Shalee C. Dowell v. State of Indiana

                                                                                        FILED
                                                                                   Oct 23 2020, 10:13 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                      Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                    Attorney General of Indiana
Brooklyn, Indiana
                                                           Tiffany A. McCoy
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Shalee C. Dowell,                                          October 23, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-2623
        v.                                                 Appeal from the Perry Circuit
                                                           Court
State of Indiana,                                          The Honorable Karen Werner,
Appellee-Plaintiff                                         Special Judge
                                                           Trial Court Cause No.
                                                           62C01-1805-F2-361



May, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020                       Page 1 of 6
[1]   Shalee C. Dowell appeals her conviction of Level 6 felony maintaining a

      common nuisance. 1 She presents two issues for our review, one of which we

      find dispositive: whether the State presented sufficient evidence to prove Dowell

      committed Level 6 felony maintaining a common nuisance. We reverse and

      remand.



                                Facts and Procedural History
[2]   On May 2, 2018, officers initiated a traffic stop on a gold Oldsmobile Alero

      after observing the vehicle drive “left of center.” (Tr. Vol. II at 34.) Three

      people were in the car. Dowell was the driver, and the passengers were

      Christopher Wiseman and James Tucker. The officers decided to remove all of

      the vehicle’s occupants in order to conduct a K9 open air sniff of the vehicle.

[3]   When Dowell exited the vehicle, Officer Jason Shadwick noticed she was

      acting “unusually nervous.” (Id. at 157.) While Officer Shadwick was handing

      Dowell’s driver’s license and registration to another officer, he noticed her

      “trying to place a stainless vial into the back of her pants.” (Id. at 160.) Officer

      Shadwick intercepted the vial because “[t]hrough [his] years and experience,

      those are commonly used for controlled substances.” (Id. at 161.) Officer

      Shadwick also removed a cell phone from Dowell’s back pocket.




      1
          Ind. Code § 35-45-1-5(c).


      Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020        Page 2 of 6
[4]   Next, Officer Daymion Marsh went to the passenger side of the car and asked

      Tucker to exit the vehicle. When Tucker did so, Officer Marsh observed a

      “[c]lear Ziploc bag containing several other Ziploc bags . . . [that] contained a

      crystal substance” on the passenger floorboard of the vehicle. (Id. at 39.)

      Officer Marsh testified that, based on his training and experience, the packaging

      and quantity indicated the substance was prepared for “[d]ealing purposes.”

      (Id. at 42.) The substance was later tested and determined to be 16 grams of

      methamphetamine, in individual portions of 2.83-3.55 grams. Officers arrested

      Dowell, Tucker, and Wiseman.

[5]   On May 6, 2018, the State charged Dowell with Level 2 felony dealing in

      methamphetamine, 2 Level 4 felony possession of methamphetamine, 3 and

      Level 6 felony maintaining a common nuisance. On May 18, 2018, Dowell

      called her sister and asked her to remove a bong, electronic scales, and a glass

      beaker from specific places in the family’s house and to put those items in a

      Wal-Mart bag. At Dowell’s direction, Dowell’s sister and mother then “went

      on a road trip and . . . ended up discarding the items on the side of the road in

      Tilden’s Court.” (Tr. Vol. III at 10.) Based on that incident, the trial court

      granted the State’s motion to also charge Dowell with Level 6 felony

      obstruction of justice. 4




      2
          Ind. Code § 35-48-4-1(e).
      3
          Ind. Code § 35-48-4-6(c).
      4
          Ind. Code § 35-44.1-2-2(a).


      Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020       Page 3 of 6
[6]   After a three-day jury trial commencing on August 29, 2019, the jury found

      Dowell guilty as charged. On October 11, 2019, the court entered convictions

      of Level 2 felony dealing of methamphetamine, Level 6 felony maintaining a

      common nuisance, and Level 6 felony obstruction of justice. The trial court

      merged the Level 4 felony possession of methamphetamine conviction with the

      dealing conviction based on double jeopardy concerns. The trial court

      sentenced Dowell to twenty years for Level 2 felony dealing in

      methamphetamine, one-and-one-half years for Level 6 felony maintaining a

      common nuisance, and one-and-one-half years for Level 6 felony obstruction of

      justice. The trial court ordered the sentences to be served consecutive to one

      another for an aggregate sentence of twenty-three years.



                                  Discussion and Decision
[7]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

      fact-finder’s role, and not ours, to assess witness credibility and weigh the

      evidence to determine whether it is sufficient to support a conviction. Id. To

      preserve this structure, when we are confronted with conflicting evidence, we

      consider it most favorably to the fact-finder’s decision. Id. We affirm a

      conviction unless no reasonable fact-finder could find the elements of the crime

      proven beyond a reasonable doubt. Id. It is therefore not necessary that the

      evidence overcome every reasonable hypothesis of innocence; rather, the


      Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020        Page 4 of 6
      evidence is sufficient if an inference reasonably may be drawn from it to support

      the fact-finder’s decision. Id. at 147.


[8]   To prove Dowell committed Level 6 felony maintaining a common nuisance,

      the State had to present evidence that she knowingly and intentionally

      maintained a building, structure, vehicle, or other place to unlawfully use,

      manufacture, keep, offer for sale, sell, deliver, or finance the delivery of a

      controlled substance. See Ind. Code § 35-45-1-5(a) (definition of common

      nuisance) & Ind. Code § 35-45-1-5(c) (elements of Level 6 felony maintaining a

      common nuisance). “[T]he term ‘common nuisance’ as used in the statute

      requires proof of a continuous or recurrent violation.” Zuniga v. State, 815

      N.E.2d 197, 200 (Ind. Ct. App. 2004). Dowell argues the State did not prove

      that she used her vehicle more than one time to possess or deal

      methamphetamine.

[9]   The State contends it presented evidence that Dowell committed Level 6 felony

      maintaining a common nuisance because she sent and received several text

      messages from April 30, 2018, to May 2, 2018, which were related to dealing

      illegal drugs. Dowell sent and received multiple text messages in that time

      frame about the prices of certain drugs and details on how she would meet

      multiple people in various locations to deliver or pick up those drugs. In all of

      the messages, Dowell mentions the gold Alero once, in a text message on May

      2, 2018, stating, “My car got repoed so I’ll be in a gold alero.” (State’s Ex. 50.)




      Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020        Page 5 of 6
[10]   Officers pulled over and arrested Dowell sometime on May 2, 2018. While the

       messages suggest that she participated in multiple drug transactions, it is not

       clear from those messages what vehicle, if any, she was driving to complete

       those transactions. Therefore, the State proved Dowell used the gold Alero

       only on May 2, 2018, to transport drugs for sale. That single instance of use is

       not sufficient to prove Dowell committed Level 6 felony maintaining a

       common nuisance. See Leatherman v. State, 101 N.E.3d 879, 884 (Ind. Ct. App.

       2018) (State did not prove Leatherman committed Level 6 felony maintaining a

       common nuisance because it did not present evidence that he used the vehicle

       more than one time to commit Level 6 felony possession of methamphetamine).



                                                Conclusion
[11]   The State did not prove Dowell used the Alero more than once to commit a

       crime, and therefore it did not present sufficient evidence she committed Level

       6 felony maintaining a common nuisance. Accordingly, we vacate her

       conviction of and sentence for that offense.

[12]   Reversed and Remanded.

       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2623 | October 23, 2020      Page 6 of 6

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