ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John A. Goodridge Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
Ann L. Goodwin
Deputy Attorney General
Gary R. Rom
Deputy Attorney General
FILED
Indianapolis, Indiana
Nov 22 2011, 11:05 am
In the CLERK
Indiana Supreme Court
of the supreme court,
court of appeals and
tax court
No. 82S01-1106-CR-328
LISA GRAY,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
Appeal from the Vanderburgh Superior Court, No. 82D05-0809-CM-6587
The Honorable Allen R. Hamilton, Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 82A01-1005-CR-223
November 22, 2011
Shepard, Chief Justice.
A trial court found Lisa Gray guilty of possessing marijuana as a class A misdemeanor,
but the Court of Appeals set aside the conviction on the grounds of insufficient evidence. We
have accepted jurisdiction to reinstate the judgment.
Facts and Procedural History
On the evening of September 7, 2008, Officers Robert Pylant and Jason Clegg of the
Evansville Police Department arrived at Lisa Gray‟s apartment. Gray answered the door and
stepped out onto the porch to speak to the officers. (Tr. at 8, 16.)
The officers explained they were there to investigate a report of marijuana being dealt
from Gray‟s apartment and asked for her permission to search it. (Tr. at 9, 15.) Gray initially
reacted with shock. (Tr. at 9.) Officer Pylant later testified that he thought he asked Gray
whether anyone else was inside, and that Gray told the officers that her son D.H. and two of his
friends were inside. (Tr. at 17.)
The conversation lasted about five minutes. (Tr. at 9, 13, 16.) During the conversation,
the officers could see through the screen door into the living room of Gray‟s apartment. (Tr. at
16–17.) They could also see a coffee table about eight to ten feet from the door. (Tr. at 18.) But
the officers did not see anyone moving around by the coffee table. (Tr. at 17–18, 20.) Gray
signed a written consent form allowing the officers to search her apartment. (Tr. at 9.)
On entering the apartment, the officers found two boys, both fourteen years old, sitting in
the living room on a couch next to the coffee table. (Tr. at 9–15.) Both boys said they were
visiting D.H., who was fifteen. (Tr. at 11, 24.) D.H., however, was not in the apartment when
the officers entered. (Tr. at 40, 45.) Officer Clegg later testified that Gray told the officers that
D.H. was elsewhere in the apartment complex. (Tr. at 17, 46.)
The officers also noticed a small bag of marijuana sitting on the floor under the coffee
table. (Tr. at 10, 12.) Officer Pylant later testified that the bag appeared to be “in plain view”
and contained a “gray leafy substance.” (Tr. at 10.) The marijuana later tested positive for
tetrahydrocannabinol (THC) and weighed about 4.5 grams. (Tr. at 10, 12.) Gray and both boys
denied owning the marijuana. (Tr. at 11.)
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About halfway through the officers‟ investigation, Officer Clegg noticed D.H. enter the
apartment through the front door. (Tr. at 45.) Officer Pylant did not notice D.H. until D.H.
appeared behind Officer Pylant asking what was going on. (Tr. at 41, 43.) At that point, the
officers explained the situation to him. (Tr. at 41.)
Officer Pylant cited Gray for possessing marijuana and issued her an information and
summons ordering her to appear in court. (App. at 9.) The case went to a bench trial in April
2010. (Tr. at 4.) Gray moved for a judgment on the evidence at the close of the State‟s case-in-
chief, but the trial court denied the motion. (Tr. at 22.)
In Gray‟s defense, both Gray and D.H. testified that D.H. was sitting on the couch with
his two friends when the officers entered the apartment. (Tr. at 25–26, 49–50.) Gray further
testified that she later learned the marijuana belonged to D.H. (Tr. at 26–27.) D.H. likewise
testified that the marijuana belonged to him, adding that he got scared and threw it under the
table when the officers arrived. (Tr. at 38.) On cross-examination, Gray acknowledged that the
police report did not even list her son as being present even though the report did list the names
of his two friends. (Tr. at 27–28.) The State recalled both officers as rebuttal witnesses to
establish that D.H. was not present when the officers entered, and the defense recalled both Gray
and D.H. to contest this point. (Tr. at 41, 45–46, 49–50.)
Immediately after placing D.H. under oath and before allowing any questioning, the trial
court inquired whether D.H. had spoken to a lawyer and understood his rights, as it appeared
D.H. was about to admit to a criminal offense. (Tr. at 29.) Gray‟s lawyer acknowledged that his
intention in calling D.H. was to elicit just such an admission on the stand but that D.H. had not
spoken to a lawyer. (Tr. at 29.) The court advised D.H. of his rights. (Tr. at 30, 35–37.) As
Gray‟s lawyer further questioned D.H. about whether D.H. understood his rights, the court broke
in to admonish Gray:
THE COURT: Ma‟am, don‟t shake your head yes or no.
