                                                                FILED
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                               Mar 29 2012, 9:25 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                   GREGORY F. ZOELLER
Marion Co. Public Defender                      Attorney General of Indiana
Indianapolis, Indiana
                                                ERIC P. BABBS
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DEJUAN PARKER,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A02-1106-CR-557
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Jose D. Salinas, Judge
                           Cause No. 49G14-1006-FD-46934



                                      March 29, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Dejuan Parker appeals his conviction for Possession of

Marijuana,1 a class D felony. Specifically, Parker argues that the evidence is insufficient

to prove that he possessed a baggie of marijuana. Finding that the trial court, as the fact

finder, could reasonably conclude that Parker was in possession of the marijuana, we

affirm.

                                           FACTS

          On June 13, 2010, Indianapolis Metropolitan Police Department (IMPD) Officer

Jerome Harrison was in an unmarked car engaged in the surveillance of a gas station at

30th Street and Keystone Avenue.         Officer Harrison noticed as three men—Parker,

Shawn Campbell, and Julius Doulas—jaywalked across Keystone toward the gasoline

station.

          At some point, a blue Cadillac pulled into the gas station parking lot. Campbell

got into the back seat but exited it in less than one minute. Suspecting narcotics activity,

Officer Harrison followed the Cadillac as it drove west on 30th Street. Other undercover

officers detained Parker, Campbell, and Doulas at the scene for jaywalking.

          Officer Derek Jackson detained the three men and informed them of their Miranda

rights. Officer Jackson and another officer separated the three men, patted them down for

weapons, and questioned them. The three men were placed at different locations around

one of the police cars. Parker was “at the tire,” while Campbell and Doulas were “at the

bumper” and “on the other side of the bumper.” Tr. p. 35.


1
    Ind. Code § 35-48-4-11.
                                              2
       Although Parker was in handcuffs, Officer Jackson noticed a small bag of

marijuana on the ground “at the feet of [Mr.] Parker . . . right next to [him].” Tr. p. 19.

No marijuana had been noticed prior to that time. The substance subsequently tested

positive for 2.70 grams of marijuana.

       Parker was arrested and charged with possession of marijuana as a class D felony

because he had a prior conviction for that offense. Following a bench trial on March 24,

2011, Parker was found guilty as charged. Thereafter, he was sentenced to 365 days in

jail, with credit for time served and the remainder suspended to probation. Parker now

appeals.

                            DISCUSSION AND DECISION

                                  I. Standard of Review

     Our standard of review regarding sufficiency of the evidence claims is well settled.

We do not reweigh the evidence or judge the credibility of the witnesses. Bond v. State,

925 N.E.2d 773, 781 (Ind. Ct. App. 2010), trans. denied. We consider only the evidence

most favorable to the verdict and the reasonable inferences drawn therefrom and affirm if

the evidence and those inferences constitute substantial evidence of probative value to

support the verdict. Id. Reversal is appropriate only when a reasonable trier of fact

would not be able to form inferences as to each material element of the offense. Id.

       The trier of fact may draw reasonable inferences from facts established either by

direct or circumstantial evidence and a guilty verdict may be based solely on

circumstantial evidence. Turpin v. State, 435 N.E.2d 1, 5 (Ind. 1982). As an appellate

                                            3
court, we are not required to find that every reasonable hypothesis of innocence has been

overcome but need only conclude that an inference reasonably tending to support the

finding of the defendant’s guilt can be drawn from the evidence presented. Armstrong v.

State, 429 N.E.2d 647, 654 (Ind. 1982).

                                 II. Parker’s Contentions

       In addressing Parker’s argument that the State failed to present sufficient evidence

to support his conviction, Indiana Code section 35-48-4-11(1)(ii) requires the State to

prove that Parker knowingly or intentionally possessed marijuana. We have long

recognized that a conviction for possession of contraband may be founded upon actual or

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

Constructive possession is established by showing that the defendant has the intent and

capability to maintain dominion and control over the contraband. Id. More specifically,

it has been held that

       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.
       However, when possession of the premises is non-exclusive, the inference
       is not permitted absent some additional circumstances indicating
       knowledge of the presence of the contraband and the ability to control it.
       Among 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) contraband is in plain view; and (6) location of the
       contraband is in close proximity to items owned by the defendant.

Id. at 661 (emphasis added)(internal citations omitted).



                                            4
       In Gray v. State, 957 N.E.2d 171, 175 (Ind. 2011), our Supreme Court reaffirmed

the principle that proximity of contraband to a defendant, combined with the contraband

being in plain view, is sufficient evidence to support a conviction based on constructive

possession. Moreover, a defendant’s proximity to contraband in plain view will support

an inference of intent to maintain dominion or control. Id.

       In this case, the evidence established that the clear baggie containing the

marijuana first appeared on the ground, immediately next to Parker’s feet. In light of

these facts, the trial court could reasonably infer Parker’s ability and intent to maintain

dominion and control over the marijuana. Contrary to Parker’s contention that either

Doulas or Campbell could have tossed the marijuana at his feet, Parker’s testimony about

the locations of the men when separated around the police car makes such a scenario

implausible.

       As mentioned above, Parker was “at the tire” while Campbell and Doulas were “at

the bumper” and “on the other side of the bumper.” Tr. p. 35. And because the men

were separated on different sides of the police car, there was no straight-line path

between them except what was blocked by the car. Although Parker also claimed that he

was only two or three feet from either Doulas or Campbell, that apparent conflict in the

evidence demonstrates that it was the trial court’s prerogative as to which evidence and

inferences to credit.

       Additionally, we find the circumstances in Gray instructive here. In Gray, police

officers observed marijuana in plain view approximately eight to ten feet away from

                                            5
where they were speaking with the defendant. Id. at 172-73.          The marijuana was

underneath a living room coffee table, and two juveniles were sitting on the couch next to

the table.   Id.   Although the defendant’s son testified that he tossed the marijuana

underneath the table, the officers testified that the son was not present during the

encounter. Id. at 176. Our Supreme Court held that the officers’ testimony that the

marijuana was in plain view in proximity to the defendant was substantial evidence of

probative value from which the defendant’s guilt could be inferred. Id. at 175-76.

       As a result of the holding in Gray and contrary to Parker’s argument, no direct

evidence was required as to “how [the marijuana] appeared.” Appellant’s Br. p. 8.

Gray also demonstrates that, for a defendant’s possession conviction to be affirmed, the

evidence does not need to positively exclude every other person at the scene of the crime.

Thus, as in Gray, while we recognize that there may have been other inferences as to how

the baggie of marijuana landed next to Parker, the trial court could draw the reasonable

inference of Parker’s guilt based on the evidence that was presented at trial.   Thus, we

decline to set aside Parker’s conviction.

       The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.




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