MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Jan 19 2016, 8:22 am

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
Paula M. Sauer                                           Gregory F. Zoeller
Danville, Indiana                                        Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Hobert C. Lamb,                                          January 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A04-1506-CR-539
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Karen M. Love,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         32D03-1502-F5-18



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016     Page 1 of 12
                               Case Summary and Issues
[1]   Following a jury trial, Hobert Christopher Lamb was convicted of possession of

      methamphetamine as a Level 6 felony, possession of marijuana as a Class B

      misdemeanor, and possession of paraphernalia as Class A misdemeanor. Lamb

      appeals, raising two restated issues: (1) whether the State presented sufficient

      evidence to support his conviction for possession of methamphetamine; and (2)

      whether the trial court abused its discretion by rejecting his proposed jury

      instruction on constructive possession. Concluding the evidence was sufficient

      and any error in the instruction of the jury was harmless, we affirm Lamb’s

      convictions.



                            Facts and Procedural History
[2]   Venkata Nattam manages the Wingate and Super 8 motels in Plainfield,

      Indiana. In February 2015, Nattam hired Lamb to install floor tile in the

      stairwells of the Wingate. Nattam compensated Lamb by providing a

      complimentary room at the Super 8 for the duration of the project. Lamb was

      the only person who had permission to stay in the room and was the only

      person given a key.


[3]   On February 21, 2015, a motel employee informed Nattam she detected the

      odor of burnt marijuana emanating from Lamb’s room. Nattam called the

      room to remind Lamb that smoking was not permitted, but Lamb’s employee




      Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016   Page 2 of 12
      Jason answered the phone.1 Jason laughed and hung up, so Nattam called the

      police.


[4]   Officers Zach Gadawski and Justin Walker of the Plainfield Police Department

      were dispatched to the Super 8 in reference to a marijuana odor. As the officers

      climbed the stairs leading to the second floor, they detected the odor of burnt

      marijuana, which grew stronger in the hallway. The odor was the strongest

      outside the door of Room 209, so the officers knocked on the door. Lamb

      answered approximately thirty seconds later and invited the officers inside.

      Lamb was the only person in the room.


[5]   Officer Gadawski advised Lamb his room smelled strongly of burnt marijuana.

      Lamb stated he did not know why the room smelled of marijuana and claimed

      he was asleep when they knocked. Officer Gadawski asked Lamb if anyone

      else was staying the room. Lamb stated “to his knowledge” Jason and a

      woman named Heather had stayed the night before. State’s Exhibit 1. Lamb

      also told Officer Gadawski that Jason had been “hollering the police were

      coming” and left just before the officers arrived. Id. While speaking with

      Lamb, Officer Gadawski noticed in plain view on the nightstand a small plastic

      baggie with one end tied off and the bottom ripped out, which he knew through

      his training and experience to be associated with narcotic use. Officer

      Gadawski asked Lamb what was in the baggie; Lamb said he “had no idea.”



      1
       Nattam knew he was speaking with Jason because he had seen Jason in the lobby and had told Jason he
      was not allowed to stay in Lamb’s room.

      Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016      Page 3 of 12
      Id. Officer Gadawski then asked Lamb for consent to search the room, but

      Lamb declined. “I was asleep, so I don’t know what’s in here, man. . . . I

      really don’t know who’s been in here, who ain’t been in here,” Lamb explained.

      Id. Nattam confirmed there had been a variety of people “coming and going”

      from Lamb’s room. Transcript at 235-36.


[6]   The officers obtained a search warrant for the room and executed the warrant

      later that day.2 First, Officer Brad Elston of the Plainfield Police Department

      conducted a sweep of the room with his K-9 partner. The dog indicated the

      presence of narcotics in several areas of the room. Then, Officers Gadawski

      and Elston conducted the search, focusing on the areas indicated by the dog.

      Lamb was detained in the hallway with Officer Walker during the search.

