MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jan 27 2017, 9:29 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General
Brooklyn, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alfred S. Sanders, January 27, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1608-CR-1935
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael J. Lewis,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D06-1508-F6-1776
Vaidik, Chief Judge.
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Case Summary
[1] Alfred Sanders appeals his convictions for Level 6 felony possession of
methamphetamine, Level 6 felony maintaining a common nuisance, and Class
A misdemeanor possession of a controlled substance. Sanders argues that the
evidence is insufficient to establish that he constructively possessed the drugs.
Finding the evidence sufficient, we affirm.
Facts and Procedural History
[2] Around 6:00 a.m. on July 30, 2015, police officers were executing a search
warrant at a house on Green Drive in Lewis, Indiana. While standing in the
driveway outside the house, Detectives Charles Burress and Brian Bourbeau,
both members of the Vigo County Drug Task Force, saw a single-cab truck start
to turn onto Green Drive. Jessica Mahalek was driving the truck, and Sanders
was a passenger. Instead of turning, Mahalek “abruptly” continued to drive
straight. Tr. Vol. II p. 9. Detective Bourbeau, who was wearing a vest with
“POLICE” written in reflective lettering on the front and back, thought this was
“strange.” Id. at 51.
[3] Detective Bourbeau stayed at the house on Green Drive to finish the search,
while Detective Burress got into an unmarked police car and followed the truck.
Mahalek drove to a house on Washington Street, which was around the block
from the house on Green Drive, and parked in the driveway behind two parked
cars. When Detective Burress pulled up to the house, Mahalek was just getting
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out of the truck while Sanders had “quickly” exited and already walked to the
front of the truck, near the rear bumpers of the two parked cars. Id. at 36.
Detective Burress got out of his car, identified himself, and asked to speak with
Sanders; Sanders stopped and walked back toward the truck. Detective Burress
then asked Sanders, who lived in Terre Haute, what he was doing in Lewis at
6:00 in the morning, and Sanders responded that he was visiting a relative.
Detective Burress then asked Sanders “pointed” questions about whether he
was actually heading to the house on Green Drive to buy or sell drugs but then
changed course upon seeing the police. Id. at 17. Sanders responded that he
did not have “anything” on him and that Detective Burress could search the
truck, which belonged to him. Id. at 20. Sanders and Mahalek then consented
to a search of the truck. In the meantime, more officers, including Detective
Bourbeau, arrived on the scene. Detective Bourbeau approached Detective
Burress and Sanders and told Sanders that he did not believe his story that he
was visiting a relative in Lewis at 6:00 in the morning. At this point, Sanders
admitted that he was “driving around attempting to find . . . a smoke sack,”
which is a small amount of methamphetamine. Id. at 55.
[4] Detective Bourbeau then searched Sanders’ truck. He found a digital scale with
methamphetamine residue inside a backpack. The backpack, which was
partially behind the passenger seat near the passenger headrest, see Ex. F, was
visible from the passenger seat. Tr. Vol. II p. 79. The compartment of the
backpack containing the digital scale was open. Id. at 80. Outside the truck,
Detective Bourbeau found a zippered pouch with eleven loose hydrocodone
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pills approximately ten feet from where Sanders had stopped when Detective
Burress pulled up to the house. The pouch was lying in the grass between the
two parked cars. Detective Bourbeau also found two cell phones near some
bushes, approximately ten to fifteen feet from the pouch. Although the grass
was heavy with dew that July morning, neither the cell phones nor the pouch
had any condensation on top of them.
[5] Both Sanders and Mahalek denied ownership of the digital scale with
methamphetamine residue, the pouch with the hydrocodone pills, and the cell
phones. But when Detective Bourbeau showed the phones to Sanders, he was
able to disable the security features by using a multi-directional swipe passcode.
Nevertheless, Sanders still claimed that the phones were not his and that they
belonged to a friend. Sanders did not explain how his friend’s phones ended up
near him at a house on Washington Street in Lewis.
[6] Detective Bourbeau decided to arrest Sanders but not Mahalek. When
Detective Burress told Mahalek that they were going to arrest Sanders, she
became “upset” and “immediately” claimed that the pills belonged to her and
that she had a prescription for them. Id. at 27. “[S]keptical” of Mahalek’s
claim, Detective Burress told her that he did not believe she had a prescription
for hydrocodone because she was pregnant. Id. at 32. Mahalek then “dropped
her head” and said “well the scales are mine.” Id. at 27. But Mahalek was
unable to describe the digital scale or tell Detective Burress where it had been
located in the truck.
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[7] Upon handcuffing Sanders, Detective Bourbeau found “a significant amount”
of money in his pockets. Id. at 83. Detective Bourbeau also knocked on the
door of the house on Washington Street, and an elderly female answered. She
was “surprised” and “visibly embarrassed” to speak with the police. Id. at 55,
85; see also id. at 31 (Detective Burress testifying that despite Sanders’ claim that
it was his relative’s house, the police never received confirmation that Sanders
knew the residents).
