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Marijuana, Common, Nuisance, Possession

Coincidence Fails to Establish Constructive Possession of Marijuana in Kokomo, Indiana Case

The Indiana Court of Appeals reversed a Kokomo man’s convictions for possession of marijuana and visiting a common nuisance due to insufficient evidence. Officers saw a vehicle parked in the middle of the road with a person leaning in the driver’s side window. Believing this to be a drug deal, the officers told the driver to stay put, but the driver slowly drove away and the officers followed. At one point, the officers saw the driver throw something out of her window, which they thought to be a blunt or marijuana cigarette. The vehicle then briefly stopped close to a parked car and began moving again. Once the vehicle pulled over, the officers approached, smelled an odor of marijuana coming from the car and arrested the driver for resisting law enforcement.

When the officers walked back to where the vehicle had stopped near the parked car, they found a baggie of marijuana on the ground. Assuming the passenger had thrown the marijuana out of the car, the officers arrested him for possession of marijuana. The State ultimately charged him with possession of marijuana, a Class A Misdemeanor, and visiting a common nuisance, a Class B Misdemeanor. The defendant was found guilty of both charges after a bench trial. In the trial court’s ruling, it held that “for anyone to believe that this was a coincidence, would be equivalent to believing in the existence of a ‘dope fairy.’”

On appeal, the Defendant argued that there was insufficient evidence to convict him of possession of marijuana, because police did not actually see him possess marijuana or discard it from the car. He further asserted that he could not be convicted of visiting a common nuisance, because no evidence was presented at trial that the vehicle had been used more than once as a common nuisance.

The Indiana Court of Appeals reversed the man’s convictions, finding that there was insufficient evidence to sustain either count. The Court held that because the defendant was a passenger, he was not in exclusive control of the vehicle. Therefore, the suspicious behavior of the vehicle fleeing police, and then stopping by a car where a bag of marijuana was ultimately found on the ground, cannot be attributed to him. The Court of Appeals agreed with the trial court that it was unlikely to be a coincidence that the marijuana was found where the vehicle has stopped. However, because police did not see the defendant discard the marijuana, the officer’s “gut feeling” is not enough to establish guilt.

The Court also held that there was insufficient evidence to convict the defendant of visiting a common nuisance. Such a charge requires the State to prove that the defendant was in a vehicle that had been used more than once as a common nuisance. The State conceded that it did not present any evidence on this issue.

Marijuana Defense Attorneys in Kokomo, Indiana: Experienced Criminal Lawyers

Possession of marijuana charges are often based on a theory of constructive possession. If you were a passenger in a vehicle, or a guest at a party, the State must prove that you had the intent and capability to maintain control over the marijuana to convict you. Vehicle passengers and house guests who are arrested for constructive possession of marijuana often face a second charge for visiting a common nuisance. However, the State must prove the vehicle or residence was used more than once for drugs to convict you.

If you are charged with possession of marijuana in Kokomo, Indiana, call Gibson Law Office for a free consultation. Our attorneys have defended hundreds of marijuana cases and represented clients in more than 50 Indiana counties. With offices in Lafayette and Fort Wayne, our attorneys have defended clients in Howard County, Miami County, Cass County, and Marshall County. If you are arrested in Kokomo, Peru, Logansport, or Plymouth, wouldn’t it help to hire an attorney that only handles criminal cases? We always offer a free consultation by phone or in person. If you are charged with possession of marijuana or visiting a common nuisance, call us today at 855-9-GIBSON.