MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 12 2020, 10:31 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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ontario M. Lowe, March 12, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2283 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Sarah K. Mullican, Appellee-Plaintiff. Judge Trial Court Cause No. 84D03-1904-F2-1401
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020 Page 1 of 6 Statement of the Case [1] Ontario M. Lowe appeals his conviction for maintaining a common nuisance,
as a Level 6 felony, following a jury trial. Lowe presents one dispositive issue
for our review, namely, whether the State presented sufficient evidence to
support his conviction.
[2] We reverse.
Facts and Procedural History [3] On April 11, 2019, Detective Daniel LaFave and Detective Brian Bourbeau
with the Vigo County Drug Task Force observed Lowe driving a vehicle.
Detectives LaFave and Bourbeau were familiar with Lowe, and they were
aware that his driver’s license had been suspended. Accordingly, the detectives,
with the assistance of a patrol officer, conducted a traffic stop of Lowe’s vehicle.
Lowe, who was the only occupant of the vehicle, exited the vehicle and
informed the officers that the vehicle he was driving belonged to his “baby
mama” but that he drove it “regularly.” Tr. at 77. Officers then conducted a
pat down search of Lowe and found more than $200 in his pocket.
[4] At that point, the officers searched Lowe’s vehicle. 1 Upon searching the
interior of the car, officers discovered “an open box of plastic bags,” a digital
scale that was “dirtied” with a crystal-like substance, and a plastic bag that
1 Lowe was on probation for a prior offense when the officers conducted the traffic stop. As a condition of his probation, Lowe had signed a waiver of his Fourth Amendment rights. See Ex. at 13.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020 Page 2 of 6 contained 0.15 gram of cocaine. Id. at 78. The officers then searched the trunk
of the vehicle. There, officers found men’s clothes and shoes. And officers
found a plastic bag inside one of the shoes that contained 49.45 grams of
methamphetamine.
[5] The State charged Lowe with dealing in methamphetamine, as a Level 2 felony
(Count 1); possession of methamphetamine, as a Level 3 felony (Count 2);
possession of cocaine, as a Level 6 felony (Count 3); maintaining a common
nuisance, as a level 6 felony (Count 4); and operating a vehicle with a
suspended license, as a Class A misdemeanor (Count 5). The State also alleged
that Lowe was a habitual offender.
[6] The trial court held a bifurcated jury trial on July 30 and July 31, 2019, and the
jury found Lowe guilty as charged at the conclusion of each phase. The court
entered judgment of conviction accordingly. But due to double jeopardy
concerns, the court vacated Lowe’s conviction on Count 2. Following a
sentencing hearing, the court sentenced Lowe to fifteen years on Count 1,
which the court enhanced by ten years for the habitual offender adjudication;
two years on Count 3; two years on Count 4; and one year on Count 5. The
court then ordered the sentences to run concurrently, for an aggregate sentence
of twenty-five years executed in the Department of Correction. This appeal
ensued.
Discussion and Decision [7] Lowe asserts that the State failed to present sufficient evidence to support his
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020 Page 3 of 6 conviction for maintaining a common nuisance, as a Level 6 felony. 2 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. 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).
[8] In order to convict Lowe, the State was required to prove that he had
knowingly or intentionally maintained a vehicle that was used to unlawfully
use, manufacture, keep, offer for sale, sell, deliver, or finance the delivery of a
controlled substance. Ind. Code § 35-45-1-5(a) (2019). “The word ‘maintain’ as
used in that statute does not require that the defendant actually own the vehicle;
rather, a defendant ‘maintains’ a vehicle when he exerts control over it.”
Leatherman v. State, 101 N.E.3d 879, 883 (Ind. Ct. App. 2018).
