Daimon Oshai Harris, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Memorandum Decision by Judge May

[1] Daimon Oshai Harris appeals following his convictions of Level 2 felony dealing in cocaine,¹ Level 2 felony dealing in methamphetamine,² and Level 4 felony unlawful possession of a firearm by a serious violent felon (“SVF”),³ and his adjudication as a habitual offender.⁴ He raises three issues, which we reorder and restate as:

1. Whether the trial court abused its discretion when it admitted into evidence redacted paperwork from the Marion Superior Court;

2. Whether the trial court abused its discretion when it denied Harris's motion for mistrial after the State momentarily displayed an unredacted version of the paperwork during closing argument; and

3. Whether the State presented sufficient evidence that Harris constructively possessed the cocaine and methamphetamine found in Harris's bedroom.

We affirm.

Facts and Procedural History 5

[2] In August 2022, Jesse Hatcher allowed Harris and Harris's girlfriend ⁶ to live as guests in Hatcher's two-bedroom house on Kessler Boulevard North in Indianapolis. The front door of Hatcher's house opened into the living room, and a short hallway led from the living room to the back of the house. Hatcher slept in the house's primary bedroom located on the left side of the hallway, and Harris and his girlfriend occupied the second bedroom located at the end of the hallway. Shortly thereafter, Harris's girlfriend moved out, but Hatcher allowed Harris to remain in his house. Hatcher did not charge Harris rent, but Harris would give Hatcher cocaine. At some point, Sade Smith traveled from Georgia to Indianapolis and began staying with Harris in the back bedroom in Hatcher's house.

[3] On September 9, 2022, an Indianapolis Metropolitan Police Department (“IMPD”) SWAT team executed a search warrant for Hatcher's house. One group of officers entered the house through the front door. They encountered several individuals sitting in the living room and ordered everyone to lie on the ground. A second group of officers went around to the back of the house. They threw a flash bang grenade through the back bedroom window, and Smith and Harris crawled out of the back bedroom into the hallway.

[4] In the living room, the officers observed a glass crack pipe on the coffee table and a bag of crack cocaine nearby. Inside Harris's bedroom, the officers found a gun and a cell phone under one of the bed's pillows. The officers also observed a Gucci box and a handbag sitting on top of the dresser in the bedroom. Inside the Gucci box, the officers discovered a men's-style belt and over an ounce of cocaine. The handbag contained Smith's driver's license and marijuana. Inside the dresser, the officers discovered digital scales, loose cash, plastic sandwich bags, two cell phones, and a bag containing over nine grams of methamphetamine. The officers also discovered paperwork addressed to Harris from the Marion Superior Court inside a backpack on the bedroom floor, and a debit card in the name of “BG Harris” inside the pocket of a jacket hanging on the wall. (Tr. Vol. 3 at 125.) Harris's clothing was also hanging in the closet.

[5] The State charged Harris with Level 2 felony dealing in cocaine, Level 2 felony dealing in methamphetamine, and Level 4 felony unlawful possession of a firearm by an SVF, and the State alleged Harris qualified for the habitual offender sentence enhancement.⁷ The trial court held a jury trial beginning on January 17, 2023. Harris elected to proceed pro se during the first day of his jury trial. He objected when the State sought to introduce a photograph of the paperwork from the Marion Superior Court found in Harris's bedroom during execution of the search warrant. The paperwork indicated that Harris was on probation at the time the officers executed the search warrant. The trial court ordered the State to partially redact the photograph, and the State offered the following redacted version of Exhibit 40:

Tabular or graphical material not displayable at this time.

(Ex. Vol. I at 42.) Harris objected again, but the trial court overruled the objection and admitted the redacted photograph.

[6] On the second day of trial, Harris asked the trial court to appoint an attorney to represent him for the remainder of the trial, and the trial court granted Harris's motion. Attorney Eric J. Henricks then took over Harris's representation. Hatcher testified that he used one of the drawers in the dresser located in the room where Harris stayed as a “junk drawer” and stored old paystubs and DVDs inside it. (Tr. Vol. 4 at 64.) Hatcher also acknowledged that people sometimes stored items in his house without his knowledge. For example, he discovered that an unidentified individual had stored plastic containers full of clothes in his basement.

[7] During the State's closing argument, the State momentarily displayed an unredacted version of State's Exhibit 40.⁸ Harris asked for a sidebar conference, and the State acknowledged its error. The State explained: “I was on it just for a brief second. I'm sorry. I tried to use the one we used earlier and I couldn't find it.” (Id. at 92.) The parties and the trial court then discussed the best way to proceed:

[Harris]: I'm going to be asking for an admonishment.

