Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

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

Mark Small

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lauren A. Jacobsen

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Dustin Wayne Eldridge,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 8, 2019

Court of Appeals Case No.

18A-CR-1133

Appeal from the Clinton Superior 

Court

The Honorable Justin H. Hunter, 

Judge

Trial Court Cause No.

12D01-1610-F5-897

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1133 | March 8, 2019 Page 2 of 12

Case Summary and Issue

[1] Following a jury trial, Dustin Eldridge was convicted of dealing in 

methamphetamine, a Level 5 felony; maintaining a common nuisance, a Level 

6 felony; and possession of a controlled substance, a Class A misdemeanor. 

Eldridge now appeals his convictions, raising one issue for our review: whether 

the evidence was sufficient to support his convictions. Concluding the evidence 

was sufficient to support Eldridge’s convictions of dealing in methamphetamine 

and possession of a controlled substance but insufficient to prove maintaining a 

common nuisance, we affirm in part and reverse and remand in part.

Facts and Procedural History

[2] On August 30, 2016, Eldridge and Allen Isenburg were working together doing 

tree removal. Eldridge had borrowed a dump truck from a friend for the work, 

and Isenburg drove because Eldridge did not have a driver’s license. After a 

long day trying unsuccessfully to remove a tree, Isenburg and Eldridge drove to 

Wal-Mart after Ashlee Lanum “initiated them to meet [her] there” by texting

Eldridge to ask “if he was looking into meeting [her.]” Transcript, Volume I at 

165-66. When Isenburg and Eldridge met Lanum in the Wal-Mart parking lot

after midnight, she said she had “some stuff that [she] wanted to get rid of” and

asked for a ride. Id. at 166. Lanum testified that she had three packets of 

methamphetamine in the front pocket of her shorts and pills in an Altoids tin. 

She said it was “probably not” clear to Isenburg and Eldridge that the “stuff” 

she referenced was drugs. Id. Lanum climbed over Eldridge, who was sitting 
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in the passenger seat, and sat between Isenburg and Eldridge. Isenburg then 

drove to Marlaina Lybrook’s home in Frankfort at Elridge’s direction. Eldridge 

spoke to Lybrook by phone a couple of times during the journey.

[3] When they arrived, Eldridge called Lybrook and told her to come out to the 

truck that was parked in front of her house. Lybrook did come outside, but she 

was angry that they had come to the front of her house because she had 

outstanding warrants and was trying to avoid exposure. While Lybrook was 

standing on the passenger side of the truck yelling at Eldridge, Lanum said that 

she had methamphetamine to sell and also mentioned “something about 

Lortabs.” Id. at 153. Unfortunately for Lybrook and the occupants of the 

truck, Clinton County Sheriff’s Deputies Farlow and Knapp arrived at 

Lybrook’s residence about this time to serve the arrest warrant on her. 

[4] As Deputy Farlow approached the vehicle on the passenger side, he saw 

Eldridge move his hands as if he was taking something from his lap and moving 

it between his seat and the door. Deputy Farlow asked all occupants of the 

vehicle to put their hands on the dash while Deputy Knapp detained Lybrook 

and called the Frankfort Police Department for backup. As the occupants

raised their hands, Deputy Farlow saw Eldridge had a small, empty plastic bag 

in his hand. Through his “training and experience,” Deputy Farlow “knew 

these bags to be used to carry drugs.” Appellant’s Appendix, Volume 3 at 14. 

Deputy Farlow asked Eldridge to step out of the vehicle, and as he did so, 

Deputy Farlow saw a syringe on the floor of the vehicle. By this time, 

Frankfort police officers had arrived and asked both Isenburg and Lanum to 
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exit the vehicle. As they exited, a Frankfort police officer saw a second syringe 

on the driver’s side floor. 

