Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Timothy J. Burns

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl M. Scharnberg

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Henry Gooch,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 31, 2015

Court of Appeals Case No.

49A02-1408-CR-571

Appeal from the Marion Superior 

Court.

The Honorable David Hooper, 

Magistrate.

Cause No. 49F08-1308-CM-52760

Sharpnack, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-571 | March 31, 2015 Page 2 of 6

Statement of the Case

[1] Henry Gooch appeals his conviction of possession of marijuana, a Class A 

misdemeanor.1 We affirm.

Issue

[2] Whether there is sufficient evidence to support Gooch’s

conviction.

Facts and Procedural History

[3] On the night of August 11, 2013, Officer Daniel Brezik of the Indianapolis 

Metropolitan Police Department was on patrol. He saw a group of ten to 

fifteen people congregating in the street, blocking a lane of traffic. Next, the 

group crossed the street. Officer Brezik and another officer, Bill Wogan, 

stopped their cars and got out.

[4] Officer Wogan asked the people to talk with him. Several persons walked over 

to Officer Wogan, but Gooch did not immediately comply with his request. 

Instead, Gooch walked away from the officers, behind a parked car. Gooch 

had his hands at his sides, and the officers could not see what he was doing. 

After “a few seconds,” Gooch walked over to the officers. Tr. p. 6. Officer 

Brezik did not see anyone else behind the parked car.

 

1

Ind. Code § 35-48-4-11 (2013).
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[5] Officer Brezik thought Gooch’s actions were suspicious, so he walked over to 

the other side of the car. He saw two clear plastic baggies on the ground. They 

contained a green leafy substance that he recognized as marijuana. The baggies 

looked clean, like they “hadn’t been laying on the side of the street for any 

period of time.” Id. at 15.

[6] Officer Brezik walked back to Gooch and put handcuffs on him without saying 

anything about the marijuana. Gooch said, “I didn’t have any weed.” Id. at 8. 

“Weed” is “a slang term for marijuana.” Id.

[7] Next, Officer Brezik recovered the marijuana from behind the car and secured 

it. Subsequent testing revealed the baggies, weighed together, contained almost 

twenty-five grams of marijuana.

[8] The State charged Gooch with possession of marijuana. The case was tried to 

the bench. After the presentation of evidence, the court determined that Gooch 

was guilty and sentenced him accordingly. This appeal followed.

Discussion and Decision

[9] Gooch contends that there is insufficient evidence that he had possessed the 

marijuana that Officer Brezik found. In considering challenges to the 

sufficiency of the evidence, we neither reweigh the evidence nor judge witness 

credibility. Caruthers v. State, 926 N.E.2d 1016, 1022 (Ind. 2010). Instead, we 

consider only the evidence supporting the judgment and any reasonable 

inferences drawn from the evidence. Tin Thang v. State, 10 N.E.3d 1256, 1258 

(Ind. 2014). We affirm a conviction unless no reasonable trier of fact could find 
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every element proved beyond a reasonable doubt. Blount v. State, 22 N.E.3d 

559, 565 (Ind. 2014).

[10] In order to convict Gooch of possession of marijuana as a Class A 

misdemeanor, the State was required to prove beyond a reasonable doubt that 

Gooch (1) knowingly or intentionally (2) possessed (3) marijuana, pure or 

adulterated. Ind. Code § 35-48-4-11.

[11] Gooch was never seen holding the marijuana, but conviction for a possessory 

offense does not necessarily depend on catching a defendant in actual 

possession. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). A conviction for 

possessing contraband may rest instead on proof of constructive possession. Id. 

A person constructively possesses contraband when the person has (1) the 

capability and (2) the intent to maintain dominion and control over the item. 

Id.

[12] When a defendant does not exert exclusive control over the area where the 

contraband is found, the State must support an inference of constructive 

possession by proving additional circumstances pointing to the defendant’s 

knowledge of the presence and the nature of the contraband. Id. at 174-75. Our 

Supreme Court has identified examples of such circumstances, including:

(1) a defendant’s incriminating statements; (2) a defendant’s 

attempting to leave or making furtive gestures; (3) the location of 

contraband like drugs in settings suggesting manufacturing; (4) 

the item’s proximity to the defendant; (5) the location of 

contraband within the defendant’s plain view, if the contraband’s 
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incriminating nature is immediately apparent; and (6) the 

mingling of contraband with other items the defendant owns.

Id. at 175.

[13] Here, when Officer Wogan asked a group of people to move toward him, 

Gooch went in the other direction and moved behind a car while keeping his 

hands at his sides and out of view. Gooch remained behind the car for only a 

few seconds before approaching Officer Wogan. Officer Brezik did not see 

anyone else behind the car. When Officer Brezik investigated the area behind 

the car, he found two baggies of marijuana in plain view. The baggies were 

clean, which indicated that they had not been there for long. Finally, when 

Officer Brezik handcuffed Gooch, Gooch made an incriminating statement: “I 

didn’t have any weed.” Tr. at 8. This is sufficient evidence to establish 

Gooch’s knowledge of the marijuana, as well as his intent to maintain control 

and dominion over it prior to abandoning it. See Holmes v. State, 785 N.E.2d 

658, 662 (Ind. Ct. App. 2003) (evidence supported constructive possession of 

drugs where drugs were found near where defendant had been sitting and 

defendant initially fled from police).

[14] Gooch points to testimony that other people were present in the area where the 

marijuana was found. This is a request to reweigh the evidence, which our 

standard of review forbids.

Conclusion

[15] For the reasons stated above, we affirm the judgment of the trial court.
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[16] Affirmed.

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