Parson v. State , 431 N.E.2d 870 ( 1982 )

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant James Parson (Parson) appeals his convictions for carrying an unlicensed handgun in a vehicle and possession of heroin having an aggregate weight of less than ten grams, challenging the sufficiency of the evidence.

We affirm.

FACTS

The facts most favorable to the State disclose that on the morning of April 27, 1976, warrants were issued to Indianapolis police officers for the purpose of searching Parson’s house and leased motor home for heroin. At 3:00 P.M. the officers arrived at Parson’s home, located at 4214 North Ed-mondson in Indianapolis: It was unlighted and neither the motor home nor any other vehicle was present. The officers kept the home under constant surveillance. No officer testified as to having seen anyone approach until 8:00 P.M. when Parson, unaccompanied by any passengers, arrived in the leased motor home. At trial Parson indicated that he had last been home at approximately 9:00 P.M. the previous night, April 26. He said that others had access to the home during his absence, including his brother, who returned Parson’s dog to the house at 4:00 P.M. on April 27. However, the officers keeping watch over Parson’s house observed no visitors from 3:00 P.M. to 8:00 P.M. on April 27. Parson also testified that his wife, with whom he shared the house, was out of town during the entire period in question.

Upon Parson’s arrival, the officers executed the warrants. Commencing their search inside the motor home, they seized a loaded thirty-eight caliber Colt revolver from a compartment above the driver’s seat. Connie Morris, recordkeeper for the Indiana State Police Firearms Licensing Section, testified at trial that Parson did not have a license to carry the weapon.

The investigation was continued outdoors. In a fenced-in area behind Parson’s house was his “big guard dog.. . about the size of a Shepherd . . . .” Record at 200. At trial, Parson indicated that the animal was a bouvier des flandres, defined in Webster’s New International Dictionary 261 (3d ed. 1976) as “a breed of large powerfully built rough-coated dogs . . . used especially for herding and in guard and police work . . . . ” The officers, reluctant to handle the animal, asked Parson to remove it from the area. He did so. The officers then searched the area. Underneath the aluminum siding on the rear of Parson’s house— within the area enclosed by the fence and previously occupied by the guard dog — the officers discovered three tin foil packets. Chemical analysis indicated that one packet contained 2.96 grams of heroin. The others held a total of 7.7 grams of heroin “mix”— quinine, procaine, and methapyrilene — and, possibly, a minute quantity of heroin.

The jury trial ended in convictions for carrying an unlicensed handgun in a vehicle and possession of heroin, from which convictions Parson appeals.

ISSUE

Parson raises a single issue:

Was the evidence sufficient to support his convictions?

DECISION

A. THE CONVICTION FOR CARRYING AN UNLICENSED HANDGUN IN A VEHICLE

PARTIES’ CONTENTIONS — Parson claims that the evidence adduced at trial was insufficient to prove the element of possession. The State responds that the evidence was adequate to establish Parson’s constructive possession of the unlicensed handgun seized from the motor home.

CONCLUSION — The evidence was sufficient to support Parson’s conviction for carrying an unlicensed handgun in a vehicle.

As always, in reviewing the sufficiency of the evidence, we neither weigh the evidence nor judge the credibility of witnesses. We examine only the evidence most favorable to the State along with all reasonable inferences to be drawn therefrom. When there is substantial evidence of probative value supporting the verdict, the conviction will not be set aside. Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d 1349; Johnson v. State, (1981) Ind.App., 419 N.E.2d 232.

The parties correctly acknowledge that proof of constructive possession is sufficient to establish an accused’s possession of contraband. Watt v. State, (1980) Ind.App., 412 N.E.2d 90; Mills v. State, (1978) Ind. App., 379 N.E.2d 1023. Our supreme court has defined constructive possession as “an intent and capability to maintain control and dominion” over contraband. Thomas v. State, (1973) 260 Ind. 1, 4, 291 N.E.2d 557, 558. Accord, Watt, supra; Mills, supra. Proof of a possessory interest in the premises in which contraband is found is adequate to show the capability to maintain control and dominion over the item in question. Watt, supra; Hutcherson v. State, (1978) Ind.App., 381 N.E.2d 877; Mills, supra. And intent to maintain control and dominion, which is demonstrated by evidence of the accused’s knowledge of the nature of the contraband and its presence, may be inferred when possession of the premises is exclusive. Watt, supra; Mills, supra.

