MEMORANDUM DECISION                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Nov 29 2018, 6:02 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
David W. Stone IV                                       Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Carlos Hernandez-Cabrera,                               November 29, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1302
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Angela Warner
Appellee-Plaintiff.                                     Sims, Judge.
                                                        Trial Court Cause No.
                                                        48C01-1609-F6-1838



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018                 Page 1 of 11
                                              Case Summary

[1]   Carlos Hernandez-Cabrera appeals his convictions for possession of

      methamphetamine, a Level 6 felony; possession of paraphernalia, a Class C

      misdemeanor; and maintaining a common nuisance, a Level 6 felony. We

      affirm in part and reverse in part.


                                                    Issues

[2]   Hernandez-Cabrera states three issues in his brief, which we restate as follows:


              I.      Whether the evidence is sufficient to convict Hernandez-
                      Cabrera of possession of methamphetamine, a Level 6
                      felony, and possession of paraphernalia, a Class C
                      misdemeanor.


              II.     Whether the evidence is sufficient to convict Hernandez-
                      Cabrera of maintaining a common nuisance, a Level 6
                      felony.


              III.    Whether Hernandez-Cabrera’s convictions for possession
                      of methamphetamine and maintaining a common
                      nuisance violate the prohibition against double jeopardy.


                                                     Facts

[3]   On September 7, 2016, Officer Zach Sieg and Officer Bert Chambers of the

      Anderson Police Department went to a house in Anderson to serve an arrest




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018   Page 2 of 11
warrant. 1 The State did not present evidence on why the police went to that

particular house to serve a warrant on Hernandez-Cabrera, who owned the

house, or who lived in the house. When the officers knocked on the door, an

unknown child between eight and ten years of age answered the door. The

officers entered the house and went to a small bedroom inside. There, the

officers found Hernandez-Cabrera sleeping in his boxers on the bed. The

officers also noticed two glass smoking pipes on the floor next to the bed and an

additional glass smoking pipe next to a “small baggie with crystal-like

substance” on a table in the closet. Tr. Vol. II p. 45. The closet door was a

curtain, which was already pulled back when the officers entered the room.

The closet’s proximity to the door made the contents of the closet easily visible

to the officers once they walked into the bedroom. Hernandez-Cabrera was

then taken into custody based on the officers’ observations of the drugs and

drug paraphernalia. After Hernandez-Cabrera was taken into custody, he

picked up his clothes, which were lying on the floor directly next to the two

glass smoking pipes, and got dressed. Other than Hernandez-Cabrera’s clothes

on the floor, it is not clear whether the bedroom was Hernandez Cabrera’s, or

even whether the room belonged to a male or female. 2




1
  The fact that officers went to serve a warrant on Hernandez-Cabrera himself was not discussed in front of
the jury per court order. Instead, Officer Sieg merely testified that he went to serve a warrant, and the jury
was not told explicitly that the warrant was for Hernandez-Cabrera.
2
  In reviewing the State’s exhibits, which include photographs of the bedroom, contents of the bedroom
included: food, trash, cell phones, cell phone chargers, loose change, scissors, vitamins, men’s razors,
women’s hygiene products, alcohol, cough drops, several sweatshirts and jackets, a television, and other
various unidentified items.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018                   Page 3 of 11
[4]   Officers cleared the house to ensure that no one other than Hernandez-Cabrera

      and the child who answered the door was in the house. Officer Chambers

      stated that later that evening, two adult females and two or three more children

      arrived at the house. The officers did not know the identities of the children,

      who the children’s parents were, or whether the children lived in the home.

      Hernandez-Cabrera never admitted the items in the bedroom belonged to him.

      The substance found in the closet tested positive for methamphetamine.


[5]   The State charged Hernandez-Cabrera with Count I, possession of

      methamphetamine, a Level 6 felony; and Count II, possession of paraphernalia,

      a Class C misdemeanor. The State later added Count III, maintaining a

      common nuisance, a Level 6 felony. A jury convicted Hernandez-Cabrera of

      all three counts. Hernandez-Cabrera was sentenced to two and one-half years

      for Count I; sixty days for Count II; and two and one-half years for Count III,

      with his sentence to be served concurrently at the Department of Correction.

      Hernandez-Cabrera received an aggregate sentence of two and one-half years.

      Hernandez-Cabrera now appeals.


                                                   Analysis

[6]   Hernandez-Cabrera challenges the sufficiency of the evidence for all three of his

      convictions. When there is a challenge to the sufficiency of the evidence, “[w]e

      neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51

      N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind.

