Curtis Colvin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Case Summary

[1] Curtis Colvin appeals his convictions for Level 4 felony possession of a firearm by a serious violent felon ¹ and Level 5 felony possession of cocaine,² raising three issues for our review:

1. Did the trial court err in failing to discharge Colvin under Indiana Criminal Rule 4(B)?

2. Did the State present sufficient evidence to support Colvin's convictions?

3. Do Colvin's convictions violate the prohibition against double jeopardy?

[2] We affirm.

Facts and Procedural History 3

[3] Colvin and Mercedes Plumley texted on August 13, 2023. After an initial conversation about sex, Plumley asked Colvin for gas money. Colvin responded, “Sale [sic] this coke,” which Plumley interpreted to mean Colvin was “trying to have [Plumley] sell his drugs for money.” Ex. Vol. 4 at 6; Tr. Vol. 2 at 170. Plumley told Colvin she does not “do things like that.” Ex. Vol. 4 at 6. Later that day, Colvin picked up Plumley in a red Dodge Charger. Plumley had seen Colvin drive the Charger in the past.

[4] That evening, a Hancock County landowner called police about a suspicious vehicle parked on his private property. Officers Cole Bohman of the New Palestine Police Department and Robert Durbin of the Hancock County Sheriff's Department responded to the call. When Officers Bohman and Durbin arrived on scene, they located a red Dodge Charger parked among trees in a field. The officers watched as two individuals—later identified as Colvin and Plumley—“create[ed] distance” from the vehicle by walking toward Officer Bohman's patrol car. Tr. Vol. 2 at 96. Colvin advised police he was the driver of the Charger and explained he was looking for a park or trail so he and Plumley could engage in “sexual relations.” Id. at 125. After running a license plate search, police learned the Charger was registered to neither Colvin nor Plumley. Colvin told police the Charger was his girlfriend's.

[5] Colvin and Officers Bohman and Durbin walked over to the parked Charger, and Colvin gave the officers consent to search the vehicle. While police conducted the search, Colvin stood near the front of the Charger and told the officers, “Do not break my shit.” Id. at 98. Police located a gap in the carpet between the center console and the floorboard near the front passenger seat. After pulling back a portion of the carpet, Officer Bohman found a handgun and a “small bundle of a white powdered substance.” Id. at 99. Subsequent testing confirmed the recovered bag contained around two grams of cocaine.

[6] On August 15, 2023, the State charged Colvin with Level 4 felony possession of a firearm by a serious violent felon and possession of cocaine enhanced to a Level 5 felony based on Colvin's possession of a firearm. At his initial hearing that same day, Colvin orally requested a “fast and speedy” trial. Id. at 6. The trial court appointed Colvin counsel and set Colvin's trial for October 17, 2023. About two months later—a week before trial—Colvin's counsel requested a continuance. The trial court granted the motion and reset Colvin's trial for November 21, 2023.

[7] On October 23—around two weeks after his counsel's continuance request—Colvin filed a pro se motion to dismiss his case. Colvin claimed he had not consented to a continuance and was entitled to discharge under Indiana Criminal Rule 4(B). Soon after, Colvin moved to proceed pro se, which the trial court permitted. Colvin's appointed counsel withdrew on November 14. At a hearing that same day, the State sought a ninety-day continuance under Indiana Criminal Rule 4(D) because it had not yet received laboratory test results. The trial court granted the State's oral motion, instructed the State to reduce its motion to writing, and reset Colvin's trial for February 20, 2024.

[8] Two days later—November 16—the trial court held a hearing on Colvin's Rule 4(B) motion. From the State's perspective, Colvin waived his Rule (4)(B) request when his counsel requested a continuance in mid-October. Even if Colvin did not waive his 4(B) request, the State claimed it was entitled to a ninety-day extension under Rule 4(D) due to a delay in receiving a lab report. The trial court took the issue under advisement.

[9] The next day, Colvin filed another motion for discharge, renewing his earlier arguments. On November 27, the trial court denied Colvin's motion for discharge and granted the State's request for a continuance under Rule 4(D). Colvin's trial remained set for February 20, 2024.

[10] In mid-December 2023, Colvin sought to be released on his own recognizance. In Colvin's view, once the State moved for a continuance under Rule 4(D), he was entitled to be released “without money bail or surety bond.” Appellant's App. Vol. 2 at 53.⁴ The trial court denied Colvin's motion.

