Rasoul Waddy 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 Sep 28 2018, 10:17 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Rory Gallagher Curtis T. Hill, Jr.
Victoria L. Bailey Attorney General of Indiana
Marion County Public Defender –
Caroline G. Templeton
Appellate Division Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rasoul Waddy, September 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-640
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Ronnie Huerta,
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
49G19-1709-CM-33245
Mathias, Judge.
[1] Rasoul Waddy (“Waddy”) was convicted in the Marion Superior Court of
driving while suspended, a Class A misdemeanor, and possession of marijuana,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018 Page 1 of 6
a Class B misdemeanor. Waddy appeals only his conviction for possession of
marijuana, arguing that the State presented insufficient evidence to support a
conviction.
[2] We affirm.
Facts and Procedural History
[3] On September 3, 2017, Officers Germayne Curry and Marc Klonne of the
Indianapolis Metropolitan Police Department observed Rasoul Waddy driving
a car on Forest Manor Avenue. The officers pulled him over after determining
the license plate number did not match the car Waddy was driving. When the
officers walked up to the window, they noticed the smell of marijuana. This
smell became even stronger as Waddy rolled down the driver’s side window.
Waddy was the vehicle’s only occupant.
[4] When Officer Curry asked Waddy for his license and registration, Waddy
informed the officer that he did not have a license and that his license was
suspended. Waddy then handed Officer Curry his State Identification Card.
The officers searched the car, finding a handgun under the driver’s seat and a
mason jar containing marijuana in the glove compartment. The search was not
challenged.
[5] Waddy was charged with carrying a handgun without a license, a Class A
misdemeanor; driving while suspended, a Class A misdemeanor; knowingly or
intentionally driving without ever having received a license, a Class A
Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018 Page 2 of 6
misdemeanor; and possession of marijuana, a Class B misdemeanor. A bench
trial was held on March 8, 2018.
[6] Waddy’s girlfriend, Danetra Odom, testified that the vehicle belonged to her.
On the day Waddy was pulled over, Odom let her friend, Endricca Smith,
borrow the car for the day. Waddy testified that Smith showed up to Waddy’s
home intoxicated around 3:00 am. Because Smith was too intoxicated to drive,
Waddy took the keys. He was driving to pick up Odom from work when the
officers pulled him over.
[7] The trial court dismissed the handgun charge pursuant to Trial Rule 41(B). The
trial court also found Defendant guilty of driving while suspended and
determined that the charge merged with operating a vehicle without ever
receiving a license. The trial court also found Waddy guilty of possession of
marijuana.
[8] With respect to the possession of marijuana charge, the trial court found that
Waddy had dominion and control over the vehicle and that the marijuana was
within arm’s reach. The trial court also found there was a strong odor of
marijuana coming from the car at the time Waddy was pulled over. Because of
these facts, the trial court found Waddy guilty of possession of marijuana.
Discussion and Decision
[9] On appeal, Waddy presents one issue for our review: whether the State
presented sufficient evidence to support a conviction of Possession of Marijuana
based on a theory of constructive possession.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018 Page 3 of 6
[10] Our standard of review on claims of insufficient evidence is well settled. When
reviewing a claim that the evidence is insufficient to support a conviction, we
neither reweigh the evidence nor judge the credibility of the witnesses. Harrison
v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied. We instead
respect the exclusive province of the finder of fact to weigh any conflicting
evidence. Id. We consider only the probative evidence supporting the judgment
and any reasonable inferences which may be drawn from this evidence, and we
will affirm if the probative evidence and reasonable inferences drawn therefrom
could have allowed a reasonable trier of fact to find the defendant guilty beyond
a reasonable doubt. Id.
[11] This Court has long recognized that a conviction for possession of contraband
can be established by actual or constructive possession. Griffin v. State, 945
N.E.2d 781, 783 (Ind. Ct. App. 2011). Actual possession occurs when a
defendant has direct physical control over an item. Gee v. State, 810 N.E.2d 338,
340 (Ind. 2004). Constructive possession occurs when a person has both (i) the
intent to maintain dominion and control over the drugs and (ii) the capability to
maintain dominion and control over the drugs. Id.
[12] In order to fulfill the capability element, the State must demonstrate that the
defendant was able to reduce the controlled substance to his personal
possession. Id. To satisfy the intent element, the State must demonstrate the
defendant’s knowledge of the presence of the contraband. Id. at 341. In the
absence of exclusive possession by the defendant, the State does not have the
benefit of the inference of the intent to maintain dominion and control of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018 Page 4 of 6
drugs, and instead must point to additional circumstances to demonstrate the
defendant’s knowledge of the contraband. Wilkerson v. State, 918 N.E.2d 459,
462 (Ind. Ct. App. 2009).
[13] Courts have looked to the following six additional circumstances to determine
whether the evidence is sufficient to support a finding of constructive
possession: i) incriminating statements made by the defendant; ii) attempted
flight or furtive gestures; iii) location of substances like drugs in settings that
suggest manufacturing; iv) proximity of contraband to the defendant; v)
location of contraband within the defendant’s plain view; and vi) the mingling
of contraband with other items owned by the defendant. Gee, 810 N.E.2d at
341. Holmes v. State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003); Jones v. State,
881 N.E.2d 1095, 1099–1100. However, this list is not exhaustive. Gee, 810
N.E.2d at 344. “[T]he State is required to show that whatever factor or set of
factors it relie[d] upon in support of the intent prong of constructive possession,
those factors or set of factors must demonstrate the probability that the
defendant was aware of the presence of the contraband and its illegal
character.” Id.
[14] This Court has recognized the odor of marijuana as an additional circumstance
to prove the defendant’s knowledge of the presence of marijuana. See Griffin,
945 N.E.2d at 784 (“Moreover, Griffin should have been aware there was a
possibility that marijuana was in the vehicle because Officer Alford testified that
there was a strong odor of marijuana when he stepped out of his car.”).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018 Page 5 of 6
[15] Waddy testified that he had no knowledge that the marijuana was in the
vehicle. He also testified that he could not smell the marijuana at all.
[16] In response to Waddy’s testimony, the State relied on the arresting officer’s
testimony regarding the strong marijuana odor emanating from the vehicle as
the additional circumstance demonstrating that the defendant was aware of the
presence of the marijuana. Waddy did not dispute his close proximity to the
marijuana within the vehicle.
[17] The proximity of the Mason jar containing marijuana, and the odor of
marijuana emanating from the vehicle at the time Waddy was pulled over were
facts the trial court could rely upon to establish Waddy’s intent to possess
marijuana. Waddy’s argument to the contrary is simply a request to reweigh the
evidence and credibility of the witnesses, which this Court will not do.
Conclusion
[18] The State presented sufficient evidence to establish that Waddy constructively
possessed marijuana. Waddy’s conviction of Possession of Marijuana is
affirmed.
[19] Affirmed.
Bailey, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018 Page 6 of 6