MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 28 2015, 8:26 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patricia Caress McMath Gregory F. Zoeller Marion County Public Defender Attorney General Indianapolis, Indiana
Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary Byrd, December 28, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1506-CR-557 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Seiter Appellee-Plaintiff Trial Court Cause No. 49G20-1406-FC-32491
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 1 of 7 Case Summary [1] Officers found 206 grams of marijuana and a handgun in the car Gary Byrd was
driving. The car was borrowed, but Byrd was its only occupant at the time he
was stopped. Byrd appeals his convictions for Class D felony dealing in
marijuana and Class A misdemeanor carrying a handgun without a license. He
contends that the State did not produce sufficient evidence to establish
constructive possession of the marijuana and the handgun; specifically, he
argues that the evidence does not prove his intent to exercise dominion and
control over the contraband. Given the close proximity of the contraband to
Byrd, the smell of the marijuana and Byrd’s familiarity with that smell, and the
setting in which the gun was found, we affirm his convictions for both Class D
felony dealing in marijuana and Class A misdemeanor carrying a handgun
without a license.
Facts and Procedural History [2] On June 17, 2014, Gary Byrd borrowed Jasmine Brown’s car. About forty-five
minutes later, Sergeant Brian Gabel of the Indianapolis Metropolitan Police
Department noticed Byrd swerving and driving at irregular speeds. Sergeant
Gabel stopped Byrd and requested identification. Byrd briefly searched his
pockets, allowing Sergeant Gabel to see “a large bulky amount of cash[,]” but
Byrd was unable to produce any identification. Tr. p. 9. Byrd voluntarily
opened the car door so that he could better communicate with Sergeant Gabel
and provide him with verbal identification information. As soon as the door
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 2 of 7 was opened, Sergeant Gabel noticed the strong odor of raw marijuana coming
from the inside of the vehicle. Sergeant Gabel returned to his car to check
Byrd’s license status, discovered Byrd had a suspended license, and requested
assistance with the traffic stop.
[3] Sergeant Gabel arrested Byrd for driving with a suspended license, and
searched the car. He found a partially open book bag on the center console of
the back seat. The bag was about a foot from the driver’s seat, which was
pushed all the way back and reclined so that the bag was easily within reach of
the driver. The smell of marijuana seemed to be coming from the bag.
Sergeant Gabel could see a blanket inside the bag and when he began pulling it
out of the bag, he discovered a gun wrapped in the blanket. Under the blanket,
he found a black plastic bag that contained smaller baggies with a total of over
206 grams of marijuana, and a scale. In addition, officers found $2035, in
denominations of $50 or less, in Byrd’s pockets.
[4] The State charged Byrd with four counts: Count I, Class A misdemeanor
carrying a handgun without a license; Count II, Class D felony dealing in
marijuana; Count III, Class D felony possession of marijuana; and Count IV,
Class A misdemeanor driving while suspended.
[5] Before the bench trial, Byrd stipulated that the quantity of marijuana, the
packaging, and the scale were consistent with distribution of marijuana. Id. at
4. During the trial, Byrd testified that he had only had the keys to the car for
about forty-five minutes, and had only been driving it for about twenty minutes.
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 3 of 7 He testified that he knew the smell of raw marijuana. He also testified that the
money in his pockets came from selling shirts.
[6] The trial court found Byrd guilty of all four counts. The court merged Count
III, Class D felony possession of marijuana, into Count II, Class D felony
dealing in marijuana, and entered convictions on Counts I, II, and IV. Byrd
now appeals, arguing that the evidence is insufficient to support his convictions
for dealing in marijuana, and carrying a handgun.1
Discussion and Decision [7] Our standard of review for claims of sufficiency of the evidence is well settled.
We consider only the probative evidence and reasonable inferences supporting
the verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans.
denied. We do not reweigh the evidence or assess witness credibility, and we
consider conflicting evidence most favorably to the trial court’s ruling. Id. We
will affirm the conviction unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Id. It is not necessary
that the evidence overcome every reasonable hypothesis of innocence. Id. The
evidence is sufficient if an inference may reasonably be drawn from it to support
the verdict. Id. A conviction may be based upon circumstantial evidence alone.
Id.
1 Byrd does not contest his conviction for Class A misdemeanor driving while suspended.
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 4 of 7 [8] In order to convict Byrd of Class D felony dealing in marijuana, the State was
required to prove that Byrd “possessed” marijuana. Ind. Code § 35-48-4-
10(a)(2). Possession may be either actual or constructive. Actual possession is
proven by direct physical control. Henderson v. State, 715 N.E.2d 833, 835 (Ind.
