Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 1 of 25

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

Carlos I. Carrillo

Carrillo Law LLC

Greenwood, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

Nashid Muhammad,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

August 25, 2020

Court of Appeals Case No.

19A-CR-2397

Appeal from the Tippecanoe

Superior Court

The Honorable Randy J. Williams, 

Judge

Trial Court Cause No.

79D01-1087-F4-28

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 2 of 25

Case Summary and Issues

[1] Following a jury trial, Nashid Muhammad was found guilty of, among other 

crimes, domestic battery, a Class A misdemeanor; possession of marijuana, a 

Class B misdemeanor; and unlawful possession of a firearm by a serious violent 

felon, a Level 4 felony. The trial court sentenced Muhammad to an aggregate 

sentence of eleven and one-half years with two and one-half years suspended to 

probation. Muhammad appeals, raising the following issues for our review: (1) 

whether the trial court abused its discretion by admitting certain evidence 

allegedly obtained in violation of Muhammad’s rights under the Fourth 

Amendment to the United States Constitution and Article 1, section 11 of the 

Indiana Constitution, (2) whether the State presented sufficient evidence to 

support the above convictions, and (3) whether Muhammad’s sentence is 

inappropriate in light of the nature of his offenses and his character. We 

conclude that Muhammad’s rights were not violated under either constitutional 

provision and therefore, the trial court did not abuse its discretion in admitting 

evidence obtained from a valid search. We also conclude the State presented 

sufficient evidence to support the challenged convictions and Muhammad’s 

sentence is not inappropriate. We therefore affirm his convictions and sentence. 
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Facts and Procedural History1

[2] Muhammad and Deidra Trail were involved in a relationship and had lived 

together for approximately one year. On July 8, 2018, Muhammad threw a 

Bluetooth speaker at Trail during an argument, striking her in the forehead. As 

a result, Trail sustained an injury to her forehead that lasted “[p]robably a week 

and a half.” Transcript, Volume II at 72. Following the incident, Muhammad 

left the residence in Trail’s car, a red Hyundai.

[3] In the early morning hours of July 9, Officer Evan McCain of the Lafayette 

Police Department (“LPD”) was dispatched to an automobile accident 

involving a rolled over white Cadillac. When Officer McCain arrived on the 

scene, other officers were present, but the driver of the Cadillac had fled. Officer 

McCain ran the vehicle’s license plate through the Bureau of Motor Vehicles

(“BMV”) database and discovered Paris Hill was the registered owner of the 

vehicle. Officer McCain familiarized himself with a BMV photograph of Hill 

and began checking the area to locate him.

[4] Officer McCain had traveled approximately four blocks away from the accident 

scene when he drove by a red Hyundai and noticed an individual matching

Hill’s description riding in the backseat. Officer McCain advised dispatch that 

1 The facts in this case are comprised of testimony from the trial held on August 6, 2019, as well as evidence 

from the suppression hearing held on May 17 that is not in direct conflict with evidence introduced at the 

trial. See Kelley v. State, 825 N.E.2d 420, 426 (Ind. Ct. App. 2005). 
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he had located Hill and followed the vehicle until another officer was in the 

area. 

[5] After the driver of the Hyundai failed to signal two hundred feet prior to a turn, 

Officer McCain initiated a traffic stop. LPD Officer Israel Salazar arrived on 

the scene and the two officers approached the vehicle. Four people were in the 

vehicle: Hill and his girlfriend were sitting in the back seats; another woman, 

Amanda, was in the driver’s seat; and Muhammad was sitting in the front 

passenger seat. The officers immediately identified the “[p]lain smell of burnt 

marijuana” emanating from the passenger compartment of the vehicle. Id. at 

101. Officer Salazar also noticed that Hill had “cuts and scrapes” that were 

consistent with an accident. Id. at 35. The officers then removed Hill and his 

girlfriend from the vehicle and placed them in handcuffs “for the hit and run 

investigation and then waited on other units to get there to assist with what had 

now . . . become a narcotics investigation[.]” Id. at 23. Muhammad and 

Amanda remained inside the vehicle.

