COA reverses marijuana conviction based on intent

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The majority of an Indiana Court of Appeals panel today reversed a conviction of marijuana possession after the defendant contended there was insufficient evidence that she constructively possessed the drug. One judge dissented, writing the majority’s considerations of factors that would determine whether the defendant maintained dominion and control over the drugs did not apply in this case.

In Lisa Gray v. State of Indiana, No. 82A01-1005-CR-223, Evansville Police Department officers visited Lisa Gray’s apartment Sept. 7, 2008, to investigate a complaint of marijuana dealing. Gray consented in writing for the officers to investigate her residence.

Near two juvenile males, identified as friends of Gray’s son, the officers noticed in plain view a bag of what appeared to be marijuana near a coffee table. Gray and the two juvenile males denied possession of it.

Following a bench trial in May 2010, based on testimony from the officers, Gray was convicted of Class A misdemeanor possession of marijuana.

“A conviction for possession of contraband may rest upon proof of either actual or constructive possession,” wrote Judge James S. Kirsch. “Actual possession occurs when a person has direct physical control over the item. … Because Gray did not have direct physical control over the marijuana found in her apartment, the State had to prove that she had constructive possession of it.”

He continued, referencing Wilkerson v. State, 918 N.E.2d 458, 462 (Ind. Ct. App. 2009), that a “defendant is in the constructive possession of drugs when the State shows that the defendant has both (i) the intent to maintain dominion and control over the drugs and (ii) the capability to maintain dominion and control over the drugs.”

For the intent prong, when the premises are not exclusive to the defendant, there needs to be additional circumstances regarding the defendant’s knowledge of the substances, including: “(1) incriminating statements made 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,” Judge Kirsch wrote, citing Gee v. State, 810 N.E.2d 338, 340 (Ind. Ct. App. 2004).

These circumstances didn’t exist in this case, he wrote, and therefore “the State failed to prove beyond a reasonable doubt that Gray constructively possessed the marijuana.”

Judge Cale Bradford dissented, and disagreed with how the additional circumstances in Gee were used by the majority to determine intent to maintain dominion and control over the drugs.

“The majority also seems to be treating the non-exhaustive list of ‘additional circumstances’ from Gee as though it laid out ‘elements’ of a test or ‘factors’ to be weighed against one another,” he wrote.

“If the presence of one or more of the listed circumstances (or any other circumstance tending to show knowledge of the nature and presence of the contraband, for that matter) is sufficient to support a finding of constructive possession, it does not follow that the absence of the other listed circumstances undercuts that finding in any way,” he continued.

“… In another case, perhaps, the absence of some of these circumstances might be more relevant, but not so here,” he wrote. “What is relevant is that the State produced evidence that Gray was in close proximity to the marijuana and that it was in plain view. In my view, this is more than enough evidence to permit a finding that Gray knew of the presence and character of the contraband.”


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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.