MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Apr 07 2020, 9:11 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Tyler D. Helmond                                          F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin &                         Chief Deputy Attorney General
Webb
Indianapolis, Indiana                                     Tina L. Mann
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jody D. Selby,                                            April 7, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2584
        v.                                                Appeal from the Vanderburgh
                                                          Circuit Court
State of Indiana,                                         The Honorable Gary J. Schutte,
Appellee-Plaintiff                                        Magistrate
                                                          Trial Court Cause No.
                                                          82C01-1908-F6-5504



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020                 Page 1 of 6
                                             Case Summary
[1]   Jody Selby appeals his convictions, following a jury trial, for level 6 felony

      possession of methamphetamine and class A misdemeanor possession of a

      controlled substance. The sole issue presented for our review is whether the

      State presented sufficient evidence to support the convictions. Finding the

      evidence sufficient, we affirm.


                                  Facts and Procedural History
[2]   On August 5, 2019, at approximately 9:30 p.m., Detective Jeff Taylor of the

      Evansville Police Department arrived at a Vanderburgh County residence to

      serve a felony warrant for a probation violation on L.T. As Detective Taylor

      approached the residence, he observed a red vehicle parked in the driveway

      with its passenger door open. Selby was inside the car using a flashlight to look

      around the vehicle. Detective Taylor was suspicious about what Selby was

      doing, so he did a visual scan of the vehicle and Selby’s hands to make sure that

      Selby was not armed, and that there was not a weapon within his reach.

      Detective Selby saw no weapons, and he also observed that there was nothing

      on the driver’s seat.


[3]   Selby was startled when Detective Taylor, who was dressed in his police

      uniform, approached and began speaking to him. Selby behaved nervously, his

      hands were shaking, and he seemed “like he was unsettled when[] he saw the

      police.” Tr. Vol. 2 at 8. Selby gave Detective Taylor his identification upon

      request, but he did not make eye contact with the detective and instead looked


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020   Page 2 of 6
      at the ground. Detective Taylor asked Selby if he lived at the residence, and

      Selby responded that he was “staying” there. Id.


[4]   Due to Selby’s nervous behavior, Detective Taylor asked Selby to step out of

      the vehicle so that he could perform a patdown search for weapons. As soon as

      Detective Taylor began the patdown, he felt Selby’s “hand go into his pocket,”

      and a struggle ensued. Id. at 10. Detective Taylor grabbed Selby’s wrist and

      then felt Selby “flick” his wrist, “as if he pulled something out and it was

      tossed.” Id. at 11. The struggle ended when Detective Taylor was able to get

      handcuffs on Selby. Detective Taylor moved Selby away from the vehicle, and

      then looked to see what Selby had tossed. Detective Taylor observed a white

      box sitting on the vehicle’s driver’s seat that had not been there earlier.

      Detective Taylor opened the box and found what was later determined to be

      5.33 grams of methamphetamine, as well as alprazolam pills.


[5]   The State charged Selby with level 6 felony possession of methamphetamine

      and class A misdemeanor possession of a controlled substance. The State also

      filed a separate habitual offender sentence enhancement. Following trial, a jury

      found Selby guilty of both possession charges. Selby then pled guilty to the

      habitual offender enhancement. The trial court sentenced Selby to concurrent

      terms of two years for the level 6 felony, and one year for the class A

      misdemeanor. The court enhanced Selby’s level 6 felony sentence by an




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020   Page 3 of 6
      additional five years for being a habitual offender, for an aggregate sentence of

      seven years. This appeal ensued. 1


                                         Discussion and Decision
[6]   Selby challenges the sufficiency of the evidence to support his convictions.

      When reviewing a claim of insufficient evidence, we neither reweigh the

      evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind.

      2015). We look to the evidence and reasonable inferences drawn therefrom that

      support the conviction, and will affirm if there is probative evidence from which

      a reasonable factfinder could have found the defendant guilty beyond a

      reasonable doubt. Id. In short, if the testimony believed by the trier of fact is

      enough to support the conviction, then the reviewing court will not disturb it.

      Id. at 500.


[7]   To convict Selby of level 6 felony possession of methamphetamine, the State

      was required to prove beyond a reasonable doubt that he, without a valid

      prescription, knowingly or intentionally possessed methamphetamine (pure or

      adulterated). Ind. Code § 35-48-4-6.1(a). To convict Selby of class A

      misdemeanor possession of a controlled substance, the State was required to

      prove that he, without a valid prescription, knowingly or intentionally

      possessed a controlled substance (pure or adulterated) classified in schedule I,




      1
          Selby does not appeal the habitual offender finding or sentence enhancement.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020      Page 4 of 6
      II, III, or IV. Ind. Code § 35-48-4-7. Alprazolam is listed as a schedule IV

      controlled substance. See Ind. Code § 35-48-2-10.


[8]   Selby asserts that the State failed to prove that he possessed either the

      methamphetamine, or the alprazolam, found in the white box. Possession can

      be actual or constructive. Parks v. State, 113 N.E.3d 269, 273 (Ind. Ct. App.

      2018). As Selby did not have actual possession of the white box containing the

      contraband at the time it was discovered, we must determine whether the State

      proved that he constructively possessed it. 2 To prove constructive possession,

      the State was required to prove that Selby had the intent and capability to

      maintain dominion and control over the contraband. Id. “When constructive

      possession is alleged, the State must demonstrate the defendant’s knowledge of

      the contraband.” Bradshaw v. State, 818 N.E.2d 59, 63 (Ind. Ct. App. 2004).

      Proof of dominion and control, and therefore knowledge, of contraband has

      been found through a variety of means: (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 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. Parks, 113 N.E.3d at 273 (citing Henderson v. State, 715 N.E.2d 833,

      836 (Ind. 1999)).



      2
       Although we address Selby’s challenge to the sufficiency of the evidence in terms of constructive possession,
      we agree with the State that a reasonable trier of fact could have inferred from the evidence that Selby had
      actual possession of the contraband before he discarded it onto the driver’s seat.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020                     Page 5 of 6
[9]    Here, Selby was the only person in the vehicle when Detective Taylor

       approached. Selby behaved nervously, and, when Detective Taylor performed

       a patdown search for weapons, Selby suddenly began struggling and pulled

       something from his pocket and “flicked” it. Tr. Vol. 2 at 11. After struggling

       with Selby and removing him from the immediate vicinity of the vehicle,

       Detective Taylor observed the white box containing the contraband on the

       vehicle’s driver’s seat, where it had not been previously. Based upon Selby’s

       struggle with Detective Taylor along with his furtive gesture, and the location

       and proximity of the contraband to where Selby had just been, it was

       reasonable for the jury to infer that Selby had the intent and capability to

       maintain dominion and control over the contraband. The State presented

       sufficient evidence that Selby constructively possessed the contraband.

       Therefore, we affirm his convictions.


[10]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020   Page 6 of 6
