MEMORANDUM DECISION Nov 25 2015, 6:54 am
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Gregory F. Zoeller Oldenburg, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald Sample, November 25, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1503-CR-141 v. Appeal from the Marion Superior Court. State of Indiana, The Honorable Jose Salinas, Judge. The Honorable John Alt, Magistrate. Appellee-Plaintiff. Cause No. 49G14-1408-F6-39902
Shepard, Senior Judge
[1] A police officer stopped Sample’s car for changing lanes without signaling.
During a search of the car, the officer discovered a pipe and a bag of
methamphetamine. Sample appeals his convictions of possession of
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 1 of 6 1 paraphernalia, a Class A misdemeanor, and possession of methamphetamine, 2 a Class A misdemeanor. We affirm.
Issue [2] Sample contends there is insufficient evidence to support his convictions.
Facts and Procedural History [3] On the morning of August 13, 2014, Sample drove his girlfriend to work in her
car. Next, he drove to an auto parts store to purchase items for maintenance on
the car, and then he went to a friend’s house. Sample worked on the car at his
friend’s house until 4:30 p.m., when he left to pick up his girlfriend.
[4] At the same time, Officer Jovan Lopez of the Indianapolis Metropolitan Police
Department was driving on the west side of Indianapolis. He changed lanes
and drove behind Sample’s car. Officer Lopez observed Sample change lanes
without signaling.
[5] Officer Lopez stopped Sample’s car. Sample was the only occupant. As
Officer Lopez sat in his car, he watched Sample make “furtive movements,”
including turning around to reach towards the back seat of the car. Tr. p. 21.
Lopez called for backup. When another officer arrived, Officer Lopez
approached the driver’s side window while the other officer walked up to the
1 Ind. Code § 35-48-4-8.3 (2014). 2 Ind. Code § 35-48-4-6.1 (2014).
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 2 of 6 passenger side. He asked Sample for a driver’s license and registration, and
Sample said he did not have any identification.
[6] Sample seemed “extremely nervous” because he would not look at Officer
Lopez, his hands trembled, and his voice seemed shaky. Id. at 22. Officer
Lopez saw tools on the car’s back seat. After confirming Sample’s identity with
the dispatcher, Officer Lopez asked Sample to step out of the car and requested
consent to search the car. Sample consented. During the search, Lopez found
a pipe between the front passenger seat and the center console. The pipe
contained traces of meth. Officer Lopez also found a small bag of what was
later identified as meth on the car’s floorboard, behind the driver’s seat.
[7] The State filed three charges: possession of meth, possession of paraphernalia,
and driving while suspended. After a bench trial, the court determined that
Sample was guilty of possession of methamphetamine and possession of
paraphernalia, but not guilty of driving while suspended. The court imposed
alternative misdemeanor sentencing for possession of meth and entered a
sentence.
Discussion and Decision [8] Sample does not dispute that Officer Lopez found methamphetamine and a
pipe in the car he was driving. Instead, Sample says the State failed to prove
that he possessed those items.
[9] When reviewing a sufficiency challenge, we do not reweigh the evidence or
judge the credibility of the witnesses. Hampton v. State, 873 N.E.2d 1074 (Ind. Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 3 of 6 Ct. App. 2007). We instead look to the evidence and the reasonable inferences
that support the verdict. Id. We will affirm unless no reasonable fact-finder
could have found the defendant guilty beyond a reasonable doubt. Markland v.
State, 865 N.E.2d 639 (Ind. Ct. App. 2007), trans. denied.
[10] To obtain a conviction of possession of meth, the State was required to prove
beyond a reasonable doubt that Sample (1) knowingly or intentionally (2)
possessed methamphetamine (3) without a valid prescription or order of a
practitioner. Ind. Code § 35-48-4-6.1. As for possession of paraphernalia, the
State was required to prove beyond a reasonable doubt that Sample (1)
knowingly or intentionally (2) possessed a raw material, instrument, device, or
other object (3) that the person intends to use (4) for introducing a controlled
substance into the person’s body. Ind. Code § 35-48-4-8.3.
