MEMORANDUM DECISION
[1] Zachary Ingram appeals his convictions for Level 5 felony possession of a narcotic drug and Level 6 felony obstruction of justice following a jury trial. Ingram presents two issues for our review:
1. Whether the trial court abused its discretion when it admitted certain evidence at trial.
2. Whether the State presented sufficient evidence to support his conviction for possession of a narcotic drug.
[2] We affirm.
Facts and Procedural History
[3] On December 22, 2022, Ingram was living at 628 E. Main Street in Portland, Indiana, a residence that he shared with three women, Harley Ingram, Danielle Ingram, and Caytlyn Ingram. On that day, Jay County Sheriffs Department Detective Tony Lennartz assisted a probation officer with a compliance check on Danielle and Caytlyn. Inside the home, Detective Lennartz knocked on a bedroom door, and Ingram answered. Ingram told Detective Lennartz that he and Harley, who was also in the bedroom, had been “detoxing from heroin abuse” for a few days and had only left the bedroom to use the bathroom. Tr. p. 16. Detective Lennartz saw “fresh injection sites” all over the arms of Ingram and Harley. Id.
[4] Detective Lennartz then instructed Ingram, Harley, Danielle, and Caytlyn to sit in the kitchen. Because he had smelled burnt marijuana inside the residence, Detective Lennartz left to get a search warrant for the entire home. Before he could get the warrant, Officer Jeff Hopkins with the Portland Police Department called him to tell him that Ingram and Harley were caught trying to flush marijuana down a toilet. And Officer Hopkins stated that all four residents had given their consent to search the entire home.
[5] During the ensuing search of the bedroom where Ingram had been staying, Detective Lennartz found a “white powdery substance” on a nightstand and a syringe filled with a brown liquid on a dresser. Id. at 19. He also found “brown cotton balls” in “several different small containers.” Id. at 20. Subsequent forensic testing showed that one of the cotton balls had fentanyl in it. Detective Lennartz also found an eviction notice dated December 15, 2022, that listed Ingram as a tenant of the 628 E. Main Street residence.
[6] The State initially charged Ingram with five counts, but an amended information filed in November 2023 charged only three counts: Level 5 felony possession of a narcotic drug (fentanyl) (Count 1); Level 6 felony obstruction of justice (flushing a “green leafy substance”) (Count 2); and Level 6 felony possession of a controlled substance (buprenorphine) (Count 3). Appellants App. Vol. 2, p. 55. Following trial, a jury found Ingram guilty of Counts 1 and 2 but acquitted him of Count 3. The trial court entered judgment of conviction and sentenced Ingram to an aggregate five-year term. This appeal ensued.
Discussion and Decision
Issue One: Admission of Evidence
[7] Ingram contends that the trial court abused its discretion when it admitted into evidence the eviction notice, which had his name on it. A trial court has broad discretion regarding the admission of evidence, and its decisions are reviewed only for abuse of discretion. Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021). We will reverse only if the trial courts ruling was clearly against the logic and effect of the facts and circumstances before it and the errors affect a partys substantial rights. Id.
[8] Ingram argues that the eviction notice was inadmissible hearsay. Hearsay is a statement “not made by the declarant while testifying at the trial or hearing” that is “offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). At trial, the prosecutor argued that the eviction notice was “not being offered to prove the truth” of the matter asserted but was “just being offered to show, essentially, identity.” Tr. p. 22. However, during closing argument, the prosecutor stated: “The eviction notice, if you notice, that was dated December 15th. This happened on December 22nd. That implies that the defendant had been there for at least a week living there right.” Id. at 68. Thus, the State used the eviction notice for more than just evidence that Ingram had personal belongings in the bedroom where the fentanyl was found. We agree with Ingram that the eviction notice was hearsay.
[9] However, it is well settled that the erroneous admission of hearsay testimony may be harmless. See Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). As our Supreme Court has held:
When an appellate court must determine whether a non-constitutional error is harmless, [Indiana Appellate] Rule 66(A)’s “probable impact test” controls. Under this test, the party seeking relief bears the burden of demonstrating how, in light of all the evidence in the case, the errors probable impact undermines confidence in the outcome of the proceeding below. Importantly, this is not a review for the sufficiency of the remaining evidence; it is a review of what was presented to the trier of fact compared to what should have been presented. And when conducting that review, we consider the likely impact of the improperly admitted or excluded evidence on a reasonable, average jury in light of all the evidence in the case. Ultimately, the errors probable impact is sufficiently minor when—considering the entire record—our confidence in the outcome is not undermined.
Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023) (citations omitted).
[10] It is well settled that possession of contraband need not be actual but, rather, can be constructive. See, e.g., Holmes v. State, 785 N.E.2d 658, 660 (Ind. Ct. App. 2003). As we have explained:
Constructive possession is established by showing that the defendant has the intent and capability to maintain dominion and control over the contraband․ [W]hen possession of the premises is non-exclusive, the inference [of control] is not permitted absent some additional circumstances indicating knowledge of the presence of the contraband and the ability to control it. Among the recognized “additional circumstances” are: (1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the contraband; (5) contraband is in plain view; and (6) location of the contraband is in close proximity to items owned by the defendant.
Id. at 660-61 (citations omitted).
[11] Here, even ignoring the eviction notice, the State presented significant evidence to show that Ingram constructively possessed the fentanyl. Ingram told Detective Lennartz that he and Harley had been staying in the bedroom where the fentanyl was found for several days while they were detoxing. Ingram told Detective Lennartz that he would find a syringe in the bedroom, which he did, and Detective Lennartz saw fresh injection sites on Ingrams and Harleys arms. Detective Lennartz also testified, without objection, that it “appears that” Ingram was a tenant of the residence. Tr. p. 34. And he testified that the bedroom contained “[p]ersonal items of both Harley and” Ingram. Id. at 37.
[12] Detective Lennartz testified that he found brown cotton balls “in several different small containers” in the bedroom, one of which was “a little mug.” Id. at 20. He testified that he did not know whether the cotton balls had been used to absorb heroin or fentanyl until one of them was tested later. Given Ingrams physical proximity to the fentanyl-laced cotton ball, along with the evidence that he was living in that bedroom at the time of the search, any error in the admission of the eviction notice was harmless.
Issue Two: Sufficiency of the Evidence
[13] Ingram next contends that the State presented insufficient evidence to prove that he was guilty of possession of a narcotic drug. Our standard of review is well settled.
When an appeal raises “a sufficiency of evidence challenge, we do not reweigh the evidence or judge the credibility of the witnesses ․” We consider only the probative evidence and the reasonable inferences that support the [judgment]. “We will affirm ‘if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.’ ”
Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (quoting Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011)).
[14] Ingrams sole contention on appeal is that the State did not present evidence to prove that he constructively possessed fentanyl. But, as we explained above, the State presented ample evidence to show that Ingram had been living in the bedroom where the fentanyl was found. Because of that evidence, along with his physical proximity to the fentanyl, the evidence was sufficient to show Ingrams constructive possession of the fentanyl.
[15] For all these reasons, we affirm Ingrams convictions.
[16] Affirmed.
Mathias, Judge.
Altice, C.J., and Bailey, J., concur.