Court of Appeals of Indiana | Memorandum Decision 19A-CR-321 | August 26, 2019 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

John Kindley

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Samuel J. Dayton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Dennis P. Bell,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 26, 2019

Court of Appeals Case No.

19A-CR-321

Appeal from the Pulaski Superior 

Court

The Honorable Crystal A. Kocher, 

Judge

Trial Court Cause No.

66D01-1706-F6-99

Darden, Senior Judge.
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Statement of the Case

[1] Dennis P. Bell appeals his convictions of possession of methamphetamine, a 

Level 6 felony;1and possession of paraphernalia, a Class C misdemeanor.

2

 We 

affirm.

Issues

[2] Bell raises two issues, which we restate as:

I. Whether the trial court erred in denying Bell’s motion for 

discharge.

II. Whether there is sufficient evidence to support his 

convictions.

Facts and Procedural History

[3] On June 19, 2017, at 2:25 a.m., Deputy Robert P. Foerg of the Pulaski County 

Sheriff’s Office was on patrol. He stopped a car after he saw it drive left of 

center while making a sharp turn. Bell was driving the car, and Kassie Gould

was sitting in the front passenger seat. Deputy Foerg recognized them from 

past encounters.

 

1

Ind. Code § 35-48-4-6.1 (2014).

2

Ind. Code § 35-48-4-8.3 (2015).
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[4] Deputy Foerg obtained their drivers’ licenses and the car’s registration and 

license plate number. He entered the information on his car’s computer and 

determined Bell’s and Gould’s licenses were valid. The deputy also learned the 

car was registered to Sherie McCrory, who he later discovered was Bell’s 

girlfriend. Next Deputy Foerg asked for backup, and another officer arrived.

[5] Deputy Foerg returned to Bell’s car and asked him to step out for a pat down

search for officer safety. Bell complied, and the officer did not find any 

weapons. At that point, Deputy Foerg issued an oral warning to Bell for 

driving left of center and then asked if he could search the car. Bell consented

to a search. Bell denied having any illegal substances in the car.

[6] Deputy Foerg also asked Gould to step out of the car and patted her down. She 

did not have any weapons, so he next had Bell and Gould stand with the other 

officer while he searched Bell’s car. During the search, which was recorded on 

Deputy Foerg’s body camera, he found a “cut plastic straw on the front 

passenger seat which contained a white powder.” Tr. Vol. 2, p. 190. He also 

found a package of straws on the floor in front of the passenger seat. The 

deputy then found a “pen tube that looked like it had a white powdery 

substance in it as well.” Id. at 191-92. Based on his experience and training,

Deputy Foerg was aware that straws and pen tubes are items commonly used to 

ingest controlled substances. He field-tested the straw, and it tested positive for 

methamphetamine.
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[7] The officers arrested Bell and Gould. After being handcuffed, Bell mumbled

the name “Oscar,” but did not explain further. Tr. Vol. 2, p. 195. A portion of 

the straw was sent to the Indiana State Police Laboratory, and further testing 

confirmed that the straw contained methamphetamine.

[8] On June 20, 2017, the State charged Bell with possession of methamphetamine, 

a Level 6 felony; maintaining a common nuisance, a Level 6 felony;3and 

possession of paraphernalia, a Class C misdemeanor. That same day, the trial 

court issued an order determining that probable cause existed for the initial 

arrest. The trial court set bond in the sum of $5,000, 10% payable by cash or 

surety, and, apparently, set the matter for an initial hearing on July 13, 2017. 

Bell bonded out on June 20, 2017.

[9] On July 13, 2017, the trial court held an initial hearing. Bell did not appear. 

The trial court issued an order indicating that an unidentified person had 

informed the trial court that Bell was “incarcerated in the Porter County Jail.” 

Appellant’s App. Vol. II, p. 24. The order further provided that upon the 

State’s request, the trial court issued a warrant for Bell’s arrest, ordering that he 

be held without bond upon apprehension. The trial court’s Chronological Case 

Summary is void of any notation of personal contact by Bell for approximately 

the next six to seven months.

 

3

Ind. Code § 35-45-1-5 (2016).
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[10] Finally, on February 5, 2018, Bell filed with the trial court a pro se letter asking 

the court to schedule a new hearing date in his case. He apparently did not 

send a copy of the letter to the State via the prosecutor’s office. In his letter, 

Bell acknowledged he had failed to appear in court and explained he had been 

incarcerated in the Porter County Jail since July 12, 2017. He further explained 

that he expected to be released by April 2, 2018. Later that day, the trial court 

issued an order in which it interpreted Bell’s letter as a request to recall the 

arrest warrant. The trial court denied Bell’s request to recall the warrant that

had been issued on July 13, 2017.

