Virginia I. Asher, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] On November 4, 2024, Virginia Asher was determined to be squatting in a duplex owned by Brian Heim. After Asher had failed to vacate the duplex as instructed by law enforcement, she was charged with Level 5 felony burglary, Level 5 felony possession of cocaine, Level 6 felony theft, and Class A misdemeanor criminal trespass. The theft and burglary charges were subsequently dismissed, and, after a jury trial, Asher was found guilty of Level 5 felony possession of cocaine and Class A misdemeanor criminal trespass. The trial court sentenced Asher to an aggregate four-year sentence, with one year executed in the Department of Correction (“DOC”), one year executed on community corrections, and two years suspended to probation. Asher contends that the evidence is insufficient to sustain her conviction for Level 5 felony possession of cocaine. We affirm.

Facts and Procedural History

[2] Heim owned a duplex consisting of two units, Unit 312 and Unit 314, on North Grant Avenue in Indianapolis. At all times relevant to the instant appeal, Heim had not been living in the duplex but rather had been residing in Florida. Heim reported squatters at the duplex to the Indianapolis Metropolitan Police Department (“IMPD”) on January 3, and October 23, 2024. IMPD Detective Steven Jones spoke with Heim on October 28, 2024 and verified his ownership of the property.

[3] Detective Jones first visited the duplex on October 31, 2024. Upon arriving at the residence, Detective Jones observed, but did not speak with, “a female leaving out the back door that matched [Asher's] description.” Tr. Vol. II p. 151. Detective Jones encountered “one person in [Unit] 314, and ․ three people in [Unit 312]” and informed them that they had to vacate the duplex. Tr. Vol. II p. 151.

[4] Detective Jones returned to the residence on November 4, 2024, at which time Asher answered the door to Unit 314. Detective Jones “explained to [Asher] that she was not the property owner. She did not have a valid reason to be there anymore or live there, and she needed to vacate.” Tr. Vol. II p. 156. Asher “wasn't very receptive to that. She had replied that she was allowed to be there. She had paid property taxes, she had been there for over a year. She had cleaned up the place, kind of justifying her residency, why she could stay.” Tr. Vol. II p. 157. The police report from Heim's first report of squatters at the duplex linked Asher to the property, corroborating her claim of months-long residency.

[5] Detective Jones called Heim who spoke to Asher “with speaker phone ․ about residency.” Tr. Vol. II pp. 157–58. Detective Jones

advised [Asher that] she didn't have a legal standing or legal right to be in the residence. She needed to vacate and explained to her that she was not the property owner and gave her notice that if she's caught back in later at the residence, she'd be subject to arrest and documented the trespass.

Tr. Vol. II p. 159. Detective Jones planned to “give [Asher] a couple days’ notice to get whatever property she did have, and then go back out to the residence and check to see if she was still there.” Tr. Vol. II p. 159.

[6] Detective Jones again returned to the duplex on November 6, 2024, with IMPD Officer Jeremiah Heckel and IMPD Sergeant Chad Osborne. When they arrived, Asher “was on the front porch with another individual identified as Kevin Price.”¹ Tr. Vol. II p. 160. “Officer Heckel detained [Asher] and placed her in handcuffs.” Tr. Vol. II p. 160. During a search incident to her arrest, Asher was found to be “in possession of keys to both residences.” Tr. Vol. II p. 161. Detective Jones, who had been granted permission to search the duplex by Heim, conducted a protective sweep of both units “to make sure there's no one else inside[.]” Tr. Vol. II p. 161. “[T]here was no one else inside” but “there was a dog in [Unit] 314.” Tr. Vol. II p. 161. At that time, Asher “was going to be subject to arrest for trespass [and] ․ transported to jail.” Tr. Vol. II p. 162. The officers allowed Asher to call her father to retrieve the dog so that it would not have to be taken to animal control.

[7] When her father arrived, Asher asked him to retrieve “a cage and some dog food” for the dog. Tr. Vol. II p. 163. She also requested that her father “go up into her upstairs bedroom and peel the bed covers off corner by corner to wrap everything up so she would have some clothes.” Tr. Vol. II p. 163. Detective Jones “thought that was a very odd and specific request.” Tr. Vol. II p. 163. Instead of allowing Asher's father to enter the duplex, Detective Jones and Officer Heckel entered Unit 314, “located dog food, ․ went upstairs to [Asher's] bedroom, located the dog cage, and saw some narcotics and paraphernalia in plain view on the bed.” Tr. Vol. II p. 163. The bedroom matched the location indicated by Asher and contained women's clothing and a hair dryer. Detective Jones observed a white powdery substance inside a plastic baggie, what looked like a glass pipe for smoking narcotics, and a butane torch in plain view, “just laying out on the bed.” Tr. Vol. II p. 164. Detective Jones and Officer Heckel also observed a firearm located “a few feet from the narcotics and paraphernalia” under a towel and a pair of women's blue jeans on the bed. Tr. Vol. II p. 165. The firearm had “a pink frame with ․ a black slide, so [a] pink and black semi-automatic firearm.” Tr. Vol. II p. 166.

[8] On November 8, 2024, the State charged Asher with Level 5 felony burglary, Level 5 felony possession of cocaine, Level 6 felony theft, and Class A misdemeanor criminal trespass. On January 20, 2026, the Stated alleged that Asher is a habitual offender. Eight days later, the State moved to dismiss the burglary and theft charges. The trial court granted the State's motion and dismissed the charges. The case proceeded to a bifurcated jury trial on the remaining charges and the habitual-offender allegation.