THE COURT: Okay.

* * * * *

THE COURT: Here's what my question is. That was up there for about a half a second. They are not going to see it again.

[Harris]: Yeah. I understand that.

THE COURT: Okay. So if we – what we're about to do is make a big deal about what? Tell me so –

[Harris]: Well, I think the admonishment should be the jury should only consider the (inaudible) evidence and not any (inaudible).

[State]: Yeah. I think that's fair.

* * * * *

THE COURT: Okay. All right. So what I don't want to do is say, hey, there's a thing that says probation on the screen. Right.

[Harris]: Yeah.

* * * * *

[State]: EJ, good catch. Thanks.

(Id. at 92-94.) The trial court admonished the jury:

Ladies and gentlemen, as the deputy prosecutor's making his argument, he's been putting photos up on the screen. There was a photo that flashed on the screen for a moment that had not been placed into evidence. And so I would admonish you, the jury, to only consider the things that have been properly placed into evidence and disregard anything that had not been.

(Id. at 94.) After the trial court read the admonishment, Harris moved for a mistrial. The trial court denied Harris's motion, and the parties proceeded with closing arguments.

[8] The jury returned verdicts finding Harris guilty of Level 2 felony dealing in cocaine, Level 2 felony dealing in methamphetamine, and possession of a firearm. Harris then admitted that he was an SVF, and the trial court entered a judgment of conviction of Level 4 felony possession of a firearm by an SVF. Harris also admitted that he was a habitual offender. With respect to Harris's conviction of Level 2 felony dealing in cocaine, the trial court imposed a term of 17 years and 180 days and then enhanced the sentence by an additional 10 years because of the habitual offender finding. The trial court also sentenced Harris to a term of 17.5 years as a result of his conviction of Level 2 felony dealing in methamphetamine and a term of 6 years because of his conviction of unlawful possession of a firearm by an SVF. The trial court ordered Harris to serve all his sentences concurrently for an aggregate term of 27 years and 180 days.

Discussion and Decision

1. Admission of Evidence

[9] Initially, we address Harris's argument that the trial court erred by admitting State's Exhibit 40, the redacted photograph of paperwork from the Marion Superior Court that was found in the backpack in Harris's bedroom. Harris asserts the State's redactions were insufficient, and therefore, the trial court abused its discretion by admitting the photograph. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Mack v. State, 23 N.E.2d 742, 750 (Ind. Ct. App. 2014), trans. denied. “A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court or if the court misapplies the law.” Id. “However, when a party argues the admission of evidence constituted a constitutional violation, we apply a de novo standard of review.” Miller v. State, 201 N.E.3d 683, 687 (Ind. Ct. App. 2022).

[10] Indiana Evidence Rule 404(b)(1) provides: “Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” This Rule safeguards the presumption of innocence and “prevents the jury from indulging in the ‘forbidden inference’ that a criminal defendant's ‘prior wrongful conduct suggests present guilt.’ ” Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019) (quoting Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999)). Further, Indiana Evidence Rule 403 states: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Evidence of a prior crime is “presumptively prejudicial” and “[e]ven where a prior criminal act is relevant to a material fact, the potential for unfair prejudice dictates that the evidence of the prior misconduct be limited to that necessary to prove the disputed fact.” Thompson v. State, 690 N.E.2d 224, 236 (Ind. 1997).

[11] Harris contends State's Exhibit 40 “still contained the words ‘Marion Superior Court,’ and ‘Cause No,’ which would have alerted the jury to the fact that Harris had prior involvement with the criminal justice system.” (Appellant's Br. at 11.) He argues “[t]he words ‘Marion Superior Court’ and ‘Cause No..’ had no probative value regarding the issue of constructive possession.” (Id. at 20.) Redaction is “common and ordinary” when an otherwise admissible document also includes inadmissible information. See, e.g., Tavake v. State, 131 N.E.3d 696, 706-07 (Ind. Ct. App. 2019) (no abuse of discretion when trial court admitted redacted correctional records), trans. denied. The redactions kept the jury from learning about Harris's probationary status. The words “Marion Superior Court” and “Cause No.” do not necessarily indicate involvement with the criminal justice system.⁹ As the State postulates: “Many people have ‘court paperwork’ in their homes from traffic tickets, domestic relations cases, property cases, estate cases, small claims matters, and more.” (Appellee's Br. at 22.) Even though other evidence tied Harris to the bedroom, the court paperwork was still relevant because it also linked Harris to the bedroom, and the State's theory of the case was that Harris constructively possessed the narcotics found in the bedroom because he was the bedroom's primary occupant. The trial court did not abuse its discretion in admitting Exhibit 40. See, e.g., Johnson v. State, 725 N.E.2d 864, 867 (Ind. 2000) (holding deputy prosecutor's question to police officer asking the officer about his prior knowledge of the defendant constituted a “fragmentary at best” reference to the defendant's prior misconduct).