[11] On February 16, 2024, the trial court reset Colvin's trial date for March 19, 2024. An entry on the Chronological Case Summary explained Colvin's trial was rescheduled on the trial court's own motion. Colvin did not object.

[12] Colvin's trial began on March 19, 2024, during which Colvin represented himself. After the second day of trial, a jury found Colvin guilty of Level 5 felony possession of cocaine and separately found he was in possession of a firearm. Colvin then admitted he was a serious violent felon. After entering convictions for Level 4 felony possession of a firearm by a serious violent felon and Level 5 felony possession of cocaine, the trial court sentenced Colvin to an aggregate eight-year sentence with two years suspended to probation.

1. Colvin was not entitled to discharge under Criminal Rule 4(B).

[13] Colvin first argues he was improperly denied discharge under Indiana Criminal Rule 4(B), which provides in part:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

Ind. Crim. Rule 4(B)(1) (effective to Dec. 31, 2023).⁵ A Rule 4 claim implicates two standards of review: de novo for questions of law and clear error for factual findings. Finnegan v. State, 201 N.E.3d 1186, 1192 (Ind. Ct. App. 2023), trans. denied. In conducting our review, we neither reweigh evidence nor judge witness credibility and we consider only the probative evidence and reasonable inferences supporting the judgment. Austin v. State, 997 N.E.2d 1027, 1040 (Ind. 2013). “Clear error is that which leaves us with a definite and firm conviction that a mistake has been made.” Id. (quoting State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013)).

[14] Rule 4 “implements a criminal defendant's constitutional right to a speedy trial.” Grimes v. State, 235 N.E.3d 1224, 1230 (Ind. 2024); U.S. Const. amend. VI; Ind. Const. art. 1, § 12; see also Austin, 997 N.E.2d at 1037 n.7 (noting review of a Rule 4(B) claim is “separate and distinct” from review of claimed violations of the constitutional provisions protecting the speedy-trial right). “Rule 4 places the onus on the State to bring defendants to trial and gives them a procedure to invoke their speedy-trial right.” Grimes, 235 N.E.3d at 1230. But at the same time, Rule 4 “is not intended to be a mechanism for providing defendants a technical means to escape prosecution.” Austin, 997 N.E.2d at 1037.

[15] Once a defendant makes a speedy-trial request under Rule 4(B), he must “maintain a position which is reasonably consistent with the request he has made.” Minneman v. State, 441 N.E.2d 673, 677 (Ind. 1982), cert. denied. Failure to do so risks waiver of the speedy-trial request. See Stone v. State, 531 N.E.2d 191, 194 (Ind. 1988) (explaining failure to maintain a consistent position with a speedy trial request “constitutes an abandonment of the request and the motion ceases to have legal viability”). One example of conduct inconsistent with a speedy-trial request is filing a motion for a continuance. Id.; see also Covelli v. State, 579 N.E.2d 466, 470 (Ind. Ct. App. 1991) (“A motion for continuance is hardly consistent with a speedy trial request.”), trans. denied. After asking for a continuance, a defendant must renew his speedy-trial request to avoid abandoning it. See Sholar v. State, 626 N.E.2d 547, 549 (Ind. Ct. App. 1993).

[16] At his initial hearing on August 15, 2023, Colvin orally requested a speedy trial. The trial court set Colvin's trial for October 17, 2023—about a week before the expiration of Rule 4(B)’s seventy-day deadline. On October 10, however, Colvin's counsel requested a continuance.⁶ Doing so was inconsistent with Colvin's speedy-trial request and constituted an abandonment of the request. See Stone, 531 N.E.2d at 194; see also Nicholson v. State, 768 N.E.2d 1043, 1046–47 (Ind. Ct. App. 2002) (holding a defendant waived his motion for speedy trial based on his counsel's filing of a motion to continue because doing so was inconsistent with a speedy-trial request). To avoid waiver, Colvin needed to renew his speedy-trial request, which he concedes he did not do. See Appellant's Br. at 16. The trial court therefore did not err when it denied Colvin Rule 4(B) discharge.

2. Sufficient evidence supports Colvin's convictions.

[17] Colvin next claims the State failed to present sufficient evidence to show he possessed the handgun and cocaine supporting his convictions. A sufficiency-of-the-evidence claim warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

[18] Our case law on possession is “rather straightforward: it can be either actual or constructive.” Sargent v. State, 27 N.E.3d 729, 732–33 (Ind. 2015). “Actual possession occurs when a person has direct physical control over the item.” Id. at 733. Here, neither side argues Colvin had actual possession of the handgun or cocaine. 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); see also Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997) (describing the absence of actual possession as a “common problem in drug prosecutions”). A conviction for possessing contraband may rest instead on proof of constructive possession. Sargent, 27 N.E.3d at 733. A person constructively possesses contraband when he has “(1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it.” Gray, 957 N.E.2d at 174.

