 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                 Oct 23 2014, 9:09 am
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
ELIZABETH A. BELLIN                                GREGORY F. ZOELLER
Elkhart, Indiana                                   Attorney General of Indiana

                                                   KARL M. SCHARNBERG
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

WILLIAM BALLENTINE,                                )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
           vs.                                     )       No. 20A03-1402-CR-84
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )

                    APPEAL FROM THE ELKHART SUPERIOR COURT
                       The Honorable George W. Biddlecome, Judge
                            Cause No. 20D03-0912-FC-00028

                                        October 23, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
         Following a jury trial, William Ballentine (“Ballentine”) was convicted in Elkhart

Superior Court of Class C felony possession of cocaine and Class A misdemeanor

possession of marijuana and sentenced to six years executed in the Department of

Correction. Ballentine appeals and presents two issues for our review:

         I. Whether the State presented evidence sufficient to support Ballentine’s
         conviction, and

         II. Whether the sentence imposed by the trial court is inappropriate in light of the
         nature of the offense and the character of the offender.

         We affirm.1

                                      Facts and Procedural History

         On December 1, 2009, Detective Jeremy Stout (“Detective Stout”) of the Elkhart

County Sheriff’s Department was on patrol, traveling eastbound on the Indiana Toll Road.

After he observed five or six vehicles traveling in a cluster westbound toward the city of

Gary, he turned his cruiser around and pulled behind the group of cars. Shortly thereafter,

one of the vehicles, a gray minivan, began to slow down from a speed of around seventy

miles per hour to around sixty miles per hour. Detective Stout could see the van’s driver,

later identified as Ballentine, watching Detective Stout in the van’s side mirror.

Eventually, the van began to follow within a single car length of a semi truck that was

also traveling in the westbound lanes. Recognizing this driving behavior to be a traffic

violation, Detective Stout stopped the van.



1
   We held oral argument in this appeal on September 23, 2014, at East Noble High School in Kendallville, Indiana.
We extend our gratitude to the faculty, staff, and students for their hospitality and commend counsel for the quality
of their written and oral advocacy.

                                                          2
       As Detective Stout approached the van on the passenger side, he observed that

Ballentine was the only occupant of the van. He also noticed that there were two air

fresheners hanging from the van’s rear view mirror. Through the passenger side window,

Detective Stout asked Ballentine, who was visibly nervous, to exit the vehicle for officer

safety purposes. He then requested and received Ballentine’s permission to retrieve the

van’s Vehicle Identification Number (“VIN”). As Detective Stout opened the van’s

driver’s side door, he noticed the strong odor of burnt marijuana. Detective Stout then

radioed for backup. When the backup officer arrived a few minutes later, Detective Stout

questioned Ballentine about the marijuana odor. Ballentine told Detective Stout that the

van belonged to his brother’s girlfriend and that she had probably smoked marijuana in it.

       Detective Stout opened the van’s front passenger door and immediately noticed

that the carpeting had been pulled away from the door trim on the floor. He pulled back

the carpeting and discovered a handgun hidden underneath. The handgun contained four

rounds in the magazine and one in the chamber and was within reach of the driver from

the driver’s seat. At this point, Detective Stout returned to where Ballentine was standing

with the other officer, placed him in handcuffs, and read him his Miranda rights.

Detective Stout asked Ballentine if he was nervous and Ballentine responded that he was

nervous, “because you found the gun in my car.” Tr. p. 88. Detective Stout then

continued his search of the van. Near where the gun had been hidden, he discovered a

digital scale with white residue that was later determined to be cocaine residue, a clear

plastic bag containing $1,753 in cash, and a bag containing a small amount of marijuana.

Detective Stout also found three cell phones in the van, a piece of notebook paper

                                            3
containing what appeared to be a ledger reflecting several different sales, and a paper bag

filled with empty plastic baggies. Detective Stout also observed that several screws were

missing from the plastic molding on the interior of the van’s rear hatch.

       Detective Stout transported Ballentine to the jail, during which time Ballentine

asked Detective Stout three or four times about the procedure to follow to have the cash

that was found in the van returned to him. Ballentine refused, however, to admit to

Detective Stout that the cash belonged to him.

       On December 7, 2009, the State charged Ballentine with Class C felony

possession of cocaine, Class A misdemeanor possession of marijuana, and Class A

misdemeanor carrying a handgun without a license. The State eventually dismissed the

handgun charge. After several continuances, a jury trial was held on December 9 and

December 10, 2013. The jury found Ballentine guilty of Class A felony possession of

cocaine and Class A misdemeanor possession of marijuana.

