MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Feb 14 2020, 8:58 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jesse Waymire,                                           February 14, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1983
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark Dudley,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C06-1307-FB-1444



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020            Page 1 of 9
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jesse Waymire (Waymire), appeals the trial court’s

      revocation of his probation.


[2]   We affirm.


                                                    ISSUE
[3]   Waymire presents this court with one issue on appeal, which we restate as:

      Whether there was sufficient evidence to support the revocation of Waymire’s

      probation.


                           FACTS AND PROCEDURAL HISTORY

[4]   On January 14, 2014, Waymire pleaded guilty to Class B felony burglary and

      Class D felony theft. The trial court subsequently sentenced Waymire to

      fourteen years for the Class B felony conviction and two years for the Class D

      felony conviction. Waymire’s sentences were to run concurrently, however, the

      trial court suspended six years of his Class B felony sentence to probation. In

      December 2018, Waymire was released from the Department of Correction

      (DOC).


[5]   On May 14, 2019, Anderson Police Department Officer Marty Dulworth

      (Officer Dulworth) conducted a traffic stop of a vehicle driving left of center.

      Upon initiating contact, he smelled an odor of marijuana emanating from the

      vehicle. Officer Dulworth ordered the driver, as well as Waymire, who was

      seated in the front passenger seat, to exit the vehicle. Officer Dulworth then


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020   Page 2 of 9
      radioed for assistance. Officer Dulworth subsequently deployed Rico, a

      narcotics-trained K-9 officer, to conduct a dog sniff by walking around the

      perimeter of the vehicle. The K-9 alerted to the presence of narcotics inside the

      vehicle. During the search of the vehicle, the police found a small plastic baggie

      with white residue on the passenger seat where Waymire was seated. The

      white substance field tested positive for methamphetamine. Under the driver’s

      seat, a white knapsack bag was located. That knapsack bag was within

      Waymire’s reach but not within the driver’s reach. The bag contained a white

      crystal-like substance which tested positive for 75.6 grams of

      methamphetamine.


[6]   After obtaining a search warrant, the officers searched the home where

      Waymire and the driver had been seen leaving from minutes before the traffic

      stop. During a search of the home, the officers located Waymire’s birth

      certificate in one of the bedrooms. Still inside the same bedroom, there were

      DOC documents belonging to Waymire and a business card with information

      relating to Waymire’s upcoming probation meeting was attached to a calendar.

      Inside a nightstand, the officers found $1,961 in cash, and a plastic bag

      containing white residue, which tested positive for methamphetamine. A bullet

      proof vest, two rifles, and a handgun, were found inside a closet. Also, the

      officers found a safe inside the closet. Using Waymire’s year of birth, 1993, the

      officers were able to open the safe. There were two handguns and $9,000 inside

      the safe.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020   Page 3 of 9
[7]   On May 20, 2019, the Madison County Probation Office (Probation Office)

      filed a notice of probation violation, alleging that Waymire had accumulated

      two new offenses—i.e., Level 2 felony dealing in methamphetamine and Level 4

      felony unlawful possession of a firearm by a serious violent felon (SVF).

      Following a hearing, the trial court found by a preponderance of the evidence

      that Waymire had committed two new offenses, revoked his probation, and

      ordered him to serve the balance of his previously-suspended sentence in the

      DOC.


[8]   Waymire now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[9]   “‘Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.

      App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)), trans.

      denied. “Courts in probation revocation hearings ‘may consider any relevant

      evidence bearing some substantial indicia of reliability.’” Id. (quoting Cox v.

      State, 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the discretion of the trial

      court to determine the conditions of a defendant’s probation and to revoke

      probation if the conditions are violated.” Id. Our court has said that “all

      probation requires ‘strict compliance’” because once the trial court extends this

      grace and sets its terms and conditions, the probationer is expected to comply

      with them strictly.” Id. at 731-32 (quoting Woods v. State, 892 N.E.2d 637, 641

      (Ind. 2008)). “If the probationer fails to do so, then a violation has occurred.”


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020   Page 4 of 9
       Id. We review a sanction imposed following revocation of probation for an

       abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “‘An

       abuse of discretion occurs where the decision is clearly against the logic and

       effect of the facts and circumstances.’” Hutchison v. State, 82 N.E.3d 305, 310

       (Ind. Ct. App. 2017) (quoting Prewitt, 878 N.E.2d at 188).


[10]   Probation revocation is a two-step process. First, the trial court must make a

       factual determination that a violation of a condition of probation occurred.

       Heaton, 984 N.E.2d at 616. Second, if a violation is found, then the trial court

       must determine the appropriate sanctions for the violation. Id. Waymire does

       not appeal the sanction imposed; instead, he claims that the State did not

       present sufficient evidence that he had committed additional offenses while on

       probation.


[11]   “When a probationer is accused of committing a criminal offense, an arrest

       alone does not warrant the revocation of probation.” Johnson v. State, 692

       N.E.2d 485, 487 (Ind. Ct. App. 1998). Likewise, the mere filing of a criminal

       charge against a defendant does not warrant the revocation of probation. Martin

       v. State, 813 N.E.2d 388, 391 (Ind. Ct. App. 2004). Instead, when the State

       alleges that the defendant violated probation by committing a new criminal

       offense, the State is required to prove—by a preponderance of the evidence—

       that the defendant committed the offense. Heaton, 984 N.E.2d at 617. Here,

       the State alleged that Waymire violated his probation by committing Level 2

       felony dealing in methamphetamine, and Level 4 felony unlawful possession of

       a firearm by an SVF.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020   Page 5 of 9
                              A. Level 2 Felony Dealing in Methamphetamine


[12]   To obtain a conviction of dealing in methamphetamine as charged in this case,

       the State was required to prove beyond a reasonable doubt that: (1) Waymire

       (2) possessed with intent to deliver (3) at least 10 grams of methamphetamine.

