MEMORANDUM DECISION                                                             FILED
                                                                           Sep 25 2017, 11:02 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court

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
John T. Wilson                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Carlos Menwell Arevalo, III,                             September 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A05-1703-CR-532
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1609-F4-1877



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-532 | September 25, 2017            Page 1 of 8
[1]   Carlos Menwell Arevalo, III, appeals his conviction for possession of

      methamphetamine as a level 4 felony. Arevalo raises one issue which we revise

      and restate as whether the evidence is sufficient to sustain his conviction. We

      affirm.


                                      Facts and Procedural History

[2]   On July 29, 2016, Anderson Police Detective Keith Gaskill was looking for

      Arevalo as he was the subject of a warrant. Detective Gaskill found Arevalo

      seated in the rear passenger side of a van parked on the west side of a

      McDonald’s parking lot along Scatterfield Road in Madison County, Indiana,

      and drove his vehicle to a parking space southeast of the van and radioed for

      assistance. While he waited, he observed two females in the front of the van

      conversing with two females standing outside the driver’s side window.


[3]   When assistance arrived, Detective Gaskill approached the passenger side of

      the van and observed the two females in the front seat sitting with their hands in

      their laps. He also observed that Arevalo was “kind of stooped over in the back

      behind the passenger side,” with his head close to his knees, and “sort of bent . .

      . where [Detective Gaskill] could see the top of his head.” Transcript at 68-69.

      Detective Gaskill opened the front passenger side door, identified himself as a

      police officer, and told the two seated females to keep their hands where he

      could see them, and they did so. Seconds later, he opened the rear sliding

      passenger door, Arevalo sat up and his “left hand slid out of [Detective

      Gaskill’s] view,” and Detective Gaskill asked Arevalo to “get his hands where

      [he] could see them.” Id. at 70.
      Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-532 | September 25, 2017   Page 2 of 8
[4]   Arevalo did not comply, at which point Detective Gaskill “grasped him by the

      right arm and . . . pulled him from the van.” Id. Once outside of the van,

      Arevalo started to place his right hand in his jean pocket. Detective Gaskill

      turned Arevalo around and handcuffed him, asking why Arevalo was sticking

      his hand in his pocket. Arevalo responded that he had “fresh rigs in there.”1 Id.

      at 71. Not wanting “to take a chance on puncturing [his] hands,” Detective

      Gaskill asked other officers who had arrived on the scene for puncture-resistant

      search gloves. Id. at 71-72. Officer Matthew Kopp replied that he had the

      gloves, Detective Gaskill turned Arevalo over to him, and Officer Kopp

      searched Arevalo and found ten syringes on him.


[5]   Meanwhile, Detective Gaskill turned back to the two females seated in the front

      of the van, obtained their names and information, and asked another officer on

      the scene to search for any outstanding wants or warrants, and nothing was

      outstanding. The females’ hands were immediately in front of Detective

      Gaskill for the entirety of the time he spoke to them.


[6]   Detective Gaskill then searched the area inside the van where he had

      withdrawn Arevalo. He first observed an unfolded, zip lock bag containing

      methamphetamine “hanging out . . . of the seam between where the top part of

      [the] seat in front of [Arevalo] and where the bottom part meet,” which was

      located in the “same place” as where Arevalo’s head had been when Detective



      1
       Detective Gaskill testified that he knew Arevalo “meant that he had syringes that were probably not used
      yet.” Transcript at 71.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-532 | September 25, 2017         Page 3 of 8
      Gaskill had opened the door. Id. at 72-73. He then observed on the van floor

      next to the left side of the seat where Arevalo’s “left hand [had] slid out of

      view” a syringe that had been “used or damaged” and “wasn’t fresh.” Id. at 73-

      74. Detective Gaskill last located a torn-off bottom of a soda can “right where

      [Arevalo’s] feet were at immediately below his seat.” Id. at 74.


[7]   On September 12, 2016, the State charged Arevalo with possession of

      methamphetamine as a level 4 felony and unlawful possession of syringe as a

      level 6 felony. On December 13 and 14, 2016, a jury trial was held at which the

      jury heard testimony from, among others, Detective Gaskill and Officer Kopp.

      Detective Gaskill testified as to the significance of the torn-off bottom of a soda

      can “as an instrument that’s used as part of a process for any injection

      intravenous injection of narcotics and other controlled substances.” Id. He also

      testified that syringes could be used for the same thing. The jury found Arevalo

      guilty on both counts. The trial court sentenced Arevalo to eight years for

      possession of methamphetamine and to one year for unlawful possession of

      syringe to be served concurrently.


