MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 28 2017, 10:29 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any 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
Nathan L. Pearson Curtis T. Hill, Jr.
Starkes Law Office Attorney General of Indiana
Winamac, Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Earl Beem, March 28, 2017
Appellant-Defendant, Court of Appeals Case No.
75A05-1606-CR-1523
v. Appeal from the Starke Circuit
Court
State of Indiana, The Honorable Kim Hall, Judge
Appellee-Plaintiff Trial Court Cause No.
75C01-1603-F6-32
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 75A05-1606-CR-1523 | March 28, 2017 Page 1 of 10
[1] Earl Beem appeals his convictions for Level 6 Felony Possession of
Methamphetamine,1 Level 6 Felony Maintaining a Common Nuisance,2 and
Class C Misdemeanor Possession of Paraphernalia, 3 arguing that the evidence is
insufficient to support the convictions. Finding the evidence sufficient, we
affirm.
Facts
[2] In February 2016, the Hamlet Police Department began receiving complaints
regarding drug activity in a Hamlet residence that belonged to Melissa Howard.
As a result, the police department began conducting trash pulls at that address
from February to March 4, 2016. In the trash that they pulled, officers found
various items used to ingest illegal substances, including needles, syringes, and
spoons.
[3] On February 22, 2016, Hamlet Police Chief Frank Lonigro went to Howard’s
residence at the request of the Department of Child Services. While there,
Chief Lonigro encountered Beem, who told the chief that he was living at that
address. Chief Lonigro saw Beem at that residence a total of five times between
mid-February and March 4, 2016. Howard’s ex-husband also stated that Beem
was living at the residence.
1
Ind. Code § 35-38-4-6.1(a).
2
I.C. § 35-48-4-13(b)(1) (2016).
3
I.C. § 35-48-4-8.3(b)(1) (2016).
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[4] On March 4, 2016, police officers applied for and were granted a search warrant
for Howard’s residence. While applying for the warrant, an officer learned that
Beem had left the residence in a vehicle. The officer followed the car and
eventually detained Beem while the warrant for Howard’s residence was being
executed. During the search of Howard’s residence, police officers found
aluminum foil pieces4 with white residue on them on the dresser in plain view
in the master bedroom and “a lot of baggies in one bag” that had white, flaky
residue in them. Tr. Vol. II p. 116. Some of these items later tested positive for
methamphetamine.
[5] On March 8, 2016, the State charged Beem with Level 6 felony possession of
methamphetamine, Level 6 felony maintaining a common nuisance, and Class
C misdemeanor possession of paraphernalia. At Beem’s May 18 and 19, 2016,
jury trial, the State presented evidence that Beem had been living at Howard’s
residence and that he and Howard had smoked methamphetamine together.
The jury found Beem guilty as charged and, on June 1, 2016, the trial court
imposed an aggregate sentence of thirty months. Beem now appeals.
Discussion and Decision
[6] Beem’s sole argument on appeal is that the evidence is insufficient to support
his convictions. When reviewing a claim of insufficient evidence, we will
4
Chief Lonigro later testified that foil pieces are a common way to ingest illegal substances. Tr. Vol. II p.
116.
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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
the defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009).
I. Possession of Methamphetamine and Paraphernalia
[7] To convict Beem of Level 6 felony Possession of Methamphetamine, the State
was required to prove beyond a reasonable doubt that he knowingly or
intentionally possessed methamphetamine. I.C. § 35-48-4-6.1. Similarly, to
convict Beem of Class C misdemeanor possession of paraphernalia, the State
was required to prove beyond a reasonable doubt that he knowingly or
intentionally possessed an instrument, device, or other object that he intended
to use for introducing into his body a controlled substance. I.C. § 35-48-4-8.3.
[8] Because Beem did not have actual possession of the drugs or paraphernalia, the
State was required to prove that he constructively possessed the contraband.
Constructive possession occurs when “somebody has the intent and capability
to maintain dominion and control over the item” without having direct physical
control over it. Henderson v. State, 715 N.E.2d 833, 835. The key to proving
intent is the defendant’s knowledge of the contraband’s presence, which can be
inferred from either “the exclusive dominion and control over the premise
containing the contraband or, if the control over the premise is non-exclusive,
evidence of additional circumstances pointing to the defendant’s knowledge of
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the presence of the contraband.” Id. These additional circumstances may be
established by (1) incriminating statements made by the defendant, (2)
attempted flight or furtive gestures, (3) location of substances like drugs in a
setting that suggests manufacturing, (4) proximity of the contraband to the
defendant, (5) location of the contraband within the defendant’s plain view, or
(6) the mingling of contraband with other items owned by the defendant. Id. at
836.5
[9] Beem raises two arguments with respect to these convictions. First, he argues
that he did not have a possessory interest in Howard’s residence. Second, he
argues that even if we found that he was an occupant of that home, the State
failed to present additional circumstances pointing to his knowledge of the
presence of the methamphetamine and paraphernalia.
[10] A possessory interest is not defined by ownership but, instead, by whether a
person has control over a residence. E.g., Gee, 810 N.E.2d at 340-41 (holding
that “a residence is controlled by the person who lives in it and that person may
be found in control of any drugs discovered therein, whether he is the owner,
tenant, or merely an invitee”). Here, the State presented ample evidence
establishing that, in the month leading up to the execution of the search
5
Beem implies that the State was required to prove all of these circumstances, but that is incorrect. These
factors are not exclusive, and the State is not required to present evidence for more than one factor. Gee v.
