MEMORANDUM DECISION
                                                               Jun 30 2015, 8:08 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
Earnest Galos                                             Gregory F. Zoeller
Public Defender                                           Attorney General of Indiana
South Bend, Indiana
                                                          Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Tony Dean,                                               June 30, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1412-CR-447
        v.                                               Appeal from the St. Joseph Superior
                                                         Court
State of Indiana,
                                                         The Honorable Jane Woodward
Appellee-Plaintiff                                       Miller, Judge

                                                         Cause No. 71D01-1406-FD-501




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-447 | June 30, 2015     Page 1 of 7
                                       Statement of the Case
[1]   Tony Dean appeals his conviction for possession of cocaine, as a Class D

      felony, following a jury trial. Dean presents two issues for our review:

              1.       Whether the trial court abused its discretion when it
                       admitted into evidence cocaine, which officers found in his
                       car.

              2.       Whether the State presented sufficient evidence to support
                       his conviction.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On June 30, 2014, during the early morning hours, South Bend Police Officer

      Alan Wiegand observed a Cadillac being driven on Miami Street without

      functioning taillights. Officer Wiegand executed a traffic stop on the Cadillac

      and approached the driver’s side door. The driver, Dean, opened the driver’s

      side door and explained that his window was not operational. Officer Wiegand

      asked for Dean’s driver’s license, but, after looking for it, Dean told Officer

      Wiegand that he could not find his license. Officer Wiegand asked Dean to

      produce the car’s registration, and Dean began searching the car for the

      registration.


[4]   Officer Kyle Dombrowski arrived at the scene and approached the passenger

      side of Dean’s Cadillac. While Dean continued to search for his registration,

      Officer Dombrowski observed through the windshield and passenger-side

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      window: a plastic baggie in the center console area; an open alcohol container

      on the front passenger floorboard; and “pieces of foil and . . . a white powdery

      substance” on the driver’s floorboard area. Tr. at 165. Officer Dombrowski

      knew, through his training and experience, that baggies and foil are commonly

      used “to hold and transport small amounts of narcotics.” Id. Accordingly,

      Officer Dombrowski “made a motion with [his] hand” to convey to Officer

      Wiegand that Officer Wiegand should get Dean out of the car, which he did.

      Id. at 166. Officer Dombrowski then conducted a field test on the white

      powdery substance and identified it as cocaine. The officers arrested Dean.


[5]   The State charged Dean with possession of cocaine, as a Class D felony. Prior

      to trial, Dean filed a motion to suppress the evidence the officers collected from

      his car during the traffic stop, but the trial court denied that motion. A jury

      found Dean guilty as charged, and the trial court entered judgment accordingly.

      The trial court sentenced Dean to thirty months, with twelve months suspended

      to probation. This appeal ensued.


                                     Discussion and Decision
                                   Issue One: Admission of Evidence

[6]   Dean first contends that the trial court abused its discretion when it admitted

      into evidence the cocaine Officer Dombrowski found in Dean’s car. The trial

      court has discretionary power on the admission of evidence, and its decisions

      are reviewed only for an abuse of that discretion. Wilson v. State, 765 N.E.2d

      1265, 1270 (Ind. 2002). However, the failure to make a contemporaneous


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      objection to the admission of evidence at trial, so as to provide the trial court an

      opportunity to make a final ruling on the matter in the context in which the

      evidence is introduced, results in waiver of the error on appeal. Jackson v. State,

      735 N.E.2d 1146, 1152 (Ind. 2000).


[7]   Here, at trial Dean made no contemporaneous objection to the following

      testimony regarding the cocaine found in his car: Officer Wiegand testified that

      Officer Dombrowski had found what “appeared to be cocaine” in the car; and

      Kimberly Ivanyo, a forensic drug chemist with the Indiana State Police,

      testified that the white powdery substance found in Dean’s car was .03 grams of

      cocaine. Tr. at 99. After that evidence had been admitted without objection,

      Dean later objected to the admission of the following evidence: the plastic

      baggie, aluminum foil, and cocaine found in his car. Because Dean did not

      make contemporaneous objections to testimony that officers found cocaine in

      Dean’s car, the issue is waived.1 Jackson, 735 N.E.2d at 1152.


