Maurice Cannon was charged with possession of dangerous drugs (Tuinal) in violation of the 1935 Narcotic Act, IC 1971, 35-24-1-2, Ind. Ann. Stat. § 10-3520 (Burns 1956), as amended by Acts 1961, ch. 90, § 2, p. 172-173. 1 He was convicted after trial by the court sitting with *239 out a jury, аnd sentenced to serve 364 days on the Indiana State Farm and pay a fine of $1.00 plus costs. He alleges error at trial in overruling his Motion to Suрpress Evidence and the subsequent admission of that evidence at trial. Additionally he asserts that the evidence was insufficient to demonstratе that he possessed or controlled the drugs in question.
The evidence most favorable to the State reveals that Police Officer Jаmes Bilbrey was told by his female informant that she was to meet Margaret Shackelford in a vacant apartment in the rear of 2220 North Central, Indianapolis, Indiana, to purchase illicit drugs from Shackelford. Shackelford had told the informant that “they” were leaving for the movies, and would bе gone if she did not arrive within the next ten minutes. Officers Bilbrey, Flowers and Horn therefore went immediately to the rear of 2220 North Central without obtaining a wаrrant. All three officers testified that they looked through the window and saw Cannon and three women, including the informant, standing by the kitchen sink, on which were а hundred and eighty-four (184) capsules of Tuinal. Shackelford was counting them, while Cannon was leaning on the counter at arms length from the capsules. The officers then entered the apartment, arrested all present except the informant and seized the capsules.
Three issues are presented to the court for consideration:
1. The standing of appellant Cannon to challenge the legality of the seizure of the capsules ;
2. Introduction of the Tuinal capsules into evidence at trial;
3. The sufficiency of the evidence to convict Cannon.
APPELLANT HAD STANDING TO CHALLENGE THE SEIZURE
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*239
The State has taken the position before this court that Cannon has no standing to “object to search of premises nоt
*240
owned or held by him”,
2
citing
Edmenster
v.
State
(1929),
APPELLANT HAS WAIVED OBJECTION TO INTRODUCTION INTO EVIDENCE OF THE SEIZED TUINAL
Cannon asserts on appeal that the trial court erred in overruling his motion to suppress evidence because the officers’ entry was forcible, and hence contrary to the United States and Indiana constitutions. Although Cannon had standing to contest the validity of the seizure, any error in overruling the motion to suppress was waived when Cannon’s attorney failed to object on that basis when the evidence was offered at trial.
Harrison v. State
(1972),
THE EVIDENCE SUSTAINS THE CONCLUSION THAT APPELLANT WAS IN POSSESSION OF THE TUINAL
The evidence is not sufficient to suрport an inference that Cannon ever had actual possession of any of the Tuinal capsules, but it is sufficient to sustain the inferencе that he was in constructive possession of the drugs.
In
Ledcke
v.
State
(1973),
“It is clear from this evidence that marijuana was being processed in the house at the time the police entered аnd extremely large quantities were spread over the floor. Marijuana was being dried in the oven and heavy smoke was found throughout the housе. Appellant was found alone in the room where one of the large bags of marijuana was found, and was attempting to flee when aрprehended. From these facts the jury was warranted in finding that the appellant was working in concert with the other three persons in the ‘manufаcture’ of marijuana. The statute in force at the time read in part:
‘It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, compound or use any narcotic drug. . . .’ Ind. Ann. Stat. §10-3520.
Although appellant was charged with possеssion and not ‘manufacture’, it would be impossible to ‘manufacture’ the marijuana without at least constructively possessing the *242 marijuana as well. Chief Justice Arterburn has held that one cannot sell narcotics without at least constructively possessing them. See Thompson v. State (1972), [259] Ind. [587],290 N.E.2d 724 . The case of sale and the case of manufacture are analogous.
It is possible in a situation such as the one we have before us that the appellant was merеly present on the premises and committed no wrongdoing. However, the activity was so obvious that the jury was entitled to infer that the appellant was involved. The State therefore established a prima facie case from which the jury could find the appellant guilty.
“We must reiterate that presence does not compel a convictiоn, but is simply one of the factors to consider. However, in a manufacturing type setting it is enough to present a prima facie case, and if other circumstances and evidence do not provide an explanation for the presence, it is sufficient to support a conviction. It does ‘no more than “accord to the evidence, if unexplained, its natural probative force.”’ [United States v. Gainey (1965),380 U.S. 63 ,85 S.Ct. 754 ,13 L.Ed.2d 658 ]380 U.S. at 71 ,85 S.Ct. at 759 . Guided by these principles, we find the evidеnce in the case at bar sufficient to support the conviction.”296 N.E.2d at 416-418 .
There is little, if any, significant difference, so far as circumstantial evidence of constructive possession is concerned, between the mere presence in Ledcke, supra, while marijuana was being “manufactured” and the mere presence here of Cannon while Tuinal capsules were being “counted”. This is not a case where an unknowing person happens to be in a premises where there are drugs. Here, the apartment was vacant, and it could quite reasonably be inferred thаt Cannon’s sole purpose in being there was related to the activity the officers observed. Moreover, Cannon was actually watching the counting, and was only an arms length away. He also attempted to flee. The essential test is that the evidence be sufficient to disclоse that the activity (be it manufacturing or counting) is so obvious to the accused that to infer that hé is involved in it is but to accord to the evidence *243 its natural probative force. The evidence here meets that test.
The judgment is confirmed.
Buchanan and White, JJ., concur.
Note. — Reported at
Notes
. The 1935 Narcotics Act was repealed by Acts 1973, P.L. 335, § 6, and has been rеplaced by IC 1971, 35-24.1-1-1 through 35-24.1-6-1, Ind. Ann. Stat. § 10-3558 through 10-3566 (Burns Supp. 1974).
. Cannon does not assert that the police were in a place where they had no right to be, when thеy observed the described activities. It is unnecessary therefore to consider whether the officers’ observation through the window at the rear of the uninhabited apartment constituted a “search”.
See Katz
v.
U.S.
(1967),