MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                 FILED
regarded as precedent or cited before any                                 Apr 17 2019, 8:56 am

court except for the purpose of establishing                                     CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kurt A. Young                                             Curtis T. Hill, Jr.
Nashville, Indiana                                        Attorney General of Indiana

                                                          Matthew F. Kite
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Alicia T. Taylor,                                         April 17, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2101
        v.                                                Appeal from the Brown Circuit
                                                          Court
State of Indiana,                                         The Honorable Judith A. Stewart,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable Frank M. Nardi,
                                                          Magistrate/Judge Pro Tempore
                                                          Trial Court Cause No.
                                                          07C01-1608-CM-351



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019                     Page 1 of 7
[1]   Alicia T. Taylor appeals her conviction of possession of a controlled substance,
                                         1
      a Class A misdemeanor, alleging there is insufficient evidence to support her

      conviction. We affirm.


[2]   On the evening of August 12, 2016, the Brown County Sheriff’s Department

      received two calls regarding possible drug activity at a local campground, with

      specific mention of a white Ford Explorer. Deputy Joshua Stargell and

      Sergeant Southerland went to the area to observe. Deputy Stargell saw a white

      Ford Explorer with a female driver exit the campground area. Using the

      computer in his vehicle, the Deputy conducted a search of BMV records using

      the Explorer’s license plate number and learned that the owner of the vehicle

      was Taylor and that her license was suspended. After confirming the

      information with dispatch, Deputy Stargell initiated a traffic stop.


[3]   Once the Explorer was stopped, the Deputy approached the driver and

      confirmed that it was Taylor and that she knew her license was suspended.

      When asked, Taylor also confirmed that the Explorer was not insured. Deputy

      Stargell then determined the identity of Taylor’s passenger, that he was not

      licensed to drive, and that he did not have any ownership interest in the

      Explorer. Based on these circumstances, the Deputy called a tow truck to tow

      the Explorer, and Sergeant Southerland performed a vehicle inventory. Prior to

      the search, Taylor was given the opportunity to remove any valuables from the




      1
          Ind. Code § 35-48-4-7(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019   Page 2 of 7
      Explorer, and she retrieved her purse. When Deputy Stargell looked in

      Taylor’s purse, he found a digital scale, which Taylor said she was holding for

      someone.


[4]   During the vehicle inventory, Sergeant Southerland found two pills in

      cellophane wrap near the center console and another single pill on the

      passenger side floorboard. The two pills in cellophane were identified as

      acetaminophen/oxycodone, and the single pill was identified as alprazolam.

      Deputy Stargell asked Taylor if the pills belonged to her. Taylor replied that the

      pills were not hers and that she did not know to whom they belonged.


[5]   The State charged Taylor with Count 1 possession of a controlled substance
                                                         2
      (oxycodone), a Class A misdemeanor; Count 2 possession of a controlled
                                                                     3
      substance (alprazolam), a Class A misdemeanor; and Count 3 driving while
                                                     4
      suspended, a Class A misdemeanor. Following a bench trial, Taylor was

      found guilty of Counts 1 and 3. The court sentenced Taylor to concurrent

      terms of 365 days in community corrections with all but ten days suspended

      and 355 days of probation. Taylor now appeals.




      2
          Ind. Code § 35-48-4-7(a).
      3
          Id.
      4
          Ind. Code § 9-24-19-2 (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019   Page 3 of 7
[6]   Taylor contends there is insufficient evidence to sustain her conviction of
                                                                                       5
      possession of oxycodone under the theory of constructive possession. When

      we review a challenge to the sufficiency of the evidence, we neither reweigh the

      evidence nor judge the credibility of the witnesses. Sandleben v. State, 29 N.E.3d

      126 (Ind. Ct. App. 2015), trans. denied. Instead, we consider only the evidence

      most favorable to the judgment and any reasonable inferences drawn therefrom.

      Id. If there is substantial evidence of probative value from which a reasonable

      factfinder could have found the defendant guilty beyond a reasonable doubt, the

      judgment will not be disturbed. Labarr v. State, 36 N.E.3d 501 (Ind. Ct. App.

