MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                         May 31 2017, 9:27 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Earl Moody,                                             May 31, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1611-CR-2487
       v.                                               Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Alicia Gooden,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Richard
                                                        Hagenmaier, Commissioner
                                                        Trial Court Cause No.
                                                        49G21-1602-F5-4595



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017        Page 1 of 7
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Earl Moody (Moody), appeals his conviction possession

      of marijuana, a Level 6 felony, Ind. Code § 35-48-4-11(c).


[2]   We affirm.


                                                   ISSUE
[3]   Moody presents one issue on appeal, which we restate as: Whether the State

      presented sufficient evidence beyond a reasonable doubt that he possessed

      marijuana.


                      FACTS AND PROCEDURAL HISTORY
[4]   On February 1, 2016, Indianapolis Metropolitan Police Department Officer

      James Perry (Officer Perry) initiated a traffic stop after he observed a vehicle fail

      to signal while exiting a gas station. Officer Perry identified Moody as the

      driver, and the other occupant was J.L. (J.L.), a minor, seated as a passenger in

      the front seat. When Officer Perry asked for Moody’s license and registration,

      Moody offered the documents and indicated that he had “just purchased the

      vehicle.” (Transcript p. 93). Officer Perry also identified the odor of raw

      marijuana emanating from the driver side of the car. Officer Perry returned to

      his vehicle and called for back-up. Officer Joe Beasley (Officer Beasley)

      responded, and he too noticed the smell of raw marijuana coming from the

      driver side. Officer Perry approached the passenger side, opened the door, and

      asked J.L. to step out of the vehicle. As J.L. stepped out of the vehicle, and

      based on his training, Officer Perry observed “a plastic baggie containing raw
      Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017   Page 2 of 7
      marijuana just to the right of the passenger seat on the floorboard.” (Tr. p. 16).

      Officer Perry alerted Officer Beasley to the discovery of the contraband, and

      Moody was ordered out of the vehicle. Moody and J.L. were handcuffed and

      each were read their Miranda rights. Again, Moody stated that he was the

      owner of the car, but denied knowledge of the presence of marijuana inside his

      vehicle.


[5]   At some point, Officer David Williams (Officer Williams) arrived at the scene

      to offer his assistance. While Officer Williams watched Moody and J.L.,

      Officers Perry and Beasley conducted a further search of Moody’s vehicle. The

      subsequent search yielded two additional vacuum-sealed plastic bags containing

      raw marijuana. One bag was found “under the center console,” and the other

      was lying between the center console and the passenger seat. (Tr. p. 20). In the

      trunk, the officers found “80 caliber rounds,” and a search of Moody’s person

      revealed a total of $896 in cash. (Tr. p. 21). A chemical test of the baggie found

      on the floorboard on the passenger side yielded 3.83 grams of marijuana. The

      two vacuum-sealed plastic bags found in the vicinity of the center console

      yielded marijuana weighing 27.52 grams and 27.76 grams, respectively.


[6]   On February 4, 2016, the State filed an Information, charging Moody with

      Count I, dealing in marijuana, a Level 6 felony; Count II, maintaining a

      common nuisance, a Level 6 felony; and Count III, possession of marijuana, a

      Class B misdemeanor. Based on a prior drug conviction, the State also charged

      Moody with possession of marijuana, a Level 6 felony. Moody waived his right

      to a jury trial, and a bench trail was conducted on October 6, 2016. At the end

      Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017   Page 3 of 7
      of the State’s case-in chief, Moody moved for involuntary dismissal pursuant to

      Indiana Trial Rule 41(B). Based on the evidence presented by the State, the

      trial court dismissed the dealing in marijuana and maintaining common a

      nuisance charges; however, it found that the State had presented sufficient

      evidence with respect to the possession of marijuana charge. Moody proceeded

      to present his case, and at the close of the evidence, the trial court found Moody

      guilty of possession of marijuana, a Class B misdemeanor. Considering

      Moody’s prior drug conviction, the trial court elevated Moody’s Class B

      misdemeanor possession of marijuana to a Level 6 felony. On the same day,

      the trial court sentenced Moody to an executed sentence of 498 days, with 249

      days of credit time.


