*1 Searcys implied of an ease- The failed to establish existence evidence that the servitude was not of a ment because merely and beneficial for permanent nature and was convenient Searcy the evidence enjoyment parcel. Although the fair of the fifty the' Area has in use for over Disputed been establishes both and his brother described the condition years, LaGrotte Further, merely as road. purchase of the drive at time of dirt repeatedly widened of the Area was refer- portion Disputed barn lot. These references the inference that support red to as a to service the purpose Disputed Area was barns apparent Searcys use rather the homestead and their Finally, predecessors merely convenient or beneficial. survey revealed that the entrance on Franklin Road and initial wholly Searcy of the drive located on the The portion parcel. are Searcys public fact that the access to a road without passing have parcel firmly over the LaGrotte even more establishes use of beneficial, Area is rather merely convenient and than Disputed reasonably necessary enjoyment Searcy property. for the fair
The judgment the trial court is therefore affirmed. Sullivan, P.J. concurs.
Hoffman,
(by
concurs.
designation)
J.
NOTE— Martin; Linda Martin Indiana February Filed 2-976A328. [No. 1978.] *2 Wilson, Roberts, Roberts, T. Indianapolis, Kenneth & Coleman for appellants. Sendak, General, Attorney L. III,
Theodore Clegg, Depu- Robert L. General, ty Attorney for appellee.
SULLIVAN, —Appellants P.J. Linda and James Martin were found guilty charged as on two counts of violating the Indiana Controll ed Substances Act: of heroin in an ten amount under (10) grams1 and possession of marijuana twenty- in an amount under five grams.2 appeal, 3**On is argued it was in evidence to prove possession beyond sufficient a reasonable doubt as to either of them.3 (Burns 1975) 29,1975 July 35-24.1-4.1-6 IC became effective on CodeEd. before allegedly
the offense committed. 1975). (Burns 2. See IC 35-24.1-4.1-11 Code Ed. 3. Both trial ruling defendants waived error in the mo- court’s on their judgment electing tion for at of dismissal the State’s close of evidence
proceed presentation following with the of evidence denial. Ind. Rules The two controlled substances were confiscated during an authorized search of the Martin The Indianapolis residence. Police Officers who executed the search warrant main State’s necessary witnesses at trial. testimony It recount their some in order significance detail to understand the legal of the location the drugs and the other circumstantial them linking to Linda and Martin.
Officer Wilson Layton testified that he and Officer approached from the second floor landing first knocked on the door. He saw figure “a window” picture and heard move- ment inside. Although is some conflict two officers’ occurred, testimony what regarding next according to Officer Layton, they both observed Linda coming Martin to the door. Of- Layton ficer they at this announced time that were police officers warrant, with a search whereupon Layton, he heard running which in his testimony, trial attributed to Linda based on a state- ment Officer Wilson made to him. Wilson proceeded Officer im- mediately door open key they with a had obtained earlier *3 from the office. manager’s
Once inside the apartment, Officer Wilson saw Linda Martin run hallway down the the left living room. He her followed the bathroom located off the near the hallway second bedroom found her “just . . . standing running water [with] the sink Layton in ... in the stool.” Officer meanwhile found [and] houseguest standing, a “naked a small except for robe ... on his back”, at the in wash basin the bathroom connected to the master In bedroom. basin he a grey wash observed which container residue unidentified and was filled with water. Thereafter, police while the officers identifica- obtaining tion from Linda Martin and the James houseguest, Martin entered apartment with another man. The discovered in gun a belt his In during pat down search. search of the subsequent apartment, which time during remained in the Procedure, 41(B); Rose v. State App. Trial Rule N.E.2d 258; 58, 60; Barrett v. State App. Pinkston State Ind. N.E.2d Ind. room, substances, living Layton Officer found the two controlled heroin, marijuana plastic and a bottle containing drawer top of a dresser in the master bedroom.