He is to answer.
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MS. GRAY: Okay.
THE COURT: Not based on how you nod your head.
MS. GRAY: Okay, thank you.
(Tr. at 31.) When D.H. stated that he wanted to speak to a lawyer, the court ordered a
continuance so D.H. could speak to a lawyer the court appointed for him. (Tr. at 31–33.)
After the trial finally came to a close, the court found Gray guilty of possessing marijuana
and imposed a sentence of ninety days suspended time, a $10 fine, court costs, and a $200 drug
interdiction fee. (Tr. at 51–52.) Gray appealed, arguing that the evidence was insufficient to
support her conviction. (Appellant‟s Br. at 4.) The Court of Appeals reversed. Gray v. State,
944 N.E.2d 527 (Ind. Ct. App. 2011). We granted transfer, vacating the opinion of the Court of
Appeals. Gray v. State, 950 N.E.2d 1211 (Ind. 2011) (table).
Standard of Review
When reviewing a claim that the evidence introduced at trial was insufficient to support a
conviction, we consider only the probative evidence and reasonable inferences that support the
trial court‟s finding of guilt. Drane v. State, 867 N.E.2d 144 (Ind. 2007). We likewise consider
conflicting evidence in the light most favorable to the trial court‟s finding. Wright v. State, 828
N.E.2d 904 (Ind. 2005). It is therefore not necessary that the evidence overcome every
reasonable hypothesis of innocence. Drane, 867 N.E.2d at 147. Instead, we will affirm the
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conviction unless no reasonable trier of fact could have found the elements of the crime beyond a
reasonable doubt. Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000).1
Constructive Possession
A person commits possession of marijuana as a class A misdemeanor if she knowingly or
intentionally possesses marijuana. Ind. Code § 35-48-4-11 (2008). A person actually possesses
contraband when she has direct physical control over it. Henderson v. State, 715 N.E.2d 833
(Ind. 1999). But a conviction for a possessory offense does not depend on catching a defendant
red-handed. Wilburn v. State, 442 N.E.2d 1098 (Ind. 1982).
When the State cannot show actual possession, a conviction for possessing contraband
may rest instead on proof of constructive possession. Goodner v. State, 685 N.E.2d 1058 (Ind.
1997). 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. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind.), modified on reh‟g, 685 N.E.2d 698
(Ind. 1997).
1
Gray argues that her conviction lacks the support of sufficient evidence because the evidence merely
tends to support the conviction but does not do so beyond a reasonable doubt. (Appellant‟s Br. at 4.)
(citing Vuncannon v. State, 254 Ind. 206, 258 N.E.2d 639 (Ind. 1970); Gaddis v. State, 253 Ind. 73, 251
N.E.2d 658 (Ind. 1969); Liston v. State, 252 Ind. 502, 250 N.E.2d 739 (Ind. 1969)). We view Gray‟s
characterization of our standard of review as an invitation to reweigh the evidence. All an appellate court
may determine is whether the evidence introduced at trial was substantial and had probative value. See
Drane, 867 N.E.2d at 147. The cases Gray cites held that indefinite, vacillating, or coerced testimony was
neither substantial nor probative, Vuncannon, 254 Ind. at 207–09, 258 N.E.2d at 640; Gaddis, 253 Ind. at
77–80, 251 N.E.2d at 660–62, and that the State must introduce substantial evidence of probative value
that speaks to each element of an offense, Liston, 252 Ind. at 509–12, 250 N.E.2d at 742–44. No
reasonable trier of fact would find the elements of crime beyond a reasonable doubt by relying on
“evidence” that failed to satisfy either holding.
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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. Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004)
(citing Davenport v. State, 464 N.E.2d 1302, 1307 (Ind. 1984)). We allow this inference even
when that possessory interest is not exclusive. Id. at 341.
A trier of fact may likewise infer that a defendant had the intent to maintain dominion
and control over contraband from the defendant‟s possessory interest in the premises, even when
that possessory interest is not exclusive. Id. When that possessory interest is not exclusive,
however, the State must support this second inference with additional circumstances pointing to
the defendant‟s knowledge of the presence and the nature of the item. Id. We have previously
identified some possible examples, including (1) a defendant‟s incriminating statements; (2) a
defendant‟s attempting to leave or making furtive gestures; (3) the location of contraband 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. (citing Henderson, 715 N.E.2d at 836); see also Carnes
v. State, 480 N.E.2d 581, 586 (Ind. Ct. App. 1985) (list not exhaustive as other circumstances
could just as reasonably demonstrate requisite knowledge).
