MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D), this                              Apr 25 2018, 9:36 am
Memorandum Decision shall not be regarded as
                                                                               CLERK
precedent or cited before any court except for the                         Indiana Supreme Court
                                                                              Court of Appeals
purpose of establishing the defense of res judicata,                            and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brandon E. Murphy                                         Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana

                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Katie J. Love,                                            April 25, 2018

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          38A02-1706-CR-1455
        v.                                                Appeal from the Jay Superior Court.
                                                          The Honorable Max C. Ludy, Jr.,
                                                          Judge.
State of Indiana,                                         Trial Court Cause No.
Appellee-Plaintiff.                                       38D01-1612-CM-0282




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018              Page 1 of 10
                                          Statement of the Case
                                                                                          1
[1]   Katie Love (Katie) was convicted of possession of paraphernalia as a Class C

      misdemeanor. She appeals after her bench trial contending that there is

      insufficient evidence to support that conviction. We affirm.


                                                    Issues
[2]   The issues Katie presents for our review are as follows:


                 I.       Whether there was sufficient evidence admitted at Katie’s
                          bench trial to establish beyond a reasonable doubt that she
                          was in constructive possession of paraphernalia she
                          intended to use to introduce a controlled substance into
                          her body; and
                 II.     Whether the trial court abused its discretion and violated
                         Katie’s Fifth and Sixth Amendment rights by considering
                         inadmissible hearsay evidence outside the record.

                                   Facts and Procedural History
[3]   Pennville Town Marshal Keith Farmer was dispatched on the evening of

      November 23, 2016, to the scene of a church at the intersection of Highway 1

      and Highway 26, approximately three miles south of Pennville, Indiana, in Jay

      County. A person had reported that there was a car in the parking lot with

      several occupants inside who were nonresponsive. Farmer immediately

      proceeded to the location indicated by the report.




      1
          Ind. Code § 35-48-4-8.3(b)(1) (2015).


      Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018   Page 2 of 10
[4]   Upon arriving, Town Marshal Farmer found two cars in the parking lot of the

      church. One car belonged to the person who had contacted dispatch. Farmer

      approached the driver’s side door of the other car and observed a female driver,

      a female front-seat passenger, and a male passenger in the back seat behind the

      front-seat passenger. All three occupants appeared to be passed out or asleep

      and the car’s engine was still running. Katie was the female in the front seat on

      the passenger side. Farmer described the interior of the car as having a bench

      seat in the back and two bucket seats in the front. He could not determine

      whether the car was in park or was in drive when he first approached it.


[5]   Farmer knocked on the driver’s side window, but none of the car’s occupants

      responded. One of the car doors was unlocked. When Farmer opened the

      door, the interior lights of the car came on and the driver, Sandra Love, woke

      up first. After asking Sandra if she was alright, he noticed that the front-seat

      passenger, Katie, awoke. A few seconds later, the passenger in the back seat

      behind Katie, Blake Hall, awoke. The car was registered to Sandra Love.


[6]   Farmer asked Sandra Love to turn the car’s engine off. Because of her

      condition, however, she was unable to do so. Farmer then reached inside the

      car, verified that the car was in park, turned off the ignition, and took the keys.


[7]   Farmer became suspicious that criminal activity had been going on when he

      observed a glass pipe, which appeared to have some type of residue in it, on the

      center console near the gear shift of the car between Sandra and Katie. Farmer

      had already called for medics and continued talking to Sandra to determine her


      Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018   Page 3 of 10
       condition. Farmer did not remove any of the occupants from the car, as he

       awaited the arrival of the medics on the scene.


[8]    Medics arrived within a few minutes of his call for assistance. As the medics

       unpacked their gear, Farmer assisted Sandra in exiting the car. He described

       her condition as being unable to stand without assistance, she had to lean

       against the car, and she could not walk. He testified that she appeared to be

       very intoxicated.


[9]    Once the medics began attending to Sandra, Farmer then approached Katie.

       According to Farmer, Katie was also intoxicated and disoriented. She was

       sweating, her eyes were half-closed and glassy, and her speech was slow and

       slurred. He testified that she was able to somewhat follow what he was saying

       and engaged in limited conversation with him to a certain extent but not fully.

