PETITIONER APPEARING PRO SE:    ATTORNEYS FOR RESPONDENT:
LYNN A. CROUSE    KAREN M. FREEMAN-WILSON
Brownsburg, IN    ATTORNEY GENERAL OF INDIANA
    Indianapolis, IN
    
    DAVID A. ARTHUR
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN

_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

LYNN A. CROUSE,                                                           )
                                                                               )
    Petitioner,                                                                )
                                                                               )
    v.                                                                         )   Cause No. 49T10-9805-TA-52
                                                                               )
INDIANA DEPARTMENT OF                                                          )
STATE REVENUE,                                                                 )
                                                                               )
    Respondent.                                                                )    
 _____________________________________________________________________
     
                                                 

whether the assessment should be set aside because the assessment period listed on the notice of jeopardy assessment was not the same date that the marijuana was confiscated. See footnote

delivered
possessed; or
manufactured;

in Indiana in violation of IC 35-48-4 or 21 U.S.C. 841 through 21 U.S.C. 852.

When a taxpayer does not have actual possession in a CSET case, constructive possession can be shown when a taxpayer shows intent and the capability to maintain dominion and control over the controlled substance. Hurst v. Department of Revenue, 721 N.E.2d 370, 374 (Ind. Tax Ct. 1999); Hall v. Department of State Revenue, 720 N.E.2d 1287, 1290 (Ind. Tax Ct. 1999). “[P]roof of a possessory interest in the premises in which contraband is found is adequate to show the capability to maintain control and dominion over the contraband.” Carnes v. State, 480 N.E.2d 581, 585 (Ind. Ct. App. 1985)(original emphasis). The requisite intent to possess entails knowledge of the presence and character of the substance in question. Mills v. State, 379 N.E.2d 1023, 1029 (Ind. Tax Ct. 1978). In this regard, a showing of exclusive control over the premises on which the substance is found is adequate to sustain a finding of knowing possession. Id. Such exclusive control raises the inference that the owner had knowledge of the items' presence and character, since it was probably introduced onto the premises by his agency. Id. However, such knowledge may not be reasonably inferred where access to and control of the premises is non-exclusive. Id. In cases of non-exclusive possession, numerous additional circumstances have been deemed sufficient to allow a trier of fact to reasonably draw the requisite inference of the defendant's knowledge of the presence and character of the contraband. Carnes, 480 N.E.2d at 586. Generally, the additional circumstances tending to buttress such an inference include: 1) incriminating statements by the petitioner; 2) attempted flight or furtive gestures; 3) a drug manufacturing setting; 4) proximity of the petitioner to the drugs; 5) drugs in plain view; and 6) location of contraband in close proximity to items owned by the petitioner. Hall, 720 N.E.2d at 1290; Hurst, 721 N.E.2d at 375; Carnes, 480 N.E.2d at 586.
    In Hall and Hurst this Court resolved issues involving the taxpayers’ constructive possession of marijuana. In both of those cases, this Court concluded that the facts and evidence did not demonstrate that the taxpayer had dominion and control over the marijuana. In Hall, Keith Hall and his wife Mary were assessed with CSET for marijuana found in the basement of their home as a result of a search by the police. Hall, 720 N.E.2d at 1288, 1291-92. On appeal to this Court the issue was whether Mary had possessed the marijuana. Id. at 1291. The police found the marijuana in a basement room that was locked and to which Mary did not have a key. Id. This Court noted that the evidence, which showed that Mary constructively possessed the marijuana, included: Mary co-owned the residence where the marijuana was found; Mary washed laundry near the room where the marijuana was found, and the smell of marijuana emanated through the house. Id. at 1292. Nonetheless, this Court held that Mary did not have knowledge of the marijuana because it was kept behind a closed door that was locked. See Id. at 1291. Moreover, this Court held that Mary did not have the ability to maintain dominion or control over the marijuana. Id. at 1291-92. In Hall, this Court based much of its decision upon the fact that the door was locked and the taxpayer did not have a key; thus, she did not have the ability to access the marijuana.
