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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

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