[6] After additional officers arrived, Officers McCain and Salazar re-approached 

the vehicle and this time, they noticed a pipe in the center console of the vehicle

that had burnt marijuana residue in the bowl. Id. at 30. Muhammad and 

Amanda were removed from the vehicle, handcuffed, and placed in separate 

police cars. Based on the odor of marijuana and the presence of the pipe, 

officers conducted a search of the vehicle. One officer bumped into the glove 

compartment and a loaded .22 caliber handgun fell from the glove 

compartment to the front passenger floorboard. In the trunk, officers located a 
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second loaded .22 caliber handgun, a shotgun, ammunition, and a jar 

containing a plant-like material that field tested positive for marijuana. 

[7] At some point, Trail arrived on the scene to pick up her vehicle. While talking 

with Trail, Officer McCain observed a discolored lump on her forehead, and 

she told him how she sustained the injury. Officer McCain asked Trail if she 

owned any firearms or knew where the firearms in the vehicle came from; Trail 

indicated that she did not own any firearms. 

[8] The State charged Muhammad with Count I, unlawful possession of a firearm 

by a serious violent felon, a Level 4 felony; Count II, carrying a handgun 

without a license, a Level 5 felony; Count III, domestic battery, a Class A 

misdemeanor; Count IV, carrying a handgun without a license, a Class A 

misdemeanor; Count V, possession of marijuana, a Class B misdemeanor; and 

Count VI, invasion of privacy, a Class A misdemeanor. 

[9] The trial court held a pre-trial hearing on a motion to suppress evidence filed by 

Muhammad and denied his motion. At trial, over Muhammad’s objection, the 

trial court admitted into evidence pictures of the firearms and marijuana found 

inside the red Hyundai. The jury subsequently found Muhammad guilty of 

Counts III through VI and, in the second phase of trial, the trial court found 

Muhammad guilty of Counts I and II.2 The trial court sentenced Muhammad to 

2 Due to double jeopardy concerns, the trial court dismissed Counts II and IV and entered judgment of 

conviction on the remaining counts. See Appealed Order at 2. 
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an aggregate sentence of eleven and one-half years with two and one-half years 

suspended to probation. Muhammad now appeals.

Discussion and Decision 

I. Admission of Evidence

A. Standard of Review

[10] Muhammad argues the trial court erred in denying his motion to suppress; 

however, because he brings this appeal following his trial, rather than as an 

interlocutory appeal of the denial of his motion to suppress, we review this 

appeal as a challenge to the trial court’s admission of evidence at trial. Clark v. 

State, 994 N.E.2d 252, 259 (Ind. 2013). A trial court’s decision to admit or 

exclude evidence is reviewed for an abuse of discretion. Young v. State, 980 

N.E.2d 412, 417 (Ind. Ct. App. 2012). An abuse of discretion occurs when the 

trial court’s decision is clearly against the logic and effect of the facts and 

circumstances before it or when the court has misinterpreted the law. Id. We do 

not reweigh the evidence, and we consider conflicting evidence most favorable 

to the verdict. Patterson v. State, 958 N.E.2d 478, 482 (Ind. Ct. App. 2011). We 

also consider uncontested evidence favorable to the defendant. Id. The 

constitutionality of a search is a question of law, which we review de novo. 

Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013). Similarly, determinations of 

reasonable suspicion and probable cause are reviewed de novo. Myers v. State, 

839 N.E.2d 1146, 1150 (Ind. 2005). 
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B. The Fourth Amendment 

[11] Muhammad first argues that the trial court abused its discretion in admitting 

photos of the evidence found during the search because it was obtained in 

violation of his rights under the Fourth Amendment to the United States 

Constitution, which guarantees:

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and the persons 

or things to be seized. 

This protection has been extended to the States through the Fourteenth 

Amendment. Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013). To deter state 

actors from violating the prohibition against unreasonable searches and 

seizures, evidence obtained in violation of the Fourth Amendment is generally

inadmissible in a prosecution of the person whose rights were violated. Clark, 

994 N.E.2d at 260; see also Segura v. United States, 468 U.S. 796, 804 (1984)

(noting the exclusionary rule encompasses both “primary evidence obtained as 

a direct result of an illegal search or seizure” and any “evidence later discovered 

and found to be a derivative of an illegality”). Under the Fourth Amendment, 

warrantless searches and seizures are per se unreasonable, subject to a “few 

specifically established and well-delineated exceptions.” Katz v. Unites States, 

389 U.S. 347, 357 (1967) (footnote omitted). When a defendant challenges a 
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warrantless search, it is the State’s obligation to prove the search fell within an 

exception to the warrant requirement. Clark, 994 N.E.2d at 260. 