In Hurst, a truck driver carrying a load of marijuana called the taxpayer, after which the taxpayer met the truck driver and led the truck driver back to his house. Hurst, 721 N.E. at 372. After the truck driver arrived at the taxpayer’s home, but before the truck driver could exit the truck, the taxpayer exited his vehicle and started to walk toward the truck. Id. While the taxpayer was on his way to the truck, the police arrested him. Id. The driver of the truck did not have an opportunity to communicate with the taxpayer. Id. This Court held that there was no evidence that the taxpayer intended to maintain dominion and control over the marijuana because the taxpayer could only guess that the truck contained marijuana as he was arrested before he could communicate with the truck driver and he did not lease or drive the truck. Id. at 375-76. In both Hall and Hurst this Court indicated that possessory interests in property were important factors in determining whether there was constructive possession. See Hurst, 721 N.E.2d at 376; Hall, 720 N.E.2d at 1292.
First, this Court looks to whether Crouse had the ability to maintain dominion and control over the marijuana in the storage unit. This Court concludes that Crouse did have the ability to maintain dominion and control over marijuana because he had a possessory interest in the storage unit as the lessee of it and he possessed a key to it. See Hall, 720 N.E.2d at 1290; Hurst, 721 N.E.2d at 374; Carnes, 480 N.E.2d at 585.
Next, the Court looks to whether Crouse had the intent to maintain dominion and control over the marijuana. Crouse seems to contend that he did not have knowledge of the marijuana, and therefore, he could not have intended to maintain dominion and control over it. Crouse asserts that he shared possession of the storage unit because he claims that he gave Rodriguez a key and the gate pass to the storage unit. Crouse asserts that on March 16th or 17th, 1994, Lozano used the gate pass and key that Crouse had given to Rodriguez to place the marijuana in Crouse’s storage unit without Crouse’s knowledge. Because Crouse asserts that his possession of the premises was not exclusive, he claims that his knowledge of the presence of the marijuana cannot be reasonably inferred. However, Crouse has not presented any evidence, besides his own testimony, demonstrating that anyone else had access to the unit. There is no evidence, such as a written sublease, that he subleased the unit to Rodriquez. Crouse merely claims that Rodriguez gave him $100 “for his end.” (Trial Tr. at p. 30.) There is also no evidence to corroborate Crouse’s testimony that he gave Rodriguez the pass and a key, and this Court does not find Crouse’s testimony credible. See Milburn v. Milburn, 694 N.E.2d 738, 740 (Ind. Ct. App. 1998) (holding that “[i]n reaching its decision, the trial court must review self-serving and uncorroborated testimony by the claimant ’with caution and scrutiny’"), trans. denied. Consequently, this Court holds that Crouse had exclusive possession. Therefore, Crouse’s exclusive possession of the premises allows this Court to infer that he had knowledge of the marijuana and its presence in the storage unit. See Mills, 379 N.E.2d at 1029.
Even assuming arguendo that Crouse did not have exclusive possession, there are additional factors that support his knowledge. Crouse’s knowledge of the marijuana is demonstrated by the fact that he told the police that the marijuana was located in his storage unit. See Hall, 720 N.E.2d at 1290; Hurst, 721 N.E.2d at 375. This incriminating statement made by Crouse is additional evidence that buttresses the inference that he knew that the marijuana was located in the storage unit. See Hall, 720 N.E.2d at 1290. On the day in question, Crouse did not tell the police that his identification of the location of the marijuana was not based upon his personal knowledge. His assertion, after the assessment of the tax, that he had no personal knowledge that the marijuana was in his storage unit until Lozano told him on the day in question, is not convincing to this Court. Therefore, even if his possession was non-exclusive, the statement to the police telling them where the marijuana was located demonstrates that he had knowledge of the marijuana’s presence in his storage shed.
The evidence shows that Crouse had the intent and the capability to maintain dominion and control over the marijuana. Consequently, the evidence presented demonstrates that Crouse had constructive possession of the marijuana. Therefore, Crouse has not presented a prima facie case showing that he did not possess the marijuana.