Shawkan Darden v. State of Indiana ( 2014 )

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 Jun 12 2014, 10:28 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RUTH JOHNSON GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
JAMES R. MARTIN
ANDERW BEAN Deputy Attorney General
Certified Legal Intern Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SHAWKAN DARDEN, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1310-CR-892
)
STATE OF INDIANA, )
)
Appellee-PLaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Linda Brown, Judge
Cause No. 49F10-1307-CM-43010
June 12, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Shakwan Darden (Darden), appeals her conviction for
possession of marijuana, a Class A misdemeanor, Ind. Code § 35-48-4-11(1).
We affirm.
ISSUE
Darden raises one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to sustain Darden’s conviction
for possession of marijuana.
FACTS AND PROCEDURAL HISTORY
On July 1, 2013, Derrick Alexander (Alexander) was driving Darden’s vehicle and
drove to Darden’s residence to pick her up. Darden had let Alexander borrow the vehicle
for the weekend. When Alexander arrived at Darden’s home, he was dressed, as usual, in
women’s clothing and smelled strongly of perfume. When Darden got into the vehicle,
she noted that everything appeared “normal.” (Transcript p. 36).
Shortly after Alexander and Darden pulled off, they drove past Indiana State
Trooper Joseph Vela-Braxton (Trooper Vela-Braxton), who ran the license plate number
of the vehicle. The search indicated that Darden was the registered owner of the vehicle,
and her license was suspended. After seeing this information, Trooper Vela-Braxton
attempted to positively identify the driver by driving next to the vehicle, but Alexander
was maneuvering in and out of traffic and traffic was heavy. From his limited viewpoint,
Trooper Vela-Braxton believed that a female was driving based on Alexander’s women’s
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clothing; consequently, he initiated a traffic stop. After Trooper Vela-Braxton
approached the vehicle, he learned that Alexander was a male dressed in women’s
clothing. Trooper Vela-Braxton gathered the identification cards of both Alexander and
Darden and checked Alexander’s license with the BMV. He discovered that Alexander
had a warrant for driving while suspended and placed him under arrest.
Trooper Vela-Braxton started to conduct a property search of Alexander. At some
point, Indianapolis Metropolitan Police Officer Elliot (Officer Elliot) arrived on the scene
and announced himself, and Trooper Vela-Braxton turned briefly to acknowledge him.
Trooper Vela-Braxton then asked Darden to assist him by removing some of Alexander’s
body piercings. Darden exited the passenger seat, and as she turned to come around the
corner of the rear passenger side of the bumper, Trooper Vela-Braxton observed that “a
small plastic bag of marijuana had [fallen] on the ground.” (Tr. p. 11). He did not see
exactly where it came from but noted that the bag of marijuana had not been on the
ground prior to Darden exiting the vehicle. He immediately placed Darden into
handcuffs.
When questioned, Darden said that she did not know where the bag came from
and that it was not hers. Trooper Vela-Braxton then conducted a search of her car.
Based on his experience as an officer and his training in identifying marijuana, Trooper
Vela-Braxton identified burnt marijuana cigarettes and “shake” on the floorboards and
throughout the car. Trooper Vela-Braxton described “shake” as very small fragments of
marijuana that have been “ground in” and can result from users rolling a marijuana
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cigarette. (Tr. p. 15). Trooper Vela-Braxton said that the “shake” was too small to be
collected, but testing confirmed that the substance in the bag was marijuana.
On July 1, 2013, the State filed an Information charging Darden with possession
of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11(1). On October 1, 2013, a bench
trial was held. At the close of the State’s case-in-chief, Darden moved to dismiss under
Trial Rule 41(B) for insufficient evidence. The trial court denied the motion and,
following the close of the evidence, found Darden guilty as charged. The same day, the
court held a sentencing hearing and sentenced Darden to 365 days, with 361 days
suspended and credit for four days of time served, along with forty hours of community
service.
Darden now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Darden claims that the State did not present evidence sufficient to prove beyond a
reasonable doubt that she possessed marijuana. Specifically, Darden argues that Trooper
Vela-Braxton’s observation of marijuana on the ground near her as she approached the
back of the vehicle, coupled with his observation of “shake” and small burnt marijuana
cigarettes in the vehicle, is not sufficient to create a reasonable inference that she either
actually or constructively possessed marijuana. When reviewing the sufficiency of
evidence, this court only considers the evidence most favorable to the verdict and all the
reasonable inferences which may be drawn from that evidence. Griffin v. State, 945
N.E.2d 781, 783 (Ind. Ct. App. 2011). We do not reweigh the evidence of the case or
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judge the credibility of the witnesses. Id. “We will only reverse a conviction when
reasonable persons would not be able to form inferences as to each material element of
the offense.” Id.
To convict Darden of possession of marijuana as a Class A misdemeanor, the State
was required to prove that she “knowingly or intentionally possessed marijuana” in an
amount less than thirty grams. I.C. § 35-48-4-11(1). “It is well established that a
conviction for possession of marijuana may be based upon actual or constructive
possession.” Holmes v. State, 785 N.E.2d 658, 660 (Ind. Ct. App. 2003). Actual
possession occurs when a person has direct physical control over the contraband. Gray v.