       The trial court held a sentencing hearing on January 9, 2014. At the hearing, the

court considered Ballentine’s criminal history, which included prior convictions for

felony possession of controlled substances and for misdemeanor attempted resisting

arrest, to be an aggravator.     It also found to be an aggravating circumstance that

Ballentine was released on bond for a previous drug charge at the time he committed the

instant offenses. The trial court considered to be mitigating circumstances the hardship

incarceration would cause on Ballentine and his family and the relatively small amounts

of drugs found in the van. The trial court sentenced Ballentine to six years executed in



                                             4
the Department of Correction for the possession of cocaine count and nine months

incarceration for the possession of marijuana count, to be served concurrently.

      Ballentine now appeals.

                             I. Sufficiency of the Evidence

      Ballentine first argues that the State presented insufficient evidence to support his

convictions for possession of cocaine and possession of marijuana. When considering a

challenge to the sufficiency of evidence to support a conviction, we respect the fact-

finder’s exclusive province to weigh conflicting evidence and therefore neither reweigh

the evidence nor judge witness credibility. McHenry v. State, 820 N.E.2d 124 (Ind.

2005). We consider only the probative evidence and reasonable inferences supporting

the verdict, and “must affirm ‘if the probative evidence and reasonable inferences drawn

from the evidence could have allowed a reasonable trier of fact to find the defendant

guilty beyond a reasonable doubt.’” Id. at 126 (quoting Tobar v. State, 740 N.E.2d 109,

111-12 (Ind. 2000)).

      To convict Ballentine of Class C felony possession of cocaine, the State was

required to prove beyond a reasonable doubt that Ballentine knowingly or intentionally

possessed cocaine. See Ind. Code § 35-48-4-6.         To convict Ballentine of Class A

misdemeanor possession of marijuana, the State was required to prove that Ballentine

knowingly or intentionally possessed marijuana in an aggregate weight of less than thirty

grams. See Ind. Code § 35-48-4-11.

      A conviction for possession of a controlled substance may rest upon proof of

either actual or constructive possession. See Britt v. State, 810 N.E.2d 1077 (Ind. Ct.

                                            5
App. 2004). “Actual possession occurs when the defendant has direct physical control

over the item, while constructive possession involves the intent and capability to maintain

control over the item even though actual physical control is absent.” Id. at 1082. Here,

the State alleged constructive possession.

       Evidence of constructive possession is sufficient where the State proves that the

defendant had both the intent and capability to maintain dominion and control over the

contraband. Hardister v. State, 849 N.E.2d 563 (Ind. 2006). The intent element of

constructive possession is shown if the State demonstrates the defendant’s knowledge of

the presence of the contraband. Goliday v. State, 708 N.E.2d 4 (Ind. 1999). This

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

premises 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.    Id.   These additional circumstances may include: (1) incriminating

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

manufacturing setting; (4) proximity of the defendant to the drugs; (5) drugs in plain

view; and (6) location of the drugs in close proximity to items owned by the defendant.

Hardister v. State, 849 N.E.2d 563. The capability element of constructive possession is

met when the State shows that the defendant was able to reduce the controlled substance

to the defendant’s personal possession. Goliday v. State, 708 N.E.2d 4.

       Ballentine argues that he did not constructively possess the cocaine and marijuana

because he did not have exclusive possession of the van or the items inside it, noting that

the van was registered to a Cassandra McBride, not to Ballentine.          Ballentine also

                                             6
emphasizes that he denied to Detective Stout that the drugs and contraband found in the

van belonged to him. Ballentine argues that the facts of this case are similar to those in

Brent v. State, 957 N.E.2d 648 (Ind. Ct. App. 2011). In Brent, this court concluded that

the evidence was insufficient to support a car passenger’s conviction for possession of

marijuana, either actual or constructive, where the officers detected the odor of marijuana

and saw marijuana thrown from the car, but the State failed to present evidence that the

marijuana was thrown from the passenger side window, the passenger did not have

exclusive possession of the car since another person was present inside the car, there was

no other evidence tending to incriminate the passenger, and the suspicious driving

behavior of the car could not be attributed to the passenger.

       The present case is easily distinguishable from Brent. Unlike the passenger in

Brent, Ballentine was the only person in the van at the time the drugs were discovered

and therefore had exclusive possession of the van, regardless of whether the van was

registered to him or to another person. Therefore, the evidence supports an inference that

Ballentine had the intent and capability to maintain control and dominion over the drugs.

See Goliday v. State, 708 N.E.2d 4 (Ind. 1999) (holding that sufficient evidence

established that defendant had constructive possession of marijuana found in car and

cocaine found in trunk of car, despite fact that defendant did not own car, where

defendant was only person in car when police stopped it, defendant had been living out of

vehicle, and clothes found in trunk near the cocaine belonged to defendant); see also

State v. Emry, 753 N.E.2d 19, 22 (Ind. Ct. App. 2001) (“Since Emry had exclusive



                                             7
control over the vehicle, it was proper for the jury to infer that Emry had the intent and

capability to exert dominion and control over the marijuana.”).

