MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 30 2020, 11:33 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Devin Bowman, March 30, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2574 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clark H. Rogers, Appellee-Plaintiff. Judge Trial Court Cause No. 49G25-1811-F6-40678
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 1 of 7 Statement of the Case [1] Devin Bowman appeals his conviction for possession of a narcotic, as a Level 6
felony, following a jury trial. Bowman presents one issue for our review,
namely, whether the State presented sufficient evidence to support his
conviction.
[2] We affirm.
Facts and Procedural History [3] In November 2018, Bowman was living in his grandmother’s trailer while
serving a sentence on community corrections. On November 15, Marion
County Sheriff’s Deputy Steve Hoffman and Marion County Community
Corrections Field Officer Larry Taylor conducted a home visit in order to
search Bowman’s residence. When the officers arrived, Bowman’s
grandmother let them in and informed them that Bowman was in his bedroom.
Also present in Bowman’s bedroom was his girlfriend, Debra Balasquide. The
officers knocked on the bedroom door and announced themselves. Deputy
Hoffman then “heard some commotion in the room,” and it took “a while” for
Bowman to answer the door. Tr. at 62.
[4] When Bowman opened the door, Deputy Hoffman “immediately” noticed that
Bowman was “out of it” and that he had “pinpoint pupils,” which indicated to
Deputy Hoffman that Bowman was “high on an opiate.” Id. at 62, 63. He also
observed that Balasquide was in the same condition as Bowman. At that point,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 2 of 7 Deputy Hoffman directed Bowman and Balasquide to wait with Officer Taylor
in the front room so that he could search Bowman’s bedroom.
[5] When Deputy Hoffman entered the room, he noticed several items on a table,
including “waxy papers,” which Deputy Hoffman believed were used to
transport heroin. Id. at 63. Deputy Hoffman also observed a “spoon with some
kind of white powdery residue on it” and a bottle of water, which items “were
indicative of heroin being used in that particular room.” Id. at 63, 64. Deputy
Hoffman also saw a “Speedway cup” and “two Contigo thermos bottles” on the
same table. Id. at 64. Deputy Hoffman then proceeded to search the rest of the
room. During that search, Deputy Hoffman discovered another spoon in
between the mattress and the wall that had “a scorch mark” on the bottom and
“some residue” in it. Id. at 64, 65.
[6] While Deputy Hoffman was searching the room, Bowman was acting
“nervous.” Id. at 107. At one point, Balasquide asked “if she could have her
cup that was in the room.” Id. at 65. Deputy Hoffman gave Balasquide the
Speedway cup, but Balasquide “shout[ed]” that that was not the correct cup.
Id. Deputy Hoffman then went to give her the Contigo thermoses. Before he
handed the thermoses to Balasquide, he searched them. The first one was
empty, but the second one contained approximately fifty-seven dollars and “the
same waxy like paper” that he had seen on the table. Id. Deputy Hoffman
opened the wax paper and discovered 0.3 gram of heroin. At that point, the
officers arrested Bowman and Balasquide. During a search of Bowman’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 3 of 7 person, Deputy Hoffman found a syringe cap in Bowman’s pocket. The two
individuals were then transported to the jail.
[7] Once at the jail, Deputy Hoffman observed Bowman in the waiting area.
Bowman was “slumped over” and “nodding off,” which was “indicative” of
overdosing. Id. at 74. At that point, the medics administered two doses of
Narcan, after which Bowman was “revived.” Id. Following his incarceration,
Bowman spoke with Balasquide on the phone. During that phone call,
Balasquide complained that she had been handcuffed first. Bowman
responded: “I told you not to ask for the cups though.” Ex. 7.
[8] The State charged Bowman with possession of a narcotic, as a Level 6 felony,
and possession of paraphernalia, as a Class C misdemeanor. The trial court
held a jury trial on August 6, 2019. Following the trial, the jury found Bowman
guilty of possession of a narcotic but not guilty of possession of paraphernalia.
The trial court entered judgment of conviction accordingly and sentenced
Bowman to one year in the Department of Correction. This appeal ensued.
