Watt v. State

SHIELDS, Judge,

concurring in part and dissenting in part:

I dissent from the affirmance of Sente-ney’s conviction and in so doing direct the majority’s attention to a decision of this district, Martin v. State, (1978) Ind.App., 372 N.E.2d 1194, which contains an excellent discussion of constructive possession.

“In Thomas v. State (1973) 260 Ind. 1, 291 N.E.2d 557, 558, our Supreme Court defined constructive possession as the ‘intent and capability to maintain control and dominion’ over the substance. The opinion states that the requisite intent can be inferred from the voluntary commission of the act. In this regard the evidence must establish knowledge both of the item’s presence and of its forbidden character.”
“As to the quantum of proof necessary to sustain a conviction for knowing possession, evidence that a person has exclusive control of the premises permits the inference that he has constructive possession of any drugs found on those premises. The element of knowledge can reasonably be inferred from evidence of exclusive control alone. E. g., Phillips v. State, supra.
“In the instant case, however, we must determine whether the evidence was sufficient to prove constructive possession when the defendant, Linda Martin, was not in exclusive control of the area where the controlled substances were found....
“These circumstances present greater evidentiary difficulties because knowing possession on the part of Linda Martin cannot be reliably inferred from evidence of her joint access and control of the premises alone. Mere presence in the vicinity or association with one having possession of drugs is not sufficient to sustain a conviction. . . . [S]ome additional, independent proof is necessary to pronounce as reasonable an inference that Linda Martin individually, or together with others, knowingly possessed the contraband.
“Accordingly, an increasing number of jurisdictions apply the following rule: Where the accused did not have exclusive control of the premises, it may not be inferred that he knew of the presence of the drugs and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. There must be additional evidence, apart from that of defendant’s nonexclusive control of the premises, to permit an inference of knowledge.
“In Indiana this nonexclusive possession rule was explicitly adopted in Greely v. State, supra (holding that the evidence failed to establish Greely’s knowledge of the presence of drugs in his backyard), and is supported by other cases. In Thomas v. State, supra, 291 N.E.2d at 559, the Supreme Court quoted with approval the following language from Feltes et al. v. People (1972) 178 Colo. 409, 498 P.2d 1128, 1131:
‘A conviction of illegal possession may be based upon evidence that the marijuana, while not found on the person of the defendant, was in a place under his dominion and control. [Citations omitted.] If possession is established, knowledge of the character of the drug and the fact that it is possessed can be inferred therefrom.’
“The next two sentences from Feltes, the latter of which is omitted from the Thomas opinion, makes it clear that the above quoted language applies to exclusive possession only. With respect to nonexclusive possession, the Colorado court stated:
*101‘Possession need not be exclusive and the substance can be possessed jointly by a person and another without a showing that the person had actual physical control thereof. [Citations omitted.] However, where a person is in possession, but not in exclusive possession of the premises, it may not be inferred that he knew of the presence of marijuana there and had control of it unless there are statements or other circumstances tending to buttress the inference. [Citations omitted.]’ ”

Martin at 1197-8 (some citations omitted, footnotes omitted). The court then affirmed Linda Martin’s possession conviction because it found additional evidentiary factors to link her with the drugs found in the top drawer of the bedroom dresser.1 However, it reversed the conviction of Linda’s husband, James, because the only corroborating evidence was “that the bedroom was shared by the Martins as husband and wife.” Martin at 1199.

The situations of James Martin and Donna Senteney are strikingly similar. Sente-ney and Watts shared the single bedroom. Her clothing was in that bedroom.2 However, there was a lack of any other corroborating evidence. Senteney admitted the police officers to the residence upon their request, did not attempt to flee, nor did she engage in any other furtive conduct. Further, the record is totally devoid of any suggestion that she was present at the time of the initial controlled buy from Watt. Thus, the only evidence other than joint access and control of the bedroom from which Senteney’s knowledge of the nature of the substance and its presence can be inferred is where the substance was found. And indeed, it is this evidence upon which the majority relies:

“The drawer in which the marijuana was found was partially open. The box in which more marijuana was found was not the least way concealed; it was atop the dresser in the bedroom occupied by each defendant. While Walton testified that the clothes in the drawer were those of a male, he also testified that, where he found the marijuana, he ‘found clothing for a male and clothing for a female.’ ”

The foregoing is derived from the following which is all the testimony concerning the whereabouts of the controlled substance:

