MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 17 2017, 9:03 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Russell B. Cate Curtis T. Hill, Jr.
Cate, Terry & Gookins LLC Attorney General of Indiana
Carmel, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholas Edward Daugherty, February 17, 2017
Appellant-Defendant, Court of Appeals Case No.
29A02-1609-CR-2076
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Hon. J. Richard Campbell,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D04-1603-CM-1923
Bradford, Judge.
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Case Summary
[1] The Appellant-Defendant Nicholas Edward Daugherty appeals his conviction
of possession of paraphernalia as a Class C misdemeanor, contending that the
Appellee-Plaintiff the State of Indiana (“the State”) failed to produce sufficient
evidence to sustain his conviction. Specifically, Daugherty claims that the State
failed to prove that Daugherty constructively possessed the paraphernalia. Due
to the evidence that the paraphernalia was close in proximity to Daugherty, it
was found in a vehicle owned by Daugherty’s father, and Daugherty made
incriminating statements, we affirm.
Facts and Procedural History
[2] On February 19, 2016, Hamilton County Sheriff’s Deputy Neal Hoard stopped
a vehicle that had a headlight out. Deputy Hoard approached the driver’s side
of the vehicle and was explaining the purpose for the traffic stop and noticed an
odor of marijuana coming from the vehicle. There were two individuals in the
vehicle at that time. Daugherty was in the passenger seat and Nicholas Trees
was in the driver seat. The vehicle was registered to Daugherty’s father.
[3] Deputy Hoard subsequently asked both Daugherty and Trees to exit the
vehicle, radioed for backup, and conducted a search of the vehicle. During the
search, Deputy Hoard located marijuana, scales, a measuring cup, and a mason
jar stuffed with zip-lock baggies with marijuana residue. Deputy Hoard also
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discovered two smoking pipes in the glove compartment with a “odor of burnt
marijuana.” Tr. p. 10.
[4] Deputy Hoard subsequently pulled Daugherty aside to ask him a few questions;
this conversation was captured on Deputy Hoard’s in-car video camera. At
some point during the conversation, Daugherty admitted to Deputy Hoard that
the pipes were his. Deputy also spoke to Trees individually during which Trees
admitted to possession of the marijuana found in the vehicle.
[5] The State charged Daugherty with Class C misdemeanor possession of
paraphernalia on March 15, 2016. After a bench trial, Daugherty was found
guilty as charged and sentenced to fourteen days executed. This appeal follows.
Discussion and Decision
[6] On appeal, Daugherty argues that there was insufficient evidence to support his
conviction for possession of paraphernalia. Our standard for reviewing
sufficiency of the evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109,
111 (Ind. 2000).
In reviewing the sufficiency of the evidence, we examine only the
probative evidence and reasonable inferences that support the
verdict. We do not assess witness credibility, nor do we reweigh
the evidence to determine if it was sufficient to support a
conviction. Under our appellate system, those roles are reserved
for the finder of fact. Instead, we consider only the evidence most
favorable to the trial court ruling and affirm the conviction unless
no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. This evidence need not
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overcome every reasonable hypothesis of innocence; it is
sufficient so long as an inference may reasonably be drawn from
it to support the verdict.
Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (internal citations and quotations
omitted). The trier of fact is responsible for resolving conflicts of testimony,
determining the weight of the evidence, and evaluating the credibility of the
witnesses. Jones v. State, 701 N.E.2d 863, 867 (Ind. Ct. App. 1998).
[7] Under Indiana Code section 35-48-4-8.3(b)(1), a person who knowingly or
intentionally possesses an instrument, a device, or another object that the
person intends to use for introducing into the person’s body a controlled
substance commits a Class C misdemeanor. The State can either prove actual
or constructive possession in order to obtain a conviction for possession of
paraphernalia. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “A person
constructively possesses contraband when the person has (1) the capability to
maintain dominion and control over the item; and (2) the intent to maintain
dominion and control over it.” Id.
A trier of fact may infer that a defendant had the capability to
maintain dominion and control over contraband from the simple
fact that the defendant had a possessory interest in the premises
on which an officer found the item. We allow this inference even
when that possessory interest is not exclusive. A trier of fact may
likewise infer that a defendant had the intent to maintain
dominion and control over contraband from the defendant’s
possessory interest in the premises, even when that possessory
interest is not exclusive. When that possessory interest is not
exclusive, however, the State must support this second inference
with additional circumstances pointing to the defendant’s
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knowledge of the presence and the nature of the item. We have
previously identified some possible examples, including (1) a
defendant’s incriminating statements; (2) a defendant’s
attempting to leave or making furtive gestures; (3) the location of
contraband like drugs in settings suggesting manufacturing; (4)
the item’s proximity to the defendant; (5) the location of
contraband within the defendant’s plain view; and (6) the
mingling of contraband with other items the defendant owns.
Id.
[8] Reviewing only the probative evidence and the reasonable inferences that
support the verdict, we conclude that the evidence was sufficient to convict
Daugherty of possession of paraphernalia. The record shows that Daugherty
constructively possessed the pipes because they were in the glovebox, close in
proximity to Daugherty. The evidence also shows that the vehicle was owned
by Daugherty’s father. Finally, Daugherty made incriminating statements in
which he admitted to owning the pipes. A reasonable trier of fact could have
determined that Daugherty had the intent and capability to maintain control of
the pipes.
[9] According to the record, there is also evidence that the pipes and vehicle
smelled of burnt marijuana. The evidence further shows that Daugherty and
his friend were going to smoke the marijuana once they stopped the vehicle
somewhere. The evidence is more than sufficient to establish that Daugherty
intended to use the pipes to introduce marijuana into his body.
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[10] Daugherty also challenges the sufficiency of the evidence because Deputy
Hoard’s testimony is allegedly incredibly dubious. The incredible dubiosity
rule, which requires the reversal of a conviction, is only applied in very narrow
circumstances. Leyva v. State, 971 N.E.2d 699, 702 (Ind. Ct. App. 2012). The
rule of incredible dubiosity is expressed as follows:
If a sole witness presents inherently improbable testimony and
there is a complete lack of circumstantial evidence, a defendant’s
conviction may be reversed. This is appropriate only where the
court has confronted inherently improbable testimony or coerced,
equivocal, wholly uncorroborated testimony of incredible
dubiosity. Application of this rule is rare and the standard to be
applied is whether the testimony is so incredibly dubious or
inherently improbable that no reasonable person could believe it.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).
[11] Daugherty fails to show that Deputy Hoard’s testimony was inherently
improbable, nor did he show that there was a complete lack of circumstantial
evidence. Deputy Hoard’s testimony regarding the events of February 19,
2016, was consistent and plausible; he never wavered in his description of the
events. Further, we cannot say that Deputy Hoard’s testimony regarding his
conversation with Daugherty, including when Daugherty admitted to
ownership of the pipes, was so inherently improbable that no reasonable person
could believe it. Daugherty merely infers that Deputy Hoard’s testimony is
untruthful because parts of the recording of that conversation are inaudible.
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[12] Based upon our review of the evidence and the testimony most favorable to the
conviction, we conclude that sufficient evidence exists from which the trier of
fact could find Daugherty guilty beyond a reasonable doubt of possession of
paraphernalia. We affirm.
Vaidik, C.J., and Brown, J., concur.
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