MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                    Jun 06 2019, 9:02 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Susan D. Rayl                                            Curtis T. Hill, Jr.
Hand | Ponist                                            Attorney General of Indiana
Horvath Smith & Rayl, LLC
Indianapolis, Indiana                                    Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dale Young,                                              June 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2818
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven Rubick,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G19-1808-CM-29189




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2818 | June 6, 2019                      Page 1 of 6
[1]   Dale Young appeals his convictions of Class B misdemeanor possession of

      marijuana 1 and Class C misdemeanor possession of paraphernalia. 2 Young

      argues the State did not present sufficient evidence to prove he constructively

      possessed the marijuana and paraphernalia found in a backpack in the locked,

      detached garage on his property. We affirm.



                               Facts and Procedural History
[2]   Because of a prior conviction, Young signed a contract with Marion County

      Community Corrections (“MCCC”) that “waive[d] his right against search

      seizure” and permitted MCCC staff or any law enforcement officer acting on

      MCCC’s behalf to “search [his] person, residence, motor vehicle, or any

      location where [his] personal property may be found, to insure compliance with

      the requirements of community correction” while on probation. (State’s Ex. 1

      at 1.) Young was not to possess alcohol or non-prescribed drugs, and he was to

      notify Community Corrections of any changes in his home situation. (Id. at 1,

      5.)


[3]   On August 28, 2018, MCCC case managers, Frankie Piland and Brooklynn

      Baker, and Officer Steve Hoffman conducted a home visit with Young to verify

      his compliance with the MCCC contract. While investigating, Officer Hoffman




      1
          Ind. Code § 35-48-4-11 (2018).
      2
          Ind. Code § 35-48-4-8.3 (2015).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2818 | June 6, 2019   Page 2 of 6
      noted Young’s locked, detached garage and obtained the key from Young.

      While inside the garage, Officer Hoffman noticed a backpack. Inside the

      backpack was a cannabis pipe and a glass mason jar containing marijuana.


[4]   Young was arrested and subsequently charged with Class B misdemeanor

      possession of marijuana and Class C misdemeanor possession of paraphernalia.

      The trial court found Young guilty on both counts and sentenced him to 180

      days for possession of marijuana and a sixty-days for possession of

      paraphernalia, to be served concurrently.



                                 Discussion and Decision
[5]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).

      Reversal is appropriate only when no reasonable fact-finder could find the

      elements of the crime proven beyond a reasonable doubt. Id. Thus, the

      evidence is not required to overcome every reasonable hypothesis of innocence

      and “is sufficient if an inference may reasonably be drawn from it to support the




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2818 | June 6, 2019   Page 3 of 6
      verdict.” Id. at 147 (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App.

      2001)).


[6]   Possession can be actual or constructive. Lampkins v. State, 682 N.E.2d 1268,

      1275 (Ind. 1997), modified on reh’g on other grounds, 685 N.E.2d 698 (Ind. 1997).

      “Actual possession occurs when a defendant has direct physical control over an

      item, whereas constructive possession occurs when a person has the intent and

      capability to maintain dominion and control over the item.” Griffin v. State, 945

      N.E.2d 781, 783 (Ind. Ct. App. 2011). We must determine whether the State

      proved Young constructively possessed the drugs and paraphernalia when he

      did not have direct physical control over the items the police found. “In cases

      where the accused has exclusive possession of the premises on which the

      contraband is found, an inference is permitted that he or she knew of the

      presence of contraband and was capable of controlling it.” Holmes v. State, 785

      N.E.2d 658, 661 (Ind. Ct. App. 2003). If possession is non-exclusive, the

      inference of possession is not permitted unless additional circumstances indicate

      “knowledge of the presence of the contraband and the ability to control it.”

      Person v. State, 661 N.E.2d 587, 590 (Ind. Ct. App. 1996), trans. denied. Young

      argues the State did not provide sufficient evidence he knew the marijuana and

      paraphernalia were in the garage. We disagree.


[7]   Young maintains that he was not in exclusive possession of the garage because

      his part-time roommate had access to the garage. Yet Piland testified that

      Young failed to “notify Community Corrections of any changes in [his] home



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2818 | June 6, 2019   Page 4 of 6
      situation(s)…” as required by his contract with MCCC, (State’s Ex. 1 at 5), and

      Officer Hoffman testified that Young “was the sole occupant of that house.”

      (Tr. Vol. II at 12.) Still, Young contends the State failed to include details

      useful in determining how many individuals lived in the house—e.g., what

      clothing or personal items were in the bedrooms—thus his testimony that he

      had a roommate was uncontradicted and should be presumed truthful.

      (Appellant’s Br. at 10.) However, the trial court did not find Young’s testimony

      credible. (See Tr. Vol. II at 41) (trial court said, “I simply don’t believe your

      client’s testimony”). Because we do not assess the credibility of the witnesses or

      reweigh the evidence in determining whether the evidence is sufficient, we

      cannot rely on the evidence to which Young points.


[8]   Because Young had exclusive possession and control over the detached garage,

      there was sufficient evidence to infer Young not only knew of the presence of

      the marijuana and paraphernalia but was also capable of controlling them.

      Young owned and lived in the house and, thus, owned the detached garage.

      “[A] house or apartment used as 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.” Martin v. State,

      372 N.E.2d 1194, 1197 (Ind. Ct. App. 1978). Young possessed the key that

      opened the locked, detached garage. Young’s belongings—clippers,

      lawnmowers, and tools—were in the garage near the backpack containing the

      marijuana and paraphernalia. This evidence is sufficient to support the court’s

      conclusion that Young had constructive possession of the marijuana and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2818 | June 6, 2019   Page 5 of 6
       paraphernalia. See Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) (defendant

       possessed cocaine when he had the key that opened the trunk of the car and his

       clothes were near the cocaine).



                                               Conclusion
[9]    The State presented sufficient evidence to prove Young possessed the marijuana

       and paraphernalia found in his locked, detached garage. Accordingly, we

       affirm his convictions.


[10]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2818 | June 6, 2019   Page 6 of 6