A. Capability to Maintain Dominion and Control

[19] Proof that the defendant had a possessory interest in the premises on which an officer found the items in question is adequate for the trier of fact to infer the defendant had the capability to maintain dominion and control over the items. Id. “In essence the law infers that the party in possession of the premises is capable of exercising dominion and control over all items on the premises.” Gee v. State, 810 N.E.2d 338, 340–41 (Ind. 2004). This inference is permissible even when the possessory interest is not exclusive. Gray, 957 N.E.2d at 174.

[20] Even though the Charger was not registered in Colvin's name, Plumley testified she had seen Colvin drive the Charger on multiple occasions, including the day of Colvin's arrest. And when speaking with police on scene, Colvin told them he was the driver of the Charger. Plus, the recovered handgun and cocaine were between the center console and the passenger side floor mat where Colvin could reach and reduce the items to his personal possession. This is sufficient evidence to prove Colvin had the capability to maintain dominion and control of the handgun and cocaine recovered from the Charger. See Lampkins, 682 N.E.2d at 1275 (finding sufficient evidence of capability to maintain dominion and control over cocaine where a Tylenol bottle containing the cocaine was under the defendant's seat and within his reach).

B. Intent to Maintain Dominion and Control

[21] A trier of fact may also infer a defendant had the intent to maintain dominion and control over contraband from a defendant's possessory interests in the premises, even if the possessory interest is not exclusive. Gray, 957 N.E.2d at 174. But when the possessory interest is not exclusive, the State must supplement this second inference by pointing to additional circumstances that suggest the defendant's knowledge of the presence and nature of the contraband. Id. at 174–75. A non-exhaustive list of considerations 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.

[22] Before picking up Plumley, Colvin texted her, “Sale [sic] this coke.” Ex. Vol. 4 at 6. Plumley interpreted Colvin's text as a request for her to sell illegal drugs on his behalf. And while police were searching the Charger, Colvin told them, “Do not break my shit.” Tr. Vol. 2 at 98. Along with these incriminating statements, the recovered handgun and cocaine were hidden close to the driver's seat. From there, the driver could reach over the console and into the gap containing the items. The State presented sufficient evidence from which the jury could find Colvin intended to maintain control and dominion over the handgun and cocaine.

[23] In sum, the State presented sufficient evidence from which a reasonable jury could determine Colvin constructively possessed the recovered handgun and cocaine, thus supporting his convictions.

3. Colvin was not subjected to double jeopardy.

[24] Lastly, Colvin asserts his convictions violate the prohibition against double jeopardy. Whether Colvin has been subjected to double jeopardy is a question of law we review de novo. Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020).

[25] “[W]hen a defendant's single act or transaction implicates multiple criminal statutes[,]” we apply the Wadle test.⁷ Id. at 235. Before delving into Wadle's multi-part framework, we start with the language of the implicated statutes. A.W. v. State, 229 N.E.3d 1060, 1066 (Ind. 2024). Under Indiana Code Section 35-47-4-5(c), a “serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Level 4 felony.” And “a person who, without a valid prescription ․ knowingly or intentionally possesses cocaine (pure or adulterated) ․ commits possession of cocaine[.]” I.C. § 35-48-4-6(a). This offense is a Level 5 felony if “the amount of the drug involved is less than five (5) grams and an enhancing circumstance applies.” I.C. § 35-48-4-6(b)(2). “[C]ommitt[ing] the offense while in possession of a firearm” qualifies as an “enhancing circumstance.” I.C. § 35-48-1-16.5(2) (2020).

[26] Wadle step 1 asks whether the language of either implicated statute “clearly permits multiple punishment, either expressly or by unmistakable implication[.]” Wadle, 151 N.E.3d at 248 (footnote omitted). Few statutes permit multiple punishment, and the relevant statutes here are no exception. We thus proceed to Wadle step 2.

[27] When the applicable statutory language does not clearly permit multiple punishment, Wadle step 2 directs us to Indiana's included-offense statutes to determine statutory intent. Id. An included offense is an offense that:

(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

I.C. § 35-31.5-2-168 (2012); see I.C. § 35-38-1-6 (1983) (prohibiting a trial court from entering a judgment of conviction and sentence for both an offense and an “included offense”).