[11] A conviction for possession of contraband does not require catching a
defendant red-handed. Gray v. State, 957 N.E.2d 171 (Ind. 2011). Instead,
when the State cannot show actual possession, a conviction for possessing
contraband may rest on proof of constructive possession. Id. Constructive
possession will support a conviction if the State shows that the defendant had
both the capability and the intent to maintain dominion and control over the
contraband. Mitchell v. State, 745 N.E.2d 775 (Ind. 2001).
[12] To prove the intent element, the State must establish the defendant’s knowledge
of the possession of the contraband. Wilson v. State, 966 N.E.2d 1259 (Ind. Ct.
App. 2012), trans. denied. When a defendant exercises non-exclusive control
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 4 of 6 over the location where contraband is found, intent to maintain dominion and
control may be inferred from additional circumstances that indicate that the
defendant knew of the presence of the contraband. Allen v. State, 787 N.E.2d
473 (Ind. Ct. App. 2003), trans. denied. The circumstances may include: (1) a
defendant’s incriminating statements; (2) a defendant’s attempting to leave or
making furtive gestures; (3) the item’s proximity to the defendant; (4) the
location of contraband within the defendant’s plain view; and (5) the mingling
of contraband with other items the defendant owns. Gray, 957 N.E.2d 171.
[13] Sample was driving his girlfriend’s car when Officer Lopez stopped him. No
one else was in the car, and Sample had possessed the car all day long. When
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MEMORANDUM DECISION Nov 25 2015, 6:54 am
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Gregory F. Zoeller Oldenburg, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald Sample, November 25, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1503-CR-141 v. Appeal from the Marion Superior Court. State of Indiana, The Honorable Jose Salinas, Judge. The Honorable John Alt, Magistrate. Appellee-Plaintiff. Cause No. 49G14-1408-F6-39902
Shepard, Senior Judge
[1] A police officer stopped Sample’s car for changing lanes without signaling.
During a search of the car, the officer discovered a pipe and a bag of
methamphetamine. Sample appeals his convictions of possession of
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 1 of 6 1 paraphernalia, a Class A misdemeanor, and possession of methamphetamine, 2 a Class A misdemeanor. We affirm.
Issue [2] Sample contends there is insufficient evidence to support his convictions.
Facts and Procedural History [3] On the morning of August 13, 2014, Sample drove his girlfriend to work in her
car. Next, he drove to an auto parts store to purchase items for maintenance on
the car, and then he went to a friend’s house. Sample worked on the car at his
friend’s house until 4:30 p.m., when he left to pick up his girlfriend.
[4] At the same time, Officer Jovan Lopez of the Indianapolis Metropolitan Police
Department was driving on the west side of Indianapolis. He changed lanes
and drove behind Sample’s car. Officer Lopez observed Sample change lanes
without signaling.
[5] Officer Lopez stopped Sample’s car. Sample was the only occupant. As
Officer Lopez sat in his car, he watched Sample make “furtive movements,”
including turning around to reach towards the back seat of the car. Tr. p. 21.
Lopez called for backup. When another officer arrived, Officer Lopez
approached the driver’s side window while the other officer walked up to the
1 Ind. Code § 35-48-4-8.3 (2014). 2 Ind. Code § 35-48-4-6.1 (2014).
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 2 of 6 passenger side. He asked Sample for a driver’s license and registration, and
Sample said he did not have any identification.
[6] Sample seemed “extremely nervous” because he would not look at Officer
Lopez, his hands trembled, and his voice seemed shaky. Id. at 22. Officer
Lopez saw tools on the car’s back seat. After confirming Sample’s identity with
the dispatcher, Officer Lopez asked Sample to step out of the car and requested
consent to search the car. Sample consented. During the search, Lopez found
a pipe between the front passenger seat and the center console. The pipe
contained traces of meth. Officer Lopez also found a small bag of what was
later identified as meth on the car’s floorboard, behind the driver’s seat.
