MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any
court except for the purpose of establishing                          Jul 12 2017, 8:13 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Erin C. Unger,                                           July 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         12A02-1611-CR-2555
        v.                                               Appeal from the Clinton Superior
                                                         Court
State of Indiana,                                        The Honorable Justin H. Hunter,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         12D01-1508-F6-756



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017           Page 1 of 15
                               Case Summary and Issues
[1]   Following a jury trial, Erin Unger was convicted of dealing in a synthetic drug

      or synthetic drug lookalike, a Level 6 felony; possession of a synthetic drug or

      synthetic drug lookalike, a Class A misdemeanor; and possession of

      paraphernalia, a Class C misdemeanor. The trial court sentenced her to an

      aggregate term of twelve months with ten of those months suspended to

      probation. Unger appeals her convictions, raising two issues for our review

      which we restate as: (1) whether the trial court abused its discretion in

      admitting evidence; and (2) whether the evidence was sufficient to support her

      convictions. Concluding the trial court did not abuse its discretion and the

      evidence was sufficient, we affirm.



                            Facts and Procedural History
[2]   Unger lived in a two-story house owned by her father, Martin Unger. Unger’s

      boyfriend, Jason Stephens, lived with her in August of 2015. Neighbors

      reported excessive traffic in and out of the house at all hours, causing law

      enforcement to begin conducting surveillance of the house. On the morning of

      August 18, 2015, Detective William Hackerd of the Frankfort Police

      Department observed Stephens take a paper sack from the driver of a truck and

      return inside the house. Detective Hackerd also observed Ryan Lukasik, an

      acquaintance of Stephens, enter and exit the house.




      Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 2 of 15
[3]   Detective Hackerd later approached Lukasik when he left the house. Detective

      Hackerd observed a bag containing what he believed to be spice hanging out of

      Lukasik’s pocket. Detective Hackerd informed Lukasik of the surveillance of

      the house and asked if he would cooperate with police. Detective Hackerd then

      took Lukasik to the police station where Lukasik made a video-recorded

      statement. After Lukasik made his statement, officers obtained a warrant to

      search the house the same day.


[4]   Detective Hackerd approached the house and read the search warrant to

      Martin. Detective Hackerd and Martin entered the kitchen and Detective

      Hackerd observed “a Ziplock sandwich bag of what looked like synthetic

      marijuana or Spice” in plain view on the kitchen counter. Transcript, Volume I

      at 122. Martin informed Detective Hackerd only he and Unger were in the

      kitchen that morning and that the bag was not there earlier. In Unger’s

      bedroom, Detective Hackerd found multi-colored pipes, which he later testified

      were located either in a jewelry box or on a nightstand. He observed burnt

      residue in the bowls of the pipes. Detective Hackerd also found a safe in

      Unger’s bedroom. Unger provided Detective Hackerd with the combination for

      the safe, which smelled strongly of marijuana when opened. Detective

      Matthew Feterick of the Clinton County Sheriff’s Department helped conduct

      the search and found more bags containing plant material in a concealed

      section of a basement wall.


[5]   Laboratory tests on the bag found in the kitchen showed it weighed 33.62 grams

      and indicated the presence of Fluoro AMB. Fluoro AMB is a synthetic

      Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 3 of 15
      cannabinoid but is not a controlled substance. Laboratory tests performed on

      one of the bags found in the basement showed it weighed 3.77 grams and also

      indicated the presence of Fluoro AMB.


[6]   Unger was arrested and the State charged her with dealing in a synthetic drug

      or synthetic drug lookalike, a Level 6 felony; possession of a synthetic drug or

      synthetic drug lookalike, a Class A misdemeanor; and possession of

      paraphernalia, a Class C misdemeanor.


[7]   Prior to trial, Unger filed a motion to suppress the evidence obtained through

      the search warrant, arguing the warrant was based solely on unreliable hearsay

      from Lukasik and failed to establish probable cause to search Unger’s home.