[5] During a subsequent search of the vehicle, officers found a black bag on the seat 

between where Eldridge and Lanum had been sitting. The bag contained a

lighter and an Altoids tin. Inside the tin was a plastic bag containing 

hydrocodone and oxycodone pills and multiple small plastic bags similar to the 

bag Eldridge had been holding earlier. All three occupants of the vehicle 

disclaimed knowledge of the black bag or its contents and were placed in

custody. 

[6] Eldridge also had a backpack in the truck that he allowed to be searched; 

officers found a scale, a pack of small clear plastic bags, and multiple syringes. 

Eldridge claimed he was diabetic, but no insulin was found in the backpack or 

the truck. All parties were transported to the Clinton County Jail. After 

Lanum was taken from her transport vehicle, the officer who transported her 

searched the back seat of his vehicle and found a small baggie with a white 

substance tucked in the seat. The substance field tested positive for 

methamphetamine. Lanum testified that she had tried to get rid of the 

methamphetamine in her possession by eating it, but was only able to ingest 

two bags and had to stick the third bag in the seat. 

[7] The State charged Eldridge with dealing in methamphetamine, a Level 5 

felony; maintaining a common nuisance, a Level 6 felony; and possession of a 
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controlled substance, a Class A misdemeanor.1 Eldridge was tried by a jury. At 

the conclusion of the State’s evidence, Eldridge made a motion for judgment on

the evidence with respect to the dealing and possession counts. The trial court 

denied the motion and the defense rested without presenting any witnesses. 

The State argued during its closing argument that Eldridge aided Lanum in her 

attempts to deal methamphetamine and the trial court instructed the jury about 

accomplice liability. See Tr., Vol. I at 183, 192-93. The trial court also 

instructed the jury about actual and constructive possession. See id. at 183. The 

jury found Eldridge guilty on all counts. Eldridge now appeals.

Discussion and Decision

I. Standard of Review

[8] In reviewing the sufficiency of the evidence to support a conviction, we neither 

reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 

N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the 

judgment and any reasonable inferences that can be drawn therefrom, id., and 

we will affirm the conviction “if there is substantial evidence of probative value 

supporting each element of the crime from which a reasonable trier of fact 

could have found the defendant guilty beyond a reasonable doubt.” Walker v. 

 

1

Isenburg was also charged with dealing in methamphetamine and maintaining a common nuisance. He 

pleaded guilty to maintaining a common nuisance. Tr., Vol. I at 139-40. Lanum was also charged with 

dealing in methamphetamine and possession of a controlled substance. She pleaded guilty to possession of 

methamphetamine with intent to deliver and was serving her sentence at the time of Eldridge’s trial. Id. at 

174.
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State, 998 N.E.2d 724, 726 (Ind. 2013) (citation omitted). “It is the job of the 

fact-finder to determine whether the evidence in a particular case sufficiently 

proves each element of an offense, and we consider conflicting evidence most 

favorably to the trial court’s ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 

2005) (citations omitted). 

II. Dealing in Methamphetamine

[9] To prove the offense of dealing in methamphetamine, a Level 5 felony, the 

State was required to show beyond a reasonable doubt that Eldridge knowingly 

or intentionally possessed methamphetamine with intent to deliver. Ind. Code 

§ 35-48-4-1.1(a)(2). Here, the State sought to convict Eldridge as an 

accomplice. To do so, the State needed to prove that Eldridge knowingly or 

intentionally aided Lanum in dealing methamphetamine. See Ind. Code § 35-

41-2-4. 

