Frankie L. Johnson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Frankie J. Johnson (“Johnson”) appeals his conviction, following a jury trial, for Level 4 felony possession of a narcotic drug.¹ Johnson argues that there was insufficient evidence to support his conviction. Concluding that the evidence is sufficient, we affirm the trial court's judgment.

[2] We affirm.

Issue

Whether there is sufficient evidence to support Johnson's conviction.

Facts

[3] The facts most favorable to the judgment reveal that, on August 18, 2024, Johnson was getting a ride from “a friend of a friend” (“the friend”) from Ohio to Muncie, and they stopped at Love's Truck Stop (“the truck stop”) around 5:30 a.m. (Tr. Vol. 2 at 213). Johnson went into the truck stop's store, put his backpack on the counter, and asked an employee (“the employee”) to watch his backpack while he went to the restroom. While Johnson was in the restroom, the friend entered the store, grabbed Johnson's backpack, and ran out of the store. Johnson exited the restroom, saw his friend taking the backpack, and chased after him. Once in the parking lot, Johnson and the friend engaged in a fight, and Johnson ultimately retrieved his backpack. Due to the altercation in the parking lot, which made some customers feel unsafe, the employee called the police.

[4] Richmond Police Department Officers Nathan Newton (“Officer Newton”) and Officer Tyler Saunders (“Officer Saunders”) (collectively, “the officers”) responded to the call. Upon the officers’ arrival at the truck stop, there was no longer a disturbance in the parking lot. Officer Newton spoke to the employee, who showed the officer a surveillance video screenshot of Johnson and the friend who had been involved in the backpack theft and altercation. At that time, the friend had already driven away, and Johnson remained in the truck stop parking lot area.

[5] As Officer Saunders drove through the parking lot, he saw Johnson, who had his backpack, standing approximately three feet from some fencing by the dumpsters (“the fenced dumpster area”). “Nobody else [was] around that area” when Officer Saunders saw Johnson. (Tr. Vol. 3 at 29). After speaking to Johnson, the officers ultimately detained him for an investigation and searched his backpack. Inside Johnson's backpack, the officers found a plastic bag containing methamphetamine, a black bag containing marijuana, and a scale with a white powdery residue on it. Officer Saunders then walked to the fenced dumpster area where he had seen Johnson, and the officer found, “sitting on ․ a lip on the bottom of the fencing[,]” a cigarette pack with plastic baggies sticking out. (Tr. Vol. 3 at 33). The cigarette pack contained a baggie of an “off-white purplish powder,” a baggie of an “off-white powder substance[,]” and a baggie of an “off-white, rock-like substance[.]” (Tr. Vol. 2 at 216). When Officer Saunders found the cigarette pack, he noted that it was dry despite the visible water on the ground and the dumpsters from recent rain. Officer Newton obtained the truck stop's surveillance video footage of the fenced dumpster area, and it showed Johnson entering that area. Later testing of the baggies in the cigarette pack revealed the off-white, rock-like substance to be methamphetamine and the off-white purplish powder and off-white powder substance to be fentanyl with weights of 13.75 grams and 3.01 grams, respectively.

[6] The State charged Johnson with Level 4 felony possession of a narcotic drug (based on his possession of fentanyl in an amount between ten and twenty-eight grams), Level 6 felony possession of methamphetamine, and Class B misdemeanor possession of marijuana. The State also alleged that Johnson was an habitual offender.

[7] While Johnson was incarcerated pending trial, he made several phone calls from the county jail (“the jail phone calls”). During one phone call, Johnson and an unidentified male (“the male”) discussed Johnson's pending charges and the amount of drugs that Johnson had intended to purchase. Johnson told the male that “they sayin’ it was ․ fourteen and then a Level 6 of methamphetamine ․ and ten to twenty-eight[.]” (Ex. 5 at 6:58-7:15). The male asked Johnson how he had gotten that, and Johnson responded, “Shit, I don't know ․ I must have been ballin’.”² (Ex. 5 at 7:18-7:24). The male then stated that Johnson “wasn't even going to buy that much[,]” but then laughed and said, “yeah you was, yeah you was[.]” (Ex. 5 at 7:27-7:33). In another jail phone call, Johnson told an unidentified female that the officers “found some off-white powder in my backpack and ․ that wasn't shit but some cut[.]” (Ex. 6 at 6:48-6:55).

[8] In October 2024, the trial court held a three-day jury trial, and the State presented testimony and evidence setting forth the facts as set forth above. The State introduced the video surveillance footage of the fenced dumpster area and three of Johnson's jail phone calls into evidence. Additionally, Officer Saunders testified that, after the officers had found the methamphetamine and marijuana in Johnson's backpack, he had decided to search the fenced dumpster area where he had seen Johnson because it is “a common occurrence for people to drop other things in the area ․ if they're trying to ditch it.” (Tr. Vol. 3 at 33). When Officer Saunders testified about finding the dry cigarette pack, he explained that the dry condition of the cigarette pack was significant because it suggested that it had been “just recently placed” in the area. (Tr. Vol. 3 at 33). The officer also testified that a scale, such as the one found in Johnson's backpack, was “commonly used, especially when the[re] [is a] powder residue on there, ․ to weigh out illegal narcotics when they're being sold[.]” (Tr. Vol. 3 at 32). In addition, Officer Saunders testified about the meaning of “the word cut” and explained that a person could mix “common cutting agents” such as baking soda or aspirin with fentanyl or methamphetamine in order “to have more product in the long run.” (Tr. Vol. 3 at 32).

