Martin v. State

• Citation: 175 Ind.App. 503,372 N.E.2d 1194
• Decision Date: 21 February 1978
• Docket Number: No. 2-976A328,2-976A328
• Parties: James MARTIN and Linda Martin, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1194

372 N.E.2d 1194

175 Ind.App. 503

James MARTIN and Linda Martin, Appellants, v. STATE of Indiana, Appellee.

No. 2-976A328.

Court of Appeals of Indiana, Second District.

Feb. 21, 1978.

Kenneth T. Roberts, Wilson, Coleman & Roberts, Indianapolis, for appellants.

Theo. L. Sendak, Atty. Gen., Robert L. Clegg, III, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

Appellants Linda and James Martin were found guilty as charged on two counts of violating the Indiana Controlled Substances Act: possession of heroin in an amount under ten (10) grams ¹ and possession of marijuana in an amount under twenty-five (25) grams. ² On appeal, it is argued that the evidence was insufficient to prove possession beyond a reasonable doubt as to either of them. ³

The two controlled substances were confiscated during an authorized search of the Martin residence. The Indianapolis Police Officers who executed the search warrant were the State's main witnesses at trial. It is necessary to recount their testimony in some detail in order to understand the legal significance of the location of the drugs and the other circumstantial evidence linking them to Linda and James Martin.

Officer Wilson testified that he and Officer Layton approached the apartment from the second floor landing and first knocked on the door. He saw "a figure in the picture window" and heard movement inside. Although there is some conflict in the two officers' testimony regarding what next occurred, according to Officer Layton, they both observed Linda Martin coming to the door. Officer Layton announced at this time that they were police officers with a search warrant, whereupon he heard running which Layton, in his trial testimony, attributed to Linda Martin based on a statement Officer Wilson made to him. Officer Wilson proceeded immediately to open the door with a key they had obtained earlier from the manager's office.

Once inside the apartment, Officer Wilson saw Linda Martin run down the hallway to the left of the living room. He followed her to the bathroom located off the hallway near the second bedroom and found her "just standing there (with) the water . . . running in the sink . . . (and) in the stool." Officer Layton meanwhile found a houseguest standing, "naked except for a small robe . . . on his back", at the wash basin in the bathroom connected to the master bedroom. In the wash basin he observed a grey container which had an unidentified residue and was filled with water.

Thereafter, while the police officers were obtaining identification from Linda Martin and the houseguest, James Martin entered the apartment with another man. The police discovered a gun in his belt during a pat down search. In the subsequent search of the apartment, during which time James Martin remained in the living room, Officer Layton found the two controlled substances, marijuana and a plastic bottle containing heroin, in the top drawer 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 State supports the inference that the Martins both resided at the apartment and, as husband and wife, occupied the room in question.

There was testimony at trial that the houseguest had been using the master bedroom for a week prior to the arrest, while the Martins slept in the second bedroom (the children's room) 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. However, the trier of fact was entitled to disbelieve this testimony, particularly in light of the other evidence adduced at trial. The Martins gave the apartment address as their residence when the police asked for identification. Linda Martin testified at trial that she and her husband ordinarily occupied the "master room". James Martin admitted being at the apartment "off and on" prior to (but not on) the day of the search and acknowledged that he kept "some" clothes in the master bedroom. Male clothing was found "hanging" in the master bedroom which would have fit the thinner James Martin as opposed to the houseguest. And Officer Layton testified that the luggage allegedly belonging to the houseguest was not in the master bedroom, as Linda Martin claimed, but in the hall outside the bedroom "about in the middle of the residence, the living room."

On the basis of such evidence, we affirm Linda Martin's conviction 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 Indiana may be founded upon either actual or constructive possession, we need only determine whether the evidence was sufficient to prove constructive possession.