The remaining testimony at trial concerned who had been using the master bedroom. The evidence most favorable to the sup- ports inference that the Martins both resided at the apartment and, wife, as husband occupied the room in question. testimony
There was at trial houseguest had been us- arrest, ing master bedroom for a week prior to the while the (the room) Martins in slept the second bedroom children’s near the bathroom where Linda Martin was found. James Martin also testified that he was frequently absent from the apartment because of an extra-marital involvement. the trier of fact was en- titled to testimony, disbelieve this particularly in light of the other evidence adduced at trial. The gave Martins the apartment address as their residence when the police asked for identification. Linda Martin testified at trial that she and her ordinarily husband oc- cupied the “master room”. James Martin admitted at the being (but on) “off prior and on” day not of the search and acknowledged kept that he “some” clothes the master bedroom. Male clothing was found “hanging” the master bedroom which would have fit the thinner James Martin opposed as to the houseguest. Layton And Officer testified that the luggage alleged- ly belonging bedroom, to the houseguest was the master as claimed, Linda Martin but in the hall outside the bedroom---- residence, “about the middle of the the living room.” evidence, On the basis of such we affirm Linda Martin’s convic- tion but are compelled to reverse James Martin’s conviction.
I. EVIDENCE SUFFICIENT TO SUSTAIN
LINDA MARTIN’S CONVICTION Since possession of a controlled substance in may Indiana be founded upon either actual or constructive possession, only we need
determine whether the evidence was sufficient to prove constructive possession. 558, 291 N.E.2d our 260 Ind.
In Thomas v. State
defined constructive
as the “intent and
Supreme Court
to maintain control and dominion” over the
capability
opinion
substance. The
states that the
intent can
requisite
voluntary
be inferred from the
commission
the act. In
this
must
regard
the evidence
establish
both of the
Id.;
item’s
I
presence and
its forbidden character
v.
Phillips
also,
Greely
160 Ind.
Regarding
capability maintain control over the
that the
proof
drug
accused had the
on his
is not
person
required.
possession,
For constructive
the evidence need
establish the
control,
is,
ability
defendant’s
ability
to reduce the
substance to his
or
personal possession
to otherwise direct
its
also,
State,
disposition
E.g.,
or use.4
supra.
Corrao
Phillips
(Garrard, J.,
State,
Control
defendant’s relation to the
place where the substance is found: whether the defendant has the
sense,
by way
power,
legal authority
or in practical
to control
where,
which,
or the
place
item
the substance is found. A
possessory interest
in the premises or area is
held
generally
suffi-
cient
ability
to show the
to exercise control over drugs found
(control
car).
State,
therein.
supra
by
Corrao
registered owner
Yet a house or apartment
used as a residence is controlled
person who lives in it
may
and that
found
control of
therein,
owner,
tenant,
drugs discovered
whether he is the
or
merely
an invitee. Ludlow v. State
Ind. App., 302 N.E.2d
(defen-
rev’d on other ground,
4. “knowing possession.” Our statutes refer ability restraining directing “Control” means the to exercise a or influence something. Dictionary over English Language Webster’s New International (2d ed.), p. 580. *5 car, marijuana as well as the owner of the was found in of control theory keys located trunk on the that he had the car could have trunk. so entered the necessary
As to the quantum proof of to sustain a conviction for exclusive knowing possession, evidence that a has control of the he has premises permits inference that con structive of possession drugs premises. found on those The element of knowledge reasonably can be inferred from State, evidence of exclusive control alone. E.g., Phillips supra. case, however, In the instant we must determine whether the evidence was sufficient to prove constructive when defendant, Martin, Linda exclusive control of the area where the controlled substances were found. The record discloses that Linda Martin shared with her joint husband of the occupancy (the master bedroom and that a third person even if houseguest), there, he did not sleep also had access to the room.
These circumstances present greater evidentiary difficulties because knowing possession on the of part Linda Martin cannot be
reliably inferred from joint evidence of her access con trol of the premises alone. Mere presence vicinity or association with one having possession drugs is not sufficient to sustain a conviction. See Ledckev. State 412, 416; 296 N.E.2d Cannon State 166 Ind. App. additional, 231-32. Some independent proof necessary to pronounce as reasonable an inference that Linda Mar others, individually, tin or with together knowingly possessed the contraband.
