MEMORANDUM DECISION                                                                    FILED
                                                                                08/22/2017, 10:58 am
Pursuant to Ind. Appellate Rule 65(D),                                                 CLERK
                                                                                 Indiana Supreme Court
this Memorandum Decision shall not be                                               Court of Appeals
                                                                                      and Tax Court
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
Barbara J. Simmons                                       Curtis T. Hill, Jr.
Oldenburg, Indiana                                       Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Davin Shaw
                                                         Law Clerk
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Hiram Bankhead,                                          August 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1701-CR-88
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda E. Brown,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Peggy Hart,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G10-1609-CM-35718



Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017             Page 1 of 7
                                          Case Summary
[1]   On September 11, 2016, Officer Clayton Portell of the Indianapolis

      Metropolitan Police Department (“IMPD”) pulled over a white Chevrolet

      Tahoe because he could not read the temporary license plate in the window.

      After he ran the license plate number, he noticed that the expiration date on the

      license plate was different from the date shown by the Bureau of Motor Vehicle

      (“BMV”) return. Thinking that the vehicle may be stolen, Officer Portell called

      for another officer to come to the scene. Officer Portell approached the vehicle,

      and asked Appellant-Defendant Hiram Bankhead to exit the vehicle. Upon

      arriving at the scene, the other officer searched the vehicle and discovered a pill

      bottle containing a Schedule IV controlled substance prescribed to Rita

      Bankhead in the center console of the vehicle. Officer Portell asked Hiram

      about the pills, to which Hiram responded that the pills were his mother’s and

      that he had been taking them but was not aware that he could not do so.


[2]   Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged

      Hiram with Count 1, Class A misdemeanor possession of a controlled

      substance and Count 2, Class C misdemeanor displaying an altered interim

      license plate. Following a bench trial, Hiram was found guilty as charged and

      was sentenced to 365 days with 361 days suspended for Count 1. Hiram asserts

      that the State presented insufficient evidence to support the possession charge.

      Because we disagree, we affirm.



                            Facts and Procedural History
      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017   Page 2 of 7
[3]   On September 11, 2016, while on patrol, Officer Portell observed a white

      Chevrolet Tahoe traveling on Washington Street. Officer Portell noticed that

      there was a temporary license plate “taped up to the right side of the vehicle.”

      Tr. p. 5. However, Officer Portell testified that the way the license plate was

      placed along with the tint on the window made the plate difficult to read.


[4]   Due to the fact that he could not adequately read the license plate, Officer

      Portell activated his lights and sirens and initiated a traffic stop. Officer Portell

      then pulled up behind the vehicle and ran the plate. After running the plate,

      Officer Portell noticed that the expiration date that he received on his lap top

      was different from the one that appeared on the plate itself. According to the

      BMV return, the plate’s expiration date was March 11, 2016. However, the

      license plate itself showed that the plate expired on September 11, 2016. After

      discovering that the plates were different, and thinking that the vehicle may

      have been stolen, Officer Portell requested that another officer come to the

      scene. Officer Portell then approached the vehicle.


[5]   While walking towards the vehicle, Officer Portell noticed Hiram, who was the

      driver and sole occupant of the vehicle, “moving around a lot.” Tr. p. 6.

      Therefore, for his own safety, Officer Portell asked Hiram to exit the vehicle

      and to walk to the back of the vehicle. While standing in between his and

      Hiram’s vehicle, Officer Portell noticed that there was a printed out number

      nine taped over the number three on the expiration date; thus explaining why

      the expiration date on the license plate differed from the date from the BMV

      return.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017   Page 3 of 7
[6]   After confronting Hiram about the altered plate, Officer Portell asked him for

      consent to search the vehicle. Hiram gave consent to search the vehicle and

      IMPD Officer Dustin Carmack performed the search while Officer Portell

      remained with Hiram. During his search, Officer Carmack opened the center

      console of the vehicle and found a pill bottle sitting in plain view. The pill

      bottle was prescribed to Hiram’s mother, Rita Bankhead, and it contained

      Tramadol Hydrochloride, which is a Schedule IV controlled substance. When

      questioned about the pills, Hiram admitted that he had been taking his mother’s

      pills for pain in his shoulder and that he was unaware that he could not do so.


[7]   Subsequently, the State charged Hiram with Count 1, Class A misdemeanor

      possession of a controlled substance and Count 2, Class C misdemeanor

      displaying an altered interim license plate. Following a bench trial, Hiram was

      found guilty for both charges and was sentenced to 365 days with 361 days

      suspended for Count 1. Hiram argues on appeal that the State presented

      insufficient evidence to sustain his conviction for possession of a controlled

      substance because the State failed to prove that he had exclusive or constructive

      possession of the contraband. Because we disagree, we affirm.



