FILED 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 Mar 29 2012, 9:25 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER Marion Co. Public Defender Attorney General of Indiana Indianapolis, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DEJUAN PARKER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1106-CR-557 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jose D. Salinas, Judge Cause No. 49G14-1006-FD-46934
March 29, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Appellant-defendant Dejuan Parker appeals his conviction for Possession of
Marijuana,1 a class D felony. Specifically, Parker argues that the evidence is insufficient
to prove that he possessed a baggie of marijuana. Finding that the trial court, as the fact
finder, could reasonably conclude that Parker was in possession of the marijuana, we
affirm.
FACTS
On June 13, 2010, Indianapolis Metropolitan Police Department (IMPD) Officer
Jerome Harrison was in an unmarked car engaged in the surveillance of a gas station at
30th Street and Keystone Avenue. Officer Harrison noticed as three men—Parker,
Shawn Campbell, and Julius Doulas—jaywalked across Keystone toward the gasoline
station.
At some point, a blue Cadillac pulled into the gas station parking lot. Campbell
got into the back seat but exited it in less than one minute. Suspecting narcotics activity,
Officer Harrison followed the Cadillac as it drove west on 30th Street. Other undercover
officers detained Parker, Campbell, and Doulas at the scene for jaywalking.
Officer Derek Jackson detained the three men and informed them of their Miranda
rights. Officer Jackson and another officer separated the three men, patted them down for
weapons, and questioned them. The three men were placed at different locations around
one of the police cars. Parker was “at the tire,” while Campbell and Doulas were “at the
bumper” and “on the other side of the bumper.” Tr. p. 35.
1 Ind. Code § 35-48-4-11. 2 Although Parker was in handcuffs, Officer Jackson noticed a small bag of
marijuana on the ground “at the feet of [Mr.] Parker . . . right next to [him].” Tr. p. 19.
No marijuana had been noticed prior to that time. The substance subsequently tested
positive for 2.70 grams of marijuana.
Parker was arrested and charged with possession of marijuana as a class D felony
because he had a prior conviction for that offense. Following a bench trial on March 24,
2011, Parker was found guilty as charged. Thereafter, he was sentenced to 365 days in
jail, with credit for time served and the remainder suspended to probation. Parker now
appeals.
DISCUSSION AND DECISION
I. Standard of Review
Our standard of review regarding sufficiency of the evidence claims is well settled.
We do not reweigh the evidence or judge the credibility of the witnesses. Bond v. State,
925 N.E.2d 773, 781 (Ind. Ct. App. 2010), trans. denied. We consider only the evidence
most favorable to the verdict and the reasonable inferences drawn therefrom and affirm if
the evidence and those inferences constitute substantial evidence of probative value to
support the verdict. Id. Reversal is appropriate only when a reasonable trier of fact
would not be able to form inferences as to each material element of the offense. Id.
The trier of fact may draw reasonable inferences from facts established either by
direct or circumstantial evidence and a guilty verdict may be based solely on
circumstantial evidence. Turpin v. State, 435 N.E.2d 1, 5 (Ind. 1982). As an appellate
3 court, we are not required to find that every reasonable hypothesis of innocence has been
overcome but need only conclude that an inference reasonably tending to support the
finding of the defendant’s guilt can be drawn from the evidence presented. Armstrong v.
State, 429 N.E.2d 647, 654 (Ind. 1982).
II. Parker’s Contentions
In addressing Parker’s argument that the State failed to present sufficient evidence
to support his conviction, Indiana Code section 35-48-4-11(1)(ii) requires the State to
prove that Parker knowingly or intentionally possessed marijuana. We have long
recognized that a conviction for possession of contraband may be founded upon actual or
constructive possession. Holmes v. State, 785 N.E.2d 658, 660 (Ind. Ct. App. 2003).
Constructive possession is established by showing that the defendant has the intent and
capability to maintain dominion and control over the contraband. Id. More specifically,
it has been held that
In cases where the accused has exclusive possession of the premises on which the contraband is found, an inference is permitted that he or she knew of the presence of contraband and was capable of controlling it. However, when possession of the premises is non-exclusive, the inference is not permitted absent some additional circumstances indicating knowledge of the presence of the contraband and the ability to control it. Among the recognized “additional circumstances” are: (1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the contraband; (5) contraband is in plain view; and (6) location of the contraband is in close proximity to items owned by the defendant.
