Alicia T. Taylor v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Apr 17 2019, 8:56 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Matthew F. Kite
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alicia T. Taylor, April 17, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2101
v. Appeal from the Brown Circuit
Court
State of Indiana, The Honorable Judith A. Stewart,
Appellee-Plaintiff. Judge
The Honorable Frank M. Nardi,
Magistrate/Judge Pro Tempore
Trial Court Cause No.
07C01-1608-CM-351
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019 Page 1 of 7
[1] Alicia T. Taylor appeals her conviction of possession of a controlled substance,
1
a Class A misdemeanor, alleging there is insufficient evidence to support her
conviction. We affirm.
[2] On the evening of August 12, 2016, the Brown County Sheriff’s Department
received two calls regarding possible drug activity at a local campground, with
specific mention of a white Ford Explorer. Deputy Joshua Stargell and
Sergeant Southerland went to the area to observe. Deputy Stargell saw a white
Ford Explorer with a female driver exit the campground area. Using the
computer in his vehicle, the Deputy conducted a search of BMV records using
the Explorer’s license plate number and learned that the owner of the vehicle
was Taylor and that her license was suspended. After confirming the
information with dispatch, Deputy Stargell initiated a traffic stop.
[3] Once the Explorer was stopped, the Deputy approached the driver and
confirmed that it was Taylor and that she knew her license was suspended.
When asked, Taylor also confirmed that the Explorer was not insured. Deputy
Stargell then determined the identity of Taylor’s passenger, that he was not
licensed to drive, and that he did not have any ownership interest in the
Explorer. Based on these circumstances, the Deputy called a tow truck to tow
the Explorer, and Sergeant Southerland performed a vehicle inventory. Prior to
the search, Taylor was given the opportunity to remove any valuables from the
1
Ind. Code § 35-48-4-7(a) (2014).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019 Page 2 of 7
Explorer, and she retrieved her purse. When Deputy Stargell looked in
Taylor’s purse, he found a digital scale, which Taylor said she was holding for
someone.
[4] During the vehicle inventory, Sergeant Southerland found two pills in
cellophane wrap near the center console and another single pill on the
passenger side floorboard. The two pills in cellophane were identified as
acetaminophen/oxycodone, and the single pill was identified as alprazolam.
Deputy Stargell asked Taylor if the pills belonged to her. Taylor replied that the
pills were not hers and that she did not know to whom they belonged.
[5] The State charged Taylor with Count 1 possession of a controlled substance
2
(oxycodone), a Class A misdemeanor; Count 2 possession of a controlled
3
substance (alprazolam), a Class A misdemeanor; and Count 3 driving while
4
suspended, a Class A misdemeanor. Following a bench trial, Taylor was
found guilty of Counts 1 and 3. The court sentenced Taylor to concurrent
terms of 365 days in community corrections with all but ten days suspended
and 355 days of probation. Taylor now appeals.
2
Ind. Code § 35-48-4-7(a).
3
Id.4
Ind. Code § 9-24-19-2 (2016).
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[6] Taylor contends there is insufficient evidence to sustain her conviction of
5
possession of oxycodone under the theory of constructive possession. When
we review a challenge to the sufficiency of the evidence, we neither reweigh the
evidence nor judge the credibility of the witnesses. Sandleben v. State, 29 N.E.3d
126 (Ind. Ct. App. 2015), trans. denied. Instead, we consider only the evidence
most favorable to the judgment and any reasonable inferences drawn therefrom.
Id. If there is substantial evidence of probative value from which a reasonable
factfinder could have found the defendant guilty beyond a reasonable doubt, the
judgment will not be disturbed. Labarr v. State, 36 N.E.3d 501 (Ind. Ct. App.
2015). Further, circumstantial evidence alone may support a conviction. Green
v. State, 808 N.E.2d 137 (Ind. Ct. App. 2004).