[10] A person who aids another in committing a crime can be charged as a principal 

for all acts committed in accomplishing the crime. Smith v. State, 809 N.E.2d 

938, 944 (Ind. Ct. App. 2004), trans. denied. The particular facts and 

circumstances of each case must be considered to determine whether a person 

participated in an offense as an accomplice. Castillo v. State, 974 N.E.2d 458, 

466 (Ind. 2012). We consider four factors to determine whether a defendant 

acted as an accomplice: 1) presence at the scene of the crime, 2) 

companionship with another at the scene of the crime, 3) failure to oppose the 

commission of the crime, and 4) course of conduct before, during, and after the 
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occurrence of the crime. Id. The fact that a defendant is present during a crime 

and did not oppose the crime is not sufficient standing alone to establish 

accomplice liability, but in conjunction with the other facts and circumstances, 

may be enough. Tuggle v. State, 9 N.E.3d 726, 736 (Ind. Ct. App. 2014), trans. 

denied. 

[11] Here, all four factors weigh in favor of Eldridge’s conviction of dealing in 

methamphetamine. Eldridge picked Lanum up at her request and was present 

with her when she offered to sell methamphetamine to Lybrook. He obviously 

knew Lanum prior to this incident, as she was able to reach him by text 

message, and he responded favorably to her request to meet up. Although all 

parties testified the police arrived almost immediately after Lybrook came 

outside to meet the truck, see tr., vol. I at 153 (Lybrook testifying the police 

showed up within “maybe thirty seconds” after she got to the truck), there is no 

indication Eldridge tried to stop Lanum from offering drugs for sale. And 

finally, Eldridge’s conduct indicated both a familiarity with Lanum and a 

willingness to take her somewhere to get rid of her “stuff.” Tr., Vol. I at 166. 

In addition, he had with him a padlocked backpack in which he carried scales, 

small plastic baggies like the kind used to hold drugs, and multiple syringes. See

Schaaf v. State, 54 N.E.3d 1041, 1043-44 (Ind. Ct. App. 2016) (holding evidence 

was sufficient to support defendant’s conviction of dealing as an accomplice 

where defendant was present at the scene of the crime, was a companion of the 

principal, failed to oppose the crime, suggested the place for the buy to occur, 

and allowed the buy to take place in his vehicle). There was sufficient evidence 
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that Eldridge aided Lanum in dealing methamphetamine and therefore, 

sufficient evidence to find him guilty of dealing in methamphetamine. 

II. Maintaining a Common Nuisance

[12] To prove Eldridge was guilty of maintaining a common nuisance, a Level 6 

felony, the State was required to show that he knowingly or intentionally 

maintained a vehicle that is used to unlawfully use, manufacture, keep, offer for 

sale, sell, deliver, and/or finance the delivery of controlled substances. Ind. 

Code § 35-45-1-5(a) and (c). Eldridge claims the State did not prove he 

knowingly or intentionally maintained a common nuisance. We base our 

decision not on his mens rea, however, but on the fact that only one incident of 

using the truck for a prohibited purpose was shown. 

[13] From at least 1976, the law regarding maintaining a common nuisance was that 

the words “common nuisance” “carry with them a notion of continuous or 

recurrent violation” such that “proof of an isolated occurrence would not 

sustain a conviction.” Wells v. State, 170 Ind. App. 29, 33, 351 N.E.2d 43, 46 

(1976). In 1998, the common nuisance statute was amended to add language 

that maintaining a common nuisance is committed by “[a] person who 

knowingly or intentionally maintains a building, structure, vehicle, or other 

place that is used one (1) or more times” to commit the prohibited activity. Ind. 

Code § 35-48-4-13(b) (2008). After this amendment, the crime of maintaining a 

common nuisance no longer required a showing of more than an isolated 

incident of unlawful activity. The “one or more times” language remained in 
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the statute for several years, until the statute was again amended in 2016 to 

remove that language. The 2016 version of the maintaining a common 

nuisance statute, effective July 1, 2016, and therefore the version applicable to 

Eldridge’s offense, again defines a “common nuisance” as a “building, 

structure, vehicle, or other place that is used for (1) or more of the [prohibited] 

purposes . . . .” Ind. Code § 35-45-1-5(a) (2016). “[I]t is clear that the 

legislature intended by the removal of the ‘one or more times’ language to 

restore the prior common law and statutory requirement that a common 

nuisance is one in which continuous or recurrent prohibited activity takes 

place.” Leatherman v. State, 101 N.E.3d 879, 884 (Ind. Ct. App. 2018). Because 

the State failed to prove that the vehicle over which Eldridge exerted control 

had been used on more than this one occasion to sell or deliver controlled 

substances, the State failed to prove by sufficient evidence that Eldridge 

committed maintaining a common nuisance. We must reverse that conviction.