[11] The Chronological Case Summary indicates that the arrest warrant was served 

on Bell on March 12, 2018. The trial court held an initial hearing on March 13, 

2018. At the hearing, Bell appeared pro se and informed the trial court that he 

intended to hire an attorney. The trial court scheduled a pretrial hearing for 

April 30, 2018, and set an omnibus date of May 11, 2018. The trial court did 

not set a trial date at that time. Bell asked to be released on his original bond, 

but the trial court rejected his request and set bond at $10,000, with 10 percent 

cash or surety.

[12] The trial court held a pretrial hearing as scheduled on April 30, 2018. Bell, 

again, appeared pro se. The trial court scheduled a final pretrial conference for 

June 12, 2018, but did not set a date for a jury trial.

[13] On May 4, 2018, an attorney filed an appearance on behalf of Bell and a 

motion for discovery. On June 11, 2018, Bell, by counsel, filed a motion to 
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continue the final pretrial conference, asserting that the State had failed to 

provide requested discovery. The State indicated that it had complied with his 

discovery requests on June 7, 2017. The trial court granted the motion that 

same day and rescheduled the final pretrial conference for July 30, 2018. The 

Chronological Case Summary contains the following additional entry for June 

11, 2018: “Court has Dep. Pros. Atty. Gaumer verify status of time line 

regarding Criminal rule [sic] 4 in this cause. State informs the Court that time 

begins at the Defendant’s initial hearing on March 13, 2018.” Id. at 5.

[14] On July 30, 2018, the parties appeared for the previously scheduled final 

pretrial conference. Bell, by counsel, requested a jury trial setting and further 

asked the trial court to schedule a deadline for a plea agreement. In addition, 

Bell told the trial court that he believed “there is a Criminal Rule 4 issue.” Id.

After further discussion, Bell asked the trial court to schedule a status hearing to 

allow the court and the parties to resolve the Criminal Rule 4 issue. In 

response, the trial court scheduled a status hearing for August 9, 2018, ordering 

Bell to file “any motion regarding Criminal Rule 4” within seven days of July 

30, 2018. Id. The trial court further stated, “[a]ny delay from this date forward 

is charged to the Defendant for Criminal Rule 4 purposes.” Id. The trial court 

did not schedule a jury trial date at that time.

[15] On August 8, 2018, Bell filed a motion for discharge pursuant to Criminal Rule 

4(C), with a supporting memorandum of law. On August 9, 2018, the trial 

court held a status conference as scheduled. During the status conference

hearing, the trial court scheduled a jury trial for August 24, 2018, but Bell 
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indicated that date was unacceptable because his counsel had a scheduling 

conflict. At Bell’s request, the trial court rescheduled the jury trial for August 

31, 2018. In addition, the trial court scheduled an evidentiary hearing for Bell’s 

motion for discharge, to be held on August 29, 2018. The trial court stated, 

“[t]he delay is charged to the Defendant.” Id. at 6.

[16] On August 21, 2018, the trial court rescheduled the evidentiary hearing on 

Bell’s motion for discharge for August 23, 2018. On August 24, 2018, the trial 

court issued an order denying Bell’s motion for discharge and vacating the 

August 31, 2018 trial date. In that same order, the trial court scheduled the jury 

trial for November 7, 2018.

[17] The trial court presided over the jury trial as scheduled on November 7, 2018. 

During the trial, Deputy Foerg testified, without any objection from Bell, that at 

the time of the traffic stop he, from an unnamed source, “had previously 

received information that [Bell] was manufacturing methamphetamine and 

using methamphetamine with Kassie Gould.” Tr. Vol. 2, p. 189. In addition, 

during cross-examination by Bell, the deputy further stated he was aware that,

in a separate case, Gould had pleaded guilty to possession of methamphetamine 

in connection with the June 19, 2017 traffic stop and arrest. Moreover, after a 

conference with counsel and the approval of both parties, the trial court 

instructed the jury that the trial court had taken judicial notice that Gould had 

pleaded guilty to possession of methamphetamine in connection with the June 

19, 2017 traffic stop and arrest.
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[18] The jury found Bell was guilty of possession of methamphetamine and 

possession of paraphernalia, but not guilty of maintaining a common nuisance. 

On January 8, 2019, the trial court imposed a sentence. This appeal followed.

Discussion and Decision

I. Criminal Rule 4

[19] Bell argues he was entitled to have the case dismissed because the State failed to 

bring him to trial within one year of being charged. The State responds that the 

trial court did not err in denying Bell’s motion for discharge because any delay 

was due mostly to Bell’s incarceration in another county and his failure to 

timely inform the trial court and the prosecutor of his whereabouts.

