 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
                                                                  FILED
                                                                Aug 29 2012, 9:42 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:

TIMOTHY J. BURNS                                      GREGORY F. ZOELLER
Indianapolis, Indiana                                 Attorney General of Indiana

                                                      GEORGE P. SHERMAN
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

EUGENE STRADER,                                       )
                                                      )
       Appellant-Defendant,                           )
                                                      )
               vs.                                    )      No. 49A02-1201-CR-57
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable William J. Nelson, Judge
                             Cause No. 49F07-1104-CM-25901


                                           August 29, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                    Case Summary

       Eugene Strader appeals his conviction for Class A misdemeanor possession of

marijuana. Strader contends there is insufficient evidence to support his conviction

because the State failed to prove that he had constructive possession of the marijuana.

We find that the State sufficiently proved that Strader had constructive possession of the

marijuana and therefore affirm.

                             Facts and Procedural History

      On April 13, 2011, Indianapolis Metropolitan Police Department Officer Corey

Heiny was responding to a call from dispatch when he noticed a blue Ford pickup truck

parked on the side of the road. The truck had a flat tire and Strader and another man were

sitting inside. Approximately forty-five minutes later, after completing his assignment

from dispatch, Officer Heiny again observed the truck. The truck’s windows were rolled

up although the temperature outside was warm. As Officer Heiny watched, a van pulled

up alongside the truck. Strader got out of the truck and approached the passenger side of

the van. After a few minutes, the van drove off and Strader returned to the truck. Then

the other man in the truck, Lemont Smith, got out of the truck. He walked to a nearby

house. A Chevrolet Impala pulled up to the house, and Smith walked to the Impala.

      At that time, Officer Heiny approached the truck to talk to Strader, who was sitting

in the driver’s seat. As he walked toward the truck, Officer Heiny noticed the odor of

burnt marijuana. Officer Heiny asked Strader to step out of the truck. As he spoke to

Strader, he looked inside the truck and saw a police radio and a marijuana blunt in plain

view on the passenger’s seat. Officer Heiny then searched the truck and found what


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looked like marijuana residue in the truck’s ashtray as well as empty plastic baggies.

Chemical testing revealed that the residue in the ashtray and the material in the blunt

were, in fact, marijuana.

       After a bench trial, Strader was convicted of Class A misdemeanor possession of

marijuana. The trial court sentenced Strader to 365 days in jail with 351 days suspended

and credit for seven days served. Strader was also ordered to complete forty hours of

community service.

       Strader now appeals.

                                Discussion and Decision

       Strader contends that the evidence is insufficient to support his conviction for

possession of marijuana because the State failed to show that he had constructive

possession of the marijuana.

       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 drawn therefrom. Id. We will 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.

       Class A misdemeanor possession of marijuana occurs when the defendant

“knowingly or intentionally possesses (pure or adulterated) marijuana” in an amount less


                                            3
than thirty grams. Ind. Code § 35-48-4-11. 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), while constructive possession 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.

       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.

       Strader argues that the State failed to show that he had constructive possession of

the marijuana because the truck belonged to his girlfriend and because Smith, the other

man in the truck, claimed ownership of the marijuana and police radio. We disagree.

       The evidence adduced at trial shows that Strader had the intent to possess the

marijuana. He had knowledge of the presence of the contraband in the truck over which

he had exclusive control because of the “strong odor of marijuana.” Tr. p. 9. The

obvious smell emanating from the truck, combined with the location of the contraband on

the passenger seat, make it clear that Strader knew that the marijuana was in the truck.


                                            4
Strader also had the capability to maintain dominion and control over the marijuana. The

contraband was within arm’s reach on the passenger seat. Strader was also the only

individual in the truck—notably, Smith was not in the truck when Officer Heiny

approached and asked Strader to get out of the truck.

      Despite Strader’s arguments that he did not make incriminating statements, he did

not attempt to flee the scene or make furtive movements, the truck was not his, and Smith

claimed ownership of the contraband, we conclude that the State has sufficiently met its

burden in proving that Strader knowingly possessed the marijuana in the truck.

      This evidence is sufficient to support Strader’s conviction for possession of

marijuana. We therefore affirm the trial court.

      Affirmed.

MATHIAS, J., and BARNES, J., concur.




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