Najam, J.
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 that he constructively possessed heroin found in a vehicle Johnson had been operating. …
On May 18, 2015, St. Joseph County Police Department Officer Randy Rodriguez observed Johnson driving a vehicle 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. …
… 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. …
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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. ….
Here, Johnson asserts that the State did not present sufficient evidence to show that he constructively possessed the 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)). …
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. (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). …
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:
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. … 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…There was also no evidence that the cocaine was contained near or comingled with any items belonging to Houston.
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We cannot agree with Johnson that the facts of Houston are analogous to the facts in his case. …
First, upon Officer Rodriguez initiating the traffic stop, Johnson made furtive gestures. …
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…
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.
Affirmed.
Vaidik, C.J., and Baker, J., concur.