                                                                          FILED
                                                                      Oct 18 2018, 5:56 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Susan D. Rayl                                              Curtis T. Hill, Jr.
Smith Rayl Law Office, LLC                                 Attorney General of Indiana
Indianapolis, Indiana
                                                           Lyubov Gore
                                                           Laura Anderson
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Gregory Wayne Parks,                                       October 18, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-151
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable James Snyder,
Appellee-Plaintiff                                         Commissioner
                                                           Trial Court Cause No.
                                                           49G20-1606-F4-22060



May, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-151 | October 18, 2018                           Page 1 of 9
[1]   Gregory Wayne Parks (“Gregory”) appeals his convictions of Level 4 felony

      unlawful possession of a firearm by a serious violent felon, 1 Level 5 felony

      dealing in marijuana, 2 and two counts of Level 6 felony possession of a

      controlled substance. 3 Gregory argues the State did not present sufficient

      evidence he constructively possessed the gun and drugs found in a bag behind

      the driver’s seat of the truck in which Gregory was riding. We affirm.



                               Facts and Procedural History                           4




[2]   At approximately 10:45 p.m. on June 5, 2016, Indianapolis Metropolitan Police

      Department Officers Matthew Plummer and Austin Birch initiated a traffic stop

      after they observed a truck without a driver’s side headlight. When the officers

      approached the stopped truck, the driver, Michelle Parks (“Michelle”),

      attempted to exit the truck. The officers ordered the occupants to stay inside

      the truck but, as the officers were issuing these commands, Gregory attempted

      to exit the passenger side of the truck. After hearing the officers’ commands,

      both Michelle and Gregory complied and re-entered the truck.




      1
          Ind. Code § 35-47-4-5(c) (2014).
      2
          Ind. Code § 35-48-4-10(d) (2014).
      3
          Ind. Code § 35-48-4-7(b) (2014).
      4
        We held oral argument on this case on September 28, 2018, at North Decatur High School. We thank
      school staff and students for their hospitality and counsel for their able presentations.

      Court of Appeals of Indiana | Opinion 18A-CR-151 | October 18, 2018                         Page 2 of 9
[3]   As Officer Plummer approached the truck, he detected an odor of raw

      marijuana. Once he made contact with Gregory, Officer Plummer observed

      two marijuana joints positioned next to a live nine-millimeter round of

      ammunition on the center console in plain view. Officer Plummer advised

      Gregory and Michelle of the reason for the stop, asked for their identifications,

      and asked to whom the truck belonged. After submitting their identification,

      both Gregory and Michelle stated simultaneously that the truck was “ours” and

      they were “getting mechanical work [done] to the truck.” (Tr. Vol. II at 12.)


[4]   Officer Plummer returned to his vehicle and ran Gregory’s and Michelle’s

      identification to confirm their identities. He learned neither had a valid driver’s

      license. Based on this lack of driver’s licenses, coupled with the odor of raw

      marijuana, Officer Plummer and Officer Birch handcuffed Gregory and

      Michelle and searched their truck.


[5]   In addition to the marijuana joints and ammunition Officer Plummer initially

      observed on the center console, he found another joint on the front passenger

      seat. Behind the passenger seat, he found mail addressed to Gregory and

      Michelle. Behind the driver’s seat, Officer Plummer found a black messenger

      bag on top of a gas can. He opened the flap of the bag and found a “brick of

      marijuana inside of that bag.” (Id. at 14.) Officer Plummer then found a Smith

      and Wesson nine-millimeter handgun in the side pocket of the same bag.


[6]   After finding the gun, Officer Plummer stopped his search and placed Gregory

      and Michelle under arrest. Officer Plummer then called another officer to the


      Court of Appeals of Indiana | Opinion 18A-CR-151 | October 18, 2018        Page 3 of 9
      scene to process the gun. While they waited for that officer to arrive, Michelle

      indicated she did not know anything about the bag or its contents; Gregory

      similarly stated he did not know anything about the contents of the bag and

      said, “if he didn’t know about it, he shouldn’t be arrested.” (Id. at 15.) Officer

      Brycen Garner arrived and processed the gun.


