MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Mar 12 2020, 10:31 am
court except for the purpose of establishing
                                                                                 CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ontario M. Lowe,                                         March 12, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2283
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Sarah K. Mullican,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D03-1904-F2-1401



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020                      Page 1 of 6
                                         Statement of the Case
[1]   Ontario M. Lowe appeals his conviction for maintaining a common nuisance,

      as a Level 6 felony, following a jury trial. Lowe presents one dispositive issue

      for our review, namely, whether the State presented sufficient evidence to

      support his conviction.


[2]   We reverse.


                                   Facts and Procedural History
[3]   On April 11, 2019, Detective Daniel LaFave and Detective Brian Bourbeau

      with the Vigo County Drug Task Force observed Lowe driving a vehicle.

      Detectives LaFave and Bourbeau were familiar with Lowe, and they were

      aware that his driver’s license had been suspended. Accordingly, the detectives,

      with the assistance of a patrol officer, conducted a traffic stop of Lowe’s vehicle.

      Lowe, who was the only occupant of the vehicle, exited the vehicle and

      informed the officers that the vehicle he was driving belonged to his “baby

      mama” but that he drove it “regularly.” Tr. at 77. Officers then conducted a

      pat down search of Lowe and found more than $200 in his pocket.


[4]   At that point, the officers searched Lowe’s vehicle. 1 Upon searching the

      interior of the car, officers discovered “an open box of plastic bags,” a digital

      scale that was “dirtied” with a crystal-like substance, and a plastic bag that




      1
        Lowe was on probation for a prior offense when the officers conducted the traffic stop. As a condition of
      his probation, Lowe had signed a waiver of his Fourth Amendment rights. See Ex. at 13.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020                    Page 2 of 6
      contained 0.15 gram of cocaine. Id. at 78. The officers then searched the trunk

      of the vehicle. There, officers found men’s clothes and shoes. And officers

      found a plastic bag inside one of the shoes that contained 49.45 grams of

      methamphetamine.


[5]   The State charged Lowe with dealing in methamphetamine, as a Level 2 felony

      (Count 1); possession of methamphetamine, as a Level 3 felony (Count 2);

      possession of cocaine, as a Level 6 felony (Count 3); maintaining a common

      nuisance, as a level 6 felony (Count 4); and operating a vehicle with a

      suspended license, as a Class A misdemeanor (Count 5). The State also alleged

      that Lowe was a habitual offender.


[6]   The trial court held a bifurcated jury trial on July 30 and July 31, 2019, and the

      jury found Lowe guilty as charged at the conclusion of each phase. The court

      entered judgment of conviction accordingly. But due to double jeopardy

      concerns, the court vacated Lowe’s conviction on Count 2. Following a

      sentencing hearing, the court sentenced Lowe to fifteen years on Count 1,

      which the court enhanced by ten years for the habitual offender adjudication;

      two years on Count 3; two years on Count 4; and one year on Count 5. The

      court then ordered the sentences to run concurrently, for an aggregate sentence

      of twenty-five years executed in the Department of Correction. This appeal

      ensued.


                                     Discussion and Decision
[7]   Lowe asserts that the State failed to present sufficient evidence to support his

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020   Page 3 of 6
      conviction for maintaining a common nuisance, as a Level 6 felony. 2 Our

      standard of review on a claim of insufficient evidence is well settled:


                For a sufficiency of the evidence claim, we look only at the
                probative evidence and reasonable inferences supporting the
                verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
                not assess the credibility of witnesses or reweigh the evidence.
                We will affirm the conviction unless no reasonable fact-finder
                could find the elements of the crime proven beyond a reasonable
                doubt. Id.


      Love v. State, 73 N.E.3d 693. 696 (Ind. 2017).


[8]   In order to convict Lowe, the State was required to prove that he had

      knowingly or intentionally maintained a vehicle that was used to unlawfully

      use, manufacture, keep, offer for sale, sell, deliver, or finance the delivery of a

      controlled substance. Ind. Code § 35-45-1-5(a) (2019). “The word ‘maintain’ as

      used in that statute does not require that the defendant actually own the vehicle;

      rather, a defendant ‘maintains’ a vehicle when he exerts control over it.”

      Leatherman v. State, 101 N.E.3d 879, 883 (Ind. Ct. App. 2018).


[9]   This Court has previously stated that the legislature did not intend for the

      common-nuisance statute to apply to “an offender who had personal use

      quantities of controlled substance(s) on his or her person or even loose in the

      vehicle.” Lovitt v. State, 915 N.E.2d 1040, 1045 (Ind. Ct. App. 2009)




      2
          Lowe does not challenge the sufficiency of the evidence underlying his other convictions.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020                  Page 4 of 6
       (alternation in original). Rather, this Court held that the statute is intended to

       apply to “an offender who uses his or her vehicle to facilitate manufacture, sale,

       delivery or to finance the delivery of a controlled substance[.]” Id. Here, the

       State proved that Lowe was dealing in methamphetamine, and Lowe does not

       challenge that conviction on appeal. Accordingly, we agree with the State that

       it “provided sufficient evidence that [Lowe] is just such an offender.”

       Appellee’s Br. at 9.


[10]   However, “to prove the nuisance was a ‘common’ nuisance, the State must

       provide evidence that the vehicle was used on more than one occasion for the

       unlawful delivery of a controlled substance.” Leatherman, 101 N.E.3d at 883

       (emphasis added). On appeal, the State contends that it presented sufficient

       evidence to support Lowe’s conviction because Lowe “admitted to using the

       vehicle regularly, men’s clothing and shoes were in the trunk, and drugs and

       paraphernalia were found in plain sight of the officers as well as the trunk.”

       Appellee’s Br. at 10. Accordingly, the State asserts that Lowe’s “regular use of

       the vehicle and comfort with spreading the controlled substances and

       paraphernalia throughout the vehicle are indicative that he was using the

       vehicle on an ongoing basis to facilitate his dealing enterprise.” Id. We cannot

       agree.


[11]   Here, the State presented evidence that Lowe “regularly” drove the vehicle,

       which demonstrates that he used the vehicle on more than one occasion. Tr. at

       77. And the State presented evidence that, on April 11, officers found a large

       quantity of methamphetamine, cocaine, a scale, and plastic bags in both the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020   Page 5 of 6
       interior of the car and the trunk, which shows that Lowe used the vehicle on

       that particular occasion for an unlawful purpose. However, the State failed to

       present any evidence to support an inference that Lowe had used the vehicle for

       an unlawful purpose on any occasion other than April 11.


[12]   Because the State failed to present evidence that Lowe used his vehicle on

       multiple occasions for the delivery of controlled substances, we must agree with

       Lowe that the State failed to present sufficient evidence to support his

       conviction for maintaining a common nuisance, as a Level 6 felony. We

       therefore reverse Lowe’s conviction and corresponding two-year sentence on

       Count 4.3


[13]   Reversed.


       Vaidik, J., and Tavitas, J., concur.




       3
         Because we reverse Lowe’s conviction on Count 4, we need not address his argument that his conviction
       on that count violated the prohibition against double jeopardy.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2283 | March 12, 2020                 Page 6 of 6