Discussion and Decision [9] Bowman contends that the State failed to present sufficient evidence to support
his conviction. Our standard of review on a claim of insufficient evidence is
well settled:
For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 4 of 7 Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[10] Bowman’s sole contention on appeal is that the State did not present sufficient
evidence to demonstrate that he constructively possessed the heroin. “A person
constructively possesses contraband when the person has (1) the capability to
maintain dominion and control over the item; and (2) the intent to maintain
dominion and control over it.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).
Where, as here, a person’s control over the premises where the contraband is
found is nonexclusive, intent to maintain dominion and control may be inferred
from additional circumstances that indicate the person knew of the presence of
the contraband. See id. at 174-75.
[11] Those 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. Id. at 175. “Those enumerated circumstances are not
exhaustive; ultimately, our question is whether a reasonable fact-finder could
conclude from the evidence that the defendant knew of the nature and presence
of the contraband.” Johnson v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 30 2020, 11:33 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Devin Bowman, March 30, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2574 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clark H. Rogers, Appellee-Plaintiff. Judge Trial Court Cause No. 49G25-1811-F6-40678
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 1 of 7 Statement of the Case [1] Devin Bowman appeals his conviction for possession of a narcotic, as a Level 6
felony, following a jury trial. Bowman presents one issue for our review,
namely, whether the State presented sufficient evidence to support his
conviction.
[2] We affirm.
Facts and Procedural History [3] In November 2018, Bowman was living in his grandmother’s trailer while
serving a sentence on community corrections. On November 15, Marion
County Sheriff’s Deputy Steve Hoffman and Marion County Community
Corrections Field Officer Larry Taylor conducted a home visit in order to
search Bowman’s residence. When the officers arrived, Bowman’s
grandmother let them in and informed them that Bowman was in his bedroom.
Also present in Bowman’s bedroom was his girlfriend, Debra Balasquide. The
officers knocked on the bedroom door and announced themselves. Deputy
Hoffman then “heard some commotion in the room,” and it took “a while” for
Bowman to answer the door. Tr. at 62.
[4] When Bowman opened the door, Deputy Hoffman “immediately” noticed that
Bowman was “out of it” and that he had “pinpoint pupils,” which indicated to
Deputy Hoffman that Bowman was “high on an opiate.” Id. at 62, 63. He also
observed that Balasquide was in the same condition as Bowman. At that point,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 2 of 7 Deputy Hoffman directed Bowman and Balasquide to wait with Officer Taylor
in the front room so that he could search Bowman’s bedroom.
[5] When Deputy Hoffman entered the room, he noticed several items on a table,
including “waxy papers,” which Deputy Hoffman believed were used to
transport heroin. Id. at 63. Deputy Hoffman also observed a “spoon with some
kind of white powdery residue on it” and a bottle of water, which items “were
indicative of heroin being used in that particular room.” Id. at 63, 64. Deputy
Hoffman also saw a “Speedway cup” and “two Contigo thermos bottles” on the
same table. Id. at 64. Deputy Hoffman then proceeded to search the rest of the
room. During that search, Deputy Hoffman discovered another spoon in
between the mattress and the wall that had “a scorch mark” on the bottom and
“some residue” in it. Id. at 64, 65.
[6] While Deputy Hoffman was searching the room, Bowman was acting
“nervous.” Id. at 107. At one point, Balasquide asked “if she could have her
cup that was in the room.” Id. at 65. Deputy Hoffman gave Balasquide the
Speedway cup, but Balasquide “shout[ed]” that that was not the correct cup.
Id. Deputy Hoffman then went to give her the Contigo thermoses. Before he
handed the thermoses to Balasquide, he searched them. The first one was
empty, but the second one contained approximately fifty-seven dollars and “the
same waxy like paper” that he had seen on the table. Id. Deputy Hoffman
opened the wax paper and discovered 0.3 gram of heroin. At that point, the
officers arrested Bowman and Balasquide. During a search of Bowman’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 3 of 7 person, Deputy Hoffman found a syringe cap in Bowman’s pocket. The two
individuals were then transported to the jail.
