MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                              Jan 27 2017, 9:29 am

this Memorandum Decision shall not be                                   CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
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                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General
Brooklyn, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Alfred S. Sanders,                                       January 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1608-CR-1935
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J. Lewis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D06-1508-F6-1776



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1935 | January 27, 2017     Page 1 of 8
                                          Case Summary
[1]   Alfred Sanders appeals his convictions for Level 6 felony possession of

      methamphetamine, Level 6 felony maintaining a common nuisance, and Class

      A misdemeanor possession of a controlled substance. Sanders argues that the

      evidence is insufficient to establish that he constructively possessed the drugs.

      Finding the evidence sufficient, we affirm.



                            Facts and Procedural History
[2]   Around 6:00 a.m. on July 30, 2015, police officers were executing a search

      warrant at a house on Green Drive in Lewis, Indiana. While standing in the

      driveway outside the house, Detectives Charles Burress and Brian Bourbeau,

      both members of the Vigo County Drug Task Force, saw a single-cab truck start

      to turn onto Green Drive. Jessica Mahalek was driving the truck, and Sanders

      was a passenger. Instead of turning, Mahalek “abruptly” continued to drive

      straight. Tr. Vol. II p. 9. Detective Bourbeau, who was wearing a vest with

      “POLICE” written in reflective lettering on the front and back, thought this was

      “strange.” Id. at 51.


[3]   Detective Bourbeau stayed at the house on Green Drive to finish the search,

      while Detective Burress got into an unmarked police car and followed the truck.

      Mahalek drove to a house on Washington Street, which was around the block

      from the house on Green Drive, and parked in the driveway behind two parked

      cars. When Detective Burress pulled up to the house, Mahalek was just getting


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      out of the truck while Sanders had “quickly” exited and already walked to the

      front of the truck, near the rear bumpers of the two parked cars. Id. at 36.

      Detective Burress got out of his car, identified himself, and asked to speak with

      Sanders; Sanders stopped and walked back toward the truck. Detective Burress

      then asked Sanders, who lived in Terre Haute, what he was doing in Lewis at

      6:00 in the morning, and Sanders responded that he was visiting a relative.

      Detective Burress then asked Sanders “pointed” questions about whether he

      was actually heading to the house on Green Drive to buy or sell drugs but then

      changed course upon seeing the police. Id. at 17. Sanders responded that he

      did not have “anything” on him and that Detective Burress could search the

      truck, which belonged to him. Id. at 20. Sanders and Mahalek then consented

      to a search of the truck. In the meantime, more officers, including Detective

      Bourbeau, arrived on the scene. Detective Bourbeau approached Detective

      Burress and Sanders and told Sanders that he did not believe his story that he

      was visiting a relative in Lewis at 6:00 in the morning. At this point, Sanders

      admitted that he was “driving around attempting to find . . . a smoke sack,”

      which is a small amount of methamphetamine. Id. at 55.


[4]   Detective Bourbeau then searched Sanders’ truck. He found a digital scale with

      methamphetamine residue inside a backpack. The backpack, which was

      partially behind the passenger seat near the passenger headrest, see Ex. F, was

      visible from the passenger seat. Tr. Vol. II p. 79. The compartment of the

      backpack containing the digital scale was open. Id. at 80. Outside the truck,

      Detective Bourbeau found a zippered pouch with eleven loose hydrocodone


      Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1935 | January 27, 2017   Page 3 of 8
      pills approximately ten feet from where Sanders had stopped when Detective

      Burress pulled up to the house. The pouch was lying in the grass between the

      two parked cars. Detective Bourbeau also found two cell phones near some

      bushes, approximately ten to fifteen feet from the pouch. Although the grass

      was heavy with dew that July morning, neither the cell phones nor the pouch

      had any condensation on top of them.

[5]   Both Sanders and Mahalek denied ownership of the digital scale with

      methamphetamine residue, the pouch with the hydrocodone pills, and the cell

      phones. But when Detective Bourbeau showed the phones to Sanders, he was

      able to disable the security features by using a multi-directional swipe passcode.

      Nevertheless, Sanders still claimed that the phones were not his and that they

      belonged to a friend. Sanders did not explain how his friend’s phones ended up

      near him at a house on Washington Street in Lewis.

[6]   Detective Bourbeau decided to arrest Sanders but not Mahalek. When

      Detective Burress told Mahalek that they were going to arrest Sanders, she

      became “upset” and “immediately” claimed that the pills belonged to her and

      that she had a prescription for them. Id. at 27. “[S]keptical” of Mahalek’s

      claim, Detective Burress told her that he did not believe she had a prescription

      for hydrocodone because she was pregnant. Id. at 32. Mahalek then “dropped

      her head” and said “well the scales are mine.” Id. at 27. But Mahalek was

      unable to describe the digital scale or tell Detective Burress where it had been

      located in the truck.



      Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1935 | January 27, 2017   Page 4 of 8
[7]    Upon handcuffing Sanders, Detective Bourbeau found “a significant amount”

       of money in his pockets. Id. at 83. Detective Bourbeau also knocked on the

       door of the house on Washington Street, and an elderly female answered. She

       was “surprised” and “visibly embarrassed” to speak with the police. Id. at 55,

       85; see also id. at 31 (Detective Burress testifying that despite Sanders’ claim that

       it was his relative’s house, the police never received confirmation that Sanders

       knew the residents).