[9] Following the conclusion of the presentation of the evidence, the jury found Asher guilty of Level 5 felony possession of cocaine and Class A misdemeanor criminal trespass. The jury then found that Asher did not qualify as a habitual offender. On the possession and trespass charges, the trial court sentenced Asher to an aggregate four-year term, with one year executed in the DOC, one year executed in community corrections, and two years suspended to probation.

Discussion and Decision

[10] Asher contends that the evidence is insufficient to sustain her conviction for Level 5 felony possession of cocaine.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (internal brackets, citations, emphasis, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, “we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility” and “affirm the judgment unless no reasonable factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016).

[11] A person who knowingly or intentionally possesses cocaine “commits possession of cocaine ․, a Level 6 felony[.]” Ind. Code § 35-48-4-6(a). However, “[t]he offense is a Level 5 felony if ․ the amount of the drug involved is less than five (5) grams and an enhancing circumstance applies.” Ind. Code § 35-48-4-6(b)(2). The term enhancing circumstance includes the fact that “[t]he person committed the offense while in possession of a firearm.” Ind. Code § 35-48-1.1-18(2).

[12] Asher claims that the evidence is insufficient to prove that she possessed the cocaine and firearm in question. “Possession can be either actual or constructive.” Wilson v. State, 221 N.E.3d 667, 676 (Ind. Ct. App. 2023). “Actual possession occurs when a person has direct physical control over an item. 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.” Young v. State, 244 N.E.3d 950, 963 (Ind. Ct. App. 2024) (internal quotation omitted), trans. denied. This case involves constructive possession, as Asher did not have direct physical control over the cocaine and firearm at the time of her arrest. As such, the State had to prove that Asher “had both the intent and the capability to maintain dominion and control over the contraband.” Wilson, 221 N.E.3d at 676.

[13] “The capability requirement is met when the state shows that the defendant is able to reduce the controlled substance to the defendant's personal possession.” Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) (internal citation omitted).

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. In essence the law infers that the party in possession of the premises is capable of exercising dominion and control over all items on the premises.

Gee v. State, 810 N.E.2d 338, 340–41 (Ind. 2004) (internal citation omitted). Moreover,

[a] jury may infer that a defendant had the intent to maintain dominion and control over contraband from the defendant's possessory interest in the premises, even when that possessory interest is not exclusive. If the defendant's possessory interest is not exclusive, however, the State must support this inference with additional circumstances pointing to the defendant's knowledge of the presence and the nature of the item.

Wilson, 221 N.E.3d at 676. Such 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 like 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.

Gray v. State, 957 N.E.2d 171, 175 (Ind. 2011) (internal citation omitted).

[14] The evidence is sufficient to sustain the jury's determination that Asher constructively possessed the cocaine and firearm. When Detective Jones, Officer Heckel, and Sergeant Osborn arrived at the duplex on November 6, 2024, Asher “was on the front porch with another individual identified as Kevin Price.” Tr. Vol. II p. 160. None of the law enforcement officers observed Price go into either of the units and Asher was found to be “in possession of keys to both” units. Tr. Vol. II p. 161. Detective Jones completed a protective sweep of the units and discovered that there was no one else inside the duplex but “there was a dog in [Unit] 314.” Tr. Vol. II p. 161. Asher claimed ownership of the dog and, with the officers’ permission, called her father to retrieve the dog so that it would not have to be taken to animal control.

[15] Asher indicated that the dog's cage was located in her upstairs bedroom and requested that her father “go up into her upstairs bedroom and peel the bed covers off corner by corner to wrap everything up so she would have some clothes.” Tr. Vol. II p. 163. Again, Detective Jones “thought that was a very odd and specific request.” Tr. Vol. II p. 163. When Detective Jones and Officer Heckel entered a bedroom matching Asher's description, they observed women's clothing, a white powdery substance inside a plastic baggie, what looked like a glass pipe for smoking narcotics, and a butane torch in plain view, “just laying out on the bed.” Tr. Vol. II p. 164. They also observed a firearm located “a few feet from the narcotics and paraphernalia” under a towel and a pair of women's blue jeans on the bed. Tr. Vol. II p. 165. There was only one room in Unit 314 with a bed and clothing, and it matched Asher's description of the location of her bedroom.

[16] The evidence supports the reasonable inference that Asher was the only occupant of Unit 314 on November 6, 2024. Even if it were not, we conclude that the additional circumstances support the jury's determination that Asher had constructively possessed the contraband. Again, Asher requested that her father “go up into her upstairs bedroom and peel the bed covers off corner by corner to wrap everything up so she would have some clothes.” Tr. Vol. II p. 163. The jury could reasonably infer from this incriminating statement that Asher knew there was contraband located on the bed and wanted her father to remove it before law enforcement found it. In addition, the cocaine and firearm were located in plain sight intermingled with items that Asher claimed to have owned. We conclude that the evidence is sufficient to prove that Asher constructively possessed the cocaine and firearm. Her argument to the contrary amounts to nothing more than a request to reweigh the evidence, which we will not do. See Griffith, 59 N.E.3d at 958.

[17] The judgment of the trial court is affirmed.

FOOTNOTES

1.   Throughout their encounter, it became apparent to Detective Jones that Price “more than likely suffered from a traumatic brain injury [and j]ust didn't quite comprehend the totality of everything.” Tr. Vol. II p. 186. None of the law enforcement officers observed Price enter the residence and he was permitted to leave and was not arrested.

Bradford, Judge.

Bailey, J., and Altice, J., concur.