                                   Issue Two: Sufficiency of the Evidence

[8]   Dean contends that the State presented insufficient evidence to support his

      conviction. Our standard of review for sufficiency of the evidence claims is

      well-settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).


                In reviewing the sufficiency of the evidence, we examine only the
                probative evidence and reasonable inferences that support the
                verdict. We do not assess witness credibility, nor do we reweigh



      1
          Dean makes no contention that the alleged error constitutes fundamental error.


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               the evidence to determine if it was sufficient to support a
               conviction. Under our appellate system, those roles are reserved
               for the finder of fact. Instead, we consider only the evidence
               most favorable to the trial court ruling and affirm the conviction
               unless no reasonable fact-finder could find the elements of the
               crime proven beyond a reasonable doubt.


       Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted)

       (internal quotation marks omitted).


[9]    To prove possession of cocaine, as a Class D felony, the State was required to

       show that Dean knowingly or intentionally possessed cocaine. Ind. Code § 35-

       48-4-6(a). Dean contends that, because the Cadillac belonged to his mother, the

       car “was not under his exclusive control,” and the State did not prove that he

       possessed the cocaine found in the car. Appellant’s Br. at 14. Dean also

       suggests that the foil and cocaine were not necessarily in plain view in the car,

       which, he maintains, supports his assertion that he had no knowledge that there

       was cocaine in the car when he borrowed it.


[10]   In Whitney v. State, 726 N.E.2d 823 (Ind. Ct. App. 2000), the defendant

       challenged his conviction for possession of cocaine on similar grounds, namely,

       that he had borrowed the car where the cocaine was found in a secret

       compartment and, thus, the State could not prove his possession of the

       contraband. This court rejected that contention and held as follows:

               To prove the intent element, the State must show [the
               defendant’s] knowledge of the presence of the cocaine. “‘This
               knowledge may be inferred from either the exclusive dominion

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        and control over the premise containing the contraband or, if the
        control is non-exclusive, evidence of additional circumstances
        pointing to the defendant’s knowledge of the presence of the
        contraband.’” Taylor v. State, 482 N.E.2d 259, 261 (Ind. 1985)
        (quoting Woods v. State, 471 N.E.2d 691, 694 (Ind. 1984)).
        Whitney contends that he borrowed the car and, therefore was
        not in exclusive possession. As our supreme court has stated,
        however: “The issue . . . is not ownership but possession.”
        Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Whitney was the
        driver and sole occupant of the vehicle when Officer Benner
        stopped him. Thus, the court could reasonably conclude that
        Whitney was in exclusive possession of the vehicle. See Parson v.
        State, 431 N.E.2d 870, 872 (Ind. Ct. App. 1982) (despite
        defendant’s assertion that another had prior access to the vehicle,
        the jury could reasonably conclude that vehicle had been reduced
        to defendant’s exclusive possession given the evidence that he
        was the driver and sole occupant).

                                                ***

        Whitney also contends that he was not capable of maintaining
        dominion and control over the cocaine because it was hidden in a
        secret compartment of which he was unaware. The capability
        requirement is met when the State shows that the defendant is
        able to reduce the controlled substance to the defendant’s
        personal possession. “Proof of a possessory interest in the
        premises in which the illegal drugs are found is adequate to show
        the capability to maintain dominion and control over the items in
        question.” Davenport v. State, 464 N.E.2d 1302, 1307 (Ind. 1984).
        Here, Whitney had sole possession of the car in which the drugs
        were found. Such possession is sufficient to show his ability to
        control the cocaine. Because constructive possession may be
        proved by circumstantial evidence, proof of a possessory interest
        in the premises in which contraband is found is adequate to show
        the capability to maintain control and dominion over the
        contraband. See Carnes v. State, 480 N.E.2d 581, 585-86 (Ind. Ct.
        App. 1985). The evidence is sufficient to support the trial court’s
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               conclusion that Whitney had constructive possession of the
               cocaine.


       Id. at 826-27.


[11]   Likewise, here, Dean was the driver and sole occupant of the car when Officer

       Wiegand initiated the traffic stop. Thus, Dean was in exclusive possession of

       the vehicle, and he had the capability to maintain control and dominion over

       the cocaine. Id. The State presented sufficient evidence to support Dean’s

       conviction.


[12]   Affirmed.


       Baker, J., and Friedlander, J., concur.




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