FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

BART M. BETTEAU. GREGORY F. ZOELLER

Betteau Law Office, LLC Attorney General of Indiana

New Albany, Indiana

IAN MCLEAN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CANON HARPER, )

)

Appellant- Defendant, )

)

vs. ) No. 10A01-1012-CR-687

)

STATE OF INDIANA, )

)

Appellee- Plaintiff, )

APPEAL FROM THE CLARK SUPERIOR COURT

The Honorable Jerome F. Jacobi, Judge

Cause No. 10D02-0811-FA-378

June 11, 2012

OPINION ON REHEARING - FOR PUBLICATION

ROBB, Chief Judge
2

Canon Harper has petitioned for rehearing of this court’s decision in Harper v. 

State, 963 N.E.2d 653 (Ind. Ct. App. 2012), in which we affirmed Harper’s convictions 

for dealing in cocaine, possession of cocaine, dealing in a narcotic drug, and possession 

of a narcotic drug, all Class A felonies; two counts of resisting law enforcement, battery 

of a law enforcement officer, and possession of paraphernalia, all Class A misdemeanors; 

and maintaining a common nuisance, a Class D felony. We held, inter alia, sufficient 

evidence existed to support Harper’s convictions. We grant the petition for rehearing to 

clarify our conclusion that Harper constructively possessed the contraband that led to his 

convictions for dealing, possession, and maintaining a common nuisance. In all other 

respects, we reaffirm our opinion. 

Harper contends insufficient evidence supported the conclusion that he 

constructively possessed contraband found in either his vehicle or motel room. 

“Constructive possession will support a possession conviction if the State shows that the 

defendant had both the capability and the intent to maintain dominion and control over 

the contraband.” White v. State, 772 N.E.2d 408, 413 (Ind. 2002). He argues the 

evidence was insufficient to conclude he had either the requisite intent or capability to 

maintain dominion and control over the contraband. Pursuant to Gray v. State, 957 

N.E.2d 171, 174-75 (Ind. 2011), under the possessory interest rule, a defendant’s 

possessory interest establishes both the intent and capability to maintain dominion and 

control over contraband so long as the possession is exclusive. If such possession is not 

exclusive, a non-exhaustive list of circumstances was articulated in Gray, and other cases, 

for the court to consider in determining whether the defendant had the requisite intent. 
3

Id. at 175. The capability to maintain dominion and control is established by a 

possessory interest even if it is non-exclusive. Id.

Here, we concluded, based on the possessory interest rule, Harper had constructive 

possession of contraband located both in a purse that was carried out of his vehicle and in 

his motel room. However, Harper did not have exclusive possession of either the vehicle 

or motel room, and thus, additional circumstances must be present to establish the intent 

prong of constructive possession. Based on the articulated factors in Gray and other 

cases, we still conclude Harper had the requisite intent to maintain dominion and control 

of the contraband, and, therefore, that Harper had constructive possession of the 

contraband. 

One of the articulated factors is whether the defendant attempted to flee or made 

furtive gestures. Here, when an officer attempted to arrest Harper, Harper fled on foot. 

Once caught, he assaulted a police officer before he was apprehended. Another factor is 

the proximity of contraband to the defendant. Here, the contraband in the vehicle was in 

close physical proximity to Harper, and the contraband in the motel was discovered 

relatively soon after Harper checked into the room and not long after he left and came 

back with a friend. Sufficient evidence existed for a reasonable finder of fact to conclude

Harper constructively possessed the contraband. 

Accordingly, we again affirm Harper’s convictions.

NAJAM, J., and VAIDIK, J., concur.