[8]    The State charged Sanders with Level 6 felony possession of

       methamphetamine, Level 6 felony maintaining a common nuisance, and Class

       A misdemeanor possession of a controlled substance (hydrocodone). The jury

       found Sanders guilty as charged.

[9]    Sanders now appeals.



                                  Discussion and Decision
[10]   Sanders contends that the evidence is insufficient to prove that he constructively

       possessed the digital scale with methamphetamine residue and the hydrocodone

       pills. When reviewing a claim that the evidence introduced at trial is

       insufficient to support a conviction, we consider only the probative evidence

       and reasonable inferences supporting the verdict. Gray v. State, 957 N.E.2d 171,

       174 (Ind. 2011). We likewise consider conflicting evidence in the light most

       favorable to the verdict. Id. It is therefore not necessary that the evidence

       overcome every reasonable hypothesis of innocence. Id. Instead, we will affirm


       Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1935 | January 27, 2017   Page 5 of 8
       the conviction unless no reasonable trier of fact could have found the elements

       of the crime proven beyond a reasonable doubt. Id.


[11]   Constructive possession occurs when the defendant has the intent and the

       capability to maintain dominion and control over the item. Henderson v. State,

       715 N.E.2d 833, 835 (Ind. 1999). Sanders does not dispute that he was capable

       of maintaining dominion and control over the items. See Lampkins v. State, 682

       N.E.2d 1268, 1275 (Ind. 1997) (explaining that the capability requirement is

       met when the State shows that the defendant is able to reduce the contraband to

       his personal possession), modified on reh’g on other grounds, 685 N.E.2d 698 (Ind.

       1997). Rather, Sanders challenges whether the State proved that he had the

       intent to do so. See Appellant’s Br. p. 9 (analyzing only intent prong). To prove

       intent, the State must demonstrate the defendant’s knowledge of the presence of

       the contraband. Henderson, 715 N.E.2d at 835. Knowledge may be inferred

       from the exclusive dominion and control over the premise containing the

       contraband. Id. But when, as in this case, the defendant’s control over the

       premise is non-exclusive, there must be evidence of additional circumstances

       pointing to the defendant’s knowledge of the presence of the contraband. Id. at

       835-36. Examples of such circumstances are: (1) incriminating statements by

       the defendant, (2) attempted flight or furtive gestures, (3) location of contraband

       like drugs in settings suggesting manufacturing, (4) proximity of the contraband

       to the defendant, (5) location of the contraband within the defendant’s plain

       view, and (6) the mingling of the contraband with other items owned by the

       defendant. Gray, 957 N.E.2d at 175. This list is not exhaustive. Id.

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[12]   Although Sanders did not have exclusive dominion and control over the

       premises containing the digital scale with methamphetamine residue and the

       hydrocodone pills, the State presented additional circumstances that

       demonstrated he had knowledge of these items.

[13]   As for the digital scale with methamphetamine residue, it was found in Sanders’

       truck. Sanders, who was a passenger at the time, told the police that he was

       driving around looking to buy some methamphetamine. Indeed, a significant

       amount of money was found in Sanders’ pockets when he was arrested. The

       backpack, which was partially behind the passenger seat near the headrest, was

       visible from the passenger seat. And the compartment of the backpack

       containing the digital scale was open. Although Mahalek claimed that the

       digital scale was hers, she initially said that it was not hers and only changed

       her story when the police told her that they were going to arrest Sanders.

       Moreover, Mahalek was unable to describe the digital scale or where it had

       been located in the truck. This evidence is sufficient to prove that Sanders had

       knowledge of the digital scale with methamphetamine residue.

[14]   Regarding the pouch with the hydrocodone pills, when Detective Burress pulled

       up to the house on Washington Street, Mahalek was just getting out of the

       truck. Sanders, however, had quickly exited the truck and walked to the rear

       bumpers of the two parked cars. The pouch was found ten feet from Sanders,

       lying in the grass between the two parked cars. No other people were in sight,

       and the top of the pouch was “bone dry” despite the significant amount of dew

       on the ground that morning. Tr. Vol. II p. 85. In addition, the police found

       Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1935 | January 27, 2017   Page 7 of 8
       two cell phones, which were also dry on the top, about ten feet from the pouch.

       Despite Sanders’ claim that the phones did not belong to him, he knew the

       passcodes. And Mahalek gave wavering statements about ownership of the

       hydrocodone pills, first claiming that they were not hers, then claiming that

       they were hers, and last abandoning the claim altogether. This evidence is

       sufficient to prove that Sanders had knowledge of the hydrocodone pills in the

       pouch. See Womack v. State, 738 N.E.2d 320, 324 (Ind. Ct. App. 2000)

       (“[A]lthough it was snowing, the bag was covered by droplets of water and not

       snow flakes. This evidence was sufficient to support the inference that the bag

       of marijuana had only been on the ground a short time, and that the bag had

       been dropped by Womack and no one else.”), trans. denied.


[15]   Affirmed.

       Bradford, J., and Brown, J., concur.




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