MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Dec 16 2016, 8:41 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Barbara Simmons                                          Gregory F. Zoeller
Oldenburg, Indiana                                       Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Anthony LeFlore,                                         December 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1603-CR-471
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy M. Jones,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G08-1510-CM-35740



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision [49A02-1603-CR-471 | December 16, 2016      Page 1 of 6
                                             Case Summary
[1]   Anthony LeFlore appeals his conviction for Class B misdemeanor possession of

      marijuana. We affirm.


                                                     Issue
[2]   LeFlore raises one issue, which we restate as whether the State presented

      sufficient evidence to prove that he possessed marijuana.


                                                     Facts
[3]   On October 7, 2015, Detective Craig McElfresh of the Indianapolis

      Metropolitan Police Department was conducting surveillance of a residence

      prior to executing a search warrant. Detective McElfresh observed LeFlore

      leave the residence driving a Monte Carlo vehicle. LeFlore returned a few

      minutes later and parked in the driveway next to the porch. LeFlore was sitting

      on the front porch when the SWAT team executed the search warrant, and he

      ran away. Detective McElfresh followed LeFlore and ordered him to get on the

      ground, and LeFlore surrendered. LeFlore had the keys to the Monte Carlo

      when he was detained. While Detective John Schweers was executing the

      search warrant, he walked around the outside of the Monte Carlo and smelled a

      strong odor of raw marijuana coming from the rear of the vehicle. He opened

      the fuel hatch and found a bag of marijuana on top of the gas cap.


[4]   The State charged LeFlore with Class B misdemeanor possession of marijuana.

      After a bench trial, LeFlore was found guilty as charged. LeFlore now appeals.


      Court of Appeals of Indiana | Memorandum Decision [49A02-1603-CR-471 | December 16, 2016   Page 2 of 6
                                                  Analysis
[5]   LeFlore argues that the evidence was insufficient to show that he possessed the

      marijuana. In reviewing the sufficiency of the evidence, we neither reweigh the

      evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065,

      1066 (Ind. 2015). We only consider “the evidence supporting the judgment and

      any reasonable inferences that can be drawn from such evidence.” Id. A

      conviction will be affirmed if there is substantial evidence of probative value

      supporting each element of the offense such that a reasonable trier of fact could

      have found the defendant guilty beyond a reasonable doubt. Id. “‘It is the job

      of the fact-finder to determine whether the evidence in a particular case

      sufficiently proves each element of an offense, and we consider conflicting

      evidence most favorably to the trial court’s ruling.’” Id. at 1066-67 (quoting

      Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)).


[6]   LeFlore argues that the evidence was insufficient to prove that he possessed the

      marijuana. See Ind. Code § 35-48-4-11(a). A conviction for possession of

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

      Houston v. State, 997 N.E.2d 407, 409-10 (Ind. Ct. App. 2013). Actual

      possession occurs when a person has direct physical control over the item. Id.

      at 410. Because LeFlore did not have direct physical control over the

      marijuana, the State had to prove that he had constructive possession of it. 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



      Court of Appeals of Indiana | Memorandum Decision [49A02-1603-CR-471 | December 16, 2016   Page 3 of 6
      maintain dominion and control over it. Gray v. State, 957 N.E.2d 171, 174 (Ind.

      2011).


[7]   “The capability prong may be satisfied by ‘proof of a possessory interest in the

      premises in which illegal drugs are found.’” Houston, 997 N.E.2d at 410

      (quoting Monroe v. State, 899 N.E.2d 688, 692 (Ind. Ct. App. 2009)). “This is so

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

      The State presented evidence that LeFlore was seen driving the vehicle and had

      the keys in his possession when he was detained. LeFlore parked the vehicle

      next to the porch, where he was sitting when officers executed the search

      warrant. LeFlore testified that the vehicle belonged to his mother and that

      other people also drove it. However, it is unnecessary that the possession of the

      vehicle be exclusive for the defendant to have the capability to maintain

      dominion and control over the vehicle. The State presented sufficient evidence

      to prove that LeFlore had the capability to maintain dominion and control over

      the vehicle.


[8]   With regard to the intent prong of the test, where a defendant’s possession of

      the premises upon which contraband is found is not exclusive, the inference 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. 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

      Court of Appeals of Indiana | Memorandum Decision [49A02-1603-CR-471 | December 16, 2016   Page 4 of 6
       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.

       Id.


[9]    LeFlore argues that the State failed to present any evidence that he had

       knowledge of the marijuana on the gas cap. He points out that he made no

       incriminating statements, that he was cooperative with the officers, and that he

       was not in close proximity to the marijuana. He argues that the gas cap door

       could have been opened by anyone. The State presented evidence that, during

       their surveillance, the officers saw LeFlore driving the vehicle and did not see

       anyone else in the vicinity of the Monte Carlo. LeFlore parked the vehicle right

       next to the porch, where he was sitting. LeFlore fled the area when the officers

       attempted to execute the search warrant.


[10]   We conclude that the State presented sufficient evidence to demonstrate

       LeFlore had the intent to maintain dominion and control over the marijuana.

       LeFlore’s argument to the contrary is merely a request that we reweigh the

       evidence, which we cannot do. The evidence is sufficient to demonstrate

       LeFlore’s constructive possession of the marijuana. See Gray, 957 N.E.2d at

       176 (holding that the evidence was sufficient to find the defendant

       constructively possessed marijuana).


                                                 Conclusion
[11]   The evidence is sufficient to sustain LeFlore’s conviction for Class B

       misdemeanor possession of marijuana. We affirm.

       Court of Appeals of Indiana | Memorandum Decision [49A02-1603-CR-471 | December 16, 2016   Page 5 of 6
[12]   Affirmed.


       Bailey, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision [49A02-1603-CR-471 | December 16, 2016   Page 6 of 6