[12] “One exception to the warrant requirement is the search incident to arrest, 

which permits ‘a search of the arrestee’s person and the area within his or her 

control.’” Durstock v. State, 113 N.E.3d 1272, 1278 (Ind. Ct. App. 2018) 

(quoting Clark, 994 N.E.2d at 261 n.10), trans. denied. An officer may conduct a 

search incident to a lawful arrest if the officer has probable cause to make an 

arrest. Curry v. State, 90 N.E.3d 677, 687 (Ind. Ct. App. 2017), trans. denied. 

Probable cause exists “when the totality of the circumstances establishes ‘a fair 

probability’—not proof or a prima facie showing—of criminal activity, 

contraband, or evidence of a crime[.]” Hodges v. State, 125 N.E.3d 578, 582 (Ind. 

2019) (quoting Illinois v.Gates, 462 U.S. 213, 238 (1983)). The determination of 

probable cause is “to be based on the factual and practical considerations of 

everyday life upon which reasonable and prudent persons act.” State v. Hawkins, 

766 N.E.2d 749, 751 (Ind. Ct. App. 2002), trans. denied. 

[13] Muhammad argues that the evidence obtained from the search of the vehicle 

should have been excluded because there was no probable cause for his arrest. 

See Appellant’s Brief at 13. We disagree. At the suppression hearing and at trial, 

Officers McCain and Salazar testified that when they approached the vehicle, 

they smelled a strong odor emanating from inside the vehicle. Both officers

further testified that, based on their training and experience, they knew the odor 

to be burnt marijuana. This evidence is sufficient to support a finding of

probable cause to search the vehicle. See Hawkins, 766 N.E.2d at 752 (stating 
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that “when a trained and experienced police officer detects the strong and 

distinctive odor of burnt marijuana coming from a vehicle, the officer has 

probable cause to search the vehicle”). After removing Hill and his girlfriend

from the vehicle, officers returned to the vehicle and observed a pipe in the 

center console containing burnt marijuana residue. Officer McCain testified 

that the pipe was in plain view and in close proximity to Muhammad. At the 

time, Muhammad was still an occupant of the vehicle seated in the front 

passenger seat making it probable that he had control over the pipe. These facts 

and circumstances would have warranted a reasonable person to believe there 

was a fair probability that Muhammad had committed a criminal act, that is, 

possession of marijuana, and thus, provided probable cause for his lawful arrest.

[14] Having determined Muhammad’s arrest was lawful, we now turn to the issue of 

whether the search incident to the arrest was proper. Muhammad contends the 

search of the vehicle was improper under the search incident to arrest exception 

because “it was unreasonable to believe that [he] (or the other occupants) would 

access the vehicle when they were already detained, placed in handcuffs, and 

put in separate squad cars.” Appellant’s Br. at 18. 

[15] The search incident to arrest exception to the warrant requirement was first 

articulated in the seminal case Chimel v. California, in which the United States 

Supreme Court held a search incident to arrest is justified only “for a search of 

the arrestee’s person and the area ‘within his immediate control’—construing 

that phrase to mean the area from within which he might gain possession of a 

weapon or destructible evidence.” 395 U.S. 752, 763 (1969). Years later, the 
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Supreme Court held that “when a policeman has made a lawful custodial arrest 

of the occupant of an automobile, he may, as a contemporaneous incident of 

that arrest, search the passenger compartment of that automobile.” New York v. 

Belton, 453 U.S. 454, 460 (1981) (footnotes omitted). Then in Arizona v. Gant, 

the Court held that “circumstances unique to the automobile context justify a 

search incident to arrest when it is reasonable to believe that evidence of the 

offense of arrest might be found in the vehicle.” 556 U.S. 332, 335 (2009).