       He further testified that it did not appear that she understood why he was there.


[10]   As Farmer was helping Hall exit from the back seat of Sandra’s car, he noticed

       another glass pipe between Hall’s feet on the floor of the car. Farmer testified

       that he discovered a bag containing a substance that looked like marijuana, but

       was different, “on Mr. Hall’s person.” Tr. p. 16. Over the objection of counsel

       for Katie as being irrelevant to her charges, the trial court allowed Farmer to

       testify as to the full extent of the facts and circumstances surrounding his

       investigation which included his testimony that he discovered a second, much

       larger, bag of the substance in the crotch area of Hall’s pants between his

       underwear and pants. Id.


       Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018   Page 4 of 10
[11]   Katie was released at the scene. Sandra was transported to the hospital and

       Hall was arrested. The probable cause affidavit pertinent to charges filed

       against Sandra and Hall, which was not admitted at Katie’s trial, is included in

       the record on appeal for the charges against Katie only because it was referred

       to in the trial court’s Order on trial and is the basis of support of Katie’s

       allegation of reversible error. The probable cause affidavit includes the

       following information: “[Hall] stated that the material in the bags was ‘spice’.”

       Appellant’s App. Vol. II, p. 10.


[12]   On December 5, 2016, the State charged Katie with one count of Class B

       misdemeanor public intoxication and one count of Class C misdemeanor

       possession of paraphernalia. At the conclusion of Katie’s bench trial, wherein,

       Farmer was the only witness to testify, the trial court found Katie guilty of the

       lesser offense, possession of paraphernalia, but not guilty of public intoxication,

       the more serious offense.


[13]   We note that in a criminal case the trial court is not required to make either

       findings of fact or conclusions of law. Dozier v. State, 709 N.E.2d 27, 30 (Ind.

       Ct. App. 1999) (citing Nation v. State, 445 N.E.2d 565, 570 (Ind. 1983)).


[14]   Specifically, the trial court’s “Order on Trial” included the following findings:

               3.     All three (3) individuals were impaired, and they were
               intoxicated, in the opinion of Pennville Town Marshal, Keith Farmer.
               4.    According to Blake Hall, a substance found in the vehicle
               was “spice[.]”
               ....

       Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018   Page 5 of 10
               6.     A fair inference from the evidence is that all three (3)
               individuals were intoxicated from the smoking of “spice”.
               7.     A search of the vehicle disclosed a glass smoking pipe on
               the front seat console, and another glass pipe was on the backseat
               floor.
               8.     The evidence presented gives rise to the inference that all
               three (3) of the individuals had used the glass pipes in order to
               ingest the “spice”.
       Id. at 28.


                                    Discussion and Decision
[15]   Katie waived jury trial and the matter was submitted to the trial court in a

       bench trial. There is a strong presumption that the trial court knows the law,

       and will consider only properly admitted evidence in reaching its decision. See,

       Dumas v. State, 803 N.E.2d 1113, 1121 (Ind. 2004); Moran v. State, 622 N.E.2d

       157, 159 (Ind. 1993).


[16]   Katie now appeals contending that the evidence is insufficient to establish,

       beyond a reasonable doubt, that she possessed paraphernalia intended for use to

       introduce a controlled substance into her body. Ind. Code § 35-48-4-8.3(b)(1).

       Upon review of a challenge to the sufficiency of the evidence, we consider only

       the evidence introduced during trial and reasonable inferences most favorable to

       the convictions, neither reweighing evidence nor reassessing witness credibility.

       Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment

       unless no reasonable factfinder could find the defendant guilty. Id.




       Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018   Page 6 of 10
[17]   To establish that Katie committed possession of paraphernalia, the State was

       required to prove beyond a reasonable doubt that she knowingly or

       intentionally possessed an instrument, a device, or another object that she

       intended to use for introducing a controlled substance into her body. Ind. Code

       § 35-48-4-8.3(b)(1).


