Earl Moody v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 31 2017, 9:27 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Earl Moody, May 31, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1611-CR-2487
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia Gooden,
Appellee-Plaintiff. Judge
The Honorable Richard
Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1602-F5-4595
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Earl Moody (Moody), appeals his conviction possession
of marijuana, a Level 6 felony, Ind. Code § 35-48-4-11(c).
[2] We affirm.
ISSUE
[3] Moody presents one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt that he possessed
marijuana.
FACTS AND PROCEDURAL HISTORY
[4] On February 1, 2016, Indianapolis Metropolitan Police Department Officer
James Perry (Officer Perry) initiated a traffic stop after he observed a vehicle fail
to signal while exiting a gas station. Officer Perry identified Moody as the
driver, and the other occupant was J.L. (J.L.), a minor, seated as a passenger in
the front seat. When Officer Perry asked for Moody’s license and registration,
Moody offered the documents and indicated that he had “just purchased the
vehicle.” (Transcript p. 93). Officer Perry also identified the odor of raw
marijuana emanating from the driver side of the car. Officer Perry returned to
his vehicle and called for back-up. Officer Joe Beasley (Officer Beasley)
responded, and he too noticed the smell of raw marijuana coming from the
driver side. Officer Perry approached the passenger side, opened the door, and
asked J.L. to step out of the vehicle. As J.L. stepped out of the vehicle, and
based on his training, Officer Perry observed “a plastic baggie containing raw
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marijuana just to the right of the passenger seat on the floorboard.” (Tr. p. 16).
Officer Perry alerted Officer Beasley to the discovery of the contraband, and
Moody was ordered out of the vehicle. Moody and J.L. were handcuffed and
each were read their Miranda rights. Again, Moody stated that he was the
owner of the car, but denied knowledge of the presence of marijuana inside his
vehicle.
[5] At some point, Officer David Williams (Officer Williams) arrived at the scene
to offer his assistance. While Officer Williams watched Moody and J.L.,
Officers Perry and Beasley conducted a further search of Moody’s vehicle. The
subsequent search yielded two additional vacuum-sealed plastic bags containing
raw marijuana. One bag was found “under the center console,” and the other
was lying between the center console and the passenger seat. (Tr. p. 20). In the
trunk, the officers found “80 caliber rounds,” and a search of Moody’s person
revealed a total of $896 in cash. (Tr. p. 21). A chemical test of the baggie found
on the floorboard on the passenger side yielded 3.83 grams of marijuana. The
two vacuum-sealed plastic bags found in the vicinity of the center console
yielded marijuana weighing 27.52 grams and 27.76 grams, respectively.
[6] On February 4, 2016, the State filed an Information, charging Moody with
Count I, dealing in marijuana, a Level 6 felony; Count II, maintaining a
common nuisance, a Level 6 felony; and Count III, possession of marijuana, a
Class B misdemeanor. Based on a prior drug conviction, the State also charged
Moody with possession of marijuana, a Level 6 felony. Moody waived his right
to a jury trial, and a bench trail was conducted on October 6, 2016. At the end
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of the State’s case-in chief, Moody moved for involuntary dismissal pursuant to
Indiana Trial Rule 41(B). Based on the evidence presented by the State, the
trial court dismissed the dealing in marijuana and maintaining common a
nuisance charges; however, it found that the State had presented sufficient
evidence with respect to the possession of marijuana charge. Moody proceeded
to present his case, and at the close of the evidence, the trial court found Moody
guilty of possession of marijuana, a Class B misdemeanor. Considering
Moody’s prior drug conviction, the trial court elevated Moody’s Class B
misdemeanor possession of marijuana to a Level 6 felony. On the same day,
the trial court sentenced Moody to an executed sentence of 498 days, with 249
days of credit time.
[7] Moody now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Moody challenges the sufficiency of the evidence supporting his conviction for
possession of marijuana, a Level 6 felony. On review, our court will not
reweigh evidence or assess the credibility of witnesses. Whitney v. State, 726
N.E.2d 823, 825 (Ind. Ct. App. 2000). We will consider the evidence most
favorable to the judgement, together with all reasonable inferences to be drawn
therefrom, and we will affirm the conviction “if the probative evidence and
reasonable inferences to be drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”
Id.
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[9] In order to convict Moody of a Level 6 felony, possession of marijuana, the
State was required to prove beyond a reasonable doubt that he knowingly or
intentionally possessed marijuana weighing more than thirty grams. See I.C. §
35-48-4-11. It is well-established that possession of an item may be either actual
or constructive. See Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997),
modified on reh’g, 685 N.E.2d 698 (Ind. 1997). Actual possession occurs when a
person has direct physical control over the item. Houston v. State, 997 N.E.2d
407, 410 (Ind. Ct. App. 2013). Constructive possession occurs when a person
has: (1) the capability to maintain dominion and control over the item; and (2)
the intent to maintain dominion and control over it. Lampkins, 682 N.E.2d at
1275. Here, the State’s case was based on theory of constructive possession.
Moody claims that the State failed to show that he had actual knowledge of the
presence of marijuana in his vehicle. Accordingly, Moody only disputes the
intent element of constructive possession doctrine, not the capability prong.
[10] To prove intent, 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). This
knowledge may be inferred from either the exclusive dominion and control over
the premise containing the contraband or, if the control is non-exclusive, like
here, evidence of additional circumstances pointing to the defendant’s
knowledge of the presence of the contraband. Id. Such additional
circumstances include, but are not limited, to the following: (1) incriminating
statements made by the defendant; (2) attempted flight or furtive gestures; (3) a
manufacturing setting; (4) proximity of the defendant to the contraband; (5)
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location of the contraband within the plain view of the defendant; and (6)
location of the contraband within close proximity of items owned by the
defendant. Bradley v. State, 765 N.E.2d 204, 212 (Ind. Ct. App. 2002).
[11] In this case, there is evidence pointing to Moody’s knowledge of the presence of
the marijuana, specifically, its pungent odor. The record shows that the odor
was immediately detected by Officer Perry as soon as Moody rolled down his
car windows following the traffic stop. In addition, Officer Beasley, who
arrived at the scene moments later, likewise smelled the odor of raw marijuana
emanating from the driver’s side of the vehicle. Based on the obvious smell of
raw marijuana emanating from the driver’s side of the car, the trial court could
reasonably infer that the marijuana odor was likewise readily detectable by
Moody and thus he knew the marijuana was present in his vehicle. In addition
to the odor, Moody was also in close proximity to the seized contraband. The
search of Moody’s vehicle yielded two vacuum-sealed plastic bags containing
raw marijuana, one of which was found under the center console of the vehicle,
and the other between the center console and the passenger seat. Moody had
easy access to the center console where the vacuum-sealed plastic bags
containing raw marijuana were detected.
[12] Based on the foregoing, we conclude that the State presented sufficient evidence
for the trier of fact to infer that Moody had constructive possession of the
recovered contraband. Thus, there was sufficient evidence beyond a reasonable
doubt to sustain his Level 6 felony, possession of marijuana conviction.
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CONCLUSION
[13] In light of the above, we conclude that the State presented sufficient evidence
beyond a reasonable doubt that Moody constructively possessed marijuana.
[14] Affirmed.
[15] Najam, J. and Bradford, J. concur
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