MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Feb 17 2017, 9:03 am

court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Russell B. Cate                                          Curtis T. Hill, Jr.
Cate, Terry & Gookins LLC                                Attorney General of Indiana
Carmel, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nicholas Edward Daugherty,                               February 17, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A02-1609-CR-2076
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Hon. J. Richard Campbell,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D04-1603-CM-1923



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2076 | February 17, 2017      Page 1 of 7
                                          Case Summary
[1]   The Appellant-Defendant Nicholas Edward Daugherty appeals his conviction

      of possession of paraphernalia as a Class C misdemeanor, contending that the

      Appellee-Plaintiff the State of Indiana (“the State”) failed to produce sufficient

      evidence to sustain his conviction. Specifically, Daugherty claims that the State

      failed to prove that Daugherty constructively possessed the paraphernalia. Due

      to the evidence that the paraphernalia was close in proximity to Daugherty, it

      was found in a vehicle owned by Daugherty’s father, and Daugherty made

      incriminating statements, we affirm.



                            Facts and Procedural History
[2]   On February 19, 2016, Hamilton County Sheriff’s Deputy Neal Hoard stopped

      a vehicle that had a headlight out. Deputy Hoard approached the driver’s side

      of the vehicle and was explaining the purpose for the traffic stop and noticed an

      odor of marijuana coming from the vehicle. There were two individuals in the

      vehicle at that time. Daugherty was in the passenger seat and Nicholas Trees

      was in the driver seat. The vehicle was registered to Daugherty’s father.


[3]   Deputy Hoard subsequently asked both Daugherty and Trees to exit the

      vehicle, radioed for backup, and conducted a search of the vehicle. During the

      search, Deputy Hoard located marijuana, scales, a measuring cup, and a mason

      jar stuffed with zip-lock baggies with marijuana residue. Deputy Hoard also




      Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2076 | February 17, 2017   Page 2 of 7
      discovered two smoking pipes in the glove compartment with a “odor of burnt

      marijuana.” Tr. p. 10.


[4]   Deputy Hoard subsequently pulled Daugherty aside to ask him a few questions;

      this conversation was captured on Deputy Hoard’s in-car video camera. At

      some point during the conversation, Daugherty admitted to Deputy Hoard that

      the pipes were his. Deputy also spoke to Trees individually during which Trees

      admitted to possession of the marijuana found in the vehicle.


[5]   The State charged Daugherty with Class C misdemeanor possession of

      paraphernalia on March 15, 2016. After a bench trial, Daugherty was found

      guilty as charged and sentenced to fourteen days executed. This appeal follows.



                                 Discussion and Decision
[6]   On appeal, Daugherty argues that there was insufficient evidence to support his

      conviction for possession of paraphernalia. Our standard for reviewing

      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
              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. This evidence need not

      Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2076 | February 17, 2017   Page 3 of 7
              overcome every reasonable hypothesis of innocence; it is
              sufficient so long as an inference may reasonably be drawn from
              it to support the verdict.


      Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (internal citations and quotations

      omitted). The trier of fact is responsible for resolving conflicts of testimony,

      determining the weight of the evidence, and evaluating the credibility of the

      witnesses. Jones v. State, 701 N.E.2d 863, 867 (Ind. Ct. App. 1998).


[7]   Under Indiana Code section 35-48-4-8.3(b)(1), a person who knowingly or

      intentionally possesses an instrument, a device, or another object that the

      person intends to use for introducing into the person’s body a controlled

      substance commits a Class C misdemeanor. The State can either prove actual

      or constructive possession in order to obtain a conviction for possession of

      paraphernalia. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “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.” Id.


              A trier of fact may infer that a defendant had the capability to
              maintain dominion and control over contraband from the simple
              fact that the defendant had a possessory interest in the premises
              on which an officer found the item. We allow this inference even
              when that possessory interest is not exclusive. A trier of fact may
              likewise infer that a defendant had the intent to maintain
              dominion and control over contraband from the defendant’s
              possessory interest in the premises, even when that possessory
              interest is not exclusive. When that possessory interest is not
              exclusive, however, the State must support this second inference
              with additional circumstances pointing to the defendant’s
      Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2076 | February 17, 2017   Page 4 of 7
              knowledge of the presence and the nature of the item. We have
              previously identified some possible examples, including (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.


[8]   Reviewing only the probative evidence and the reasonable inferences that

      support the verdict, we conclude that the evidence was sufficient to convict

      Daugherty of possession of paraphernalia. The record shows that Daugherty

      constructively possessed the pipes because they were in the glovebox, close in

      proximity to Daugherty. The evidence also shows that the vehicle was owned

      by Daugherty’s father. Finally, Daugherty made incriminating statements in

      which he admitted to owning the pipes. A reasonable trier of fact could have

      determined that Daugherty had the intent and capability to maintain control of

      the pipes.


[9]   According to the record, there is also evidence that the pipes and vehicle

      smelled of burnt marijuana. The evidence further shows that Daugherty and

      his friend were going to smoke the marijuana once they stopped the vehicle

      somewhere. The evidence is more than sufficient to establish that Daugherty

      intended to use the pipes to introduce marijuana into his body.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2076 | February 17, 2017   Page 5 of 7
[10]   Daugherty also challenges the sufficiency of the evidence because Deputy

       Hoard’s testimony is allegedly incredibly dubious. The incredible dubiosity

       rule, which requires the reversal of a conviction, is only applied in very narrow

       circumstances. Leyva v. State, 971 N.E.2d 699, 702 (Ind. Ct. App. 2012). The

       rule of incredible dubiosity is expressed as follows:

               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this rule is rare and the standard to be
               applied is whether the testimony is so incredibly dubious or
               inherently improbable that no reasonable person could believe it.


       Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).


[11]   Daugherty fails to show that Deputy Hoard’s testimony was inherently

       improbable, nor did he show that there was a complete lack of circumstantial

       evidence. Deputy Hoard’s testimony regarding the events of February 19,

       2016, was consistent and plausible; he never wavered in his description of the

       events. Further, we cannot say that Deputy Hoard’s testimony regarding his

       conversation with Daugherty, including when Daugherty admitted to

       ownership of the pipes, was so inherently improbable that no reasonable person

       could believe it. Daugherty merely infers that Deputy Hoard’s testimony is

       untruthful because parts of the recording of that conversation are inaudible.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2076 | February 17, 2017   Page 6 of 7
[12]   Based upon our review of the evidence and the testimony most favorable to the

       conviction, we conclude that sufficient evidence exists from which the trier of

       fact could find Daugherty guilty beyond a reasonable doubt of possession of

       paraphernalia. We affirm.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2076 | February 17, 2017   Page 7 of 7
