Earl Moody v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 31, 2017
• Docket: 49A05-1611-CR-2487
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 31 2017, 9:27 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Hilary Bowe Ricks Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Earl Moody, May 31, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1611-CR-2487 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia Gooden, Appellee-Plaintiff. Judge The Honorable Richard Hagenmaier, Commissioner Trial Court Cause No. 49G21-1602-F5-4595

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Defendant, Earl Moody (Moody), appeals his conviction possession

of marijuana, a Level 6 felony, Ind. Code § 35-48-4-11(c).

[2] We affirm.

ISSUE [3] Moody presents one issue on appeal, which we restate as: Whether the State

presented sufficient evidence beyond a reasonable doubt that he possessed

marijuana.

FACTS AND PROCEDURAL HISTORY [4] On February 1, 2016, Indianapolis Metropolitan Police Department Officer

James Perry (Officer Perry) initiated a traffic stop after he observed a vehicle fail

to signal while exiting a gas station. Officer Perry identified Moody as the

driver, and the other occupant was J.L. (J.L.), a minor, seated as a passenger in

the front seat. When Officer Perry asked for Moody’s license and registration,

Moody offered the documents and indicated that he had “just purchased the

vehicle.” (Transcript p. 93). Officer Perry also identified the odor of raw

marijuana emanating from the driver side of the car. Officer Perry returned to

his vehicle and called for back-up. Officer Joe Beasley (Officer Beasley)

responded, and he too noticed the smell of raw marijuana coming from the

driver side. Officer Perry approached the passenger side, opened the door, and

asked J.L. to step out of the vehicle. As J.L. stepped out of the vehicle, and

based on his training, Officer Perry observed “a plastic baggie containing raw Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017 Page 2 of 7 marijuana just to the right of the passenger seat on the floorboard.” (Tr. p. 16).

Officer Perry alerted Officer Beasley to the discovery of the contraband, and

Moody was ordered out of the vehicle. Moody and J.L. were handcuffed and

each were read their Miranda rights. Again, Moody stated that he was the

owner of the car, but denied knowledge of the presence of marijuana inside his

vehicle.

[5] At some point, Officer David Williams (Officer Williams) arrived at the scene

to offer his assistance. While Officer Williams watched Moody and J.L.,

Officers Perry and Beasley conducted a further search of Moody’s vehicle. The

subsequent search yielded two additional vacuum-sealed plastic bags containing

raw marijuana. One bag was found “under the center console,” and the other

was lying between the center console and the passenger seat. (Tr. p. 20). In the

trunk, the officers found “80 caliber rounds,” and a search of Moody’s person

revealed a total of $896 in cash. (Tr. p. 21). A chemical test of the baggie found

on the floorboard on the passenger side yielded 3.83 grams of marijuana. The

two vacuum-sealed plastic bags found in the vicinity of the center console

yielded marijuana weighing 27.52 grams and 27.76 grams, respectively.

[6] On February 4, 2016, the State filed an Information, charging Moody with

Count I, dealing in marijuana, a Level 6 felony; Count II, maintaining a

common nuisance, a Level 6 felony; and Count III, possession of marijuana, a

Class B misdemeanor. Based on a prior drug conviction, the State also charged

Moody with possession of marijuana, a Level 6 felony. Moody waived his right

to a jury trial, and a bench trail was conducted on October 6, 2016. At the end

Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017 Page 3 of 7 of the State’s case-in chief, Moody moved for involuntary dismissal pursuant to

Indiana Trial Rule 41(B). Based on the evidence presented by the State, the

trial court dismissed the dealing in marijuana and maintaining common a

nuisance charges; however, it found that the State had presented sufficient

evidence with respect to the possession of marijuana charge. Moody proceeded

to present his case, and at the close of the evidence, the trial court found Moody

guilty of possession of marijuana, a Class B misdemeanor. Considering

Moody’s prior drug conviction, the trial court elevated Moody’s Class B

misdemeanor possession of marijuana to a Level 6 felony. On the same day,

the trial court sentenced Moody to an executed sentence of 498 days, with 249

days of credit time.