       See Ind. Code § 35-48-4-1.1(a)(2), (e)(1).


[13]   A conviction for a drug offense may be supported by actual or constructive

       possession. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on

       reh’g, 685 N.E.2d 698 (Ind. 1997). “Actual possession occurs when a person

       has direct physical control over the item.” Sargent v. State, 27 N.E.3d 729, 733

       (Ind. 2015). Where, as here, the State “cannot show actual possession, it may

       nonetheless prevail on proof of constructive possession.” Id. Waymire argues

       that the State failed to establish that he constructively possessed the

       methamphetamine. In proving constructive possession, the State must show

       “that the defendant has both (i) the intent to maintain dominion and control

       over the drugs and (ii) the capability to maintain dominion and control over the

       drugs.” Id. Further, where, as here, “possession of the automobile in which

       drugs are found is not exclusive, the inference of intent must be supported by

       additional circumstances pointing to the defendant’s knowledge of the nature of

       the controlled substances and their presence.” Lampkins, 682 N.E.2d at 1275.

       Our supreme court has identified “various means” of showing the required

       additional circumstances, including—but not limited to—proof of “(1)

       incriminating statements by the defendant, (2) attempted flight or furtive

       gestures, (3) location of substances like drugs in settings that suggest

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020   Page 6 of 9
       manufacturing, (4) proximity of the contraband to the defendant, (5) location of

       the contraband within the defendant’s plain view, and (6) the mingling of the

       contraband with other items owned by the defendant.” Henderson v. State, 715

       N.E.2d 833, 836 (Ind. 1999).


[14]   Here, the intent and capability elements were both met. A baggie of

       methamphetamine was found in the passenger seat where Waymire was seated.

       Further, a knapsack bag located under the driver’s seat and positioned in such a

       way that only Waymire could easily grab it, contained over 75 grams of

       methamphetamine. Additionally, a large amount of cash, a plastic bag with

       white residue that tested positive for methamphetamine, along with firearms,

       were inside a bedroom containing Waymire’s personal belongings.


[15]   Based on the foregoing, we conclude that the proximity of the

       methamphetamine recovered in the vehicle and in the bedroom containing

       Waymire’s personal belongings, strongly suggests that Waymire had both the

       intent and capability to maintain dominion and control over the

       methamphetamine recovered. See Henderson, 715 N.E.2d at 836. Thus, we

       conclude that the State proved by a preponderance that Waymire committed

       Level 2 felony dealing in methamphetamine.


                     B. Level 4 Felony Unlawful Possession of a Firearm by an SVF.


[16]   Waymire also contends that the State failed to prove by a preponderance of the

       evidence that he committed Level 4 felony unlawful possession of a firearm by

       an SVF. In order to convict Waymire of unlawful possession of a firearm by an

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020   Page 7 of 9
       SVF, the State had to prove that he was an SVF and: “knowingly or

       intentionally possesse[d] a firearm.” I.C. § 35-47-4-5(c). Waymire does not

       dispute his prior conviction for Class B felony burglary, which is a crime

       included in the statute’s list of serious violent felonies. See I.C. § 35-43-2-1. “A

       person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

       aware of a high probability that he is doing so.” I.C. § 35-41-2-2(b).


[17]   Waymire argues that there is no evidence that demonstrates that he

       constructively possessed the firearms that were recovered during the search of

       the home which he claims he did not exclusively possess. Possession of a

       firearm may be either actual or constructive. Causey v. State, 808 N.E.2d 139,

       143 (Ind. Ct. App. 2004). A person who has direct and physical control over a

       firearm has actual possession, whereas a person who has the intent and

       capability to maintain control over a firearm has constructive possession. Id.

       To prove intent, the State must demonstrate that the defendant knew of the

       firearm’s presence. Id. Such knowledge may be inferred from either exclusive

       dominion over the premises containing the firearm or from evidence of

       additional circumstances showing that the defendant had knowledge of the

       firearm’s presence. Id.


[18]   Following the search of the house Waymire and the driver had been seen

       leaving prior to the traffic stop, the police recovered Waymire’s birth certificate

       in one of the bedrooms. Still inside the same bedroom, there were DOC

       documents belonging to Waymire, and a business card with details pertaining

       to Waymire’s future probation meeting. Additionally, the officers found a safe,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020   Page 8 of 9
       which they were able to open using the combination of 1993, which is the year

       Waymire was born. Inside the safe and closet, the officers found a total of three

       handguns and two rifles. Because Waymire’s personal documents were

       recovered in the bedroom in which the firearms were discovered, we conclude

       that he had the intent and capability to maintain dominion and control over the

       firearms. Thus, we conclude that the State presented sufficient evidence by a

       preponderance of the evidence to support Waymire’s Level 4 felony unlawful

       possession of a firearm by an SVF.


                                             CONCLUSION
[19]   In sum, we conclude that the State presented sufficient evidence by a

       preponderance of the evidence that Waymire committed additional offenses

       while on probation. Thus, we conclude that the trial court did not abuse its

       discretion by revoking Waymire’s probation.


[20]   Affirmed.


[21]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1983 | February 14, 2020   Page 9 of 9