[16] In Gant, the defendant was arrested for driving with a suspended license, 

handcuffed, and secured in the back of a police car. Police officers then 

searched his car and found drugs in the pocket of a jacket located on the 

backseat. The State justified the warrantless search as a search incident to 

arrest. The Court rejected that justification and noted that the search incident to 

arrest exception “derives from interests in officer safety and evidence 

preservation[.]” Id. at 338. The Court clarified that “[p]olice may search a 

vehicle incident to a recent occupant’s arrest only if the arrestee is within 

reaching distance of the passenger compartment at the time of the search or it is 

reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. 

at 351 (emphasis added). Applying that principle, the Court concluded that the 

search of the defendant’s car was unreasonable because “police could not 

reasonably have believed either that [the defendant] could have accessed his car 

at the time of the search or that evidence of the offense for which he was 

arrested might have been found therein[.]” Id. at 344.
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[17] Muhammad contends that Gant does not apply because he was secured away 

from the vehicle and “it was unreasonable to believe that [he] might access the 

vehicle” at the time of the search. Appellant’s Br. at 19. Although Muhammad

is somewhat correct in that Gant does say the police may search a vehicle 

incident to arrest if the arrestee is within reaching distance of the vehicle, he 

fails to acknowledge the second justification for a search incident to arrest 

identified in Gant – police may also search a vehicle if “it is reasonable to 

believe the vehicle contains evidence of the offense of arrest.” 556 U.S. at 351.

The circumstances here are different than the circumstances in Gant; that is, the 

defendant in Gant was arrested for driving with a suspended license. The Court 

noted that the police could not have reasonably found evidence of that offense 

in the vehicle. Here, Muhammad was arrested for possession of marijuana after 

officers smelled the odor of marijuana coming from the passenger compartment 

and saw the pipe containing marijuana in the center console. Given this 

evidence, it was reasonable for the officers to believe they would find additional 

evidence in the vehicle of the offense for which Muhammad was arrested and 

therefore, the search of the vehicle incident to arrest did not violate his Fourth 

Amendment rights.3

3 The State also argues that the warrantless search was justified by the automobile exception to the Fourth 

Amendment to the United States Constitution. Because we have concluded that the search was valid as 

incident to the arrest, we need not address the State’s alternative argument.
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C. Article 1, Section 11

[18] Muhammad next argues that the search of the vehicle violated his rights under 

the Indiana Constitution because the officers “did not act reasonably.” 

Appellant’s Br. at 21. Article 1, section 11 of the Indiana Constitution 

guarantees:

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable search or seizure, shall 

not be violated; and no warrant shall issue, but upon probable 

cause, supported by oath or affirmation, and particularity 

describing the place to be searched, and the person or thing to be 

seized.

[19] Although Article 1, section 11 is virtually identical to the Fourth Amendment

textually, Indiana courts interpret the state constitutional provision differently 

from the federal provision: “The legality of a governmental search under the 

Indiana Constitution turns on an evaluation of the reasonableness of the police 

conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 

356, 359 (Ind. 2005). We consider the following three factors in determining the 

reasonableness of a warrantless search: “1) the degree of concern, suspicion, or 

knowledge that a violation has occurred, 2) the degree of intrusion the method 

of the search or seizure imposes on the citizen’s ordinary activities, and 3) the 

extent of law enforcement needs.” Id. at 361. It is the State’s burden to 

demonstrate the reasonableness of the intrusion. State v. Gerschoffer, 763 N.E.2d 

960, 965 (Ind. 2002).
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[20] Beginning with the first factor in Litchfield, Muhammad notes law 

enforcement’s initial concern was the automobile accident investigation and 

contends that once officers located Hill, their degree of concern was low. See

Appellant’s Br. at 22. We, however, conclude that the degree of suspicion was 

high. Muhammad fails to acknowledge that when officers approached the 

Hyundai to conduct their investigation of the accident, both officers identified

the strong odor of burnt marijuana coming from inside the vehicle. After the 

officers removed Hill and his girlfriend from the vehicle and secured them 

elsewhere, they returned and noticed a pipe in the center console, next to 

Muhammad, that contained burnt marijuana. This evidence, taken together 

with the reasonable inferences arising from such evidence, gave Officers 

McCain and Salazar a great deal of suspicion that a crime had been committed. 

Thus, this factor weighs in favor of the State.

[21] Second, the degree of intrusion was low. The degree of intrusion is assessed 

from the defendant’s point of view. Mundy v. State, 21 N.E.3d 114, 118 (Ind. Ct. 

