MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Mar 26 2019, 9:07 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                          Curtis T. Hill, Jr.
Bargersville, Indiana                                    Attorney General

                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Zachary Wilson,                                          March 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2337
        v.                                               Appeal from the Clay Circuit
                                                         Court
State of Indiana,                                        The Honorable Joseph D. Trout,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         11C01-1802-CM-77



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019                Page 1 of 11
                                             Case Summary
[1]   Zachary Wilson appeals his conviction for class B misdemeanor possession of

      marijuana. He argues that the evidence is insufficient to support his conviction.

      He also argues that one of the conditions of probation imposed by the trial court

      is improper. We conclude that the evidence is sufficient and therefore affirm

      Wilson’s conviction. However, we agree that one of the probation conditions is

      improper and therefore remand with instructions to amend it.


                                 Facts and Procedural History
[2]   On January 20, 2018, Clay County Sheriff’s Deputies Robert VanBuren and

      Andrew Longyear visited the home where Wilson lived with his girlfriend,

      Dana Okulovich, to perform a welfare check. As the officers approached the

      home, they detected the odor of burnt marijuana. Deputy VanBuren knocked

      on the back door, and Wilson answered. Deputy VanBuren was familiar with

      Wilson and asked if Okulovich was home. Okulovich spoke with Deputy

      VanBuren on the porch. Deputy VanBuren informed Wilson and Okulovich

      that he smelled the odor of burnt marijuana, informed them of their Miranda

      rights, and asked for consent to search the home. They both refused consent.


[3]   Deputy VanBuren obtained a search warrant for the home, while Deputy

      Longyear remained with Wilson and Okulovich in the kitchen. About an hour

      after the officers’ initial approach of the residence, Deputy VanBuren obtained

      the search warrant. The officers began the search of the residence in the master

      bedroom. The bedroom held two dressers, one used by Okulovich, and the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019   Page 2 of 11
      other, a brown one in the corner, used by Wilson. Tr. Vol. 2 at 66-67. In the

      “top open area” of Wilson’s dresser, Deputy VanBuren found a pair of

      hemostats with burnt residue on the ends and a black rectangular Samsung-

      branded container “that had small green plant-like material inside of it.” Id. at

      15-16. Based on his knowledge, experience, and training as a police officer, he

      believed that the substance in the black container was marijuana. Id. at 25-26.


[4]   Deputy Longyear continued searching the same part of the dresser, which he

      described as a “cubby hole or drawer, where a drawer should be,” and he found

      “several other small pieces of green leafy substances located in there.” Id. at 34.

      From his training and experience, Deputy Longyear believed that the green

      leafy substance found in the Samsung container and in the “cubby hole or

      drawer” was marijuana. Id. Deputy Longyear recognized the odor of the green

      leafy substance as that of raw marijuana. Id. at 35. Deputy Longyear also

      smelled the burnt residue at the tip of the hemostats found in the dresser and

      concluded that the odor was consistent with that of burnt marijuana. Deputy

      Longyear observed that the dresser contained men’s underwear and men’s

      shirts. Id. at 43. Okulovich identified the compartment in which the officers

      found the hemostats, the black container, and the loose marijuana as Wilson’s

      “junk drawer,” which she did not “pilfer through.” Id. at 67.


[5]   The State charged Wilson with class B misdemeanor possession of marijuana.

      Wilson and Okulovich were jointly tried at a bench trial. The trial court found

      Wilson guilty as charged and acquitted Okulovich. The trial court sentenced

      Wilson to 180 days in jail, all suspended to probation. Paragraph 6 of Wilson’s

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019   Page 3 of 11
      probation conditions stated in part, “The defendant acknowledges that testing

      positive for any of the above will be deemed a violation of probation.”

      Appellant’s App. Vol. 2 at 23. This appeal ensued.


                                     Discussion and Decision

          Section 1 – The evidence is sufficient to support Wilson’s
                                conviction.
[6]   Wilson challenges the sufficiency of the evidence supporting his conviction. In

      reviewing a claim of insufficient evidence, we do not reweigh the evidence or

      judge the credibility of witnesses, and we consider only the evidence that

      supports the judgment and the reasonable inferences arising therefrom. Bailey v.

