Pursuant to Ind.Appellate Rule 65(D),

                                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                        Jun 19 2012, 9:15 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                   CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

STEVEN KNECHT                                     GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                        Attorney General of Indiana
Lafayette, Indiana
                                                  KATHERINE MODESITT COOPER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

KIMBERLY S. LAKIN,                                )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 91A02-1107-CR-655
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE WHITE SUPERIOR COURT
                          The Honorable Robert B. Mrzlack, Judge
                              Cause No. 91D01-1009-FD-122



                                         June 19, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Kimberly Lakin appeals her conviction for possession of paraphernalia, as a Class

A misdemeanor, following a jury trial. Lakin presents a single issue on appeal, namely,

whether the evidence is sufficient to support her conviction.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On August 16, 2010, Lakin accompanied her boyfriend, Daniel Curbox, and her

daughter in Curbox’s truck to a clothing store. Curbox left with a friend from the

clothing store to run an errand. Later, the fire department received a call that there was

an unresponsive female slumped over the steering wheel of a truck and dispatched an

ambulance to the clothing store parking lot.        Ronald Hill, a lieutenant paramedic

firefighter with the Monticello Fire Department and reserve deputy with the White

County Sherriff’s Office, was at a nearby restaurant when he heard the ambulance. Hill

left the restaurant to go to the scene and assist the other paramedics. The paramedics

found Lakin in an unresponsive state inside the truck. Hill arrived shortly after the

ambulance and saw another paramedic, Brooks Engle, helping Lakin regain

consciousness. Hill walked up to the truck and observed that Lakin was confused, pale,

and sweaty.

       After becoming more alert, Lakin expressed a desire to leave and exited the truck.

On the seat of the truck where Lakin had been sitting, Hill saw a glass pipe with a bulb at

one end that contained blackened residue. Engle picked up the pipe and gave it to Hill,




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who then called dispatch, went on-duty, and requested an on-duty police officer to come

to the scene. Lakin later signed a form stating that she had refused medical treatment.

       Officer Jeremy Kyburz responded to the dispatch request and, when he arrived,

Hill gave him the pipe. Officer Kyburz then secured the pipe inside an evidence bag.

While Officer Kyburz’s partner questioned Lakin, Curbox arrived at the clothing store

parking lot. Curbox told Officer Kyburz that he had never seen the pipe before and that

the pipe did not belong to him. The pipe was later sent to the Indiana State toxicology

lab and test results showed that the pipe contained the residue of a Schedule II controlled

substance, fentanyl.

       The State charged Lakin with possession of a controlled substance, as a Class D

Felony, and possession of paraphernalia, as a Class A misdemeanor, and also charged

Lakin as an habitual substance offender. Following trial, a jury convicted Lakin of

possession of paraphernalia, as a Class A misdemeanor, and acquitted her of the other

charges. The trial court sentenced Lakin to one year in the White County Jail and

suspended the sentence remaining after credit time and good time credit, except for 120

days to be served on home detention. Lakin now appeals.

                            DISCUSSION AND DECISION

       Lakin alleges that the State presented insufficient evidence to support her

conviction for possession of paraphernalia. When the sufficiency of the evidence to

support a conviction is challenged, we neither reweigh the evidence nor judge the

credibility of the witnesses, and we affirm if there is substantial evidence of probative

value supporting each element of the crime from which a reasonable trier of fact could


                                            3
have found the defendant guilty beyond a reasonable doubt. Wright v. State, 828 N.E.2d

904, 905-06 (Ind. 2005). It is the job of the fact-finder to determine whether the evidence

in a particular case sufficiently proves each element of an offense, and we consider

conflicting evidence most favorably to the trial court’s ruling. Id. at 906.