III. Possession of a Controlled Substance

[14] To prove Eldridge committed the offense of possession of a controlled 

substance, the State had to demonstrate that he knowingly or intentionally 

possessed hydrocodone and/or oxycodone, both of which are schedule II 

controlled substances. Ind. Code § 35-48-4-7(a). Possession can be actual or 

constructive, Cannon v. State, 99 N.E.3d 274, 291 (Ind. Ct. App. 2018), trans. 

denied, and in this case, the State relied on Eldridge’s constructive possession of 

the hydrocodone and oxycodone. To prove constructive possession of 

controlled substances, the State must show that the defendant has both the 
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intent and the capability to maintain dominion and control over the drugs. 

Houston v. State, 997 N.E.2d 407, 410 (Ind. Ct. App. 2013). Where, as here, the 

defendant’s possession of the premises is not exclusive, the inference of intent to 

maintain dominion and control must be supported by additional circumstances 

pointing to the defendant’s knowledge of the nature and presence of the 

controlled substances. Id. Those additional circumstances can include:

(1) incriminating statements made 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.

Id.2 The capability prong can be satisfied by proof that the defendant is able to 

reduce the contraband to the defendant’s personal possession. Negash v. State, 

113 N.E.3d 1281, 1291 (Ind. Ct. App. 2018). 

[15] Eldridge had the capability to maintain dominion and control over the drugs 

because they were found on the truck’s bench seat next to where he had been 

sitting and were easily within his reach. Therefore, he had the ability to take 

the drugs into his personal possession. As for the intent to maintain dominion 

and control over the drugs, Deputy Farlow saw Eldridge take something from 

 

2 These circumstances are nonexhaustive; ultimately, the question is whether a reasonable fact-finder could 

conclude that the defendant knew of the nature and presence of the contraband. Johnson v. State, 59 N.E.3d 

1071, 1074 (Ind. Ct. App. 2016).
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his lap and act as though he were trying to hide it. The drugs were found in 

close proximity to where Eldridge had been sitting, in a truck which Eldridge 

had borrowed to use for work. Eldridge had allowed Lanum into the vehicle 

knowing she had “stuff” she wanted to get rid of. Tr., Vol. I at 166. And 

finally, Eldridge had other items in the vehicle that suggested knowledge of 

drug activity, including syringes, scales, and plastic bags of the type used to 

hold drugs. Based on this, we conclude there was substantial evidence of 

probative value from which the jury could have determined Eldridge had 

constructive possession of the drugs found in the vehicle. See, e.g., Holmes v. 

State, 785 N.E.2d 658, 662 (Ind. Ct. App. 2003) (holding that the State 

presented sufficient evidence to convict the defendant based in part on 

defendant’s close proximity to drugs found under the driver’s seat of a vehicle 

plus flight, an additional circumstance indicating knowledge).

Conclusion

[16] We conclude the State presented sufficient evidence to prove Eldridge was 

guilty of dealing in methamphetamine and possession of a controlled substance. 

However, because the State showed only one instance of use of the truck for a 

prohibited purpose, the State failed to prove that Eldridge maintained a 

common nuisance. Accordingly, Eldridge’s conviction for maintaining a 

common nuisance is reversed and we remand to the trial court to amend the 

abstract of judgment accordingly. Eldridge’s remaining convictions are 

affirmed.
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[17] Affirmed in part, reversed and remanded in part.

Riley, J., and Kirsch, J., concur.