App. 2014). Here, Muhammad was already detained when the officers searched 

the vehicle, which belonged to his girlfriend and in which he had no ownership 

interest. See Masterson v. State, 843 N.E.2d 1001, 1007 (Ind. Ct. App. 2006) 

(considering, in evaluating the second Litchfield factor, that it was unclear to the 

police that the defendant owned the vehicle because it was registered to another 

individual), trans. denied. Furthermore, the interior search of the vehicle

occurred after midnight. See Myers v. State, 839 N.E.2d 1146, 1154 (Ind. 2005) 

(noting that, with respect to the second Litchfield factor, “the intrusion, at least 
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as to public notice and embarrassment, [can be] somewhat lessened because of 

the hour and place of the search”). Under these circumstances, the search was 

unlikely to impose a significant intrusion on Muhammad’s ordinary activities. 

Because the degree of intrusion was low, this factor also weighs in favor of the 

State.

[22] Finally, when determining the extent of law enforcement needs, we consider 

the nature and immediacy of the governmental concern. Masterson, 843 N.E.2d 

at 1007. Here, we conclude the extent of law enforcement needs was high 

because the officers had probable cause to believe one of the occupants had 

been involved in a hit and run. In addition, the officers identified the smell of 

burnt marijuana – leading them to believe the occupants were in possession of 

or concealing illegal drugs. The articulated needs of law enforcement were 

heightened and therefore, this factor also weighs in favor of the State. Under the 

totality of the circumstances, we conclude that the search of the vehicle was 

reasonable and did not violate Muhammad’s rights under Article 1, section 11 

of the Indiana Constitution.

[23] In sum, because Muhammad’s rights under the federal and state constitutions 

were not violated, the trial court did not abuse its discretion in admitting 

pictures of the evidence seized from the vehicle. 
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II. Sufficiency of the Evidence 

A. Standard of Review

[24] Muhammad challenges the sufficiency of the evidence of his possession of a 

firearm, marijuana, and battery convictions. When reviewing the sufficiency of 

the evidence required to support a criminal conviction, we do not reweigh the 

evidence or judge the credibility of the witnesses. Bailey v. State, 907 N.E.2d 

1003, 1005 (Ind. 2009). Instead, we consider only the evidence supporting the 

verdict and any reasonable inferences that can be drawn therefrom. Morris v. 

State, 114 N.E.3d 531, 535 (Ind. Ct. App. 2018), trans. denied. And we consider 

conflicting evidence most favorably to the verdict. Silvers v. State, 114 N.E.3d 

931, 936 (Ind. Ct. App. 2018). “We will affirm if there is substantial evidence of 

probative value such that a reasonable trier of fact could have concluded the 

defendant was guilty beyond a reasonable doubt.” Bailey, 907 N.E.2d at 1005. It 

is not necessary for the evidence to overcome every reasonable hypothesis of 

innocence; it is sufficient if an inference may reasonably be drawn from the 

evidence to support the verdict. Silvers, 114 N.E.3d at 936. 

B. Constructive Possession of a Firearm and Marijuana

[25] Muhammad first contends that the State presented insufficient evidence to 

support his convictions for unlawful possession of a firearm by a serious violent 
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felon and possession of marijuana.4 Specifically, he argues that the State failed 

to prove that he constructively possessed a firearm and marijuana.

[26] To convict Muhammad of unlawful possession of a firearm by a serious violent 

felon as a Level 4 felony, the State was required to prove beyond a reasonable 

doubt that Muhammad, a serious violent felon, knowingly or intentionally 

possessed a firearm. See Ind. Code § 35-47-4-5(c) (2018). And to convict 

Muhammad of possession of marijuana as a Class B misdemeanor, the State 

was required to prove beyond a reasonable doubt that Muhammad knowingly 

or intentionally possessed marijuana (pure or adulterated). See Ind. Code § 35-

48-4-11(a). 

[27] A person actually possesses contraband when they have direct physical control 

over it, but “a conviction for a possessory offense does not depend on catching 

a defendant red-handed.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). When 

the State cannot show actual possession, a conviction may rest on proof of 

constructive possession. Id. A person constructively possesses an item when 

they have both the capability and the intent to maintain dominion and control 

over the item. Id. Because there was no evidence that Muhammad physically

4 Muhammad’s argument with respect to his possession of a firearm focuses primarily on the State’s failure to 

prove he constructively possessed a firearm with respect to Count II, carrying a handgun without a license. 

