Grim v. State

FRIEDLANDER, Judge,

dissenting.

I believe that the evidence was sufficient to support Grim's convictions for possession of a narcotic drug and possession of chemical reagents or precursors with intent to manufacture, and therefore respectfully disagree with the majority's decision to reverse those convictions based on insufficient evidence.

Both convictions were obtained in part by application of the doctrine of construc*836tive possession. That doctrine applies in situations where the State seeks to prosecute for possession of contraband, but the contraband was not found in the defendant's "actual possession." Goliday v. State, 708 N.E.2d 4, 6 (Ind.1999). To support a conviction under this doctrine, the State must show "that the defendant had both the capability and the intent to maintain dominion and control over the contraband. Where control is non-exclusive, intent to maintain dominion and control may be inferred from additional cireumstances that indicate that the person knew of the presence of the contraband." White v. State, 772 N.E.2d 408, 413 (Ind.2002).

The majority concedes that the containers in which the contraband was found were located near enough to Grim that he could have readily reduced them to his possession. Both containers lay in plain view, although only the strap of the waistband carrying case was protruding from beneath the seat on which Grim was sitting. The case for constructive possession comes up short, according to the majority, because Grim cannot be charged with knowing the containers' contents. I disagree.

The law of constructive possession requires courts to examine the totality of the circumstances (also called "additional circumstances", id.) to determine whether we may infer the defendant's knowledge of the presence of the contraband. In this case, Grim and another person with whom he eventually left the store were videotaped the previous day purchasing large quantities of pseudoephedrine in a Wal-Mart. Pseudoephedrine has a legitimate medicinal use. -It is also used, however, in the illegal production of methamphetamine. In the latter context, the medication is classified as a precursor to the illegal production of methamphetamine. See I.C. § 85-48-4-14.5(a)(2). The quantity purchased is an indicator of the intended use. When purchased in the amount that Grim and his confederate purchased it at the Wal-Mart store, production of methamphetamine is indicated.

When Grim was stopped with a person the next day in the very same car, police found a large quantity of the aforementioned medication in the back seat. They found other items as well. They discovered a torch and a can of butane fuel protruding between the console and the seat in which Grim was sitting. Officer Aaron Strong, an investigator for the Drug Task Force of the New Castle Police Department, testified that such torches are used to help consume a controlled substance. They discovered a pipe that "could be used to introduce a controlled substance into a person's body." Record at 125. The pipe was laying on the console between the two front seats. They discovered a drinking straw under the driver's seat that was unusual in that it was only one-third to one-fourth as long as a normal drinking straw. According to Investigator Strong, "people cut these straws and they use them to introduce a controlled substance into their body by snorting it." Id. at 126. They found a bag containing salt. The bag was lying next to the sacks containing seventeen packages of pseudoephedrine medication. Investigator Strong testified that salt is used in the production of methamphetamine. Finally, they found a package of coffee filters in the yellow box containing the lithium batteries. Such coffee filters are "used at some point in filtering during a process for manufacturing methamphetamine." Id. at 185.

In summary, Grim traveled to a Wal-Mart the day before in the same car and was observed there purchasing an unusually large quantity of pseudoephedrine, and that a large quantity of that medication was found in the car when he was arrested *837the next day. At the time of his arrest, there were several items laying in plain view in the car that are associated with the production of methamphetamine. Several additional items used in that process were found inside the vehicle but not in open view. In fact, considering all of the items that were found in the vehicle, it would not be stretching the point to characterize the car as a rolling methamphetamine lab. Those facts must be considered in evaluating the State's claim of constructive possession. See, e.g., Iddings v. State, 772 N.E.2d 1006 (Ind.Ct.App.2002), trans. denied. Considering the totality of cireum-stances, the forgoing facts constitute "additional cireumstances" from which we may infer Grim's knowledge of the contents of the yellow box and the waistband carrying case. Thus, there was sufficient evidence to support his convictions of possession of a narcotic drug and possession of chemical reagents or precursors with intent to manufacture. I would affirm those convictions. I agree with the majority in all other respects.