ROUGH DRAFT MEMO

FOR PUBLICATION ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: T. ANDREW PERKINS STEVE CARTER
Peterson & Waggoner, LLP Attorney General of Indiana
Rochester, Indiana
KELLY A. MIKLOS
Deputy Attorney General
Indianapolis, Indiana IN THE
COURT OF APPEALS OF INDIANA KRISTOPHER ABNEY, )
)
Appellant-Defendant, )
)
vs. ) No. 25A05-0407-CR-394
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. ) APPEAL FROM THE FULTON SUPERIOR COURT
The Honorable Wayne E. Steele, Judge
Cause No. 25D01-0307-FC-103 February 15, 2005 OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Kristopher Abney (Abney), appeals his conviction
for Count I, possessing material capable of causing bodily injury by
inmate, a Class C felony, Ind. Code § 35-44-3-9.5.
We affirm. ISSUE
Abney raises four issues on appeal, which we consolidate and restate
as the following two issues:
1) Whether the State presented sufficient evidence to sustain Abney's
conviction for possessing material capable of causing bodily injury
by inmate; and
2) Whether the trial court properly sentenced Abney in light of Blakely
v. Washington. FACTS AND PROCEDURAL HISTORY At approximately 2:30 a.m. on June 22, 2003, Jail Commander Jeff
Berlasty (Commander Berlasty) of the Fulton County Jail, received a report
that the inmates of cellblock #3 refused to retire to their cells for the
nightly lock-down. Cellblock #3 consists of a common area, surrounded by
four cells, with two cells upstairs and two cells downstairs. Although
each cell only contains one bunk bed, on June 22, 2003, cellblock #3 held
seven inmates. Three inmates were required to sleep on a mattress on the
floor of their respective cells. Abney was assigned to the lower right-
hand cell of cellblock #3.
Upon his arrival at cellblock #3, Commander Berlasty performed a
search of the cells. During this search, the inmates were removed and held
in a separate area. While searching Abney's cell, Commander Berlasty
recovered, besides Abney's personal effects, an item described as an
altered binderclip. In addition, he found a small item partially inserted
into a vent in the wall of Abney's cell. Commander Berlasty characterised
this item as a shank, and described it as a hardened steel object with one
end wrapped in a face cloth secured by a string and the other end sharpened
to a point. The steel portion of this item originated from the altered
binderclip found among Abney's personal effects. Following the search,
Commander Berlasty confronted Abney with the discovery of the altered
binderclip and shank. Although Abney admitted that he knew the shank was
in the vent, he denied possession of it, and instead claimed that another
inmate had left it there.
On July 9, 2003 the State filed an information against Abney, charging
him with Count I, possessing material capable of causing bodily injury by
inmate, a Class C felony. On April 9, 2004, the State filed an amended
information. On April 21 through April 22, 2004, a jury trial was held.
At the close of the evidence, the jury returned a guilty verdict on Count
I. On July 7, 2004, after a sentencing hearing, the trial court sentenced
Abney to an executed sentence of seven years, to be served at the
Department of Correction.
Abney now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
First, Abney contends that the State did not present sufficient
evidence to sustain his conviction for possessing material capable of
causing bodily injury by inmate. Specifically, Abney claims that the State
failed to prove beyond a reasonable doubt that he constructively possessed
the device since he did not have exclusive use of his cell.
Our standard of review with regard to sufficiency claims is well-
settled. In reviewing sufficiency of the evidence claims, this court does
not reweigh the evidence or judge the credibility of the witnesses.
Williams v. State, 714 N.E.2d 671, 672-73 (Ind. Ct. App. 1999). We only
consider the evidence most favorable to the judgment and the reasonable
inferences therefrom and will affirm if there is substantial evidence of
probative value to support the conclusion of the trier-of-fact. Id. at
673. This court has held that a conviction for the crime charged may be
based on circumstantial evidence. Marrow v. State, 699 N.E.2d 675, 677
(Ind. Ct. App. 1998); Duren v State, 720 N.E.2d 1198, 1201 (Ind. Ct. App.
1999), trans. denied. Reversal is only appropriate when reasonable persons
would be unable to form inferences as to each material element of the
offense. Mabbitt v. State, 703 N.E.2d 698, 700 (Ind. Ct. App. 1998).
The offense of possessing material capable of causing bodily injury
by inmate as a Class C felony is defined by I.C. § 35-44-3-9.5, in
pertinent part, as: "[a] person who knowingly or intentionally while
incarcerated in a penal facility possesses a device, . . . that: (1) is
used; or (2) intended to be used; in a manner that is readily capable of
causing bodily injury commits a Class C felony. Thus, in order to convict
Abney, the State was required to prove that: (1) he knowingly possessed a
device while incarcerated, and (2) that the device is intended to be used
in a manner that is readily capable of causing bodily injury.
Here, the State prosecuted Abney under the theory of constructive
possession after conceding that Abney's cell was not under his exclusive
possession. It is well-established that constructive possession occurs
when a defendant has both (i) the intent to maintain dominion and control
over the device and (ii) the capability to maintain dominion and control
over the item in question. Gee v. State, 810 N.E. 2d 338, 340 (Ind. 2004).
The proof of a possessory interest in the premises on which the device is
found is adequate to show the capability to maintain dominion and control.
See id. at 341. 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. See id.; Martin v. State, 372 N.E.2d 1194, 1197 (1978) (a
house or apartment used as a residence is controlled by the person who
lives in it and that person may be found in control of any drugs discovered
therein, whether he is the owner, tenant, or merely an invitee.). This
applies regardless whether the possession of the premises is exclusive.
Gee, 810 N.E.2d at 341.
In the instant case, Commander Berlasty testified that although
cellblock #3 was overcrowded on June 22, 2003, Abney was the sole occupier
of the lower right-hand cell. Even though the record supports that inmates
were free to move between cells during the day, Abney's cell contained only
his mattress and his personal possessions. Therefore, we conclude that
Abney was in possession of his cell and thus capable of exercising dominion
and control over all items discovered on these premises. See id.
However, the law takes a different view with regard to the intent
prong of constructive possession. When a defendant's possession of the
premises on which the device is found is not exclusive, then the inference
of intent to maintain dominion and control over the device must be
supported by additional circumstances pointing to the defendant's knowledge
of the nature of the device and its presence. See id. These additional
circumstances can be found through a variety of means: (1) incriminating
statements made 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. Id.
In the case at bar, Commander Berlasty testified that the device was
partially inserted into a vent in Abney's cell with the part secured by a
cloth sticking out into the cell. He stated that even though the sharpened
end of the device was inserted into the vent, the other end was visible
from the cell and did not take long to be discovered during the search.
Commander Berlasty elaborated that the sharpened end of the device was
constructed of hardened steel, originating from an altered binderclip. The
record shows that this altered binderclip was found on the desk of Abney's
cell, amongst his other personal possessions. Furthermore, in his
statement to Sergeant Edward Beaird of the Fulton County Sheriff's
Department, Abney admitted to knowing that the device was in his cell. As
a result we conclude that Abney intended to maintain dominion and control
over the device.
Next, Abney asserts that the State failed to prove beyond a reasonable
doubt that the device was used or intended to be used in a manner readily
capable of causing bodily injury. See I.C. § 35-44-3-9.5