[9] This Court has previously stated that the legislature did not intend for the
common-nuisance statute to apply to “an offender who had personal use
quantities of controlled substance(s) on his or her person or even loose in the
vehicle.” Lovitt v. State, 915 N.E.2d 1040, 1045 (Ind. Ct. App. 2009)
2 Lowe does not challenge the sufficiency of the evidence underlying his other convictions.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020 Page 4 of 6 (alternation in original). Rather, this Court held that the statute is intended to
apply to “an offender who uses his or her vehicle to facilitate manufacture, sale,
delivery or to finance the delivery of a controlled substance[.]” Id. Here, the
State proved that Lowe was dealing in methamphetamine, and Lowe does not
challenge that conviction on appeal. Accordingly, we agree with the State that
it “provided sufficient evidence that [Lowe] is just such an offender.”
Appellee’s Br. at 9.
[10] However, “to prove the nuisance was a ‘common’ nuisance, the State must
provide evidence that the vehicle was used on more than one occasion for the
unlawful delivery of a controlled substance.” Leatherman, 101 N.E.3d at 883
(emphasis added). On appeal, the State contends that it presented sufficient
evidence to support Lowe’s conviction because Lowe “admitted to using the
vehicle regularly, men’s clothing and shoes were in the trunk, and drugs and
paraphernalia were found in plain sight of the officers as well as the trunk.”
Appellee’s Br. at 10. Accordingly, the State asserts that Lowe’s “regular use of
the vehicle and comfort with spreading the controlled substances and
paraphernalia throughout the vehicle are indicative that he was using the
vehicle on an ongoing basis to facilitate his dealing enterprise.” Id. We cannot
agree.
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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 12 2020, 10:31 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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ontario M. Lowe, March 12, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2283 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Sarah K. Mullican, Appellee-Plaintiff. Judge Trial Court Cause No. 84D03-1904-F2-1401
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020 Page 1 of 6 Statement of the Case [1] Ontario M. Lowe appeals his conviction for maintaining a common nuisance,
as a Level 6 felony, following a jury trial. Lowe presents one dispositive issue
for our review, namely, whether the State presented sufficient evidence to
support his conviction.
[2] We reverse.
Facts and Procedural History [3] On April 11, 2019, Detective Daniel LaFave and Detective Brian Bourbeau
with the Vigo County Drug Task Force observed Lowe driving a vehicle.
Detectives LaFave and Bourbeau were familiar with Lowe, and they were
aware that his driver’s license had been suspended. Accordingly, the detectives,
with the assistance of a patrol officer, conducted a traffic stop of Lowe’s vehicle.
Lowe, who was the only occupant of the vehicle, exited the vehicle and
informed the officers that the vehicle he was driving belonged to his “baby
mama” but that he drove it “regularly.” Tr. at 77. Officers then conducted a
pat down search of Lowe and found more than $200 in his pocket.
[4] At that point, the officers searched Lowe’s vehicle. 1 Upon searching the
interior of the car, officers discovered “an open box of plastic bags,” a digital
scale that was “dirtied” with a crystal-like substance, and a plastic bag that
1 Lowe was on probation for a prior offense when the officers conducted the traffic stop. As a condition of his probation, Lowe had signed a waiver of his Fourth Amendment rights. See Ex. at 13.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020 Page 2 of 6 contained 0.15 gram of cocaine. Id. at 78. The officers then searched the trunk
of the vehicle. There, officers found men’s clothes and shoes. And officers
found a plastic bag inside one of the shoes that contained 49.45 grams of
methamphetamine.
[5] The State charged Lowe with dealing in methamphetamine, as a Level 2 felony
(Count 1); possession of methamphetamine, as a Level 3 felony (Count 2);
possession of cocaine, as a Level 6 felony (Count 3); maintaining a common
nuisance, as a level 6 felony (Count 4); and operating a vehicle with a
suspended license, as a Class A misdemeanor (Count 5). The State also alleged
that Lowe was a habitual offender.