1999). In the absence of actual possession, constructive possession may support
a conviction. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Constructive
possession requires proof that “the defendant has both (1) the intent to maintain
dominion and control and (2) the capability to maintain dominion and control
over the contraband.” Id. Here, it is uncontested that Byrd had the capability
to maintain dominion and control over the marijuana because he was the only
person in the car. Appellant’s Br. p. 4. At issue is whether the first element of
constructive possession—intent to maintain dominion and control—is satisfied.
[9] To prove intent, the State must demonstrate the defendant’s knowledge of the
presence of the contraband. Goliday, 708 N.E.2d at 6. Knowledge may be
inferred from the exclusive dominion and control over the premises containing
the contraband. Id. Knowledge can also be inferred, where control is non-
exclusive, with evidence of additional circumstances pointing to the defendant’s
knowledge of the presence of the contraband. Id.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 28 2015, 8:26 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patricia Caress McMath Gregory F. Zoeller Marion County Public Defender Attorney General Indianapolis, Indiana
Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary Byrd, December 28, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1506-CR-557 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Seiter Appellee-Plaintiff Trial Court Cause No. 49G20-1406-FC-32491
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 1 of 7 Case Summary [1] Officers found 206 grams of marijuana and a handgun in the car Gary Byrd was
driving. The car was borrowed, but Byrd was its only occupant at the time he
was stopped. Byrd appeals his convictions for Class D felony dealing in
marijuana and Class A misdemeanor carrying a handgun without a license. He
contends that the State did not produce sufficient evidence to establish
constructive possession of the marijuana and the handgun; specifically, he
argues that the evidence does not prove his intent to exercise dominion and
control over the contraband. Given the close proximity of the contraband to
Byrd, the smell of the marijuana and Byrd’s familiarity with that smell, and the
setting in which the gun was found, we affirm his convictions for both Class D
felony dealing in marijuana and Class A misdemeanor carrying a handgun
without a license.
Facts and Procedural History [2] On June 17, 2014, Gary Byrd borrowed Jasmine Brown’s car. About forty-five
minutes later, Sergeant Brian Gabel of the Indianapolis Metropolitan Police
Department noticed Byrd swerving and driving at irregular speeds. Sergeant
Gabel stopped Byrd and requested identification. Byrd briefly searched his
pockets, allowing Sergeant Gabel to see “a large bulky amount of cash[,]” but
Byrd was unable to produce any identification. Tr. p. 9. Byrd voluntarily
opened the car door so that he could better communicate with Sergeant Gabel
and provide him with verbal identification information. As soon as the door
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 2 of 7 was opened, Sergeant Gabel noticed the strong odor of raw marijuana coming
from the inside of the vehicle. Sergeant Gabel returned to his car to check
Byrd’s license status, discovered Byrd had a suspended license, and requested
assistance with the traffic stop.
[3] Sergeant Gabel arrested Byrd for driving with a suspended license, and
searched the car. He found a partially open book bag on the center console of
the back seat. The bag was about a foot from the driver’s seat, which was
pushed all the way back and reclined so that the bag was easily within reach of
the driver. The smell of marijuana seemed to be coming from the bag.
Sergeant Gabel could see a blanket inside the bag and when he began pulling it
out of the bag, he discovered a gun wrapped in the blanket. Under the blanket,
he found a black plastic bag that contained smaller baggies with a total of over
206 grams of marijuana, and a scale. In addition, officers found $2035, in
denominations of $50 or less, in Byrd’s pockets.
[4] The State charged Byrd with four counts: Count I, Class A misdemeanor
carrying a handgun without a license; Count II, Class D felony dealing in
marijuana; Count III, Class D felony possession of marijuana; and Count IV,
Class A misdemeanor driving while suspended.
[5] Before the bench trial, Byrd stipulated that the quantity of marijuana, the
packaging, and the scale were consistent with distribution of marijuana. Id. at
4. During the trial, Byrd testified that he had only had the keys to the car for
about forty-five minutes, and had only been driving it for about twenty minutes.
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 3 of 7 He testified that he knew the smell of raw marijuana. He also testified that the
money in his pockets came from selling shirts.
[6] The trial court found Byrd guilty of all four counts. The court merged Count
III, Class D felony possession of marijuana, into Count II, Class D felony
dealing in marijuana, and entered convictions on Counts I, II, and IV. Byrd
now appeals, arguing that the evidence is insufficient to support his convictions
for dealing in marijuana, and carrying a handgun.1
Discussion and Decision [7] Our standard of review for claims of sufficiency of the evidence is well settled.
