MEMORANDUM DECISION                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Mar 28 2017, 10:29 am

this Memorandum Decision shall not be                                       CLERK
                                                                        Indiana Supreme Court
regarded as precedent or cited before any                                  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
Nathan L. Pearson                                        Curtis T. Hill, Jr.
Starkes Law Office                                       Attorney General of Indiana
Winamac, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Earl Beem,                                               March 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         75A05-1606-CR-1523
        v.                                               Appeal from the Starke Circuit
                                                         Court
State of Indiana,                                        The Honorable Kim Hall, Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         75C01-1603-F6-32



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017           Page 1 of 10
[1]   Earl Beem appeals his convictions for Level 6 Felony Possession of

      Methamphetamine,1 Level 6 Felony Maintaining a Common Nuisance,2 and

      Class C Misdemeanor Possession of Paraphernalia, 3 arguing that the evidence is

      insufficient to support the convictions. Finding the evidence sufficient, we

      affirm.


                                                    Facts
[2]   In February 2016, the Hamlet Police Department began receiving complaints

      regarding drug activity in a Hamlet residence that belonged to Melissa Howard.

      As a result, the police department began conducting trash pulls at that address

      from February to March 4, 2016. In the trash that they pulled, officers found

      various items used to ingest illegal substances, including needles, syringes, and

      spoons.


[3]   On February 22, 2016, Hamlet Police Chief Frank Lonigro went to Howard’s

      residence at the request of the Department of Child Services. While there,

      Chief Lonigro encountered Beem, who told the chief that he was living at that

      address. Chief Lonigro saw Beem at that residence a total of five times between

      mid-February and March 4, 2016. Howard’s ex-husband also stated that Beem

      was living at the residence.




      1
          Ind. Code § 35-38-4-6.1(a).
      2
          I.C. § 35-48-4-13(b)(1) (2016).
      3
          I.C. § 35-48-4-8.3(b)(1) (2016).


      Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017   Page 2 of 10
[4]   On March 4, 2016, police officers applied for and were granted a search warrant

      for Howard’s residence. While applying for the warrant, an officer learned that

      Beem had left the residence in a vehicle. The officer followed the car and

      eventually detained Beem while the warrant for Howard’s residence was being

      executed. During the search of Howard’s residence, police officers found

      aluminum foil pieces4 with white residue on them on the dresser in plain view

      in the master bedroom and “a lot of baggies in one bag” that had white, flaky

      residue in them. Tr. Vol. II p. 116. Some of these items later tested positive for

      methamphetamine.


[5]   On March 8, 2016, the State charged Beem with Level 6 felony possession of

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

      C misdemeanor possession of paraphernalia. At Beem’s May 18 and 19, 2016,

      jury trial, the State presented evidence that Beem had been living at Howard’s

      residence and that he and Howard had smoked methamphetamine together.

      The jury found Beem guilty as charged and, on June 1, 2016, the trial court

      imposed an aggregate sentence of thirty months. Beem now appeals.


                                      Discussion and Decision
[6]   Beem’s sole argument on appeal is that the evidence is insufficient to support

      his convictions. When reviewing a claim of insufficient evidence, we will




      4
       Chief Lonigro later testified that foil pieces are a common way to ingest illegal substances. Tr. Vol. II p.
      116.

      Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017               Page 3 of 10
      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

      the defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d

      1003, 1005 (Ind. 2009).


        I. Possession of Methamphetamine and Paraphernalia
[7]   To convict Beem of Level 6 felony Possession of Methamphetamine, the State

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

      intentionally possessed methamphetamine. I.C. § 35-48-4-6.1. Similarly, to

      convict Beem of Class C misdemeanor possession of paraphernalia, the State

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

      intentionally possessed an instrument, device, or other object that he intended

      to use for introducing into his body a controlled substance. I.C. § 35-48-4-8.3.


[8]   Because Beem did not have actual possession of the drugs or paraphernalia, the

      State was required to prove that he constructively possessed the contraband.

      Constructive possession occurs when “somebody has the intent and capability

      to maintain dominion and control over the item” without having direct physical

      control over it. Henderson v. State, 715 N.E.2d 833, 835. The key to proving

      intent is the defendant’s knowledge of the contraband’s presence, which can be

      inferred from either “the exclusive dominion and control over the premise

      containing the contraband or, if the control over the premise is non-exclusive,

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


      Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017   Page 4 of 10
       the presence of the contraband.” Id. These additional circumstances may be

       established by (1) incriminating statements made by the defendant, (2)

       attempted flight or furtive gestures, (3) location of substances like drugs in a

       setting that suggests manufacturing, (4) proximity of the contraband to the

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

       (6) the mingling of contraband with other items owned by the defendant. Id. at

       836.5


[9]    Beem raises two arguments with respect to these convictions. First, he argues

       that he did not have a possessory interest in Howard’s residence. Second, he

       argues that even if we found that he was an occupant of that home, the State

       failed to present additional circumstances pointing to his knowledge of the

       presence of the methamphetamine and paraphernalia.


