MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Mar 08 2019, 6:18 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark Small                                              Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Lauren A. Jacobsen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dustin Wayne Eldridge,                                  March 8, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1133
        v.                                              Appeal from the Clinton Superior
                                                        Court
State of Indiana,                                       The Honorable Justin H. Hunter,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        12D01-1610-F5-897



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019                  Page 1 of 12
                                Case Summary and Issue
[1]   Following a jury trial, Dustin Eldridge was convicted of dealing in

      methamphetamine, a Level 5 felony; maintaining a common nuisance, a Level

      6 felony; and possession of a controlled substance, a Class A misdemeanor.

      Eldridge now appeals his convictions, raising one issue for our review: whether

      the evidence was sufficient to support his convictions. Concluding the evidence

      was sufficient to support Eldridge’s convictions of dealing in methamphetamine

      and possession of a controlled substance but insufficient to prove maintaining a

      common nuisance, we affirm in part and reverse and remand in part.



                            Facts and Procedural History
[2]   On August 30, 2016, Eldridge and Allen Isenburg were working together doing

      tree removal. Eldridge had borrowed a dump truck from a friend for the work,

      and Isenburg drove because Eldridge did not have a driver’s license. After a

      long day trying unsuccessfully to remove a tree, Isenburg and Eldridge drove to

      Wal-Mart after Ashlee Lanum “initiated them to meet [her] there” by texting

      Eldridge to ask “if he was looking into meeting [her.]” Transcript, Volume I at

      165-66. When Isenburg and Eldridge met Lanum in the Wal-Mart parking lot

      after midnight, she said she had “some stuff that [she] wanted to get rid of” and

      asked for a ride. Id. at 166. Lanum testified that she had three packets of

      methamphetamine in the front pocket of her shorts and pills in an Altoids tin.

      She said it was “probably not” clear to Isenburg and Eldridge that the “stuff”

      she referenced was drugs. Id. Lanum climbed over Eldridge, who was sitting

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019   Page 2 of 12
      in the passenger seat, and sat between Isenburg and Eldridge. Isenburg then

      drove to Marlaina Lybrook’s home in Frankfort at Elridge’s direction. Eldridge

      spoke to Lybrook by phone a couple of times during the journey.


[3]   When they arrived, Eldridge called Lybrook and told her to come out to the

      truck that was parked in front of her house. Lybrook did come outside, but she

      was angry that they had come to the front of her house because she had

      outstanding warrants and was trying to avoid exposure. While Lybrook was

      standing on the passenger side of the truck yelling at Eldridge, Lanum said that

      she had methamphetamine to sell and also mentioned “something about

      Lortabs.” Id. at 153. Unfortunately for Lybrook and the occupants of the

      truck, Clinton County Sheriff’s Deputies Farlow and Knapp arrived at

      Lybrook’s residence about this time to serve the arrest warrant on her.


[4]   As Deputy Farlow approached the vehicle on the passenger side, he saw

      Eldridge move his hands as if he was taking something from his lap and moving

      it between his seat and the door. Deputy Farlow asked all occupants of the

      vehicle to put their hands on the dash while Deputy Knapp detained Lybrook

      and called the Frankfort Police Department for backup. As the occupants

      raised their hands, Deputy Farlow saw Eldridge had a small, empty plastic bag

      in his hand. Through his “training and experience,” Deputy Farlow “knew

      these bags to be used to carry drugs.” Appellant’s Appendix, Volume 3 at 14.

      Deputy Farlow asked Eldridge to step out of the vehicle, and as he did so,

      Deputy Farlow saw a syringe on the floor of the vehicle. By this time,

      Frankfort police officers had arrived and asked both Isenburg and Lanum to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019   Page 3 of 12
      exit the vehicle. As they exited, a Frankfort police officer saw a second syringe

      on the driver’s side floor.


