Shalee C. Dowell v. State of Indiana ( 2020 )


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  •                                                                                         FILED
    Oct 23 2020, 10:13 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    Cara Schaefer Wieneke                                      Curtis T. Hill, Jr.
    Wieneke Law Office, LLC                                    Attorney General of Indiana
    Brooklyn, Indiana
    Tiffany A. McCoy
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Shalee C. Dowell,                                          October 23, 2020
    Appellant-Defendant,                                       Court of Appeals Case No.
    19A-CR-2623
    v.                                                 Appeal from the Perry Circuit
    Court
    State of Indiana,                                          The Honorable Karen Werner,
    Appellee-Plaintiff                                         Special Judge
    Trial Court Cause No.
    62C01-1805-F2-361
    May, Judge.
    Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020                       Page 1 of 6
    [1]   Shalee C. Dowell appeals her conviction of Level 6 felony maintaining a
    common nuisance. 1 She presents two issues for our review, one of which we
    find dispositive: whether the State presented sufficient evidence to prove Dowell
    committed Level 6 felony maintaining a common nuisance. We reverse and
    remand.
    Facts and Procedural History
    [2]   On May 2, 2018, officers initiated a traffic stop on a gold Oldsmobile Alero
    after observing the vehicle drive “left of center.” (Tr. Vol. II at 34.) Three
    people were in the car. Dowell was the driver, and the passengers were
    Christopher Wiseman and James Tucker. The officers decided to remove all of
    the vehicle’s occupants in order to conduct a K9 open air sniff of the vehicle.
    [3]   When Dowell exited the vehicle, Officer Jason Shadwick noticed she was
    acting “unusually nervous.” (Id. at 157.) While Officer Shadwick was handing
    Dowell’s driver’s license and registration to another officer, he noticed her
    “trying to place a stainless vial into the back of her pants.” (Id. at 160.) Officer
    Shadwick intercepted the vial because “[t]hrough [his] years and experience,
    those are commonly used for controlled substances.” (Id. at 161.) Officer
    Shadwick also removed a cell phone from Dowell’s back pocket.
    1
    
    Ind. Code § 35-45-1-5
    (c).
    Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020        Page 2 of 6
    [4]   Next, Officer Daymion Marsh went to the passenger side of the car and asked
    Tucker to exit the vehicle. When Tucker did so, Officer Marsh observed a
    “[c]lear Ziploc bag containing several other Ziploc bags . . . [that] contained a
    crystal substance” on the passenger floorboard of the vehicle. (Id. at 39.)
    Officer Marsh testified that, based on his training and experience, the packaging
    and quantity indicated the substance was prepared for “[d]ealing purposes.”
    (Id. at 42.) The substance was later tested and determined to be 16 grams of
    methamphetamine, in individual portions of 2.83-3.55 grams. Officers arrested
    Dowell, Tucker, and Wiseman.
    [5]   On May 6, 2018, the State charged Dowell with Level 2 felony dealing in
    methamphetamine, 2 Level 4 felony possession of methamphetamine, 3 and
    Level 6 felony maintaining a common nuisance. On May 18, 2018, Dowell
    called her sister and asked her to remove a bong, electronic scales, and a glass
    beaker from specific places in the family’s house and to put those items in a
    Wal-Mart bag. At Dowell’s direction, Dowell’s sister and mother then “went
    on a road trip and . . . ended up discarding the items on the side of the road in
    Tilden’s Court.” (Tr. Vol. III at 10.) Based on that incident, the trial court
    granted the State’s motion to also charge Dowell with Level 6 felony
    obstruction of justice. 4
    2
    
