Brent v. State, 2011 Ind. App. LEXIS 1901

Brent was convicted by bench trial of possession of marijuana (Class A misdemeanor) and visiting a common nuisance (Class B misdemeanor).
Evidence arose after police pursued a vehicle; Brent was the front passenger and was handcuffed for safety.
Officers found a baggie containing marijuana near a spot where the car briefly stopped close to a parked vehicle.
The State argued Brent either actually or constructively possessed the marijuana, based on proximity and other circumstances.
The trial court convicted Brent on both counts; on appeal, the State conceded for the nuisance conviction and the court reversed both convictions.
This opinion analyzes sufficiency of the evidence for possession and for visiting a common nuisance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there sufficient evidence of possession of marijuana?	Brent possessed it; constructive possession supported by circumstances.	No actual possession; no evidence Brent controlled the marijuana; driver’s control cannot imply Brent’s possession.	Insufficient evidence to sustain possession conviction.
Was there sufficient evidence of visiting a common nuisance?	Vehicle used as common nuisance; Brent connected by proximity.	State failed to prove the vehicle was used as a nuisance more than once; no evidence of repeat nuisance.	Conviction for visiting a common nuisance reversed.

Holmes v. State, 785 N.E.2d 658 (Ind. Ct. App. 2003) (constructive possession framework and additional circumstances)
Bradshaw v. State, 818 N.E.2d 59 (Ind. Ct. App. 2004) (actual possession defined by direct physical control)
Edmond v. State, 951 N.E.2d 585 (Ind. Ct. App. 2011) (odor of marijuana and arrest/search context not conclusive for possession)
Womack v. State, 738 N.E.2d 320 (Ind. Ct. App. 2000) (circumstantial evidence of possession supported by suspicious behavior and location)
Armstrong v. State, 429 N.E.2d 647 (Ind. 1982) (circumstantial evidence permissible to infer guilt)