[7]   Officer Plummer then continued his search of the black messenger bag. He

      located a digital scale with methamphetamine residue on it; two smaller baggies

      containing small amounts of marijuana; and a baggie containing several smaller

      baggies, four tablets of Diazepam, which is a Schedule IV controlled substance,

      and eighteen tablets of Clonazepam, which is a Schedule IV controlled

      substance. Officer Plummer also searched Gregory incident to his arrest and

      found $390.00 in small denominations and a cell phone in Gregory’s pocket.


[8]   On June 8, 2016, the State charged Gregory with Level 4 felony unlawful

      possession of a firearm by a serious violent felon, Level 5 felony dealing in

      marijuana, Level 5 felony possession of methamphetamine, 5 and two counts of

      Level 6 felony possession of a controlled substance. Gregory was tried before

      the bench on December 11, 2017, and the trial court found him guilty on all

      charges except the Level 5 felony possession of methamphetamine. On January

      4, 2018, the trial court sentenced Gregory to an aggregate sentence of nine years

      incarcerated.




      5
          Ind. Code § 35-48-4-6.1(b) (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-151 | October 18, 2018        Page 4 of 9
                                   Discussion and Decision
[9]    When reviewing sufficiency of evidence to support a conviction, we consider

       only the probative evidence and reasonable inferences supporting the trial

       court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-

       finder’s role, and not ours, to assess witness credibility and weigh the evidence

       to determine whether it is sufficient to support a conviction. Id. To preserve

       this structure, when we are confronted with conflicting evidence, we consider it

       most favorably to the trial court’s ruling. Id. We affirm a conviction unless no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt. Id. It is therefore not necessary that the evidence overcome

       every reasonable hypothesis of innocence; rather, the evidence is sufficient if an

       inference reasonably may be drawn from it to support the trial court’s decision.

       Id. at 147.


[10]   Possession can be actual or constructive. Lampkins v. State, 682 N.E.2d 1268,

       1275 (Ind. 1997), modified on reh’g on other grounds, 685 N.E.2d 698 (Ind. 1997).

       As Gregory did not have actual possession of the contraband in question, we

       must determine whether the State proved he constructively possessed it. For

       the State to prove constructive possession, it must prove the defendant had the

       intent and capability to maintain dominion and control over the contraband.

       Id. To prove intent to maintain dominion and control, there must be additional

       circumstances supporting the inference of intent. Id.




       Court of Appeals of Indiana | Opinion 18A-CR-151 | October 18, 2018        Page 5 of 9
[11]   Proof of dominion and control, and therefore knowledge, of contraband has

       been found through a variety of means: (1) incriminating statements 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 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. Henderson v. State, 715 N.E.2d 833, 836 (Ind. 1999). Where a

       passenger is charged with possession, the evidence is more likely to be sufficient

       when the passenger could see the contraband and was in the best position to

       access it, and when no evidence clearly indicates it belonged to or was under

       the control of another occupant of the vehicle. Deshazier v. State, 877 N.E.2d

       200, 208 (Ind. Ct. App. 2007), trans. denied. “When constructive possession is

       alleged, the State must demonstrate the defendant’s knowledge of the

       contraband.” Bradshaw v. State, 818 N.E.2d 59, 63 (Ind. Ct. App. 2004).

       Gregory argues the State did not provide sufficient evidence Gregory knew the

       contraband was in the vehicle. We disagree.


[12]   Regarding any incriminating statements Gregory made, upon arrest, he told

       officers that “if he didn’t know about it, he shouldn’t be arrested.” (Tr. Vol. II

       at 15.) The State argues this statement, “[t]hough not an incriminating

       statement at first blush, demonstrated [Gregory’s] underlying assumption that

       denying ownership might help him avoid arrest and punishment. His statement

       was a calculated choice of phrasing that lends itself more to an inference of guilt

       than an honest denial of ownership.” (Br. of Appellee at 15.)


