      MEMORANDUM DECISION                                                         Nov 25 2015, 6:54 am


      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
      Barbara J. Simmons                                       Gregory F. Zoeller
      Oldenburg, Indiana                                       Attorney General of Indiana
                                                               Karl M. Scharnberg
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Donald Sample,                                          November 25, 2015

      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              49A02-1503-CR-141
              v.                                              Appeal from the Marion Superior
                                                              Court.
      State of Indiana,                                       The Honorable Jose Salinas, Judge.
                                                              The Honorable John Alt, Magistrate.
      Appellee-Plaintiff.                                     Cause No. 49G14-1408-F6-39902




      Shepard, Senior Judge

[1]   A police officer stopped Sample’s car for changing lanes without signaling.

      During a search of the car, the officer discovered a pipe and a bag of

      methamphetamine. Sample appeals his convictions of possession of




      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015      Page 1 of 6
                                                        1
      paraphernalia, a Class A misdemeanor, and possession of methamphetamine,
                                            2
      a Class A misdemeanor. We affirm.


                                                    Issue
[2]   Sample contends there is insufficient evidence to support his convictions.


                                   Facts and Procedural History
[3]   On the morning of August 13, 2014, Sample drove his girlfriend to work in her

      car. Next, he drove to an auto parts store to purchase items for maintenance on

      the car, and then he went to a friend’s house. Sample worked on the car at his

      friend’s house until 4:30 p.m., when he left to pick up his girlfriend.


[4]   At the same time, Officer Jovan Lopez of the Indianapolis Metropolitan Police

      Department was driving on the west side of Indianapolis. He changed lanes

      and drove behind Sample’s car. Officer Lopez observed Sample change lanes

      without signaling.


[5]   Officer Lopez stopped Sample’s car. Sample was the only occupant. As

      Officer Lopez sat in his car, he watched Sample make “furtive movements,”

      including turning around to reach towards the back seat of the car. Tr. p. 21.

      Lopez called for backup. When another officer arrived, Officer Lopez

      approached the driver’s side window while the other officer walked up to the



      1
          Ind. Code § 35-48-4-8.3 (2014).
      2
          Ind. Code § 35-48-4-6.1 (2014).


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      passenger side. He asked Sample for a driver’s license and registration, and

      Sample said he did not have any identification.


[6]   Sample seemed “extremely nervous” because he would not look at Officer

      Lopez, his hands trembled, and his voice seemed shaky. Id. at 22. Officer

      Lopez saw tools on the car’s back seat. After confirming Sample’s identity with

      the dispatcher, Officer Lopez asked Sample to step out of the car and requested

      consent to search the car. Sample consented. During the search, Lopez found

      a pipe between the front passenger seat and the center console. The pipe

      contained traces of meth. Officer Lopez also found a small bag of what was

      later identified as meth on the car’s floorboard, behind the driver’s seat.


[7]   The State filed three charges: possession of meth, possession of paraphernalia,

      and driving while suspended. After a bench trial, the court determined that

      Sample was guilty of possession of methamphetamine and possession of

      paraphernalia, but not guilty of driving while suspended. The court imposed

      alternative misdemeanor sentencing for possession of meth and entered a

      sentence.


                                   Discussion and Decision
[8]   Sample does not dispute that Officer Lopez found methamphetamine and a

      pipe in the car he was driving. Instead, Sample says the State failed to prove

      that he possessed those items.


[9]   When reviewing a sufficiency challenge, we do not reweigh the evidence or

      judge the credibility of the witnesses. Hampton v. State, 873 N.E.2d 1074 (Ind.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015   Page 3 of 6
       Ct. App. 2007). We instead look to the evidence and the reasonable inferences

       that support the verdict. Id. We will affirm unless no reasonable fact-finder

       could have found the defendant guilty beyond a reasonable doubt. Markland v.

       State, 865 N.E.2d 639 (Ind. Ct. App. 2007), trans. denied.


[10]   To obtain a conviction of possession of meth, the State was required to prove

       beyond a reasonable doubt that Sample (1) knowingly or intentionally (2)

       possessed methamphetamine (3) without a valid prescription or order of a

       practitioner. Ind. Code § 35-48-4-6.1. As for possession of paraphernalia, the

       State was required to prove beyond a reasonable doubt that Sample (1)

       knowingly or intentionally (2) possessed a raw material, instrument, device, or

       other object (3) that the person intends to use (4) for introducing a controlled

       substance into the person’s body. Ind. Code § 35-48-4-8.3.


[11]   A conviction for possession of contraband does not require catching a

       defendant red-handed. Gray v. State, 957 N.E.2d 171 (Ind. 2011). Instead,

       when the State cannot show actual possession, a conviction for possessing

       contraband may rest on proof of constructive possession. Id. Constructive

       possession will support a conviction if the State shows that the defendant had

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

       contraband. Mitchell v. State, 745 N.E.2d 775 (Ind. 2001).


[12]   To prove the intent element, the State must establish the defendant’s knowledge

       of the possession of the contraband. Wilson v. State, 966 N.E.2d 1259 (Ind. Ct.

       App. 2012), trans. denied. When a defendant exercises non-exclusive control


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       over the location where contraband is found, intent to maintain dominion and

       control may be inferred from additional circumstances that indicate that the

       defendant knew of the presence of the contraband. Allen v. State, 787 N.E.2d

       473 (Ind. Ct. App. 2003), trans. denied. The circumstances may include: (1) a

       defendant’s incriminating statements; (2) a defendant’s attempting to leave or

       making furtive gestures; (3) the item’s proximity to the defendant; (4) the

       location of contraband within the defendant’s plain view; and (5) the mingling

       of contraband with other items the defendant owns. Gray, 957 N.E.2d 171.


[13]   Sample was driving his girlfriend’s car when Officer Lopez stopped him. No

       one else was in the car, and Sample had possessed the car all day long. When

       Sample stopped the car, he made furtive gestures in the car, including reaching

       back toward the area where the meth was found. Officer Lopez thought that

       Sample appeared to be very nervous because Sample would not look him in the

       eyes and had shaky hands and a shaky voice. In addition, the pipe was found

       near Sample’s seat, within his reach. The bag of meth was in plain view on the

       floorboard behind Sample’s seat, and Sample’s tools were on the back seat of

       the car, near the bag of meth.


[14]   The State presented sufficient evidence from which the trial court could have

       concluded beyond a reasonable doubt that Sample was aware of the presence of

       the pipe and the meth and intended to maintain control over them. See Goliday

       v. State, 708 N.E.2d 4 (Ind. 1999) (evidence sufficient to prove constructive

       possession where defendant had exclusive control over a car he had borrowed,



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       and contraband was found near the defendant’s personal items). Sample’s

       arguments to the contrary are requests to reweigh the evidence.


                                                Conclusion
[15]   For the foregoing reasons, we affirm the judgment of the trial court.


[16]   Affirmed.


       Bailey, J., and May, J., concur.




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