ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TERRANCE W. RICHMOND
Milan, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JAMES HOLMES, )
vs. ) No. 49A02-0204-CR-337
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David Shaheed, Judge
Cause No. 49G14-0110-DF-195836
March 28, 2003
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
James Holmes appeals his conviction following a bench trial for Possession of Marijuana,
as a Class D felony. He presents one issue for our review,
namely, whether there was sufficient evidence to support his conviction.
FACTS AND PROCEDURAL HISTORY
On October 3, 2001, Indianapolis Police Officer David Bolling initiated a routine traffic
stop of a vehicle with an improperly displayed license plate. George Brown
was driving the vehicle and Holmes was a passenger. Brown initially pulled
the car over on the side of the road, but then accelerated, initiating
a high-speed chase. Officer Bolling called for backup and pursued the vehicle
through many intersections. The chase finally ended when the vehicles passenger-side wheels
impacted a curb, causing both tires to blow out and the car to
spin sideways. After the vehicle stopped, Holmes jumped out of the passenger
door and bolted out of the car, running east. Officer Bolling pulled
out his gun and ordered Holmes to stop, and Holmes complied. Bolling
then placed Holmes under arrest.
During a subsequent search of the vehicle, officers discovered a vinyl bag, similar
to a babys diaper bag, on the floor behind the drivers seat.
The bag contained a total of 77.64 grams of marijuana. Officers also
determined that the vehicle Brown had been driving was stolen.
The State charged Holmes with possession of marijuana, dealing in marijuana, joyriding, and
resisting law enforcement. The trial court granted Holmess motion for judgment on
the evidence on the joyriding charge. The court then found him not
guilty of dealing in marijuana and resisting law enforcement, but guilty of possession
of marijuana. The court sentenced Holmes to two years, with all but
180 days suspended to probation. Holmes now appeals.
DISCUSSION AND DECISION
Holmes contends that the State presented insufficient evidence to sustain his conviction for
possession of marijuana because the vehicle did not belong to him, he was
merely a passenger, and he was unaware of the presence of the marijuana
in the back seat. Accordingly, he maintains that the State failed to
prove that he constructively possessed marijuana.
In reviewing a claim of insufficient evidence, we do not reweigh
the evidence or assess the credibility of witnesses. Whitney v. State, 726
N.E.2d 823, 825 (Ind. App. 2000). Rather, we look to the evidence
and reasonable inferences drawn therefrom that support the judgment and will affirm the
conviction if there is probative evidence from which a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt. Id.
To convict Holmes of possession of marijuana, as a class D felony, the
State was required to prove that he (1) knowingly, (2) possessed, (3) over
thirty grams of marijuana. See Ind. Code § 35-48-4-11. This court
has long recognized that a conviction for possession of contraband may be founded
upon actual or constructive possession. Goodner v. State, 685 N.E.2d 1058, 1061
(Ind. 1997). Constructive possession is established by showing that the defendant has
the intent and capability to maintain dominion and control over the contraband.
Person v. State, 661 N.E.2d 587, 590 (Ind. Ct. App. 1996), trans. denied.
In cases where the accused has exclusive possession of the premises on
which the contraband is found, an inference is permitted that he or she
knew of the presence of contraband and was capable of controlling it.
Id. However, when possession of the premises is non-exclusive, the inference is
not permitted absent some additional circumstances indicating knowledge of the presence of the
contraband and the ability to control it. Id. Among the recognized
additional circumstances are: (1) incriminating statements by the defendant; (2) attempted
flight or furtive gestures; (3) a drug manufacturing setting; (4) proximity
of the defendant to the contraband; (5) contraband is in plain view;
and (6) location of the contraband is in close proximity to items owned
by the defendant. Id.
Here, Holmes was merely a passenger in the vehicle in which the officer
found marijuana. Accordingly, to prove intent and capability to maintain dominion and
control over the contraband, additional circumstances must be present to support an inference
that Holmes constructively possessed the marijuana. See id. To show capability
to maintain dominion and control over contraband, the State must prove that the
defendant is able to reduce the contraband to the defendants personal possession.
Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified in part on
rehg, 685 N.E.2d 698, 699 (Ind. 1997). In Lampkins, 682 N.E.2d at
1275, our supreme court held that the capability element of constructive possession was
met where a Tylenol bottle that contained cocaine was found underneath the passengers
seat and within the reach of the defendant, a passenger in the vehicle.