[20] An accused’s right to a speedy trial is guaranteed by article I, section 12 of the 

Indiana Constitution and by the Sixth Amendment to the United States 

Constitution. State v. Lindauer, 105 N.E.3d 211, 214 (Ind. Ct. App. 2018), trans. 

denied. Indiana Criminal Rule 4 was adopted to implement the right to a 

speedy trial. Id. The parties agree that Bell’s motion for discharge is governed 

by Indiana Criminal Rule 4(C), which provides in relevant part:

No person shall be held on recognizance or otherwise to answer

a criminal charge for a period in aggregate embracing more than 

one year from the date the criminal charge against such 

defendant is filed, or from the date of his arrest on such charge, 

whichever is later; except where a continuance was had on his 

motion, or the delay was caused by his act, or where there was 

not sufficient time to try him during such period because of 

congestion of the court calendar; . . . . Any defendant so held 

shall, on motion, be discharged.
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[21] The State thus bears the burden of bringing the defendant to trial within Rule 

4(C)’s prescribed one-year deadline. State v. Larkin, 100 N.E.3d 700, 703 (Ind. 

2018). But the defendant’s actions during the relevant time period, including 

requesting continuances or otherwise causing delays, will extend the deadline: 

“When a continuance is had on motion of the defendant, or delay in trial is 

caused by his act, any time limitation contained in [Rule 4] shall be extended by 

the amount of the resulting period of such delay caused thereby.” Ind. 

Criminal Rule 4(F). The objective of Rule 4 is to move cases along and to 

provide the defendant with a timely trial, not to create a mechanism to avoid 

trial. Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000).

[22] The State filed charges against Bell on June 20, 2017, but Bell was not brought 

to trial until November 7, 2018, 504 days later, well after the one-year 

prescribed deadline of June 20, 2018. Bell was entitled to discharge unless the

delay was attributable to him. This issue presents a question of law applied to 

undisputed facts, and our standard of review is de novo. Austin v. State, 997 

N.E.2d 1027, 1039 (Ind. 2013).

[23] The parties’ dispute focuses on the time period from July 13, 2017, when Bell 

failed to appear for his initial hearing, to February 5, 2018, when, on record, 

Bell notified the trial court in writing that he was incarcerated in another 

county. If that period of time, 207 days, is chargeable to Bell, then the trial 

deadline was extended by 207 days from June 20, 2018 to January 13, 2019, 

and the November 7, 2018 jury trial was held within the prescribed one-year

deadline, in compliance with Rule 4(C).
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[24] In Werner v. State, 818 N.E.2d 26, 27 (Ind. Ct. App. 2004), trans. denied, the 

State charged Werner with possession of marijuana. Werner appeared at 

several pretrial conferences, but on November 9, 2000, an unidentified 

individual called the offices of the county clerk to advise that Werner was 

incarcerated in another county. Werner failed to appear at a pretrial 

conference, and his bail bonding agent called the trial court’s bailiff to advise 

that Werner would be incarcerated in the other county for an indeterminate 

period of time. Subsequently, Werner was not released until May 23, 2001.

[25] The trial court resumed pretrial proceedings after Werner’s release, but Werner 

eventually objected to a rescheduled trial date and moved to dismiss under Rule 

4(C). The trial court denied the motion, and Werner sought interlocutory 

review. On appeal, the key question was whether Werner’s objection was 

timely. In the course of answering the question, a panel of this Court had to 

determine which party was responsible for the delay that occurred between 

when Werner failed to appear for a pretrial conference and when he was 

released from incarceration in the other county. Werner argued that the time 

was not chargeable to him because he had arranged for two individuals to 

contact the trial court to provide notification of his incarceration in another 

county. The Werner court determined the calls were insufficient to provide 

proper notice to the trial court and to the prosecutor, concluding that a written 

notice on the record was required. As a result, the Werner court determined the 

period of time during which Werner was incarcerated in another county was 

chargeable to Werner.
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[26] In the current case, the record reflects that the State informed the trial court of 

information, from an unknown source, that Bell was incarcerated in Porter 

County. But the record is silent as to the basis and credibility of the State’s 

information and whether it was reliable. The trial court did not receive proper 

confirmation of Bell’s incarceration until he personally provided written notice,

upon which the State and the trial court could rely. Following the holding in 

Werner, we must conclude that the 207 days that elapsed between July 13, 2017 

and February 5, 2018, until Bell provided personal written notice to the trial 

court is chargeable to him. The delay extended the prescribed deadline under 

Rule 4(C) well past the jury trial date of November 7, 2018. The State fulfilled 

its duty under Rule 4(C), and the trial court did not err in denying Bell’s motion 

for discharge.4

II. Sufficiency of the Evidence

[27] Bell claims the State failed to present sufficient evidence that he knowingly or 

intentionally possessed methamphetamine or paraphernalia. The State 

responds that there is ample evidence that Bell constructively possessed the 

straw that contained methamphetamine in this case.