Parson’s status as lessee of the motor home from which the handgun was seized conferred upon him a sufficient possessory interest to show the capability to maintain control and dominion over the weapon. Furthermore, the evidence is undisputed that Parson was the driver and sole occupant of the vehicle. So despite Parson’s testimony that another person had access to the vehicle earlier, the jury could reasonably conclude that the motor home had been reduced to Parson’s exclusive possession for longer than a brief period of time before the search, thereby supporting the inference that Parson had the requisite intent to maintain control and dominion over the handgun.

B. THE CONVICTION FOR POSSESSION OF HEROIN

PARTIES’ CONTENTIONS — Parson also assails the evidence as being insufficient to prove that he was in possession of the heroin, the State responding that there was ample evidence of constructive possession.

CONCLUSION — The evidence was sufficient to support Parson’s conviction for possession of heroin having an aggregate weight of less than ten grams.

As discussed above, the requisite intent to maintain control and dominion over contraband may be inferred when possession of the premises in which it is found is exclusive. Watt, supra; Mills, supra. When, however, possession of the premises is not exclusive, the inference of intent must be supported by additional circumstances pointing to an accused’s knowledge of the nature of the contraband and its presence. Watt, supra; Hutcherson, supra; Martin v. State, (1978) Ind.App., 372 N.E.2d 1194.

That Parson had a possessory interest in the premises sufficient to show his capability to maintain control and dominion over the heroin is beyond dispute. Watt, supra; Hutcherson, supra; Mills, supra. But any conclusion that Parson’s possession of the premises was exclusive is precluded by his testimony — albeit uncorroborated— that during his absence before the heroin was found, others had access to the house. Consequently, additional indicia of Parson’s knowledge of the nature of the substance and its présence are necessary to buttress an inference of intent on his part. Watt, supra; Hutcherson, supra; Martin, supra.

The presence of a “manufacturing type setting” is an additional circumstance which will support an inference of intent in a non-exclusive possession case. Ledcke v. State, (1973) 260 Ind. 382, 389, 296 N.E.2d 412, 417. See also Mills, supra. Here, several packets of heroin “mix” were found in proximity to the packet of heroin, thereby supporting an inference closely akin to that permissible in a manufacturing or processing setting.

The jury could also reasonably have inferred that, like the Greek mythological dog Cerberus guarding the entrance to the lower world, Parson’s German shepherd-sized dog was placed by him in the fenced-in area surrounding that part of the house where the heroin was found to protect the heroin secreted under the siding. Four armed police officers were reluctant to remove this animal from its habitat; Parson was called upon to do so.

Pier v. State, (1980) Ind.App., 400 N.E.2d 209, is distinguishable. In that case, a conviction for possession of marijuana was reversed by this court because the evidence was insufficient to establish the element of constructive possession. Pier had been incarcerated following his arrest for assault and battery. Some forty-eight hours later, while Pier remained in jail, police officers went to Pier’s residence to search for a club allegedly used during the assault and battery. Present were a woman and two children with whom Pier shared the apartment. While conducting their search for the weapon, police seized a quantity of marijuana. This court, in reversing Pier’s conviction for possession, commented that a “common thread” running through Indiana decisions upholding findings of constructive possession was the presence of the defendant when the contraband was found. Id. at 210. The court also observed that “the evidence clearly shows the accused was absent from the premises for forty-eight hours prior to the time the marijuana was discovered, and other persons had access to the apartment during the interim.” Id. at 211 (emphasis supplied).

The circumstances of this case are entirely different from those presented in Pier. Parson, although absent when the police arrived to execute their search warrant for heroin, was present when the heroin was seized. Moreover, there was only Parson’s uncorroborated testimony to establish that he had been away during the twenty-three hours preceding execution of the warrants and that others might have entered the house during his absence. The police, who kept constant surveillance over the house from 3:00 P.M. until 8:00 P.M., did not testify that anyone entered — despite Parson’s testimony that his brother brought Parson’s dog to the house at 4:00 P.M. This is a far cry from the clear evidence of absence and access relied on by the Pier court. Bearing in mind that it is for the jury to judge the credibility of witnesses, Jones, supra; Johnson, supra, we can only conclude that the evidence was adequate to support Parson’s conviction for possession of heroin.

Affirmed.

SULLIVAN, J. concurs. SHIELDS, J. dissents with opinion.