We consider only the probative evidence and reasonable inferences supporting
the verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans.
denied. We do not reweigh the evidence or assess witness credibility, and we
consider conflicting evidence most favorably to the trial court’s ruling. Id. We
will affirm the conviction unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Id. It is not necessary
that the evidence overcome every reasonable hypothesis of innocence. Id. The
evidence is sufficient if an inference may reasonably be drawn from it to support
the verdict. Id. A conviction may be based upon circumstantial evidence alone.
Id.
1 Byrd does not contest his conviction for Class A misdemeanor driving while suspended.
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 4 of 7 [8] In order to convict Byrd of Class D felony dealing in marijuana, the State was
required to prove that Byrd “possessed” marijuana. Ind. Code § 35-48-4-
10(a)(2). Possession may be either actual or constructive. Actual possession is
proven by direct physical control. Henderson v. State, 715 N.E.2d 833, 835 (Ind.
1999). In the absence of actual possession, constructive possession may support
a conviction. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Constructive
possession requires proof that “the defendant has both (1) the intent to maintain
dominion and control and (2) the capability to maintain dominion and control
over the contraband.” Id. Here, it is uncontested that Byrd had the capability
to maintain dominion and control over the marijuana because he was the only
person in the car. Appellant’s Br. p. 4. At issue is whether the first element of
constructive possession—intent to maintain dominion and control—is satisfied.
[9] To prove intent, the State must demonstrate the defendant’s knowledge of the
presence of the contraband. Goliday, 708 N.E.2d at 6. Knowledge may be
inferred from the exclusive dominion and control over the premises containing
the contraband. Id. Knowledge can also be inferred, where control is non-
exclusive, with evidence of additional circumstances pointing to the defendant’s
knowledge of the presence of the contraband. Id. The State argues that Byrd
had exclusive possession of the car because he was the only person in it when it
was stopped. However, even if Byrd’s possession of the car was non-exclusive,
we still conclude he had knowledge of the presence of the contraband in light of
the “additional circumstances” present in this case.
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 5 of 7 [10] “Additional circumstances” supporting an inference of knowledge of the
presence of contraband include incriminating statements made by the
defendant, attempted flight or furtive gestures, location of substances like drugs
in settings that suggest manufacturing, proximity of the contraband to the
defendant, location of the contraband within the defendant’s plain view, and
the mingling of the contraband with other items owned by the defendant. Gee v.
State, 810 N.E.2d 338, 341 (Ind. 2004).
[11] Here, the parties stipulated that there was more than 206 grams of marijuana in
the book bag. The book bag was about a foot from the defendant. The trial
court heard testimony that Byrd knew the smell of raw marijuana, and that
Sergeant Gabel smelled it as soon as the car door was opened. The “additional
circumstance” of the smell, coupled with Byrd’s knowledge of the smell of raw
marijuana, is sufficient evidence to support the trial court’s inference that Byrd
had knowledge of the marijuana, and therefore intent to maintain dominion
and control over it. We see no error.
[12] Next, to convict Byrd of Class A misdemeanor carrying a handgun without a
license, the State was required to prove beyond a reasonable doubt that he
carried a handgun in a vehicle or on or about his body. See Ind. Code § 35-47-
2-l(a) (West Ann. 2014). “To convict a defendant of carrying a handgun in a
vehicle, the State must present evidence that a handgun was found in a vehicle
and that the defendant had control of either the weapon or of the vehicle with
knowledge of the weapon’s presence.” Grim v. State, 797 N.E.2d 825, 831 (Ind.
Ct. App. 2003) (formatting altered). It is undisputed that Byrd had control of
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 6 of 7 the vehicle in this case. And, as with the marijuana, knowledge may be inferred
from the exclusive dominion and control over the premises containing the
contraband, or with evidence of “additional circumstances” pointing to the
defendant’s knowledge of the presence of the contraband. Id.
[13] Byrd contends that he did not have knowledge of the gun because it was
wrapped in a blanket and placed inside the bag. However, whether the
contraband was in plain view is only one of several potential “additional
circumstances” that support an inference of knowledge. Our review of the
record indicates that Byrd was in close proximity to the gun. He had his seat
pushed all the way back and reclined, placing the book bag within his reach.
Additionally, the setting where the gun, or contraband, was found suggests
distribution of drugs—the gun was with the marijuana, inside the blanket
directly over the marijuana; the book bag also contained a scale and baggies
and Byrd stipulated that the quantity and packaging were consistent with
distribution; Byrd was carrying over $2000 in small denominations. The
“additional circumstances” support the trial court’s inference that Byrd had
knowledge of the gun. We find the inference reasonable, and therefore, find no
error.
[14] Affirmed.
Bailey, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015 Page 7 of 7