Id. at 661 (emphasis added)(internal citations omitted).
4 In Gray v. State, 957 N.E.2d 171, 175 (Ind. 2011), our Supreme Court reaffirmed
the principle that proximity of contraband to a defendant, combined with the contraband
being in plain view, is sufficient evidence to support a conviction based on constructive
possession. Moreover, a defendant’s proximity to contraband in plain view will support
an inference of intent to maintain dominion or control. Id.
In this case, the evidence established that the clear baggie containing the
marijuana first appeared on the ground, immediately next to Parker’s feet. In light of
these facts, the trial court could reasonably infer Parker’s ability and intent to maintain
dominion and control over the marijuana. Contrary to Parker’s contention that either
Doulas or Campbell could have tossed the marijuana at his feet, Parker’s testimony about
the locations of the men when separated around the police car makes such a scenario
implausible.
As mentioned above, Parker was “at the tire” while Campbell and Doulas were “at
the bumper” and “on the other side of the bumper.” Tr. p. 35. And because the men
were separated on different sides of the police car, there was no straight-line path
between them except what was blocked by the car. Although Parker also claimed that he
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FILED 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 Mar 29 2012, 9:25 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER Marion Co. Public Defender Attorney General of Indiana Indianapolis, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DEJUAN PARKER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1106-CR-557 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jose D. Salinas, Judge Cause No. 49G14-1006-FD-46934
March 29, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Appellant-defendant Dejuan Parker appeals his conviction for Possession of
Marijuana,1 a class D felony. Specifically, Parker argues that the evidence is insufficient
to prove that he possessed a baggie of marijuana. Finding that the trial court, as the fact
finder, could reasonably conclude that Parker was in possession of the marijuana, we
affirm.
FACTS
On June 13, 2010, Indianapolis Metropolitan Police Department (IMPD) Officer
Jerome Harrison was in an unmarked car engaged in the surveillance of a gas station at
30th Street and Keystone Avenue. Officer Harrison noticed as three men—Parker,
Shawn Campbell, and Julius Doulas—jaywalked across Keystone toward the gasoline
station.
At some point, a blue Cadillac pulled into the gas station parking lot. Campbell
got into the back seat but exited it in less than one minute. Suspecting narcotics activity,
Officer Harrison followed the Cadillac as it drove west on 30th Street. Other undercover
officers detained Parker, Campbell, and Doulas at the scene for jaywalking.
Officer Derek Jackson detained the three men and informed them of their Miranda
rights. Officer Jackson and another officer separated the three men, patted them down for
weapons, and questioned them. The three men were placed at different locations around
one of the police cars. Parker was “at the tire,” while Campbell and Doulas were “at the
bumper” and “on the other side of the bumper.” Tr. p. 35.
1 Ind. Code § 35-48-4-11. 2 Although Parker was in handcuffs, Officer Jackson noticed a small bag of
marijuana on the ground “at the feet of [Mr.] Parker . . . right next to [him].” Tr. p. 19.
No marijuana had been noticed prior to that time. The substance subsequently tested
positive for 2.70 grams of marijuana.
Parker was arrested and charged with possession of marijuana as a class D felony
because he had a prior conviction for that offense. Following a bench trial on March 24,
2011, Parker was found guilty as charged. Thereafter, he was sentenced to 365 days in
jail, with credit for time served and the remainder suspended to probation. Parker now
appeals.
DISCUSSION AND DECISION
I. Standard of Review
Our standard of review regarding sufficiency of the evidence claims is well settled.
We do not reweigh the evidence or judge the credibility of the witnesses. Bond v. State,
925 N.E.2d 773, 781 (Ind. Ct. App. 2010), trans. denied. We consider only the evidence
most favorable to the verdict and the reasonable inferences drawn therefrom and affirm if
the evidence and those inferences constitute substantial evidence of probative value to
support the verdict. Id. Reversal is appropriate only when a reasonable trier of fact
would not be able to form inferences as to each material element of the offense. Id.
