ROBB, C.J.
Officer Miller told the driver of the suspect vehicle to stay parked, but the driver began to slowly drive north on South Buckeye Street. Officer Lushin activated the police emergency lights on his vehicle and pursued the suspect vehicle at a low rate of speed. Officer Lushin saw the driver throw out her window what “appeared to be a partially smoked cigar, possible [sic] a blunt.” Transcript at 6. After about seventy yards, the vehicle stopped just inches from a parked vehicle, and Officer Lushin “felt like they were trying to discard something.” Id. at 4. Officer Lushin clarified that the suspect vehicle stopped so close to the parked vehicle that it was “difficult to even see” what, if anything, occurred. Id. at 14. The suspect vehicle continued moving again, and soon stopped a second and final time.
Officer Lushin exited the police vehicle and approached the suspect vehicle from the driver’s side. As he approached, he smelled “fresh” marijuana coming from inside the suspect vehicle, “as if they were just smoking recently.” Id. at 9. Officer Miller approached from the passenger’s side. The officers arrested the driver for resisting law enforcement. For officer safety, officers also removed and handcuffed Brent, the front seat and only passenger.
Subsequently, Officer Lushin returned to the area where Brent’s driver stopped just inches from the parked vehicle. He recovered a plastic baggie containing what he suspected to be and what later tested positive for marijuana, and then arrested Brent for possession of marijuana. At trial, Officer Lushin explained: “I didn’t actually witness him discard [the baggie of marijuana]. . . . I just felt like since they stopped and they were close to a vehicle and, for [the baggie of marijuana] to have come out it would have had to have come out the passenger’s side window.” Id. at 5-6. Officers did not recover what Officer Lushin believed to have been a marijuana cigarette thrown from the driver’s side window.
. . . .
The State argues Brent actually possessed the marijuana, and in the alternative, that it presented evidence of Brent’s constructive possession of marijuana. But officers did not find the marijuana on Brent’s person or see him hold or discard the marijuana from the vehicle. “Actual possession occurs when a person has direct physical control over the items.” Bradshaw v. State, 818 N.E.2d 59, 62 (Ind. Ct. App. 2004). Therefore, Brent’s conviction for possession cannot be sustained under a theory of actual possession.
We next consider whether Brent had constructive possession. Brent did not have exclusive possession of the car or the area where the marijuana was eventually found, so we proceed by evaluating the degree to which additional circumstances support a finding of his constructive possession. See Holmes, 785 N.E.2d at 660-61. No evidence was presented of incriminating statements by Brent, of a drug manufacturing setting, or that marijuana was found in close proximity to any items owned by Brent.
While Brent’s driver apparently attempted to flee by driving away, this was beyond Brent’s control as a passenger, and the record does not suggest Brent attempted to flee or made furtive gestures when his driver finally stopped. Given that these recognized additional circumstances are not the only circumstances that could lead to a finding of constructive possession of contraband, we are inclined to agree with the trial court that the suspect vehicle’s momentary stop so close to a parked vehicle is somewhat suspicious.
Nevertheless, we conclude that this suspicious act should be attributed to the driver, who was in sole control of whether the car would stop or go and primarily in control of how close the car would get to another. Brent could have grabbed the steering wheel and turned the car to the left or right, but there is no indication in the evidence that he did so. A defendant’s attempt to flee and furtive gestures are recognized additional circumstances by which a fact-finder may find constructive possession precisely because they suggest that a defendant had the intent and capability to maintain dominion and control over contraband. Here, any suspicion resulting from the suspect car stopping so close to another must be attributed to the driver. That stop alone does not suggest that Brent, as the passenger, had the intent or capability to maintain dominion and control over contraband that was inside the vehicle, outside the vehicle, or was being thrown from the vehicle. The fact that a vehicle is moving does not often discourage people from throwing contraband out the window, even with officers in pursuit.
Moreover, there is no evidence that the marijuana was thrown out of Brent’s passenger‟s side window. No officer saw anything being thrown out of that window or even an arm or hand in a throwing motion. The State relies on three portions of the record in support of its contention that marijuana left the passenger’s side window: 1) Officer Lushin’s deduction that he “just felt like since they stopped and they were close to a vehicle,” that “for [the baggie of marijuana] to have come out it would have had to have come out the passenger’s side window,” tr. at 5-6, 2) Officer Lushin’s testimony that he “felt like they were trying to discard something,” id. at 4, and 3) Officer Lushin’s eventual discovery of marijuana near where the suspect vehicle stopped momentarily.
Unlike the trial court, we do not believe this constitutes sufficient evidence of probative value to support a conviction. In making this conclusion, we are not reconsidering Officer Lushin’s credibility, because we make such conclusion even assuming as true that Officer Lushin did, in fact, personally deduce in his mind’s eye that marijuana left the passenger’s side window, that he did “fe[e]l[]” that the suspects were trying to discard something, id., and that he discovered the marijuana where he says he did. But between Officer Lushin’s thoughts and the eventual discovery of contraband, a gap in the evidence presented precludes a conviction based on suspicious acts of Brent’s driver. We are not reweighing evidence – the State failed to present sufficient evidence with any probative value as to Brent’s constructive possession.
BARNES, J., concurs.
BRADFORD, J., concurs in part and dissents in part with opinion:
While I agree that Brent’s conviction for visiting a common nuisance should be vacated, I cannot agree that the State failed to produce sufficient evidence to establish that he possessed the marijuana found on the roadside. Consequently, I respectfully dissent on that issue.
I do not believe that it is necessary to address the question of whether Brent constructively possessed the marijuana, as I agree with the State that there is sufficient evidence to establish that he actually possessed it, even though it was not found in his possession and no witness saw it in his possession. . . . .
. . . .
I believe that the trial court was entitled to find that Brent dropped the marijuana out of the window of Anderson’s vehicle, especially when there are no plausible alternative explanations for the marijuana’s presence where it was found. I do not find it particularly significant that Officer Lushin did not see Brent drop the marijuana from the window, as it is also reasonable to infer that Anderson deliberately stopped where it was hoped that such an action would not be observed. Of course, it is possible that the marijuana was already on the street and that Anderson had some other reason for briefly stopping where she did, but the State is not required to eliminate all other possibilities, just present evidence allowing a reasonable inference of guilt, which it did here.