MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Mar 30 2020, 11:33 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Darren Bedwell                                           Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Devin Bowman,                                            March 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2574
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clark H. Rogers,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G25-1811-F6-40678



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020                  Page 1 of 7
                                       Statement of the Case
[1]   Devin Bowman appeals his conviction for possession of a narcotic, as a Level 6

      felony, following a jury trial. Bowman presents one issue for our review,

      namely, whether the State presented sufficient evidence to support his

      conviction.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In November 2018, Bowman was living in his grandmother’s trailer while

      serving a sentence on community corrections. On November 15, Marion

      County Sheriff’s Deputy Steve Hoffman and Marion County Community

      Corrections Field Officer Larry Taylor conducted a home visit in order to

      search Bowman’s residence. When the officers arrived, Bowman’s

      grandmother let them in and informed them that Bowman was in his bedroom.

      Also present in Bowman’s bedroom was his girlfriend, Debra Balasquide. The

      officers knocked on the bedroom door and announced themselves. Deputy

      Hoffman then “heard some commotion in the room,” and it took “a while” for

      Bowman to answer the door. Tr. at 62.


[4]   When Bowman opened the door, Deputy Hoffman “immediately” noticed that

      Bowman was “out of it” and that he had “pinpoint pupils,” which indicated to

      Deputy Hoffman that Bowman was “high on an opiate.” Id. at 62, 63. He also

      observed that Balasquide was in the same condition as Bowman. At that point,



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020   Page 2 of 7
      Deputy Hoffman directed Bowman and Balasquide to wait with Officer Taylor

      in the front room so that he could search Bowman’s bedroom.


[5]   When Deputy Hoffman entered the room, he noticed several items on a table,

      including “waxy papers,” which Deputy Hoffman believed were used to

      transport heroin. Id. at 63. Deputy Hoffman also observed a “spoon with some

      kind of white powdery residue on it” and a bottle of water, which items “were

      indicative of heroin being used in that particular room.” Id. at 63, 64. Deputy

      Hoffman also saw a “Speedway cup” and “two Contigo thermos bottles” on the

      same table. Id. at 64. Deputy Hoffman then proceeded to search the rest of the

      room. During that search, Deputy Hoffman discovered another spoon in

      between the mattress and the wall that had “a scorch mark” on the bottom and

      “some residue” in it. Id. at 64, 65.


[6]   While Deputy Hoffman was searching the room, Bowman was acting

      “nervous.” Id. at 107. At one point, Balasquide asked “if she could have her

      cup that was in the room.” Id. at 65. Deputy Hoffman gave Balasquide the

      Speedway cup, but Balasquide “shout[ed]” that that was not the correct cup.

      Id. Deputy Hoffman then went to give her the Contigo thermoses. Before he

      handed the thermoses to Balasquide, he searched them. The first one was

      empty, but the second one contained approximately fifty-seven dollars and “the

      same waxy like paper” that he had seen on the table. Id. Deputy Hoffman

      opened the wax paper and discovered 0.3 gram of heroin. At that point, the

      officers arrested Bowman and Balasquide. During a search of Bowman’s



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020   Page 3 of 7
      person, Deputy Hoffman found a syringe cap in Bowman’s pocket. The two

      individuals were then transported to the jail.


[7]   Once at the jail, Deputy Hoffman observed Bowman in the waiting area.

      Bowman was “slumped over” and “nodding off,” which was “indicative” of

      overdosing. Id. at 74. At that point, the medics administered two doses of

      Narcan, after which Bowman was “revived.” Id. Following his incarceration,

      Bowman spoke with Balasquide on the phone. During that phone call,

      Balasquide complained that she had been handcuffed first. Bowman

      responded: “I told you not to ask for the cups though.” Ex. 7.


[8]   The State charged Bowman with possession of a narcotic, as a Level 6 felony,

      and possession of paraphernalia, as a Class C misdemeanor. The trial court

      held a jury trial on August 6, 2019. Following the trial, the jury found Bowman

      guilty of possession of a narcotic but not guilty of possession of paraphernalia.

      The trial court entered judgment of conviction accordingly and sentenced

      Bowman to one year in the Department of Correction. This appeal ensued.


                                     Discussion and Decision
[9]   Bowman contends that the State failed to present sufficient evidence to support

      his conviction. 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.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020   Page 4 of 7
                Id. 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).


[10]   Bowman’s sole contention on appeal is that the State did not present sufficient

       evidence to demonstrate that he constructively possessed the heroin. “A person

       constructively possesses contraband when the person has (1) the capability to

       maintain dominion and control over the item; and (2) the intent to maintain

       dominion and control over it.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).

       Where, as here, a person’s control over the premises where the contraband is

       found is nonexclusive, intent to maintain dominion and control may be inferred

       from additional circumstances that indicate the person knew of the presence of

       the contraband. See id. at 174-75.


[11]   Those 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 175. “Those enumerated circumstances are not

       exhaustive; ultimately, our question is whether a reasonable fact-finder could

       conclude from the evidence 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 19A-CR-2574 | March 30, 2020   Page 5 of 7
[12]   Here, the evidence demonstrates that, when officers first knocked on Bowman’s

       bedroom door and announced themselves, it took “a while” for Bowman to

       answer the door, during which time the officers “heard some commotion in the

       room.” Tr. at 52. Then, when Deputy Hoffman first entered the room, he

       observed items in plain view that were “indicative of heroin use.” Id. at 63.

       Specifically, Deputy Hoffman saw “waxy papers” on a table that he believed

       were the same type of paper that is usually used to transport heroin, a spoon

       with “white powdery residue on it,” and a bottle of water. Id. at 63. And

       during a search of the room, Deputy Hoffman found another spoon with “a

       scorch mark” on the bottom and “some residue in it.” Id. at 64, 65. Deputy

       Hoffman then found heroin in one of the thermoses that was on the same table

       as the wax paper and one of the spoons.


[13]   Further, Deputy Hoffman noticed signs that Bowman had used heroin. Indeed,

       when Bowman finally opened the door, Deputy Hoffman noticed that Bowman

       had pinpoint pupils and that he was “out of it,” which indicated to Deputy

       Hoffman that Bowman was “high on an opiate.” Id. at 62, 63. Further, once at

       the jail, Bowman displayed signs that he had overdosed, and medics had to

       administer two doses of Narcan before Bowman was “revived.” Id. at 74.


[14]   Additionally, following his arrest, Bowman told Balasquide: “I told you not to

       ask for the cups[.]” Ex. 7. A reasonable fact-finder could infer from that

       statement that Bowman knew the heroin was in the cup and that he did not

       want Balasquide to draw the officer’s attention to it.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020   Page 6 of 7
[15]   Based on that evidence, a reasonable jury could conclude that Bowman knew of

       the nature and presence of the contraband. See Johnson, 59 N.E.3d at 107.

       Bowman’s contentions on appeal are merely a request that we reweigh the

       evidence, which we cannot do. We hold that the State presented sufficient

       evidence to support his conviction for possession of a narcotic, as a Level 6

       felony, and we affirm his conviction.


[16]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2574 | March 30, 2020   Page 7 of 7
