Jody D. Selby v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Apr 07 2020, 9:11 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Tyler D. Helmond F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin & Chief Deputy Attorney General
Webb
Indianapolis, Indiana Tina L. Mann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jody D. Selby, April 7, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2584
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Gary J. Schutte,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
82C01-1908-F6-5504
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020 Page 1 of 6
Case Summary
[1] Jody Selby appeals his convictions, following a jury trial, for level 6 felony
possession of methamphetamine and class A misdemeanor possession of a
controlled substance. The sole issue presented for our review is whether the
State presented sufficient evidence to support the convictions. Finding the
evidence sufficient, we affirm.
Facts and Procedural History
[2] On August 5, 2019, at approximately 9:30 p.m., Detective Jeff Taylor of the
Evansville Police Department arrived at a Vanderburgh County residence to
serve a felony warrant for a probation violation on L.T. As Detective Taylor
approached the residence, he observed a red vehicle parked in the driveway
with its passenger door open. Selby was inside the car using a flashlight to look
around the vehicle. Detective Taylor was suspicious about what Selby was
doing, so he did a visual scan of the vehicle and Selby’s hands to make sure that
Selby was not armed, and that there was not a weapon within his reach.
Detective Selby saw no weapons, and he also observed that there was nothing
on the driver’s seat.
[3] Selby was startled when Detective Taylor, who was dressed in his police
uniform, approached and began speaking to him. Selby behaved nervously, his
hands were shaking, and he seemed “like he was unsettled when[] he saw the
police.” Tr. Vol. 2 at 8. Selby gave Detective Taylor his identification upon
request, but he did not make eye contact with the detective and instead looked
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020 Page 2 of 6
at the ground. Detective Taylor asked Selby if he lived at the residence, and
Selby responded that he was “staying” there. Id.
[4] Due to Selby’s nervous behavior, Detective Taylor asked Selby to step out of
the vehicle so that he could perform a patdown search for weapons. As soon as
Detective Taylor began the patdown, he felt Selby’s “hand go into his pocket,”
and a struggle ensued. Id. at 10. Detective Taylor grabbed Selby’s wrist and
then felt Selby “flick” his wrist, “as if he pulled something out and it was
tossed.” Id. at 11. The struggle ended when Detective Taylor was able to get
handcuffs on Selby. Detective Taylor moved Selby away from the vehicle, and
then looked to see what Selby had tossed. Detective Taylor observed a white
box sitting on the vehicle’s driver’s seat that had not been there earlier.
Detective Taylor opened the box and found what was later determined to be
5.33 grams of methamphetamine, as well as alprazolam pills.
[5] The State charged Selby with level 6 felony possession of methamphetamine
and class A misdemeanor possession of a controlled substance. The State also
filed a separate habitual offender sentence enhancement. Following trial, a jury
found Selby guilty of both possession charges. Selby then pled guilty to the
habitual offender enhancement. The trial court sentenced Selby to concurrent
terms of two years for the level 6 felony, and one year for the class A
misdemeanor. The court enhanced Selby’s level 6 felony sentence by an
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additional five years for being a habitual offender, for an aggregate sentence of
seven years. This appeal ensued. 1
Discussion and Decision
[6] Selby challenges the sufficiency of the evidence to support his convictions.
When reviewing a claim of insufficient evidence, we neither reweigh the
evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind.
2015). We look to the evidence and reasonable inferences drawn therefrom that
support the conviction, and will affirm if there is probative evidence from which
a reasonable factfinder could have found the defendant guilty beyond a
reasonable doubt. Id. In short, if the testimony believed by the trier of fact is
enough to support the conviction, then the reviewing court will not disturb it.
Id. at 500.
[7] To convict Selby of level 6 felony possession of methamphetamine, the State
was required to prove beyond a reasonable doubt that he, without a valid
prescription, knowingly or intentionally possessed methamphetamine (pure or
adulterated). Ind. Code § 35-48-4-6.1(a). To convict Selby of class A
misdemeanor possession of a controlled substance, the State was required to
prove that he, without a valid prescription, knowingly or intentionally
possessed a controlled substance (pure or adulterated) classified in schedule I,
1
Selby does not appeal the habitual offender finding or sentence enhancement.
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II, III, or IV. Ind. Code § 35-48-4-7. Alprazolam is listed as a schedule IV
controlled substance. See Ind. Code § 35-48-2-10.
[8] Selby asserts that the State failed to prove that he possessed either the
methamphetamine, or the alprazolam, found in the white box. Possession can
be actual or constructive. Parks v. State, 113 N.E.3d 269, 273 (Ind. Ct. App.
2018). As Selby did not have actual possession of the white box containing the
contraband at the time it was discovered, we must determine whether the State
proved that he constructively possessed it. 2 To prove constructive possession,
the State was required to prove that Selby had the intent and capability to
maintain dominion and control over the contraband. Id. “When constructive
possession is alleged, the State must demonstrate the defendant’s knowledge of
the contraband.” Bradshaw v. State, 818 N.E.2d 59, 63 (Ind. Ct. App. 2004).
Proof of dominion and control, and therefore knowledge, of contraband has
been found through a variety of means: (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 contraband to
the defendant, (5) location of the contraband within the defendant’s plain view,
and (6) the mingling of the contraband with other items owned by the
defendant. Parks, 113 N.E.3d at 273 (citing Henderson v. State, 715 N.E.2d 833,
836 (Ind. 1999)).
2
Although we address Selby’s challenge to the sufficiency of the evidence in terms of constructive possession,
we agree with the State that a reasonable trier of fact could have inferred from the evidence that Selby had
actual possession of the contraband before he discarded it onto the driver’s seat.
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[9] Here, Selby was the only person in the vehicle when Detective Taylor
approached. Selby behaved nervously, and, when Detective Taylor performed
a patdown search for weapons, Selby suddenly began struggling and pulled
something from his pocket and “flicked” it. Tr. Vol. 2 at 11. After struggling
with Selby and removing him from the immediate vicinity of the vehicle,
Detective Taylor observed the white box containing the contraband on the
vehicle’s driver’s seat, where it had not been previously. Based upon Selby’s
struggle with Detective Taylor along with his furtive gesture, and the location
and proximity of the contraband to where Selby had just been, it was
reasonable for the jury to infer that Selby had the intent and capability to
maintain dominion and control over the contraband. The State presented
sufficient evidence that Selby constructively possessed the contraband.
Therefore, we affirm his convictions.
[10] Affirmed.
Bailey, J., and Altice, J., concur.
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