A.P., Appellant-Defendant, v. STATE (2000)

MEMORANDUM DECISION

A.P. challenges the sufficiency of the evidence supporting his conviction for possession of marijuana,¹ a class A misdemeanor, following a bench trial. Specifically, he claims that the State failed to show that he had constructive possession of the marijuana found in the motel room that he and two other people occupied. Because the marijuana was found on a bedside table in plain view in the motel room and there was an odor of marijuana in the room, we conclude that there was sufficient evidence to support A.P.’s conviction. We affirm.

Facts and Procedural History

The facts most favorable to the judgment are that on March 1, 1999, a motel security officer received a report that some individuals were occupying room 120, which had not been rented. The security officer investigated and discovered three people in the room. The police were contacted and they arrived soon after. The police officers entered the room and smelled the odor of marijuana. They also observed in plain view, marijuana on a table located beside the bed. Record at 72. The three men inside the room, including A.P., were arrested. A.P. was charged with possession of marijuana and criminal trespass, a class A misdemeanor. Following a bench trial, A.P. was convicted of possession of marijuana and acquitted of criminal trespass. A.P. now challenges the sufficiency of the evidence supporting his conviction.

Discussion and Decision

When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor determine the credibility of the witnesses. Smith v. State, 678 N.E.2d 1152, 1155 (Ind. Ct. App. 1997), trans. denied. Instead, we look solely to the evidence most favorable to the judgment together with all reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of probative value to establish every material element of the offense beyond a reasonable doubt, we will not disturb the judgment. Griepenstroh v. State, 629 N.E.2d 887, 889 (Ind. Ct. App. 1994), trans. denied.

A.P. argues that the State was unable to prove that he constructively possessed the marijuana in question. In particular, A.P. argues that mere presence in a place where drugs are found is insufficient to support a finding of constructive possession.

To convict A.P. of possession of marijuana the State was required to prove that A.P. knowingly possessed marijuana. IND. CODE § 35-48-4-11. In the absence of actual possession, constructive possession may support a conviction. Goliday v. State, 708 N.E.2d 4, 7 (Ind. 1999). To prove constructive possession, the State must show that the defendant had (1) the intent to maintain dominion and control over the contraband, and (2) the ability to maintain dominion and control over the contraband. Id. at 6. A.P. challenges the intent element.

To prove intent, the State was required to establish A.P.’s knowledge of the presence of the contraband. “This knowledge may be inferred from either the exclusive dominion and control over the premises containing the contraband or, if the control is non-exclusive,² evidence of additional circumstances pointing to the defendant's knowledge of the presence of the contraband.” Taylor v. State, 482 N.E.2d 259, 261 (Ind. 1985) (quoting Woods v. State, 471 N.E.2d 691, 694 (Ind. 1984)), reh'g denied. Here, because A.P.’s control of the motel room was non-exclusive the State was required to present additional circumstances that may support an inference of knowledge. Additional circumstances which support an inference of knowledge include incriminating statements by the defendant, attempted flight or furtive gestures, a manufacturing setting, proximity of the defendant to the drugs, drugs that are in plain view, and the location of contraband in close proximity to items owned by the defendant. Everroad v. State, 570 N.E.2d 38, 53 (Ind. Ct. App. 1991), rev'd on other grounds, 590 N.E. 2d 567 (Ind. 1992), reh'g denied.

In this case one of the police officers testified that she smelled marijuana when she entered the room and that the marijuana was in plain view on a bedside table. Also, the laboratory reports indicated that the marijuana weighed a total of 4.3 grams, an amount large enough to be seen by the defendant. Nonetheless, A.P. argues this evidence is not sufficient because the “State did not present evidence showing how close Appellant was to the marijuana or where he was standing when the security officer or police entered Room 120.” Appellant's Brief at 4. Additionally, A.P. argues that the “State did not present evidence the marijuana was in Appellant's plain view.” Appellant's Brief at 4. A.P.’s argument fails. The police officer testified that the room was a standard motel room. Record at 77. This evidence, coupled with evidence of the odor of marijuana plus the drugs being in plain view, supports an inference of intent to control the contraband. Thus, the trial court could reasonably have concluded that the State produced sufficient evidence to establish the required element of intent. A.P.’s conviction for possession of marijuana is affirmed.

Judgment affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-11.

2.   A.P. also argues that because he was charged with trespass he “did not have a possessory interest” in the room and, therefore, the State cannot rely on the possessory interest to infer intent to maintain dominion and control over the contraband. Appellant's Brief at 3. First, we note that we need not address this argument because the inference to which A.P. refers is applied only if possession is exclusive. See Goliday, 708 N.E.2d at 6. Additionally, although A.P. was charged with trespass, he was eventually acquitted of that charge. Finally, just because a person occupies a space unlawfully does not mean he does not have a possessory interest for purposes of constructive possession.

VAIDIK, Judge

SULLIVAN, J., and BAILEY, J., concur.