[10]   A possessory interest is not defined by ownership but, instead, by whether a

       person has control over a residence. E.g., Gee, 810 N.E.2d at 340-41 (holding

       that “a residence is controlled by the person who lives in it and that person may

       be found in control of any drugs discovered therein, whether he is the owner,

       tenant, or merely an invitee”). Here, the State presented ample evidence

       establishing that, in the month leading up to the execution of the search




       5
         Beem implies that the State was required to prove all of these circumstances, but that is incorrect. These
       factors are not exclusive, and the State is not required to present evidence for more than one factor. Gee v.
       State, 810 N.E.2d 338, 344 (Ind. 2004) (holding that “the State is required to show that whatever factor or set of
       factors it relies upon in support of the intent prong of constructive possession, those factors or set of factors
       must demonstrate the probability that the defendant was aware of the presence of the contraband and its
       illegal character”) (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017                Page 5 of 10
       warrant, Beem had been living at Howard’s residence with her permission and,

       therefore, had some degree of control over the home. Beem told Chief Lonigro

       that he was living there, and the chief observed Beem at that residence five

       times between mid-February and March 4, 2016. Melissa’s ex-husband also

       testified that Beem had been living at the residence and that he had seen Beem

       at that address at the end of February 2016. Additionally, text messages

       between Beem and Howard show Beem referring to “our [bed]room.” State’s

       Ex. 9. Moreover, in a phone call between Beem and Howard, Howard accused

       him of leaving her on the day the search warrant was executed but he disagreed,

       saying, “I was comin’ right back home, babe.” State’s Ex. 20. We find this

       evidence sufficient to establish that he was living at Howard’s residence and

       possessed the capability to maintain dominion and control over the

       methamphetamine and paraphernalia.


[11]   As Beem did not have exclusive dominion and control over the residence,

       however, the State is required to offer additional evidence establishing his

       knowledge of the presence of the contraband. As noted above, one of the ways

       in which the State can make this showing is by offering evidence of

       incriminating statements made by the defendant. Henderson, 715 N.E.2d at 836.

       Here, the State submitted into evidence a series of text messages between

       Howard and Beem that took place the day before the search warrant was

       executed:




       Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017   Page 6 of 10
        Howard:           I think we should dress warm go to garage and
                          smoke all of what we have. I can sneak the fools
                          out too. Gonna take a box out with me


                                                  ***


        Beem:             Up to u . . . Id rather stay in our room baby.


                                                  ***


        Beem:             ] smoke a boat[6] how much isleft.


        Howard:           Not much. That’s why I haven’t gotten it out.


                                                  ***


        Howard:           … to bring some foil. Tell Hayley it’s about gone so
                          only us are smoking. We an scrape bags and clean
                          tooters after we smoke if you want.


        Beem:             I f*cking love u beautiful….


State’s Ex. 9 and 11 (spelling and grammatical errors original). Additionally,

the State offered into evidence an audio recording of a phone call between

Beem and Howard that occurred while Beem was in jail and awaiting his trial:




6
 Howard testified that a “boat” is “aluminum foil folded into a boat-like shape to ingest methamphetamine.”
Tr. Vol. II p. 217.

Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017          Page 7 of 10
        Beem:            ‘Cause that’s also when you had all that—um—in
                         that bag, with you also, remember?


        Howard:          Hmm.


        Beem:            And I went to jail like two (2) days later—or the
                         next day . . . .


                                                ***


        Beem:            It was two (2) days after ‘cause you still had the
                         little—it was the next day! It was the next day.


        Howard:          Hmm.


        Beem:            You know. ‘Cause we saved a little bit, it was the
                         next day.


        Howard:          Right.


        Beem:            Right.


State’s Ex. 20. This evidence is sufficient to constitute an additional factor

establishing Beem’s knowledge of the contraband. Specifically, a reasonable

factfinder could infer from these statements, together with the fact that some of

the contraband was in plain sight on top of a dresser in Howard’s bedroom, that

Beem had the intent and capability to maintain dominion and control over the

methamphetamine and paraphernalia. In other words, the evidence is sufficient




Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017   Page 8 of 10
       to establish that Beem constructively possessed methamphetamine and

       paraphernalia and to support his convictions for these offenses.


                        II. Maintaining a Common Nuisance
[12]   To convict Beem of Level 6 felony Maintaining a Common Nuisance, the State

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

       intentionally maintained a building that was used one or more times by persons

       to unlawfully use controlled substances. I.C. § 35-48-4-13(b) (2016) (since

       repealed, amended, and recodified at Indiana Code section 35-45-1-5). This

       Court has held that the evidence required to support a conviction for

       maintaining a common nuisance “is comparable to the evidence required to

       prove constructive possession.” Halferty v. State, 930 N.E.2d 1149, 1152 (Ind.

       Ct. App. 2010). In other words, the State must show that the defendant has the

       intent and capability to maintain dominion and control over the contraband.

       Id. The State does not have to prove that a defendant owned a residence to

       support a conviction for maintaining a common nuisance. Mack v. State, 23

       N.E.3d 742, 758 (Ind. Ct. App. 2014).


[13]   Here, as noted above, Beem had been living at Howard’s residence, with her

       permission, for the month leading up to the execution of the search warrant. As

       a result, he had the ability to maintain dominion and control over the house.

       We find that the evidence set forth above, including their conversations

       regarding using methamphetamine together, readily supports a conclusion that




       Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017   Page 9 of 10
       he had the intent and capability to maintain dominion and control over both

       the residence and the contraband therein.


[14]   Beem argues that the statute requires that the State prove that the building was

       used by “persons” on one or more occasions and that here, the State did not

       prove that multiple people used controlled substances in the residence. We

       disagree. As set forth above, the State introduced evidence of both text

       messages and phone calls in which Beem and Howard discuss using

       methamphetamine together. A reasonable factfinder could infer from this

       evidence that at least two people used Howard’s residence to ingest

       methamphetamine. Therefore, we find the evidence sufficient to support this

       conviction.


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


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




       Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017   Page 10 of 10
