      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any                              Sep 28 2018, 10:17 am
      court except for the purpose of establishing
                                                                                  CLERK
      the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                                 Court of Appeals
      estoppel, or the law of the case.                                            and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Rory Gallagher                                           Curtis T. Hill, Jr.
      Victoria L. Bailey                                       Attorney General of Indiana
      Marion County Public Defender –
                                                               Caroline G. Templeton
      Appellate Division                                       Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Rasoul Waddy,                                            September 28, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-640
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Ronnie Huerta,
      Appellee-Plaintiff.                                      Commissioner
                                                               Trial Court Cause No.
                                                               49G19-1709-CM-33245



      Mathias, Judge.

[1]   Rasoul Waddy (“Waddy”) was convicted in the Marion Superior Court of

      driving while suspended, a Class A misdemeanor, and possession of marijuana,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018               Page 1 of 6
      a Class B misdemeanor. Waddy appeals only his conviction for possession of

      marijuana, arguing that the State presented insufficient evidence to support a

      conviction.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On September 3, 2017, Officers Germayne Curry and Marc Klonne of the

      Indianapolis Metropolitan Police Department observed Rasoul Waddy driving

      a car on Forest Manor Avenue. The officers pulled him over after determining

      the license plate number did not match the car Waddy was driving. When the

      officers walked up to the window, they noticed the smell of marijuana. This

      smell became even stronger as Waddy rolled down the driver’s side window.

      Waddy was the vehicle’s only occupant.


[4]   When Officer Curry asked Waddy for his license and registration, Waddy

      informed the officer that he did not have a license and that his license was

      suspended. Waddy then handed Officer Curry his State Identification Card.

      The officers searched the car, finding a handgun under the driver’s seat and a

      mason jar containing marijuana in the glove compartment. The search was not

      challenged.


[5]   Waddy was charged with carrying a handgun without a license, a Class A

      misdemeanor; driving while suspended, a Class A misdemeanor; knowingly or

      intentionally driving without ever having received a license, a Class A



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018   Page 2 of 6
      misdemeanor; and possession of marijuana, a Class B misdemeanor. A bench

      trial was held on March 8, 2018.


[6]   Waddy’s girlfriend, Danetra Odom, testified that the vehicle belonged to her.

      On the day Waddy was pulled over, Odom let her friend, Endricca Smith,

      borrow the car for the day. Waddy testified that Smith showed up to Waddy’s

      home intoxicated around 3:00 am. Because Smith was too intoxicated to drive,

      Waddy took the keys. He was driving to pick up Odom from work when the

      officers pulled him over.


[7]   The trial court dismissed the handgun charge pursuant to Trial Rule 41(B). The

      trial court also found Defendant guilty of driving while suspended and

      determined that the charge merged with operating a vehicle without ever

      receiving a license. The trial court also found Waddy guilty of possession of

      marijuana.


[8]   With respect to the possession of marijuana charge, the trial court found that

      Waddy had dominion and control over the vehicle and that the marijuana was

      within arm’s reach. The trial court also found there was a strong odor of

      marijuana coming from the car at the time Waddy was pulled over. Because of

      these facts, the trial court found Waddy guilty of possession of marijuana.


                                     Discussion and Decision
[9]   On appeal, Waddy presents one issue for our review: whether the State

      presented sufficient evidence to support a conviction of Possession of Marijuana

      based on a theory of constructive possession.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018   Page 3 of 6
[10]   Our standard of review on claims of insufficient evidence is well settled. When

       reviewing a claim that the evidence is insufficient to support a conviction, we

       neither reweigh the evidence nor judge the credibility of the witnesses. Harrison

       v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied. We instead

       respect the exclusive province of the finder of fact to weigh any conflicting

       evidence. Id. We consider only the probative evidence supporting the judgment

       and any reasonable inferences which may be drawn from this evidence, and we

       will affirm if the probative evidence and reasonable inferences drawn therefrom

       could have allowed a reasonable trier of fact to find the defendant guilty beyond

       a reasonable doubt. Id.


[11]   This Court has long recognized that a conviction for possession of contraband

       can be established by actual or constructive possession. Griffin v. State, 945

       N.E.2d 781, 783 (Ind. Ct. App. 2011). Actual possession occurs when a

       defendant has direct physical control over an item. Gee v. State, 810 N.E.2d 338,

       340 (Ind. 2004). Constructive possession occurs when a person has both (i) the

       intent to maintain dominion and control over the drugs and (ii) the capability to

       maintain dominion and control over the drugs. Id.


[12]   In order to fulfill the capability element, the State must demonstrate that the

       defendant was able to reduce the controlled substance to his personal

       possession. Id. To satisfy the intent element, the State must demonstrate the

       defendant’s knowledge of the presence of the contraband. Id. at 341. In the

       absence of exclusive possession by the defendant, the State does not have the

       benefit of the inference of the intent to maintain dominion and control of the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018   Page 4 of 6
       drugs, and instead must point to additional circumstances to demonstrate the

       defendant’s knowledge of the contraband. Wilkerson v. State, 918 N.E.2d 459,

       462 (Ind. Ct. App. 2009).


[13]   Courts have looked to the following six additional circumstances to determine

       whether the evidence is sufficient to support a finding of constructive

       possession: i) incriminating statements made by the defendant; ii) attempted

       flight or furtive gestures; iii) location of substances like drugs in settings that

       suggest manufacturing; iv) proximity of contraband to the defendant; v)

       location of contraband within the defendant’s plain view; and vi) the mingling

       of contraband with other items owned by the defendant. Gee, 810 N.E.2d at

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

       881 N.E.2d 1095, 1099–1100. However, this list is not exhaustive. Gee, 810

       N.E.2d at 344. “[T]he State is required to show that whatever factor or set of

       factors it relie[d] upon in support of the intent prong of constructive possession,

       those factors or set of factors must demonstrate the probability that the

       defendant was aware of the presence of the contraband and its illegal

       character.” Id.


[14]   This Court has recognized the odor of marijuana as an additional circumstance

       to prove the defendant’s knowledge of the presence of marijuana. See Griffin,

       945 N.E.2d at 784 (“Moreover, Griffin should have been aware there was a

       possibility that marijuana was in the vehicle because Officer Alford testified that

       there was a strong odor of marijuana when he stepped out of his car.”).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018   Page 5 of 6
[15]   Waddy testified that he had no knowledge that the marijuana was in the

       vehicle. He also testified that he could not smell the marijuana at all.


[16]   In response to Waddy’s testimony, the State relied on the arresting officer’s

       testimony regarding the strong marijuana odor emanating from the vehicle as

       the additional circumstance demonstrating that the defendant was aware of the

       presence of the marijuana. Waddy did not dispute his close proximity to the

       marijuana within the vehicle.


[17]   The proximity of the Mason jar containing marijuana, and the odor of

       marijuana emanating from the vehicle at the time Waddy was pulled over were

       facts the trial court could rely upon to establish Waddy’s intent to possess

       marijuana. Waddy’s argument to the contrary is simply a request to reweigh the

       evidence and credibility of the witnesses, which this Court will not do.


                                                 Conclusion
[18]   The State presented sufficient evidence to establish that Waddy constructively

       possessed marijuana. Waddy’s conviction of Possession of Marijuana is

       affirmed.

[19]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-640 | September 28, 2018   Page 6 of 6