    Ind. Code § 35-48-4-1
    (e).
    3
    
    Ind. Code § 35-48-4-6
    (c).
    4
    
    Ind. Code § 35-44.1-2
    -2(a).
    Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020       Page 3 of 6
    [6]   After a three-day jury trial commencing on August 29, 2019, the jury found
    Dowell guilty as charged. On October 11, 2019, the court entered convictions
    of Level 2 felony dealing of methamphetamine, Level 6 felony maintaining a
    common nuisance, and Level 6 felony obstruction of justice. The trial court
    merged the Level 4 felony possession of methamphetamine conviction with the
    dealing conviction based on double jeopardy concerns. The trial court
    sentenced Dowell to twenty years for Level 2 felony dealing in
    methamphetamine, one-and-one-half years for Level 6 felony maintaining a
    common nuisance, and one-and-one-half years for Level 6 felony obstruction of
    justice. The trial court ordered the sentences to be served consecutive to one
    another for an aggregate sentence of twenty-three years.
    Discussion and Decision
    [7]   When reviewing the sufficiency of the evidence to support a conviction, we
    consider only the probative evidence and reasonable inferences supporting the
    fact-finder’s decision. Drane v. State, 
    867 N.E.2d 144
    , 146 (Ind. 2007). It is the
    fact-finder’s role, and not ours, to assess witness credibility and weigh the
    evidence to determine whether it is sufficient to support a conviction. 
    Id.
     To
    preserve this structure, when we are confronted with conflicting evidence, we
    consider it most favorably to the fact-finder’s decision. 
    Id.
     We affirm a
    conviction unless no reasonable fact-finder could find the elements of the crime
    proven beyond a reasonable doubt. 
    Id.
     It is therefore not necessary that the
    evidence overcome every reasonable hypothesis of innocence; rather, the
    Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020        Page 4 of 6
    evidence is sufficient if an inference reasonably may be drawn from it to support
    the fact-finder’s decision. 
    Id. at 147
    .
    [8]   To prove Dowell committed Level 6 felony maintaining a common nuisance,
    the State had to present evidence that she knowingly and intentionally
    maintained a building, structure, vehicle, or other place to unlawfully use,
    manufacture, keep, offer for sale, sell, deliver, or finance the delivery of a
    controlled substance. See 
    Ind. Code § 35-45-1-5
    (a) (definition of common
    nuisance) & 
    Ind. Code § 35-45-1-5
    (c) (elements of Level 6 felony maintaining a
    common nuisance). “[T]he term ‘common nuisance’ as used in the statute
    requires proof of a continuous or recurrent violation.” Zuniga v. State, 
    815 N.E.2d 197
    , 200 (Ind. Ct. App. 2004). Dowell argues the State did not prove
    that she used her vehicle more than one time to possess or deal
    methamphetamine.
    [9]   The State contends it presented evidence that Dowell committed Level 6 felony
    maintaining a common nuisance because she sent and received several text
    messages from April 30, 2018, to May 2, 2018, which were related to dealing
    illegal drugs. Dowell sent and received multiple text messages in that time
    frame about the prices of certain drugs and details on how she would meet
    multiple people in various locations to deliver or pick up those drugs. In all of
    the messages, Dowell mentions the gold Alero once, in a text message on May
    2, 2018, stating, “My car got repoed so I’ll be in a gold alero.” (State’s Ex. 50.)
    Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020        Page 5 of 6
    [10]   Officers pulled over and arrested Dowell sometime on May 2, 2018. While the
    messages suggest that she participated in multiple drug transactions, it is not
    clear from those messages what vehicle, if any, she was driving to complete
    those transactions. Therefore, the State proved Dowell used the gold Alero
    only on May 2, 2018, to transport drugs for sale. That single instance of use is
    not sufficient to prove Dowell committed Level 6 felony maintaining a
    common nuisance. See Leatherman v. State, 
    101 N.E.3d 879
    , 884 (Ind. Ct. App.
    2018) (State did not prove Leatherman committed Level 6 felony maintaining a
    common nuisance because it did not present evidence that he used the vehicle
    more than one time to commit Level 6 felony possession of methamphetamine).
    Conclusion
    [11]   The State did not prove Dowell used the Alero more than once to commit a
    crime, and therefore it did not present sufficient evidence she committed Level
    6 felony maintaining a common nuisance. Accordingly, we vacate her
    conviction of and sentence for that offense.
    [12]   Reversed and Remanded.
    Riley, J., and Altice, J., concur.
    Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020      Page 6 of 6
    

Document Info

Docket Number: 19A-CR-2623

Filed Date: 10/23/2020

Precedential Status: Precedential

Modified Date: 10/23/2020