      1985), cert. denied). Instead, “we ‘consider only that evidence most favorable to

      the judgment together with all reasonable inferences drawn therefrom.’” Id.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018   Page 4 of 11
      (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

      supported by ‘substantial evidence of probative value even if there is some

      conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also

      McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

      there was conflicting evidence, it was “beside the point” because that argument

      “misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will

      affirm the conviction unless no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696

      (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


                   I.       The Possession of Methamphetamine and Possession of
                                         Paraphernalia Convictions

[7]   Hernandez-Cabrera was convicted of two separate possession offenses. First,

      Hernandez-Cabrera was convicted of possession of methamphetamine, a Level

      6 felony, under Indiana Code Section 35-48-4-6.1(a). Indiana Code Section 35-

      48-4-6.1(a) states:


              [a] person who, without a valid prescription or order of a
              practitioner acting in the course of the practitioner’s professional
              practice, knowingly or intentionally possesses methamphetamine
              (pure or adulterated) commits possession of methamphetamine, a
              Level 6 felony . . . .


      Second, Hernandez-Cabrera was convicted of possession of paraphernalia, a

      Class C misdemeanor, under Indiana Code Section 35-48-4-8.3(b)(1). Indiana

      Code Section 35-48-4-8.3(b)(1) states: “[a] person who knowingly or

      intentionally possesses an instrument, a device, or another object that the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018   Page 5 of 11
       person intends to use for . . . . introducing into the person’s body a controlled

       substance . . . . commits a Class C misdemeanor.”


[8]    Hernandez-Cabrera specifically argues that: (1) Hernandez-Cabrera did not

       have “the exclusive control and possession of the property”; and (2) Hernandez-

       Cabrera did not have “constructive possession of the meth[amphetamine] or

       paraphernalia.” Appellant’s Br. p. 5. Hernandez-Cabrera does not appear to

       challenge the other elements of his possession offenses.


[9]    Hernandez-Cabrera did not have the methamphetamine or paraphernalia on his

       person. Rather, the items were found in the small room that Hernandez-

       Cabrera was sleeping in when police arrived. Accordingly, in the absence of

       actual possession of drugs, “constructive” possession may support a conviction

       for a drug offense. See Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App. 2018).

       In proving constructive possession, the State must show “that the defendant has

       both (i) the intent to maintain dominion and control over the drugs and (ii) the

       capability to maintain dominion and control over the drugs.” Id.


[10]   Here, the capability element was met as to both the methamphetamine and

       paraphernalia. The paraphernalia was within arm’s reach of Hernandez-

       Cabrera. The methamphetamine, while not necessarily within arm’s reach, was

       still on a table in the closet in very close proximity to Hernandez-Cabrera, and

       easily visible to those—including the officers—who walked in the room where

       Hernandez-Cabrera was sleeping.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018   Page 6 of 11
[11]   The intent element was also established. “When a defendant’s possession of

       the premises on which drugs are found is not exclusive, then the inference of

       intent to maintain dominion and control over the drugs ‘must be supported by

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

       the controlled substances and their presence.’” Id. (citing Lampkins v. State, 682

       N.E.2d 1268, 1275 (Ind. 1997), on reh’g, 685 N.E.2d 698 (Ind. 1997)). “Among

       recognized additional circumstances are: (1) incriminating statements made by

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

       setting; (4) proximity of the defendant to the contraband; (5) the contraband

       being in plain view; and (6) the location of the contraband being in close

       proximity to items owned by the defendant.” Harrison v. State, 32 N.E.3d 240,

       248 (Ind. Ct. App. 2015) (citing Floyd v. State, 791 N.E.2d 206, 210-11 (Ind. Ct.

       App. 2003), trans. denied), trans denied.


[12]   The methamphetamine and the smoking pipes were in close proximity to

       Hernandez-Cabrera, and in close proximity to Hernandez-Cabrera’s belongings.

       When officers arrived, Hernandez-Cabrera was undressed and asleep on a

       mattress, which was directly next to the smoking pipes and mere feet away

       from the methamphetamine. When Hernandez-Cabrera dressed himself after

       he was awakened by officers, Hernandez-Cabrera’s clothes were immediately

       next to the smoking pipes. Hernandez-Cabrera’s argument that evidence of

       other additional circumstances was not presented is simply an invitation to

       reweigh evidence, which we cannot do.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018   Page 7 of 11
[13]   Accordingly, there was sufficient evidence for a jury to find that Hernandez-

       Cabrera had constructive possession of the methamphetamine and the

       paraphernalia. The evidence is sufficient to support Hernandez-Cabrera’s

       conviction for possession of methamphetamine and possession of

       paraphernalia.