[6] The trial court held a bifurcated jury trial on July 30 and July 31, 2019, and the
jury found Lowe guilty as charged at the conclusion of each phase. The court
entered judgment of conviction accordingly. But due to double jeopardy
concerns, the court vacated Lowe’s conviction on Count 2. Following a
sentencing hearing, the court sentenced Lowe to fifteen years on Count 1,
which the court enhanced by ten years for the habitual offender adjudication;
two years on Count 3; two years on Count 4; and one year on Count 5. The
court then ordered the sentences to run concurrently, for an aggregate sentence
of twenty-five years executed in the Department of Correction. This appeal
ensued.
Discussion and Decision [7] Lowe asserts that the State failed to present sufficient evidence to support his
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020 Page 3 of 6 conviction for maintaining a common nuisance, as a Level 6 felony. 2 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. 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).
[8] In order to convict Lowe, the State was required to prove that he had
knowingly or intentionally maintained a vehicle that was used to unlawfully
use, manufacture, keep, offer for sale, sell, deliver, or finance the delivery of a
controlled substance. Ind. Code § 35-45-1-5(a) (2019). “The word ‘maintain’ as
used in that statute does not require that the defendant actually own the vehicle;
rather, a defendant ‘maintains’ a vehicle when he exerts control over it.”
Leatherman v. State, 101 N.E.3d 879, 883 (Ind. Ct. App. 2018).
[9] This Court has previously stated that the legislature did not intend for the
common-nuisance statute to apply to “an offender who had personal use
quantities of controlled substance(s) on his or her person or even loose in the
vehicle.” Lovitt v. State, 915 N.E.2d 1040, 1045 (Ind. Ct. App. 2009)
2 Lowe does not challenge the sufficiency of the evidence underlying his other convictions.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020 Page 4 of 6 (alternation in original). Rather, this Court held that the statute is intended to
apply to “an offender who uses his or her vehicle to facilitate manufacture, sale,
delivery or to finance the delivery of a controlled substance[.]” Id. Here, the
State proved that Lowe was dealing in methamphetamine, and Lowe does not
challenge that conviction on appeal. Accordingly, we agree with the State that
it “provided sufficient evidence that [Lowe] is just such an offender.”
Appellee’s Br. at 9.
[10] However, “to prove the nuisance was a ‘common’ nuisance, the State must
provide evidence that the vehicle was used on more than one occasion for the
unlawful delivery of a controlled substance.” Leatherman, 101 N.E.3d at 883
(emphasis added). On appeal, the State contends that it presented sufficient
evidence to support Lowe’s conviction because Lowe “admitted to using the
vehicle regularly, men’s clothing and shoes were in the trunk, and drugs and
paraphernalia were found in plain sight of the officers as well as the trunk.”
Appellee’s Br. at 10. Accordingly, the State asserts that Lowe’s “regular use of
the vehicle and comfort with spreading the controlled substances and
paraphernalia throughout the vehicle are indicative that he was using the
vehicle on an ongoing basis to facilitate his dealing enterprise.” Id. We cannot
agree.
[11] Here, the State presented evidence that Lowe “regularly” drove the vehicle,
which demonstrates that he used the vehicle on more than one occasion. Tr. at
77. And the State presented evidence that, on April 11, officers found a large
quantity of methamphetamine, cocaine, a scale, and plastic bags in both the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020 Page 5 of 6 interior of the car and the trunk, which shows that Lowe used the vehicle on
that particular occasion for an unlawful purpose. However, the State failed to
present any evidence to support an inference that Lowe had used the vehicle for
an unlawful purpose on any occasion other than April 11.
[12] Because the State failed to present evidence that Lowe used his vehicle on
multiple occasions for the delivery of controlled substances, we must agree with
Lowe that the State failed to present sufficient evidence to support his
conviction for maintaining a common nuisance, as a Level 6 felony. We
therefore reverse Lowe’s conviction and corresponding two-year sentence on
Count 4.3
[13] Reversed.
Vaidik, J., and Tavitas, J., concur.
3 Because we reverse Lowe’s conviction on Count 4, we need not address his argument that his conviction on that count violated the prohibition against double jeopardy.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020 Page 6 of 6