      State, 907 N.E.2d 1003, 1005 (Ind. 2009). It is “not necessary that the evidence

      ‘overcome every reasonable hypothesis of innocence.’” Drane v. State, 867

      N.E.2d 144, 147 (Ind. 2007) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind.

      1995)). “We will affirm if there is substantial evidence of probative value such

      that a reasonable trier of fact could have concluded the defendant was guilty

      beyond a reasonable doubt.” Bailey, 907 N.E.2d at 1005.


[7]   To convict Wilson of class B misdemeanor possession of marijuana, the State

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

      intentionally possessed marijuana. Ind. Code § 35-48-4-11(a)(1); Appellant’s

      App. Vol. 2 at 12. Wilson first argues that the State failed to introduce sufficient

      evidence to establish that the substances found in Wilson’s dresser were

      marijuana. The officers described what they found in Wilson’s junk drawer as


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019   Page 4 of 11
      “small green plant-like material” and “green leafy substances.” Tr. Vol. 2 at 15,

      34. Deputy Longyear also smelled the green leafy substance and recognized

      that it smelled like raw marijuana. Both officers testified that based on their

      training and experience, they believed that what they found was marijuana. 1


[8]   Our supreme court has explained,


                 the testimony of an observer, skilled in an art or possessing
                 knowledge beyond the ken of the average juror may be nothing
                 more than a report of what the witness observed, and therefore,
                 admissible as lay testimony. [T]he identity of a drug can be
                 proven by circumstantial evidence. …. The opinion of someone
                 sufficiently experienced with the drug may establish its identity,
                 as may other circumstantial evidence. Although chemical
                 analysis is one way, and perhaps the best way, to establish the
                 identity of a compound, persons experienced in the area may be
                 able to identify cigarette smoke, marijuana, and even toluene.
                 This is true even if every citizen may not be up to that task.


      Vasquez v. State, 741 N.E.2d 1214, 1216-17 (Ind. 2001) (citations and quotation

      marks omitted). See also Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009)

      (“The State is not required to introduce the subject contraband to obtain a

      conviction for dealing or possession [of controlled substances]. The identity

      and quantity of a controlled substance, and the defendant’s possession of or

      dealing in narcotics, may all be established through witness testimony and

      circumstantial evidence.”) (citations omitted). Accordingly, we conclude that




      1
          Wilson did not object to their testimony based on lack of sufficient foundation.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019         Page 5 of 11
      the officers’ testimony is sufficient to identify the substance found in Wilson’s

      dresser as marijuana. See McConnell v. State, 540 N.E.2d 100, 103-04 (Ind. Ct.

      App. 1989) (“In our opinion, Officer Lewis’s testimony that the substance

      appeared to be marijuana was sufficient evidence from which the jury could

      infer that the substance was marijuana[.]”). 2


[9]   Wilson also asserts that the State failed to introduce sufficient evidence that he

      knowingly possessed the marijuana. Wilson did not have actual possession of

      the marijuana, and therefore the State was required to prove that he had

      constructive possession of the marijuana. Constructive possession is established

      when “the State shows 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.” Gee v. State, 810 N.E.2d 338, 340 (Ind.

      2004). Wilson asserts that the evidence of his intent to maintain dominion and

      control over the marijuana is insufficient because the State failed to prove that

