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

Barbara J. Simmons

Oldenburg, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl M. Scharnberg

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Donald Sample,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 25, 2015

Court of Appeals Case No.

49A02-1503-CR-141

Appeal from the Marion Superior 

Court.

The Honorable Jose Salinas, Judge.

The Honorable John Alt, Magistrate.

Cause No. 49G14-1408-F6-39902

Shepard, Senior Judge

[1] A police officer stopped Sample’s car for changing lanes without signaling. 

During a search of the car, the officer discovered a pipe and a bag of 

methamphetamine. Sample appeals his convictions of possession of 

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 1 of 6
paraphernalia, a Class A misdemeanor,1

and possession of methamphetamine, 

a Class A misdemeanor.2

 We affirm.

Issue

[2] Sample contends there is insufficient evidence to support his convictions.

Facts and Procedural History

[3] On the morning of August 13, 2014, Sample drove his girlfriend to work in her 

car. Next, he drove to an auto parts store to purchase items for maintenance on 

the car, and then he went to a friend’s house. Sample worked on the car at his 

friend’s house until 4:30 p.m., when he left to pick up his girlfriend.

[4] At the same time, Officer Jovan Lopez of the Indianapolis Metropolitan Police 

Department was driving on the west side of Indianapolis. He changed lanes 

and drove behind Sample’s car. Officer Lopez observed Sample change lanes 

without signaling.

[5] Officer Lopez stopped Sample’s car. Sample was the only occupant. As 

Officer Lopez sat in his car, he watched Sample make “furtive movements,”

including turning around to reach towards the back seat of the car. Tr. p. 21. 

Lopez called for backup. When another officer arrived, Officer Lopez 

approached the driver’s side window while the other officer walked up to the 

1 Ind. Code § 35-48-4-8.3 (2014).

2 Ind. Code § 35-48-4-6.1 (2014).

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 2 of 6

 
passenger side. He asked Sample for a driver’s license and registration, and 

Sample said he did not have any identification.

[6] Sample seemed “extremely nervous” because he would not look at Officer 

Lopez, his hands trembled, and his voice seemed shaky. Id. at 22. Officer 

Lopez saw tools on the car’s back seat. After confirming Sample’s identity with 

the dispatcher, Officer Lopez asked Sample to step out of the car and requested

consent to search the car. Sample consented. During the search, Lopez found 

a pipe between the front passenger seat and the center console. The pipe 

contained traces of meth. Officer Lopez also found a small bag of what was 

later identified as meth on the car’s floorboard, behind the driver’s seat.

[7] The State filed three charges: possession of meth, possession of paraphernalia, 

and driving while suspended. After a bench trial, the court determined that 

Sample was guilty of possession of methamphetamine and possession of 

paraphernalia, but not guilty of driving while suspended. The court imposed

alternative misdemeanor sentencing for possession of meth and entered a 

sentence.

Discussion and Decision

[8] Sample does not dispute that Officer Lopez found methamphetamine and a 

pipe in the car he was driving. Instead, Sample says the State failed to prove 

that he possessed those items.

[9] When reviewing a sufficiency challenge, we do not reweigh the evidence or 

judge the credibility of the witnesses. Hampton v. State, 873 N.E.2d 1074 (Ind. 

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 3 of 6
Ct. App. 2007). We instead look to the evidence and the reasonable inferences 

that support the verdict. Id. We will affirm unless no reasonable fact-finder 

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

State, 865 N.E.2d 639 (Ind. Ct. App. 2007), trans. denied.

[10] To obtain a conviction of possession of meth, the State was required to prove 

beyond a reasonable doubt that Sample (1) knowingly or intentionally (2) 

possessed methamphetamine (3) without a valid prescription or order of a 

practitioner. Ind. Code § 35-48-4-6.1. As for possession of paraphernalia, the 

State was required to prove beyond a reasonable doubt that Sample (1) 

knowingly or intentionally (2) possessed a raw material, instrument, device, or 

other object (3) that the person intends to use (4) for introducing a controlled 

substance into the person’s body. Ind. Code § 35-48-4-8.3.

[11] A conviction for possession of contraband does not require catching a 

defendant red-handed. Gray v. State, 957 N.E.2d 171 (Ind. 2011). Instead, 

when the State cannot show actual possession, a conviction for possessing 

contraband may rest on proof of constructive possession. Id. Constructive 

possession will support a conviction if the State shows that the defendant had 

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

contraband. Mitchell v. State, 745 N.E.2d 775 (Ind. 2001).

[12] To prove the intent element, the State must establish the defendant’s knowledge 

of the possession of the contraband. Wilson v. State, 966 N.E.2d 1259 (Ind. Ct. 

App. 2012), trans. denied. When a defendant exercises non-exclusive control 

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 4 of 6
over the location where contraband is found, intent to maintain dominion and 

control may be inferred from additional circumstances that indicate that the 

defendant knew of the presence of the contraband. Allen v. State, 787 N.E.2d 

473 (Ind. Ct. App. 2003), trans. denied. The circumstances may include: (1) a 

defendant’s incriminating statements; (2) a defendant’s attempting to leave or 

making furtive gestures; (3) the item’s proximity to the defendant; (4) the 

location of contraband within the defendant’s plain view; and (5) the mingling 

of contraband with other items the defendant owns. Gray, 957 N.E.2d 171.

[13] Sample was driving his girlfriend’s car when Officer Lopez stopped him. No 

one else was in the car, and Sample had possessed the car all day long. When 

Sample stopped the car, he made furtive gestures in the car, including reaching 

back toward the area where the meth was found. Officer Lopez thought that 

Sample appeared to be very nervous because Sample would not look him in the 

eyes and had shaky hands and a shaky voice. In addition, the pipe was found

near Sample’s seat, within his reach. The bag of meth was in plain view on the 

floorboard behind Sample’s seat, and Sample’s tools were on the back seat of 

the car, near the bag of meth.

[14] The State presented sufficient evidence from which the trial court could have 

concluded beyond a reasonable doubt that Sample was aware of the presence of 

the pipe and the meth and intended to maintain control over them. See Goliday 

v. State, 708 N.E.2d 4 (Ind. 1999) (evidence sufficient to prove constructive 

possession where defendant had exclusive control over a car he had borrowed, 

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 5 of 6
and contraband was found near the defendant’s personal items). Sample’s 

arguments to the contrary are requests to reweigh the evidence.

Conclusion

[15] For the foregoing reasons, we affirm the judgment of the trial court.

[16] Affirmed.

Bailey, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-141 | November 25, 2015 Page 6 of 6