Greely v. State

• Decision Date: 23 October 1973
• Docket Number: No. 1--373A55,1--373A55
• Citation: 158 Ind.App. 212,301 N.E.2d 850
• Parties: James GREELY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 850

301 N.E.2d 850

158 Ind.App. 212

James GREELY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--373A55.

Court of Appeals of Indiana, First District.

Oct. 23, 1973.

Brent A. Barnhart, Allison & Barnhart, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Larry C. Gossett, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Judge.

Defendant-appellant James Greely (Greely) was charged by affidavit with having committed the felonies of second degree burglary and possession of a dangerous drug, Demerol. The State of Indiana dismissed the charge of second degree burglary and Greely was tried on the second charge.

The jury returned its verdict, finding Greely guilty of the offense of possession of a dangerous drug. Judgment was rendered thereon, with defendant being fined $500.00 and sentenced to 365 days at the Indiana State Farm, with credit being given for one day spent in confinement.

Motion to correct errors was timely filed and overruled by the court.

The facts are that the office of Dr. Carl Parker, M.D., located in Wingate, Indiana, was burglarized in the evening of December 1, 1971. A neighbor observed the car being used by the burglars and informed the police of the license number of that car. The car was subsequently discovered parked outside the residence of Greely and a search warrant was obtained. When the police arrived at the Greely residence with the search warrant the car was gone.

The Greely residence was searched pursuant to the warrant but no materials stolen from the doctor's office were discovered at any place inside the residence. At the time of the search there were several people present in the home, including Greely, his wife, one Douglas Miller, and three other people. There is evidence that several other persons had been present in the home earlier that same evening.

When the search was expanded to the area surrounding the house, a plastic bag containing material taken in the burglary was found in the back yard of the Greely residence. Included in this material were two bottles clearly marked 'Demerol.' The police arrested Miller and Greely, charging them with burglary and possession of a dangerous drug.

The only question presented on this appeal is whether there was sufficient evidence to support the verdict and judgment of the trial court. Appellant contends that in order to be convicted of possession of a dangerous drug, the State must prove beyond a reasonable doubt that Greely was in control and possession of the material in question. It is obvious that Greely was not in physical possession of the drugs, as they were found in a plastic trash bag in the back yard of the residence. Thus, the evidence must show that the substance in question was within the constructive possession of Greely before he could be found guilty of the offense charged.

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), Ind., 291 N.E.2d 557, quoted the Colorado Supreme Court as follows:

'. . . In Feltes et al. v. People of Colorado (1972), Colo., 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.

Constructive possession was discussed in Judge Jackson's dissenting opinion in the case of Von Hauger v. State (1970), 254 Ind. 297, 258 N.E.2d 847, as follows:

'. . . While possession may be either actual or constructive, for the element of possession to be established it must be proven beyond a reasonable doubt that the person charged with possession of a narcotic could knowingly exercise dominion or control over it. Amaya v. United States (10 Cir. 1967), 373 F.2d 197.

However mere presence in the vicinity of the narcotic is insufficient to establish possession. Amaya v. United States, supra.'

Greely, by virtue of being in control of his residence, was in control of the yard surrounding the home. This does raise in 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 in 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. . . .'

Greely was in possession of the premises jointly with his wife. There is evidence that many people were in and out of the house...