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Hardin v. State3/11/2004
t to the trial court, either in a motion for a directed verdict or a Rule 29 motion for judgment of acquittal. Absent any such motion, the claim is waived.").
FN32. See id. ("This Court may excuse a waiver, however, if it finds that the trial court committed plain error requiring review in the interests of justice.").
Even had Hardin not waived this issue, the claim fails on its merits. The State presented sufficient evidence to establish Hardin's constructive possession of the drugs under the sun visor. [FN33] "[T]he custodian of an automobile is presumed, by reason of his status as custodian, to have dominion and control of contraband found in the automobile; ... if, under the totality of the circumstances, such dominion and control may be found to be a conscious dominion and control, the evidence is sufficient to warrant the conclusion of 'possession' as to the custodian." [FN34] Under the totality of the circumstances, the evidence warranted the conclusion that Hardin had conscious dominion and control of the drugs found in his car. Officers found other drugs on Hardin's person. In addition, the marijuana and at least a portion of the bag containing the cocaine were visible from inside the car. The State satisfactorily established that Hardin constructively possessed the drugs found in his car.
FN33. See Del. Code Ann. tit. 16, § 4701(30) (2003) ( " 'Possession,' in addition to its ordinary meaning, includes location in or about the defendant's person, premises, belongings, vehicle or otherwise within the defendant's reasonable control."); Hoey v. State, 689 A.2d 1177, 1181 (Del.1997) (stating that "the element of possession can be
satisfied by a showing that the defendant was in constructive possession of the illegal substance at the time of the alleged offense").
FN34. Holden v. State, 305 A.2d 320, 322 (Del.1973).
Conclusion
Accordingly, the judgment of the Superior Court is AFFIRMED.
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