MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                    Apr 26 2017, 6:44 am
court except for the purpose of establishing                     CLERK
the defense of res judicata, collateral                      Indiana Supreme Court
                                                                Court of Appeals
estoppel, or the law of the case.                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dustin S. Campbell,                                      April 26, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         72A01-1611-CR-2576
        v.                                               Appeal from the Scott Superior
                                                         Court
State of Indiana,                                        The Honorable Marsha Owens
Appellee-Plaintiff                                       Howser, Judge
                                                         Trial Court Cause No.
                                                         72D01-1304-CM-116



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 72A01-1611-CR-2576 | April 26, 2017   Page 1 of 5
[1]   Dustin Campbell appeals his conviction for Class A Misdemeanor Possession

      of Marijuana,1 arguing that the evidence is insufficient to support the

      conviction. Finding the evidence sufficient, we affirm.


                                                     Facts
[2]   On January 4, 2013, Indiana State Police arrived at Campbell’s residence in

      Scott County at the request of his federal probation officer to serve an arrest

      warrant. As soon as the troopers entered the two-bedroom home, they noticed

      the smell of burnt marijuana combined with air freshener. The only individuals

      present in the house were Campbell, his girlfriend, and their child. Campbell’s

      girlfriend was in the bathroom drying her hair when police arrived.


[3]   Within one minute of entering the residence, Trooper Martin Wimp saw

      marijuana in plain view. The marijuana and rolling papers were just behind a

      dresser in the first room of the house, which was within arm’s reach of the front

      door. Trooper Wimp also found marijuana, a roach clip, and a glass pipe

      inside of Campbell’s bedroom in an open nightstand drawer. Campbell’s

      girlfriend later identified the nightstand as Campbell’s. The troopers also found

      mail and other items belonging to Campbell near the nightstand. Next to the

      mail, the troopers also found a can of spray air freshener.




      1
          Ind. Code § 35-48-4-11 (2012).


      Court of Appeals of Indiana | Memorandum Decision 72A01-1611-CR-2576 | April 26, 2017   Page 2 of 5
[4]   On April 1, 2013, the State charged Campbell with Class A misdemeanor

      possession of marijuana.2 At Campbell’s September 28, 2016, trial, Campbell

      admitted that the marijuana was in plain view in the residence. While he

      claimed that the bedroom in which it was found belonged to William Bryant,

      Bryant testified that he was staying in the other bedroom, in which no drugs

      were found. Bryant testified that Campbell and his girlfriend slept in the

      bedroom where the marijuana was found. Tr. Vol. II p. 215-16. Bryant

      admitted that everyone in the house smoked marijuana, including Campbell.

      Id. at 219-20. Campbell posed the theory that the marijuana belonged to

      Bryant, but the jury did not find that theory compelling and found Campbell

      guilty as charged. On October 11, 2016, the trial court sentenced Campbell to

      one year of incarceration, with 275 days suspended to probation. Campbell

      now appeals.


                                    Discussion and Decision
[5]   Campbell’s sole argument on appeal is that the evidence is insufficient to

      support his conviction. When reviewing a claim of insufficient evidence, we

      will consider only the evidence and reasonable inferences that support the

      conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm

      if, based on the evidence and inferences, a reasonable jury could have found




      2
        The State agreed to enter Campbell into a pretrial diversion agreement. On September 25, 2015, however,
      the State filed a motion informing the trial court that Campbell had not complied with the terms of the
      agreement. At that point, the parties prepared for trial.

      Court of Appeals of Indiana | Memorandum Decision 72A01-1611-CR-2576 | April 26, 2017          Page 3 of 5
      the defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d

      1003, 1005 (Ind. 2009).

[6]   To convict Campbell of Class A misdemeanor possession of marijuana, the

      State was required to prove beyond a reasonable doubt that he knowingly or

      intentionally possessed marijuana. I.C. § 35-48-4-11 (2012). Possession may be

      actual or constructive, and here, the State alleged that Campbell constructively

      possessed marijuana. To prove constructive possession, the State must show

      that Campbell had both the intent and the capability to maintain dominion and

      control over the marijuana. Thompson v. State, 966 N.E.2d 112, 122 (Ind. Ct.

      App. 2012). When an individual does not have exclusive dominion over the

      premises, an inference indicating knowledge of and capability to maintain

      dominion and control over the contraband is permitting by showing additional

      circumstances. Griffin v. State, 945 N.E.2d 781, 784 (Ind. Ct. App. 2011).

      Additional circumstances may include incriminating statements, attempted

      flight or furtive gestures, proximity to the contraband, and plain view of the

      contraband. Id.


[7]   Here, the record contains the following evidence relevant to Campbell’s

      constructive possession of the marijuana:


           The state troopers noted that the house smelled of burnt marijuana and
            air freshener.
           Trooper Wimp found two bags of marijuana in plain sight in the house—
            the first within arm’s reach of the front door and the second inside an
            open drawer on Campbell’s nightstand.
           Campbell admitted that the drugs were in plain view.

      Court of Appeals of Indiana | Memorandum Decision 72A01-1611-CR-2576 | April 26, 2017   Page 4 of 5
           The marijuana on the nightstand was found near Campbell’s mail and
            other possessions, as well as a can of air freshener.
           The residence belonged to Campbell. Another person who was staying
            there testified that the bedroom in which the marijuana was found was
            Campbell’s bedroom, and Campbell’s girlfriend testified that the
            nightstand was also his.
           The other person staying in Campbell’s residence testified that Campbell
            smoked marijuana with him regularly.

      We find that this evidence supports an inference indicating Campbell’s

      knowledge and capability to maintain dominion and control over the

      marijuana. In other words, a reasonable factfinder could conclude, based on

      this evidence and the inferences reasonably drawn therefrom, that Campbell

      knowingly possessed the marijuana. Campbell’s arguments to the contrary

      amount to a request that we reweigh evidence and re-assess witness

      credibility—a request we decline. We find the evidence sufficient.


[8]   The judgment of the trial court is affirmed.


      Barnes, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 72A01-1611-CR-2576 | April 26, 2017   Page 5 of 5