State, 957 N.E.2d 171, 174 (Ind. 2011). “Constructive possession is established by
showing that the defendant has the intent and capability to maintain dominion and control
over the contraband.” Holmes, 785 N.E.2d at 660. Darden argues that the State failed to
present evidence that she possessed the bag of marijuana either through actual or
constructive possession.
I. Actual Possession
Darden argues the State failed to provide sufficient evidence that she actually
possessed the bag of marijuana. The evidence most favorable to the trial court’s verdict
establishes that Darden did have direct physical control over the marijuana bag. Trooper
Vela-Braxton testified that he saw the bag of marijuana fall from Darden’s person as she
walked around the corner of the car. Trooper Vela-Braxton acknowledged that he did not
see exactly where the bag came from on her person, but he did see it fall from her “as she
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was walking towards [him], at the rear passenger side of the bumper.” (Tr. p. 12).
Darden asserts that Trooper Vela-Braxton could not have noticed the bag fall from her
person because the Trooper turned away to acknowledge Officer Elliot when he arrived
on the scene as she was exiting the vehicle.
Darden relies on Brent v. State, 957 N.E.2d 648 (Ind. Ct. App. 2011), to argue that
she did not actually possess the marijuana because Trooper Vela-Braxton did not actually
see her discard it. In Brent, officers were following a vehicle suspected of engaging in
drug activity. Id. at 649. The vehicle stopped very closely to a parked car and the
officers noticed that the two occupants looked as if they were discarding something. Id.
The officers subsequently found a bag of marijuana inside the parked vehicle. Id. The
passenger of the car was arrested and charged with possession of marijuana, but this court
held that there was no actual possession of the marijuana because the officers did not find
the bag on the defendant’s person or see him hold or discard the marijuana from the car.
Id.
Contrary to Darden’s claim, the record reveals that Officer Elliot arrived prior to
Darden exiting the vehicle. Unlike Brent, Trooper Vela-Braxton testified that he saw the
marijuana fall directly from Darden’s person. However, Darden contends that Trooper
Vela-Braxton’s testimony is inconsistent with his probable cause affidavit, which did not
state that he saw the bag of marijuana fall from Darden’s person. Nevertheless, the trial
court heard this discrepancy and assessed the credibility of the witnesses, and we will not
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reweigh the trial court’s evidentiary and credibility determinations. Accordingly, we
conclude that there was sufficient evidence that Darden actually possessed the marijuana.
II. Constructive Possession
In the alternative, even if there was no actual possession, Darden’s contention that
the State failed to provide sufficient evidence to permit an inference that she
constructively possessed the bag of marijuana equally fails. In order to prove that a
defendant has the intent and capability to maintain dominion and control over
contraband, the State must demonstrate that the defendant knew of the presence of the
contraband and was able to reduce the contraband to his personal possession. Griffin,
945 N.E.2d at 783. In cases where a defendant has exclusive possession of the premises
on which contraband is found, an inference that he or she knew of its presence and was
capable of controlling it is permitted. Id. at 784. When possession is not exclusive - as
here - the inference is only permitted if there are some additional circumstances
indicating knowledge of the presence of the contraband and the ability to control it. Id.
Some of 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) the contraband is in plain view; and
(6) the location of the contraband is in close proximity to items owned by the defendant.
Id.
In this case, the bag of marijuana found outside Darden’s vehicle was in close
proximity to Darden. Darden, however, argues that she had no knowledge as to how the
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marijuana got there. She further argues that the incident occurred on a public street near
businesses where people were working and where people can freely walk. Trooper Vela-
Braxton testified that Darden was the sole person by the car at the time, and he did not
observe the bag on the ground prior to Darden’s exit from the car. Trooper Vela-Braxton
immediately saw the bag on the ground as Darden walked around the corner of the
bumper, and no other person had walked by or come within five feet of the vehicle.
Darden relies on Godar v. State, 643 N.E.2d 12 (Ind. Ct. App. 1994), to argue that her
mere presence near the bag of marijuana is not sufficient to form a reasonable inference
that she had the intent or capability to exert dominion and control over the bag of
marijuana. In Godar, the defendant, a passenger in a car, was charged with possession of
marijuana when marijuana was found under the passenger seat because of his close
proximity to it. Id. at 15. This court held that the State did not present sufficient
evidence to support a finding of constructive possession because the marijuana was not in
plain view to infer the defendant’s knowledge of its presence. Id.
Unlike the defendant in Godar, who was sitting in a car where another driver was
present, Darden was the only person at the location immediately before the marijuana bag
was found. The bag was also in plain view, lying on the ground near Darden’s feet. She
was not merely present at the location; she was the only person present. Additionally,
Trooper Vela-Braxton testified that he saw the bag fall from Darden’s person as she came
around the corner. Because the marijuana was in plain view and in close proximity to
Darden, and no other person had walked by or been near the location where the bag was
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found, we conclude that the State presented sufficient evidence to permit the inference
that Darden knew of the marijuana’s presence and was capable of maintaining dominion
and control over it.
CONCLUSION
Based on the foregoing, we conclude that the State produced sufficient evidence to
prove beyond a reasonable doubt that Darden possessed the bag of marijuana.
Affirmed.
ROBB, J. and BRADFORD, J. concur
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