[5]   During a subsequent search of the vehicle, officers found a black bag on the seat

      between where Eldridge and Lanum had been sitting. The bag contained a

      lighter and an Altoids tin. Inside the tin was a plastic bag containing

      hydrocodone and oxycodone pills and multiple small plastic bags similar to the

      bag Eldridge had been holding earlier. All three occupants of the vehicle

      disclaimed knowledge of the black bag or its contents and were placed in

      custody.


[6]   Eldridge also had a backpack in the truck that he allowed to be searched;

      officers found a scale, a pack of small clear plastic bags, and multiple syringes.

      Eldridge claimed he was diabetic, but no insulin was found in the backpack or

      the truck. All parties were transported to the Clinton County Jail. After

      Lanum was taken from her transport vehicle, the officer who transported her

      searched the back seat of his vehicle and found a small baggie with a white

      substance tucked in the seat. The substance field tested positive for

      methamphetamine. Lanum testified that she had tried to get rid of the

      methamphetamine in her possession by eating it, but was only able to ingest

      two bags and had to stick the third bag in the seat.


[7]   The State charged Eldridge with dealing in methamphetamine, a Level 5

      felony; maintaining a common nuisance, a Level 6 felony; and possession of a




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019   Page 4 of 12
      controlled substance, a Class A misdemeanor.1 Eldridge was tried by a jury. At

      the conclusion of the State’s evidence, Eldridge made a motion for judgment on

      the evidence with respect to the dealing and possession counts. The trial court

      denied the motion and the defense rested without presenting any witnesses.

      The State argued during its closing argument that Eldridge aided Lanum in her

      attempts to deal methamphetamine and the trial court instructed the jury about

      accomplice liability. See Tr., Vol. I at 183, 192-93. The trial court also

      instructed the jury about actual and constructive possession. See id. at 183. The

      jury found Eldridge guilty on all counts. Eldridge now appeals.



                                  Discussion and Decision
                                       I. Standard of Review
[8]   In reviewing the sufficiency of the evidence to support a conviction, we neither

      reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27

      N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the

      judgment and any reasonable inferences that can be drawn therefrom, id., and

      we will affirm the conviction “if there is substantial evidence of probative value

      supporting each element of the crime from which a reasonable trier of fact

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



      1
       Isenburg was also charged with dealing in methamphetamine and maintaining a common nuisance. He
      pleaded guilty to maintaining a common nuisance. Tr., Vol. I at 139-40. Lanum was also charged with
      dealing in methamphetamine and possession of a controlled substance. She pleaded guilty to possession of
      methamphetamine with intent to deliver and was serving her sentence at the time of Eldridge’s trial. Id. at
      174.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019                    Page 5 of 12
       State, 998 N.E.2d 724, 726 (Ind. 2013) (citation omitted). “It is the job of the

       fact-finder to determine whether the evidence in a particular case sufficiently

       proves each element of an offense, and we consider conflicting evidence most

       favorably to the trial court’s ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind.

       2005) (citations omitted).


                            II. Dealing in Methamphetamine
[9]    To prove the offense of dealing in methamphetamine, a Level 5 felony, the

       State was required to show beyond a reasonable doubt that Eldridge knowingly

       or intentionally possessed methamphetamine with intent to deliver. Ind. Code

       § 35-48-4-1.1(a)(2). Here, the State sought to convict Eldridge as an

       accomplice. To do so, the State needed to prove that Eldridge knowingly or

       intentionally aided Lanum in dealing methamphetamine. See Ind. Code § 35-

       41-2-4.


[10]   A person who aids another in committing a crime can be charged as a principal

       for all acts committed in accomplishing the crime. Smith v. State, 809 N.E.2d

       938, 944 (Ind. Ct. App. 2004), trans. denied. The particular facts and

       circumstances of each case must be considered to determine whether a person

       participated in an offense as an accomplice. Castillo v. State, 974 N.E.2d 458,

       466 (Ind. 2012). We consider four factors to determine whether a defendant

       acted as an accomplice: 1) presence at the scene of the crime, 2)

       companionship with another at the scene of the crime, 3) failure to oppose the

       commission of the crime, and 4) course of conduct before, during, and after the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019   Page 6 of 12
       occurrence of the crime. Id. The fact that a defendant is present during a crime

       and did not oppose the crime is not sufficient standing alone to establish

       accomplice liability, but in conjunction with the other facts and circumstances,

       may be enough. Tuggle v. State, 9 N.E.3d 726, 736 (Ind. Ct. App. 2014), trans.

       denied.