Accordingly, an increasing number of jurisdictions apply following rule: Where accused did not have exclusive control of the premises, may it not be inferred that he knew presence them, of the drugs and had control unless there are other in- statements or criminating circumstances tending to buttress such evidence, an inference. must There be additional from apart of defendant’s nonexclusive control of the premises, to permit Annot., inference of knowledge. 56 A.L.R.3d 948. explicitly rule was this nonexclusive In Indiana fail- State, that the evidence (holding supra, Greeley adopted in his Greely’s knowledge presence ed to establish State, In Thomas by other cases.6 backyard), supported and is with approval quoted the Supreme N.E.2d at Court supra, (1972),178 Colo. al. v. from Feltes et following language 1131: may upon based illegal possession “A conviction of the defen- on the person while not found marijuana, dant, and control. under his dominion place [Citations *6 established, of the character If possession omitted.] of the can be inferred it is possessed and the fact that drug therefrom.” Feltes, is omitted the latter of which sentences from
The next two quoted makes it clear that the above opinion, from the Thomas With only. respect to exclusive applies language the court stated: Colorado possession, nonexclusive can the substance not be exclusive and “Possession need showing that another without a jointly by person a possessed omit- control thereof. physical the had actual person [Citations in ex- is in but possession, where a ted.] may not be inferred that the it premises, clusive of control of there and had marijuana of presence he knew of the tending circumstances statements or other it unless are inference. to buttress the omitted.]” [Citations also, 487-88. State, 290 N.E.2d at supra, Corrao evidentiary before us does disclose that additional The record master the found the drugs to link Linda Martin with factor apartment officers were at the learning Upon bedroom. warrant, them she denied executing a search for the purpose nonexclusive are in accord with this cases we have examined 6. All the Indiana possession conviction has been where a nonexclusive possession rule. In each case sustained, con present the with the was to connect defendant an additional factor State, thereby knowning possession. Thomas v. buttress the inference traband and view); (defendant open which heroin was found Led supra seated at the table on attempted manufacturing setting State, (drugs and defendant’s supra in a eke v. (defendant 205, 285 owning admitted N.E.2d 644 flight); 259 Ind. State Griffin (fur container); 847 258 N.E.2d Hauger 254 Ind. Von v. State narcotic (furtive gestures); App. N.E.2d 141 gesture); Ind. tive Moss (defendant’s admission Thurman (odor marijuana). State, supra extremely drug); proximity close Corrao entry. was fleeing hallway She then discovered down the and subse- quently standing found with the running bathroom water in the sink and houseguest, commode. The who was the other time, person in at apartment similar fur- engaged behavior, activity. tive From suspicious such the trier of fact i.e., infer guilty entitled to that Linda knowledge, Martin knew of presence the controlled substances. Cf., VonHauger v. State Ind. The evidence need not establish that exclusive Linda So possession. long as supports record the inference of know- on ing possession her it is part, may immaterial that she have possessed jointly with another person.
II. EVIDENCE INSUFFICIENT TO SUSTAIN
JAMES MARTIN’S CONVICTION apply When we the same standard of review to the evidence Martin, regarding evidentiary we find re- quirements for conviction of constructive possession have not met. been
The record discloses James Martin at resided the address and had shared occupancy master bedroom. This merely shows that joint authority he had control *7 and, more, room where drugs concealed were discovered without is not enough to sustain a of knowing conviction possession.7 there is evidence
Although that Martin had hang- clothes bedroom, ing in master the we do not know where. There is no evidence that of his in belongings were the bureau drawer where drugs the were found or elsewhere about the bureau. James Martin, moreover, not at apartment police was the when the there, not officers arrived. We do know when he was from last apart occupancy drugs enough 7. room in Joint which concealed are found is not jurisdictions to sustain a conviction in those which know adhere the rule that ing possession cannot from evidence nonexclusive control be inferred mere of (1973),Fla., 27; premises. E.g., Smith v. v. (N.M.App. the 279 So.2d State State Bowers 1974), 300; (1973), Mulligan 180; People Wyo., v. State 87 N.M. 529 513 P.2d P.2d (1972), 252, 197 521; (1972), Davenport v. Mich.App. People et al. v. 39 Feltes N.W.2d 1128; (1968), Petty People v. 178 Colo. 498 P.2d 167 217. Colo.
