dissenting.
I respectfully dissent from the majority opinion granting rehearing and reversing Moore's conviction. I remain convinced that the evidence presented by the prosecution was sufficient to support the trial court's determination that Moore was guilty of the offense of dealing in cocaine and that any decision to the contrary by this court amounts to an impermissible reweighing of the evidence.
If a person has exclusive possession of premises containing contraband, an inference is permitted that the person knows the contraband is present and has the intent and capability to control the contraband. Young v. State (1990), Ind.App., 562 N.E.2d 424. When possession of the premises is non-exclusive, that same inference is not permitted absent some additional circumstances indicative of knowledge of the presence of the contraband and the ability to control it. Carnes v. State (1985), Ind.App., 480 N.E.2d 581. Among the often recognized "additional cireumstances" are (1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (8) a manufacturing setting; (4) proximity of the defendant to the drugs; (5) drugs are in "plain view"; and (6) location of the contraband in close proximity to items owned by the defendant. Id. Exclusive possession is not required and contraband can be possessed jointly by several persons. Martin v. State (1978), 175 Ind.App. 503, 372 N.E.2d 1194 (quoting Feltes et al. v. People (1972), 178 Colo. 409, 498 P.2d 1128).
In the case before us, Moore did not have exclusive possession of the premises because several other people were also present. Nevertheless, the evidence sufficiently supported the trial court's judgment that Moore had the capability and intent to exercise dominion and control over the cocaine, and thus possession of it, because, in addition to his presence at the scene, the State established the "additional cireumstances" of (1) the contraband being in plain view of Moore and the others; and (2) Moore's close proximity (four feet) to the contraband. The majority acknowledges that the State proved both that Moore was present in the apartment containing cocaine and that he knew the cocaine was there, but contends that the State failed to prove that Moore had the capability to maintain control over the contraband.
However, our supreme court has routinely held that presence in a dwelling containing drugs combined with knowledge of the presence and nature of the drugs, will suffice to support a conviction under a constructive possession theory. See Bergfeld v. State (1988), Ind., 531 N.E.2d 486 (defendant's attempt to flee, combined with his having spent the night in the room, provid*854ing money for its rental and intent to spend another night, sufficiently established that "he knew of the presence and nature of the drugs in the motel room"); Davenport v. State (1984), Ind., 464 N.E.2d 1302 ("[wJhen, however, possession of the premises is not exclusive, the inference of intent must be supported by additional cireum-stances pointing to an accused's knowledge of the nature of the controlled substances and their presence") Haymes v. State (1982), Ind., 431 N.E.2d 83, ("[i]t does appear that Indiana has adopted the rule that if possession of property is non-exclusive, the prosecution must bring forth some evidence which would indicate the defendant had knowledge of the drug. If, in addition to non-exclusive possession, there had been flight, furtive gestures, close proximity by Martin to the contraband, close proximity of the contraband to items owned by Martin, or if the contraband was in plain view, a conviction might be sustained" (quoting Martin, 372 N.E.2d at 1200) (citation omitted)).
The majority opinion states, "'The state's argument here is flawed because the state failed to prove that Moore had nonexelu-sive control over the apartment. A careful review of the record indicates that the state failed to prove that Moore exercised any control over the apartment whatsoever" and goes on to quote testimony concerning another's possessory interest in the premises. I have found no Indiana law, nor has the majority cited any, which requires the State to prove a defendant had a possessory interest in the premises in order to convict him of constructive possession of contraband. To the contrary, convictions based on a theory of constructive possession, where the defendant is a mere visitor in the dwelling, are routinely upheld. See Everroad v. State (1982), Ind., 442 N.E.2d 994 (in this joint appeal, "Smith did not live on the premises although he had visited there several times, including the previous night;" conviction for possession and dealing affirmed); Ledcke v. State (1973), 260 Ind. 382, 296 N.E.2d 412 (nonresident of apartment convicted of possession of marijuana which was in plain view). The majority appears to confuse capability to exert dominion and control over the substance with capability to exert dominion and control over the dwelling.
I am convinced that Moore's presence in the apartment, combined with the additional factors of plain view and close proximity, is sufficient to withstand a challenge to the sufficiency of the evidence. Because of these circumstances, it was within the province of the trial court to find that Moore was aware of the presence and the nature of the cocaine and able to exert control over it. A finding to the contrary would permit a group of drug dealers to lease an apartment in someone else's name and operate a distribution business out of it without fear of arrest and conviction. When police arrived, they could merely act nonchalant about the huge pile of drugs in the middle of the dining room table and the only recourse available to the police would be to confiscate the merchandise. Consequently, I dissent.