MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jun 04 2019, 9:00 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
Amy D. Griner                                           Curtis T. Hill, Jr.
Mishawaka, Indiana                                      Attorney General of Indiana
                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Shaquille Delaney,                                      June 4, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2828
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        71D03-1806-F2-10




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2828 | June 4, 2019                   Page 1 of 10
                                Case Summary and Issue
[1]   Following the traffic stop of a stolen vehicle with three occupants, officers

      discovered methamphetamine, cocaine, a digital scale, and a notebook that

      appeared to be a transaction ledger. At the time of the stop, Shaquille Delaney

      was in the front passenger seat but told the officers he had been driving the

      vehicle all morning. Delaney was arrested and charged with one count of

      possession of methamphetamine with intent to deliver, a Level 2 felony, and

      one count of possession of cocaine with intent to deliver, a Level 3 felony. The

      trial court held a bench trial, entered a judgment of conviction on both counts,

      and sentenced Delaney. Delaney appeals and raises the sole issue of whether

      there is sufficient evidence to support his convictions for possession of

      methamphetamine and cocaine with intent to deliver. Concluding the evidence

      sufficiently supports his convictions, we affirm.



                            Facts and Procedural History
[2]   The facts most favorable to the judgments are as follows. On May 30, 2018,

      Todd Dehaven contacted the South Bend Police Department and reported that

      his 2011 navy blue Chevy Malibu had been stolen after he left it unlocked and

      running in front of a liquor store. Weeks later, on June 18, Officer Ryan Rush

      of the South Bend Police Department was parked in his patrol vehicle near the

      Adams Street gas station in South Bend running license plates. He observed a

      navy blue Chevy that had entered the gas station. He ran the vehicle’s license

      plate number, discovered the vehicle had been reported stolen, and called for

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2828 | June 4, 2019   Page 2 of 10
      back-up. While waiting for a back-up unit, Officer Rush observed two people

      exit the gas station and get into the vehicle. A female, later identified as Andrea

      Thomas, got in the driver’s seat, and a male, later identified as Delaney, got in

      the front passenger seat. When the vehicle pulled out of the gas station, Officer

      Rush and several other officers initiated a “felony stop”1 and ordered Thomas,

      Delaney, and Acasia Haynes, the back-seat passenger, out of the vehicle. After

      the occupants complied, they were detained, and officers began conducting an

      inventory search of the vehicle.


[3]   The officers discovered a partially opened multi-colored “cloth zip bag” in the

      center console between the driver and front passenger seats. Transcript of

      Evidence, Volume 2 at 12. The partially opened bag was lying flat facing the

      front passenger’s side. Officer Rush picked up the bag, looked inside, could see

      “a bunch of white . . . substance.” Id. He then opened the bag “the rest of the

      way and fully could see the contents.” Id. at 22. Officer David Trout arrived

      on scene and observed the same multi-colored bag in the center console area.

      At that time, Officer Rush informed Officer Trout that he had also observed the

      bag and “he saw what appeared to be narcotics sticking out of [it].” Id. at 30.

      Officer Trout approached the front passenger side of the vehicle and observed

      “in plain view a clear tied-off plastic baggie sticking out of the purse[.]” Id.




      1
        Officer Rush explained the “felony stop” as “Where . . . we get two cars, doors open, multiple officers call
      [the passengers] out at gunpoint.” Transcript of Evidence, Volume 2 at 11.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2828 | June 4, 2019                       Page 3 of 10
[4]   Inside the bag, officers discovered multiple plastic baggies containing a “white

      crystal-like substance” or a “white powder substance[,]” a digital scale, and a

      notebook referencing drug weights and prices. Id. The officers recovered

      113.88 grams of methamphetamine and 6.43 grams of cocaine. The search also

      revealed a reminder card from Wabash Circuit Court with “.50 – Coke” and

      “4.0 – ea.” written on the back, as well as several buds of marijuana and a BMV

      receipt for Thomas. Trial Exhibits, Volume 3 at 24-25, 20-21, 26. After

      Delaney was advised of his Miranda rights, he told Officer Rush “he [had been]

      driving the car around all morning” and admitted that he drove the vehicle to

      the gas station. Tr., Vol. 2 at 20. Delaney told officers he borrowed the vehicle

      but did not believe it was stolen. All occupants were arrested.


[5]   On June 20, the State charged Delaney with dealing in methamphetamine with

      intent to deliver, a Level 2 felony, and dealing in cocaine with intent to deliver,

      a Level 3 felony.2 A bench trial was held on September 14, at which Thomas

      and Delaney testified. Notably, Thomas testified that Delaney picked her up in

      the vehicle to go to the gas station and, when she got in the front passenger seat,

      the multi-colored bag was already in the vehicle and Haynes was in the back

      seat. Delaney denied knowledge that the vehicle was stolen and testified that

      he borrowed the car from his sister’s friend, a woman he had never met before.




