Terry L. Abbott v. State of Indiana (mem. dec.), 20A03-1608-CR-1928

Police executed a search warrant at Abbott’s small home after controlled buys; officers smelled marijuana and found the home cluttered and infested.
Officers found methamphetamine (~18 grams), numerous pills (identified visually as amphetamine and alprazolam), drug paraphernalia, scales, baggies, and over $6,700 on Abbott.
Four firearms were recovered: two handguns under the living-room recliner (one with an obliterated serial number), a handgun in Abbott’s bedroom, and a rifle in the kitchen; ammunition and a magazine were in a bedroom safe.
Abbott and two other men were present; one houseguest’s bedroom had no incriminating evidence. A person in the house told an officer he had placed a handgun in the recliner, but did not claim ownership.
Abbott was convicted by a jury of Level 2 felony dealing in methamphetamine, Level 2 felony dealing in a schedule II controlled substance, Level 3 felony dealing in a schedule IV controlled substance, and Level 5 felony possession of a handgun with obliterated identification; sentenced to 28 years aggregate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for constructive possession of handgun with obliterated serial number	State: Abbott lived at the residence, drugs and weapons were found throughout the home, handgun was under the recliner where Abbott was sitting — supports dominion and intent	Abbott: Another person said he placed a handgun in the recliner; Abbott didn’t have actual possession; presence of others defeats inference of intent	Court: Evidence sufficient — possession inferred from residence control and surrounding circumstances (weapons, drugs, cash)
Motion for mistrial based on alleged burden-shifting in prosecutor’s rebuttal	State: Comment was brief, responsive to defense argument, and did not shift burden; jury was admonished and properly instructed on burden of proof	Abbott: Prosecutor suggested defense could have had pills chemically tested, improperly shifting burden to defendant	Court: No abuse of discretion in denying mistrial — statement was fleeting, made in rebuttal, jury admonished, and jury instructions corrected any possible prejudice

Knight v. State, 42 N.E.3d 990 (Ind. Ct. App. 2015) (standard of review for sufficiency of the evidence)
Houston v. State, 997 N.E.2d 407 (Ind. Ct. App. 2013) (possession convictions may rest on actual or constructive possession)
Gray v. State, 957 N.E.2d 171 (Ind. 2011) (elements of constructive possession and inferences from possessory interest)
Gee v. State, 810 N.E.2d 338 (Ind. 2004) (possessory interest in premises supports dominion inference)
Henderson v. State, 715 N.E.2d 833 (Ind. 1999) (additional circumstances to infer intent when possessory interest is not exclusive)
Hale v. State, 875 N.E.2d 438 (Ind. Ct. App. 2007) (mistrial is extreme remedy; remedial measures may suffice)
Myers v. State, 887 N.E.2d 170 (Ind. Ct. App. 2008) (denial of mistrial reviewed for abuse of discretion)
Bassett v. State, 895 N.E.2d 1201 (Ind. 2008) (gravely peril measured by probable persuasive effect of misconduct)
Dobbins v. State, 721 N.E.2d 867 (Ind. 1999) (prosecutor may not shift burden to defendant but may note lack of contradictory evidence)
Dumas v. State, 803 N.E.2d 1113 (Ind. 2004) (prosecutor may comment on absence of defense evidence if focused on lack of contradiction)
Brown v. State, 746 N.E.2d 63 (Ind. 2001) (comment on lack of defense evidence is proper when framed as absence of contradiction)