[18]   Possession can be either actual or constructive. Sargent v. State, 27 N.E.3d 729,

       732-33 (Ind. 2015). Actual possession occurs when a person has direct physical

       control over the item. Id. If the State cannot show actual possession, it may

       nonetheless prevail on proof of constructive possession. Id. “A person

       constructively possesses [an item] when the person has (1) the capability to

       maintain dominion and control over the item; and (2) the intent to maintain

       dominion and control over it.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011)

       (citing Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g,

       685 N.E.2d 698 (Ind. 1997)).


[19]   It is undisputed that the evidence herein establishes that the glass pipe located

       on the center console of the car between the driver and Katie was within her

       reach. Therefore, it is reasonable to assume that she could have exercised

       dominion and control over the glass pipe. Further, without objection, Marshal

       Farmer testified that in his experience in law enforcement, glass pipes such as

       the one he observed are used to ingest marijuana, or substances bearing similar

       characteristics as marijuana, such as spice. Given Katie’s proximity to the glass

       pipe in the center of Sandra’s car, in addition to Katie’s physical condition as



       Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018   Page 7 of 10
       described by Farmer, the trial court could reasonably infer that she had ingested

       an illicit substance or intended to do so.


[20]   Alone mere possession of paraphernalia, when a statute requires evidence of

       intent, is not sufficient to establish that crime without additional evidence of

       intent. Sluder v. State, 997 N.E.2d 1178, 1181 (Ind. Ct. App. 2013). “The intent

       to introduce a controlled substance into one’s body may be inferred from

       circumstantial evidence.” Id. Evidence of the character of the instrument or

       instruments alone cannot sustain the element of intent. McConnell v. State, 540

       N.E.2d 100, 102 (Ind. Ct. App. 1989).


[21]   Farmer’s unchallenged testimony as to his training and experience as a law

       enforcement officer and that he had encountered glass pipes before, which are

       typically used to ingest marijuana or other illegal substances was admitted into

       evidence. Farmer additionally testified that in his experience in law

       enforcement he had encountered marijuana and spice before. He stated that the

       substance he found in the bags had “the appearance, the characteristics of

       synthetic cannabinoids or spice.” Tr. p. 15.


[22]   Katie argues that the evidence is insufficient because the lab reports for the

       substances recovered from Hall’s possession were not admitted into evidence

       and that the glass pipes were not sent for testing of the residue found therein. A

       similar argument was presented in Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct.

       App. 2010), trans. denied. In Boggs, the defendant argued that his conviction

       should be reversed because there was no direct evidence of the chemical


       Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018   Page 8 of 10
       makeup or identification of the substances because there was no testing by the

       Indiana State Police Laboratory. In Clifton v. State, 499 N.E.2d 256, 258 (Ind.

       1986), a case discussed in Boggs, our supreme court held that the identity of a

       drug can be proved by circumstantial evidence. The supreme court further

       elaborated in a case also discussed in Boggs, Vasquez v. State, 741 N.E.2d 1214,

       1216-17 (Ind. 2001), that someone sufficiently experienced with a drug may

       establish its identity, as may other circumstantial evidence. The court noted,

       however, that chemical analysis, although one way, is perhaps the best way to

       establish the identity of the substance. Id. at 1216.


[23]   In the present case, while it might have been better for the State to have

       presented evidence of testing by the Indiana State Police Laboratory, and

       wherein it may have been better for the trial court not to have referred to Hall’s

       statement made to Marshal Farmer upon being arrested, such does not warrant

       reversal in this case. “[I]n a criminal case the trial court is not required to make

       either findings of fact or conclusions of law.” Dozier v. State, 709 N.E.2d 27, 30

       (Ind. Ct. App. 1999) (citing Nation v. State, 445 N.E.2d 565, 570 (Ind. 1983)).


[24]   In this case, taking into consideration the totality of the undisputed facts and

       circumstances and the evidence presented during the course of trial, also while

       acknowledging that there is a strong presumption that the trial court knows the

       law and that the trial court would apply it properly, we consider the trial court’s

       reference to Hall’s statement to Farmer in the context in which it was admitted

       at trial was superfluous and had no effect on the trial court’s decision that the



       Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018   Page 9 of 10
       State has established with independent evidence the elements of the offense

       with which Katie was charged beyond a reasonable doubt.


                                                Conclusion
[25]   In light of the foregoing, we affirm the trial court’s judgment.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1455 | April 25, 2018   Page 10 of 10
