Grover E. Lowe v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 29, 2014
• Docket: 76A04-1311-CR-572
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be Jul 29 2014, 10:23 am 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:

CARA SCHAEFER WIENEKE GREGORY F. ZOELLER Special Asst. to State Public Defender Attorney General of Indiana Plainfield, Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

GROVER E. LOWE, ) ) Appellant-Defendant, ) ) vs. ) No. 76A04-1311-CR-572 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE STEUBEN CIRCUIT COURT The Honorable Allen N. Wheat, Judge Cause No. 76C01-1304-FB-256

July 29, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge Following a jury trial, Grover Lowe was convicted of Possession of

Methamphetamine1 as a class B felony. Lowe now appeals presenting the following issue

for our review: Was the evidence sufficient to support the conviction?

We affirm.

On March 26, 2013, Detective Sergeant Chris Emerick began surveillance of the

house at 202 E. Broad Street in Angola because of suspected drug activity. The police

executed a search warrant there on April 8, 2013. At the time the search warrant was

executed, Lowe was on the property, but not inside the house. He was subsequently placed

in protective custody. When the police made entry into the house, they found four other

individuals. Throughout the house, police found multiple blister packs of

pseudoephedrine, digital scales, stripped battery casings, burnt aluminum foil, syringes,

and boxes of nasal decongestant, all materials indicative of methamphetamine production.

Baggies of methamphetamine were also found in multiple rooms, including the basement

bedroom.

Lowe was charged with possession of methamphetamine as a class B felony and

possession of paraphernalia as a class A misdemeanor. The jury found Lowe guilty of

possession of methamphetamine, but not guilty of possession of paraphernalia. The trial

court sentenced Lowe to twelve years in the Department of Correction. Lowe now appeals.

Lowe argues the State presented insufficient evidence to support his conviction of

possession of methamphetamine. When considering a challenge to the sufficiency of

1 Ind. Ann. Code § 35-48-4-6.1 (Westlaw, Westlaw current through 2012 Second Regular Session). 2 evidence to support a conviction, we respect the fact-finder’s exclusive province to weigh

conflicting evidence and therefore neither reweigh the evidence nor judge witness

credibility. McHenry v. State, 820 N.E.2d 124 (Ind. 2005). We consider only the probative

evidence and reasonable inferences supporting the verdict, and “must 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.’” Id. at

126 (quoting Tobar v. State, 740 N.E.2d 109, 111–12 (Ind. 2000)).

To prove possession of methamphetamine as a class B felony, the State was required

to prove that Lowe knowingly or intentionally possessed methamphetamine within 1,000

feet of a family housing complex. Lowe claims the State failed to prove that he possessed

the methamphetamine found inside the residence. A conviction for possession of

contraband may rest upon proof of either actual or constructive possession. See Britt v.

State, 810 N.E.2d 1077 (Ind. Ct. App. 2004). “Actual possession occurs when the

defendant has direct physical control over the item, while constructive possession involves

the intent and capability to maintain control over the item even though actual physical

control is absent.” Id. at 1082. Here, the State alleged constructive possession.

Evidence of constructive possession is sufficient where the State proves that the

defendant had both the intent and capability to maintain dominion and control over the

contraband. Hardister v. State, 849 N.E.2d 563 (Ind. 2006). The intent element of

constructive possession is shown if the State demonstrates the defendant’s knowledge of

the presence of the contraband. Goliday v. State, 708 N.E.2d 4 (Ind. 1999). This

knowledge may be inferred from either the exclusive dominion and control over the

3 premises containing the contraband or, if the control is non-exclusive, evidence of

additional circumstances pointing to the defendant’s knowledge of the presence of the

contraband. Id. These additional circumstances may include: (1) incriminating statements

by the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting;

(4) proximity of the defendant to the drugs; (5) drugs in plain view; and (6) location of the

drugs in close proximity to items owned by the defendant. Hardister v. State, 849 N.E.2d

563. The capability element of constructive possession is met when the State shows that

the defendant was able to reduce the controlled substance to the defendant’s personal

possession. Goliday v. State, 708 N.E.2d 4. Furthermore, possession of contraband by the

defendant need not be exclusive and it can be possessed jointly. Massey v. State, 816

N.E.2d 979 (Ind. Ct. App. 2004).

In challenging the sufficiency of the evidence, Lowe acknowledges that the State

met its burden to show that he had the capability to maintain dominion and control over

the contraband. He contends, however, that the State did not prove the additional element

of intent. Lowe points out there was no evidence presented at trial regarding any statements

he made, no evidence presented that Lowe was found in close proximity to the

methamphetamine, nor was there evidence that Lowe had exclusive dominion and control

over the basement bedroom that he shared with his girlfriend, Nikki Ludlow.

We reject Lowe’s invitation to reweigh the evidence. The evidence presented at

trial established that Lowe stayed at the house three to four nights per week over a period

of three months. Lowe’s personal belongings were found throughout the basement

bedroom. In open view, a baggie of methamphetamine and materials of methamphetamine

4 use, including a dinner plate with white residue, burnt aluminum, and an empty pen shell,

were found on a night table inches from the bed. A pair of Lowe’s pants was on the floor

immediately next to the table. On a shelf on the other side of the room, the police found a

red tin containing more evidence of methamphetamine use and production and Lowe’s

expired driver’s license. The State presented sufficient evidence to prove that Lowe had

knowledge of the presence of the methamphetamine in the bedroom he shared with

Ludlow. This evidence supports a reasonable inference that Ludlow and Lowe jointly

possessed the methamphetamine.

The State presented sufficient evidence that Lowe constructively possessed the

drugs.

Judgment affirmed.

VAIDIK, C.J., and MAY, J., concur.