KIRSCH, J.
“’A defendant is in the constructive possession of drugs when the State shows that the defendant has both (i) the intent to maintain dominion and control over the drugs and (ii) 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. Ct. App. 2004)). “The capability prong may be satisfied by ‘proof of a possessory interest in the premises on which illegal drugs are found . . . .’” Id. (quoting Gee, 810 N.E.2d at 341). “This is so regardless of whether the possession of the premises is exclusive or not.” Id. Here, the capability prong was satisfied by the evidence that the marijuana was found in Gray’s apartment.
However, 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. (quoting 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.
Gee, 810 N.E.2d at 341 (citing Henderson, 715 N.E.2d at 836).
Here, there were no such additional circumstances. The State’s entire case consisted of the testimony of Officer Pylant and of Officer Clegg. Officer Pylant testified that the officers went to Gray’s home in response to a complaint of possible marijuana dealing. Although Gray met the officers at the door, Officer Pylant testified that he did not know Gray’s whereabouts prior to seeing her at the door. Tr. at 10-11. Gray, upon learning of the purpose of the visit, “was shocked [and] surprised”; she did not understand “why there would be a narcotics complaint called in.” Id. at 9. However, after speaking with the officers for about five minutes outside on her porch, Gray signed a written consent for the officers to search her apartment. Id. at 10, 13, 16.
The officers entered the living room of Gray’s apartment and saw two teenage males, identified as friends of Gray’s teenage son, sitting on a couch in front of a coffee table. Id. at 15. Officer Pylant testified that he was “not sure if [Gray’s] son was downstairs at the time or where he was . . . but her son was there, too, I think.” Id. at 9. He also stated, “right when we walked in, um, we noticed in plain view under the coffee table a small bag of gray leafy substance that later tested positive for THC.” Id. at 10.
Officer Clegg testified that the marijuana was found under the middle of the coffee table and that the two juvenile males were on the couch right in front of the coffee table. Id. at 21. While uncertain as to the type of coffee table, Officer Clegg stated that he thought it was “like a long rectangle kinda [sic] wooden type coffee table.” Id. at 19.
The record before us contains no evidence that Gray made any incriminating statements or attempted to flee. In fact, Gray came willingly to the door, appeared genuinely shocked when she learned of the reason for the visit, and signed a written consent to permit the officers to search her apartment. Additionally, the officers provided no testimony that the premises were being used to manufacture drugs. The officers testified that the marijuana was found in plain view, under a coffee table that was situated in front of the two juvenile males. However, there was no evidence that Gray was near the marijuana, could see the drugs, or was aware that marijuana was in her home. Finally, there was no testimony that any of Gray’s possessions were found in close proximity to the marijuana. The officers only established that marijuana was found in a communal room of Gray’s home, under a coffee table, next to which two male visitors were sitting, and that no one declared ownership of the drugs. From this evidence, the State failed to prove beyond a reasonable doubt that Gray constructively possessed the marijuana. See Chandler v. State, 816 N.E.2d 464, 467-68 (Ind. Ct. App. 2004) (under reasoning set forth in Gee, defendant did not have constructive possession of marijuana).
Reversed.
CRONE, J., concurs.
BRADFORD, J., dissents with separate opinion:
With all due respect, I believe that the majority opinion mistakenly reweighs the evidence and fails to view it in the light most favorable to the trial court’s judgment. The majority notes that Officer Pylant testified that he did not know where Gray was before she opened the door and uses this evidence to conclude that there is nothing to suggest that she was ever near the marijuana. This conclusion fails to take into account Officer Pylant’s and Officer Clegg’s testimony that they could see the coffee table under which the marijuana was found through the screen door as they spoke with Gray outside, as well as Officer Pylant’s testimony that the coffee table was eight to ten feet from the door. In other words, the evidence most favorable to the judgment indicates quite clearly that Gray was standing only a few feet away from the coffee table when she opened the door and would have had an unobstructed view of the table. My review of the record does not support the majority’s conclusion that there is no evidence that Gray was ever in close proximity to the marijuana.
Moreover, there is no indication that the marijuana was placed under the table while Gray was outside; indeed, the evidence most favorable to the judgment indicates exactly the opposite. Both officers testified that they could see the coffee table the entire time they spoke with Gray and never saw any activity near the table. This evidence, coupled with testimony that the officers noticed the marijuana in plain view immediately upon entering the apartment, leads to a reasonable inference that Gray would have been able to see it just as clearly before she opened the door. In my view, the record contains evidence that is more than sufficient to establish Gray’s knowledge of the nature and presence of the contraband in her apartment.
The majority also seems to be treating the non-exhaustive list of “additional circumstances” from Gee as though it laid out “elements” of a test or “factors” to be weighed against one another. I believe that the list is nothing more than a compilation of examples of circumstances in which “exists the probability that the presence and character of the contraband was noticed by the defendant.” . . . What is relevant is that the State produced evidence that Gray was in close proximity to the marijuana and that it was in plain view. In my view, this is more than enough evidence to permit a finding that Gray knew of the presence and character of the contraband.