See Appellant’s Br. at 23-25. However, the trial court vacated this conviction due to double jeopardy concerns

when it entered judgment of conviction for Count I, unlawful possession of a firearm by a serious violent 

felon. See Appealed Order at 2. Nonetheless, Muhammad acknowledges that his argument and analysis for 

carrying a handgun without a license also applies to his unlawful possession of a firearm by a serious violent 

felon conviction. See id. at 25. Either way, the crucial question is whether Muhammad constructively 

possessed the firearms found in the vehicle.
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possessed a firearm or marijuana, the State prosecuted Muhammad under a 

theory of constructive possession.

[28] “When constructive possession is asserted, the State must demonstrate the 

defendant’s knowledge of the contraband[, which] may be inferred from . . . the 

exclusive dominion and control over the premise containing the contraband[.]” 

Woods v. State, 471 N.E.2d 691, 694 (Ind. 1984). If the control or possession of 

the premises is non-exclusive, there must be evidence of additional 

circumstances pointing to the defendant’s knowledge of the contraband. Id.

Recognized additional circumstances include: (1) incriminating statements 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).

These circumstances are not exclusive and ultimately, the question is whether a 

reasonable fact-finder could conclude from the evidence that the defendant 

knew of the nature and presence of the contraband. Johnson v. State, 59 N.E.3d 

1071, 1074 (Ind. Ct. App. 2016).

[29] Here, Muhammad did not have exclusive possession of the vehicle because 

there were three other passengers in the vehicle at the time of the search. Cf.

Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) (holding that the defendant had 

exclusive possession of a vehicle when he was the only person in the car at the 

time he was stopped even though he alleged he had borrowed the car); Holmes v. 
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State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003) (holding a defendant did not 

have exclusive control over a vehicle when he was merely a passenger). 

Therefore, evidence of “additional circumstances” pointing to Muhammad’s 

knowledge of the nature and presence of the firearms and marijuana is required 

to support his conviction. 

[30] Although Muhammad was not in exclusive possession of the vehicle at the time 

of the stop, testimony at trial revealed that hours before, he and Trail had an 

argument at their residence and shortly thereafter, he drove away in Trail’s 

vehicle, which she allowed him to use “fairly freely[.]” Tr., Vol. II at 70. Trail 

testified that even though the vehicle belonged to her, she did not know where 

the drugs or guns came from. In addition, Muhammad was in close proximity 

to contraband, some of which was in plain view. Officers located a pipe 

containing burnt marijuana residue in plain view in the center console, which 

was next to Muhammad who was sitting in the front passenger seat. And the 

incriminating nature of the pipe was readily apparent, as Officer Salazar 

testified that he observed a “green rubber pipe with marijuana still in it.” Id. at 

35; see Gray, 957 N.E.2d at 175 (stating that a defendant’s proximity to 

contraband in plain view supports an inference of intent to maintain dominion 

or control if the contraband’s incriminating character is immediately apparent).

Furthermore, while searching the passenger compartment of the vehicle, an 

officer bumped the glove compartment and one of the .22 caliber handguns fell 

from the compartment onto the passenger side floorboard – the same location 

where Muhammad sat in the vehicle.
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[31] Based on this evidence, we conclude that a reasonable factfinder could infer 

that Muhammad knew of the nature and presence of the contraband and there 

was sufficient evidence to demonstrate that he constructively possessed a 

firearm and marijuana. 

C. Domestic Battery

[32] Muhammad also argues there was insufficient evidence to support his 

conviction for domestic battery. To convict Muhammad of domestic battery as 

a Class A misdemeanor, the State was required to prove beyond a reasonable 

doubt that he knowingly or intentionally touched Trail in a rude, insolent, or 

angry manner. See Ind. Code § 35-42-2-1.3(a) (2016). 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). “Evidence of 

touching, however slight, is sufficient to support a conviction for battery.” Ball 

v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011), trans. denied. The crux of 

Muhammad’s argument is that he did not hit or touch Trail and he did not have

the necessary intent to commit the offense. See Appellant’s Br. at 27-28. 

