MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Aug 27 2020, 8:53 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
Donald R. Shuler                                         Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
Goshen, Indiana                                          Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Anthony J. Smith
                                                         Certified Legal Intern
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Angel M. Tolentino,                                      August 27, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-731
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Gretchen S. Lund,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Eric S. Ditton,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         20D04-1910-F6-1325



Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020                      Page 1 of 8
[1]   Angel M. Tolentino appeals his conviction for possession of methamphetamine

      as a level 6 felony. He claims the evidence is insufficient to sustain his

      conviction. We affirm.


                                      Facts and Procedural History

[2]   At about 8:00 p.m. on September 26, 2019, Elkhart Police Corporal Justin

      Gage, a certified drug recognition expert, observed a Chevrolet Yukon make an

      improper right-hand turn and drift left of the centerline and initiated a traffic

      stop. Corporal Gage observed there were three occupants in the vehicle and did

      not see any of the occupants switch seats. He approached the vehicle, and the

      driver identified herself. Tolentino, who was seated in the front passenger seat,

      identified himself as “Diego Perez-Sosa” and stated his date of birth was May

      16, 1997. Transcript Volume II at 19. Tolentino “was very fidgety with his

      hands and reaching around.” Id. at 20. The person seated in the vehicle’s rear

      passenger seat identified herself as Marani Guzman. Sergeant Jason Ray, a

      certified drug recognition expert and K-9 handler, arrived at the scene with a K-

      9. The driver was unable to provide proof of insurance. Corporal Gage asked

      Tolentino to exit the vehicle, and he initially did not do so and asked why he

      needed to exit. Corporal Gage again asked Tolentino to exit the vehicle, and he

      eventually complied. When Tolentino stepped out of the vehicle, Corporal

      Gage noticed little specks of a white substance on the front side of his shorts

      and the bottom of his shirt. Corporal Gage patted him down and Sergeant Ray

      observed what appeared to be synthetic marijuana on the back of Tolentino’s

      shorts. According to Corporal Gage, he maintained a clear line of sight of the

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020   Page 2 of 8
      two occupants who remained in the Yukon and the occupants did not make

      any movements towards the front passenger seat. Sergeant Ray did not see the

      occupants in the vehicle make any movements. The two remaining occupants

      exited the vehicle and stood near the police vehicles.


[3]   Sergeant Ray’s K-9 alerted following a free air sniff. Sergeant Ray observed

      crystals in plain view, which he believed to be methamphetamine and which

      “were loose just sitting on the seat.” Id. at 62. Corporal Gage then returned to

      the front passenger seat and observed a small crystal-like white substance which

      he immediately recognized from his training and experience to be

      methamphetamine. Sergeant Ray performed a field test of the substance which

      indicated a positive result for methamphetamine. The substance found on the

      front passenger seat was later determined by a forensic scientist with Indiana

      State Police Lab to contain methamphetamine and had a net weight of .06

      grams.


[4]   The officers further discovered a glass pipe with burnt methamphetamine

      residue, a bag of methamphetamine, and a bag of a synthetic lookalike

      substance on Guzman. According to Sergeant Ray, there were clothes in the

      vehicle and the driver of the vehicle told him she had been sleeping in the

      vehicle. When booking him at police detention, law enforcement determined

      Tolentino’s correct identity and that his birth date was March 8, 1996.


[5]   The State charged Tolentino with possession of methamphetamine as a level 6

      felony. The court held a bench trial at which it heard testimony from Corporal


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020   Page 3 of 8
      Gage, Sergeant Ray, and the Indiana State Police Lab forensic scientist. The

      court admitted a recording taken from Corporal Gage’s body camera showing

      the search of the vehicle. During Corporal Gage’s testimony, the court

      referenced the white specks on Tolentino’s shorts and asked,“[w]hether it’s now

      or then or somewhere in between, did you ever have a thought of what you

      thought those white specks were,” and Corporal Gage answered affirmatively.

      Id. at 54. When asked “[w]hat did you think they were, even if they weren’t

      tested,” he answered: “I would suspect them to be methamphetamine residue or

      trace amounts of methamphetamine crystals.” Id.


[6]   The court stated that it understood constructive possession was very fact

      specific and it is possible for a person to enter a vehicle and not have knowledge

      of something illegal in the vehicle, that here the methamphetamine was directly

      under Tolentino and touching his body, Tolentino gave a false name and date

      of birth to police, he was fidgeting, and he did not want to exit the vehicle. The

      court stated that, considering all of the evidence and the specific facts of this

      case, it found Tolentino guilty of possession of methamphetamine as a level 6

      felony.


                                                  Discussion

[7]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder’s

      role, not that of appellate courts, to assess witness credibility and weigh the

      evidence to determine whether it is sufficient to support a conviction. Id.
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020   Page 4 of 8
       When confronted with conflicting evidence, we must consider it “most

       favorably to the trial court’s ruling. Id. We will affirm unless no reasonable

       factfinder could find the elements of the crime proven beyond a reasonable

       doubt. Id. The evidence is sufficient if an inference may reasonably be drawn

       from it to support the verdict. Id. at 147.