[8] The State charged Sanders with Level 6 felony possession of
methamphetamine, Level 6 felony maintaining a common nuisance, and Class
A misdemeanor possession of a controlled substance (hydrocodone). The jury
found Sanders guilty as charged.
[9] Sanders now appeals.
Discussion and Decision
[10] Sanders contends that the evidence is insufficient to prove that he constructively
possessed the digital scale with methamphetamine residue and the hydrocodone
pills. When reviewing a claim that the evidence introduced at trial is
insufficient to support a conviction, we consider only the probative evidence
and reasonable inferences supporting the verdict. Gray v. State, 957 N.E.2d 171,
174 (Ind. 2011). We likewise consider conflicting evidence in the light most
favorable to the verdict. Id. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. Id. Instead, we will affirm
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the conviction unless no reasonable trier of fact could have found the elements
of the crime proven beyond a reasonable doubt. Id.
[11] Constructive possession occurs when the defendant has the intent and the
capability to maintain dominion and control over the item. Henderson v. State,
715 N.E.2d 833, 835 (Ind. 1999). Sanders does not dispute that he was capable
of maintaining dominion and control over the items. See Lampkins v. State, 682
N.E.2d 1268, 1275 (Ind. 1997) (explaining that the capability requirement is
met when the State shows that the defendant is able to reduce the contraband to
his personal possession), modified on reh’g on other grounds, 685 N.E.2d 698 (Ind.
1997). Rather, Sanders challenges whether the State proved that he had the
intent to do so. See Appellant’s Br. p. 9 (analyzing only intent prong). To prove
intent, the State must demonstrate the defendant’s knowledge of the presence of
the contraband. Henderson, 715 N.E.2d at 835. Knowledge may be inferred
from the exclusive dominion and control over the premise containing the
contraband. Id. But when, as in this case, the defendant’s control over the
premise is non-exclusive, there must be evidence of additional circumstances
pointing to the defendant’s knowledge of the presence of the contraband. Id. at
835-36. Examples of such circumstances are: (1) incriminating statements by
the defendant, (2) attempted flight or furtive gestures, (3) location of contraband
like drugs in settings suggesting manufacturing, (4) proximity of the contraband
to the defendant, (5) location of the contraband within the defendant’s plain
view, and (6) the mingling of the contraband with other items owned by the
defendant. Gray, 957 N.E.2d at 175. This list is not exhaustive. Id.
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[12] Although Sanders did not have exclusive dominion and control over the
premises containing the digital scale with methamphetamine residue and the
hydrocodone pills, the State presented additional circumstances that
demonstrated he had knowledge of these items.
[13] As for the digital scale with methamphetamine residue, it was found in Sanders’
truck. Sanders, who was a passenger at the time, told the police that he was
driving around looking to buy some methamphetamine. Indeed, a significant
amount of money was found in Sanders’ pockets when he was arrested. The
backpack, which was partially behind the passenger seat near the headrest, was
visible from the passenger seat. And the compartment of the backpack
containing the digital scale was open. Although Mahalek claimed that the
digital scale was hers, she initially said that it was not hers and only changed
her story when the police told her that they were going to arrest Sanders.
Moreover, Mahalek was unable to describe the digital scale or where it had
been located in the truck. This evidence is sufficient to prove that Sanders had
knowledge of the digital scale with methamphetamine residue.
[14] Regarding the pouch with the hydrocodone pills, when Detective Burress pulled
up to the house on Washington Street, Mahalek was just getting out of the
truck. Sanders, however, had quickly exited the truck and walked to the rear
bumpers of the two parked cars. The pouch was found ten feet from Sanders,
lying in the grass between the two parked cars. No other people were in sight,
and the top of the pouch was “bone dry” despite the significant amount of dew
on the ground that morning. Tr. Vol. II p. 85. In addition, the police found
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two cell phones, which were also dry on the top, about ten feet from the pouch.
Despite Sanders’ claim that the phones did not belong to him, he knew the
passcodes. And Mahalek gave wavering statements about ownership of the
hydrocodone pills, first claiming that they were not hers, then claiming that
they were hers, and last abandoning the claim altogether. This evidence is
sufficient to prove that Sanders had knowledge of the hydrocodone pills in the
pouch. See Womack v. State, 738 N.E.2d 320, 324 (Ind. Ct. App. 2000)
(“[A]lthough it was snowing, the bag was covered by droplets of water and not
snow flakes. This evidence was sufficient to support the inference that the bag
of marijuana had only been on the ground a short time, and that the bag had
been dropped by Womack and no one else.”), trans. denied.
[15] Affirmed.
Bradford, J., and Brown, J., concur.
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