      2
       Pursuant to statute, Delaney was charged with these enhanced felonies because he possessed at least ten
      grams of methamphetamine and at least five but less than ten grams of cocaine. See Ind. Code § 35-48-4-
      1.1(a), (e); Ind. Code § 35-48-4-1(a), (d).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2828 | June 4, 2019                    Page 4 of 10
[6]   The trial court found Delaney guilty on both counts and issued a written

      judgment of conviction on September 25, concluding in relevant part:


              The first issue is whether the Court is convinced that [Delaney]
              knowingly possessed the drugs. It makes little sense that a person
              unknown to [Delaney] would not only give him her car, but also
              leave in the car a significant amount of contraband. Based on the
              location of the pouch in the vehicle; that it was partially opened;
              [Delaney’s] statement that he had been driving the vehicle all
              morning; and he drove the vehicle to the gas station just before
              the stop, the Court is convinced beyond a reasonable doubt that
              [Delaney] knowingly constructively possessed the pouch and its
              contents.


              The second issue the Court must resolve is whether [Delaney]
              possessed with the intent to deliver. In addition to the lab report
              that indicates how the drugs were packaged, State’s Exhibits . . .
              clearly show individually packaged plastic bags. There was also
              a scale in the pouch[.] The methamphetamine weighed over 100
              grams and the cocaine weighed 6.43 grams. There was a
              notebook, . . . which makes reference to “weights with a bag”,
              “with coke bag”, to money and amounts[.] A piece of paper
              from the Wabash Circuit Court, . . . and the back of that slip of
              paper . . . makes references to what appears to be weights and
              “coke.”


              There is sufficient evidence to prove beyond a reasonable doubt
              that [Delaney] possessed with the intent to deal in cocaine and
              methamphetamine.


      Appellant’s Appendix, Volume II at 26-27 (citations omitted). The trial court

      sentenced Delaney to seventeen and one-half years. Delaney now appeals.

      Additional facts will be provided as necessary.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2828 | June 4, 2019   Page 5 of 10
                                Discussion and Decision
                                     I. Standard of Review
[7]   Our standard of reviewing a sufficiency claim is well-settled. Brent v. State, 957

      N.E.2d 648, 649 (Ind. Ct. App. 2011), trans. denied. We do not reweigh the

      evidence or assess the credibility of the witnesses. Purvis v. State, 87 N.E.3d

      1119, 1124 (Ind. Ct. App. 2017). Instead, we consider only the evidence most

      favorable to the judgment and the reasonable inferences supporting the

      judgment. Id. Therefore, it is not necessary that the evidence overcome every

      reasonable hypothesis of innocence. Gray v. State, 957 N.E.2d 171, 174 (Ind.

      2011). “[W]e will affirm the conviction unless no reasonable trier of fact could

      have found the elements of the crime beyond a reasonable doubt.” Id.


                             II. Sufficiency of the Evidence
[8]   Delaney challenges his convictions and argues the evidence is insufficient to

      demonstrate that he constructively possessed the methamphetamine and

      cocaine with intent to deliver.


[9]   To convict Delaney of dealing in methamphetamine, a Level 2 felony, and

      dealing in cocaine, a Level 3 felony, the State had to prove beyond a reasonable

      doubt that Delaney knowingly possessed methamphetamine and cocaine with

      intent to deliver. Ind. Code § 35-48-4-1.1(a)(2); Ind. Code § 35-48-4-1(a)(2);

      Ind. Code 35-41-4-1(a) (“A person may be convicted of an offense only if his

      guilt is proved beyond a reasonable doubt.”). A conviction for the possession of

      an illegal drug may be supported by either actual or constructive possession.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2828 | June 4, 2019   Page 6 of 10
       Grim v. State, 797 N.E.2d 825, 832 (Ind. Ct. App. 2003). Actual possession of

       contraband occurs when a person has direct physical control over the item. Gee

       v. State, 810 N.E.2d 338, 340 (Ind. 2004). Because the officers did not find the

       contraband on Delaney’s person or observe him hold or discard the drugs,

       Delaney did not have actual possession of the contraband and the State

       prosecuted its case under the theory of constructive possession. See Brent, 957

       N.E.2d at 650.


[10]   Constructive possession occurs when a person has both the intent and the

       capability to maintain dominion and control over the contraband. Lampkins v.

       State, 682 N.E.2d 1268, 1275 (Ind. 1997). To prove capability, the State must

       demonstrate that the defendant is able to reduce the contraband to his or her

       personal possession. Smith v. State, 113 N.E.3d 1266, 1270 (Ind. Ct. App.

