Pursuant to Ind. Appellate Rule 65(D), Nov 13 2013, 7:12 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NEIL L. WEISMAN GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ZIGFRIED DAVIS, )
)
Appellant-Defendant, )
)
vs. ) No. 71A05-1303-CR-124
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jane Woodward Miller, Judge
Cause No. 71D01-1204-FD-338
November 13, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Zigfried Davis appeals his conviction of possession of cocaine, a Class D felony.
Ind. Code § 35-48-4-6 (2006). He raises one issue, which we restate as whether the
evidence is sufficient to sustain his conviction. We affirm.
FACTS AND PROCEDURAL HISTORY
On the evening of April 4, 2012, Davis and several other people gathered at an
apartment. He left the gathering just before three in the morning to give Dionna Stuckey,
Jaques Sanders, and Jolisa McDaniel a ride home. Davis drove his grandmother’s
vehicle, a red Oldsmobile Bravada. Stuckey sat in the front passenger seat, and Sanders
and McDaniel sat in the back seat.
Davis dropped Sanders and McDaniel off at their home. As Davis drove toward
Stuckey’s residence, Officer Joseph Cole of the South Bend Police Department stopped
him for improper lane movement. Other officers arrived at the scene soon thereafter.
Cole approached the driver’s side window of Davis’s vehicle and asked him to
produce his license and registration. Davis removed a stack of papers from the glove box
and placed them on his lap. Next, he gave Cole his license and began to go through the
stack of papers. Cole noticed that Davis’s hand was shaking as he handed him his
license. Cole also observed that Davis reached toward the vehicle’s center console
several times as he went through the papers but pulled his hand back each time. Finally,
Cole saw Davis look toward the console. While this occurred, Officer Casey Hof stood
on the passenger side of the car and watched Stuckey. Hof did not see Stuckey reach
toward the console.
2
Based on his observations, Cole was concerned that Davis might have a weapon in
the console and ordered him out of the vehicle. Davis initially refused but eventually got
out. Cole had Davis walk to the back of the vehicle and patted him down for weapons.
Davis was unable to locate the vehicle’s registration, so Cole checked the vehicle’s plate
on his computer. Next, Cole learned that there was a warrant for Davis’s arrest and
placed him in custody.
Pursuant to his department’s policy, Cole impounded Davis’s vehicle and began
an inventory search. He opened the center console and found a baggie containing six
chunks of a rocklike substance. After completing the search, Cole asked Davis if there
were any drugs in the vehicle, and Davis said, “There probably is.” Tr. p. 89; State’s Ex.
11. The substance was subsequently tested and identified as cocaine.
An officer left with Stuckey to drive her home, but after Officer Cole found the
cocaine, the officer returned Stuckey to the scene for questioning. She denied leaving
cocaine or anything else in the vehicle.
The State charged Davis with possession of cocaine, and the case was tried to a
jury. The jury determined that Davis was guilty, and the trial court sentenced him
accordingly. This appeal followed.
DISCUSSION AND DECISION
Davis contends there is insufficient evidence to support his conviction. When
reviewing a challenge to the sufficiency of the evidence underlying a criminal conviction,
we neither reweigh the evidence nor assess the credibility of witnesses. Bailey v. State,
979 N.E.2d 133, 135 (Ind. 2012). The evidence and all reasonable inferences drawn from
3
it are viewed in a light most favorable to the verdict. Id. We affirm if there is substantial
evidence of probative value supporting each element of the crime from which a
reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.
Id.
To convict Davis, the State was required to prove beyond a reasonable doubt that
(1) Davis (2) knowingly or intentionally (3) possessed (4) cocaine. Ind. Code § 35-48-4-
6. Davis claims the State failed to prove that he possessed the cocaine that Cole found in
the console.
Where the State does not show actual possession, a conviction for possessing
contraband may rest instead on proof of constructive possession. Gray v. State, 957
N.E.2d 171, 174 (Ind. 2011). A person constructively possesses contraband when the
person has: (1) the capability to maintain dominion and control over the item, and (2) the
intent to maintain dominion and control over it. Id.
A trier of fact may infer that a defendant had the capability to maintain dominion
and control over contraband from the simple fact that the defendant had a possessory
interest in the premises on which an officer found the item. Id. We allow this inference
even when that possessory interest is not exclusive. Id.
When that possessory interest is not exclusive, however, the State must support
this inference with additional circumstances pointing to the defendant’s knowledge of the
presence and the nature of the item. Id. at 174-75. Our Supreme Court has previously
identified some examples, including: (1) a defendant’s incriminating statements, (2) a
defendant’s attempting to leave or making furtive gestures, (3) the location of contraband
4
like drugs in settings suggesting manufacturing, (4) the item’s proximity to the defendant,
(5) the location of contraband within the defendant’s plain view, and (6) the mingling of
contraband with other items the defendant owns. Id. at 175.
In this case, Davis had non-exclusive possession of the vehicle because he had
borrowed it from his grandmother and there had been several passengers in the vehicle on
the evening in question. We must therefore consider whether there were additional
circumstances pointing to Davis’s knowledge of the presence and nature of the cocaine.
The evidence admitted at trial established such circumstances. The cocaine was found in
the console next to Davis’s seat. In addition, he was nervous and repeatedly gestured
toward the console as he reviewed the papers in his lap. Cole also saw Davis look at the
console as he went through the papers. All of Davis’s passengers denied possessing the
cocaine, and Officer Hof never saw Stuckey reach for the console. Finally, after Officer
Cole found the cocaine and asked Davis whether there were drugs in the vehicle, he said,
“There probably is.” Tr. p. 89; State’s Ex. 11. This evidence would allow a reasonable
jury to conclude that Davis had the capability and the intent to maintain control over the
cocaine and therefore constructively possessed it. See Powell v. State, 912 N.E.2d 853,
865 (Ind. Ct. App. 2009) (evidence sufficient to establish constructive possession of
marijuana and methamphetamine where contraband was in plain view, close to Powell,
and officer saw Powell repeatedly reach toward area where contraband was later found).
Davis’s claim that the cocaine belonged to his grandmother is a request to reweigh
the evidence, which our standard of review forbids.
5
CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
ROBB, C.J., and VAIDIK, J., concur.
6