[8]    Tolentino argues he was sitting on a miniscule amount of methamphetamine in

       a vehicle which belonged to someone else, he did not have exclusive control

       over the vehicle, it looked like the driver was living in the vehicle, and it is

       unreasonable under these circumstances to conclude that he had the requisite

       knowledge of the methamphetamine. He points out that another occupant of

       the vehicle was found with a glass pipe and a baggie of almost three grams of

       methamphetamine.


[9]    Ind. Code § 35-48-4-6.1 provides: “A person who, without a valid prescription

       or order of a practitioner acting in the course of the practitioner’s professional

       practice, knowingly or intentionally possesses methamphetamine (pure or

       adulterated) commits possession of methamphetamine, a Level 6 felony . . . .”


[10]   It is well-established that possession of an item may be either actual or

       constructive. Canfield v. State, 128 N.E.3d 563, 572 (Ind. Ct. App. 2019) (citing

       Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g, 685

       N.E.2d 698 (Ind. 1997)), trans. denied. Actual possession occurs when a person

       has direct physical control over an item. Grubbs v. State, 132 N.E.3d 451, 453

       (Ind. Ct. App. 2019) (citing Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011)),


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020   Page 5 of 8
       reh’g denied. Constructive possession occurs when a person has the capability to

       maintain dominion and control over the item and the intent to maintain

       dominion and control over it. Canfield, 128 N.E.3d at 572 (citing Lampkins, 682

       N.E.2d at 1275). The capability element of constructive possession is met when

       the State shows that the defendant is able to reduce the contraband to the

       defendant’s personal possession. Id. (citing Goliday v. State, 708 N.E.2d 4, 6

       (Ind. 1999)). The intent element of constructive possession is shown if the State

       demonstrates the defendant’s knowledge of the presence of the contraband. Id.

       (citing Goliday, 708 N.E.2d at 6).


[11]   A defendant’s knowledge may be inferred from either the exclusive dominion

       and control over the premises containing the contraband, or, if the control is

       non-exclusive, evidence of additional circumstances pointing to the defendant’s

       knowledge of the presence of contraband. Id. (citing Goliday, 708 N.E.2d at 6).

       These additional circumstances may include: “(1) a defendant’s incriminating

       statements; (2) a defendant’s attempting to leave or making furtive gestures; (3)

       the location of contraband like drugs in settings suggesting manufacturing; (4)

       the item’s proximity to the defendant; (5) the location of contraband within the

       defendant’s plain view; and (6) the mingling of contraband with other items the

       defendant owns.” Id. at 572-573 (citing Gray, 957 N.E.2d at 175). The State is

       not required to prove all additional circumstances when showing that a

       defendant had the intent to maintain dominion and control over contraband.

       Id. at 573 (citing Gee v. State, 810 N.E.2d 338, 344 (Ind. 2004)).




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020   Page 6 of 8
[12]   The evidence most favorable to Tolentino’s conviction reveals that, when

       Corporal Gage approached the Chevrolet Yukon, Tolentino was seated in the

       front passenger seat and provided a false name and date of birth. Corporal

       Gage testified that Tolentino was “very fidgety with his hands and reaching

       around.” Transcript Volume II at 20. When asked to exit the vehicle,

       Tolentino initially refused and asked why he needed to exit. When Tolentino

       eventually stepped out of the vehicle, Corporal Gage noticed a white substance

       on the front side of his shorts and the bottom of his shirt, and Sergeant Ray

       noticed there was a substance on the back of his shorts. When asked what he

       thought the white specks were on Tolentino’s shorts, Corporal Gage, a certified

       drug recognition expert, testified: “I would suspect them to be

       methamphetamine residue or trace amounts of methamphetamine crystals.” Id.

       at 54. Corporal Gage testified that he maintained a clear line of sight of the two

       occupants who remained in the Yukon after Tolentino exited the vehicle and

       that the occupants did not make any movements towards the front passenger

       seat, and Sergeant Ray similarly testified that he did not see the occupants of

       the vehicle make any kind of movements. After the K-9 alerted, Sergeant Ray

       observed the methamphetamine crystals in plain view “loose just sitting on the

       seat,” and Corporal Gage returned to the front passenger seat and also observed

       the crystals which he immediately recognized to be methamphetamine. Id. at

       62. The crystals found on the front passenger seat were determined to contain

       methamphetamine and had a net weight of .06 grams.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020   Page 7 of 8
[13]   Based upon the record and the facts of this case, we conclude that the State

       presented evidence of probative value from which a reasonable trier of fact

       could have found that Tolentino committed the offense of possession of

       methamphetamine as a level 6 felony and that his arguments amount to an

       invitation to reweigh the evidence.


[14]   For the foregoing reasons, we affirm Tolentino’s conviction.


[15]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-731 | August 27, 2020   Page 8 of 8
