MEMORANDUM DECISION
                                                                      Mar 31 2015, 9:50 am
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,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Henry Gooch,                                             March 31, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1408-CR-571
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable David Hooper,
State of Indiana,                                        Magistrate.
Appellee-Plaintiff.                                      Cause No. 49F08-1308-CM-52760




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015         Page 1 of 6
                                           Statement of the Case
[1]   Henry Gooch appeals his conviction of possession of marijuana, a Class A
                           1
      misdemeanor. We affirm.


                                                     Issue
[2]              Whether there is sufficient evidence to support Gooch’s
                 conviction.

                                   Facts and Procedural History
[3]   On the night of August 11, 2013, Officer Daniel Brezik of the Indianapolis

      Metropolitan Police Department was on patrol. He saw a group of ten to

      fifteen people congregating in the street, blocking a lane of traffic. Next, the

      group crossed the street. Officer Brezik and another officer, Bill Wogan,

      stopped their cars and got out.


[4]   Officer Wogan asked the people to talk with him. Several persons walked over

      to Officer Wogan, but Gooch did not immediately comply with his request.

      Instead, Gooch walked away from the officers, behind a parked car. Gooch

      had his hands at his sides, and the officers could not see what he was doing.

      After “a few seconds,” Gooch walked over to the officers. Tr. p. 6. Officer

      Brezik did not see anyone else behind the parked car.




      1
          Ind. Code § 35-48-4-11 (2013).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015   Page 2 of 6
[5]   Officer Brezik thought Gooch’s actions were suspicious, so he walked over to

      the other side of the car. He saw two clear plastic baggies on the ground. They

      contained a green leafy substance that he recognized as marijuana. The baggies

      looked clean, like they “hadn’t been laying on the side of the street for any

      period of time.” Id. at 15.


[6]   Officer Brezik walked back to Gooch and put handcuffs on him without saying

      anything about the marijuana. Gooch said, “I didn’t have any weed.” Id. at 8.

      “Weed” is “a slang term for marijuana.” Id.


[7]   Next, Officer Brezik recovered the marijuana from behind the car and secured

      it. Subsequent testing revealed the baggies, weighed together, contained almost

      twenty-five grams of marijuana.


[8]   The State charged Gooch with possession of marijuana. The case was tried to

      the bench. After the presentation of evidence, the court determined that Gooch

      was guilty and sentenced him accordingly. This appeal followed.


                                   Discussion and Decision
[9]   Gooch contends that there is insufficient evidence that he had possessed the

      marijuana that Officer Brezik found. In considering challenges to the

      sufficiency of the evidence, we neither reweigh the evidence nor judge witness

      credibility. Caruthers v. State, 926 N.E.2d 1016, 1022 (Ind. 2010). Instead, we

      consider only the evidence supporting the judgment and any reasonable

      inferences drawn from the evidence. Tin Thang v. State, 10 N.E.3d 1256, 1258

      (Ind. 2014). We affirm a conviction unless no reasonable trier of fact could find
      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015   Page 3 of 6
       every element proved beyond a reasonable doubt. Blount v. State, 22 N.E.3d

       559, 565 (Ind. 2014).


[10]   In order to convict Gooch of possession of marijuana as a Class A

       misdemeanor, the State was required to prove beyond a reasonable doubt that

       Gooch (1) knowingly or intentionally (2) possessed (3) marijuana, pure or

       adulterated. Ind. Code § 35-48-4-11.


[11]   Gooch was never seen holding the marijuana, but conviction for a possessory

       offense does not necessarily depend on catching a defendant in actual

       possession. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). A conviction for

       possessing contraband may rest instead on proof of constructive possession. Id.

       A person constructively possesses contraband when the person has (1) the

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

       Id.


[12]   When a defendant does not exert exclusive control over the area where the

       contraband is found, the State must support an inference of constructive

       possession by proving additional circumstances pointing to the defendant’s

       knowledge of the presence and the nature of the contraband. Id. at 174-75. Our

       Supreme Court has identified examples of such circumstances, including:


               (1) a defendant’s incriminating statements; (2) a defendant’s
               attempting to leave or making furtive gestures; (3) the location of
               contraband like drugs in settings suggesting manufacturing; (4)
               the item’s proximity to the defendant; (5) the location of
               contraband within the defendant’s plain view, if the contraband’s


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015   Page 4 of 6
               incriminating nature is immediately apparent; and (6) the
               mingling of contraband with other items the defendant owns.
       Id. at 175.


[13]   Here, when Officer Wogan asked a group of people to move toward him,

       Gooch went in the other direction and moved behind a car while keeping his

       hands at his sides and out of view. Gooch remained behind the car for only a

       few seconds before approaching Officer Wogan. Officer Brezik did not see

       anyone else behind the car. When Officer Brezik investigated the area behind

       the car, he found two baggies of marijuana in plain view. The baggies were

       clean, which indicated that they had not been there for long. Finally, when

       Officer Brezik handcuffed Gooch, Gooch made an incriminating statement: “I

       didn’t have any weed.” Tr. at 8. This is sufficient evidence to establish

       Gooch’s knowledge of the marijuana, as well as his intent to maintain control

       and dominion over it prior to abandoning it. See Holmes v. State, 785 N.E.2d

       658, 662 (Ind. Ct. App. 2003) (evidence supported constructive possession of

       drugs where drugs were found near where defendant had been sitting and

       defendant initially fled from police).


[14]   Gooch points to testimony that other people were present in the area where the

       marijuana was found. This is a request to reweigh the evidence, which our

       standard of review forbids.


                                                Conclusion
[15]   For the reasons stated above, we affirm the judgment of the trial court.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015   Page 5 of 6
[16]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015   Page 6 of 6