      The trial court denied Unger’s motion to suppress. At trial, Unger objected to

      the admission of the evidence obtained through the search warrant for the same

      reason. The trial court overruled Unger’s objection.


[8]   Lukasik testified at trial that he cooperated with Detective Hackerd because he

      felt intimidated, scared, and “didn’t know until the end that I wasn’t going to be

      charged you know with possession or whatever I was gonna be charged with.”

      Id. at 80. He testified the contents of the bags found during the search looked

      like the spice he regularly purchased from Stephens and that it caused

      sensations “kind of like marijuana.” Id. at 85. Stephens testified spice is

      synthetic marijuana and caused effects comparable to marijuana.




      Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 4 of 15
[9]    The jury found Unger guilty as charged and the trial court sentenced Unger to

       an aggregate term of twelve months with ten of those months suspended to

       probation. Unger now appeals.



                                   Discussion and Decision
                                     I. Admission of Evidence
                                         A. Standard of Review
[10]   Unger contends the trial court abused its discretion by admitting the evidence

       obtained from the search in violation of the Fourth Amendment to the United

       States Constitution.1 Specifically, Unger alleges the search warrant lacked

       probable cause and was therefore invalid.


[11]   The Fourth Amendment requires that warrants only be issued “upon probable

       cause, supported by oath or affirmation.” An affidavit demonstrates probable

       cause to search a place if it provides a sufficient basis of fact to permit a

       reasonably prudent person to believe that a search of the particular premises

       will uncover evidence of a crime. Utley v. State, 589 N.E.2d 232, 236 (Ind.

       1992), cert. denied, 506 U.S. 1058 (1993). When reviewing a probable cause




       1
        Unger also invokes Article 1, Section 11 of the Indiana Constitution but offers no authority or independent
       analysis supporting a separate standard under the state constitution and therefore waives any state
       constitutional claim. Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017             Page 5 of 15
       determination, appellate courts consider only the evidence presented to the

       issuing magistrate. Jaggers v. State, 687 N.E.2d 180, 182 (Ind. 1997).


[12]   When a probable cause affidavit is based on hearsay, the affidavit must either

       “(1) contain reliable information establishing the credibility of the source and of

       each of the declarants of the hearsay and establishing that there is a factual basis

       for the information furnished; or (2) contain information that establishes the

       totality of the circumstances corroborates the hearsay.” Ind. Code § 35-33-5-

       2(b). An informant’s credibility can be established through declarations against

       his penal interest. Houser v. State, 678 N.E.2d 95, 100 (Ind. 1997).


[13]   Finally, the admission or exclusion of evidence is within the sound discretion of

       the trial court and will not be disturbed on review unless there was an abuse of

       discretion on the part of the trial court. Roche v. State, 690 N.E.2d 1115, 1134

       (Ind. 1997). An abuse of discretion involves a decision that is clearly against

       the logic and effect of the facts and circumstances before the court. Stone v.

       State, 536 N.E.2d 534, 538 (Ind. Ct. App. 1998), trans. denied. When reviewing

       the trial court’s ruling on the validity of the search, we consider the evidence

       most favorable to the trial court’s ruling and any uncontradicted evidence to the

       contrary to determine whether there is sufficient evidence to support the ruling.

       Rook v. State, 679 N.E.2d 997, 999 (Ind. Ct. App. 1997).


                                       B. The Search Warrant
[14]   Unger first contends the search warrant lacked probable cause because it was

       based solely on unreliable hearsay from Lukasik. She alleges the police had no

       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 6 of 15
       prior experience with Lukasik from which they could establish his reliability

       and none of the information he gave was corroborated. Unger also argues

       Lukasik’s statements were not against his penal interests because he received

       leniency by avoiding charges in connection with the event.