       Furthermore, unlike the passenger in Brent, none of Ballentine’s suspicious

behaviors can reasonably be attributed to any other person.          Ballentine was visibly

nervous during the traffic stop.      Detective Stout observed a strong odor of burnt

marijuana, air fresheners scattered throughout the van, and various items of contraband,

the empty baggies and the apparent ledger of sales, in plain sight from where Ballentine

sat in the driver’s seat, making it unlikely that another person placed those items in the

van without Ballentine’s knowledge.        From this evidence, a reasonable juror could

conclude that Ballentine had knowledge of the presence of the drugs and had the

capability and the intent to maintain control over the cocaine and marijuana. Ballentine’s

arguments amount to a request that we reweigh the evidence, which we will not do. See

McHenry, 820 N.E.2d 124. We therefore conclude that the State presented sufficient

evidence to support Ballentine’s convictions for possession of cocaine and possession of

marijuana.

                                II. Inappropriate Sentence

       Ballentine next argues that his sentence is inappropriate in light of the nature of

the offense and the character of the offender. Pursuant to Indiana Appellate Rule 7(B),

we may revise a sentence otherwise authorized by statute if, “after due consideration of

the trial court’s decision, the Court finds that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.” Although we have the power to

review and revise sentences, the principal role of our review should be to attempt to level

                                              8
the outliers, and identify some guiding principles for trial courts and those charged with

improvement of the sentencing statutes, but not to achieve what we perceive to be a

“correct” result in each case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App.

2011), trans. denied (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)).

       Also, “we must and should exercise deference to a trial court’s sentencing

decision, both because Rule 7(B) requires us to give ‘due consideration’ to that decision

and because we understand and recognize the unique perspective a trial court brings to its

sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The

question under Appellate Rule 7(B) is not whether another sentence is more appropriate;

rather, the question is whether the sentence imposed is inappropriate. Fonner v. State,

876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is the defendant’s burden on appeal to

persuade us that the sentence imposed by the trial court is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006). Here, Ballentine has failed to meet this

burden.

       Ballentine was convicted of a Class C felony and a Class A misdemeanor. The

sentencing range for a Class C felony is two to eight years, with four years being the

advisory sentence. See Ind. Code § 35-50-2-6. The sentencing range for a Class A

misdemeanor is up to one year. See Ind. Code § 35-50-3-2. Here, the trial court imposed

a sentence of six years for Ballentine’s Class C felony conviction and a sentence of nine

months for his Class A misdemeanor conviction, to be served concurrently. With this in

mind, we turn to Ballentine’s claim that his sentence is inappropriate.



                                             9
      Considering the nature of the offense, Ballentine seeks to minimize his culpability

by emphasizing that he cooperated with Detective Stout, that he did not attempt to flee

the scene, and that only a small amount of drugs was found inside the van. However, we

note that, although the amount of drugs found in the van was relatively small, a large

amount of cash was found in its place, along with what appeared to be a ledger of sales

and other contraband items, all of which support a reasonable inference that Ballentine

was returning home after having exchanged drugs for cash. See Jennings v. State, 553

N.E.2d 191 (Ind. Ct. App. 1990) (concluding that evidence supporting forfeiture of

money and automobile allegedly used in drug trafficking was not impermissibly based

upon an inference built on an inference; presence of money in quantities normally

associated with drug transactions led to inference that money was so used). We therefore

conclude that Ballentine’s sentence is not inappropriate in light of the nature of the

offenses.

      As for Ballentine’s character, the evidence shows that he has a prior felony

conviction for possession of a controlled substance in Illinois. He received probation for

that conviction, which he failed to successfully complete.        He was convicted for

attempted resisting arrest. He has also been charged with the following misdemeanors:

driving while suspended, battery, and resisting arrest. He received a deferred sentence

for the driving while suspended conviction, which was ultimately dismissed. The battery

and resisting charges were dismissed with leave to reinstate in November 2010.

Ballentine was on bond for a felony dealing or manufacturing a controlled substance

charge when he committed this crime. Despite Ballentine’s repeated contact with the

                                           10
criminal justice system, it is readily apparent that he has not been deterred from criminal

conduct. Therefore, we cannot say that the six-year sentence was inappropriate when

considering the nature of the offense and Ballentine’s character.

                                         Conclusion

       For all of these reasons, we conclude that the State provided sufficient evidence to

support Ballentine’s convictions for Class C felony possession of cocaine and Class A

misdemeanor possession of marijuana. We further conclude that Ballentine has failed to

meet his burden on appeal of demonstrating that his sentence of six years is inappropriate

in light of the nature of his character and his offense.

       Affirmed.

BAILEY, J., and ROBB, J., concur.




                                              11
