 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,
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

STEVEN KNECHT                                        GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                           Attorney General of Indiana
Lafayette, Indiana
                                                     ERIC P. BABBS
                                                     Deputy Attorney General

                                                                                   FILED
                                                     Indianapolis, Indiana

                                                                               Feb 20 2012, 9:08 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                       CLERK
                                                                                     of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court




MATTHEW WEITZEL,                                     )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 08A05-1107-CR-336
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE CARROLL SUPERIOR COURT
                           The Honorable Kurtis G. Fouts, Judge
                              Cause No. 08D01-1004-FD-50


                                         February 20, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       Matthew Weitzel appeals his conviction for Class D felony possession of

methamphetamine.        Weitzel contends there is insufficient evidence to support his

conviction because the State failed to prove that he had either actual or constructive

possession of the methamphetamine.       The State sufficiently proved the elements of

possession of methamphetamine, including actual possession.          We therefore affirm

Weitzel’s conviction.

                              Facts and Procedural History

       The facts most favorable to the verdict are that on April 21, 2010, a naked man

presumed to be Weitzel ran from the home of his father, Rick Weitzel (“Rick”), to the

neighboring property of Sharon Stevenson. Stevenson’s property had a detached garage

and a separate shed. Stevenson saw Weitzel run across her property and go behind the

shed. Charles Beck’s property was on the other side of Stevenson’s property, and he saw

Weitzel beside Stevenson’s garage. Next to the garage was a pile of clothing including a

pair of khaki shorts with a wallet containing Weitzel’s driver’s license and a prescription

bottle with Weitzel’s name on it. Beck saw Weitzel rummaging through the pile of

clothing and “pull[] something out of the clothes.” Tr. p. 17. Weitzel then ran to the

shed behind the garage and went inside the shed.

       Stevenson called Rick and told him that someone from his house was naked and

running around her property. Rick came over and escorted his son, Weitzel, back to his

house. Beck called the Carroll County Sheriff’s Department to report the incident.




                                            2
        When the police arrived, an investigation revealed that there was a red metal

canister in a burrow underneath but still visible from outside the shed. The canister

contained a baggie with a whitish powdery substance that appeared to be

methamphetamine and later field-tested positive for methamphetamine.

        Carroll County Sheriff’s Department Deputies Spencer Kingery and Tony Liggett

went to Rick’s house and spoke with Weitzel. Weitzel’s demeanor was described as

jittery and he had red, watery eyes and a blank stare. Id. at 23. Deputy Liggett asked

Weitzel when he had last used methamphetamine and Weitzel said it had been “at least

four or five hours ago.” Id. at 38.

        The State charged Weitzel with Count I: Class D felony possession of

methamphetamine, Count II: Class C misdemeanor public nudity, and Count III: habitual

substance offender status. Count II was dismissed, and Count I was tried before a jury on

May 24, 2011. At the conclusion of the State’s case, Weitzel moved for a directed

verdict, that is, a judgment on the evidence, which was denied. Appellant’s App. p. 26.

The jury found Weitzel guilty of possession of methamphetamine.

        A bench trial was held on Count III, and Weitzel moved for a “directed verdict,”

which the trial court granted.1 A sentencing hearing was held on June 22, 2011, and the

trial court sentenced Weitzel to three years in the Department of Correction. Id. at 42-43.

        Weitzel now appeals.




        1
          We note that a motion for judgment on the evidence under Trial Rule 50 is improper at a bench
trial. Plesha v. Edmonds, 717 N.E.2d 981, 985 (Ind. Ct. App. 1999). Because the habitual offender count
was tried before the court without a jury, Weitzel’s motion was a motion for involuntary dismissal under
Trial Rule 41. See id.
                                                   3
                                Discussion and Decision

       Our standard of review with regard to sufficiency claims is well settled. In

reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence

or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.

App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable

to the verdict and the reasonable inferences draw therefrom and affirm if the evidence

and those inferences constitute substantial evidence of probative value to support the

verdict. Id. Reversal is appropriate only when a reasonable trier of fact would not be

able to form inferences as to each material element of the offense. Id.

       Class D felony possession of methamphetamine occurs when the defendant

“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) . . . .” Ind. Code § 35-48-4-6.1(a). A conviction

for possession of contraband may rest upon proof of either actual or constructive

possession. Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct. App. 2009), trans.

denied. Actual possession occurs when a person has direct physical control over the

substance, Walker v. State, 631 N.E.2d 1, 2 (Ind. Ct. App. 1994), and that actual

possession does not need to exist at the exact time as the law enforcement’s discovery of

the contraband. Wilburn v. State, 442 N.E.2d 1098, 1101 (Ind. 1982). Constructive

possession, on the other hand, occurs when the defendant has both (1) the intent and (2)

the capability to maintain dominion and control over the subject contraband. Atwood v.

State, 905 N.E.2d 479, 484 (Ind. Ct. App. 2009), trans. denied.


                                             4
       Weitzel contends that the State failed to show that he had either actual or

constructive possession of the methamphetamine.          Finding that the State provided

sufficient evidence of Weitzel’s actual possession of methamphetamine, we disagree.

       The evidence at trial indicated that Weitzel had used and therefore possessed

methamphetamine earlier in the day, Tr. p. 38, and that when he was questioned by

police, his demeanor was “jittery,” he had red, watery eyes, and he had a blank stare. Id.

at 23. Additionally, viewing the evidence in the light most favorable to the verdict, it was

also reasonable that the jury could infer that Weitzel was the naked man and that he did

have actual possession of the methamphetamine found beneath Stevenson’s shed.

Stevenson saw Weitzel go behind her shed where the methamphetamine was found, Beck

specifically saw Weitzel remove an object from the clothing beside the garage and run to

the shed, and the methamphetamine was found in a burrow beneath the shed. Id. at 17-

18, 60-61. Further, the pile of clothing found by the shed contained a prescription bottle

with Weitzel’s name on it, along with a wallet containing Weitzel’s driver’s license.

Taking all of this evidence together, the jury could reasonably infer that the

methamphetamine found was Weitzel’s and that he moved the methamphetamine from

his clothing to the shed.

       This evidence is sufficient to support Weitzel’s conviction for possession of

methamphetamine. We therefore affirm the trial court.

       Affirmed.

ROBB, C.J., and NAJAM, J., concur.




                                             5