      2015). Further, circumstantial evidence alone may support a conviction. Green

      v. State, 808 N.E.2d 137 (Ind. Ct. App. 2004).


[7]   Possession of an item may be either actual or constructive. Massey v. State, 816

      N.E.2d 979 (Ind. Ct. App. 2004). Because Taylor did not actually possess the

      oxycodone when it was found in the Explorer, the State was required to prove

      that she constructively possessed it. A person has constructive possession of an

      item when the person has both (1) the capability to maintain dominion and

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

      the item. Causey v. State, 808 N.E.2d 139 (Ind. Ct. App. 2004).


[8]   To establish the capability component, the State must demonstrate that the

      defendant was able to reduce the contraband to her personal possession. Wilson




      5
          Taylor does not challenge her conviction of driving while suspended.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019       Page 4 of 7
       v. State, 966 N.E.2d 1259 (Ind. Ct. App. 2012), trans. denied. Here, Sergeant

       Southerland testified that he found the oxycodone in the area of the center

       console and that the driver of the Explorer would have been able to reach the

       cellophane package. See Lampkins v. State, 682 N.E.2d 1268 (Ind. 1997)

       (concluding capability element was established because contraband was within

       reach of defendant), modified on reh’g, 685 N.E.2d 698.


[9]    Although the capability element is established because the package of

       oxycodone was within Taylor’s reach, we additionally note that constructive

       possession of items found in an automobile may be imputed to the driver of the

       vehicle. State v. Emry, 753 N.E.2d 19 (Ind. Ct. App. 2001). Moreover, a trier of

       fact may infer that a defendant had the capability to maintain dominion and

       control over an item from the simple fact that the defendant had a possessory

       interest in the premises on which an officer found the item. Gray v. State, 957

       N.E.2d 171 (Ind. 2011). This inference is permitted even when that possessory

       interest is not exclusive. Id. The evidence showed that Taylor was not only the

       driver of the Explorer but also the registered owner. Thus, Taylor had the

       capability to maintain dominion and control over the pills. Her argument on

       appeal focuses on whether she had the intent to do so.


[10]   The intent component is proven by demonstrating the defendant’s knowledge of

       the presence of the item. Grim v. State, 797 N.E.2d 825 (Ind. Ct. App. 2003).

       Such knowledge may be inferred from the exclusive dominion and control over

       the premises containing the item Id. If, however, control of the premises is

       non-exclusive, the inference of intent to maintain dominion and control over

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019   Page 5 of 7
       the item must be supported by evidence of additional circumstances indicating

       the defendant’s knowledge of the nature of the item and its presence. Cannon v.

       State, 99 N.E.3d 274 (Ind. Ct. App. 2018), trans. denied. These additional

       circumstances have been found to include: (1) incriminating statements by the

       defendant; (2) attempted flight or furtive gestures; (3) location of substances like

       drugs in settings that suggest manufacturing; (4) proximity of the item to the

       defendant; (5) location of the item within the defendant’s plain view; and (6)

       mingling of the item with other items owned by the defendant. Id.


[11]   There is no dispute that Taylor had a possessory interest in the Explorer.

       Further evidence at trial supplied additional circumstances that, combined with

       Taylor’s possessory interest in the Explorer, sufficiently establish her intent to

       maintain dominion and control over the oxycodone. The package containing

       the oxycodone was in the area of the center console of the Explorer in close

       proximity to Taylor and within her reach, in a vehicle she owned. Other items

       suggesting knowledge of drug activity are alprazolam, a controlled substance,

       found in plain view on the front seat passenger’s floorboard of the vehicle

       owned by Taylor, and a digital scale in Taylor’s purse.


[12]   For the reasons stated, we conclude that the evidence established Taylor’s

       capability to maintain dominion and control over the oxycodone and that it

       further supports a reasonable inference that Taylor had the intent to maintain

       dominion and control over the oxycodone. Therefore, there was sufficient

       evidence from which the factfinder could have found Taylor guilty beyond a

       reasonable doubt based on a theory of constructive possession.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019   Page 6 of 7
[13]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019   Page 7 of 7