[7]   Moody now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   Moody challenges the sufficiency of the evidence supporting his conviction for

      possession of marijuana, a Level 6 felony. On review, our court will not

      reweigh evidence or assess the credibility of witnesses. Whitney v. State, 726

      N.E.2d 823, 825 (Ind. Ct. App. 2000). We will consider the evidence most

      favorable to the judgement, together with all reasonable inferences to be drawn

      therefrom, and we will affirm the conviction “if the probative evidence and

      reasonable inferences to be drawn from the evidence could have allowed a

      reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”

      Id.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017   Page 4 of 7
[9]    In order to convict Moody of a Level 6 felony, possession of marijuana, the

       State was required to prove beyond a reasonable doubt that he knowingly or

       intentionally possessed marijuana weighing more than thirty grams. See I.C. §

       35-48-4-11. It is well-established that possession of an item may be either actual

       or constructive. See Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997),

       modified on reh’g, 685 N.E.2d 698 (Ind. 1997). Actual possession occurs when a

       person has direct physical control over the item. Houston v. State, 997 N.E.2d

       407, 410 (Ind. Ct. App. 2013). Constructive possession occurs when a person

       has: (1) the capability to maintain dominion and control over the item; and (2)

       the intent to maintain dominion and control over it. Lampkins, 682 N.E.2d at

       1275. Here, the State’s case was based on theory of constructive possession.

       Moody claims that the State failed to show that he had actual knowledge of the

       presence of marijuana in his vehicle. Accordingly, Moody only disputes the

       intent element of constructive possession doctrine, not the capability prong.


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

       presence of the contraband. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). This

       knowledge may be inferred from either the exclusive dominion and control over

       the premise containing the contraband or, if the control is non-exclusive, like

       here, evidence of additional circumstances pointing to the defendant’s

       knowledge of the presence of the contraband. Id. Such additional

       circumstances include, but are not limited, to the following: (1) incriminating

       statements made by the defendant; (2) attempted flight or furtive gestures; (3) a

       manufacturing setting; (4) proximity of the defendant to the contraband; (5)


       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017   Page 5 of 7
       location of the contraband within the plain view of the defendant; and (6)

       location of the contraband within close proximity of items owned by the

       defendant. Bradley v. State, 765 N.E.2d 204, 212 (Ind. Ct. App. 2002).


[11]   In this case, there is evidence pointing to Moody’s knowledge of the presence of

       the marijuana, specifically, its pungent odor. The record shows that the odor

       was immediately detected by Officer Perry as soon as Moody rolled down his

       car windows following the traffic stop. In addition, Officer Beasley, who

       arrived at the scene moments later, likewise smelled the odor of raw marijuana

       emanating from the driver’s side of the vehicle. Based on the obvious smell of

       raw marijuana emanating from the driver’s side of the car, the trial court could

       reasonably infer that the marijuana odor was likewise readily detectable by

       Moody and thus he knew the marijuana was present in his vehicle. In addition

       to the odor, Moody was also in close proximity to the seized contraband. The

       search of Moody’s vehicle yielded two vacuum-sealed plastic bags containing

       raw marijuana, one of which was found under the center console of the vehicle,

       and the other between the center console and the passenger seat. Moody had

       easy access to the center console where the vacuum-sealed plastic bags

       containing raw marijuana were detected.


[12]   Based on the foregoing, we conclude that the State presented sufficient evidence

       for the trier of fact to infer that Moody had constructive possession of the

       recovered contraband. Thus, there was sufficient evidence beyond a reasonable

       doubt to sustain his Level 6 felony, possession of marijuana conviction.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017   Page 6 of 7
                                             CONCLUSION
[13]   In light of the above, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt that Moody constructively possessed marijuana.


[14]   Affirmed.


[15]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2487 | May 31, 2017   Page 7 of 7