[15]   In support of her argument, Unger cites to Hirshey v. State, 852 N.E.2d 1008

       (Ind. Ct. App. 2006), trans. denied. In Hirshey, police asked Holly Godsey, who

       was arrested for dealing methamphetamine, if she wanted “to do something to

       help herself with the charge.” Id. at 1011. Godsey reported purchasing drugs

       from Brad Hirshey and the police obtained a search warrant for Hirshey’s

       residence based solely on that statement. This court held Godsey’s statement

       was not against her penal interests: she was already arrested, the statements did

       not increase her criminal liability, and she offered the information to receive

       leniency. Since the police provided no other evidence when obtaining the

       warrant, the warrant lacked probable cause. Likewise, Unger argues the police

       found Lukasik in possession of “spice” and he received leniency for his

       statement. Then the police obtained a search warrant for Unger’s residence

       based on Lukasik’s statement. Therefore, Unger argues that Lukasik, like

       Godsey, did not act against his penal interests and the warrant lacked probable

       cause. We find Unger’s argument unconvincing.


[16]   In contrast to Hirshey, Detective Hackerd presented additional evidence

       corroborating Lukasik’s statements. Detective Hackerd observed Lukasik

       leaving Unger’s home and found what he believed to be spice in Lukasik’s

       pocket. Lukasik showed Detective Hackerd a text message from Unger stating

       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 7 of 15
       “[W]e are home. We’re here. Stop on over.” Tr., Vol. I at 71. Lukasik

       reported regularly going to the house to purchase spice, which was supported

       by neighbors’ complaints of excessive traffic. Detective Hackerd also observed

       the exchange of a paper sack between Stephens and the driver of a truck in front

       of the house. The neighbors’ complaints, the exchange of the paper sack, and

       the spice found in Lukasik’s pocket corroborated Lukasik’s report that spice

       was being sold at the house. In sum, the totality of the circumstances

       demonstrated probable cause and the trial court did not abuse its discretion in

       admitting at trial the evidence obtained as a result of the search warrant.


                                  II. Sufficiency of Evidence
                                       A. Standard of Review
[17]   Our standard of review for sufficiency claims is well settled. We will not

       reweigh the evidence or assess the credibility of witnesses. Smith v. State, 725

       N.E.2d 160, 161 (Ind. Ct. App. 2000). We consider only the evidence most

       favorable to the verdict, together with all reasonable inferences that can be

       drawn therefrom. Id. If a reasonable trier of fact could have found the

       defendant guilty based on the probative evidence and reasonable inferences

       drawn therefrom, then a conviction will be affirmed. Id.


                 B. Evidence to Support the Possession Conviction
[18]   Unger contends the evidence is insufficient to support her conviction for

       possession of a synthetic drug or synthetic drug lookalike. To convict Unger,

       the State was required to prove beyond a reasonable doubt that Unger

       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 8 of 15
       knowingly or intentionally possessed a synthetic drug or synthetic drug

       lookalike substance. Ind. Code § 35-48-4-11.5(c). Unger argues the State

       presented no evidence connecting her to the bag found in the kitchen. Further,

       she argues the State failed to prove the bag contained a drug as opposed to only

       fertilizer. We disagree.


[19]   The State presented sufficient evidence the bag found in the kitchen contained a

       synthetic drug or synthetic drug lookalike substance. Laboratory tests

       performed on the bag found in the kitchen indicated the bag’s contents weighed

       over thirty grams and contained Fluoro AMB. Fluoro AMB is not a synthetic

       drug or controlled substance. However, a synthetic drug lookalike substance is

       “[a] substance, other than a synthetic drug, which any of the factors listed in

       subsection (c) would lead a reasonable person to believe to be a synthetic drug.”

       Ind. Code § 35-31.5-2-321.5(a)(1). Subsection (c) then provides the following

       factors to consider:

               (1) The overall appearance of a dosage unit of the substance,
               including its shape, color, size, markings or lack of markings,
               taste, consistency, and any other identifying physical
               characteristics.


               (2) How the substance is packaged for sale or distribution,
               including the shape, color, size, markings or lack of markings,
               and any other identifying physical characteristics of the
               packaging.


