MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Dec 28 2015, 8:26 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                  Gregory F. Zoeller
Marion County Public Defender                           Attorney General
Indianapolis, Indiana

                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary Byrd,                                              December 28, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1506-CR-557
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David Seiter
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        49G20-1406-FC-32491



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015   Page 1 of 7
                                          Case Summary
[1]   Officers found 206 grams of marijuana and a handgun in the car Gary Byrd was

      driving. The car was borrowed, but Byrd was its only occupant at the time he

      was stopped. Byrd appeals his convictions for Class D felony dealing in

      marijuana and Class A misdemeanor carrying a handgun without a license. He

      contends that the State did not produce sufficient evidence to establish

      constructive possession of the marijuana and the handgun; specifically, he

      argues that the evidence does not prove his intent to exercise dominion and

      control over the contraband. Given the close proximity of the contraband to

      Byrd, the smell of the marijuana and Byrd’s familiarity with that smell, and the

      setting in which the gun was found, we affirm his convictions for both Class D

      felony dealing in marijuana and Class A misdemeanor carrying a handgun

      without a license.



                            Facts and Procedural History
[2]   On June 17, 2014, Gary Byrd borrowed Jasmine Brown’s car. About forty-five

      minutes later, Sergeant Brian Gabel of the Indianapolis Metropolitan Police

      Department noticed Byrd swerving and driving at irregular speeds. Sergeant

      Gabel stopped Byrd and requested identification. Byrd briefly searched his

      pockets, allowing Sergeant Gabel to see “a large bulky amount of cash[,]” but

      Byrd was unable to produce any identification. Tr. p. 9. Byrd voluntarily

      opened the car door so that he could better communicate with Sergeant Gabel

      and provide him with verbal identification information. As soon as the door

      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015   Page 2 of 7
      was opened, Sergeant Gabel noticed the strong odor of raw marijuana coming

      from the inside of the vehicle. Sergeant Gabel returned to his car to check

      Byrd’s license status, discovered Byrd had a suspended license, and requested

      assistance with the traffic stop.

[3]   Sergeant Gabel arrested Byrd for driving with a suspended license, and

      searched the car. He found a partially open book bag on the center console of

      the back seat. The bag was about a foot from the driver’s seat, which was

      pushed all the way back and reclined so that the bag was easily within reach of

      the driver. The smell of marijuana seemed to be coming from the bag.

      Sergeant Gabel could see a blanket inside the bag and when he began pulling it

      out of the bag, he discovered a gun wrapped in the blanket. Under the blanket,

      he found a black plastic bag that contained smaller baggies with a total of over

      206 grams of marijuana, and a scale. In addition, officers found $2035, in

      denominations of $50 or less, in Byrd’s pockets.

[4]   The State charged Byrd with four counts: Count I, Class A misdemeanor

      carrying a handgun without a license; Count II, Class D felony dealing in

      marijuana; Count III, Class D felony possession of marijuana; and Count IV,

      Class A misdemeanor driving while suspended.

[5]   Before the bench trial, Byrd stipulated that the quantity of marijuana, the

      packaging, and the scale were consistent with distribution of marijuana. Id. at

      4. During the trial, Byrd testified that he had only had the keys to the car for

      about forty-five minutes, and had only been driving it for about twenty minutes.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015   Page 3 of 7
      He testified that he knew the smell of raw marijuana. He also testified that the

      money in his pockets came from selling shirts.

[6]   The trial court found Byrd guilty of all four counts. The court merged Count

      III, Class D felony possession of marijuana, into Count II, Class D felony

      dealing in marijuana, and entered convictions on Counts I, II, and IV. Byrd

      now appeals, arguing that the evidence is insufficient to support his convictions

      for dealing in marijuana, and carrying a handgun.1



                                    Discussion and Decision
[7]   Our standard of review for claims of sufficiency of the evidence is well settled.

      We consider only the probative evidence and reasonable inferences supporting

      the verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans.

      denied. We do not reweigh the evidence or assess witness credibility, and we

      consider conflicting evidence most favorably to the trial court’s ruling. Id. We

      will affirm the conviction unless no reasonable fact-finder could find the

      elements of the crime proven beyond a reasonable doubt. Id. It is not necessary

      that the evidence overcome every reasonable hypothesis of innocence. Id. The

      evidence is sufficient if an inference may reasonably be drawn from it to support

      the verdict. Id. A conviction may be based upon circumstantial evidence alone.

      Id.




