FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

BART M. BETTEAU.                            GREGORY F. ZOELLER
Betteau Law Office, LLC                     Attorney General of Indiana
New Albany, Indiana
                                            IAN MCLEAN
                                            Deputy Attorney General

                                                                          FILED
                                            Indianapolis, Indiana

                                                                      Jun 11 2012, 9:53 am
                              IN THE
                   COURT OF APPEALS OF INDIANA                                CLERK
                                                                            of the supreme court,
                                                                            court of appeals and
                                                                                   tax court




CANON HARPER,                               )
                                            )
      Appellant- Defendant,                 )
                                            )
             vs.                            )      No. 10A01-1012-CR-687
                                            )
STATE OF INDIANA,                           )
                                            )
      Appellee- Plaintiff,                  )


                    APPEAL FROM THE CLARK SUPERIOR COURT
                        The Honorable Jerome F. Jacobi, Judge
                           Cause No. 10D02-0811-FA-378




                                  June 11, 2012



                   OPINION ON REHEARING - FOR PUBLICATION




ROBB, Chief Judge
       Canon Harper has petitioned for rehearing of this court’s decision in Harper v.

State, 963 N.E.2d 653 (Ind. Ct. App. 2012), in which we affirmed Harper’s convictions

for dealing in cocaine, possession of cocaine, dealing in a narcotic drug, and possession

of a narcotic drug, all Class A felonies; two counts of resisting law enforcement, battery

of a law enforcement officer, and possession of paraphernalia, all Class A misdemeanors;

and maintaining a common nuisance, a Class D felony. We held, inter alia, sufficient

evidence existed to support Harper’s convictions. We grant the petition for rehearing to

clarify our conclusion that Harper constructively possessed the contraband that led to his

convictions for dealing, possession, and maintaining a common nuisance. In all other

respects, we reaffirm our opinion.

       Harper contends insufficient evidence supported the conclusion that he

constructively possessed contraband found in either his vehicle or motel room.

“Constructive possession will support a possession conviction if the State shows that the

defendant had both the capability and the intent to maintain dominion and control over

the contraband.” White v. State, 772 N.E.2d 408, 413 (Ind. 2002). He argues the

evidence was insufficient to conclude he had either the requisite intent or capability to

maintain dominion and control over the contraband. Pursuant to Gray v. State, 957

N.E.2d 171, 174-75 (Ind. 2011), under the possessory interest rule, a defendant’s

possessory interest establishes both the intent and capability to maintain dominion and

control over contraband so long as the possession is exclusive. If such possession is not

exclusive, a non-exhaustive list of circumstances was articulated in Gray, and other cases,

for the court to consider in determining whether the defendant had the requisite intent.


                                            2
Id. at 175.    The capability to maintain dominion and control is established by a

possessory interest even if it is non-exclusive. Id.

       Here, we concluded, based on the possessory interest rule, Harper had constructive

possession of contraband located both in a purse that was carried out of his vehicle and in

his motel room. However, Harper did not have exclusive possession of either the vehicle

or motel room, and thus, additional circumstances must be present to establish the intent

prong of constructive possession. Based on the articulated factors in Gray and other

cases, we still conclude Harper had the requisite intent to maintain dominion and control

of the contraband, and, therefore, that Harper had constructive possession of the

contraband.

       One of the articulated factors is whether the defendant attempted to flee or made

furtive gestures. Here, when an officer attempted to arrest Harper, Harper fled on foot.

Once caught, he assaulted a police officer before he was apprehended. Another factor is

the proximity of contraband to the defendant. Here, the contraband in the vehicle was in

close physical proximity to Harper, and the contraband in the motel was discovered

relatively soon after Harper checked into the room and not long after he left and came

back with a friend. Sufficient evidence existed for a reasonable finder of fact to conclude

Harper constructively possessed the contraband.

       Accordingly, we again affirm Harper’s convictions.

NAJAM, J., and VAIDIK, J., concur.




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