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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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