[28] An offense may be included in another either “inherently” or “as charged.” See A.W., 229 N.E.3d at 1067 (explaining “as charged” is synonymous with “factually included” under Wadle). To constitute an inherently included offense, the offense must fit within one of the enumerated subsections of Indiana Code Section 35-31.5-2-168. Id. An offense is included “as charged” when “the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense.”⁸ Wadle, 151 N.E.3d at 251 n.30 (quoting Young v. State, 30 N.E.3d 719, 724 (Ind. 2015)). “[W]hen assessing whether an offense is factually included, a court may examine only the facts as presented on the face of the charging instrument.” A.W., 229 N.E.3d at 1067 (emphasis omitted). In other words, Wadle step 2 “has core constraints: it does not authorize courts to probe other facts, such as evidence adduced from trial.” Id. “ ‘If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy’ and the analysis ends—full stop.” Id. (quoting Wadle, 151 N.E.3d at 248).

[29] Level 5 felony possession of cocaine is not an included offense—either inherently or as charged—of Level 4 felony possession of a firearm by a serious violent felon. True, both of Colvin's convictions involve his possession of the same handgun. But each of his convictions requires proof of an element the other does not. For example, to prove Colvin was guilty of possession of cocaine, the State had to show Colvin possessed cocaine. And to prove Colvin was guilty of possession of a firearm by a serious violent felon, the State needed to show Colvin was a serious violent felon—a status to which Colvin admitted at trial. Moreover, Colvin's offenses do not differ only in the respect that one poses a less serious harm or risk of harm than the other. Nor does one offense constitute an attempt to commit the other. Colvin was not subjected to double jeopardy.

Conclusion

[30] Colvin was neither entitled to Rule 4(B) discharge nor subjected to double jeopardy. And the State presented sufficient evidence to support his convictions.

[31] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-4-5(c) (2023).

2.   I.C. § 35-48-4-6(b)(2) (2014).

4.   In support of his claim, Colvin cited a version of the Indiana Rules of Criminal Procedure set to become effective January 1, 2024.

5.   Although Rule 4 was amended effective January 1, 2024, its relevant substance here remains unchanged. Compare Crim. R. 4(B)(1) (effective to Dec. 31, 2023) (using the term “discharged”), with Crim. R. 4(B) (effective Jan. 1, 2024) (using the term “dismissed”). Because Colvin moved for discharge before the amended rule took effect, we reference the version of Rule 4 effective to December 31, 2023.

6.   Following his counsel's continuance request, Colvin repeatedly argued he did not consent to the request. But matters of trial strategy are generally entrusted to counsel. See Broome v. State, 694 N.E.2d 280, 281 (Ind. 1998) (“When counsel's action or inaction is premised upon matters relating to trial preparation, such decisions are matters of trial strategy and the power to make binding decisions of trial strategy is generally allocated to defense counsel.”). On appeal, Colvin acknowledges “the continuance request of [his] trial counsel was within trial counsel's purview and is attributable to [Colvin].” Appellant's Br. at 16.

7.   To the extent Colvin relies on common law double jeopardy principles to support his claim, we note our Supreme Court in Wadle both expressly overruled Richardson v. State, 717 N.E.2d 32 (Ind. 1999), and in our view—and that of several other panels of this Court—“clear[ed] away” the common law double jeopardy jurisprudence developed following Richardson. See, e.g., Rice v. State, 199 N.E.3d 815, 820 (Ind. Ct. App. 2022), trans. denied; Woodcock v. State, 163 N.E.3d 863, 871 (Ind. Ct. App. 2021) (explaining the common law double jeopardy rules “are incorporated into the Wadle analysis and no longer exist independently”), trans. denied. We therefore address only the merits of Colvin's double jeopardy claim made within the Wadle framework.

8.   Colvin's information alleged:Curtis Colvin having previously been convicted of a serious violent felony, to-wit: Dealing in Cocaine or a Narcotic Drug out of Marion County Superior Court 20 under cause number 49G20-0206-FB-164773, did possess a firearm, to-wit: a Smith and Wesson handgun[.]* * *Curtis Colvin did knowingly or intentionally possess cocaine, pure or adulterated, the said cocaine weighing less than 5 grams while the said Curtis Colvin was in possession of a firearm[.]Appellant's App. Vol. 2 at 18.

Kenworthy, Judge.

Judges Mathias and Felix concur. Mathias, J., and Felix, J., concur.