[7] Once at the jail, Deputy Hoffman observed Bowman in the waiting area.
Bowman was “slumped over” and “nodding off,” which was “indicative” of
overdosing. Id. at 74. At that point, the medics administered two doses of
Narcan, after which Bowman was “revived.” Id. Following his incarceration,
Bowman spoke with Balasquide on the phone. During that phone call,
Balasquide complained that she had been handcuffed first. Bowman
responded: “I told you not to ask for the cups though.” Ex. 7.
[8] The State charged Bowman with possession of a narcotic, as a Level 6 felony,
and possession of paraphernalia, as a Class C misdemeanor. The trial court
held a jury trial on August 6, 2019. Following the trial, the jury found Bowman
guilty of possession of a narcotic but not guilty of possession of paraphernalia.
The trial court entered judgment of conviction accordingly and sentenced
Bowman to one year in the Department of Correction. This appeal ensued.
Discussion and Decision [9] Bowman contends that the State failed to present sufficient evidence to support
his conviction. Our standard of review on a claim of insufficient evidence is
well settled:
For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 4 of 7 Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[10] Bowman’s sole contention on appeal is that the State did not present sufficient
evidence to demonstrate that he constructively possessed the heroin. “A person
constructively possesses contraband when the person has (1) the capability to
maintain dominion and control over the item; and (2) the intent to maintain
dominion and control over it.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).
Where, as here, a person’s control over the premises where the contraband is
found is nonexclusive, intent to maintain dominion and control may be inferred
from additional circumstances that indicate the person knew of the presence of
the contraband. See id. at 174-75.
[11] Those 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. Id. at 175. “Those enumerated circumstances are not
exhaustive; ultimately, our question is whether a reasonable fact-finder could
conclude from the evidence that the defendant knew of the nature and presence
of the contraband.” Johnson v. State, 59 N.E.3d 1071, 1074 (Ind. Ct. App.
2016).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 5 of 7 [12] Here, the evidence demonstrates that, when officers first knocked on Bowman’s
bedroom door and announced themselves, it took “a while” for Bowman to
answer the door, during which time the officers “heard some commotion in the
room.” Tr. at 52. Then, when Deputy Hoffman first entered the room, he
observed items in plain view that were “indicative of heroin use.” Id. at 63.
Specifically, Deputy Hoffman saw “waxy papers” on a table that he believed
were the same type of paper that is usually used to transport heroin, a spoon
with “white powdery residue on it,” and a bottle of water. Id. at 63. And
during a search of the room, Deputy Hoffman found another spoon with “a
scorch mark” on the bottom and “some residue in it.” Id. at 64, 65. Deputy
Hoffman then found heroin in one of the thermoses that was on the same table
as the wax paper and one of the spoons.
[13] Further, Deputy Hoffman noticed signs that Bowman had used heroin. Indeed,
when Bowman finally opened the door, Deputy Hoffman noticed that Bowman
had pinpoint pupils and that he was “out of it,” which indicated to Deputy
Hoffman that Bowman was “high on an opiate.” Id. at 62, 63. Further, once at
the jail, Bowman displayed signs that he had overdosed, and medics had to
administer two doses of Narcan before Bowman was “revived.” Id. at 74.
[14] Additionally, following his arrest, Bowman told Balasquide: “I told you not to
ask for the cups[.]” Ex. 7. A reasonable fact-finder could infer from that
statement that Bowman knew the heroin was in the cup and that he did not
want Balasquide to draw the officer’s attention to it.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 6 of 7 [15] Based on that evidence, a reasonable jury could conclude that Bowman knew of
the nature and presence of the contraband. See Johnson, 59 N.E.3d at 107.
Bowman’s contentions on appeal are merely a request that we reweigh the
evidence, which we cannot do. We hold that the State presented sufficient
evidence to support his conviction for possession of a narcotic, as a Level 6
felony, and we affirm his conviction.
[16] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020 Page 7 of 7