                       II.      The Maintaining a Common Nuisance Conviction

[14]   Hernandez-Cabrera was charged with maintaining a common nuisance, a Level

       6 felony, under Indiana Code Section 35-45-1-5(c). Indiana Code Section 35-

       45-1-5(c) states: “[a] person who knowingly or intentionally maintains a

       common nuisance commits maintaining a common nuisance, a Level 6

       felony.” The statute also defines common nuisance as follows:


               (a) [a]s used in this section, “common nuisance” means a
                   building, structure, vehicle, or other place that is used for (1)
                   or more of the following purposes:


                                                *****


                       (3) [t]o unlawfully:


                                (A) use;


                                (B) manufacture;


                                (C) keep;


                                (D) offer for sale;


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018   Page 8 of 11
                                (E) sell;


                                (F) deliver; or


                                (G) finance the delivery of;


               a controlled substance or an item of drug paraphernalia (as
               described in IC 35-48-4-8.5).


       Ind. Code § 35-45-1-5(a)(3).


[15]   Indiana Code Section 35-45-1-5 was enacted in 2016 after the legislature

       repealed the previous statute, Indiana Code Section 35-48-4-13, which governed

       maintaining a common nuisance. There have been several amendments to the

       statute, which resulted in questions about whether the legislature intended to

       require proof that an act or occurrence take place more than once to support a

       conviction for maintaining a common nuisance. In Leatherman v. State, a panel

       of this court outlined the history of the amendments, saying:


               Under the 2008 version of the statute, there was no requirement
               for ongoing instances of prohibited activity; as the Seventh
               Circuit noted in Wheeler v. Lawson, the 2008 version of the statute
               abrogated Wells . . . . The “one or more times” language
               remained in the statute for several years, until the statute was
               again updated in Indiana Code Section 35-45-1-5 (2016) to
               remove the language . . . . The 2016 amendment to the statute is
               significant in that it evidences a conscious desire on the part of
               our Legislature that the common nuisance statute not be applied
               to isolated instances of prohibited activity . . . .


       101 N.E.3d 879, 883-884 (Ind. Ct. App. 2018) (emphasis supplied).
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018   Page 9 of 11
[16]   The 2016 version, which the Leatherman court discusses, was the version of the

       statute in effect at the time Hernandez-Cabrera was charged. Therefore,

       Hernandez-Cabrera’s concivction should be analyzed keeping in mind that the

       legislature intended “that a common nuisance is one in which continuous or

       recurrent prohibited activity takes place.” Leatherman, 101 N.E.3d at 884.


[17]   Hernandez-Cabrera argues that “[t]he evidence in this case, at most, showed an

       isolated occurrence of prohibited activity. There was no evidence of a recurrent

       or continuing violation required to be guilty of maintaining a common

       nuisance.” Appellant’s Br. p. 14. Therefore, according to Hernandez-Cabrera,

       the evidence was not sufficient to support the conviction. The State does not

       address this argument. 3


[18]   We agree with Hernandez-Cabrera that there was no evidence presented that

       the activity was continuous or recurrent. The State does not refute this

       argument. Accordingly, the evidence was insufficient to convict Hernandez-

       Cabrera of maintaining a common nuisance, a Level 6 felony. We, therefore,

       reverse and vacate Hernandez-Cabrera’s conviction on this count. Accordingly,

       because we reverse and vacate this conviction, we do not address Hernandez-

       Cabrera’s double jeopardy argument.




       3
         While the State’s brief identifies that one of the issues in dispute is “[w]hether the State presented sufficient
       evidence to sustain Hernandez-Cabrera’s convictions,” the State only addresses whether the evidence
       supported the possession charges. Appellee’s Br. p. 5. The State does not address arguments directly
       regarding the maintaining a common nuisance conviction.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018                     Page 10 of 11
                                                  Conclusion

[19]   For the foregoing reasons, we find there was sufficient evidence to convict

       Hernandez-Cabrera of possession of methamphetamine, a Level 6 felony, and

       possession of paraphernalia, a Class C misdemeanor. However, the evidence

       was insufficient to convict Hernandez-Cabrera of maintaining a common

       nuisance, a Level 6 felony. Therefore, we reverse and vacate Hernandez-

       Cabrera’s conviction and vacate his sentence on that count only. Because we

       find there is insufficient evidence on Hernandez-Cabrera’s maintaining a

       common nuisance conviction, we decline to address the double jeopardy issue.

       We affirm in part and reverse in part.


[20]   Affirmed in part, reversed in part.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1302 | November 29, 2018   Page 11 of 11
