                                                                             Oct 31 2013, 5:17 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

DONALD J. FREW                                GREGORY F. ZOELLER
Fort Wayne, Indiana                           Attorney General of Indiana

                                              CYNTHIA L. PLOUGHE
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

MICHAEL R. HOUSTON,                           )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 02A03-1303-CR-84
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Wendy W. Davis, Judge
                             Cause No. 02D04-1202-FD-157



                                   October 31, 2013


                             OPINION - FOR PUBLICATION


KIRSCH, Judge
       Michael R. Houston (“Houston”) was convicted after a jury trial of possession of

cocaine1 as a Class D felony. He appeals raising the following restated issue: whether

the State presented sufficient evidence to support his conviction.

       We reverse.

                           FACTS AND PROCEDURAL HISTORY

       During the early morning hours of January 29, 2012, Officer Stephanie Souther of

the Fort Wayne Police Department (“Officer Souther”) was working patrol in Fort

Wayne, Indiana when she saw a black Dodge Charger pull out of the lot of Broadway

Joe’s bar. The car’s windows were so darkly tinted that she could not see inside the

vehicle, but the car merely pulled across the street and parked in a lot there. Officer

Souther observed Houston, whom she recognized from prior encounters, walking away

from the car, but did nothing more at that time.

       About an hour later, at 1:55 a.m., Officer Souther saw the car again moving at a

“pretty high rate of speed.” Tr. at 90. She decided to stop the car, but due to the dark tint

on the windows, she requested back-up before doing so. Officer Souther activated her

emergency lights, and the car eventually stopped after traveling a short distance. Once

her back-up arrived, the officer asked for the driver, who was later identified as Houston,

to exit the car first, and Houston complied. One by one, three other people exited the car

and came back to where Officer Souther stood. Luther Green (“Green”), who was

identified as the owner of the car, had been sitting in the back passenger-side seat;


       1
           See Ind. Code § 35-48-4-6.


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Ashanti Hood (“Hood”) had been sitting in the front passenger seat; and Keosha Armour

has been seated in the back driver-side seat.

       Officer Souther discovered that Houston did not have a valid driver’s license and

that the license plate on the car belonged to another car. Because the license plate did not

match the car, Officer Souther decided to tow it. Fort Wayne Police Officer Jason

Crowder (“Officer Crowder”) conducted an inventory search of the car before it was

towed. While performing the search, Officer Crowder discovered a small baggie with

white rock-like substance that he believed to be crack cocaine. This baggie was located

between the passenger seat and the center console area. Officer Souther conducted a

field test on the substance, and it tested positive for cocaine.

       Houston was arrested for possession of cocaine and for driving without a valid

driver’s license. During the inventory search, officers also found a vial containing a

yellow-tinted liquid in the center console area. When Houston was being transported to

the jail, he told Officer Souther that the vial contained urine and explained that his uncle

had been riding in the car and urinated in the vial. Id. at 110. When Officer Souther

commented on how small the vial was, Houston denied knowledge of the vial. The vial

was never tested to determine its contents, but at trial, Green stated it was “anointing oil”

used by his church. Id. at 145.

       The State charged Houston with possession of cocaine as a Class D felony. A jury

trial was conducted, at the conclusion of which, Houston was found guilty. Houston was

sentenced to three years with one year and 183 days executed and the balance suspended.

Houston now appeals.

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                             DISCUSSION AND DECISION

         Our standard of review for sufficiency claims is well-settled. When we review a

claim of sufficiency of the evidence, we do not reweigh the evidence or judge the

credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct. App.

2009) (citing Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003)). We look only to the

probative evidence supporting the judgment and the reasonable inferences therein to

determine whether a reasonable trier of fact could conclude the defendant was guilty

beyond a reasonable doubt. Id. If there is substantial evidence of probative value to

support the conviction, it will not be set aside. Id. It is the function of the trier of fact to

resolve conflicts of testimony and to determine the weight of the evidence and the

credibility of the witnesses. Yowler v. State, 894 N.E.2d 1000, 1002 (Ind. Ct. App.

2008).