A defendant‟s “proximity to contraband „in plain view‟ . . . will support an inference of
intent” to maintain dominion or control. Lampkins, 682 N.E.2d at 1276 (citing Young v. State,
562 N.E.2d 424 (Ind. Ct. App. 1990); Smith v. State, 505 N.E.2d 81 (Ind. Ct. App. 1987); Watt
v. State, 412 N.E.2d 90 (Ind. Ct. App. 1980)). In addition to being in plain view, however, the
contraband‟s incriminating character must be immediately apparent. Lampkins, 685 N.E.2d at
700. Whether the incriminating character of contraband was immediately apparent depends on
an analysis similar to the one we use to determine the admissibility of evidence seized in a
warrantless search under the plain view doctrine. See id. (citing Minnesota v. Dickerson, 508
U.S. 366 (1993)); see also Dickerson, 508 U.S. at 374–75 (evidence admissible if officers
lawfully in position to view item, incriminating character immediately apparent, and officers had
6
lawful right of access to item). It does not take much to recognize the incriminating character of
marijuana.
To be sure, finding contraband hidden from plain view on premises in which a defendant
has a nonexclusive possessory interest when the defendant was not even present will not, without
more, support a conviction on a theory of constructive possession. Gee, 810 N.E.2d at 343. In
Gee, officers searched a residence the defendant and his cousin leased but which the defendant
used only rarely. Id. at 340. The officers found drugs and paraphernalia largely hidden from
view in closed containers and bags in a basement laundry room. Id. There were no other
additional circumstances pointing to the defendant‟s knowledge of the presence and the nature of
the items. See id. at 343–44. On appeal, we reversed the defendant‟s conviction, finding that the
incriminating character of the contraband was not immediately apparent. Id. at 342–44.
Here, there is no dispute that Gray had a possessory interest in the apartment, which is
sufficient to establish her capability to maintain dominion and control over the marijuana. The
evidence at trial, if credited, supplied additional circumstances that, combined with her
possessory interest in the apartment, sufficiently establish her intent to maintain dominion and
control over the marijuana. The officers testified that the coffee table in Gray‟s living room was
about eight to ten feet away from the door. Gray was present when the officers later found the
marijuana under the table in plain view. Because the officers did not see any movement around
the coffee table while they were speaking to Gray on the front porch, the trial court could
reasonably have found that Gray was in close proximity to the marijuana while it was in her
plain view before answering the door and stepping out onto the porch to speak with the officers.
Moreover, there is sufficient evidence in the record that the incriminating character of the
marijuana was immediately apparent. Officer Pylant testified that he could see a gray leafy
substance in the bag. This was not a situation in which someone had deliberately concealed
contraband in closed containers and bags in a basement room. Cf. Gee, 810 N.E.2d at 340. The
trial court could have found that Gray would have immediately realized that the substance was
marijuana on seeing it and therefore had knowledge of its presence and its nature. It could
7
therefore reasonably infer that Gray intended to maintain dominion and control over the
marijuana based on the evidence the State presented in its case-in-chief.
Finally, the evidence Gray presented in her defense, when viewed in the light most
favorable to the trial court‟s finding, only further supports that finding.2 Gray and D.H. both
testified in Gray‟s defense that D.H. was present in the apartment and that he was sitting on the
couch with his two friends when the officers entered. D.H. further testified that he got scared
and threw the bag of marijuana under the coffee table. The officers, however, both testified that
D.H. was not present at all, making that action impossible. The State called both officers as
rebuttal witnesses to establish this point, and the defense called both Gray and D.H. as rebuttal
witnesses to contest this point.
The trial court was also entitled to take into account the manner in which Gray presented
her evidence. Although D.H. testified only after having spoken to a lawyer and waiving his
rights, Gray‟s lawyer first called D.H. to the stand without having advised him of his right to
independent counsel, to have a lawyer present while testifying, or not to testify against himself at
all. The fact that Gray appeared to be signaling her son on how to answer when her lawyer asked
D.H. about whether he understood his rights illustrates rather dramatically the reason appellate
courts defer to a trier of fact who saw and heard the witnesses.
Charged with the assignment of determining whose testimony to believe, the trial judge
obviously found the officers more credible than Gray and her son. This constituted substantial
evidence of probative value from which the court could have found beyond a reasonable doubt
that Gray committed the crime.
2
We consider this evidence because Gray challenges the sufficiency of the evidence supporting her
conviction, not the trial court‟s decision to deny her motion for judgment on the evidence. The hornbook
law of Indiana Trial Rule 50(A)(6) holds that a party waives any error of the trial court‟s in denying a
motion for judgment on the evidence whenever the party subsequently presents her own evidence.
8
Conclusion
We therefore affirm Gray‟s conviction.
Dickson, Sullivan, Rucker, and David, JJ., concur.
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