MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Dec 04 2019, 8:40 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
William T. Myers                                         Curtis T. Hill, Jr.
Whitehurst & Myers                                       Attorney General of Indiana
Marion, Indiana                                          Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Nicholous L. Finton,                                     December 4, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-960
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff.                                      Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1812-F6-310



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-960 | December 4, 2019              Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Nicholous Finton (Finton), appeals his conviction for

      possession of methamphetamine, a Level 6 felony, I.C. § 35-48-4-6.1(a);

      domestic battery, a Level 6 felony, I.C. § 35-42-2-1.3(b)(1); and possession of

      paraphernalia, a Class C misdemeanor, Ind. Code § 35-48-4-8.3(b).


[2]   We affirm.


                                                    ISSUE
[3]   Finton raises one issue on appeal which we restate as: Whether there was

      sufficient evidence to support Finton’s two possession convictions beyond a

      reasonable doubt.


                      FACTS AND PROCEDURAL HISTORY
[4]   Around Thanksgiving of 2018, Finton moved into his girlfriend’s, Casey Fisher

      (Fisher), apartment in Huntington, Indiana. On December 26, 2018, at around

      2:00 a.m., Finton was searching for his methamphetamine, and “he was

      blaming [Fisher] for hiding them because he couldn’t find them.” (Transcript p.

      58). Fisher helped him look for the methamphetamine, and she eventually

      came across a pipe in the bathroom. Fisher went to bed while Finton went to

      the bathroom with the pipe.


[5]   When Fisher woke up that afternoon around 3:00 p.m., she noticed that all of

      her money and credit cards were missing from her wallet. Fisher went to the

      living room and confronted Finton, who was sitting on the couch, and an

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-960 | December 4, 2019   Page 2 of 8
      argument ensued. Fisher left the apartment for about an hour to get a fountain

      drink, and, when she returned, she informed Finton that he had to move out of

      the apartment. Finton became angry, knocked the drink out of Fisher’s hand,

      and threw her up against the bedroom wall. Finton then came up behind Fisher

      and “put [her] in a choke hold.” (Tr. p. 63). The two eventually fell onto the

      bed, and Finton started “pushing [Fisher’s] face into the mattress.” (Tr. p. 64).

      After Finton released Fisher from his hold, Fisher went to a neighbor’s home

      and called the police.


[6]   Fisher was waiting outside the apartment when Officer Darius Hillman (Officer

      Hillman) arrived. Officer Hillman knocked on the apartment door and told

      Finton to come outside. Finton eventually opened the apartment door and let

      Officer Hillman inside. Officer Hillman noticed that Finton was intoxicated

      because he was sweating profusely, had dilated pupils, and could not stand still.

      Upon entering the apartment, Officer Hillman placed Finton in handcuffs and

      conducted a pat down of his person. Officer Hillman then noticed an open tin

      with a glass pipe and hollowed-out pen tubes sitting in plain view in the living

      room, which prompted Officer Hillman to place Finton in the back of his police

      vehicle and ask Fisher for consent to search the apartment. After Fisher signed

      a Consent to Search of Premises form, Officer Hillman took pictures of the

      living room and Fisher’s injuries. Officer Hillman then collected the glass pipe

      and pen tubes with residue on them as evidence, which later tested positive for

      methamphetamine. In the bedroom, Officer Hillman looked inside Fisher’s




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-960 | December 4, 2019   Page 3 of 8
      dresser drawer and found a foil ball and a hollowed-out pen tube with a residue

      on it. Fisher was transported to the hospital and Finton was taken into custody.


[7]   On December 27, 2018, the State filed an Information, initially charging Finton

      with strangulation, a Level 6 felony; domestic battery with a prior conviction, a

      Level 6 felony; and possession of paraphernalia, a Class C misdemeanor. On

      February 15, 2019, the State filed another Information, charging Finton with

      possession of methamphetamine, a Level 6 felony. On March 7, 2019, a jury

      trial was conducted. During the trial, Fisher testified that Finton “usually sat in

      the corner of the couch” and was sitting on the couch in the living room when

      she confronted him about her missing money and credit cards. (Tr. p. 61).

      During her testimony, Fisher also admitted that both she and Finton used the

      pipe and the hollowed-out pens, but that Finton used them more. At the close

      of the evidence, Finton was found guilty of possession of methamphetamine,

      possession of paraphernalia, and domestic battery as a Class A misdemeanor.

      Finton admitted to having a prior conviction for domestic battery, enhancing

      his battery conviction to a Level 6 Felony. On April 2, 2019, Finton was

      sentenced to two years in Indiana Department of Correction and ordered to pay

      restitution of $3,395.33 for Fisher’s medical bills.


