Dustin S. Campbell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 26, 2017
• Docket: 72A01-1611-CR-2576
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 26 2017, 6:44 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dustin S. Campbell, April 26, 2017 Appellant-Defendant, Court of Appeals Case No. 72A01-1611-CR-2576 v. Appeal from the Scott Superior Court State of Indiana, The Honorable Marsha Owens Appellee-Plaintiff Howser, Judge Trial Court Cause No. 72D01-1304-CM-116

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 72A01-1611-CR-2576 | April 26, 2017 Page 1 of 5 [1] Dustin Campbell appeals his conviction for Class A Misdemeanor Possession

of Marijuana,1 arguing that the evidence is insufficient to support the

conviction. Finding the evidence sufficient, we affirm.

Facts [2] On January 4, 2013, Indiana State Police arrived at Campbell’s residence in

Scott County at the request of his federal probation officer to serve an arrest

warrant. As soon as the troopers entered the two-bedroom home, they noticed

the smell of burnt marijuana combined with air freshener. The only individuals

present in the house were Campbell, his girlfriend, and their child. Campbell’s

girlfriend was in the bathroom drying her hair when police arrived.

[3] Within one minute of entering the residence, Trooper Martin Wimp saw

marijuana in plain view. The marijuana and rolling papers were just behind a

dresser in the first room of the house, which was within arm’s reach of the front

door. Trooper Wimp also found marijuana, a roach clip, and a glass pipe

inside of Campbell’s bedroom in an open nightstand drawer. Campbell’s

girlfriend later identified the nightstand as Campbell’s. The troopers also found

mail and other items belonging to Campbell near the nightstand. Next to the

mail, the troopers also found a can of spray air freshener.

1 Ind. Code § 35-48-4-11 (2012).

Court of Appeals of Indiana | Memorandum Decision 72A01-1611-CR-2576 | April 26, 2017 Page 2 of 5 [4] On April 1, 2013, the State charged Campbell with Class A misdemeanor

possession of marijuana.2 At Campbell’s September 28, 2016, trial, Campbell

admitted that the marijuana was in plain view in the residence. While he

claimed that the bedroom in which it was found belonged to William Bryant,

Bryant testified that he was staying in the other bedroom, in which no drugs

were found. Bryant testified that Campbell and his girlfriend slept in the

bedroom where the marijuana was found. Tr. Vol. II p. 215-16. Bryant

admitted that everyone in the house smoked marijuana, including Campbell.

Id. at 219-20. Campbell posed the theory that the marijuana belonged to

Bryant, but the jury did not find that theory compelling and found Campbell

guilty as charged. On October 11, 2016, the trial court sentenced Campbell to

one year of incarceration, with 275 days suspended to probation. Campbell

now appeals.

Discussion and Decision [5] Campbell’s sole argument on appeal is that the evidence is insufficient to

support his conviction. When reviewing a claim of insufficient evidence, we

will consider only the evidence and reasonable inferences that support the

conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm

if, based on the evidence and inferences, a reasonable jury could have found

2 The State agreed to enter Campbell into a pretrial diversion agreement. On September 25, 2015, however, the State filed a motion informing the trial court that Campbell had not complied with the terms of the agreement. At that point, the parties prepared for trial.

Court of Appeals of Indiana | Memorandum Decision 72A01-1611-CR-2576 | April 26, 2017 Page 3 of 5 the defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d

1003, 1005 (Ind. 2009).

[6] To convict Campbell of Class A misdemeanor possession of marijuana, the

State was required to prove beyond a reasonable doubt that he knowingly or

intentionally possessed marijuana. I.C. § 35-48-4-11 (2012). Possession may be

actual or constructive, and here, the State alleged that Campbell constructively

possessed marijuana. To prove constructive possession, the State must show

that Campbell had both the intent and the capability to maintain dominion and

control over the marijuana. Thompson v. State, 966 N.E.2d 112, 122 (Ind. Ct.

App. 2012). When an individual does not have exclusive dominion over the

premises, an inference indicating knowledge of and capability to maintain

dominion and control over the contraband is permitting by showing additional

circumstances. Griffin v. State, 945 N.E.2d 781, 784 (Ind. Ct. App. 2011).

Additional circumstances may include incriminating statements, attempted

flight or furtive gestures, proximity to the contraband, and plain view of the

contraband. Id.

[7] Here, the record contains the following evidence relevant to Campbell’s

constructive possession of the marijuana:

 The state troopers noted that the house smelled of burnt marijuana and air freshener.  Trooper Wimp found two bags of marijuana in plain sight in the house— the first within arm’s reach of the front door and the second inside an open drawer on Campbell’s nightstand.  Campbell admitted that the drugs were in plain view.

Court of Appeals of Indiana | Memorandum Decision 72A01-1611-CR-2576 | April 26, 2017 Page 4 of 5  The marijuana on the nightstand was found near Campbell’s mail and other possessions, as well as a can of air freshener.  The residence belonged to Campbell. Another person who was staying there testified that the bedroom in which the marijuana was found was Campbell’s bedroom, and Campbell’s girlfriend testified that the nightstand was also his.  The other person staying in Campbell’s residence testified that Campbell smoked marijuana with him regularly.

We find that this evidence supports an inference indicating Campbell’s

knowledge and capability to maintain dominion and control over the

marijuana. In other words, a reasonable factfinder could conclude, based on

this evidence and the inferences reasonably drawn therefrom, that Campbell

knowingly possessed the marijuana. Campbell’s arguments to the contrary

amount to a request that we reweigh evidence and re-assess witness

credibility—a request we decline. We find the evidence sufficient.

[8] The judgment of the trial court is affirmed.

Barnes, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 72A01-1611-CR-2576 | April 26, 2017 Page 5 of 5