[9] During the State's closing argument, it argued that Johnson had had constructive possession of the drugs in the cigarette pack. Additionally, the trial court instructed the jury on the capability and intent factors necessary to prove constructive possession. After the jury had deliberated, they found Johnson guilty as charged, and Johnson then admitted to being an habitual offender.

[10] The trial court imposed concurrent sentences of eight (8) years for Johnson's Level 4 felony possession of a narcotic drug conviction enhanced by eight (8) years for his habitual offender adjudication; one (1) year for his Level 6 felony possession of methamphetamine conviction; and one hundred and eighty (180) days for his Class B misdemeanor possession of marijuana conviction. Thus, the trial court ordered Johnson to serve an aggregate sentence of sixteen (16) years.

[11] Johnson now appeals.

Decision

[12] Johnson argues that the evidence was insufficient to support his conviction for Level 4 felony possession of a narcotic drug. Specifically, he contends that there was insufficient evidence to prove beyond a reasonable doubt that Johnson constructively possessed the fentanyl in the cigarette pack. We disagree.

[13] “Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (cleaned up). “A conviction is supported by sufficient evidence if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. (cleaned up). “In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it.” Id. Additionally, our Indiana Supreme Court has explained that “when determining whether the elements of an offense are proven beyond a reasonable doubt, a fact-finder may consider both the evidence and the resulting reasonable inferences.” Thang v. State, 10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).

[14] The possession of a narcotic drug statute, Indiana Code § 35-48-4-6, provides, in relevant part, that a “person who ․ knowingly or intentionally possesses ․ a narcotic drug (pure or adulterated) classified in schedule I or II, commits possession of ․ a narcotic drug, a Level 6 felony.” I.C. § 35-48-4-6(a). “The offense is a Level 4 felony if ․ the amount of the drug involved is at least ten (10) but less than twenty-eight (28) grams[.]” I.C. § 35-48-4-6(c)(1). Thus, the State was required to prove beyond a reasonable doubt that Johnson knowingly or intentionally possessed the fentanyl in an amount between ten and twenty-eight grams.

[15] Johnson challenges only the possession element of his conviction. “[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). It is well-established that possession of an item may be either actual or constructive. See Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh'g, 685 N.E.2d 698 (Ind. 1997). Constructive possession, which is applicable in this case, occurs when a 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.

[16] The capability element of constructive possession is met when the State shows that the defendant is able to reduce the controlled substance to the defendant's personal possession. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Johnson concedes that the State's evidence was sufficient to prove that he had capability to maintain dominion and control over the fentanyl.

[17] The intent element of constructive possession is shown if the State demonstrates the defendant's knowledge of the presence of the contraband. Goliday, 708 N.E.2d at 6. A defendant's knowledge may be inferred from either the exclusive dominion and control over the premises containing the contraband, or if the control is non-exclusive, evidence of additional circumstances pointing to the defendant's knowledge of the presence of contraband. Id. These additional circumstances may 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.” Gray, 957 N.E.2d at 175.

[18] Here, there was sufficient evidence to satisfy the intent element of constructive possession. The evidence revealed that after Johnson had fought with and recovered his backpack from the friend, Johnson then went to the fenced dumpster area. The cigarette pack containing the fentanyl was found in the fenced dumpster area where Johnson had been seen and was within three feet of Johnson when Officer Saunders first saw him. The area around the fenced dumpster area was wet from a recent rain, but the cigarette pack was dry, which suggested that it had been recently placed there. Johnson was the only person that Officer Saunders had observed in that area. Additionally, Johnson's statements during his jail phone call with the male could be viewed as incriminating statements. Indeed, Johnson “acknowledges that he made incriminating statements about drugs during jail calls with other individuals[.]” (Johnson's Br. 9). During the call with the male, Johnson discussed his fentanyl charge and the amount of the drug that the State had alleged that Johnson had. When the male asked Johnson how he had gotten that amount, Johnson responded, “Shit, I don't know ․ I must have been ballin’.” (Ex. 5 at 7:18-7:24). The male then stated that Johnson “wasn't even going to buy that much[,]” but then laughed and said, “yeah you was, yeah you was[.]” (Ex. 5 at 7:27-7:33). Additionally, the evidence revealed that, in Johnson's backpack, he had a digital scale with a white residue, and he acknowledged that he had a cutting agent. The evidence presented during the jury trial and the inferences drawn therefrom were sufficient for the jury, as trier of fact, to conclude that Johnson had the intent to maintain dominion and control and that he constructively possessed the fentanyl. Accordingly, we affirm Johnson's Level 4 felony possession of a narcotic drug conviction.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-6. Johnson was also convicted of Level 6 felony possession of methamphetamine and Class B misdemeanor possession of marijuana, but he does not challenge these convictions on appeal.

2.   The term “ballin’ ” or “balling” is a slang term meaning “living a lavish, flashy, or extravagant lifestyle, especially spending freely while partying.” Dictionary.com, https://www.dictionary.com/browse/balling (last visited Dec. 8, 2025).

Pyle, Judge.

Vaidik, J., and Mathias, J., concur.