                                                        Discussion

[8]   The issue is whether the evidence is sufficient to sustain Arevalo’s conviction

      for possession of methamphetamine as a level 4 felony.2 When reviewing

      claims of insufficiency of the evidence, we do not reweigh the evidence or judge




      2
          Arevalo does not challenge his conviction for unlawful possession of syringe as a level 6 felony.


      Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-532 | September 25, 2017                Page 4 of 8
       the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995),

       reh'g denied. Rather, we look to the evidence and the reasonable inferences

       therefrom that support the verdict. Id. We will affirm the conviction if there

       exists evidence of probative value from which a reasonable trier of fact could

       find the defendant guilty beyond a reasonable doubt. Id.


[9]    Arevalo argues that the State did not prove he actually or constructively

       possessed the contraband located in the van. Specifically, he asserts that his

       possession of the van and the contraband therein was not exclusive because he

       was one of three people inside the van at the time Detective Gaskill observed

       and approached it. He also argues that the State did not demonstrate that he

       had knowledge of the drug’s presence and nature, had control of the

       contraband, or had the intent to exclude others from such control.


[10]   The State contends that sufficient evidence supports Arevalo’s conviction and

       that he had constructive possession of the methamphetamine. Specifically, the

       State asserts that the testimony of Detective Gaskill, statements and actions of

       Arevalo, and the location of the drugs found at the scene support the inference

       that Arevalo had actual knowledge of the contraband’s presence and illegal

       character and intended to maintain dominion and control over it.


[11]   The offense of possession of methamphetamine is governed by Ind. Code § 35-

       48-4-6.1, which provides in part that a “person who, without a valid

       prescription or order of a practitioner acting in the course of the practitioner’s

       professional practice, knowingly or intentionally possesses methamphetamine


       Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-532 | September 25, 2017   Page 5 of 8
       (pure or adulterated) commits possession of methamphetamine.” The offense is

       a level 4 felony if “the amount of the drug involved is at least ten (10) but less

       than twenty-eight (28) grams.” Ind. Code § 35-48-4-6.1(c)(1).


[12]   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) (citing Macklin v. State, 701 N.E.2d 1247, 1251 (Ind. Ct. App.

       1998)), trans. denied. Constructive possession occurs when the defendant has

       actual knowledge of the presence and illegal character of the contraband and

       the capability and intent to maintain dominion and control over it. Id. To

       prove capability, the State must demonstrate that the defendant is able to reduce

       the contraband to his personal possession. K.F. v. State, 961 N.E.2d 501, 510

       (Ind. Ct. App. 2012), trans. denied. To prove intent,


               the State must demonstrate the defendant’s knowledge of the
               presence of the contraband. 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 that point to the defendant’s
               knowledge of the presence of the contraband.


       Id. (citations omitted). These additional circumstances may include: (1)

       incriminating statements by the defendant; (2) flight or furtive gestures; (3) the

       defendant’s proximity to the contraband; (4) the contraband being in plain

       view; or (5) the location of the contraband in close proximity to items owned by

       the defendant. Id.



       Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-532 | September 25, 2017   Page 6 of 8
[13]   The evidence most favorable to Arevalo’s conviction reveals that, when

       Detective Gaskill initially approached the van, Arevalo was stooped or bent

       over behind the passenger side seat with his head close to his knees and in the

       same place where the bag of methamphetamine was discovered by Detective

       Gaskill hanging out of a seam in the seat. Detective Gaskill observed the two

       females in the front seat with their hands in their laps and told them to keep

       their hands where he could see them, and they complied. Further, Arevalo sat

       up and slid his hand out of view when Detective Gaskill opened the rear van

       door. A used needle and torn-off soda can bottom, both of which Detective

       Gaskill testified were instruments of intravenous methamphetamine usage,

       were located near or below the seat in which Arevalo had been seated, and

       multiple unused syringes were found in his pocket, which Arevalo referred to as

       “fresh rigs.” The trier of fact could reasonably infer from the evidence as set

       forth above and in the record that Arevalo had knowledge of the contraband as

       well as the capability and intent to maintain control over it.


[14]   Based upon the record, we conclude that evidence of probative value exists

       from which the jury as trier of fact could find that Arevalo had constructive

       possession of the contraband and could have found him guilty beyond a

       reasonable doubt of possession of methamphetamine as a level 4 felony. See

       Harper v. State, 968 N.E.2d 843, 845 (Ind. Ct. App. 2012) (holding that the

       evidence was sufficient to prove that the defendant had constructive possession

       of contraband discovered in a purse and a motel room in light of the

       defendant’s proximity to the contraband and his attempt to flee), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-532 | September 25, 2017   Page 7 of 8
                                                   Conclusion

[15]   For the foregoing reasons, we affirm Arevalo’s conviction for possession of

       methamphetamine as a level 4 felony.


[16]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-532 | September 25, 2017   Page 8 of 8