In this case, Officer Bolling testified that he discovered 77.64 grams of marijuana
in a vinyl bag on the floor behind the drivers seat and that
the marijuana was within Holmess reach. Specifically, the officer stated that its
not a large vehicle so [the marijuana] was within arms reach. The
driver could reach around and get it, the passenger could reach through the
console to the back and grab it. Given the close proximity of
the contraband to Holmes, the State presented sufficient evidence to show that he
was able to reduce the marijuana to his personal possession. See id.
Next, we must determine whether the State sufficiently proved that Holmes had
the intent to maintain dominion and control over the marijuana. In Godar
v. State, 643 N.E.2d 12, 15 (Ind. Ct. App. 1994), trans. denied, this
court addressed whether contraband that is not in plain view may support an
inference of intent to maintain dominion and control. Specifically, in that case
police officers discovered a bag containing marijuana underneath the front passengers seat of
a vehicle. Id. at 13. The defendant in that case was
one of two persons in the vehicle at the time police initiated the
stop and was in close proximity to the contraband. Id. at 15.
However, because the marijuana was not in plain view, we held that
the State presented insufficient evidence from which to infer his knowledge of the
marijuanas presence. Id.
This case is similar to Godar. Here, the officers discovered a vinyl
bag on the floor behind the drivers seat. The bag contained marijuana
and was in close proximity to Holmes. And here, just as in
Godar, the marijuana was not in plain view. Contraband found in close
proximity to the defendant, but not in plain view, is insufficient, by itself,
to infer the defendants knowledge of the contrabands presence. Id. While
Holmess proximity to the vinyl bag which contained marijuana supports an inference that
he had the capability to maintain dominion and control over the contraband, his
proximity to marijuana that was not in plain view, standing alone, does not
support an inference that he intended to maintain dominion and control over it.
See Lampkins, 685 N.E.2d at 700 (stating in opinion on rehearing that
drugs found inside Tylenol bottle were not in plain view and, thus, even
though found in close proximity to defendant, did not support inference of intent
to constructively possess contraband).
Still, the State contends that Holmess close proximity to the bag which contained
marijuana supports an inference of intent and directs us to Person v. State,
661 N.E.2d at 590. The States reliance on Person is misplaced.
In that case, the defendant was sitting in the back seat of a
vehicle, and officers observed him make furtive movements with his hands. Id.
After the officers ordered the defendant to exit the vehicle, they discovered
the handle of a .25 caliber semi-automatic handgun sticking out of the rear
seat. Id. In Person, not only did the defendant make furtive
movements, but he was in close proximity to a gun that was in
plain view. Id. Here, the marijuana was not in plain view.
Nevertheless, proximity to contraband that is in plain view is only one of
several additional circumstances that may support an inference of intent to maintain dominion
and control over contraband. As we have already stated, Flight is also
an additional circumstance that will support an inference of intent in this context.
Lampkins, 682 N.E.2d at 1276. Here, Officer Bolling testified that
when the vehicle finally stopped, Holmes jumped out of the car and bolted
in an eastward direction. That evidence of Holmess attempted flight supports an
inference that he had intent to maintain dominion and control over the marijuana.
Holmes asserts that his conviction warrants reversal because, like in Godar, there was
no evidence that he knew of the marijuanas presence. While we agree
with Holmes that this case is factually similar to Godar, he ignores one
important distinction, namely, the evidence of his attempted flight. We specifically noted
in Godar, 643 N.E.2d at 15, that there was no evidence in that
case that the defendant acted furtively to suggest that he had placed the
marijuana underneath the seat. Here, the State presented evidence that Holmes fled
from the vehicle after it had stopped. Thus, unlike in Godar, there
is additional evidence of flight in this case, which supports the reasonable inference
that Holmes was aware of the marijuanas presence. And Holmess assertion that
he exited the vehicle because he was afraid that it might explode amounts
to a request that we reweigh the evidence, which we cannot do.
We conclude that the State presented sufficient evidence to sustain Holmess conviction for
possession of marijuana.
MATTINGLY-MAY, J., and VAIDIK, J., concur.
Footnote: Holmes further contends that his conviction cannot stand because Brown, the
driver of the vehicle, readily admitted to the officers that the marijuana was
his. In support, Holmes directs us to page 33 of the transcript,
but our review of that page, and the record as a whole, reveals
no such testimony. Thus, Holmess assertion that the driver admitted that the
drugs were his is not well taken.