The trier of fact may draw reasonable inferences from facts established either by
direct or circumstantial evidence and a guilty verdict may be based solely on
circumstantial evidence. Turpin v. State, 435 N.E.2d 1, 5 (Ind. 1982). As an appellate
3 court, we are not required to find that every reasonable hypothesis of innocence has been
overcome but need only conclude that an inference reasonably tending to support the
finding of the defendant’s guilt can be drawn from the evidence presented. Armstrong v.
State, 429 N.E.2d 647, 654 (Ind. 1982).
II. Parker’s Contentions
In addressing Parker’s argument that the State failed to present sufficient evidence
to support his conviction, Indiana Code section 35-48-4-11(1)(ii) requires the State to
prove that Parker knowingly or intentionally possessed marijuana. We have long
recognized that a conviction for possession of contraband may be founded upon actual or
constructive possession. Holmes v. State, 785 N.E.2d 658, 660 (Ind. Ct. App. 2003).
Constructive possession is established by showing that the defendant has the intent and
capability to maintain dominion and control over the contraband. Id. More specifically,
it has been held that
In cases where the accused has exclusive possession of the premises on which the contraband is found, an inference is permitted that he or she knew of the presence of contraband and was capable of controlling it. However, when possession of the premises is non-exclusive, the inference is not permitted absent some additional circumstances indicating knowledge of the presence of the contraband and the ability to control it. Among the recognized “additional circumstances” are: (1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the contraband; (5) contraband is in plain view; and (6) location of the contraband is in close proximity to items owned by the defendant.
Id. at 661 (emphasis added)(internal citations omitted).
4 In Gray v. State, 957 N.E.2d 171, 175 (Ind. 2011), our Supreme Court reaffirmed
the principle that proximity of contraband to a defendant, combined with the contraband
being in plain view, is sufficient evidence to support a conviction based on constructive
possession. Moreover, a defendant’s proximity to contraband in plain view will support
an inference of intent to maintain dominion or control. Id.
In this case, the evidence established that the clear baggie containing the
marijuana first appeared on the ground, immediately next to Parker’s feet. In light of
these facts, the trial court could reasonably infer Parker’s ability and intent to maintain
dominion and control over the marijuana. Contrary to Parker’s contention that either
Doulas or Campbell could have tossed the marijuana at his feet, Parker’s testimony about
the locations of the men when separated around the police car makes such a scenario
implausible.
As mentioned above, Parker was “at the tire” while Campbell and Doulas were “at
the bumper” and “on the other side of the bumper.” Tr. p. 35. And because the men
were separated on different sides of the police car, there was no straight-line path
between them except what was blocked by the car. Although Parker also claimed that he
was only two or three feet from either Doulas or Campbell, that apparent conflict in the
evidence demonstrates that it was the trial court’s prerogative as to which evidence and
inferences to credit.
Additionally, we find the circumstances in Gray instructive here. In Gray, police
officers observed marijuana in plain view approximately eight to ten feet away from
5 where they were speaking with the defendant. Id. at 172-73. The marijuana was
underneath a living room coffee table, and two juveniles were sitting on the couch next to
the table. Id. Although the defendant’s son testified that he tossed the marijuana
underneath the table, the officers testified that the son was not present during the
encounter. Id. at 176. Our Supreme Court held that the officers’ testimony that the
marijuana was in plain view in proximity to the defendant was substantial evidence of
probative value from which the defendant’s guilt could be inferred. Id. at 175-76.
As a result of the holding in Gray and contrary to Parker’s argument, no direct
evidence was required as to “how [the marijuana] appeared.” Appellant’s Br. p. 8.
Gray also demonstrates that, for a defendant’s possession conviction to be affirmed, the
evidence does not need to positively exclude every other person at the scene of the crime.
Thus, as in Gray, while we recognize that there may have been other inferences as to how
the baggie of marijuana landed next to Parker, the trial court could draw the reasonable
inference of Parker’s guilt based on the evidence that was presented at trial. Thus, we
decline to set aside Parker’s conviction.
The judgment of the trial court is affirmed.
DARDEN, J., and BAILEY, J., concur.