Court of Appeals of Indiana | Opinion 71A04-1605-CR-1042 | September 16, 2016 Page 1 of 8

ATTORNEY FOR APPELLANT

Neil L. Weisman

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Raihiem Johnson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 16, 2016

Court of Appeals Case No.

71A04-1605-CR-1042

Appeal from the St. Joseph 

Superior Court

The Honorable Jane Woodward 

Miller, Judge

Trial Court Cause No.

71D01-1505-F6-332

Najam, Judge.

Statement of the Case

[1] Raihiem Johnson appeals his conviction for possession of a narcotic drug, as a 

Level 6 felony, following a jury trial. Johnson raises a single issue for our 

review, namely, whether the State presented sufficient evidence to demonstrate 
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that he constructively possessed heroin found in a vehicle Johnson had been 

operating. We affirm.

Facts and Procedural History

[2] On May 18, 2015, St. Joseph County Police Department Officer Randy 

Rodriguez observed Johnson driving a vehicle1 with an improperly affixed 

license plate. Accordingly, Officer Rodriguez initiated a traffic stop and 

approached the driver’s side window. As he exited his vehicle, Officer 

Rodriguez observed Johnson stick his head out the driver’s window and look 

back at him while Johnson’s hands remained “inside the vehicle 

but . . . down in between the seats,” which looked like Johnson was “[s]tuffing 

something” away. Tr. at 35-36. And, upon approaching Johnson, Officer 

Rodriguez observed that Johnson “had both of his hands in between his seat 

and the driver’s side door.” Id. at 35. 

[3] Officer Rodriguez had Johnson and his passenger, Adam Weaver, who was in 

the front passenger seat, exit the vehicle while he waited for a K-9 unit to 

perform a sniff-search of the vehicle. Once the K-9 unit arrived, it alerted 

officers to the presence of contraband in the vehicle. Officer Rodriguez then 

searched the vehicle where he had seen Johnson’s hands and found heroin 

wrapped in foil under the driver’s seat. Underneath the front of the driver’s 

seat, Officer Rodriguez also found a small black box in which one might keep a 

 

1

 The mother of the vehicle’s passenger owned the vehicle.
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spare key, but this box had a “clear plastic baggie” that “contained 

more . . . [h]eroin” wrapped in foil. Id. at 42. 

[4] Officer Rodriguez then searched Johnson’s person and found a part of a pen 

that had been cut at both ends and a piece of a credit card in one of Johnson’s 

pockets. Inside the pen was a white powdery residue. Based on his training 

and experience, Officer Rodriguez recognized the cut pen and credit card as 

tools for ingesting narcotics. Officer Rodriguez also discovered foil in 

Johnson’s wallet.

[5] Thereafter, the State charged Johnson with possession of a narcotic drug, as a 

Level 6 felony. A jury found him guilty of that charge, and the trial court 

entered its judgment of conviction and sentence accordingly. This appeal 

ensued.

Discussion and Decision

[6] Johnson argues on appeal that the State failed to present sufficient evidence to 

support his conviction. Our standard for reviewing the sufficiency of the 

evidence needed to support a criminal conviction is as follows:

First, we neither reweigh the evidence nor judge the credibility of 

witnesses. Second, we only consider the evidence supporting the 

[verdict] and any reasonable inferences that can be drawn from 

such evidence. A conviction will be affirmed if there is 

substantial evidence of probative value supporting each element 

of the offense such that a reasonable trier of fact could have 

found the defendant guilty beyond a reasonable doubt. It is the 

job of the fact-finder to determine whether the evidence in a 

particular case sufficiently proves each element of an offense, and 
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we consider conflicting evidence most favorably to the trial 

court’s ruling.

Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (citations and quotation 

marks omitted).

[7] Here, Johnson asserts that the State did not present sufficient evidence to show 

that he constructively possessed2the heroin found inside the vehicle. As we 

have explained:

In order to prove constructive possession of drugs, the State must 

show that the defendant has both: (1) the intent to maintain 

dominion and control over the drugs; and (2) the capability to 

maintain dominion and control over the drugs. Wilkerson v. State, 

918 N.E.2d 458, 462 (Ind. Ct. App. 2009) (emphasis added) 

(quoting Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004)). “The 

capability prong may be satisfied by ‘proof of a possessory 

interest in the premises in which illegal drugs are found.’” 

Monroe v. State, 899 N.E.2d 688, 692 (Ind. Ct. App. 2009) (citing 

Gee, 810 N.E.2d at 340). “This is so regardless of whether the 

possession of the premises is exclusive or not.”[3] Id. . . .

With regard to the intent prong of the test, where, as here, a 

defendant’s possession of the premises upon which contraband is 

found is not exclusive, 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. Id.