               (3) Any statement made by the owner or person in control of the
               substance concerning the substance’s nature, use, or effect.


       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 9 of 15
               (4) Any statement made to the buyer or recipient of the substance
               suggesting or implying that the substance is a synthetic drug.


               (5) Any statement made to the buyer or recipient of the substance
               suggesting or implying that the substance may be resold for
               profit.


               (6) The overall circumstances under which the substance is
               distributed, including whether:


                        (A) the distribution included an exchange of, or demand
                        for, money or other property as consideration; and


                        (B) the amount of the consideration was substantially
                        greater than the reasonable retail market value of the
                        substance the seller claims the substance to be.


[20]   Here, the overall appearance, the overall packaging, and statements by Lukasik

       and Stephens would lead a reasonable person to believe the bag contained a

       synthetic drug. Detective Hackerd described it as “a Ziplock sandwich bag of

       what looked like synthetic marijuana or Spice.” Tr., Vol. I at 122. Lukasik

       testified the substance looked like spice he routinely purchased from Stephens,

       which caused sensations “kind of like marijuana.” Id. at 85. Lukasik described

       spice as synthetic marijuana. Likewise, Stephens referred to the substance he

       sold Lukasik as spice, which he explained was synthetic marijuana. Stephens

       testified the substance caused effects comparable to marijuana. As a result, the

       evidence was sufficient from which the jury could conclude the bag contained a

       synthetic drug lookalike substance.


       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 10 of 15
[21]   As for the element of possession, the State may prove the defendant either

       actually or constructively possessed the substance. Washington v. State, 902

       N.E.2d 280, 288 (Ind. Ct. App. 2009), trans. denied. Constructive possession

       occurs when a person has the intent and capability to maintain dominion and

       control over the item. Id.


[22]   First, Unger had the capability to maintain dominion and control over the bag

       found in the kitchen. Proof of 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).

       Detective Hackerd observed the bag in plain view in the kitchen of Unger’s

       residence. Therefore, there was sufficient evidence from which the jury could

       conclude Unger had the capability to maintain dominion and control over a

       synthetic drug lookalike substance.


[23]   Second, the evidence shows Unger had the intent to maintain dominion and

       control over the bag found in the kitchen. 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.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 11 of 15
[24]   Here, Detective Hackerd observed the bag in plain view in the kitchen. Martin

       reported Unger was the only other person in the kitchen that day and that the

       bag was not there earlier. Unger was present at the house when Detective

       Hackerd executed the warrant and found the bag. The testimony of both

       Detective Hackerd and Martin show Unger was in close proximity to the bag.

       Lukasik purchased spice at Unger’s residence after receiving a text message

       from Unger telling him to come over. The text message is also indicative of her

       knowledge of the substance. Taking into account Unger’s close proximity to

       the bag, that the bag was found in plain view, and Unger’s text message, we

       conclude the evidence was sufficient to support the jury’s determination that

       Unger constructively possessed a synthetic drug or synthetic drug lookalike

       substance.


                   C. Evidence to Support the Dealing Conviction
[25]   Unger next contends there was insufficient evidence to support her conviction

       for dealing in a synthetic drug or synthetic drug lookalike substance. To convict

       Unger of dealing, the State was required to prove beyond a reasonable doubt

       that Unger possessed, with intent to manufacture, finance the manufacture of,

       deliver, or finance the delivery of, more than five grams of a synthetic drug or

       synthetic drug lookalike substance. Ind. Code § 35-48-4-10.5(c)(2), (e)(1)(B).

       Unger argues the State failed to prove the intent element because no one

       testified at trial she delivered such substance: Lukasik testified he purchased

       spice from Stephens while Unger was not present, and Stephens testified Unger

       was unaware he sold spice. Again, we disagree.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 12 of 15
[26]   In essence, Unger invites us to reweigh the evidence and assess witness

       credibility, which we cannot do. Lukasik first told Detective Hackerd he

       purchased the spice from Unger but testified at trial he purchased the spice from

       Stephens. The jury was aware Lukasik made conflicting statements. Lukasik

       also testified he texted Unger that morning “to see if anybody was home”

       before going to the house to purchase spice, and Unger responded “we are

       home. We’re here. Stop on over.” Tr., Vol. I at 70-71. Lukasik then went to

       Unger’s residence and purchased “four or five grams” of spice. Id. at 74.