In Thomas v. State (1973) 260 Ind. 1, 291 N.E.2d 557, 558, our Supreme Court defined constructive possession as the "intent and capability to maintain control and dominion" over the substance. The opinion states that the requisite intent can be inferred from the voluntary commission of the act. In this regard the evidence must establish knowledge both of the item's presence and of its forbidden character. ⁴ Id.; Phillips v. State (3d Dist. 1974) Ind.App., 313 N.E.2d 101. See also, Greely v. State (1st Dist. 1973) 158 Ind.App. 212, 301 N.E.2d 850, 852; Corrao v. State (3d Dist. 1972) 154 Ind.App. 525, 290 N.E.2d 484, 487; Annot., 91 A.L.R.2d 810, 821-27 (§ 5).

Regarding the capability to maintain control over the substance, proof that the accused had the drug on his person is not required. For constructive possession, the evidence need only establish the defendant's ability to control, that is, the ability to reduce the substance to his personal possession or to otherwise direct its disposition or use. ⁵ E. g., Corrao v. State, supra. See also, Phillips v. State, supra, 313 N.E.2d at 104 (Garrard, J., concurring).

Control in this sense concerns the defendant's relation to the place where the substance is found: whether the defendant has the power, by way of legal authority or in a practical sense, to control the place where, or the item in which, the substance is found. A possessory interest in the premises or area is generally held sufficient to show the ability to exercise control over drugs found therein. Corrao v. State, supra (control by registered owner of car). Yet a house or apartment used as a residence is controlled by the person who lives in it and that person may be found in control of any drugs discovered therein, whether he is the owner, tenant, or merely an invitee. Ludlow v. State (3d Dist. 1973) Ind.App., 302 N.E.2d 838, rev'd on other grounds, (1974) Ind., 314 N.E.2d 750 (defendant gave his address as the premises where drugs were found). Additionally, the practical ability to control the area may be sufficient, as was the case in Corrao v. State, supra, where the driver, as well as the owner of the car, was found in control of marijuana located in the trunk on the theory that he had the car keys and so could have entered the trunk.

As to the quantum of proof necessary to sustain a conviction for knowing possession, evidence that a person has exclusive control of the premises permits the inference that he has constructive possession of any drugs found on those premises. The element of knowledge can reasonably be inferred from evidence of exclusive control alone. E. g., Phillips v. State, supra.

In the instant case, however, we must determine whether the evidence was sufficient to prove constructive possession when the defendant, Linda Martin, was not in exclusive control of the area where the controlled substances were found. The record discloses that Linda Martin shared with her husband joint occupancy of the master bedroom and that a third person (the houseguest) even if he did not sleep there, also had access to the room.

These circumstances present greater evidentiary difficulties because knowing possession on the part of Linda Martin cannot be reliably inferred from evidence of her joint access and control of the premises alone. Mere presence in the vicinity or association with one having possession of drugs is not sufficient to sustain a conviction. See Ledcke v. State (1973) 260 Ind. 382, 296 N.E.2d 412, 416; Cannon v. State (2d Dist. 1975) Ind.App., 335 N.E.2d 229, 231-32. Some additional, independent proof is necessary to pronounce as reasonable an inference that Linda Martin individually, or together with others, knowingly possessed the contraband.

Accordingly, an increasing number of jurisdictions apply the following rule: Where the accused did not have exclusive control of the premises, it may not be inferred that he knew of the presence of the drugs and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. There must be additional evidence, apart from that of defendant's non-exclusive control of the premises, to permit an inference of knowledge. See Annot., 56 A.L.R.3d 948.

In Indiana this nonexclusive possession rule was explicitly adopted in Greely v. State, supra (holding that the evidence failed to establish Greely's knowledge of the presence of drugs in his backyard), and is supported by other cases. ⁶ In Thomas v. State, supra, 291 N.E.2d at 559, the Supreme Court quoted with approval the following language from Feltes et al. v. People (1972) 178 Colo. 409, 498 P.2d 1128, 1131:

"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. (Citations omitted.) If possession is established, knowledge of the character of the drug and the fact that it is possessed can be inferred therefrom."

The next two sentences from Feltes, the latter of which is omitted from the Thomas opinion, makes it clear that the...