       Court of Appeals of Indiana | Opinion 18A-CR-151 | October 18, 2018        Page 6 of 9
[13]   Regarding the location of the black messenger bag behind the driver’s seat,

       Gregory’s position in the passenger’s seat indicated he could easily reach the

       black messenger bag. See Holmes v. State, 785 N.E.2d 658, 661 (Ind. Ct. App.

       2003) (Holmes constructively possessed marijuana found in a vinyl bag

       resembling a diaper bag on the floor behind the driver’s seat because it was

       within his reach). When considering the location of the drugs in a setting that

       would suggest manufacturing, we note the black messenger bag contained a

       large brick of marijuana, as well as multiple small baggies, which Officer

       Plummer testified suggested repackaging of contraband for sale. See Ind. Code

       § 35-48-1-18(2)(A) (2014) (defining “manufacturing” in relevant part as

       “packaging and repackaging”). Additionally, Officer Plummer found $390 in

       small bills in Gregory’s pocket, which Officer Plummer testified was indicative

       of dealing. (Id. at 49-50.)


[14]   The State contends also “it is difficult to imagine how [Gregory] could not have

       been aware of the presence of the contraband in light of the strong odor of

       marijuana emanating from the vehicle.” (Br. of Appellee at 16.) The State

       directs us to Corrao v. State, 154 Ind. App. 525, 290 N.E.2d 484 (1972), in which

       our court imputed knowledge of marijuana found in the trunk of a vehicle to

       the vehicle’s driver and the vehicle’s owner who was a passenger based on the

       smell of raw marijuana coming from the vehicle and their possessory interests

       in the vehicle. Similarly here, Gregory indicated a possessory interest in the

       truck when he answered “ours” simultaneously with Michele when asked to

       whom the truck belonged. (Tr. Vol. II at 12.)


       Court of Appeals of Indiana | Opinion 18A-CR-151 | October 18, 2018       Page 7 of 9
[15]   Finally, the items located in plain view, the joints and 9mm bullet, link Gregory

       with the contraband and 9mm handgun found in the black messenger bag. In

       Lampkins, 682 N.E.2d at 1275, our Indiana Supreme Court held Lampkins’

       proximity to contraband, there a Tylenol bottle containing crack cocaine,

       combined with other factors, proved Lampkins constructively possessed the

       contraband. Id. Further, in Woods v. State, 471 N.E.2d 691 (Ind. 1984), reh’g

       denied, our Indiana Supreme Court held the presence of ammunition matching

       the gun found in the vehicle, combined with other factors, proved Woods

       constructively possessed the gun in question. Id. at 694.


[16]   Considering Gregory’s incriminating statements, the strong odor of raw

       marijuana, the presence of items suggestive of manufacturing and dealing,

       Gregory’s proximity to the black messenger bag containing the contraband, and

       the items in plain view linking Gregory to the contraband, we hold the State

       presented sufficient evidence he had the ability and intent to possess the black

       messenger bag and its contents, and thus the State proved Gregory

       constructively possessed the black messenger bag. See Deshazier, 877 N.E.2d at

       208 (totality of circumstances supported conviction based on constructive

       possession).


[17]   Gregory’s alternate explanations regarding the factors of constructive

       possession are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146

       (appellate court cannot reweigh evidence or judge the credibility of witnesses).

       Further, this case was tried to the bench, and we presume the judge knows and

       Court of Appeals of Indiana | Opinion 18A-CR-151 | October 18, 2018       Page 8 of 9
       properly applies the relevant law to the facts of the case. Laughlin v. State, 101

       N.E.3d 827, 830 (Ind. Ct. App. 2018).



                                                Conclusion
[18]   The State presented sufficient evidence to prove Gregory constructively

       possessed the drugs and gun found in the black messenger bag. Accordingly,

       we affirm his convictions.


[19]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-151 | October 18, 2018        Page 9 of 9