      Lamb asked Officer Walker “if possession of marijuana is a ticketable offense in

      Indiana,” and told Officer Walker “if they find anything under the bed it’s not

      mine.” Id. at 422. Lamb also stated “something to the effect of I just don’t see

      this ending up well.” Id.


[7]   Officers Gadawski and Elston uncovered methamphetamine, marijuana, and

      paraphernalia throughout the room. The room had two beds, one of which

      appeared undisturbed when the officers entered. In the bed that Lamb had been




      2
       A second search warrant was issued in this case. While searching the room, Officer Gadawski cut himself,
      so the police obtained a warrant to test Lamb’s blood for bloodborne pathogens. Tr. at 33. Lamb, in his brief
      and reply brief, erroneously states the search warrant was issued to test his blood for drugs. See Brief of
      Appellant at 17; Reply Brief at 9-10. We remind counsel of her duty of candor toward this court under
      Indiana Professional Conduct Rule 3.3.

      Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016          Page 4 of 12
      sleeping in, they discovered a broken glass pipe with burnt residue. They found

      six syringes under the mattress of the other bed and a second glass pipe between

      the sheets. In the dresser and the area surrounding it, they found clothing, raw

      marijuana, the burnt end of a marijuana cigarette, several more ripped plastic

      baggies, and an Altoid tin with a straw and white residue inside.3 They

      discovered rolling papers in the nightstand, as well as a prescription bottle

      bearing Lamb’s name. On the toilet in the bathroom, the officers noticed a

      residue suggesting something had been flushed. In a trashcan next to the toilet

      they discovered a syringe buried in the trash. Next to the sink, they found a

      toiletry bag that contained a toothbrush, an electric razor, an extension cord,

      and a plastic baggie of suspected methamphetamine. Subsequent forensic

      testing confirmed the plastic baggie contained methamphetamine.


[8]   The room was cleaned prior to Lamb checking in on February 11, 2015, but the

      room had not since been cleaned. When the search concluded, Officer

      Gadawski informed Lamb of what they had found. Lamb admitted the

      marijuana was his but denied having knowledge of the other items. On

      February 23, 2015, the State charged Lamb with possession of

      methamphetamine as a Level 6 felony, possession of methamphetamine as a

      Level 5 felony, possession of marijuana as a Class B misdemeanor, and

      possession of paraphernalia as Class A misdemeanor. The trial court granted




      3
       Officer Gadawski testified straws are commonly used to ingest “powdery substance[s]” through a drug
      user’s nose, “whether it be pills, cocaine, meth.” Tr. at 309-10.

      Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016       Page 5 of 12
       the State’s motion to dismiss the Level 5 felony on April 7, 2015, and a jury

       trial was held the following week. The jury found Lamb guilty of the remaining

       charges. The trial court ordered Lamb to serve an aggregate sentence of 730

       days executed in the Department of Correction. This appeal followed.



                                  Discussion and Decision
                                   I. Sufficiency of Evidence
                                       A. Standard of Review
[9]    Lamb contends the evidence was insufficient to support his conviction for

       possession of methamphetamine. 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). We neither reweigh the evidence nor assess the credibility of

       witnesses. Id. Unless no reasonable fact-finder could conclude the elements of

       the crime were proven beyond a reasonable doubt, we will affirm the

       conviction. Id.


                             B. Possession of Methamphetamine
[10]   A person commits possession of methamphetamine if he knowingly or

       intentionally possesses methamphetamine without a valid prescription. Ind.

       Code § 35-48-4-6.1. Lamb argues the State failed to prove he possessed the

       methamphetamine found in the motel room.



       Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016   Page 6 of 12
[11]   We have long recognized a conviction for a possessory offense may rest upon

       proof of either actual or constructive possession. Goodner v. State, 685 N.E.2d

       1058, 1061 (Ind. 1997). A defendant constructively possesses an item when he

       has both the capability and the intent to maintain dominion and control over it.

       Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). Proof of a possessory interest in

       the premises where the item is found satisfies the capability prong, regardless of

       whether possession of the premises is exclusive. Gee v. State, 810 N.E.2d 338,

       340-41 (Ind. 2004). As for the intent prong, if a defendant’s possession of the

       premises is non-exclusive, the inference of intent to maintain dominion and

       control must be supported by additional circumstances pointing to the

       defendant’s knowledge of the nature of the item and its presence. Id. at 341.

       Recognized “additional circumstances” include: (1) incriminating statements;

       (2) attempted flight or furtive gestures; (3) a setting that suggests drug

       manufacturing; (4) the proximity of the item to the defendant; (5) whether the

       item was found in plain view; and (6) the mingling of the item with other items

       the defendant owns. Id.


[12]   Lamb properly concedes he had a possessory interest in the motel room and

       thus had the capability to maintain dominion and control over the

       methamphetamine. On appeal, Lamb contends his possession of the room was

       non-exclusive and the State failed to show additional circumstances

       demonstrating his knowledge of the methamphetamine. We agree Lamb’s

       possession of the room was non-exclusive but conclude the evidence presented




       Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016   Page 7 of 12
       at trial supplied additional circumstances that sufficiently demonstrated Lamb’s

       intent to maintain dominion and control over the methamphetamine.


[13]   Lamb argues the evidence established at least two people had been staying in

       the room and the State presented no evidence regarding which items in the

       room belonged to Lamb. When the police arrived, however, Lamb was the

       only person in the room and was in close proximity to the methamphetamine.

       The sink was in the same area as the beds, in between Lamb’s bed and the door.

       The sink was not in the bathroom, so Lamb could see the toiletry bag from

       where he was lying. Lamb was furthermore the only registered guest for Room

       209. When the police conducted the search, he had been staying in the room

       for ten days, and the second bed appeared undisturbed, as if no one had slept in

       it during that time. Given these facts, the jury could reasonably infer the

       personal items in the room belonged to Lamb and the methamphetamine was

       thus mingled with Lamb’s possessions. See Tate v. State, 835 N.E.2d 499, 511

       (Ind. Ct. App. 2005) (finding it reasonable to infer firearms found in a motel

       room were mingled with the defendant’s possessions because the defendant was

       staying in the motel room at the time, notwithstanding the fact that he was

       sharing the room with several others), trans. denied.


[14]   Lamb also made incriminating statements. While Officers Gadawski and

       Elston searched the room, Lamb asked Officer Walker “if possession of

       marijuana is a ticketable offense in Indiana.” Tr. at 422. He also told Officer

       Walker “if they find anything under the bed it’s not mine,” and stated

       “something to the effect of I just don’t see this ending up well.” Id. The

       Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016   Page 8 of 12
       officers found six syringes under the mattress of the bed that appeared

       undisturbed and a glass pipe under the other mattress. Lamb argues his

       incriminating statements “linked him to the marijuana, not the

       methamphetamine,” Reply Br. at 2, but we cannot agree. Syringes are not used

       to ingest marijuana, and the pipe the police found in the bed could have been

       used to smoke either marijuana or methamphetamine. See Tr. at 309. As

       Officer Gadawski testified, syringes are typically used to inject “[c]ocaine,

       methamphetamine, heroin, anything that can be melted into a liquid and

       introduced in the body.” Id.            We therefore cannot agree Lamb’s incriminating

       statements linked him only to the marijuana.


[15]   The jury could reasonably infer Lamb’s guilt from the evidence presented at

       trial, and we consider the bulk of Lamb’s argument on this issue—regarding

       how many toothbrushes were found in the room, for instance—merely a

       request for this court to reweigh the evidence. Lamb had a possessory interest

       in the motel room, and the evidence supplied additional circumstances that

       sufficiently demonstrated his intent to maintain dominion and control over the

       methamphetamine. The evidence was sufficient to support Lamb’s conviction

       for possession of methamphetamine.


