Edwards v. State

• Decision Date: 13 February 1979
• Docket Number: No. 1-678,1-678
• Parties: Timothy Alton EDWARDS, Defendant-Appellant, v. STATE of Indiana, Appellee. A 145.
• Court: Indiana Appellate Court

Page 496

385 N.E.2d 496

179 Ind.App. 363

Timothy Alton EDWARDS, Defendant-Appellant, v. STATE of Indiana, Appellee.

No. 1-678 A 145.

Court of Appeals of Indiana, First District.

Feb. 13, 1979.

John Burley Scales, Phillips & Long, Boonville, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

Timothy Alton Edwards appeals from his conviction for the possession of a controlled substance, to wit: amphetamines.

FACTS

The facts most favorable to the State are as follows: In the early morning hours of October 26, 1976 a search warrant was obtained because, based on information received from a young woman who had been there, the police had probable cause to suspect that controlled substances were being kept on the premises at 308 Cherry Street, Apartment D, in the city of Evansville. At 5:00 a. m. police sergeants Sprinkle, Brinkley, Mattingly, Bard and Detective Wazny, who was a female police officer, went to 308 Cherry Street, Apartment D, where they knocked on the door and announced themselves as police officers. When no one answered the door, the police broke down the door and entered the apartment.

Upon entering the apartment the policemen saw Edwards standing near a sofa with a gun pointed at them. When Edwards saw the policemen he dropped the gun on the sofa and submitted to their authority. Edwards lived in the apartment with his brother Mike Edwards. Mike's girl friend, Lisa Duvall, had also been living in the apartment for approximately one week.

At the time the police entered the apartment Mike was at work and Lisa was in the bedroom asleep. After reading the contents of the search warrant to Tim Edwards the police searched the apartment. In the search the police found some green and white pills in the butter compartment of the refrigerator, a substance which appeared to be marijuana, and a substance which appeared to be opium. Both Tim Edwards and Lisa Duvall were arrested for possession of controlled substances. At trial Tim Edwards was convicted of possession of a controlled substance, to wit: amphetamines, and Duvall was acquitted.

ISSUES

Edwards brings this appeal and presents the following issues:

1. Whether the evidence herein was sufficient to support Edwards' conviction?

2. Whether the trial court erred in failing to grant Edwards' motion to suppress evidence?

3. Whether the trial court erred in admitting into evidence State's Exhibits Nos. 2 and 3 over Edwards' objection?

4. Whether the trial court erred in denying Edwards' motion for a mistrial on the grounds of prosecutorial misconduct occurring during closing argument?

DISCUSSION AND DECISION

Edwards contends that the evidence most favorable to the State is insufficient to support his conviction in that the evidence does not show that he had either actual or constructive possession of the amphetamines which were in the butter compartment of the refrigerator.

It is obvious that the evidence in the case at bar is insufficient to show actual physical possession. Therefore, if we are to affirm the judgment of the trial court, we must find that the evidence reasonably supports the conclusion that Edwards constructively possessed the amphetamines which were discovered in the butter compartment of the refrigerator.

In Greely v. State, (1973) 158 Ind.App. 212, 301 N.E.2d 850, 851-852, where drugs were confiscated from the defendant's back yard, this court stated:

"Constructive possession has been held to require an intent and capability to maintain control and dominion over the material in question. Our Supreme Court, in the case of Thomas v. State (1973), (260) Ind. (1), 291 N.E.2d 557, quoted the Colorado Supreme Court as follows:

'. . . In Feltes et al. v. People of Colorado (1972), (178) Colo. (409), 498 P.2d 1128, 1131, the Court stated:

"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. Duran v. People, 145 Colo. 563, 360 P.2d 132; Gonzales v. People, 128 Colo. 522, 264 P.2d 508. If possession is established, knowledge of the character of the drug and the fact that it is possessed can be inferred therefrom. (citation omitted.) 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." '

It is obvious that to have constructive possession one must have some knowledge that the material is present.

Greely, by virtue of being in control of his residence, was in control of the yard surrounding the home. This does raise an inference that Greely was in control of the drugs, as they were found in the back yard. However, it is not the law that a home owner is criminally liable for possession of everything on the grounds of his home. There must be some evidence to show that he had at least some knowledge of the presence of the material. The Colorado Supreme Court went on, in Feltes, supra, 498 P.2d at 1131, to say:

'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. Evans v. United States, 9 Cir., 257 F.2d 121; People v. Antista, 129 Cal.App.2d 47, 276 P.2d 177. . . .' "

In the case at bar Tim Edwards was in possession of the premises but not in exclusive possession. Therefore, the State had to present other evidence...