[11]   Here, all four factors weigh in favor of Eldridge’s conviction of dealing in

       methamphetamine. Eldridge picked Lanum up at her request and was present

       with her when she offered to sell methamphetamine to Lybrook. He obviously

       knew Lanum prior to this incident, as she was able to reach him by text

       message, and he responded favorably to her request to meet up. Although all

       parties testified the police arrived almost immediately after Lybrook came

       outside to meet the truck, see tr., vol. I at 153 (Lybrook testifying the police

       showed up within “maybe thirty seconds” after she got to the truck), there is no

       indication Eldridge tried to stop Lanum from offering drugs for sale. And

       finally, Eldridge’s conduct indicated both a familiarity with Lanum and a

       willingness to take her somewhere to get rid of her “stuff.” Tr., Vol. I at 166.

       In addition, he had with him a padlocked backpack in which he carried scales,

       small plastic baggies like the kind used to hold drugs, and multiple syringes. See

       Schaaf v. State, 54 N.E.3d 1041, 1043-44 (Ind. Ct. App. 2016) (holding evidence

       was sufficient to support defendant’s conviction of dealing as an accomplice

       where defendant was present at the scene of the crime, was a companion of the

       principal, failed to oppose the crime, suggested the place for the buy to occur,

       and allowed the buy to take place in his vehicle). There was sufficient evidence


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019   Page 7 of 12
       that Eldridge aided Lanum in dealing methamphetamine and therefore,

       sufficient evidence to find him guilty of dealing in methamphetamine.


                        II. Maintaining a Common Nuisance
[12]   To prove Eldridge was guilty of maintaining a common nuisance, a Level 6

       felony, the State was required to show that he knowingly or intentionally

       maintained a vehicle that is used to unlawfully use, manufacture, keep, offer for

       sale, sell, deliver, and/or finance the delivery of controlled substances. Ind.

       Code § 35-45-1-5(a) and (c). Eldridge claims the State did not prove he

       knowingly or intentionally maintained a common nuisance. We base our

       decision not on his mens rea, however, but on the fact that only one incident of

       using the truck for a prohibited purpose was shown.


[13]   From at least 1976, the law regarding maintaining a common nuisance was that

       the words “common nuisance” “carry with them a notion of continuous or

       recurrent violation” such that “proof of an isolated occurrence would not

       sustain a conviction.” Wells v. State, 170 Ind. App. 29, 33, 351 N.E.2d 43, 46

       (1976). In 1998, the common nuisance statute was amended to add language

       that maintaining a common nuisance is committed by “[a] person who

       knowingly or intentionally maintains a building, structure, vehicle, or other

       place that is used one (1) or more times” to commit the prohibited activity. Ind.

       Code § 35-48-4-13(b) (2008). After this amendment, the crime of maintaining a

       common nuisance no longer required a showing of more than an isolated

       incident of unlawful activity. The “one or more times” language remained in


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019   Page 8 of 12
       the statute for several years, until the statute was again amended in 2016 to

       remove that language. The 2016 version of the maintaining a common

       nuisance statute, effective July 1, 2016, and therefore the version applicable to

       Eldridge’s offense, again defines a “common nuisance” as a “building,

       structure, vehicle, or other place that is used for (1) or more of the [prohibited]

       purposes . . . .” Ind. Code § 35-45-1-5(a) (2016). “[I]t is clear that the

       legislature intended by the removal of the ‘one or more times’ language to

       restore the prior common law and statutory requirement that a common

       nuisance is one in which continuous or recurrent prohibited activity takes

       place.” Leatherman v. State, 101 N.E.3d 879, 884 (Ind. Ct. App. 2018). Because

       the State failed to prove that the vehicle over which Eldridge exerted control

       had been used on more than this one occasion to sell or deliver controlled

       substances, the State failed to prove by sufficient evidence that Eldridge

       committed maintaining a common nuisance. We must reverse that conviction.