       2018), trans. denied. A fact-finder may infer the capability prong is met if the

       defendant had a possessory interest, even a non-exclusive interest, in the

       premises on which the contraband was found. Gray, 957 N.E.2d at 174. In this

       case, the pouch containing the contraband was in the center console area of the

       vehicle, right next to Delaney, and easily within his reach. Thus, Delaney had

       the ability to reduce the methamphetamine and cocaine to his personal

       possession. See Lampkins, 682 N.E.2d at 1275 (“Because the [bottle containing

       cocaine] was under defendant’s seat and easily within his reach, he was able to

       ‘reduce’ the cocaine to his ‘personal possession.’”).


[11]   To prove intent, the State must establish the defendant’s knowledge of the

       presence of the contraband, which may be inferred from either exclusive

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2828 | June 4, 2019   Page 7 of 10
       dominion and control of the premises or, if control is not exclusive, evidence of

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

       of the contraband. K.F. v. State, 961 N.E.2d 501, 510 (Ind. Ct. App. 2012),

       trans. denied. Recognized additional circumstances include: (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) the

       contraband is in plain view; and (6) the location of the contraband is in close

       proximity to items owned by the defendant. Griffin v. State, 945 N.E.2d 781,

       784 (Ind. Ct. App. 2011). These factors are not exclusive and ultimately, the

       State must establish “the probability that the defendant was aware of the

       presence of the contraband and its illegal character.” Wilkerson v. State, 918

       N.E.2d 458, 462-63 (Ind. Ct. App. 2009) (quoting Gee, 810 N.E.2d at 344).


[12]   On appeal, Delaney argues that the State relied solely on the contraband’s close

       proximity to him to establish the intent element. Proximity to contraband not

       in plain view alone is insufficient to support an inference of intent to maintain

       dominion and control over it. Holmes v. State, 785 N.E.2d 658, 661-62 (Ind. Ct.

       App. 2003). However, in reaching its conclusion, the trial court did not rely

       solely on the contraband’s proximity to Delaney but, instead, relied on

       numerous factors to demonstrate constructive possession: the location of the

       bag; that the bag was partially open; Delaney’s statement that he had been

       driving the vehicle all morning; and the fact that Delaney drove the vehicle to

       the gas station even though Thomas was driving when the vehicle was stopped.

       The trial court also found it unlikely that “a person unknown to [Delaney]


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2828 | June 4, 2019   Page 8 of 10
       would not only give him her car, but also leave in the car a significant amount

       of contraband.” Appellant’s App., Vol. II at 26. We agree that these factors,

       taken together, demonstrate Delaney’s knowledge of the presence and nature of

       the contraband. Because we cannot reweigh the evidence or judge the

       credibility of the witnesses, we will not question the trial court’s assessment in

       this regard. Purvis, 87 N.E.3d at 1124. Given the readily apparent location of

       the partially opened bag containing illegal drugs, Thomas’ testimony that the

       bag was already in the vehicle when Delaney picked her up, and Delaney’s

       statements demonstrating control of the vehicle, a factfinder could infer

       Delaney knew of the presence and nature of the contraband.


[13]   Although Delaney maintains that the State failed to present sufficient evidence

       that he constructively possessed the contraband with the intent to deliver, he

       fails to present any argument as to why the evidence is insufficient to

       demonstrate his “intent to deliver.” Therefore, it appears Delaney does not

       specifically challenge his convictions in this respect. Nonetheless, the evidence

       in the record supports an inference that Delaney intended to deliver the drugs.

       The trial court found that the individual packaging, digital scale, and notebook

       containing references to weights and prices constituted sufficient evidence that

       Delaney possessed the drugs with the intent to deliver. Again, we agree. Based

       on the large quantity of drugs, its packaging, the ledger referencing weights and

       prices, and the digital scale, a reasonable factfinder could infer Delaney

       intended to deliver the drugs. See, e.g., White v. State, 772 N.E.2d 408, 412-13

       (Ind. 2002) (holding that the “peculiar packaging” of a clear plastic bag with


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2828 | June 4, 2019   Page 9 of 10
       twenty-nine individual plastic bags containing crack cocaine was sufficient to

       uphold a jury’s inference that the defendant intended to deliver the drugs);

       McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct. App. 1993) (examples of

       circumstantial evidence of a defendant’s intent to deliver drugs include

       possession of a large quantity of drugs, large amounts of currency, scales,

       plastic bags, other paraphernalia, and evidence of other drug transactions),

       trans. denied.



                                               Conclusion
[14]   For the reasons set forth above, we conclude the evidence is sufficient to

       support Delaney’s convictions of possession of methamphetamine and

       possession of cocaine with the intent to deliver. Accordingly, we affirm.


[15]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2828 | June 4, 2019   Page 10 of 10