State, 810 N.E.2d 338, 344 (Ind. 2004) (holding that “the State is required to show that whatever factor or set of
factors it relies upon in support of the intent prong of constructive possession, those factors or set of factors
must demonstrate the probability that the defendant was aware of the presence of the contraband and its
illegal character”) (emphasis added).
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warrant, Beem had been living at Howard’s residence with her permission and,
therefore, had some degree of control over the home. Beem told Chief Lonigro
that he was living there, and the chief observed Beem at that residence five
times between mid-February and March 4, 2016. Melissa’s ex-husband also
testified that Beem had been living at the residence and that he had seen Beem
at that address at the end of February 2016. Additionally, text messages
between Beem and Howard show Beem referring to “our [bed]room.” State’s
Ex. 9. Moreover, in a phone call between Beem and Howard, Howard accused
him of leaving her on the day the search warrant was executed but he disagreed,
saying, “I was comin’ right back home, babe.” State’s Ex. 20. We find this
evidence sufficient to establish that he was living at Howard’s residence and
possessed the capability to maintain dominion and control over the
methamphetamine and paraphernalia.
[11] As Beem did not have exclusive dominion and control over the residence,
however, the State is required to offer additional evidence establishing his
knowledge of the presence of the contraband. As noted above, one of the ways
in which the State can make this showing is by offering evidence of
incriminating statements made by the defendant. Henderson, 715 N.E.2d at 836.
Here, the State submitted into evidence a series of text messages between
Howard and Beem that took place the day before the search warrant was
executed:
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Howard: I think we should dress warm go to garage and
smoke all of what we have. I can sneak the fools
out too. Gonna take a box out with me
***
Beem: Up to u . . . Id rather stay in our room baby.
***
Beem: ] smoke a boat[6] how much isleft.
Howard: Not much. That’s why I haven’t gotten it out.
***
Howard: … to bring some foil. Tell Hayley it’s about gone so
only us are smoking. We an scrape bags and clean
tooters after we smoke if you want.
Beem: I f*cking love u beautiful….
State’s Ex. 9 and 11 (spelling and grammatical errors original). Additionally,
the State offered into evidence an audio recording of a phone call between
Beem and Howard that occurred while Beem was in jail and awaiting his trial:
6
Howard testified that a “boat” is “aluminum foil folded into a boat-like shape to ingest methamphetamine.”
Tr. Vol. II p. 217.
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Beem: ‘Cause that’s also when you had all that—um—in
that bag, with you also, remember?
Howard: Hmm.
Beem: And I went to jail like two (2) days later—or the
next day . . . .
***
Beem: It was two (2) days after ‘cause you still had the
little—it was the next day! It was the next day.
Howard: Hmm.
Beem: You know. ‘Cause we saved a little bit, it was the
next day.
Howard: Right.
Beem: Right.
State’s Ex. 20. This evidence is sufficient to constitute an additional factor
establishing Beem’s knowledge of the contraband. Specifically, a reasonable
factfinder could infer from these statements, together with the fact that some of
the contraband was in plain sight on top of a dresser in Howard’s bedroom, that
Beem had the intent and capability to maintain dominion and control over the
methamphetamine and paraphernalia. In other words, the evidence is sufficient
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to establish that Beem constructively possessed methamphetamine and
paraphernalia and to support his convictions for these offenses.
II. Maintaining a Common Nuisance
[12] To convict Beem of Level 6 felony Maintaining a Common Nuisance, the State
was required to prove beyond a reasonable doubt that he knowingly or
intentionally maintained a building that was used one or more times by persons
to unlawfully use controlled substances. I.C. § 35-48-4-13(b) (2016) (since
repealed, amended, and recodified at Indiana Code section 35-45-1-5). This
Court has held that the evidence required to support a conviction for
maintaining a common nuisance “is comparable to the evidence required to
prove constructive possession.” Halferty v. State, 930 N.E.2d 1149, 1152 (Ind.
Ct. App. 2010). In other words, the State must show that the defendant has the
intent and capability to maintain dominion and control over the contraband.
Id. The State does not have to prove that a defendant owned a residence to
support a conviction for maintaining a common nuisance. Mack v. State, 23
N.E.3d 742, 758 (Ind. Ct. App. 2014).
[13] Here, as noted above, Beem had been living at Howard’s residence, with her
permission, for the month leading up to the execution of the search warrant. As
a result, he had the ability to maintain dominion and control over the house.
We find that the evidence set forth above, including their conversations
regarding using methamphetamine together, readily supports a conclusion that
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he had the intent and capability to maintain dominion and control over both
the residence and the contraband therein.
[14] Beem argues that the statute requires that the State prove that the building was
used by “persons” on one or more occasions and that here, the State did not
prove that multiple people used controlled substances in the residence. We
disagree. As set forth above, the State introduced evidence of both text
messages and phone calls in which Beem and Howard discuss using
methamphetamine together. A reasonable factfinder could infer from this
evidence that at least two people used Howard’s residence to ingest
methamphetamine. Therefore, we find the evidence sufficient to support this
conviction.
[15] The judgment of the trial court is affirmed.
Barnes, J., and Crone, J., concur.
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