MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     FILED
court except for the purpose of establishing                             Nov 21 2017, 10:03 am

the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
William T. Myers                                        Curtis T. Hill, Jr.
Grant County Public Defender                            Attorney General of Indiana
Marion, Indiana
                                                        Henry A. Flores, Jr.
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin Thien,                                            November 21, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        27A02-1705-CR-1088
        v.                                              Appeal from the Grant Superior
                                                        Court
State of Indiana,                                       The Honorable Jeffrey Todd,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        27D01-1506-F5-63



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1705-CR-1088 | November 21, 2017          Page 1 of 7
                                Case Summary and Issue
[1]   Following a jury trial, Kevin Thien was convicted of possession of a narcotic

      drug, a Level 5 felony, and possession of paraphernalia, a Class A

      misdemeanor. He was also found to be an habitual offender and was sentenced

      to a total of eight years imprisonment. Thien appeals his convictions, raising

      one issue for our review: whether the State presented sufficient evidence to

      support his convictions. Concluding there was sufficient evidence that Thein

      possessed a controlled substance and paraphernalia, we affirm.



                            Facts and Procedural History
[2]   In June of 2015, then-Sergeant John Kauffman of the Marion Police

      Department was a supervisor for the Joint Effort Against Narcotics Drug Task

      Force in Marion, Indiana. While on duty on June 19, 2015, Sergeant

      Kauffman observed Thien driving a vehicle. Sergeant Kauffman knew Thien’s

      driver’s license was suspended and requested a uniformed officer initiate a

      traffic stop. Sergeant Chris Butche conducted the traffic stop in his marked

      patrol car. Sergeant Kauffman observed from an unmarked vehicle from

      behind and to the left of the stopped vehicles. Sergeant Kauffman saw Thien

      look into the driver’s side mirror, and then move to his right, toward the

      passenger. A police canine came to the scene and indicated the odor of drugs.

      A blue box containing various items was recovered from Brittnie McDaniel, a

      passenger in Thien’s car. McDaniel had the box concealed in her pants. The

      box contained a hypodermic needle, two hollow glass tubes with blackened

      Court of Appeals of Indiana | Memorandum Decision 27A02-1705-CR-1088 | November 21, 2017   Page 2 of 7
      residue on the end stuffed with steel wool, and one white pill later identified as

      hydrocodone.


[3]   McDaniel testified that she had just recently been released from jail and on the

      day of the stop, Thien had driven her to the probation department for an

      appointment. They were involved in an off-and-on romantic relationship.

      Sergeant Kauffman encountered them when they were on their way home from

      the probation department. When Thien noticed the police presence, he pulled a

      blue box out of a hidden compartment on the dash and asked McDaniel to hide

      it in her pants. Although she did not know what was in the box, McDaniel did

      as Thien requested because she was afraid of him. During the stop, when

      McDaniel was removed from the vehicle for questioning, she took the box out

      of her pants and gave it to police, stating it was Thien’s and he had told her to

      hide it. A second passenger in the car, sitting directly behind McDaniel,

      testified that when they were pulled over by police, McDaniel asked Thien,

      “what do you want me to do with this container” and Thien replied, “I told you

      not to bring nothing with us.” Transcript at 77. The passenger never saw the

      blue box.


[4]   The State charged Thien with possession of a narcotic drug, a Level 5 felony

      due to an enhancing circumstance, and possession of paraphernalia, a Class A

      misdemeanor. The State also alleged Thien was an habitual offender. In phase

      one of Thien’s trial, a jury found him guilty of possession of paraphernalia and

      possession of a narcotic drug, and in phase two, found an enhancing

      circumstance applied to elevate the possession of a narcotic drug conviction to a

      Court of Appeals of Indiana | Memorandum Decision 27A02-1705-CR-1088 | November 21, 2017   Page 3 of 7
      Level 5 felony. Thien waived jury consideration of the habitual offender

      allegation; the trial court received evidence and determined he was an habitual

      offender. The trial court entered judgment of conviction on the verdicts and

      ordered Thien to serve concurrent sentences of four years for possession of a

      narcotic drug and one year for possession of paraphernalia, with the possession

      of a narcotic drug sentence enhanced by four years due to his habitual offender

      status, for an aggregate sentence of eight years. Thien now appeals his

      convictions.



