Gee v. State
| Decision Date | 17 June 2004 |
| Docket Number | No. 49S05-0406-CR-271.,49S05-0406-CR-271. |
| Citation | 810 N.E.2d 338 |
| Parties | Gary D. GEE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Teresa D. Harper, Bloomington, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Nandita G. Shepherd, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 49A05-0109-CR-413.
Gary D. Gee was convicted of several drug related offenses as a result of contraband found in a house he shared with a relative. Because the evidence was not sufficient to demonstrate that Gee knew of the nature of the contraband and its presence in the house, we reverse his conviction.
In July 1999, an anonymous tip led officers of the Indianapolis Police Department ("IPD") to suspect that drug activity was occurring at a home located on Mutz Court in Indianapolis. Prompted by the tip, IPD officers kept the house under surveillance periodically for two weeks. However they saw no one entering or exiting the residence. Sometime in August 1999, officers confiscated a bag of trash sitting on the curb in front of the Mutz Court residence. Several items were discovered in the trash, some of which were covered with a white powdery substance later identified as cocaine. Officers also discovered mail addressed to a person by the name of "Lewis R. Gee." The record later revealed that Lewis R. Gee is the cousin of Gary D. Gee.1 The record also revealed that both men leased the residence, but Gee stayed there only occasionally. In any event, as a result of the items found in the discarded trash, IPD officers obtained a warrant to search the house. When the warrant was executed, only two small children were present.
Searching the home officers seized among other things over 126 grams of cocaine and cocaine residue, over 273 grams of marijuana, $5,000 in cash, and a set of digital scales. Because the location of the confiscated items, along with the circumstances of their discovery, is critical to our analysis we discuss these matters in greater detail below. For the moment, however, suffice it to say that Gee was charged with dealing in cocaine, as a Class A felony; possession of cocaine, as a Class C felony; possession of cocaine and a firearm, a Class C felony; dealing in marijuana, as a Class D felony; and possession of marijuana, as a Class D felony. Except for the possession of cocaine and a firearm charge, for which he was found not guilty, after a jury trial Gee was convicted as charged and ultimately sentenced to a total executed term of twenty years' imprisonment. On review, Gee challenged the sufficiency of the evidence. In a Memorandum Decision the Court of Appeals affirmed the judgment of the trial court. See Gee v. State, No. 49A05-0109-CR-413, 774 N.E.2d 608 (Ind.Ct.App. Sept.3, 2002). We now grant transfer and reverse the trial court's judgment.
Actual possession of contraband occurs when a person has direct physical control over the item. Walker v. State, 631 N.E.2d 1, 2 (Ind.Ct.App.1994). In this case Gee was not present when police seized the drugs and other contraband and thus he was not found to be in actual possession of drugs. As a result, the State prosecuted its case against Gee under the theory of constructive possession. A defendant is in the constructive possession of drugs when the State shows that the defendant has both (i) the intent to maintain dominion and control over the drugs and (ii) the capability to maintain dominion and control over the drugs. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind.1997),on reh'g, 685 N.E.2d 698 (Ind.1997). The proof of a possessory interest in the premises on which illegal drugs are found is adequate to show the capability to maintain dominion and control over the items in question. Davenport v. State, 464 N.E.2d 1302, 1307 (Ind.1984). In essence the law infers that the party in possession of the premises is capable of exercising dominion and control over all items on the premises. See id.; Martin v. State, 175 Ind.App. 503, 372 N.E.2d 1194, 1197 (1978)
(). And this is so whether possession of the premises is exclusive or not.
However, the law takes a different view when applying the intent prong of constructive possession. When a defendant's possession of the premises on which drugs are found is not exclusive, then the inference of intent to maintain dominion and control over the drugs "must be supported by additional circumstances pointing to the defendant's knowledge of the nature of the controlled substances and their presence." Lampkins, 682 N.E.2d at 1275. The "additional circumstances" have been shown by various means: (1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the defendant's plain view, and (6) the mingling of the contraband with other items owned by the defendant. Henderson v. State, 715 N.E.2d 833, 836 (Ind.1999).
In this case Gee does not contest that he held a possessory interest in the Mutz Court residence. Thus he does not challenge the inference that he had the capability to maintain dominion and control of the drugs found in the home. He argues however that there were no additional circumstances demonstrating that he had knowledge of the drugs or their presence. The Court of Appeals disagreed noting that the drugs were located in a common area of the home that Gee shared with his cousin Lewis and that Gee's personal effects were in close proximity to the drugs. The court concluded that "[c]ontraband being in plain view and in close proximity to other items associated with the defendant are two `additional circumstances' by which constructive possession of contraband may be proven where the defendant's control over the premises on which the contraband is found is non-exclusive." Slip op. at 4-5. We have no quarrel with this general proposition of law. However we disagree with our colleagues that the proposition is applicable to the facts of this case.
Contraband in plain view?
We first observe that the plain view doctrine is not actually at issue in this case. An exception to the warrant requirement, the plain view doctrine is applicable when police are not searching for evidence against the accused, but nonetheless inadvertently come across incriminating items. Warner v. State, 773 N.E.2d 239, 245 (Ind.2002); see also Sloane v. State, 686 N.E.2d 1287, 1291 (Ind.Ct.App.1997)
(), trans. denied. Here, pursuant to a warrant, officers seized the very contraband for which they were specifically searching. And at trial there was no challenge made to the contraband's admissibility. In essence an exception to the warrant requirement is not at issue here. Rather the term "plain view" in the context of this case is used in a more generic sense, namely: the contraband is in a location where it can be "plainly viewed" and "the incriminating character of the evidence is immediately apparent." See Houser v. State, 678 N.E.2d 95, 101 (Ind.1997).
The record shows that the drugs in this case were found in the basement laundry room of the Mutz Court residence in "cabinets and cans and closed stuff." R. at 117, 159. More specifically Jeffrey Krider, one of the officers on the scene who testified at trial, said that in conducting the search he first went to the "laundry room area" to a "corner cabinet." Id. at 74. The following exchange then occurred:
Id. at 75. The other on-the-scene officer testifying at trial, Sgt. Brian Roach, also began his search "[i]n the laundry room, which is just off the basement." Id. at 159. Sgt. Roach testified that Officer Krider pointed out to him the cabinet and cigar box which he removed. The following relevant exchange occurred:
Id. at 162-63. Sgt. Roach also testified that the scales were concealed in a "black folded leather case." Id. After Sgt. Roach testified about his search of the cabinets, the following exchange occurred:
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