[7] Moody now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [8] Moody challenges the sufficiency of the evidence supporting his conviction for

possession of marijuana, a Level 6 felony. On review, our court will not

reweigh evidence or assess the credibility of witnesses. Whitney v. State, 726

N.E.2d 823, 825 (Ind. Ct. App. 2000). We will consider the evidence most

favorable to the judgement, together with all reasonable inferences to be drawn

therefrom, and we will affirm the conviction “if the probative evidence and

reasonable inferences to be drawn from the evidence could have allowed a

reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”

Id.

Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017 Page 4 of 7 [9] In order to convict Moody of a Level 6 felony, possession of marijuana, the

State was required to prove beyond a reasonable doubt that he knowingly or

intentionally possessed marijuana weighing more than thirty grams. See I.C. §

35-48-4-11. It is well-established that possession of an item may be either actual

or constructive. See Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997),

modified on reh’g, 685 N.E.2d 698 (Ind. 1997). Actual possession occurs when a

person has direct physical control over the item. Houston v. State, 997 N.E.2d

407, 410 (Ind. Ct. App. 2013). 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. Lampkins, 682 N.E.2d at

1275. Here, the State’s case was based on theory of constructive possession.

Moody claims that the State failed to show that he had actual knowledge of the

presence of marijuana in his vehicle. Accordingly, Moody only disputes the

intent element of constructive possession doctrine, not the capability prong.

[10] To prove intent, the State must demonstrate the defendant’s knowledge of the

presence of the contraband. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). This

knowledge may be inferred from either the exclusive dominion and control over

the premise containing the contraband or, if the control is non-exclusive, like

here, evidence of additional circumstances pointing to the defendant’s

knowledge of the presence of the contraband. Id. Such additional

circumstances include, but are not limited, to the following: (1) incriminating

statements made by the defendant; (2) attempted flight or furtive gestures; (3) a

manufacturing setting; (4) proximity of the defendant to the contraband; (5)

Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017 Page 5 of 7 location of the contraband within the plain view of the defendant; and (6)

location of the contraband within close proximity of items owned by the

defendant. Bradley v. State, 765 N.E.2d 204, 212 (Ind. Ct. App. 2002).

[11] In this case, there is evidence pointing to Moody’s knowledge of the presence of

the marijuana, specifically, its pungent odor. The record shows that the odor

was immediately detected by Officer Perry as soon as Moody rolled down his

car windows following the traffic stop. In addition, Officer Beasley, who

arrived at the scene moments later, likewise smelled the odor of raw marijuana

emanating from the driver’s side of the vehicle. Based on the obvious smell of

raw marijuana emanating from the driver’s side of the car, the trial court could

reasonably infer that the marijuana odor was likewise readily detectable by

Moody and thus he knew the marijuana was present in his vehicle. In addition

to the odor, Moody was also in close proximity to the seized contraband. The

search of Moody’s vehicle yielded two vacuum-sealed plastic bags containing

raw marijuana, one of which was found under the center console of the vehicle,

and the other between the center console and the passenger seat. Moody had

easy access to the center console where the vacuum-sealed plastic bags

containing raw marijuana were detected.

[12] Based on the foregoing, we conclude that the State presented sufficient evidence

for the trier of fact to infer that Moody had constructive possession of the

recovered contraband. Thus, there was sufficient evidence beyond a reasonable

doubt to sustain his Level 6 felony, possession of marijuana conviction.

Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017 Page 6 of 7 CONCLUSION [13] In light of the above, we conclude that the State presented sufficient evidence

beyond a reasonable doubt that Moody constructively possessed marijuana.

[14] Affirmed.

[15] Najam, J. and Bradford, J. concur

Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017 Page 7 of 7