MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Dec 16 2016, 8:54 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ernest P. Galos                                         Gregory F. Zoeller
Public Defender                                         Attorney General of Indiana
South Bend, Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tommie Payne, IV,                                       December 16, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1604-CR-780
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Julie Verheye,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        71D08-1508-CM-3114



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-780 | December 16, 2016   Page 1 of 6
[1]   Tommie Payne, IV, appeals his conviction of Class B misdemeanor possession

      of marijuana. 1 Payne alleges there was insufficient evidence to prove his

      possession beyond a reasonable doubt. We affirm.



                                Facts and Procedural History
[2]   At around 3:20 a.m. on August 23, 2015, Officer Allen Wiegand observed

      several parked vehicles with occupants yelling at each other. He followed the

      cars as they began driving westbound. One of the cars made several traffic

      violations, and Officer Wiegand initiated a stop.


[3]   As the car slowed down, Officer Wiegand noticed the occupant in the front

      passenger seat, Irwin Scott, and the occupant in the back passenger seat, Payne,

      moving around in the car. Specifically, Officer Wiegand saw Payne “ducking

      down” toward the left. (Tr. at 7.) When approaching the stopped car, Officer

      Wiegand “smell[ed] the odor of marijuana coming from the vehicle.” (Id. at 8.)

      Payne and Scott continued to move around and reach into their pockets while

      Officer Wiegand asked them for their information. Officer Wiegand had to

      order them several times to stop moving.


[4]   Officer Wiegand removed Payne, Scott, and the driver, Beoncia Hopson, from

      the car to search it. In the grass near Scott, another officer found a bag that

      appeared to be filled with heroin. When Officer Wiegand began to handcuff




      1
          Ind. Code 35-48-4-11(a)(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-780 | December 16, 2016   Page 2 of 6
      Hopson, Scott ran away. The other officers on the scene chased Scott while

      Officer Wiegand handcuffed Payne and Hopson.


[5]   Officer Wiegland resumed the search of the car and found multiple bags of

      marijuana and a scale in the center console. He found more bags of marijuana

      and another scale in between Payne’s seat and the back passenger door. There

      was also a bag of marijuana “completely in plain view” on the floor “just

      behind the driver’s seat.” (Id. at 11.) A field test confirmed the bag from the

      ground contained heroin, and a test conducted at the station confirmed the

      other bags contained marijuana.


[6]   The State charged Payne with Class B misdemeanor possession of marijuana.

      On March 10, 2016, after a bench trial, the trial court found Payne guilty as

      charged. The judge imposed a 60-day suspended sentence and 180 days of

      probation.



                                Discussion and Decision
[7]   When considering a sufficiency of the evidence argument, “appellate courts

      must consider only the probative evidence and reasonable inferences supporting

      the verdict.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Reviewing

      courts “consider only whether a reasonable factfinder could be satisfied of the

      matter at issue beyond a reasonable doubt, without reweighing the evidence.”

      Knapp v. State, 9 N.E.3d 1274, 1286 (Ind. 2014), cert. denied. Presented evidence

      does not need to “overcome every reasonable hypothesis of innocence.” Drane


      Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-780 | December 16, 2016   Page 3 of 6
      v. State, 867 N.E.2d 144, 147 (Ind. 2007) (quoting Moore v. State, 652 N.E.2d 53,

      55 (Ind. 1995), reh’g denied).


[8]   The State charged Payne with knowingly possessing marijuana. See Ind. Code

      § 35-48-4-11(a)(1) (2014) (stating definition of crime); and see (App. Vol. II at

      45) (charging information alleges knowing possession). “A person engages in

      conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high

      probability that he is doing so.” Ind. Code § 35-41-2-2(b). To obtain a

      conviction for possession of marijuana, possession can be either actual or

      constructive. Mack v. State, 23 N.E.3d 742, 759 (Ind. Ct. App. 2014), trans.

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

      over the items.” Brent v. State, 957 N.E.2d 648, 650 (Ind. Ct. App. 2011)

      (quoting Bradshaw v. State, 818 N.E.2d 59, 62 (Ind. Ct. App. 2004)), trans.

      denied. Constructive possession occurs when “the defendant has the intent and

      capability to maintain dominion and control over the contraband.” Holmes v.

      State, 785 N.E.2d 658, 660 (Ind. Ct. App. 2003).


[9]   The evidence necessary to prove constructive possession depends on whether a

      defendant had exclusive possession of the location where the contraband was

      found. “In cases where the accused has exclusive possession of the premises on

      which the contraband is found, an inference is permitted that he or she knew of

      the presence of contraband and was capable of controlling it.” Id. at 661.

      When possession of the premises is not exclusive, factors permitting an

      inference that a defendant could control or knew of the drugs include: “(1)

      incriminating statements by the defendant; (2) attempted flight or furtive
      Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-780 | December 16, 2016   Page 4 of 6
       gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the

       contraband; (5) contraband is in plain view; and (6) location of the contraband

       is in close proximity to items owned by the defendant.” Id.


[10]   Payne argues there was insufficient evidence to support a conviction of Class B

       misdemeanor possession of marijuana because the trial court stated, “And what

       kind of tips the balance I think is the smell of burnt marijuana.” (Tr. at 46.) In

       support thereof, he notes we have previously acknowledged that the smell of

       marijuana lingers, Edmond v. State, 951 N.E.2d 585, 591 (Ind. Ct. App. 2011),

       and we have held that the smell of burnt marijuana alone is not sufficient to

       prove constructive possession. Brent, 957 N.E.2d at 652.


[11]   However, the facts herein are not analogous to those in Brent, where the car

       smelled of burnt marijuana, but no marijuana was found in the car. Rather,

       here, in addition to the smell of burnt marijuana, Officer Wiegand found bags

       of marijuana next to the back passenger seat where Payne sat and in plain view

       on the floor behind the driver’s seat. As Officer Wiegand initiated the traffic

       stop, Payne ducked and moved towards the left, and then he continued to move

       furtively throughout the stop. This is not a case where the odor of marijuana is

       “irrelevant” to the determination of constructive possession. Cf. id. (concluding

       the odor of marijuana was “irrelevant to Brent’s possession” when no drugs

       were found in the car). Instead, the odor of marijuana is merely an additional

       factor suggesting Payne knew about the drugs that were present in the car and

       could control them.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-780 | December 16, 2016   Page 5 of 6
[12]   Police found marijuana in plain view in the back seat of the car where Payne

       was sitting and next to his seat, which implicates two of the factors from which

       we may infer Payne had “the intent and capability to maintain dominion and

       control over the contraband.” Holmes, 785 N.E.2d at 660. In addition, Payne

       was making furtive movements in the direction of the marijuana found in plain

       view. Because at least three of the constructive possession factors mentioned in

       Holmes are met, a reasonable fact-finder could have concluded that Payne

       constructively possessed the marijuana. See id. at 662 (holding two factors --

       defendant’s close proximity to drugs and attempt to flee -- were sufficient to

       uphold a conviction for marijuana possession).



                                               Conclusion
[13]   The State presented sufficient evidence Payne constructively possessed

       marijuana. We accordingly affirm.


[14]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-780 | December 16, 2016   Page 6 of 6
