from the Kosciusko Circuit Court The Honorable Michael W.
Reed, Judge Trial Court Cause No. 43C01-1601-F6-61
ATTORNEY FOR APPELLANT Jay A. Rigdon Rockhill Pinnick LLP
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
Vaidik, Chief Judge.
Following a heroin overdose, the State charged Tavis Ray
Crittendon with Level 6 felony possession of a narcotic drug.
Following a bench trial, the trial judge found him guilty,
reasoning that Crittendon admitted using heroin and had to
possess the heroin in order to use it. Crittendon now
appeals, arguing that he cannot be convicted of possessing
the heroin he admitted consuming. Because this Court has
already determined that a defendant can be found guilty of
possessing the drug that was consumed (without the State
having to introduce the drug into evidence), we affirm.
and Procedural History
In the early-morning hours of January 25, 2016, Acacia Frye
called 911 when she found Crittendon, her live-in boyfriend,
unresponsive with blue lips. Acacia "immediately
recognize[d] it as a [h]eroin overdose" and started
administering CPR. Tr. p. 36.
When Deputy Christopher Francis with the Kosciusko County
Sheriff's Department arrived at the Warsaw house, medics
were working on Crittendon. Crittendon, who appeared
"heavily impaired," was talking to the medics.
Id. at 14. As the medics transported Crittendon to
the hospital, Deputy Francis spoke with Acacia because he
wanted "to figure out exactly what [Crittendon] was on
for his well-being." Id. at 13-14. Acacia told
him that there were narcotics in the house. Acacia then led
Deputy Francis to a bedroom in the attic and lifted the
mattress, revealing plastic baggies, a syringe, and a
marijuana pipe. A powder in one of the bags field-tested
positive for heroin. Acacia said she purchased the heroin the
day before in South Bend. Id. at 33.
Meanwhile, another deputy went to the hospital to speak with
Crittendon. The interview was recorded. Crittendon told the
deputy that he didn't know about the items under the
mattress. When the deputy asked Crittendon what happened, he
I, uh, slipped up. Did some, well what I thought was a little
bit of coke, some heroin. Went to sleep. Woke up to the
ambulance being there and my girlfriend freaking out.
Ex. 1. He told the deputy that he used the
cocaine and heroin with an old friend at a gas station in
Milford, a nearby town in Kosciusko County.
The State charged Crittendon with Level 6 felony possession
of a narcotic drug. Crittendon filed a written waiver of his
right to a jury trial (which was signed by both him and his
attorney), see Appellant's App. Vol. II pp.
22-23, and a bench trial was held.
At the bench trial, the State's theory was that
Crittendon possessed the heroin found under the mattress.
Defense counsel's theory was that Crittendon did not
possess the heroin found under the mattress, that he used a
different batch of heroin belonging to a friend, and that a
person cannot be convicted of possessing a drug they
consumed. The trial judge was not persuaded by defense
counsel's argument, finding that because Crittendon
admitted to using heroin ...