Court of Appeals of Indiana | Memorandum Decision 19A-CR-960 | December 4, 2019 Page 1 of 8

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

William T. Myers

Whitehurst & Myers

Marion, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Nicholous L. Finton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 4, 2019

Court of Appeals Case No.

19A-CR-960

Appeal from the Huntington 

Superior Court

The Honorable Jennifer E. 

Newton, Judge

Trial Court Cause No.

35D01-1812-F6-310

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-960 | December 4, 2019 Page 2 of 8

STATEMENT OF THE CASE

[1] Appellant-Defendant, Nicholous Finton (Finton), appeals his conviction for 

possession of methamphetamine, a Level 6 felony, I.C. § 35-48-4-6.1(a);

domestic battery, a Level 6 felony, I.C. § 35-42-2-1.3(b)(1); and possession of 

paraphernalia, a Class C misdemeanor, Ind. Code § 35-48-4-8.3(b). 

[2] We affirm.

ISSUE

[3] Finton raises one issue on appeal which we restate as: Whether there was 

sufficient evidence to support Finton’s two possession convictions beyond a 

reasonable doubt.

FACTS AND PROCEDURAL HISTORY

[4] Around Thanksgiving of 2018, Finton moved into his girlfriend’s, Casey Fisher 

(Fisher), apartment in Huntington, Indiana. On December 26, 2018, at around 

2:00 a.m., Finton was searching for his methamphetamine, and “he was 

blaming [Fisher] for hiding them because he couldn’t find them.” (Transcript p. 

58). Fisher helped him look for the methamphetamine, and she eventually 

came across a pipe in the bathroom. Fisher went to bed while Finton went to 

the bathroom with the pipe.

[5] When Fisher woke up that afternoon around 3:00 p.m., she noticed that all of 

her money and credit cards were missing from her wallet. Fisher went to the 

living room and confronted Finton, who was sitting on the couch, and an 
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argument ensued. Fisher left the apartment for about an hour to get a fountain 

drink, and, when she returned, she informed Finton that he had to move out of 

the apartment. Finton became angry, knocked the drink out of Fisher’s hand, 

and threw her up against the bedroom wall. Finton then came up behind Fisher 

and “put [her] in a choke hold.” (Tr. p. 63). The two eventually fell onto the 

bed, and Finton started “pushing [Fisher’s] face into the mattress.” (Tr. p. 64). 

After Finton released Fisher from his hold, Fisher went to a neighbor’s home 

and called the police.

[6] Fisher was waiting outside the apartment when Officer Darius Hillman (Officer 

Hillman) arrived. Officer Hillman knocked on the apartment door and told 

Finton to come outside. Finton eventually opened the apartment door and let 

Officer Hillman inside. Officer Hillman noticed that Finton was intoxicated 

because he was sweating profusely, had dilated pupils, and could not stand still. 

Upon entering the apartment, Officer Hillman placed Finton in handcuffs and 

conducted a pat down of his person. Officer Hillman then noticed an open tin 

with a glass pipe and hollowed-out pen tubes sitting in plain view in the living 

room, which prompted Officer Hillman to place Finton in the back of his police 

vehicle and ask Fisher for consent to search the apartment. After Fisher signed 

a Consent to Search of Premises form, Officer Hillman took pictures of the 

living room and Fisher’s injuries. Officer Hillman then collected the glass pipe 

and pen tubes with residue on them as evidence, which later tested positive for 

methamphetamine. In the bedroom, Officer Hillman looked inside Fisher’s 
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dresser drawer and found a foil ball and a hollowed-out pen tube with a residue

on it. Fisher was transported to the hospital and Finton was taken into custody.

[7] On December 27, 2018, the State filed an Information, initially charging Finton 

with strangulation, a Level 6 felony; domestic battery with a prior conviction, a 

Level 6 felony; and possession of paraphernalia, a Class C misdemeanor. On 

February 15, 2019, the State filed another Information, charging Finton with 

possession of methamphetamine, a Level 6 felony. On March 7, 2019, a jury 

trial was conducted. During the trial, Fisher testified that Finton “usually sat in 

the corner of the couch” and was sitting on the couch in the living room when 

she confronted him about her missing money and credit cards. (Tr. p. 61). 

During her testimony, Fisher also admitted that both she and Finton used the 

pipe and the hollowed-out pens, but that Finton used them more. At the close 

of the evidence, Finton was found guilty of possession of methamphetamine, 

possession of paraphernalia, and domestic battery as a Class A misdemeanor. 

Finton admitted to having a prior conviction for domestic battery, enhancing

his battery conviction to a Level 6 Felony. On April 2, 2019, Finton was 

sentenced to two years in Indiana Department of Correction and ordered to pay 

restitution of $3,395.33 for Fisher’s medical bills.

