Date: 05-06-2022

Case Style:

Kevin D. Leath v. State of Indiana

Case Number: 21A-CR-02091

Judge: Cale J. Bradford

Court:

COURT OF APPEALS OF INDIANA

On appeal from The e Clinton Circuit Court

Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana

Ellen H. Meilaender
Supervising Deputy Attorney
General

Defendant's Attorney:

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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
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2091 | May 6, 2022 Page 3 of 8
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
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2091 | May 6, 2022 Page 4 of 8
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).
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2091 | May 6, 2022 Page 5 of 8
[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
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2091 | May 6, 2022 Page 6 of 8
“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
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2091 | May 6, 2022 Page 7 of 8
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
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2091 | May 6, 2022 Page 8 of 8
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.

Outcome: The judgment of the trial court is affirm.

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