Gregory L. Lampkins, pro se
Randi F. Elfenbaum
Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Gregory L. Lampkins, pro se
Randi F. Elfenbaum
GREGORY L. LAMPKINS,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
) Court of Appeals No.
Defendant Gregory Lampkins, pro se, seeks rehearing from our decision in Lampkins
v. State, 682 N.E.2d 1268 (Ind. 1997), in which we affirmed his conviction for Dealing in
Cocaine, a class A felony.See footnote
We grant rehearing to address defendant's petition.
The full background of defendant's case is available at Lampkins v. State, 682
N.E.2d 1268. We recite only those facts necessary to our decision on rehearing. Defendant
was charged with and convicted of Dealing in Cocaine after a legitimate stop and search of
the car in which he was a passenger yielded a Tylenol bottle containing twenty-one rocks of
crack cocaine; the driver of the car also was charged and convicted. See Cooley v. State,
682 N.E.2d 1277 (Ind. 1997). According to testimony from the investigating officers, the
Tylenol bottle was "in plain view" beneath the passenger seat in which defendant had been
In order to obtain defendant's conviction for Dealing in Cocaine, the State was required to prove beyond a reasonable doubt that the defendant (a) possessed cocaine (b) with intent to deliver.See footnote 2 Defendant did not have the cocaine on his person when he was searched. Rather, the cocaine was found in a Tylenol bottle underneath the passenger seat in which the defendant had been sitting. In the absence of actual possession of drugs, our court has consistently held that "constructive" possession may support a conviction for a drug offense. Young v. State, 478 N.E.2d 50, 51 (Ind. 1985); Thomas v. State, 260 Ind. 1, 4, 291 N.E.2d 557, 558 (1973). The State must show that the defendant has both (i) the intent to maintain dominion and control and (ii) the capability to maintain dominion and control over the contraband. Bergfeld v. State, 531 N.E.2d 486, 490 (Ind. 1988); Fassoth v.
State, 525 N.E.2d 318, 323 (Ind. 1988).
The capability element was established because the Tylenol bottle was within reach
of defendant. Lampkins, 682 N.E.2d at 1275. As to the intent element, there must be
"additional circumstances" supporting the inference of intent to maintain dominion and
control when possession is non-exclusive. Fassoth, 525 N.E.2d at 323; Davenport v. State,
464 N.E.2d 1302, 1307 (Ind. 1984). To establish the intent element here, we cited three
additional circumstances. Lampkins, 682 N.E.2d at 1276. First, co-defendant Cooley's
girlfriend testified without objection that co-defendant and defendant had returned from
Atlanta where they had gone "to get some drugs" two days before the events here at issue.
Second, at trial, the arresting officer testified that after he stopped co-defendant's vehicle
and obtained his permission to search, he looked in and could see the Tylenol bottle "in
plain view." Proximity to contraband "in plain view" is an additional circumstance which
supports the inference of intent in this context. Person v. State, 661 N.E.2d 587, 590 (Ind.
Ct. App. 1996), trans. denied; Moore v. State, 613 N.E.2d 849, 854 (Ind. Ct. App. 1993);
Lewis v. State, 482 N.E.2d 487, 491 (Ind. Ct. App. 1985). Third, the co-defendant did not
pull the vehicle over when the police activated their overhead lights to make the stop; the
police had to cut off the vehicle in order to stop it. Flight is also an additional circumstance.
Person, 661 N.E.2d at 590; Moore, 613 N.E.2d at 854; Lewis, 482 N.E.2d at 491.
In his Petition for Rehearing, defendant points out that the principal "plain view"
case, Minnesota v. Dickerson, 508 U.S. 366 (1993), permits invocation of the doctrine only
where the incriminating character of the contraband is immediately apparent. Id. at 374-
375. There is nothing, argues defendant, "immediately apparent" about the incriminating
character of a Tylenol bottle. Defendant's contention that a closed Tylenol bottle does not
constitute contraband in plain view is well taken.See footnote
At the same time, proximity to contra
band "in plain view" was not the sole factor _ but one of three factors _ cited to support
the intent to maintain dominion and control element. While we vacate our reliance on the
"plain view" additional circumstance,See footnote
we continue to find sufficient evidence of construc
tive possession to support the conviction. Our opinion in Lampkins v. State is modified
SHEPARD, C.J., and SELBY and BOEHM, JJ., concur.
DICKSON, J., dissents, believing the evidence is insufficient to sustain the conviction.
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