                                 Discussion and Decision
[8]   Hiram asserts that the State did not provide sufficient evidence to convict him

      of possession of a controlled substance because they failed to prove that he had

      knowledge or exclusive or constructive possession of the contraband. When

      reviewing a sufficiency of the evidence claim, we will neither reweigh the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017   Page 4 of 7
      evidence nor asses the credibility of witnesses. Bell v. State, 31 N.E.3d 495, 499

      (Ind. 2015). We will only consider the “probative evidence and reasonable

      inferences drawn from the evidence that support the verdict.” Bocanegra v. State,

      969 N.E.2d 1026, 1028 (Ind. Ct. App. 2012). If a reasonable trier of fact can

      find a defendant guilty beyond a reasonable doubt based on the probative

      evidence and reasonable inferences drawn from the evidence, we will affirm.

      Id. We consider conflicting evidence “most favorably to the trial court’s

      ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). Moreover, it is “not

      necessary that the evidence ‘overcome every reasonable hypothesis of

      innocence.’” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting Moore v.

      State, 652 N.E.2d 53, 55 (Ind. 1995)).


[9]   In order to convict Hiram of the charged offense, the State was required to

      prove that he, “without a valid prescription or order of a practitioner acting in

      the course of the practitioner’s professional practice, knowingly or intentionally

      possess[ed] a controlled substance (pure or adulterated) classified in schedule I,

      II, III, or IV.” Ind. Code § 35-48-4-7. Hiram contends that the State did not

      meet its burden to prove beyond a reasonable doubt that he had exclusive or

      constructive possession of the contraband. Hiram also alleges that because the

      State could not prove that he had knowledge that the contraband was in the

      vehicle, it could not be said that he had either the intent or capability to control

      the contraband. However, given Hiram’s exclusive possession of the vehicle at

      the time of the traffic stop, as well as him admitting to taking the drugs, his

      suspicious movements during the traffic stop, and the proximity of the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017   Page 5 of 7
       contraband to him, we believe that the State produced sufficient evidence to

       sustain the possession conviction.


[10]   Hiram had exclusive possession of the vehicle because he was the sole occupant

       and driver of the vehicle at the time of the arrest. See Whitney v. State, 726

       N.E.2d 823, 827 (Ind. Ct. App. 2000) (court determined that the driver had

       exclusive possession of the vehicle because he was the driver and sole occupant

       of the vehicle when he was stopped by the police). “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). Being the sole occupant and driver of the vehicle infers Hiram’s

       exclusive possession over the vehicle and, subsequently, his knowledge that the

       contraband was in the vehicle. Therefore, the trial court justifiably inferred

       Hiram’s knowledge of as well as his intent to possess the contraband.


[11]   Moreover, we believe that the State provided sufficient evidence to establish

       that Hiram had constructive possession of the contraband. “Constructive

       possession is established by showing that the defendant has the intent and

       capability to maintain dominion and control over the contraband.” Id. at 660.

       The following circumstances permit the trier of fact to infer intent: a

       defendant’s incriminating statements; a defendant’s attempting to leave or

       making furtive gestures; the location of the contraband in settings suggesting

       manufacturing; the item’s proximity to the defendant; the location of the

       contraband within the defendant’s plain view; and the mingling of contraband

       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017   Page 6 of 7
       with other items the defendant owns. Gray v. State, 957 N.E.2d 171, 175 (Ind.

       2011). We believe that the following three circumstances are applicable to this

       case: Hiram’s incriminating statement, Hiram making furtive gestures, and the

       item’s proximity to Hiram.


[12]   During trial, Officer Portell testified that Hiram admitted to taking the pills, and

       that he was unaware that it was illegal to do so. Officer Portell also recalls that

       after he pulled Hiram over, he could see Hiram moving around in the driver’s

       seat. These movements made Officer Portell concerned for his safety which is

       why he approached Hiram and asked him to exit his vehicle. Moreover, while

       Hiram did not have the pill bottle on his person, the pill bottle was found sitting

       in close proximity to Hiram, in plain view in the center console that was “right

       next to the driver’s seat.” Tr. p. 22. Given these facts, we conclude that the

       State provided sufficient evidence to prove that Hiram had knowledge of the

       contraband and the intent and capability to possess the contraband to support

       the possession conviction.


[13]   The judgment of the trial court is affirmed.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-88 | August 22, 2017   Page 7 of 7
