Martin v. State

CONCURRING OPINION

BUCHANAN, J. —

After reviewing the record and the case law in this and other states, I reluctantly concur. There is no case law supporting James Martin’s (Martin’s) conviction under these circumstances.

It should be emphasized that there is sufficient evidence from which the trial judge could infer that James had the ability to maintain control and dominion over the bedroom in which the drugs were found. Present in the marital bedroom when he arrived were his clothes and twenty-five (25) pairs of his shoes, which was sufficient evidence to create an inference that he was in possession of the bedroom on the day of the raid.

However, it 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. Gredy v. State (1973), 158 Ind. App. 212, 301 N.E.2d 850. If, in addition to non-exclusive possession, there had been flight, Ledcke v. State (1973), 260 Ind. 382, 296 N.E.2d 412, furtive gestures, Moss v. State (1975), 165 Ind. App. 502, 333 N.E.2d 141, close proximity by Martin to the contraband, Thurman v. State (1974), 162 Ind. App. 267, 319 N.E.2d 151, close proximity of the contraband to items owned by Martin, See People v. White (1969), 71 Cal.2d 80, 75 Cal.Rptr. 208, 450 P.2d 600, or if the contraband was in plain view, Mills v. State (1975), 163 Ind. App. 608, 325 N.E.2d 472, a conviction might be sustained.

NOTE — Reported at 372 N.E.2d 1194.