MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Feb 28 2018, 11:08 am

court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Curtis T. Hill, Jr.
Rory Gallagher                                           Attorney General of Indiana
Marion County Public Defender Agency
                                                         Caryn N. Szyper
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Leroy Washington,                                        February 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1707-CR-1664
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jose D. Salinas,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G14-1605-CM-18662



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1664 | February 28, 2018          Page 1 of 5
                                       Statement of the Case
[1]   Leroy Washington appeals his conviction for possession of marijuana, as a

      Class B misdemeanor, following a bench trial. Washington presents a single

      issue for our review, namely, whether the State presented sufficient evidence to

      support his conviction. We affirm.


                                 Facts and Procedural History
[2]   On May 16, 2016, Washington was driving a car with an expired license plate

      in Indianapolis. There were no passengers in Washington’s car. Indianapolis

      Metropolitan Police Department Officers Sergio Deleon and Jordan Bull

      conducted a traffic stop because of the expired plate. Both officers smelled the

      odor of marijuana coming from the vehicle, and a third officer, Robert Cosler,

      who had arrived at the scene also smelled marijuana.


[3]   Officers ordered Washington to exit the car, and they placed him in handcuffs

      while they searched the car. During the search, Officer Cosler used a key he

      found on a key ring in the car’s ignition to open the locked glove compartment,

      and inside he found “a baggie containing several individually wrapped baggies

      that contained a green leafy substance that [he] kn[ew] through [his] training

      and experience to be marijuana.” Tr. at 26. Officer Cosler also found “an

      orange pill bottle that contained marijuana, a grinder, and several more . . .

      empty plastic bags.” Id. at 26-27. Washington told Officer Bull that he had

      “just purchased” the car and had not yet registered the car. Id. at 19.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1664 | February 28, 2018   Page 2 of 5
      Washington denied that the contraband found in the glove compartment

      belonged to him.


[4]   The State charged Washington with possession of marijuana, as a Class B

      misdemeanor. Following a bench trial, the trial court entered judgment of

      conviction as charged and sentenced Washington to sixty days, with four days

      executed and fifty-six days suspended. The trial court also ordered Washington

      to complete sixty hours of community service. This appeal ensued.


                                     Discussion and Decision
[5]   Washington contends that the State presented insufficient evidence to support

      his conviction. In reviewing the sufficiency of the evidence, we consider only

      the evidence and reasonable inferences most favorable to the conviction, neither

      reweighing the evidence nor reassessing witness credibility. Griffith v. State, 59

      N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable

      fact-finder could find the defendant guilty. Id.


[6]   To prove possession of marijuana, as a Class B misdemeanor, the State was

      required to show that Washington knowingly or intentionally possessed

      marijuana. Ind. Code § 35-48-4-11 (2016). Washington maintains that he “did

      not have exclusive control over everything inside the Oldsmobile. He had just

      purchased the Oldsmobile and was driving it for the first time when he was

      pulled over. The additional circumstances fail to demonstrate that Washington

      knew marijuana was located inside the locked glove box.” Appellant’s Br. at 9.

      We cannot agree.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1664 | February 28, 2018   Page 3 of 5
[7]   A person actually possesses contraband when he has direct physical control

      over it. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). But a conviction for a

      possessory offense does not depend on catching a defendant red-handed. Id.

      When the State cannot show actual possession, a conviction for possessing

      contraband may rest instead on proof of constructive possession. Id. A person

      constructively possesses contraband when the person has (1) the capability to

      maintain dominion and control over the item; and (2) the intent to maintain

      dominion and control over it. Id. A trier of fact may infer that a defendant had

      the capability to maintain dominion and control over contraband from the

      simple fact that the defendant had a possessory interest in the premises on

      which an officer found the item. Id. Here, there is no question that

      Washington, the owner1 and sole occupant of the car, had the capability to

      maintain dominion and control over the contraband in the glove compartment,

      as it was within his reach, and he had the key to unlock the glove compartment.

      Holmes v. State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003).


[8]   Thus, we turn to whether a reasonable fact-finder could conclude on these facts

      that Washington had the intent to possess the contraband. For such issues, our

      ultimate question is “whether a reasonable fact-finder could conclude from the




      1
        Again, Washington told the officers that he had just bought the car and was driving it for the first time that
      day. To the extent Washington contends that the circumstances of this case are akin to cases “where another
      person recently had access to the car” and we held that the evidence was insufficient to prove possession, the
      cases upon which Washington relies are distinguishable and do not support his contention on appeal.
      Appellant’s Br. at 11. The fact-finder here was entitled to discredit Washington’s testimony that he was
      driving the car for the first time that day, and, in any event, the evidence is sufficient to show that
      Washington constructively possessed the contraband in the glove compartment.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1664 | February 28, 2018             Page 4 of 5
      evidence that the defendant knew of the nature and presence of the

      contraband.” Johnson v. State, 59 N.E.3d 1071, 1074 (Ind. Ct. App. 2016).

      Three police officers testified that they smelled the odor of marijuana coming

      from Washington’s car when they approached the open driver’s side window.

      We hold that the evidence is sufficient to support a reasonable inference that

      Washington knew of the nature and presence of the marijuana and, thus, that

      he both had the capability to maintain dominion and control over the

      contraband and that he intended to possess it. Washington’s contentions on

      appeal amount to a request that we reweigh the evidence, which we cannot do.

      The State presented sufficient evidence to support Washington’s conviction.


[9]   Affirmed.


      Mathias, J., and Barnes, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1664 | February 28, 2018   Page 5 of 5