       To convict Lakin of possession of paraphernalia under Indiana Code Section 35-

48-4-8.3, the State was required to prove beyond a reasonable doubt that she knowingly

or intentionally possessed the glass pipe and intended to use the pipe to introduce

fentanyl, a controlled substance, into her body. Possession may be actual or constructive

and

       [c]onstructive possession occurs when someone has the intent and
       capability to maintain dominion and control over the item. In cases where
       the accused has exclusive possession of the premises on which the
       contraband is found, an inference is permitted that he or she knew of the
       presence of the contraband and was capable of controlling it. When
       possession of the premises is non-exclusive, the inference is not permitted
       absent some additional circumstances indicating knowledge of the presence
       of the contraband and the ability to control it. Among the circumstances
       which will support such an inference are: (1) incriminating statements by
       the defendant; (2) attempted flight or furtive gestures; (3) a drug
       manufacturing setting; (4) proximity of the defendant to the contraband: (5)
       contraband in plain view; and (6) location of the contraband in close
       proximity to items owned by the defendant.

Atwood v. State, 905 N.E.2d 479, 484-85 (Ind. Ct. App. 2009) (citations omitted), trans.

denied.

       Lakin first asserts that there was insufficient evidence to show that she knowingly

or intentionally possessed the glass pipe. In particular, Lakin contends that there is a lack

of evidence to support the element of possession because, although she “was certainly in




                                              4
proximity to the pipe[,]” the pipe was not in plain view and she did not engage in any

furtive conduct. Appellant’s Brief at 9-10. We cannot agree.

       Contrary to Lakin’s characterization of the evidence, the State presented evidence

showing her constructive possession of the pipe. Hill testified that the pipe had been

located underneath Lakin’s “right upper leg/buttocks area on the seat” and that, when she

exited the car, he saw the glass pipe located “squarely on the top of the seat.” Transcript

at 37-38. Hill also stated that the pipe was “warm to the touch” when he received it from

Engle and that Lakin’s mannerisms were indicative of someone who had ingested

fentanyl. Transcript at 44. Hill further testified that Lakin “was adamant about not

wanting to stay there, [stating that] she just wanted to leave.” Transcript at 37. Despite

Hill’s observation that Lakin was in need of medical assistance, Lakin signed a waiver

and refused medical treatment. Lakin’s furtive actions, her close proximity to the pipe,

and the presence of the pipe in plain view after she exited the vehicle are circumstances

sufficient to support an inference that she was aware of the pipe’s presence and capable

of controlling it.    See Atwood, 905 N.E.2d at 485.         Therefore, the State presented

sufficient evidence to support, beyond a reasonable doubt, that Lakin constructively

possessed the pipe.

       Next, Lakin claims that the State failed to prove that she intended to use the glass

pipe to introduce fentanyl into her body. Intent is a mental state that the trier of fact often

must infer from the surrounding circumstances. Vasquez v. State, 741 N.E.2d 1214,

1217 (Ind. 2001) (citations omitted). Here, Hill and Officer Kyburz both testified that,

based on their experiences, the pipe found in the truck was an instrument typically used


                                              5
for the ingestion of illegal substances. Hill also testified that the pipe was “blackened on

the end.” Transcript at 44. Officer Kyburz further testified that, after he secured the

pipe, he sent it to the State toxicology lab in order to “find out what the burnt substance

in the pipe was.” Transcript at 72. The state forensic drug chemist testified that the

residue contained on the pipe was fentanyl, a schedule II controlled substance.

       Based on the evidence, we hold that the State proved beyond a reasonable doubt

that Lakin intended to use the paraphernalia to introduce fetanyl into her body. See

McMurrar v. State, 905 N.E.2d 527, 530 (Ind. Ct. App. 2009) (finding testimony of a

qualified expert that the instrument was “paraphernalia” as well as evidence that the

instrument contained residue of a controlled substance was sufficient to support an

inference of the element of intent to use the instrument to introduce controlled substances

into the person’s body).      The evidence supports Lakin’s conviction for Class A

misdemeanor possession of paraphernalia.

       Affirmed.

CRONE, J., and BROWN, J., concur.




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