         Houston argues that the evidence presented at trial was not sufficient to support

his conviction for possession of cocaine. He contends that no evidence was presented to

indicate that he was in actual possession of the cocaine and that the evidence did not

prove beyond a reasonable doubt that he constructively possessed the drugs. Houston

asserts that he was not the owner of the car, that there were three other people present in

the car including the owner, and that there were no other circumstances that showed that

he had any knowledge of the presence of the cocaine. Houston further claims that there

was no evidence presented that he intended to maintain control over the cocaine. As a

result, Houston concludes that the evidence was insufficient to support his conviction.



                                               4
       In order to convict Houston of possession of cocaine as a Class D felony, the State

was required to prove beyond a reasonable doubt that he did, without a valid prescription

or order of a practitioner acting in the course of his professional practice, knowingly or

intentionally possess cocaine, pure or adulterated. Ind. Code § 35-48-4-6. A conviction

for possession of contraband may rest upon proof of either actual or constructive

possession. Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct. App. 2009), trans.

denied. Actual possession occurs when a person has direct physical control over the

item. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Because Houston did not

have direct physical control over the cocaine found in the car, the State had to prove that

he had constructive possession of it.

       In order to prove constructive possession of drugs, the State must show that the

defendant has both: (1) the intent to maintain dominion and control over the drugs; and

(2) the capability to maintain dominion and control over the drugs. Wilkerson v. State,

918 N.E.2d 458, 462 (Ind. Ct. App. 2009) (emphasis added) (quoting Gee v. State, 810

N.E.2d 338, 340 (Ind. 2004)). The capability prong may be satisfied by proof of a

possessory interest in the premises in which illegal drugs are found.’” Monroe v. State,

899 N.E.2d 688, 692 (Ind. Ct. App. 2009) (citing Gee, 810 N.E.2d at 340). “This is so

regardless of whether the possession of the premises is exclusive or not.” Id. Here,

Houston is not contesting that the capability prong was satisfied by the evidence, only

that the intent prong was not met.

       With regard to the intent prong of the test, where, as here, a defendant’s

possession of the premises upon which contraband is found is not exclusive, the inference

                                            5
of intent to maintain dominion and control over the drugs must be supported by

additional circumstances pointing to the defendant’s knowledge of the nature of the

controlled substances and their presence. Id. (citing Gee, 810 N.E.2d at 341). Those

additional circumstances include:

      (1) incriminating statements made by the defendant, (2) attempted flight or
      furtive gestures, (3) location of substances like drugs in settings that
      suggest manufacturing, (4) proximity of the contraband to the defendant,
      (5) location of the contraband within the defendant’s plain view, and (6) the
      mingling of the contraband with other items owned by the defendant.

Wilkerson, 918 N.E.2d at 462.

      In the present case, the evidence presented showed that the cocaine was found

inside the car in the “crevice between the passenger seat and the center console.” Tr. at

97-98. Although this location may have been within reach of the driver’s seat, where

Houston was seated, there was no evidence presented to show that Houston had

knowledge of the presence of the cocaine. No testimony was presented to indicate that

any of the occupants were aware of the presence of the cocaine in the car. When

questioned by Officer Souther, Houston denied any knowledge of the presence of the

cocaine in the car, and both Green and Hood testified that the officers did not ask them

about their knowledge of the cocaine. Id. at 127-28, 147, 175-76. No evidence was

presented that Houston attempted to flee or that he made any furtive gestures. There was

also no testimony to establish that the cocaine was found in plain view of Houston as the

driver of the car, merely that it was found “in the crevice between the passenger seat and

the center console area” within reach of the driver, but on the other side of the console.



                                            6
Id. at 97-98, 131. There was also no evidence that the cocaine was contained near or

comingled with any items belonging to Houston.

       The only evidence of constructive possession that the State points to is the

statement by Houston regarding the vial of yellow-tinted liquid found in the center

console area. The State contends that this statement was evidence that Houston was

aware of items in and around the console area. Such evidence fails because there was no

showing that the vial was connected to the cocaine in any way. Indeed, the evidence

established that the vial was in plain view in the console of the vehicle, not in the crevice

where the cocaine was found. In addition, the evidence failed to show that Houston even

knew what was in the vial because he incorrectly identified the contents of the vial as

urine, and Green testified that the vial actually contained anointing oil used in his church.

Id. at 145. We conclude that the evidence presented at trial was not sufficient to prove

the intent prong of constructive possession. We, therefore, reverse Houston’s conviction

for possession of cocaine.

       Reversed.

ROBB, C.J., and RILEY, J., concur.




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