[33] The evidence most favorable to the verdict is that Muhammad and Trail were 

involved in an argument throughout the day on July 8, 2018. When

Muhammad was stopped by police early the next morning, Trail went to the 

scene to retrieve her vehicle. When Trail arrived, Officer McCain noticed a

discolored “lump on [her] forehead” and asked her what happened. Tr., Vol. II 

at 112. Officer McCain testified that Trail told him Muhammad threw a 
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Bluetooth speaker at her and it hit her in the head. This constitutes the requisite

“touching” contemplated in the statute. See Matthews v. State, 476 N.E.2d 847, 

850 (Ind. 1985) (“While battery requires defendant to have intended to touch 

another person, defendant need not personally touch another person since 

battery may be committed by the unlawful touching by defendant or by any 

other substance put in motion by defendant.”). Trail also testified that her

injury was painful and that the lump on her forehead lasted “[p]robably a week 

and a half.” Tr., Vol. II at 72. A factfinder could conclude this evidence, taken

together with all reasonable inferences therefrom, establishes that Muhammad 

knowingly threw a Bluetooth speaker at Trail in a rude, insolent, or angry 

manner that caused her injury. Muhammad notes that Trail recanted her 

statement to Officer McCain and testified at trial that Muhammad “threw a 

speaker across the room . . . not at me, I don’t feel, but over towards my 

direction and it didn’t hit me but I turned . . . and hit my head on the TV.” Id.

at 68-69. However, the jury was in the best position to hear all the evidence, 

weigh Trail’s testimony, and make a determination of her credibility. We will 

not second-guess the jury’s determination and to do so would require us to 

reweigh the evidence and judge witness credibility, which we cannot do. See

Bailey, 907 N.E.2d at 1005.5

5 Muhammad also argues that the State failed to prove that the offense occurred on the date alleged in the 

charging information. The State alleged that Muhammad committed battery “[o]n or about July 9, 2018” and 

Trail testified that the battery took place on July 8. Appellant’s Appendix, Volume 2 at 18. “Where, as here, 

time is not an element of the offense, the State is not required to prove the offense occurred on the precise 
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III. Inappropriate Sentence 

[34] Muhammad contends that his sentence is inappropriate because neither his 

offenses nor his character warrants the sentence imposed by the trial court. 

[35] Article 7, sections 4 and 6 of the Indiana Constitution authorize independent 

appellate review and revision of sentences through Indiana Appellate Rule 7(B). 

King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) provides, 

“The Court may revise a sentence authorized by statute if, after due 

consideration of the trial court’s decision, the Court finds that the sentence is 

inappropriate in light of the nature of the offense and the character of the 

offender.” Sentencing decisions rest within the discretion of the trial court and

should receive considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 

(Ind. 2008). “Such deference should prevail unless overcome by compelling 

evidence portraying in a positive light the nature of the offense (such as 

accompanied by restraint, regard, and lack of brutality) and the defendant’s 

character (such as substantial virtuous traits or persistent examples of good 

character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[36] Generally, the defendant bears the burden of demonstrating his sentence is 

inappropriate under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 

date alleged, and its presentation of evidence is not limited to events on that date.” Blount v. State, 22 N.E.3d 

559, 569 (Ind. 2014). The State is only required to prove the offense occurred within the statute of limitations. 

Poe v. State, 775 N.E.2d 681, 686 (Ind. Ct. App. 2002) (“Under Indiana law, the phrase ‘on or about June 23, 

2000’ clearly does not limit the State to only the events of June 23, 2000[.]”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2397 | August 25, 2020 Page 22 of 25

2006), and we may look to any factors in the record for such a determination, 

Reis v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether 

we regard a sentence as [in]appropriate at the end of the day turns on our sense 

of the culpability of the defendant, the severity of the crime, the damage done to 

others, and myriad other factors that come to light in a given case.” Cardwell, 

895 N.E.2d at 1224. 

A. Nature of the Offense

[37] We begin our analysis of the nature of the offense with the advisory sentence, 

which is the starting point selected by our legislature as an appropriate sentence 

for the crime committed. Reis, 88 N.E.3d at 1104. Muhammad was convicted of 

unlawful possession of a firearm by a serious violent felon, a Level 4 felony. 