 

4 Bell raises additional arguments about delays that occurred after February 5, 2018, but it is unnecessary to 

address those arguments because they did not affect the 207-day extension caused by Bell’s failure to provide 

written notification of his incarceration in another county.
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[28] Our standard of review for challenges to the sufficiency of evidence is wellsettled:

When reviewing sufficiency of evidence to support a conviction, 

we consider only the probative evidence and reasonable 

inferences supporting the trial court’s decision. It is the factfinder’s role, and not ours, to assess witness credibility and weigh 

the evidence to determine whether it is sufficient to support a 

conviction. To preserve this structure, when we are confronted 

with conflicting evidence, we consider it most favorably to the 

trial court’s ruling. We affirm a conviction unless no reasonable 

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

reasonable doubt. It is therefore not necessary that the evidence 

overcome every reasonable hypothesis of innocence; rather, the 

evidence is sufficient if an inference reasonably may be drawn 

from it to support the trial court’s decision.

Parks v. State, 113 N.E.3d 269, 272-73 (Ind. Ct. App. 2018) (citations omitted).

[29] To obtain a conviction for possession of methamphetamine as a Level 6 felony, 

the State was required to prove beyond a reasonable doubt that: (1) Bell (2) 

knowingly or intentionally (3) possessed methamphetamine (pure or 

adulterated) (4) without a valid prescription or order of a practitioner acting in 

the course of the practitioner’s professional practice. Ind. Code § 35-48-4-

6.1(a). To obtain a conviction for possessing paraphernalia as a Class C 

misdemeanor, the State was required to prove beyond a reasonable doubt that: 

(1) Bell (2) knowingly or intentionally (3) possessed an instrument, device, or 

another object that he intended to use (4) for introducing a controlled substance 

into his body. Ind. Code § 35-48-4-8.3.
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[30] A conviction for possession of contraband may be founded upon actual or 

constructive possession. Holmes v. State, 785 N.E.2d 658, 660 (Ind. Ct. App. 

2003). The State does not argue that Bell actually possessed the 

methamphetamine and straw, so we turn to constructive possession. 

Constructive possession is the actual knowledge of the presence and illegal 

character of contraband and the intent and capability to maintain dominion and 

control over it. Macklin v. State, 701 N.E.2d 1247, 1251 (Ind. Ct. App. 1998).

[31] If a person does not have exclusive control of the premises where contraband 

was found, then intent to maintain dominion and control may be inferred from 

additional circumstances that indicate that the person knew of the presence of 

the contraband. Allen v. State, 787 N.E.2d 473, 483 (Ind. Ct. App. 2003), trans. 

denied. The additional circumstances may include: (1) incriminating statements 

by the defendant; (2) attempted flight or furtive gestures; (3) a drug 

manufacturing setting; (4) proximity of the defendant to the drugs; (5) drugs in 

plain view; and (6) location of the drugs in close proximity to items owned by 

the defendant. Id.

[32] In this case, Bell was authorized to drive McCrory’s car, but he did not have 

exclusive control of the car’s premises because Gould was inside with him. We 

must examine the circumstances to determine whether Bell knew of the 

presence of the contraband and possessed the intent and capability to control it. 

The shortened straw containing methamphetamine was clearly visible on the 

passenger seat, near where Bell had been sitting, next to a pen tube. The State 

presented testimony as to how Gould was dressed, indicating she had few 
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pockets in which to hide the straw on her person. Also, there was evidence that 

a package of straws was found on the floor of the car in front of the passenger 

seat. The straw that was found on the seat, which contained white, powdery 

residue, was not concealed in a container. In addition, Deputy Foerg testified 

to the jury, without objection from Bell, that he “had previously received 

information that [Bell] was manufacturing methamphetamine and using 

methamphetamine with Kassie Gould.” Tr. Vol. 2, p. 189. Further, upon an 

agreement by both parties, the trial court was allowed to inform the jury that 

Gould had been convicted of possession of methamphetamine in connection 

with the June 19, 2017 traffic stop and arrest.

[33] This is sufficient evidence from which a jury could find beyond a reasonable 

doubt that Bell knew about the presence of the contraband and possessed the 

requisite intent and capability to control it. See Macklin, 710 N.E.2d at 1251 

(evidence sufficient to support constructive possession of cocaine; defendant 

was driver of car, and cocaine was found on driver’s seat, in the open; driver 

also provided false identification); cf. Grim v. State, 797 N.E.2d 825, 832 (Ind. 

Ct. App. 2003) (insufficient evidence to support constructive possession of a 

narcotic drug; drug was hidden in a case under the passenger seat, and there 

was no evidence the defendant (the driver) knew it was there).

Conclusion

[34] For the reasons stated above, we affirm the judgment of the trial court.

[35] Affirmed.
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Mathias, J., and Brown, J., concur.