 

2

 The State does not suggest that Johnson had actual possession of the heroin found inside the vehicle.

3

 Johnson does not suggest that the State failed to demonstrate that he had the capability to maintain 

dominion and control over the heroin.
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(citing Gee, 810 N.E.2d at 341). Those additional circumstances 

include:

(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.

Wilkerson, 918 N.E.2d at 462.

Houston v. State, 997 N.E.2d 407, 410 (Ind. Ct. App. 2013). In addition to the 

above six circumstances, we have also recognized that the nature of the place in 

which the contraband is found can be an additional circumstance that 

demonstrates the defendant’s knowledge of the contraband. E.g., Carnes v. State, 

480 N.E.2d 581, 587 (Ind. Ct. App. 1985), trans. denied. Those enumerated 

circumstances are nonexhaustive; ultimately, our question is whether a 

reasonable fact-finder could conclude from the evidence that the defendant 

knew of the nature and presence of the contraband. See Gray v. State, 957 

N.E.2d 171, 174-75 (Ind. 2011).

[8] Johnson asserts that the facts of his case are analogous to those in Houston. In 

Houston, we held that the State failed to present sufficient evidence to 

demonstrate that the driver of a vehicle constructively possessed contraband 

found within the vehicle. 997 N.E.2d at 410-11. We reasoned as follows:
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In the present case, the evidence presented showed that the 

cocaine was found inside the car in the “crevice between the 

passenger seat and the center console.” Although this location 

may have been within reach of the driver’s seat, where Houston 

was seated, there was no evidence presented to show that 

Houston had knowledge of the presence of the cocaine. No 

testimony was presented to indicate that any of the occupants 

were aware of the presence of the cocaine in the car. When 

questioned by Officer Souther, Houston denied any knowledge of 

the presence of the cocaine in the car, and both Green and 

Hood[, the other occupants,] testified that the officers did not ask 

them about their knowledge of the cocaine. No evidence was 

presented that Houston attempted to flee or that he made any 

furtive gestures. There was also no testimony to establish that 

the cocaine was found in plain view of Houston as the driver of 

the car, merely that it was found “in the crevice between the 

passenger seat and the center console area” within reach of the 

driver, but on the other side of the console. There was also no 

evidence that the cocaine was contained near or comingled with 

any items belonging to Houston.

Id. at 410 (citations omitted).

[9] We cannot agree with Johnson that the facts of Houston are analogous to the 

facts in his case. Unlike in Houston, here numerous circumstances permitted a 

reasonable fact-finder to conclude that Johnson had knowledge of the nature 

and presence of the heroin. First, upon Officer Rodriguez initiating the traffic 

stop, Johnson made furtive gestures. Specifically, he stuck his hands between 

the driver’s side door and the seat.4 The heroin was found below the seat. 

 

4

 In his brief on appeal, Johnson asserts that Officer Rodriguez’s testimony regarding Johnson’s furtive 

gestures is contradictory. We cannot agree. But, even if it were, Johnson’s argument would be that we 
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Second, the heroin was in close proximity to Johnson; again, the heroin was 

found directly under the seat in which Johnson had been sitting, not, as in 

Houston, in a crevice between the passenger seat and the center console. Third, 

the nature of the space demonstrates that Johnson knew of the nature and 

presence of the heroin: it is highly unlikely that the vehicle’s other occupant 

would or could, from the front passenger seat, access the space under the 

driver’s seat without being observed by the stopping officer.

[10] We also agree with the State that the objects found on Johnson’s person support 

the jury’s finding that he had knowledge of the nature and presence of the 

heroin in the vehicle. Again, Officer Rodriguez found a cut pen containing a 

white powdery residue, a piece of a credit card, and some foil on Johnson’s 

person during the stop. Officer Rodriguez testified that the pen and piece of 

credit card were consistent with objects used in the ingestion of heroin. He 

further testified that the heroin discovered inside the vehicle had been wrapped 

in foil. The significantly related characteristics of the items found on Johnson’s 

person and the heroin found inside the vehicle that he had just been driving is

an additional circumstance that supports the fact-finder’s conclusion that 

Johnson knew of the nature and presence of the heroin.

 

should credit that part of Officer Rodriguez’s testimony that is more favorable to Johnson over the testimony 

that is less favorable. We will not reweigh the evidence on appeal; the jury had the whole of Officer 

Rodriguez’s testimony before it and could weigh it accordingly.
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[11] In sum, the State presented sufficient evidence to demonstrate that Johnson had 

the intent to maintain dominion and control over the heroin. As such, the State 

met its burden to prove beyond a reasonable doubt that Johnson had committed 

possession of a narcotic drug, as a Level 6 felony. We affirm his conviction.

[12] Affirmed.

Vaidik, C.J., and Baker, J., concur.