Leroy Washington v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2018
• Docket: 49A05-1707-CR-1664
• 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 Feb 28 2018, 11:08 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Curtis T. Hill, Jr. Rory Gallagher Attorney General of Indiana Marion County Public Defender Agency Caryn N. Szyper Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Leroy Washington, February 28, 2018 Appellant-Defendant, Court of Appeals Case No. 49A05-1707-CR-1664 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jose D. Salinas, Appellee-Plaintiff. Judge Trial Court Cause No. 49G14-1605-CM-18662

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1664 | February 28, 2018 Page 1 of 5 Statement of the Case [1] Leroy Washington appeals his conviction for possession of marijuana, as a

Class B misdemeanor, following a bench trial. Washington presents a single

issue for our review, namely, whether the State presented sufficient evidence to

support his conviction. We affirm.

Facts and Procedural History [2] On May 16, 2016, Washington was driving a car with an expired license plate

in Indianapolis. There were no passengers in Washington’s car. Indianapolis

Metropolitan Police Department Officers Sergio Deleon and Jordan Bull

conducted a traffic stop because of the expired plate. Both officers smelled the

odor of marijuana coming from the vehicle, and a third officer, Robert Cosler,

who had arrived at the scene also smelled marijuana.

[3] Officers ordered Washington to exit the car, and they placed him in handcuffs

while they searched the car. During the search, Officer Cosler used a key he

found on a key ring in the car’s ignition to open the locked glove compartment,

and inside he found “a baggie containing several individually wrapped baggies

that contained a green leafy substance that [he] kn[ew] through [his] training

and experience to be marijuana.” Tr. at 26. Officer Cosler also found “an

orange pill bottle that contained marijuana, a grinder, and several more . . .

empty plastic bags.” Id. at 26-27. Washington told Officer Bull that he had

“just purchased” the car and had not yet registered the car. Id. at 19.

Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1664 | February 28, 2018 Page 2 of 5 Washington denied that the contraband found in the glove compartment

belonged to him.

[4] The State charged Washington with possession of marijuana, as a Class B

misdemeanor. Following a bench trial, the trial court entered judgment of

conviction as charged and sentenced Washington to sixty days, with four days

executed and fifty-six days suspended. The trial court also ordered Washington

to complete sixty hours of community service. This appeal ensued.

Discussion and Decision [5] Washington contends that the State presented insufficient evidence to support

his conviction. In reviewing the sufficiency of the evidence, we consider only

the evidence and reasonable inferences most favorable to the conviction, neither

reweighing the evidence nor reassessing witness credibility. Griffith v. State, 59

N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable

fact-finder could find the defendant guilty. Id.

[6] To prove possession of marijuana, as a Class B misdemeanor, the State was

required to show that Washington knowingly or intentionally possessed

marijuana. Ind. Code § 35-48-4-11 (2016). Washington maintains that he “did

not have exclusive control over everything inside the Oldsmobile. He had just

purchased the Oldsmobile and was driving it for the first time when he was

pulled over. The additional circumstances fail to demonstrate that Washington

knew marijuana was located inside the locked glove box.” Appellant’s Br. at 9.

We cannot agree.

Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1664 | February 28, 2018 Page 3 of 5 [7] A person actually possesses contraband when he has direct physical control

over it. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). But a conviction for a

possessory offense does not depend on catching a defendant red-handed. Id.

When the State cannot show actual possession, 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 to

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

dominion and control over it. Id. A trier of fact may infer that a defendant had

the capability to maintain dominion and control over contraband from the

simple fact that the defendant had a possessory interest in the premises on

which an officer found the item. Id. Here, there is no question that

Washington, the owner1 and sole occupant of the car, had the capability to

maintain dominion and control over the contraband in the glove compartment,

as it was within his reach, and he had the key to unlock the glove compartment.

Holmes v. State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003).

[8] Thus, we turn to whether a reasonable fact-finder could conclude on these facts

that Washington had the intent to possess the contraband. For such issues, our

ultimate question is “whether a reasonable fact-finder could conclude from the

1 Again, Washington told the officers that he had just bought the car and was driving it for the first time that day. To the extent Washington contends that the circumstances of this case are akin to cases “where another person recently had access to the car” and we held that the evidence was insufficient to prove possession, the cases upon which Washington relies are distinguishable and do not support his contention on appeal. Appellant’s Br. at 11. The fact-finder here was entitled to discredit Washington’s testimony that he was driving the car for the first time that day, and, in any event, the evidence is sufficient to show that Washington constructively possessed the contraband in the glove compartment.

Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1664 | February 28, 2018 Page 4 of 5 evidence that the defendant knew of the nature and presence of the

contraband.” Johnson v. State, 59 N.E.3d 1071, 1074 (Ind. Ct. App. 2016).

Three police officers testified that they smelled the odor of marijuana coming

from Washington’s car when they approached the open driver’s side window.

We hold that the evidence is sufficient to support a reasonable inference that

Washington knew of the nature and presence of the marijuana and, thus, that

he both had the capability to maintain dominion and control over the

contraband and that he intended to possess it. Washington’s contentions on

appeal amount to a request that we reweigh the evidence, which we cannot do.

The State presented sufficient evidence to support Washington’s conviction.

[9] Affirmed.

Mathias, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1664 | February 28, 2018 Page 5 of 5