[7] Possession of an item may be either actual or constructive. Massey v. State, 816
N.E.2d 979 (Ind. Ct. App. 2004). Because Taylor did not actually possess the
oxycodone when it was found in the Explorer, the State was required to prove
that she constructively possessed it. A person has constructive possession of an
item when the person has both (1) the capability to maintain dominion and
control over the item and (2) the intent to maintain dominion and control over
the item. Causey v. State, 808 N.E.2d 139 (Ind. Ct. App. 2004).
[8] To establish the capability component, the State must demonstrate that the
defendant was able to reduce the contraband to her personal possession. Wilson
5
Taylor does not challenge her conviction of driving while suspended.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019 Page 4 of 7
v. State, 966 N.E.2d 1259 (Ind. Ct. App. 2012), trans. denied. Here, Sergeant
Southerland testified that he found the oxycodone in the area of the center
console and that the driver of the Explorer would have been able to reach the
cellophane package. See Lampkins v. State, 682 N.E.2d 1268 (Ind. 1997)
(concluding capability element was established because contraband was within
reach of defendant), modified on reh’g, 685 N.E.2d 698.
[9] Although the capability element is established because the package of
oxycodone was within Taylor’s reach, we additionally note that constructive
possession of items found in an automobile may be imputed to the driver of the
vehicle. State v. Emry, 753 N.E.2d 19 (Ind. Ct. App. 2001). Moreover, a trier of
fact may infer that a defendant had the capability to maintain dominion and
control over an item from the simple fact that the defendant had a possessory
interest in the premises on which an officer found the item. Gray v. State, 957
N.E.2d 171 (Ind. 2011). This inference is permitted even when that possessory
interest is not exclusive. Id. The evidence showed that Taylor was not only the
driver of the Explorer but also the registered owner. Thus, Taylor had the
capability to maintain dominion and control over the pills. Her argument on
appeal focuses on whether she had the intent to do so.
[10] The intent component is proven by demonstrating the defendant’s knowledge of
the presence of the item. Grim v. State, 797 N.E.2d 825 (Ind. Ct. App. 2003).
Such knowledge may be inferred from the exclusive dominion and control over
the premises containing the item Id. If, however, control of the premises is
non-exclusive, the inference of intent to maintain dominion and control over
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019 Page 5 of 7
the item must be supported by evidence of additional circumstances indicating
the defendant’s knowledge of the nature of the item and its presence. Cannon v.
State, 99 N.E.3d 274 (Ind. Ct. App. 2018), trans. denied. These additional
circumstances have been found to include: (1) incriminating statements by the
defendant; (2) attempted flight or furtive gestures; (3) location of substances like
drugs in settings that suggest manufacturing; (4) proximity of the item to the
defendant; (5) location of the item within the defendant’s plain view; and (6)
mingling of the item with other items owned by the defendant. Id.[11] There is no dispute that Taylor had a possessory interest in the Explorer.
Further evidence at trial supplied additional circumstances that, combined with
Taylor’s possessory interest in the Explorer, sufficiently establish her intent to
maintain dominion and control over the oxycodone. The package containing
the oxycodone was in the area of the center console of the Explorer in close
proximity to Taylor and within her reach, in a vehicle she owned. Other items
suggesting knowledge of drug activity are alprazolam, a controlled substance,
found in plain view on the front seat passenger’s floorboard of the vehicle
owned by Taylor, and a digital scale in Taylor’s purse.
[12] For the reasons stated, we conclude that the evidence established Taylor’s
capability to maintain dominion and control over the oxycodone and that it
further supports a reasonable inference that Taylor had the intent to maintain
dominion and control over the oxycodone. Therefore, there was sufficient
evidence from which the factfinder could have found Taylor guilty beyond a
reasonable doubt based on a theory of constructive possession.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2101 | April 17, 2019 Page 6 of 7
[13] Affirmed.
May, J., and Robb, J., concur.
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