“Q Where in the residence did you find the drugs?
“A ... [I] found a quantity of Marijuana in a dresser drawer, in a wooden box. I believe that was it.”
R. 185.
*102“Q These aren’t readily separable, Officer, but I wonder if you could look at what is marked State’s Exhibit Two (2) and ask you to identify that, please?
“A That’s a plastic bag, heat-sealed envelope, which I inserted evidence that I found in David Watt’s bedroom in a box in a dresser drawer.”
R. 236.
“Q May I hand you what has been marked State’s Exhibit Four (4) and ask you to identify that, please?
“A That’s also a clear plastic envelope in which I inserted paraphenalia (sic) and suspected drugs, or, marijuana, that was found in David Watt’s bedroom, also in a box in a dresser drawer. And I heat-sealed it myself.”
R. 238.
“Q Okay. And you’re saying that— where are you saying, then, that you found State’s Exhibit Two (2), exactly, Officer?
“A This was also found in the bedroom at thirty-fifty (3050) Meredith in a box in a dresser drawer.
“Mr. KERN: I’m sorry, I didn’t hear the end of his statement. In a box? “THE COURT: In a dresser drawer.
“A In a box and, also, in the dresser drawer.
“MR. KERN: You’re referring to what exhibit now?
“A Four (4).
“MR. KERN: Four (4)? Part of that was found in a box and part in a dresser drawer, is that your statement?
“A Yes, it was.
“MR. KERN: Okay.
“Q Where was the box?
“A The box was on the dresser.
“Q On the dresser? Was it open?
“A The box was not, no.
“Q It was not open. What items of clothing, if any, were in the dresser or surrounding area where you found this marijuana?
“A There were tee-shirts, underwear, socks.
“Q Okay.
“A Underclothing.
“Q Were they male or female?
“A Where the drugs were found they were male.”
R. 253-5.
“Q Now, Officer, the dresser drawer was closed, I presume?
“A The dresser drawer where the drugs were found was partially open.”
R. 265.

The testimony is confusing. The officer does clearly testify Exhibit Two (2) was found in the bedroom in a box in a dresser drawer. As to Exhibit Four (4) the officer testifies it was found in the bedroom (1) in a box in a dresser drawer and (2) partly in a dresser drawer and partly in a closed box on the dresser. However, he clearly states only male clothing was in the dresser or surrounding area where he found the marijuana.

Compelled as we are to examine the evidence most favorable to the State, we resolve the conflict by construing the evidence as showing marijuana was found in the bedroom (1) in a box in a dresser drawer containing only male clothing, (2) in the dresser drawer again containing only male clothing, and (3) in a closed box on the dresser in a “surrounding” of male clothing. And while the police officer testified the dresser drawer was partially open he did not testify the marijuana was visible through the partially open drawer. In fact, clearly the marijuana in the wood box would not be visible. Therefore, without evidence of plain view, Senteney stands in the same shoes as James Martin whose conviction was reversed with a concurring opinion which contains a statement uniquely appropriate to the case before us:

“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 *103over 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. Greely v. State (1973), Ind.App., 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), Ind.App., 333 N.E.2d 141, close proximity by Martin to the contraband, Thurman v. State (1974), Ind.App., 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), Ind.App., 325 N.E.2d 472, a conviction might be sustained.

Martin at 1200-1 (concurring opinion).

I would reverse Senteney’s conviction but affirm Watt’s conviction.

. “The record before us does disclose that additional evidentiary factor to link Linda Martin with the drugs found in the master bedroom. Upon learning that police officers were at the apartment for the purpose of executing a search warrant, she denied them entry. She was then discovered fleeing down the hallway and subsequently found standing in the bathroom with the water running in the sink and commode. The houseguest, who was the only other person in the apartment at the time, was engaged in similar furtive activity. From such suspicious behavior, the trier of fact was entitled to infer guilty knowledge, i. e., that Linda Martin knew of the presence of the controlled substances. Cf., Von Hauger v. State (1970) 254 Ind. 297, 258 N.E.2d 847.”

Martin v. State, (1978) Ind.App., 372 N.E.2d 1194, 1198-9.

. “A ... [Wjhen we got ready to leave the residence Miss Senteney went to the bedroom and got some shoes and some clothing out of the closet and changed clothing.”

R. 185.

“Q Okay. What items of clothing did you see in the bedroom where you found the — or, what items, if any, did you find in the bedroom where you found this suspected marijuana?
“A I found clothing for a male and clothing for a female, shoes, coats, normal items of clothing.
“Q Okay. What do you mean by normal items of clothing?
“A Shirts, blouses, shoes, jackets, just normal casual wear.
“Q Was there more than enough for a person to just change into one (1) outfit there?
“A Yes, there was.
“Q At any time during your stay on the premises did the codefendant, Donna Sente-ney, go to the bedroom and obtain any clothing?
“A Yes, she did.”

R. 254.