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

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.
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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.
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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.
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[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.
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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.
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