511 “off on” but was stayed at the testimony that he his to his arrival. day prior the of the search not there on away, the while that James Martin the evidence does show least, access, at to the master for some time had houseguest luggage alleged- indicate whether the The record does not bedroom. way either was full or but ly houseguest empty, to the belonging that infer the We cannot cannot discounted. presence his and had to leave just had arrived or that he about houseguest testimony in Layton’s belongings packed light all his Officer ... for a robe houseguest except “naked small he encountered on his back.” evidence can we find the link to from requisite
Nor
attemp-
in his
evidence of
gun
a
belt. Unlike
that James
with an immi-
flushing
upon
a toilet
confrontation
flight
ted
search,
suspicious
on
is not
gun
nent
one’s
carrying
States Bethea
United
related to
specifically
drugs.
behavior
(D.C.
1971)
which
guns
The
other
possible
wife. But our
was shared
the Martins as husband and
bedroom
jurisdic-
survey
joint
cases in this and
other
cir-
under
tions
us to
this added factor
leads
conclude
present
cumstances
simply
enough.8
part
which infer
on the
jurisdictions
Even those
would not
husband as the
“head of the household”
presumptive
Georgia,
recognizes
so on the facts
bar.9
for example,
do
at
relationship
support
in-
8. We
do not decide whether
marital
would
circumstances.
ference
under different
relationship
We
note
in a number' of cases the marital
has not'
9.
also
Delgado
part
inferring knowledge
basis
on
of the husband.
been a sufficient
for
(common
(9th
1964),
State v.
spouses);
Funk
327
641
States
Cir.
F.2d
law
United
354;
Fla.,
27;
(1973),
279
Smith
Willis
Mo.App., 490
So.2d
S.W.2d
(7th
also,
v. DiNovo
United States
App.,
Fla.
rebuttable
that narcotics found on
v. State
Landers
by
by a married
are
the husband.
couple
possessed
(1966),
687,
Although Cir. for appears proposition jury to stand that a entitled find by possession' the husband when narcotics are found marital bedroom, we immediately note that the opinion, following the effect, language refers to additional incriminating evidence disclosed the record.
It is true that the drugs here were found in is normally what a private considered room and inside a dresser drawer therein. But discloses record houseguest was a causal visitor circumstances, fact and did in have access to the room. Under these we cannot assume that Martin James had knowledge of full con Cf., (1974), Commonwealth v. Hanna tents of the room. 229 Pa. Super. A.2d 503. especially This is true the fact light was not found on premises, but after arrived already gained entry.10 us, therefore, On the record before we can conclude that the evidence prove was insufficient James Martin had knowing The possession. prosecution apparently overlooked or failed to note the significance possible him linking with the drugs Although found. proof additional sufficient for conviction may have available, been we re-prosecute cannot the case for the State. affirmed; The conviction as to Linda Martin is the conviction as to James Martin is reversed. See, e.g., 10. Defendant’s has been absence a consideration in numerous cases. (1975), 866; People (1975), Moreland v. State Ga.App. 133 212 Wolski S.E.2d 308; 191; Ill.App.3d Fla.App., 27 v. State 327 276 So.2d Griffin
Mulligan Wyo., 513 supra; Osburn v. P.2d Okla. Crim. 471; People.v. App., Schriber 34 A.D.2d N.Y.S.2d aff’d 68; v. Antista Cal.App.2d N.Y.S.2d P.2d *9 White, concurs, Buchanan, J. J. concurs with separate opinion.
CONCURRING OPINION BUCHANAN, J. —After the record and the law in reviewing case this states, and other I reluctantly concur. There is no law support- case (Martin’s) ing James Martin’s conviction these under circumstances. It emphasized should be there is sufficient evidence from which the judge ability trial could infer that had the main- tain control and dominion over the bedroom in which were found. Present in the marital bedroom when he arrived his shoes, clothes and twenty-five of his pairs which was sufficient evidence to create an inference he in possession day bedroom on the raid. it does appear Indiana has the rule that adopted non-exclusive,
if possession of
property
must
prosecution
bring
forth some evidence which would
indicate
defendant had
(1973),
212,
the drug. Gredy v. State
Ind.
If,
472, a conviction
might
sustained.
Reported at
NOTE —