Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                                      Jun 12 2014, 10:28 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

RUTH JOHNSON                                     GREGORY F. ZOELLER
Marion County Public Defender                    Attorney General of Indiana
Indianapolis, Indiana
                                                 JAMES R. MARTIN
ANDERW BEAN                                      Deputy Attorney General
Certified Legal Intern                           Indianapolis, Indiana
Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SHAWKAN DARDEN,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
               vs.                               )      No. 49A02-1310-CR-892
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-PLaintiff.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Linda Brown, Judge
                            Cause No. 49F10-1307-CM-43010


                                       June 12, 2014

                MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

      Appellant-Defendant, Shakwan Darden (Darden), appeals her conviction for

possession of marijuana, a Class A misdemeanor, Ind. Code § 35-48-4-11(1).

      We affirm.

                                         ISSUE

      Darden raises one issue on appeal, which we restate as:        Whether the State

presented sufficient evidence beyond a reasonable doubt to sustain Darden’s conviction

for possession of marijuana.

                       FACTS AND PROCEDURAL HISTORY

      On July 1, 2013, Derrick Alexander (Alexander) was driving Darden’s vehicle and

drove to Darden’s residence to pick her up. Darden had let Alexander borrow the vehicle

for the weekend. When Alexander arrived at Darden’s home, he was dressed, as usual, in

women’s clothing and smelled strongly of perfume. When Darden got into the vehicle,

she noted that everything appeared “normal.” (Transcript p. 36).

      Shortly after Alexander and Darden pulled off, they drove past Indiana State

Trooper Joseph Vela-Braxton (Trooper Vela-Braxton), who ran the license plate number

of the vehicle. The search indicated that Darden was the registered owner of the vehicle,

and her license was suspended. After seeing this information, Trooper Vela-Braxton

attempted to positively identify the driver by driving next to the vehicle, but Alexander

was maneuvering in and out of traffic and traffic was heavy. From his limited viewpoint,

Trooper Vela-Braxton believed that a female was driving based on Alexander’s women’s
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clothing; consequently, he initiated a traffic stop.        After Trooper Vela-Braxton

approached the vehicle, he learned that Alexander was a male dressed in women’s

clothing. Trooper Vela-Braxton gathered the identification cards of both Alexander and

Darden and checked Alexander’s license with the BMV. He discovered that Alexander

had a warrant for driving while suspended and placed him under arrest.

       Trooper Vela-Braxton started to conduct a property search of Alexander. At some

point, Indianapolis Metropolitan Police Officer Elliot (Officer Elliot) arrived on the scene

and announced himself, and Trooper Vela-Braxton turned briefly to acknowledge him.

Trooper Vela-Braxton then asked Darden to assist him by removing some of Alexander’s

body piercings. Darden exited the passenger seat, and as she turned to come around the

corner of the rear passenger side of the bumper, Trooper Vela-Braxton observed that “a

small plastic bag of marijuana had [fallen] on the ground.” (Tr. p. 11). He did not see

exactly where it came from but noted that the bag of marijuana had not been on the

ground prior to Darden exiting the vehicle.         He immediately placed Darden into

handcuffs.

       When questioned, Darden said that she did not know where the bag came from

and that it was not hers. Trooper Vela-Braxton then conducted a search of her car.

Based on his experience as an officer and his training in identifying marijuana, Trooper

Vela-Braxton identified burnt marijuana cigarettes and “shake” on the floorboards and

throughout the car. Trooper Vela-Braxton described “shake” as very small fragments of

marijuana that have been “ground in” and can result from users rolling a marijuana

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cigarette. (Tr. p. 15). Trooper Vela-Braxton said that the “shake” was too small to be

collected, but testing confirmed that the substance in the bag was marijuana.

       On July 1, 2013, the State filed an Information charging Darden with possession

of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11(1). On October 1, 2013, a bench

trial was held. At the close of the State’s case-in-chief, Darden moved to dismiss under

Trial Rule 41(B) for insufficient evidence.      The trial court denied the motion and,

following the close of the evidence, found Darden guilty as charged. The same day, the

court held a sentencing hearing and sentenced Darden to 365 days, with 361 days

suspended and credit for four days of time served, along with forty hours of community

service.

       Darden now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       Darden claims that the State did not present evidence sufficient to prove beyond a

reasonable doubt that she possessed marijuana. Specifically, Darden argues that Trooper

Vela-Braxton’s observation of marijuana on the ground near her as she approached the

back of the vehicle, coupled with his observation of “shake” and small burnt marijuana

cigarettes in the vehicle, is not sufficient to create a reasonable inference that she either

actually or constructively possessed marijuana.       When reviewing the sufficiency of

evidence, this court only considers the evidence most favorable to the verdict and all the

reasonable inferences which may be drawn from that evidence. Griffin v. State, 945

N.E.2d 781, 783 (Ind. Ct. App. 2011). We do not reweigh the evidence of the case or

                                             4
judge the credibility of the witnesses. Id. “We will only reverse a conviction when

reasonable persons would not be able to form inferences as to each material element of

the offense.” Id.

       To convict Darden of possession of marijuana as a Class A misdemeanor, the State

was required to prove that she “knowingly or intentionally possessed marijuana” in an

amount less than thirty grams. I.C. § 35-48-4-11(1). “It is well established that a

conviction for possession of marijuana may be based upon actual or constructive

possession.”   Holmes v. State, 785 N.E.2d 658, 660 (Ind. Ct. App. 2003).          Actual

possession occurs when a person has direct physical control over the contraband. Gray v.