      there was a sufficient quantity of the marijuana to support an inference that he




      2
        Wilson argues that his case is like A.M. v. State, 981 N.E.2d 91 (Ind. Ct. App. 2012), in which another
      panel of this Court concluded that the evidence was insufficient to support A.M.’s adjudication as a juvenile
      delinquent for committing what would be possession of paraphernalia if committed by an adult. There, the
      statute under which A.M. was adjudicated a delinquent applied to a controlled substance, which included
      both marijuana and spice. See Ind. Code §§ 35-48-4-8.3(a) (defining possession of paraphernalia) and 35-48-
      2-4(d) (classifying marijuana and spice as schedule 1 controlled substances). The State charged A.M. with
      possession of paraphernalia with the intent to use it to smoke marijuana. The officer testified that the residue
      on the pipe smelled like marijuana but that the odors of burnt marijuana and burnt spice “are pretty close to
      the same thing.” 981 N.E.2d at 95. The officer also admitted that he could be wrong, and that to truly
      distinguish between marijuana and spice, a person “would have to look at the chemical makeup between the
      two.” Id. The court concluded that the evidence was insufficient to prove that A.M. intended to smoke
      marijuana from the pipe. Id. A.M. is readily distinguishable because the drug residue on the pipe could have
      been residue from either marijuana or spice.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019                     Page 6 of 11
       knew it was in his junk drawer. He contends that even though the officers

       found the marijuana in the drawer, they were searching for it, and a person who

       was not searching for marijuana may not have noticed “marijuana remnants.”

       Appellant’s Br. at 11.


[10]   “It is well established that the State need not plead or prove that any particular

       amount of narcotic drug was found.” Cooper v. State, 171 Ind. App. 350, 362,

       357 N.E.2d 260, 266 (1976). The State does not have to prove the existence of

       a particular amount of marijuana to support a conviction for class B

       misdemeanor possession of marijuana because this offense does not require

       possession of a particular amount. See id. at 363, 357 N.E.2d at 267 (“The

       statute under which Cooper was convicted makes no mention of an amount of

       drug necessary to sustain a conviction. It is reasonable to conclude, then, that

       the legislature intended that any identifiable amount be sufficient.”).


[11]   Nevertheless, pursuant to Indiana Code Section 35-48-4-11(a)(1), the State must

       prove that Wilson knowingly or intentionally possessed marijuana. Culpability

       is defined in Indiana Code Section 35-41-2-2:


               (a) A person engages in conduct “intentionally” if, when he
               engages in the conduct, it is his conscious objective to do so.


               (b) A person engages in conduct “knowingly” if, when he
               engages in the conduct, he is aware of a high probability that he
               is doing so.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019   Page 7 of 11
       “When constructive possession is asserted, the State must demonstrate the

       defendant’s knowledge of the contraband.” Taylor v. State, 482 N.E.2d 259, 261

       (Ind. 1985) (quoting Woods v. State, 471 N.E.2d 691, 694 (Ind. 1984)). “This

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

       the premise[s] 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.” Whitney v. State, 726 N.E.2d 823, 826 (Ind. Ct.

       App. 2000) (quoting Taylor, 482 N.E.2d at 261). Here, Wilson does not dispute

       that he had exclusive possession of his dresser. Nevertheless, he argues that

       there was such a small amount of marijuana that additional evidence is

       necessary to show that he knew the marijuana was there.


[12]   In support of his argument, Wilson relies on Whitney. There, Whitney was the

       driver and sole occupant of a vehicle he had borrowed, and he was stopped for

       a traffic violation. During the traffic stop, the officer learned that Whitney’s

       license was suspended and arrested him. The officer smelled the odor of

       marijuana in the vehicle and saw in plain view a partially smoked marijuana

       cigarette on the floor of the driver’s compartment. The officer searched the

       vehicle for other contraband and discovered a panel above the glove

       compartment that was loose. The officer popped it open and discovered a

       brown paper bag containing marijuana and cocaine. Whitney was charged

       with and convicted of possession of marijuana and possession of cocaine. He

       appealed his conviction for possession of cocaine, arguing that the State failed

       to prove that he knew that the cocaine was in the vehicle.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019   Page 8 of 11
[13]   The Whitney court noted that although Whitney had borrowed the vehicle, he

       had exclusive possession of the vehicle when he was arrested. Id. at 826. The

       court recognized that Whitney’s exclusive possession was “some evidence”

       from which it might ordinarily be inferred that he was aware of the cocaine in

       the car. Id. However, because the cocaine was hidden in a secret

       compartment, the court held that “additional evidence of guilty knowledge”