[7] The State filed three charges: possession of meth, possession of paraphernalia,
and driving while suspended. After a bench trial, the court determined that
Sample was guilty of possession of methamphetamine and possession of
paraphernalia, but not guilty of driving while suspended. The court imposed
alternative misdemeanor sentencing for possession of meth and entered a
sentence.
Discussion and Decision [8] Sample does not dispute that Officer Lopez found methamphetamine and a
pipe in the car he was driving. Instead, Sample says the State failed to prove
that he possessed those items.
[9] When reviewing a sufficiency challenge, we do not reweigh the evidence or
judge the credibility of the witnesses. Hampton v. State, 873 N.E.2d 1074 (Ind. Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 3 of 6 Ct. App. 2007). We instead look to the evidence and the reasonable inferences
that support the verdict. Id. We will affirm unless no reasonable fact-finder
could have found the defendant guilty beyond a reasonable doubt. Markland v.
State, 865 N.E.2d 639 (Ind. Ct. App. 2007), trans. denied.
[10] To obtain a conviction of possession of meth, the State was required to prove
beyond a reasonable doubt that Sample (1) knowingly or intentionally (2)
possessed methamphetamine (3) without a valid prescription or order of a
practitioner. Ind. Code § 35-48-4-6.1. As for possession of paraphernalia, the
State was required to prove beyond a reasonable doubt that Sample (1)
knowingly or intentionally (2) possessed a raw material, instrument, device, or
other object (3) that the person intends to use (4) for introducing a controlled
substance into the person’s body. Ind. Code § 35-48-4-8.3.
[11] A conviction for possession of contraband does not require catching a
defendant red-handed. Gray v. State, 957 N.E.2d 171 (Ind. 2011). Instead,
when the State cannot show actual possession, a conviction for possessing
contraband may rest on proof of constructive possession. Id. Constructive
possession will support a conviction if the State shows that the defendant had
both the capability and the intent to maintain dominion and control over the
contraband. Mitchell v. State, 745 N.E.2d 775 (Ind. 2001).
[12] To prove the intent element, the State must establish the defendant’s knowledge
of the possession of the contraband. Wilson v. State, 966 N.E.2d 1259 (Ind. Ct.
App. 2012), trans. denied. When a defendant exercises non-exclusive control
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 4 of 6 over the location where contraband is found, intent to maintain dominion and
control may be inferred from additional circumstances that indicate that the
defendant knew of the presence of the contraband. Allen v. State, 787 N.E.2d
473 (Ind. Ct. App. 2003), trans. denied. The circumstances may include: (1) a
defendant’s incriminating statements; (2) a defendant’s attempting to leave or
making furtive gestures; (3) the item’s proximity to the defendant; (4) the
location of contraband within the defendant’s plain view; and (5) the mingling
of contraband with other items the defendant owns. Gray, 957 N.E.2d 171.
[13] Sample was driving his girlfriend’s car when Officer Lopez stopped him. No
one else was in the car, and Sample had possessed the car all day long. When
Sample stopped the car, he made furtive gestures in the car, including reaching
back toward the area where the meth was found. Officer Lopez thought that
Sample appeared to be very nervous because Sample would not look him in the
eyes and had shaky hands and a shaky voice. In addition, the pipe was found
near Sample’s seat, within his reach. The bag of meth was in plain view on the
floorboard behind Sample’s seat, and Sample’s tools were on the back seat of
the car, near the bag of meth.
[14] The State presented sufficient evidence from which the trial court could have
concluded beyond a reasonable doubt that Sample was aware of the presence of
the pipe and the meth and intended to maintain control over them. See Goliday
v. State, 708 N.E.2d 4 (Ind. 1999) (evidence sufficient to prove constructive
possession where defendant had exclusive control over a car he had borrowed,
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 5 of 6 and contraband was found near the defendant’s personal items). Sample’s
arguments to the contrary are requests to reweigh the evidence.
Conclusion [15] For the foregoing reasons, we affirm the judgment of the trial court.
[16] Affirmed.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 6 of 6