       Further, Lukasik testified he purchased spice from Unger’s residence numerous

       times before. As explained above, the State presented sufficient evidence Unger

       possessed the bag found in the kitchen containing over thirty grams of a

       synthetic drug or synthetic drug lookalike substance. The jury could have

       determined Lukasik’s testimony about purchasing the spice from Stephens

       instead of Unger was not credible in light of the other evidence. In sum, there

       was sufficient evidence presented from which the jury could conclude Unger

       was dealing in a synthetic drug or synthetic drug lookalike substance.


             D. Evidence to Support the Paraphernalia Conviction
[27]   Finally, Unger contends there was insufficient evidence to support her

       conviction for possession of paraphernalia. To convict Unger of possession of

       paraphernalia, the State was required to prove beyond a reasonable doubt that

       Unger knowingly or intentionally possessed an instrument, a device, or another

       object she intended to use for introducing a controlled substance into her body.

       Ind. Code § 35-48-4-8.3(b)(1). Unger argues the State presented insufficient

       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 13 of 15
       evidence because the residue inside the pipes was not tested and no one testified

       the pipes were found somewhere within Unger’s control. We disagree.


[28]   As noted above, possession may be actual or constructive. Constructive

       possession occurs when the defendant has the intent and capability to maintain

       control and dominion over the illicit items. See supra ¶¶ 22-24.


[29]   First we look at the capability to maintain dominion and control over the

       paraphernalia. Law enforcement found the pipes in plain view in Unger’s

       bedroom. Because Unger has a possessory interest in her bedroom, there was

       sufficient evidence from which the jury could conclude Unger was capable of

       maintaining control and dominion over the pipes.


[30]   Next we look at the intent to maintain dominion and control over the

       paraphernalia. Detective Hackerd found the pipes in plain view in Unger’s

       bedroom either in a jewelry box or on a nightstand. Since Detective Hackerd

       found the pipes in plain view and mingled with other items Unger owns, the

       State presented sufficient evidence from which the jury could conclude Unger

       intended to maintain dominion and control over the pipes.


[31]   Finally, we look at Unger’s intent to use the paraphernalia to introduce a

       controlled substance into her body. Intent to introduce a controlled substance

       may be inferred from circumstantial evidence. Sluder v. State, 997 N.E.2d 1178,

       1181 (Ind. Ct. App. 2013). Circumstantial evidence establishing intent

       includes, but is not limited to, “possession of an identifiable amount of

       narcotics, an instrument, a device, or other object that the person intends to use

       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 14 of 15
       for introduction of a controlled substance in the person’s body, and/or evidence

       of or admission to prior drug use.” Perkins v. State, 57 N.E.3d 861, 865 (Ind. Ct.

       App. 2016).


[32]   As explained above, the State presented sufficient evidence from which the jury

       could conclude Unger possessed, and was dealing, a synthetic drug or synthetic

       drug lookalike substance. Lukasik and Stephens referred to the substance

       Unger possessed as spice, which they explained is synthetic marijuana.

       Further, while the pipes were not tested for the presence of residue, Detective

       Hackerd testified he observed burnt material in the bowls of the pipes. In sum,

       the State presented sufficient evidence from which the jury could find Unger

       knowingly or intentionally possessed pipes intended for introducing a

       controlled substance into her body.



                                               Conclusion
[33]   Concluding the trial court did not abuse its discretion in admitting at trial

       evidence obtained as a result of the search warrant and the evidence was

       sufficient to support Unger’s convictions, we affirm.


[34]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1611-CR-2555 | July 12, 2017   Page 15 of 15