The sentencing range for a Level 4 felony is two years to twelve years with an 

advisory sentence of six years. See Ind. Code § 35-50-2-5.5. The trial court 

sentenced Muhammad to nine years – a sentence that is above the advisory 

sentence but below the maximum sentence allowed. Muhammad was also 

convicted of domestic battery and invasion of privacy, both Class A 

misdemeanors. A person convicted of a Class A misdemeanor shall be 

imprisoned for not more than one year. See Ind. Code § 35-50-3-2. On each 

count, the trial court sentenced Muhammad to 365 days, a sentence clearly 

permitted by statute. Last, Muhammad was convicted of possession of 

marijuana as a Class B misdemeanor. A person who commits a Class B 

misdemeanor shall not be imprisoned for more than 180 days, Ind. Code § 35-

50-3-3, and here, the trial court sentenced Muhammad to 180 days. Notably, 
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the trial court could have sentenced Muhammad to a total sentence of fourteen 

and one-half years in the DOC. The trial court, however, sentenced him to 

eleven and one-half years in the DOC. Therefore, Muhammad’s total sentence 

was not as lengthy as it could have been.

[38] The nature of the offense is also found in the details and circumstances 

surrounding the offenses and the defendant’s participation therein. Perry v. State, 

78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, Muhammad and Trail got into an

argument and he threw a Bluetooth speaker at Trail’s forehead, which caused a 

discolored, painful lump on her forehead that lasted more than one week.

Muhammad then left their home in Trail’s car. Later, officers initiated a traffic 

stop and, after smelling marijuana, conducted a search of the vehicle and 

discovered marijuana and multiple loaded firearms. Although the nature of 

Muhammad’s crimes is not particularly egregious, we are unpersuaded that the 

nature of his crimes warrants a lesser sentence. Muhammad has failed to 

demonstrate that the nature of his offenses renders his sentence inappropriate. 

B. Character of the Offender

[39] “A defendant’s life and conduct are illustrative of his or her character.” Morris, 

114 N.E.3d at 539. One relevant factor in assessing character is a defendant’s 

criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). 

The significance of criminal history varies based on the gravity, nature, and 

number of prior offenses in relation to the current offense. Id. 
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[40] Here, Muhammad’s extensive criminal history began in 1993 when he was 

adjudicated a delinquent child for acts that, if committed by an adult, would 

constitute possession of a stolen vehicle. His adult criminal history consists of 

four felony convictions and three misdemeanors, several of which were 

convictions for crimes related to the instant offenses, namely carrying a 

handgun without a license, illegal possession of ammunition, and domestic 

battery. Muhammad’s criminal history illustrates a blatant disregard for the rule 

of law and shows that despite his frequent contact with our criminal justice 

system, he was not deterred from committing the instant crimes. See id.

[41] Further, the record reveals that Muhammad has a history of mental illness and 

substance abuse. At the sentencing hearing, Muhammad testified that he was 

addicted to heroin and methamphetamine and on July 9, he received a call 

from Hill, from whom he typically got drugs, informing him that Hill had been 

in a car accident and needed help. See Tr., Vol. II at 167. Muhammad stated he

“sprung to action[,]” in part, because he “figure[d he] could get [illegal drugs]

for free if [he] help[ed] and save[d Hill] out of this situation.” Id. Therefore, 

Muhammad’s involvement in the instant offenses, to some extent, was driven 

by his need to fuel his addiction illustrating that, despite his extensive criminal 

history, he continues to struggle with substance abuse and associate himself 

with people who are involved with illegal drugs.

[42] Muhammad does not offer clear examples of his good character. Although 

Muhammad has an associate degree and has maintained employment, neither 
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amount to compelling evidence that his character is so positive as to warrant a 

reduction in his sentence.

[43] Considering the nature of Muhammad’s offenses and character, we are not 

persuaded that his sentence is inappropriate. Therefore, his eleven and one-half 

year aggregate sentence is affirmed. 

Conclusion

[44] Muhammad’s rights were not violated under the Fourth Amendment to the 

United States Constitution or Article 1, section 11 of the Indiana Constitution

and therefore, the trial court did not abuse its discretion in admitting evidence 

obtained from the search of the vehicle. We also conclude the State presented 

sufficient evidence to support Muhammad’s convictions and his sentence is not 

inappropriate in light of the nature of the offenses and his character.

Accordingly, we affirm.

[45] Affirmed.

May, J., and Vaidik, J., concur.