Grover E. Lowe v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Jul 29 2014, 10:23 am
regarded as precedent or cited before
any 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 GREGORY F. ZOELLER
Special Asst. to State Public Defender Attorney General of Indiana
Plainfield, Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GROVER E. LOWE, )
)
Appellant-Defendant, )
)
vs. ) No. 76A04-1311-CR-572
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE STEUBEN CIRCUIT COURT
The Honorable Allen N. Wheat, Judge
Cause No. 76C01-1304-FB-256
July 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Following a jury trial, Grover Lowe was convicted of Possession of
Methamphetamine1 as a class B felony. Lowe now appeals presenting the following issue
for our review: Was the evidence sufficient to support the conviction?
We affirm.
On March 26, 2013, Detective Sergeant Chris Emerick began surveillance of the
house at 202 E. Broad Street in Angola because of suspected drug activity. The police
executed a search warrant there on April 8, 2013. At the time the search warrant was
executed, Lowe was on the property, but not inside the house. He was subsequently placed
in protective custody. When the police made entry into the house, they found four other
individuals. Throughout the house, police found multiple blister packs of
pseudoephedrine, digital scales, stripped battery casings, burnt aluminum foil, syringes,
and boxes of nasal decongestant, all materials indicative of methamphetamine production.
Baggies of methamphetamine were also found in multiple rooms, including the basement
bedroom.
Lowe was charged with possession of methamphetamine as a class B felony and
possession of paraphernalia as a class A misdemeanor. The jury found Lowe guilty of
possession of methamphetamine, but not guilty of possession of paraphernalia. The trial
court sentenced Lowe to twelve years in the Department of Correction. Lowe now appeals.
Lowe argues the State presented insufficient evidence to support his conviction of
possession of methamphetamine. When considering a challenge to the sufficiency of
1
Ind. Ann. Code § 35-48-4-6.1 (Westlaw, Westlaw current through 2012 Second Regular Session).
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evidence to support a conviction, we respect the fact-finder’s exclusive province to weigh
conflicting evidence and therefore neither reweigh the evidence nor judge witness
credibility. McHenry v. State, 820 N.E.2d 124 (Ind. 2005). We consider only the probative
evidence and reasonable inferences supporting the verdict, and “must affirm ‘if the
probative evidence and reasonable inferences drawn from the evidence could have allowed
a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.’” Id. at
126 (quoting Tobar v. State, 740 N.E.2d 109, 111–12 (Ind. 2000)).
To prove possession of methamphetamine as a class B felony, the State was required
to prove that Lowe knowingly or intentionally possessed methamphetamine within 1,000
feet of a family housing complex. Lowe claims the State failed to prove that he possessed
the methamphetamine found inside the residence. A conviction for possession of
contraband may rest upon proof of either actual or constructive possession. See Britt v.
State, 810 N.E.2d 1077 (Ind. Ct. App. 2004). “Actual possession occurs when the
defendant has direct physical control over the item, while constructive possession involves
the intent and capability to maintain control over the item even though actual physical
control is absent.” Id. at 1082. Here, the State alleged constructive possession.
Evidence of constructive possession is sufficient where the State proves that the
defendant had both the intent and capability to maintain dominion and control over the
contraband. Hardister v. State, 849 N.E.2d 563 (Ind. 2006). The intent element of
constructive possession is shown if the State demonstrates the defendant’s knowledge of
the presence of the contraband. Goliday v. State, 708 N.E.2d 4 (Ind. 1999). This
knowledge may be inferred from either the exclusive dominion and control over the
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premises containing the contraband or, if the control is non-exclusive, evidence of
additional circumstances pointing to the defendant’s knowledge of the presence of the
contraband. Id. These additional circumstances may 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 drugs; (5) drugs in plain view; and (6) location of the
drugs in close proximity to items owned by the defendant. Hardister v. State, 849 N.E.2d
563. The capability element of constructive possession is met when the State shows that
the defendant was able to reduce the controlled substance to the defendant’s personal
possession. Goliday v. State, 708 N.E.2d 4. Furthermore, possession of contraband by the
defendant need not be exclusive and it can be possessed jointly. Massey v. State, 816
N.E.2d 979 (Ind. Ct. App. 2004).
In challenging the sufficiency of the evidence, Lowe acknowledges that the State
met its burden to show that he had the capability to maintain dominion and control over
the contraband. He contends, however, that the State did not prove the additional element
of intent. Lowe points out there was no evidence presented at trial regarding any statements
he made, no evidence presented that Lowe was found in close proximity to the
methamphetamine, nor was there evidence that Lowe had exclusive dominion and control
over the basement bedroom that he shared with his girlfriend, Nikki Ludlow.
We reject Lowe’s invitation to reweigh the evidence. The evidence presented at
trial established that Lowe stayed at the house three to four nights per week over a period
of three months. Lowe’s personal belongings were found throughout the basement
bedroom. In open view, a baggie of methamphetamine and materials of methamphetamine
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use, including a dinner plate with white residue, burnt aluminum, and an empty pen shell,
were found on a night table inches from the bed. A pair of Lowe’s pants was on the floor
immediately next to the table. On a shelf on the other side of the room, the police found a
red tin containing more evidence of methamphetamine use and production and Lowe’s
expired driver’s license. The State presented sufficient evidence to prove that Lowe had
knowledge of the presence of the methamphetamine in the bedroom he shared with
Ludlow. This evidence supports a reasonable inference that Ludlow and Lowe jointly
possessed the methamphetamine.
The State presented sufficient evidence that Lowe constructively possessed the
drugs.
Judgment affirmed.
VAIDIK, C.J., and MAY, J., concur.
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