2. Motion for Mistrial

[12] Harris also contends the State's display of the unredacted Exhibit 40 during its closing argument was “an evidentiary harpoon” that required a mistrial. (Appellant's Br. at 25.) “A mistrial is an extreme remedy warranted only when no other curative measure will rectify the situation.” Pugh v. State, 52 N.E.3d 955, 971 (Ind. Ct. App. 2016), trans. denied. “A trial court is in the best position to determine whether a mistrial is warranted because it evaluates first-hand all relevant facts and circumstances at issue and their impact on the jury. Accordingly, we review the trial court's denial of a motion for mistrial for an abuse of discretion.” Id. (internal citation omitted).

[13] “An evidentiary harpoon occurs when the State deliberately places inadmissible evidence before the jury to prejudice the jurors against the defendant.” Turner v. State, 216 N.E.3d 1179, 1184 (Ind. Ct. App. 2023). To succeed in proving an evidentiary harpoon, the defendant must demonstrate “1) the prosecution acted deliberately to prejudice the jury and 2) the evidence was inadmissible.” Jewell v. State, 672 N.E.2d 417, 424 (Ind. Ct. App. 1996), trans. denied. The defendant need not show he would have been found not guilty but for the State's introduction of the evidentiary harpoon, but to obtain relief, the defendant must show the evidentiary harpoon placed him “in a position of grave peril to which he should not have been subjected.” Id. “The gravity of peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision, not the degree of impropriety of the conduct.” Shaffer v. State, 674 N.E.2d 1, 6 (Ind. Ct. App. 1996), trans. denied.

[14] Harris asks us to infer that the State deliberately put the unredacted version of Exhibit 40 before the jury from the deputy prosecutor's statement that “I tried to use the one we used earlier and I couldn't find it.” (Tr. Vol. 4 at 92.) However, there is no indication in the record that the trial judge thought the State acted deliberately. In addition, the deputy prosecutor's immediate apology and comment to Harris's counsel of “good catch,” (id. at 94), suggest the display was accidental. Moreover, the State's display of the unredacted version of Exhibit 40 was very brief. The trial court observed that the unredacted version “was up there for about half a second.” (Id. at 93.) The deputy prosecutor stated that he “was on it just for a brief second.” (Id. at 92.) Harris even acknowledged the document “was briefly visible[.]” (Id. at 116.) Harris immediately requested an admonishment, and any prejudicial impact was likely cured when the trial court instructed the jury to consider only the photographs that were properly introduced into evidence. See Tyson v. State, 386 N.E.2d 1185, 1192 (Ind. 1979) (“On appeal, we must presume that the jury obeyed the court's instructions in reaching its verdict.”). We are not convinced the State's momentary display of the unredacted version of Exhibit 40 was deliberate or that it placed Harris in a position of grave peril. See, e.g., Roberts v. State, 712 N.E.2d 23, 35 (Ind. Ct. App. 1999) (holding there was no indication alleged evidentiary harpoon was precipitated by any deliberate action of the State or placed the defendant in grave peril), trans. denied. Therefore, we hold the trial court's admonishment was sufficient and the trial court did not abuse its discretion when it denied Harris's motion for a mistrial. See, e.g., Isom v. State, 31 N.E.3d 469, 481 (Ind. 2015) (holding trial court's admonishment was sufficient and trial court did not abuse its discretion by denying defendant's motion for mistrial), reh'g denied, cert. denied, 577 U.S. 1137 (2016).

3. Sufficiency of Evidence

[15] Third, Harris argues the State failed to present sufficient evidence that he constructively possessed the drugs found in his bedroom. When faced with challenges to the sufficiency of evidence, we apply a “well settled” standard of review that leaves determinations of the weight of the evidence and credibility of the witnesses to the fact-finder. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). “We consider only the evidence most favorable to the trial court's ruling and will affirm a defendant's conviction unless ‘no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.’ ” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).

