ILNews

COA reverses marijuana conviction based on intent

Back to TopCommentsE-mailPrintBookmark and Share

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.”
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Do you know who the sponsor of the last-minute amendment was?

  2. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  3. My husband left me and the kids for 2 years, i did everything humanly possible to get him back i prayed i even fasted nothing worked out. i was so diver-stated, i was left with nothing no money to pay for kids up keep. my life was tearing apart. i head that he was trying to get married to another lady in Italy, i look for urgent help then i found Dr.Mack in the internet by accident, i was skeptical because i don’t really believe he can bring husband back because its too long we have contacted each other, we only comment on each other status on Facebook and when ever he come online he has never talks anything about coming back to me, i really had to give Dr.Mack a chance to help me out, luckily for me he was God sent and has made everything like a dream to me, Dr.Mack told me that everything will be fine, i called him and he assured me that my Husband will return, i was having so many doubt but now i am happy,i can’t believe it my husband broke up with his Italian lady and he is now back to me and he can’t even stay a minute without me, all he said to me was that he want me back, i am really happy and i cried so much because it was unbelievable, i am really happy and my entire family are happy for me but they never know whats the secret behind this…i want you all divorce lady or single mother, unhappy relationship to please contact this man for help and everything will be fine i really guarantee you….if you want to contact him you can reach him through dr.mac@yahoo. com..,

  4. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  5. Don't we have bigger issues to concern ourselves with?

ADVERTISEMENT