 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
 establishing the defense of res judicata,                      Aug 13 2013, 7:23 am
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

JANE H. CONLEY                                        GREGORY F. ZOELLER
Indianapolis, Indiana                                 Attorney General of Indiana

                                                      RYAN D. JOHANNINGSMEIER
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TERRY CHANDLER,                                       )
                                                      )
       Appellant-Defendant,                           )
                                                      )
               vs.                                    )      No. 49A02-1302-CR-166
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Jose D. Salinas, Judge
                             Cause No. 49G14-1205-FD-34833


                                           August 13, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                    Case Summary

      Terry Chandler appeals his conviction for Class A misdemeanor possession of

cocaine.   Chandler contends there is insufficient evidence to support his conviction

because the State failed to prove that he constructively possessed the cocaine. We find

that the State sufficiently proved the elements of possession of cocaine, including

constructive possession, so we affirm Chandler’s conviction.

                             Facts and Procedural History

      On May 23, 2012, Indianapolis Metropolitan Police Department Officer Richard

Wilkerson saw a car speeding and not signaling for 200 feet before making a lane change.

Officer Wilkerson activated his emergency lights, and the car continued for almost a

block and a half before stopping. Officer Wilkerson noticed that Chandler, the driver of

the car, was moving his head and shoulders “back and forth” excessively and looking in

his mirrors and turning his head as if to see where Officer Wilkerson was located. Tr. p.

14.

      Officer Wilkerson approached the car on the passenger side and saw a passenger

in the front seat. Chandler handed Officer Wilkerson his driver’s license and registration

showing that the car was registered to him, and Officer Wilkerson noticed that Chandler’s

hand was shaking and he was breathing hard.         Id. at 15.   Officer Wilkerson was

concerned for his safety because of Chandler’s behavior, so he asked Chandler to exit and

step toward the back of the car. But when Chandler got halfway out of the car, he turned

back into the car and reached toward the front floorboard between the driver-side door

and the driver’s seat. Officer Wilkerson ordered Chandler to show his hands and walk to


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the back of the car; he patted Chandler down, had him sit on the curb, and then instructed

the passenger to get out of the car as well.

       Chandler allowed Officer Wilkerson to search the car. Officer Wilkerson began

searching near the driver-side door and “immediately observed laying right there on the

carpet, floor carpet” crack cocaine. Id. at 18. This was the area where Officer Wilkerson

had seen Chandler reach before he got out of the car.

       The State charged Chandler with Class D felony possession of cocaine. A bench

trial was held, and Chandler was found guilty of Class A misdemeanor possession of

cocaine. The trial court sentenced him to 365 days, with 363 days suspended and 80

hours of community-service work.

       Chandler now appeals.

                                 Discussion and Decision

       Chandler contends that there is insufficient evidence to sustain his Class A

misdemeanor possession of cocaine conviction. Our standard of review with regard to

sufficiency claims is well settled. In reviewing a sufficiency of the evidence claim, this

Court does not reweigh the evidence or judge the credibility of the witnesses. Bond v.

State, 925 N.E.2d 773, 781 (Ind. Ct. App. 2010), reh’g denied, trans. denied. We

consider only the evidence most favorable to the judgment and the reasonable inferences

draw therefrom and affirm if the evidence and those inferences constitute substantial

evidence of probative value to support the judgment. 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.


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       Possession of cocaine occurs when the defendant “without a valid prescription or

order of a practitioner acting in the course of the practitioner’s professional practice,

knowingly or intentionally possesses cocaine (pure or adulterated) . . . .” Ind. Code § 35-

48-4-6(a). A conviction for possession of contraband may rest upon proof of either

actual or constructive possession. Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct.

App. 2009), trans. denied. Actual possession occurs when a person has direct physical

control over the substance, Walker v. State, 631 N.E.2d 1, 2 (Ind. Ct. App. 1994), and that

actual possession does not need to exist at the exact time as the law enforcement’s

discovery of the contraband, Wilburn v. State, 442 N.E.2d 1098, 1101 (Ind. 1982).

Constructive possession, on the other hand, occurs when the defendant has both (1) the

intent and (2) the capability to maintain dominion and control over the subject

contraband. Atwood v. State, 905 N.E.2d 479, 484 (Ind. Ct. App. 2009), trans. denied.

       Chandler argues that the State failed to show that he had constructive possession

of the cocaine because it did not show sufficient evidence of intent. We disagree.

       To prove the intent element of constructive possession, the State must demonstrate

the defendant’s knowledge of the presence of the contraband. Goliday v. State, 708

N.E.2d 4, 6 (Ind. 1999). Knowledge may be inferred from either exclusive control over

the premises where the substance is found, or, if the control is non-exclusive, evidence of

additional circumstances pointing to knowledge of the presence of the contraband. Id.

The capability element is met when the State shows the defendant was able to reduce the

controlled substance to his personal possession. Id.




                                            4
      The evidence at trial showed that the cocaine was found on the floor in Chandler’s

car between the driver-side door and the driver’s seat, the area where Officer Wilkerson

testified that he had seen Chandler reach toward before getting out of the car. This was

also a place where the passenger of the car could not have reached. This evidence is

sufficient to show that Chandler had exclusive control over the area where the cocaine

was found.     However, even if his control had been non-exclusive, additional

circumstances point to Chandler’s knowledge of the cocaine in his car.            Officer

Wilkerson also testified that Chandler appeared very nervous and was making

movements that made him nervous for his safety. Tr. p. 14-16. The reasonable inference

drawn from this testimony is that Chandler was aware of the cocaine that was in his car.

      This evidence is sufficient to support Chandler’s conviction for Class A

misdemeanor possession of cocaine. We affirm the trial court.

      Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.




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