[16] A person commits Level 2 felony dealing in cocaine if the person possesses over ten grams of cocaine with the intent to deliver it. Ind. Code § 35-48-4-1(e). Likewise, someone commits Level 2 felony dealing in methamphetamine if the person possesses at least five, but less than ten, grams of methamphetamine and an enhancing circumstance applies. Ind. Code § 35-48-4-1.1(e). One enhancing circumstance is if the person committed the offense while in possession of a firearm. Ind. Code § 35-48-1-16.5(2). The State satisfies the possession element of each offense by showing that the defendant had either actual or constructive possession of the drugs. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “A person actually possesses contraband when she has direct physical control over it.” Id. “A person constructively possesses contraband when the person has (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it.” Id.

[17] Even when the defendant's possessory interest in the property is not exclusive, the trier of fact may still infer the defendant's intent to maintain dominion and control over the contraband, but “the State must support this second inference with additional circumstances pointing to the defendant's knowledge of the presence and the nature of the item.” Id. at 174-75. Such additional circumstances include:

(1) a defendant's incriminating statements; (2) a defendant's attempting to leave or making furtive gestures; (3) the location of contraband like drugs in settings suggesting manufacturing; (4) the item's proximity to the defendant; (5) the location of contraband within the defendant's plain view; and (6) the mingling of contraband with other items the defendant owns.

Id. at 175.

[18] Harris contends that, “[i]n the month leading up to the search, multiple people, including Harris, had been using the bedroom where the dresser was.” (Appellant's Br. at 10.) He notes “Smith's purse was on top of the dresser immediately next to the box containing drugs, and Hatcher admitted to keeping belongings in the dresser where the drugs were found.” (Id.) However, Harris was the bedroom's principal occupant. His debit card and court paperwork were found inside the bedroom, and Hatcher testified that he had allowed Harris to stay in the bedroom for about a month before officers executed the search warrant. While Smith also stayed in the bedroom for a short period of time, she primarily lived in Georgia. The only item in the bedroom that belonged to her was the handbag found on top of the dresser. Smith testified Harris used the bedroom's dresser, and when officers searched the dresser, they found methamphetamine, cash, a scale, and plastic sandwich bags, which are often used to package narcotics for sale. The officers also found cocaine inside a Gucci box containing a men's style belt, and Harris's act of giving cocaine to Hatcher indicates Harris had access to cocaine. Thus, we hold that the State presented sufficient evidence for a jury to find Harris constructively possessed the narcotics found in his bedroom. See, e.g., Shorter v. State, 144 N.E.3d 829, 840 (Ind. Ct. App. 2020) (holding defendant constructively possessed firearm and drugs when the contraband was found inside a backpack alongside other items belonging to the defendant, including the defendant's court documents), trans. denied.

Conclusion

[19] The trial court did not abuse its discretion when it admitted State's Exhibit 40 because any reference to Harris's prior criminal behavior was redacted and the document was relevant because it tied Harris to the bedroom where officers found cocaine and methamphetamine. In addition, the trial court did not abuse its discretion when it denied Harris's motion for a mistrial after the State briefly displayed an unredacted version of State's Exhibit 40 during its closing argument because the trial court's subsequent admonishment sufficiently cured the error. Lastly, the State presented sufficient evidence that Harris constructively possessed the drugs found in his bedroom. We accordingly affirm the trial court.

[20] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-1(e) (2017).

2.   Ind. Code § 35-48-4-1.1(e) (2017).

3.   Ind. Code § 35-47-4-5(c) (2020).

4.   Ind. Code § 35-50-2-8 (2017).

6.   Hatcher did not know Harris before allowing him to live in his house, but Hatcher knew Harris's girlfriend because she was related to one of Hatcher's friends.

7.   The State also charged Harris with Level 3 felony possession of cocaine and Level 4 felony possession of methamphetamine, but the State later dismissed those charges.

8.   The jury box was equipped with small, individualized screens on which each juror could view the State's presentation accompanying its closing argument.

9.   The State argues in a footnote that Harris's specific objection to the words “Marion Superior Court” and “Cause No.” was waived because “Harris did not object on this basis and request other redactions in the trial court.” (Appellee's Br. at 22 n.2.) However, we disagree that Harris's argument was waived. Harris was not required to ask for additional redactions when he objected to Exhibit 40, and the trial court understood the nature of his objection—that he did not want the jury to learn about his prior bad acts—and the trial court ruled accordingly.

May, Judge.

Judges Bailey and Foley concur. Bailey, J., and Foley, J., concur.