Court of Appeals of Indiana | Memorandum Decision 71A04-1601-CR-24 May 24, 2016 Page 1 of 6

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

Marielena Duerring

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Marjorie Lawyer-Smith

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tyrone D. Miller,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 24, 2016

Court of Appeals Case No.

71A04-1601-CR-24

Appeal from the St. Joseph Superior

Court.

The Honorable Jane Woodward 

Miller, Judge.

Cause No. 71D01-1506-F3-28

Darden, Senior Judge

Statement of the Case

[1] Tyrone D. Miller appeals his conviction of possession of cocaine or a narcotic 

drug, a Level 5 felony. Ind. Code §§ 35-48-4-6 (2014), 35-48-1-16.5 (2014). We 

affirm.
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Issue

[2] Miller raises one claim, which we restate as: whether the evidence is sufficient 

to sustain his conviction.

Facts and Procedural History

[3] In early June 2015, Douglas Burch loaned his silver Jeep Liberty to Miller in 

exchange for cocaine. In the early morning hours of June 7, 2015, Zachary 

Grooms arrived at a police station in South Bend, St. Joseph County. Grooms 

reported he had been robbed by a man who drove a silver Jeep Liberty and 

wielded a handgun. He described the man as wearing tan shorts and a white 

tank top. Grooms also stated the assailant’s hair was in cornrows. Grooms

told the officers the man stole his cell phone and wallet.

[4] While speaking with Grooms, a police officer used an app to locate Grooms’

cell phone. According to the app, Grooms’ cell phone was in the area of 

Caroline and Fox Streets in South Bend. Officers who were dispatched to the 

scene saw a silver Jeep Liberty parked outside a house at that location.

[5] Police officers surrounded the house and ordered the occupants to come out. 

Victoria Miller, Miller’s wife, came outside. She declined to give the officers 

permission to enter and search. She also told the officers that she and Miller 

had been fighting for the last couple of days and were staying in separate 

bedrooms. Next, the officers sought and obtained a search warrant for the 

house. Before the search warrant arrived, an officer who was standing at the 
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northwest corner of the house heard a “thump” coming from inside the house, 

as if someone was moving furniture or bumping against a wall. Tr. p. 218.

[6] After the warrant arrived, six to eight officers opened the home’s front door and 

entered. They encountered Miller, who “came from the back bedroom area of 

the house” and surrendered. Id. at 167.

[7] Next, the officers searched the house. No one else was present. They found 

Grooms’ cell phone and wallet. Next, they entered the back bedroom of the 

house, which was the source of the “thump” an officer had heard while 

standing outside. When they examined the bed, they saw that a slit had been 

cut into the side of the mattress. A handgun was hidden inside. A size 2XL 

white tank top shirt was on the floor next to the bed.

[8] In the kitchen, another officer found digital scales and a plastic bag. The bag 

contained a white powdery substance that was later identified as cocaine. The 

officers found a letter addressed to Miller near the cocaine.

[9] The State charged Miller with armed robbery, a Level 3 felony; carrying a 

handgun without a license while having a felony conviction in the past fifteen 

years, a Level 5 felony; and possession of cocaine or a narcotic drug, a Level 5 

felony. A jury determined that Miller was not guilty of the first two charges but 

was guilty of possession of cocaine or a narcotic drug. The trial court sentenced 

Miller per the jury’s verdict, and this appeal followed.
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Discussion and Decision

[10] Miller does not challenge the officers’ search of the home, and he does not 

dispute that he owned the cocaine. Instead, he argues the evidence is 

insufficient to sustain his conviction as a Level 5 felony because he did not 

possess a firearm in the course of possessing cocaine. When reviewing a claim 

of sufficiency of the evidence, we do not reweigh the evidence or judge the

credibility of witnesses. Daugherty v. State, 43 N.E.3d 1288, 1289 (Ind. Ct. App. 

2015). Instead, we consider only the evidence supporting the judgment and any 

reasonable inferences that can be drawn from the evidence. Smart v. State, 40 

N.E.3d 963, 966 (Ind. Ct. App. 2015). We will affirm unless no rational factfinder could have found the defendant guilty beyond a reasonable doubt. Grott 

v. State, 30 N.E.3d 777, 779 (Ind. Ct. App. 2015).

[11] In order to obtain a conviction against Miller as charged for possession of 

cocaine as a Level 5 felony, the State was required to prove beyond a 

reasonable doubt that: (1) Miller (2) without a valid prescription or order of a 

practitioner (3) knowingly or intentionally possessed (4) cocaine or a narcotic 

drug (5) while also possessing a firearm. Ind. Code §§ 35-48-4-6, 35-48-1-16.5.

[12] Miller claims not to have owned, or been aware of, the handgun the police 

found in the mattress. Possession of contraband such as a firearm need not be 

actual but, rather, can be constructive. Mack v. State, 23 N.E.3d 742, 759 (Ind. 

Ct. App. 2014), trans. denied. In order to prove constructive possession, the 

State must show the defendant has both (1) the intent and (2) the capability to 
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maintain dominion and control over the contraband. Thompson v. State, 966 

N.E.2d 112, 122 (Ind. Ct. App. 2012), trans. denied.

[13] To prove the intent element, the State must demonstrate the defendant’s 

knowledge of the presence of the contraband. Id. If the defendant has 

possession of the premises where contraband is discovered, but that possession 

is not exclusive, the defendant’s knowledge may be inferred from additional 

circumstances. Id. 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 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. Ables v. State, 848 N.E.2d 293, 297 (Ind. Ct. App. 2006).

[14] In this case, Miller did not immediately leave the house when the police 

ordered all occupants to come outside. Instead, he stayed inside, and an officer 

heard noises consistent with moving furniture coming from the back bedroom

while awaiting the arrival of the search warrant. Thus, Miller engaged in 

furtive movements. When the officers finally entered the house pursuant to the 

search warrant, Miller approached them from the back bedroom, which is 

where the handgun was later found hidden in a slit cut into the mattress. 

Victoria had told the officers she and Miller were sleeping in separate 

bedrooms; that he slept in the front bedroom and she slept in the back bedroom. 

As a result, Miller was found in proximity to the handgun. In addition, his 

property was mingled with the handgun, because the police found a 2XL sized 
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tank top, which resembled the shirt Grooms saw his assailant wearing, in the 

back bedroom near the bed where the gun had been hidden. Police found a 

letter addressed to Miller in the kitchen near the cocaine and scales.

[15] Miller points to testimony by Victoria, who told the jury: (1) Miller was not 

regularly staying at her house during the time period in question; (2) she owned 

the handgun; (3) she had cut the slit in the mattress and hidden the handgun 

inside on a prior occasion; and (4) she owned the tank top shirt. This argument 

is, in substance, a request to reweigh the evidence, which our standard of 

review forbids. Further, we note Victoria denied knowing about the cocaine 

that the police found in the kitchen.

[16] There is sufficient evidence to establish beyond a reasonable doubt that Miller 

was aware of, and constructively possessed, the handgun. See Mack, 23 N.E.3d 

N.E.2d 742, 759 (Ind. Ct. App. 2014) (evidence sufficient to prove constructive 

possession where contraband was found in defendant’s room, near his personal 

property), trans. denied. As a result, the jury’s verdict must be sustained, and 

Miller’s conviction stands.

Conclusion

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

[18] Affirmed.

Najam, J., and Mathias, J., concur.