State, 957 N.E.2d 171, 174 (Ind. 2011). “Constructive possession is established by

showing that the defendant has the intent and capability to maintain dominion and control

over the contraband.” Holmes, 785 N.E.2d at 660. Darden argues that the State failed to

present evidence that she possessed the bag of marijuana either through actual or

constructive possession.

                                  I. Actual Possession

       Darden argues the State failed to provide sufficient evidence that she actually

possessed the bag of marijuana. The evidence most favorable to the trial court’s verdict

establishes that Darden did have direct physical control over the marijuana bag. Trooper

Vela-Braxton testified that he saw the bag of marijuana fall from Darden’s person as she

walked around the corner of the car. Trooper Vela-Braxton acknowledged that he did not

see exactly where the bag came from on her person, but he did see it fall from her “as she

                                            5
was walking towards [him], at the rear passenger side of the bumper.”          (Tr. p. 12).

Darden asserts that Trooper Vela-Braxton could not have noticed the bag fall from her

person because the Trooper turned away to acknowledge Officer Elliot when he arrived

on the scene as she was exiting the vehicle.

       Darden relies on Brent v. State, 957 N.E.2d 648 (Ind. Ct. App. 2011), to argue that

she did not actually possess the marijuana because Trooper Vela-Braxton did not actually

see her discard it. In Brent, officers were following a vehicle suspected of engaging in

drug activity. Id. at 649. The vehicle stopped very closely to a parked car and the

officers noticed that the two occupants looked as if they were discarding something. Id.

The officers subsequently found a bag of marijuana inside the parked vehicle. Id. The

passenger of the car was arrested and charged with possession of marijuana, but this court

held that there was no actual possession of the marijuana because the officers did not find

the bag on the defendant’s person or see him hold or discard the marijuana from the car.

Id.

       Contrary to Darden’s claim, the record reveals that Officer Elliot arrived prior to

Darden exiting the vehicle. Unlike Brent, Trooper Vela-Braxton testified that he saw the

marijuana fall directly from Darden’s person. However, Darden contends that Trooper

Vela-Braxton’s testimony is inconsistent with his probable cause affidavit, which did not

state that he saw the bag of marijuana fall from Darden’s person. Nevertheless, the trial

court heard this discrepancy and assessed the credibility of the witnesses, and we will not



                                               6
reweigh the trial court’s evidentiary and credibility determinations. Accordingly, we

conclude that there was sufficient evidence that Darden actually possessed the marijuana.

                               II. Constructive Possession

      In the alternative, even if there was no actual possession, Darden’s contention that

the State failed to provide sufficient evidence to permit an inference that she

constructively possessed the bag of marijuana equally fails. In order to prove that a

defendant has the intent and capability to maintain dominion and control over

contraband, the State must demonstrate that the defendant knew of the presence of the

contraband and was able to reduce the contraband to his personal possession. Griffin,

945 N.E.2d at 783. In cases where a defendant has exclusive possession of the premises

on which contraband is found, an inference that he or she knew of its presence and was

capable of controlling it is permitted. Id. at 784. When possession is not exclusive - as

here - the inference is only permitted if there are some additional circumstances

indicating knowledge of the presence of the contraband and the ability to control it. Id.

Some of the recognized “additional circumstances” are: (1) incriminating statements by

the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting;

(4) proximity of the defendant to the contraband; (5) the contraband is in plain view; and

(6) the location of the contraband is in close proximity to items owned by the defendant.

Id.

      In this case, the bag of marijuana found outside Darden’s vehicle was in close

proximity to Darden. Darden, however, argues that she had no knowledge as to how the

                                            7
marijuana got there. She further argues that the incident occurred on a public street near

businesses where people were working and where people can freely walk. Trooper Vela-

Braxton testified that Darden was the sole person by the car at the time, and he did not

observe the bag on the ground prior to Darden’s exit from the car. Trooper Vela-Braxton

immediately saw the bag on the ground as Darden walked around the corner of the

bumper, and no other person had walked by or come within five feet of the vehicle.

Darden relies on Godar v. State, 643 N.E.2d 12 (Ind. Ct. App. 1994), to argue that her

mere presence near the bag of marijuana is not sufficient to form a reasonable inference

that she had the intent or capability to exert dominion and control over the bag of

marijuana. In Godar, the defendant, a passenger in a car, was charged with possession of

marijuana when marijuana was found under the passenger seat because of his close

proximity to it. Id. at 15. This court held that the State did not present sufficient

evidence to support a finding of constructive possession because the marijuana was not in

plain view to infer the defendant’s knowledge of its presence. Id.

      Unlike the defendant in Godar, who was sitting in a car where another driver was

present, Darden was the only person at the location immediately before the marijuana bag

was found. The bag was also in plain view, lying on the ground near Darden’s feet. She

was not merely present at the location; she was the only person present. Additionally,

Trooper Vela-Braxton testified that he saw the bag fall from Darden’s person as she came

around the corner. Because the marijuana was in plain view and in close proximity to

Darden, and no other person had walked by or been near the location where the bag was

                                            8
found, we conclude that the State presented sufficient evidence to permit the inference

that Darden knew of the marijuana’s presence and was capable of maintaining dominion

and control over it.

                                    CONCLUSION

       Based on the foregoing, we conclude that the State produced sufficient evidence to

prove beyond a reasonable doubt that Darden possessed the bag of marijuana.

       Affirmed.

ROBB, J. and BRADFORD, J. concur




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