                                Discussion and Decision
                                     I. Standard of Review
[5]   Thien argues the State presented insufficient evidence to prove he had

      constructive possession of the drugs or paraphernalia found in the blue box.

      When evaluating a sufficiency of the evidence claim, we consider only the

      probative evidence and reasonable inferences therefrom that are most favorable

      to the verdict. Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). We do not assess

      the credibility of the witnesses for ourselves and we do not reweigh the

      evidence. Id. We will only reverse the convictions if no reasonable fact-finder

      could find the elements of the crimes proven beyond a reasonable doubt. Id.


                                II. Constructive Possession
[6]   Although Thien did not physically possess any of the contraband, he may still

      be convicted of possession based upon constructive possession. Constructive


      Court of Appeals of Indiana | Memorandum Decision 27A02-1705-CR-1088 | November 21, 2017   Page 4 of 7
      possession will support a conviction if the State shows the defendant had both

      the capability and the intent to maintain dominion and control over the

      contraband. White v. State, 772 N.E.2d 408, 413 (Ind. 2002). A defendant’s

      intent and capability to maintain dominion and control can be inferred from the

      fact that the defendant has a possessory interest in the premises in which the

      contraband is found. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). If the

      possessory interest is not exclusive, however, additional circumstances pointing

      to the defendant’s knowledge of the presence and nature of the contraband must

      be shown, such as incriminating statements, attempted flight or furtive gestures,

      a setting suggesting drug manufacturing, the contraband’s proximity to the

      defendant, the location of the contraband within the defendant’s plain view, or

      the mingling of the contraband with other items owned by the defendant. Id.


[7]   Here, McDaniel testified Thien took the box out of a hidden compartment in

      his vehicle and handed it to her to hide in her pants. It is clear the jury believed

      McDaniel’s version of events over the version presented by the other passenger,

      who testified McDaniel had the box all along, as she asked Thien what to do

      with it when they were pulled over. The jury is free to believe or disbelieve

      witnesses as it sees fit. McClendon v. State, 671 N.E.2d 486, 488 (Ind. Ct. App.

      1996). Crediting McDaniel’s testimony, as we must, there is sufficient evidence

      that Thien had knowledge of the presence and nature of the contraband because

      he had hidden it from view first in a compartment in the dash of his vehicle,

      and then by passing it to McDaniel to hide in a place police were unlikely to

      search. In addition, Sergeant Kauffman saw him lean toward the center of the


      Court of Appeals of Indiana | Memorandum Decision 27A02-1705-CR-1088 | November 21, 2017   Page 5 of 7
       vehicle where that compartment was located, an action Sergeant Kauffman

       described as a movement that might indicate he was “trying to conceal or

       obtain something.” Tr. at 9.


[8]    That McDaniel had motive to lie about who the box belonged to because she

       risked violating her probation if she was found with illegal drugs was a theory

       presented to—and apparently rejected by—the jury. Thien’s argument is

       essentially a request that we discredit McDaniel’s testimony and reweigh the

       evidence in his favor, which we cannot do. See Love, 73 N.E.3d at 696. There

       was evidence that Thien had control of the box, reduced the box to his personal

       possession, and then directed its disposition by handing it to McDaniel to hide

       for him. This is sufficient to show constructive possession. Cf. Crowder v. State,

       398 N.E.2d 1352, 1354-55 (Ind. Ct. App. 1980) (holding evidence insufficient to

       show driver’s constructive possession of marijuana found in the pocket of his

       passenger when there was no evidence that driver ever had the bag in his

       possession, had knowledge of the presence of the bag in the pocket of his

       passenger, or had the ability to take it into his possession or to direct its use).



                                              Conclusion
[9]    The State presented sufficient evidence to support Thien’s convictions for

       possession of a narcotic drug and possession of paraphernalia. His convictions

       are affirmed.


[10]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 27A02-1705-CR-1088 | November 21, 2017   Page 6 of 7
Riley, J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 27A02-1705-CR-1088 | November 21, 2017   Page 7 of 7