       was necessary to establish intent. Id. The Whitney court concluded that such

       evidence existed, noting that the officer smelled marijuana emanating from the

       vehicle, a marijuana cigarette was on the floor of the driver’s compartment, the

       panel behind which the drugs were hidden was popped open on one side, and

       marijuana was found in the secret compartment. Id. The court concluded that

       “based on Whitney’s use of marijuana and the fact that marijuana was found in

       the secret compartment, the trier of fact could reasonably infer that Whitney

       knew the drugs were in the vehicle.” Id.


[14]   We cannot agree that this case is similar to Whitney. Here, the officers found

       the marijuana in Wilson’s dresser, which held his personal items and over

       which he had exclusive control. Okulovich described the compartment in

       which the marijuana was found as Wilson’s junk drawer. Okulovich was

       certainly aware of Wilson’s junk drawer, and if she knew about it, then it is




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019   Page 9 of 11
       reasonable to infer that Wilson knew about it. 3 Although both Wilson and

       Okulovich slept in the bedroom, she did not pilfer through Wilson’s junk

       drawer. Further, regardless of the amount of marijuana found by the officers, it

       was in large enough pieces to be seen with the naked eye, and the officers also

       found a pair of hemostats with burnt marijuana residue in the same drawer.

       This evidence supports a reasonable inference that Wilson knew the marijuana

       was in his junk drawer. We conclude that the evidence is sufficient to support

       Wilson’s conviction.


             Section 2 – The challenged probation condition must be
                                    amended.
[15]   Paragraph 6 of Wilson’s probation conditions prohibit him from possessing or

       using a number of substances, and the last sentence of that paragraph states,

       “The defendant acknowledges that testing positive for any of the above will be

       deemed a violation of probation.” Appellant’s App. Vol. 2 at 23-24 (emphasis

       added). Wilson contends that this condition removes the State’s obligation to

       prove a probation violation and therefore must be modified in a manner similar

       to that in Hoeppner v. State, 918 N.E.2d 695 (Ind. Ct. App. 2009).


[16]   In that case, Hoeppner’s probation conditions included the following: “Positive

       results [of a lie detection test] will constitute a violation of your probation.” Id.




       3
         In his appellant’s reply brief, Wilson argues that a “cubby hole,” as Deputy Longyear referred to Wilson’s
       junk drawer, may be similar to a hidden compartment. Appellant’s Reply Br. at 4. Deputy Longyear
       explained that perhaps the dresser was missing a drawer, but the “cubby hole” was where a drawer would
       have been. Tr. Vol. 2 at 34.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019                  Page 10 of 11
       at 700 (emphasis added). The Hoeppner court recognized Hoeppner’s “concern

       that the clause seem[ed] to deprive him of due process rights by stating that

       positive results will constitute a probation violation, seemingly removing the

       State’s obligation to prove that a violation has, in fact, occurred.” 4 Id. (citing

       Ind. Code § 35-38-2-3, requiring State to prove probation violation by a

       preponderance of the evidence). The Hoeppner court remanded with

       instructions to the trial court to amend the sentence to replace “will” with

       “may.” Id.


[17]   The State acknowledges that to the extent that the sentence Wilson objects to

       removes the State’s obligation to prove that he violated probation, applying the

       clause would violate his due process rights. Thus, to avoid any violation of

       Wilson’s due process rights, we remand with instructions to the trial court to

       amend the sentence at issue to read, “The defendant acknowledges that testing

       positive for any of the above may be deemed a violation of probation.”


[18]   Affirmed and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       4
         The Hoeppner court observed that the results of a polygraph examination are not admissible in criminal
       proceedings because it had not been found to be scientifically reliable, but that “said results are admissible in
       a probation revocation proceeding because a probation revocation hearing is not an adversarial criminal
       proceeding, but a civil matter which requires more flexible procedures.” 918 N.E.2d at 700.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2337 | March 26, 2019                      Page 11 of 11