                                        II. Jury Instructions
                                       A. Standard of Review
[16]   Lamb also contends the trial court abused its discretion by rejecting his

       proposed jury instruction on constructive possession. “Instructing a jury is left


       Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016   Page 9 of 12
       to the sound discretion of the trial court and we review its decision only for an

       abuse of discretion.” Washington v. State, 997 N.E.2d 342, 345 (Ind. 2013). In

       determining whether a jury instruction was properly refused, we consider: “(1)

       whether the tendered instruction correctly states the law; (2) whether there was

       evidence presented at trial to support giving the instruction; and (3) whether the

       substance of the instruction was covered by other instructions that were given.”

       McCowan v. State, 27 N.E.3d 760, 763-64 (Ind. 2015) (citation omitted). But

       reversal is not warranted unless the instructions as a whole misstate the law or

       mislead the jury. Wallen v. State, 28 N.E.3d 328, 331 (Ind. Ct. App. 2015), trans.

       denied. An error in refusing an instruction is harmless “where a conviction is

       clearly sustained by the evidence and the jury could not properly have found

       otherwise.” Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001).


                                    B. Final Instruction No. 9B
[17]   As stated above, where a defendant has non-exclusive possession of the

       premises where an item is found, the inference of intent to maintain dominion

       and control of the item must be supported by “additional circumstances”

       pointing to the defendant’s knowledge of the nature of the item and its

       presence. Gee, 810 N.E.2d at 341. Our supreme court has identified various

       examples of “additional circumstances,” and has supplied a non-exhaustive list

       of the types of evidence which would tend to show a defendant’s knowledge.

       Supra, at ¶ 11; see also Gray, 957 N.E.2d at 174-75 (stating the list is “not

       exhaustive as other circumstances could just as reasonably demonstrate

       requisite knowledge”) (citing Carnes v. State, 480 N.E.2d 581, 586 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016   Page 10 of 12
       1985), trans. denied). Lamb’s proposed jury instruction on constructive

       possession included the list of recognized “additional circumstances.”

       Appendix at 130.


[18]   The trial court refused to include the list in the instruction, fearing its inclusion

       would amount to improper comment on the evidence. Tr. at 476-77.

       Accordingly, Final Instruction No. 9B read as follows:


               Possession of something may take two forms. One can possess
               an item directly, meaning that he or she has actual physical
               control over the item. Or, one can possess something
               constructively, meaning that he or she has the capability and
               intent to possess the item, even though actual physical control is
               absent. When possession of the premises on which drugs or
               paraphernalia is not exclusive [sic], the inference of intent to
               maintain dominion and control over the items must be supported
               by additional circumstances pointing to the accused’s knowledge
               of the nature of the drugs and/or paraphernalia and their
               presence in his hotel room.


       App. at 202. Rather than include the list of recognized “additional

       circumstances,” the trial court permitted both sides to argue the existence of

       “additional circumstances” during closing arguments. Tr. at 476-77.


[19]   Although we agree with Lamb that his proffered instruction listing the

       recognized “additional circumstances” correctly stated the law, that the

       evidence supported giving the instruction, and that the substance of the

       instruction was not covered by other instructions given, we cannot conclude the

       trial court committed reversible error. The final version of the instruction did


       Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016   Page 11 of 12
       not misstate the law or mislead the jury regarding the requirement of

       “additional circumstances.” Lamb was permitted to argue the absence of

       “additional circumstances,” and we have already concluded the State presented

       sufficient evidence to support Lamb’s conviction. In short, the error was

       harmless.



                                               Conclusion
[20]   The evidence was sufficient to support Lamb’s conviction for possession of

       methamphetamine, and the trial court did not commit reversible error by

       rejecting Lamb’s proposed jury instruction. We therefore affirm Lamb’s

       convictions.


[21]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A04-1506-CR-539 | January 19, 2016   Page 12 of 12