[8] Finton now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[9] Our standard of review with regard to sufficiency claims is well-settled. In 

reviewing a sufficiency of the evidence claim, this court does not reweigh the 
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evidence or judge the credibility of the witnesses. Agilera v. State, 862 N.E.2d 

298, 306 (Ind. Ct. App. 2007) trans. denied. We will consider only the evidence 

most favorable to the judgment and the reasonable inferences drawn therefrom 

and will affirm if the evidence and those inferences constitute substantial 

evidence of probative value to support the judgment. Id. A conviction may be 

based upon circumstantial evidence alone. Id. Reversal is appropriate only 

when reasonable persons would not be able to form inferences as to each 

material element of the offense. Abney v. State, 822 N.E.2d 260, 264 (Ind. Ct. 

App. 2005).

[10] Finton asserts that there was insufficient evidence to support his conviction for 

possession of methamphetamine and possession of paraphernalia. He bases 

this assertion on the incorrect assumption that his charges stemmed from the 

paraphernalia and methamphetamine — the foil ball with residue on it — found 

in the dresser drawer in the bedroom. For Finton’s conviction, however, the 

State relied only on evidence of the living room drugs at trial and in its 

argument. These were the only items tested and submitted as evidence during 

the trial. Since Finton’s conviction was based on those items, our review is 

limited to those items.

[11] A person who, without a valid prescription or order of a practitioner acting in 

the course of the practitioner’s professional practice, knowingly or intentionally 

possesses methamphetamine (pure or adulterated) commits possession of 

methamphetamine, a Level 6 felony. I.C. § 35-48-4-6.1(a). A person who 

knowingly or intentionally possesses an instrument, a device, or another object 
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that the person intends to use for introducing into the person’s body a 

controlled substance commits possession of paraphernalia, a Class C 

misdemeanor. I.C. § 35-48-4-8.3(b)(1). Since no paraphernalia or 

methamphetamine was found on Finton’s person, the State was required to

establish that Finton had constructive possession of the contraband. 

“Constructive possession occurs when a person has: (1) the capability to 

maintain dominion and control over the item; and (2) the intent to maintain 

dominion and control over it.” Canfield v. State, 128 N.E.3d 563, 572 (Ind. 

2019). 

[12] The capability element of constructive possession is met when the State shows 

that the defendant is able to reduce the contraband to the defendant’s personal 

possession. Id. The proof of a possessory interest in the premises on which 

illegal drugs are found is adequate to show the capability to maintain dominion 

and control over the items in question. Cannon v. State, 99 N.E.3d 274, 279 

(Ind. Ct. App. 2018), trans. denied. Finton lived in Fisher’s apartment where the 

contraband was found. Therefore, he had access to the contraband and was 

able to possess it. This satisfies the capability element. 

[13] The intent element of constructive possession is shown by the defendant’s 

knowledge of the presence of the contraband. Canfield, 128 N.E.3d at 572. 

Knowledge can be demonstrated through exclusive or non-exclusive dominion 

and control over the premises that houses the contraband. Id. When, as here,

possession of the premises is non-exclusive, the inference can only be made 

through additional circumstances which indicate the knowledge of the presence 
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of the contraband and the ability to control it. Id. “These additional 

circumstances may include: (1) a defendant’s incriminating statements; (2) a 

defendant’s attempting to leave or making furtive gestures; (3) the location of 

contraband, [ ] such as drugs, in settings suggesting manufacturing; (4) the 

item’s proximity to the defendant; (5) the location of contraband within the 

defendant’s plain view; and (6) the mingling of contraband with other items the 

defendant owns.” Id. at 572-73. 

[14] In this case, the contraband was found near a place Finton usually sits and 

within close proximity of some of his belongings. During Finton’s formal 

interview with Officer Hillman, Finton stated he had been living with Fisher for 

a month and that “he isolates himself in [the] corner of the couch next to his 

laptop.” (Tr. p. 105). When Officer Hillman first noticed the contraband, he 

observed that it was located next to a black end table with Finton’s laptop on it 

at the end of the couch. This was the specific area that Finton said he isolates 

himself, and it was in close proximity to his laptop. During Fisher’s testimony, 

she identified a photograph of a basket in the living room “that [she] asked 

[Finton] to start putting his stuff in cause [sic] [she] was tired of cleaning up 

after him.” (Tr. p. 66). This basket was located on the floor next to the corner 

of the couch that Finton usually sits on. It was also the basket where the tin full 

of paraphernalia was found. When Fisher was asked to identify the items in the 

tin during her testimony, she identified the pipe, the two hollowed-out pens, 

and “[Finton’s] gum” as all being in the tin together. (Tr. p. 75). Fisher’s 

testimony establishes Finton’s items in close proximity to the contraband. 
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Given these additional circumstances, the fact-finder can infer that Finton had 

knowledge of the presence of the contraband and the ability to control it, thus 

proving the intent element of constructive possession. Therefore, the State 

established that Finton constructively possessed both methamphetamine and 

paraphernalia.

CONCLUSION

[15] Based on the foregoing, we hold that the State did provide sufficient evidence

beyond a reasonable doubt to support Finton’s conviction for possession of 

paraphernalia and possession of methamphetamine.

[16] Affirmed.

[17] Vaidik, C. J. and Bradford, J. concur