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


                              DISCUSSION AND DECISION
[9]   Our standard of review with regard to sufficiency claims is well-settled. In

      reviewing a sufficiency of the evidence claim, this court does not reweigh the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-960 | December 4, 2019   Page 4 of 8
       evidence or judge the credibility of the witnesses. Agilera v. State, 862 N.E.2d

       298, 306 (Ind. Ct. App. 2007) trans. denied. We will consider only the evidence

       most favorable to the judgment and the reasonable inferences drawn therefrom

       and will affirm if the evidence and those inferences constitute substantial

       evidence of probative value to support the judgment. Id. A conviction may be

       based upon circumstantial evidence alone. Id. Reversal is appropriate only

       when reasonable persons would not be able to form inferences as to each

       material element of the offense. Abney v. State, 822 N.E.2d 260, 264 (Ind. Ct.

       App. 2005).


[10]   Finton asserts that there was insufficient evidence to support his conviction for

       possession of methamphetamine and possession of paraphernalia. He bases

       this assertion on the incorrect assumption that his charges stemmed from the

       paraphernalia and methamphetamine — the foil ball with residue on it — found

       in the dresser drawer in the bedroom. For Finton’s conviction, however, the

       State relied only on evidence of the living room drugs at trial and in its

       argument. These were the only items tested and submitted as evidence during

       the trial. Since Finton’s conviction was based on those items, our review is

       limited to those items.


[11]   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. I.C. § 35-48-4-6.1(a). A person who

       knowingly or intentionally possesses an instrument, a device, or another object

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-960 | December 4, 2019   Page 5 of 8
       that the person intends to use for introducing into the person’s body a

       controlled substance commits possession of paraphernalia, a Class C

       misdemeanor. I.C. § 35-48-4-8.3(b)(1). Since no paraphernalia or

       methamphetamine was found on Finton’s person, the State was required to

       establish that Finton had constructive possession of the contraband.

       “Constructive possession occurs when a person has: (1) the capability to

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

       dominion and control over it.” Canfield v. State, 128 N.E.3d 563, 572 (Ind.

       2019).


[12]   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. The proof of a possessory interest in the premises on which

       illegal drugs are found is adequate to show the capability to maintain dominion

       and control over the items in question. Cannon v. State, 99 N.E.3d 274, 279

       (Ind. Ct. App. 2018), trans. denied. Finton lived in Fisher’s apartment where the

       contraband was found. Therefore, he had access to the contraband and was

       able to possess it. This satisfies the capability element.


[13]   The intent element of constructive possession is shown by the defendant’s

       knowledge of the presence of the contraband. Canfield, 128 N.E.3d at 572.

       Knowledge can be demonstrated through exclusive or non-exclusive dominion

       and control over the premises that houses the contraband. Id. When, as here,

       possession of the premises is non-exclusive, the inference can only be made

       through additional circumstances which indicate the knowledge of the presence

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-960 | December 4, 2019   Page 6 of 8
       of the contraband and the ability to control it. Id. “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, [ ] such as 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 572-73.


[14]   In this case, the contraband was found near a place Finton usually sits and

       within close proximity of some of his belongings. During Finton’s formal

       interview with Officer Hillman, Finton stated he had been living with Fisher for

       a month and that “he isolates himself in [the] corner of the couch next to his

       laptop.” (Tr. p. 105). When Officer Hillman first noticed the contraband, he

       observed that it was located next to a black end table with Finton’s laptop on it

       at the end of the couch. This was the specific area that Finton said he isolates

       himself, and it was in close proximity to his laptop. During Fisher’s testimony,

       she identified a photograph of a basket in the living room “that [she] asked

       [Finton] to start putting his stuff in cause [sic] [she] was tired of cleaning up

       after him.” (Tr. p. 66). This basket was located on the floor next to the corner

       of the couch that Finton usually sits on. It was also the basket where the tin full

       of paraphernalia was found. When Fisher was asked to identify the items in the

       tin during her testimony, she identified the pipe, the two hollowed-out pens,

       and “[Finton’s] gum” as all being in the tin together. (Tr. p. 75). Fisher’s

       testimony establishes Finton’s items in close proximity to the contraband.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-960 | December 4, 2019   Page 7 of 8
       Given these additional circumstances, the fact-finder can infer that Finton had

       knowledge of the presence of the contraband and the ability to control it, thus

       proving the intent element of constructive possession. Therefore, the State

       established that Finton constructively possessed both methamphetamine and

       paraphernalia.


                                             CONCLUSION
[15]   Based on the foregoing, we hold that the State did provide sufficient evidence

       beyond a reasonable doubt to support Finton’s conviction for possession of

       paraphernalia and possession of methamphetamine.


[16]   Affirmed.


[17]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-960 | December 4, 2019   Page 8 of 8
