Henry Gooch v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 31, 2015
• Docket: 49A02-1408-CR-571
• Status: Published

Opinion

MEMORANDUM DECISION Mar 31 2015, 9:50 am 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 establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Henry Gooch, March 31, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1408-CR-571 v. Appeal from the Marion Superior Court. The Honorable David Hooper, State of Indiana, Magistrate. Appellee-Plaintiff. Cause No. 49F08-1308-CM-52760

Sharpnack, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015 Page 1 of 6 Statement of the Case [1] Henry Gooch appeals his conviction of possession of marijuana, a Class A 1 misdemeanor. We affirm.

Issue [2] Whether there is sufficient evidence to support Gooch’s conviction.

Facts and Procedural History [3] On the night of August 11, 2013, Officer Daniel Brezik of the Indianapolis

Metropolitan Police Department was on patrol. He saw a group of ten to

fifteen people congregating in the street, blocking a lane of traffic. Next, the

group crossed the street. Officer Brezik and another officer, Bill Wogan,

stopped their cars and got out.

[4] Officer Wogan asked the people to talk with him. Several persons walked over

to Officer Wogan, but Gooch did not immediately comply with his request.

Instead, Gooch walked away from the officers, behind a parked car. Gooch

had his hands at his sides, and the officers could not see what he was doing.

After “a few seconds,” Gooch walked over to the officers. Tr. p. 6. Officer

Brezik did not see anyone else behind the parked car.

1 Ind. Code § 35-48-4-11 (2013).

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015 Page 2 of 6 [5] Officer Brezik thought Gooch’s actions were suspicious, so he walked over to

the other side of the car. He saw two clear plastic baggies on the ground. They

contained a green leafy substance that he recognized as marijuana. The baggies

looked clean, like they “hadn’t been laying on the side of the street for any

period of time.” Id. at 15.

[6] Officer Brezik walked back to Gooch and put handcuffs on him without saying

anything about the marijuana. Gooch said, “I didn’t have any weed.” Id. at 8.

“Weed” is “a slang term for marijuana.” Id.

[7] Next, Officer Brezik recovered the marijuana from behind the car and secured

it. Subsequent testing revealed the baggies, weighed together, contained almost

twenty-five grams of marijuana.

[8] The State charged Gooch with possession of marijuana. The case was tried to

the bench. After the presentation of evidence, the court determined that Gooch

was guilty and sentenced him accordingly. This appeal followed.

Discussion and Decision [9] Gooch contends that there is insufficient evidence that he had possessed the

marijuana that Officer Brezik found. In considering challenges to the

sufficiency of the evidence, we neither reweigh the evidence nor judge witness

credibility. Caruthers v. State, 926 N.E.2d 1016, 1022 (Ind. 2010). Instead, we

consider only the evidence supporting the judgment and any reasonable

inferences drawn from the evidence. Tin Thang v. State, 10 N.E.3d 1256, 1258

(Ind. 2014). We affirm a conviction unless no reasonable trier of fact could find Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015 Page 3 of 6 every element proved beyond a reasonable doubt. Blount v. State, 22 N.E.3d

559, 565 (Ind. 2014).

[10] In order to convict Gooch of possession of marijuana as a Class A

misdemeanor, the State was required to prove beyond a reasonable doubt that

Gooch (1) knowingly or intentionally (2) possessed (3) marijuana, pure or

adulterated. Ind. Code § 35-48-4-11.

[11] Gooch was never seen holding the marijuana, but conviction for a possessory

offense does not necessarily depend on catching a defendant in actual

possession. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). A conviction for

possessing contraband may rest instead on proof of constructive possession. Id.

A person constructively possesses contraband when the person has (1) the

capability and (2) the intent to maintain dominion and control over the item.

Id.

[12] When a defendant does not exert exclusive control over the area where the

contraband is found, the State must support an inference of constructive

possession by proving additional circumstances pointing to the defendant’s

knowledge of the presence and the nature of the contraband. Id. at 174-75. Our

Supreme Court has identified examples of such circumstances, including:

(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, if the contraband’s

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015 Page 4 of 6 incriminating nature is immediately apparent; and (6) the mingling of contraband with other items the defendant owns. Id. at 175.

[13] Here, when Officer Wogan asked a group of people to move toward him,

Gooch went in the other direction and moved behind a car while keeping his

hands at his sides and out of view. Gooch remained behind the car for only a

few seconds before approaching Officer Wogan. Officer Brezik did not see

anyone else behind the car. When Officer Brezik investigated the area behind

the car, he found two baggies of marijuana in plain view. The baggies were

clean, which indicated that they had not been there for long. Finally, when

Officer Brezik handcuffed Gooch, Gooch made an incriminating statement: “I

didn’t have any weed.” Tr. at 8. This is sufficient evidence to establish

Gooch’s knowledge of the marijuana, as well as his intent to maintain control

and dominion over it prior to abandoning it. See Holmes v. State, 785 N.E.2d

658, 662 (Ind. Ct. App. 2003) (evidence supported constructive possession of

drugs where drugs were found near where defendant had been sitting and

defendant initially fled from police).

[14] Gooch points to testimony that other people were present in the area where the

marijuana was found. This is a request to reweigh the evidence, which our

standard of review forbids.

Conclusion [15] For the reasons stated above, we affirm the judgment of the trial court.

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015 Page 5 of 6 [16] Affirmed.

Vaidik, C.J., and Baker, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015 Page 6 of 6