In 1998, Officer Lisa Dawe, a policeman with the New Albany Police Department, while on routine patrol, noticed a van with excessively loud music emanating from it. Dawe activated the blue lights in the patrol car and followed the van in an attempt to stop the driver and to ask that the volume be turned down. The van did not stop immediately, and Dawe pursued it.
The van stopped at three different stop signs in the interim before finally obeying the signal of the blue lights to stop. While following the van, Dawe saw two bags thrown from the passenger side window. Dawe testified that she made a mental note of where the bags landed in order to remember where to go back and retrieve them. After driving a short distance, the driver stopped the van, and Dawe approached the vehicle to check the motorist’s driver’s license.
The driver was Willie Montgomery, and Leroy Jones, a juvenile, was a passenger in the front seat of the van. A check of Montgomery’s license revealed that his license was suspended. At that point, Dawe arrested Montgomery and placed him in the back of the patrol car. During the pursuit, Dawe called for back-up, and Sergeant Dowty responded to the call.
When Dowty arrived at the place where Dawe was located, Dawe told Dowty where to search for the bags. Dowty testified that he found two plastic bags about forty feet from where the van was stopped; the bags contained what appeared to be crack cocaine. Dawe and Dowty called for the K-9 unit to search the van. The K-9 search revealed some indication that drugs might have once been in the glove compartment of the van. At the trial, Dawe testified that she did not have any evidence of who had possession of the drugs or who threw the drugs out of the van.
Montgomery did not testify at trial. However, his passenger, Hubert Leroy Jones did testify. Jones testified that trash under the brake pedal of the van prevented the van from stopping immediately. He testified that he got down into the floorboard of the van to remove the trash and as soon as he was able to remove the trash, Montgomery stopped the van.
He further explained that he and Montgomery were not sure initially as to Dawe’s intentions, that is, they were not sure whether she wanted to go around them or whether she was attempting to stop them. Jones denied that they stopped at three stop signs in the interim before obeying the officer’s blue light signal to stop. Jones testified that he did not have crack cocaine in his possession, that he did not have any knowledge that crack cocaine was in the van and that he did not see Montgomery throw anything out of the van because he was on the floor attempting to remove trash from underneath the brake pedal.
Montgomery was convicted of possession of cocaine and sentenced to 16 years. On appeal, he argued he was not in possession of cocaine. MCOA affirmed.
Montgomery argues that the crack cocaine was not found in the van driven by him, but some forty yards away on the side of the street. Montgomery also points out that even if the drugs were thrown from the van, they were thrown from the passenger side window where Leroy Jones was sitting. In support of his argument, Montgomery points this court to Buggs, wherein we commented upon the rule regarding constructive possession:
The correct rule in this jurisdiction is that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. When contraband is found on premises, there must be evidence, in addition to physical proximity, showing the defendant consciously exercised control over the contraband, and, absent this evidence, a finding of constructive possession cannot be sustained.
Montgomery continues his argument with the assertion that he was not in the exclusive control and possession of the van and that there is no evidence which shows that he consciously exercised control over the contraband.
The States agrees with Montgomery in that the evidence did not show actual possession; however, the State contends that if the cocaine was in the van at any point, Montgomery would have to have been in close proximity to the drugs. The State also maintains that since Montgomery was the driver of the van, he was at least a constructive and joint possessor of the cocaine and that a reasonable inference of guilt may be drawn from the fact Montgomery, as the driver of the van, refused to stop the van until the cocaine was thrown from it.
When Jones’s testimony is added to the fact mixture, according to the State, an even stronger case of Montgomery’s guilt is made. Finally, the State points out that even if Montgomery did not possess the drugs, he is at least an aider and abettor and that, as an aider and abettor, he is equally guilty of the crime committed by the principal offender.
We wholeheartedly agree with the contentions made by the State. While it is true that ownership of the van was not proven, possession was. The person in possession of the van was Montgomery. It can hardly be contended that he was the driver but not the possessor. As pointed out by the State, even if Jones had some possessory interest in the van this fact would not negate Montgomery’s possessory interest, it would simply change the quality of the interest.
As to the matter of possession of the contraband, the evidence shows, as is required, a sufficient nexus between the drugs and Montgomery to warrant a finding that he was aware of their presence in the van. His failure or refusal to stop when the officer turned on her blue lights speaks volumes about what he knew or at least provides a reasonable basis for a plethora of reasonable inferences concerning his knowledge of the presence of drugs.
The jury was entitled to believe the officer who testified that the bags of cocaine were thrown from the van. Jones said he did not throw them out. Only two persons were in the van, Jones and Montgomery. If Jones did not throw them, Montgomery did. If Jones threw them, a reasonable inference is that Montgomery, by his refusal to stop for the officer’s blue lights, was at least attempting to assist Jones in his effort to dispose of the contraband. In either circumstance, the evidence fully supports Montgomery’s guilt.