      1
          Byrd does not contest his conviction for Class A misdemeanor driving while suspended.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015     Page 4 of 7
[8]   In order to convict Byrd of Class D felony dealing in marijuana, the State was

      required to prove that Byrd “possessed” marijuana. Ind. Code § 35-48-4-

      10(a)(2). Possession may be either actual or constructive. Actual possession is

      proven by direct physical control. Henderson v. State, 715 N.E.2d 833, 835 (Ind.

      1999). In the absence of actual possession, constructive possession may support

      a conviction. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Constructive

      possession requires proof that “the defendant has both (1) the intent to maintain

      dominion and control and (2) the capability to maintain dominion and control

      over the contraband.” Id. Here, it is uncontested that Byrd had the capability

      to maintain dominion and control over the marijuana because he was the only

      person in the car. Appellant’s Br. p. 4. At issue is whether the first element of

      constructive possession—intent to maintain dominion and control—is satisfied.

[9]   To prove intent, the State must demonstrate the defendant’s knowledge of the

      presence of the contraband. Goliday, 708 N.E.2d at 6. Knowledge may be

      inferred from the exclusive dominion and control over the premises containing

      the contraband. Id. Knowledge can also be inferred, where control is non-

      exclusive, with evidence of additional circumstances pointing to the defendant’s

      knowledge of the presence of the contraband. Id. The State argues that Byrd

      had exclusive possession of the car because he was the only person in it when it

      was stopped. However, even if Byrd’s possession of the car was non-exclusive,

      we still conclude he had knowledge of the presence of the contraband in light of

      the “additional circumstances” present in this case.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015   Page 5 of 7
[10]   “Additional circumstances” supporting an inference of knowledge of the

       presence of contraband include incriminating statements made by the

       defendant, attempted flight or furtive gestures, location of substances like drugs

       in settings that suggest manufacturing, proximity of the contraband to the

       defendant, location of the contraband within the defendant’s plain view, and

       the mingling of the contraband with other items owned by the defendant. Gee v.

       State, 810 N.E.2d 338, 341 (Ind. 2004).


[11]   Here, the parties stipulated that there was more than 206 grams of marijuana in

       the book bag. The book bag was about a foot from the defendant. The trial

       court heard testimony that Byrd knew the smell of raw marijuana, and that

       Sergeant Gabel smelled it as soon as the car door was opened. The “additional

       circumstance” of the smell, coupled with Byrd’s knowledge of the smell of raw

       marijuana, is sufficient evidence to support the trial court’s inference that Byrd

       had knowledge of the marijuana, and therefore intent to maintain dominion

       and control over it. We see no error.


[12]   Next, to convict Byrd of Class A misdemeanor carrying a handgun without a

       license, the State was required to prove beyond a reasonable doubt that he

       carried a handgun in a vehicle or on or about his body. See Ind. Code § 35-47-

       2-l(a) (West Ann. 2014). “To convict a defendant of carrying a handgun in a

       vehicle, the State must present evidence that a handgun was found in a vehicle

       and that the defendant had control of either the weapon or of the vehicle with

       knowledge of the weapon’s presence.” Grim v. State, 797 N.E.2d 825, 831 (Ind.

       Ct. App. 2003) (formatting altered). It is undisputed that Byrd had control of

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-557 | December 28, 2015   Page 6 of 7
       the vehicle in this case. And, as with the marijuana, knowledge may be inferred

       from the exclusive dominion and control over the premises containing the

       contraband, or with evidence of “additional circumstances” pointing to the

       defendant’s knowledge of the presence of the contraband. Id.


[13]   Byrd contends that he did not have knowledge of the gun because it was

       wrapped in a blanket and placed inside the bag. However, whether the

       contraband was in plain view is only one of several potential “additional

       circumstances” that support an inference of knowledge. Our review of the

       record indicates that Byrd was in close proximity to the gun. He had his seat

       pushed all the way back and reclined, placing the book bag within his reach.

       Additionally, the setting where the gun, or contraband, was found suggests

       distribution of drugs—the gun was with the marijuana, inside the blanket

       directly over the marijuana; the book bag also contained a scale and baggies

       and Byrd stipulated that the quantity and packaging were consistent with

       distribution; Byrd was carrying over $2000 in small denominations. The

       “additional circumstances” support the trial court’s inference that Byrd had

       knowledge of the gun. We find the inference reasonable, and therefore, find no

       error.


[14]   Affirmed.

       Bailey, J., and Crone, J., concur.




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