                     III. Possession of a Controlled Substance
[14]   To prove Eldridge committed the offense of possession of a controlled

       substance, the State had to demonstrate that he knowingly or intentionally

       possessed hydrocodone and/or oxycodone, both of which are schedule II

       controlled substances. Ind. Code § 35-48-4-7(a). Possession can be actual or

       constructive, Cannon v. State, 99 N.E.3d 274, 291 (Ind. Ct. App. 2018), trans.

       denied, and in this case, the State relied on Eldridge’s constructive possession of

       the hydrocodone and oxycodone. To prove constructive possession of

       controlled substances, the State must show that the defendant has both the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019   Page 9 of 12
       intent and the capability to maintain dominion and control over the drugs.

       Houston v. State, 997 N.E.2d 407, 410 (Ind. Ct. App. 2013). Where, as here, the

       defendant’s possession of the premises is not exclusive, the inference of intent to

       maintain dominion and control must be supported by additional circumstances

       pointing to the defendant’s knowledge of the nature and presence of the

       controlled substances. Id. Those additional circumstances can include:


               (1) incriminating statements made by the defendant, (2)
               attempted flight or furtive gestures, (3) location of substances like
               drugs in settings that suggest manufacturing, (4) proximity of the
               contraband to the defendant, (5) location of the contraband
               within the defendant’s plain view, and (6) the mingling of the
               contraband with other items owned by the defendant.


       Id.2 The capability prong can be satisfied by proof that the defendant is able to

       reduce the contraband to the defendant’s personal possession. Negash v. State,

       113 N.E.3d 1281, 1291 (Ind. Ct. App. 2018).


[15]   Eldridge had the capability to maintain dominion and control over the drugs

       because they were found on the truck’s bench seat next to where he had been

       sitting and were easily within his reach. Therefore, he had the ability to take

       the drugs into his personal possession. As for the intent to maintain dominion

       and control over the drugs, Deputy Farlow saw Eldridge take something from




       2
        These circumstances are nonexhaustive; ultimately, the question is whether a reasonable fact-finder could
       conclude that the defendant knew of the nature and presence of the contraband. Johnson v. State, 59 N.E.3d
       1071, 1074 (Ind. Ct. App. 2016).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019                  Page 10 of 12
       his lap and act as though he were trying to hide it. The drugs were found in

       close proximity to where Eldridge had been sitting, in a truck which Eldridge

       had borrowed to use for work. Eldridge had allowed Lanum into the vehicle

       knowing she had “stuff” she wanted to get rid of. Tr., Vol. I at 166. And

       finally, Eldridge had other items in the vehicle that suggested knowledge of

       drug activity, including syringes, scales, and plastic bags of the type used to

       hold drugs. Based on this, we conclude there was substantial evidence of

       probative value from which the jury could have determined Eldridge had

       constructive possession of the drugs found in the vehicle. See, e.g., Holmes v.

       State, 785 N.E.2d 658, 662 (Ind. Ct. App. 2003) (holding that the State

       presented sufficient evidence to convict the defendant based in part on

       defendant’s close proximity to drugs found under the driver’s seat of a vehicle

       plus flight, an additional circumstance indicating knowledge).



                                              Conclusion
[16]   We conclude the State presented sufficient evidence to prove Eldridge was

       guilty of dealing in methamphetamine and possession of a controlled substance.

       However, because the State showed only one instance of use of the truck for a

       prohibited purpose, the State failed to prove that Eldridge maintained a

       common nuisance. Accordingly, Eldridge’s conviction for maintaining a

       common nuisance is reversed and we remand to the trial court to amend the

       abstract of judgment accordingly. Eldridge’s remaining convictions are

       affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019   Page 11 of 12
[17]   Affirmed in part, reversed and remanded in part.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019   Page 12 of 12
