Canon Harper v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BART M. BETTEAU. GREGORY F. ZOELLER
Betteau Law Office, LLC Attorney General of Indiana
New Albany, Indiana
IAN MCLEAN
Deputy Attorney General
FILED
Indianapolis, Indiana
Jun 11 2012, 9:53 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
CANON HARPER, )
)
Appellant- Defendant, )
)
vs. ) No. 10A01-1012-CR-687
)
STATE OF INDIANA, )
)
Appellee- Plaintiff, )
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Jerome F. Jacobi, Judge
Cause No. 10D02-0811-FA-378
June 11, 2012
OPINION ON REHEARING - FOR PUBLICATION
ROBB, Chief Judge
Canon Harper has petitioned for rehearing of this court’s decision in Harper v.
State, 963 N.E.2d 653 (Ind. Ct. App. 2012), in which we affirmed Harper’s convictions
for dealing in cocaine, possession of cocaine, dealing in a narcotic drug, and possession
of a narcotic drug, all Class A felonies; two counts of resisting law enforcement, battery
of a law enforcement officer, and possession of paraphernalia, all Class A misdemeanors;
and maintaining a common nuisance, a Class D felony. We held, inter alia, sufficient
evidence existed to support Harper’s convictions. We grant the petition for rehearing to
clarify our conclusion that Harper constructively possessed the contraband that led to his
convictions for dealing, possession, and maintaining a common nuisance. In all other
respects, we reaffirm our opinion.
Harper contends insufficient evidence supported the conclusion that he
constructively possessed contraband found in either his vehicle or motel room.
“Constructive possession will support a possession conviction if the State shows that the
defendant had both the capability and the intent to maintain dominion and control over
the contraband.” White v. State, 772 N.E.2d 408, 413 (Ind. 2002). He argues the
evidence was insufficient to conclude he had either the requisite intent or capability to
maintain dominion and control over the contraband. Pursuant to Gray v. State, 957
N.E.2d 171, 174-75 (Ind. 2011), under the possessory interest rule, a defendant’s
possessory interest establishes both the intent and capability to maintain dominion and
control over contraband so long as the possession is exclusive. If such possession is not
exclusive, a non-exhaustive list of circumstances was articulated in Gray, and other cases,
for the court to consider in determining whether the defendant had the requisite intent.
2
Id. at 175. The capability to maintain dominion and control is established by a
possessory interest even if it is non-exclusive. Id.
Here, we concluded, based on the possessory interest rule, Harper had constructive
possession of contraband located both in a purse that was carried out of his vehicle and in
his motel room. However, Harper did not have exclusive possession of either the vehicle
or motel room, and thus, additional circumstances must be present to establish the intent
prong of constructive possession. Based on the articulated factors in Gray and other
cases, we still conclude Harper had the requisite intent to maintain dominion and control
of the contraband, and, therefore, that Harper had constructive possession of the
contraband.
One of the articulated factors is whether the defendant attempted to flee or made
furtive gestures. Here, when an officer attempted to arrest Harper, Harper fled on foot.
Once caught, he assaulted a police officer before he was apprehended. Another factor is
the proximity of contraband to the defendant. Here, the contraband in the vehicle was in
close physical proximity to Harper, and the contraband in the motel was discovered
relatively soon after Harper checked into the room and not long after he left and came
back with a friend. Sufficient evidence existed for a reasonable finder of fact to conclude
Harper constructively possessed the contraband.
Accordingly, we again affirm Harper’s convictions.
NAJAM, J., and VAIDIK, J., concur.
3