46. The trial court also found “unbelievable” Hartsough’s claim that

he thought it was a complete pen that was in his pocket. Id. at 46. Following a

sentencing hearing, the trial court imposed a six-year sentence at the Indiana

Department of Correction. Hartsough now appeals.

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Discussion & Decision [10] Hartsough contends that the State failed to present sufficient evidence to

convict him of possession of methamphetamine. When reviewing a conviction

for the sufficiency of the evidence, we do not reweigh evidence or reassess the

credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). We

view all evidence and reasonable inferences drawn therefrom in a light most

favorable to the conviction and will affirm “if there is substantial evidence of

probative value supporting each element of the crime from which a reasonable

trier of fact could have found the defendant guilty beyond a reasonable doubt.”

Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). It is not

necessary that the evidence overcome every reasonable hypothesis of

innocence; rather, the evidence is sufficient if an inference may reasonably be

drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147

(Ind. 2007). [11] To convict Hartsough of Level 5 felony possession of methamphetamine as

charged, the State was required to prove that he: (1) knowingly or intentionally

(2) possessed methamphetamine, and (3) the amount of the drug was less than

five grams and an enhancing circumstance applied. See Ind. Code § 35-48-4-

6.1(a), (b)(2), 35-48-1-16.5(1). On appeal, Hartsough does not challenge that

the substance was methamphetamine, the amount of it, or that he had a prior

qualifying conviction to elevate his offense. Rather, his argument on appeal is

that the State failed to prove that the methamphetamine found on the ground

near his feet belonged to him. Hartsough urges that it is undisputed that he

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exited the vehicle with his hands out and open, and because the officers did not

see anything fall from his lap or body, or otherwise see him make furtive

gestures, there was insufficient evidence from which to conclude that Hartsough

disposed of the contraband as he stepped out of the pick-up truck. We disagree. [12] The State presented evidence that, as the officers were serving arrest warrants in

an area known for drug activity, they found Hartsough slumped over in the

driver’s seat of his vehicle. Officer Miller testified that as he approached the

parked pick-up truck, he looked, but did not see, anything on the ground

around the vehicle. Consistent with Officer Miller’s testimony, Officer Brown’s

body-camera footage did not show anything on the pavement as Hartsough

exited through the driver’s-side door. Indeed, Hartsough does not dispute that

there were no baggies on the ground near the driver’s side door before he exited

the truck. While Officer Brown was searching Hartsough, Officer Miller saw

the two clear baggies on the ground, a few inches from Hartsough’s feet. The

officers both testified that there were no people walking by the area during the

arrest. Officer Miller also testified that the pavement was wet from rain, but the

baggies were dry, supporting the inference that they had been on the ground

only for a short period of time. Although Hartsough testified that he did not

have any drugs on him or in the vehicle, the trial court found his testimony in

that regard to be “unreliable.” Appellant’s Appendix Vol. II at 45. Similarly,

although Hartsough testified he did not know that the pen found in his pocket

was hollow, the trial court found such testimony was “also [] unbelievable.” Id.

at 46.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-545 | September 17, 2018 Page 7 of 8 [13] Direct evidence of Hartsough discarding the methamphetamine is not required,

as circumstantial evidence alone is sufficient to sustain a conviction. Maul v.

State, 731 N.E.2d 438, 439 (Ind. 2000); Floyd v. State, 791 N.E.2d 206, 210 (Ind.

Ct. App. 2003), trans. denied. Based on the record before us, we find that the

State presented sufficient evidence to convict Hartsough of Level 5 felony

possession of methamphetamine. [14] Judgment affirmed.

Brown, J. and Tavitas, J., concur.

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