Antonio Floyd v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 7, 2015
• Docket: 49A04-1504-CR-143
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 07 2015, 9:15 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Gregory F. Zoeller Oldenburg, Indiana Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Antonio Floyd, December 7, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1504-CR-143 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy Jones, Judge Appellee-Plaintiff Trial Court Cause No. 49F08-1405-CM-26171

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015 Page 1 of 6 Case Summary and Issue [1] Following a bench trial, Antonio Floyd was convicted of carrying a handgun

without a license and possession of marijuana, both Class A misdemeanors.

Floyd appeals only his conviction for carrying a handgun without a license,

raising the issue of whether the evidence is sufficient to support the conviction.

Concluding the evidence is sufficient, we affirm.

Facts and Procedural History [2] On May 19, 2014, Officer Eric Trost of Pike Township Schools was on foot

patrol near an Indianapolis apartment complex when he smelled a strong odor

of marijuana. In an attempt to locate the origin of the odor, Officer Trost

turned around and discovered smoke emitting from a parked vehicle’s front

driver’s side window. He observed an individual—later identified as Floyd—

behind the wheel. Floyd, the vehicle’s lone occupant, was the owner of the

vehicle.

[3] Officer Trost approached the front of the vehicle and made eye contact with

Floyd. Floyd, with his right hand, reached down between his legs toward the

vehicle’s floorboard. Fearing for his safety, Officer Trost raised his service

weapon, pointed it at Floyd, and demanded Floyd put both hands in the air.

Floyd obeyed Officer Trost’s command.

[4] Thereafter, another police officer arrived on scene and removed Floyd from the

vehicle. When the officer removed Floyd, a marijuana cigarette fell from

Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015 Page 2 of 6 Floyd’s lap onto the ground. Curious as to what Floyd had reached for on the

floorboard, Officer Trost looked inside the vehicle and observed, in plain view,

the handle of a black handgun sticking out from underneath the front driver’s

side seat. Police later discovered Floyd’s uncle was the registered owner of the

handgun, a .45 caliber Hi-Point. Floyd did not provide officers with a valid

license to carry a handgun. Officer Trost placed Floyd under arrest.

[5] On May 20, the State charged Floyd with carrying a handgun without a license

and possession of marijuana. A bench trial was held at which Floyd testified he

had no knowledge of the handgun’s presence inside the vehicle. He explained

his uncle had recently borrowed the vehicle and must have forgotten the

handgun was under the seat. In addition, Floyd stated he had no plans of

driving the car and had not driven recently because the license plates were

expired. Instead, he claimed he sat in the car and smoked marijuana while he

waited for a friend to come pick him up. When Officer Trost approached the

vehicle, Floyd reached down in an attempt “to put the marijuana out” in an

ashtray. Transcript at 35. Floyd’s uncle did not testify. The trial court found

Floyd guilty of carrying a handgun without a license and possession of

marijuana. Floyd now appeals his conviction for carrying a handgun without a

license.

Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015 Page 3 of 6 Discussion and Decision I. Standard of Review [6] When reviewing the sufficiency of the evidence to support a conviction, we

consider only the probative evidence and reasonable inferences supporting the

judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh

the evidence nor reassess the credibility of witnesses. Bailey v. State, 907 N.E.2d

1003, 1005 (Ind. 2009). We will affirm a conviction unless “no reasonable fact-

finder could find the elements of the crime proven beyond a reasonable doubt.”

Drane, 867 N.E.2d at 146-47 (citation omitted).

II. Constructive Possession [7] Floyd argues the evidence is insufficient to support his conviction because the

State failed to prove beyond a reasonable doubt he constructively possessed the

handgun. “[A] person shall not carry a handgun in any vehicle or on or about

the person’s body without being licensed . . . to carry a handgun.” Ind. Code §

35-47-2-1(a). Before a defendant can be convicted of carrying a handgun

without a license, the State must prove the defendant had either actual or

constructive possession of the handgun.1 K.F. v. State, 961 N.E.2d 501, 509

(Ind. Ct. App. 2012), trans. denied.

[8] Constructive possession occurs when somebody has the intent and capability to maintain dominion and control over the item.

1 There is no evidence Floyd was in actual possession of the handgun.

Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015 Page 4 of 6 To prove capability, the State must show that the defendant is able to reduce the contraband to her personal possession. To prove the intent element, the State must demonstrate the defendant’s knowledge of the presence of the contraband. This knowledge may be inferred from either the exclusive dominion and control over the premises containing the contraband or, if the control is non-exclusive, evidence of additional circumstances that point to the defendant’s knowledge of the presence of the contraband. These additional circumstances may include incriminating statements by the defendant; flight or furtive gestures; defendant’s proximity to the contraband; the contraband being in plain view; or the location of the contraband in close proximity to items owned by the defendant.

Id. at 509-10 (internal citations and quotation marks omitted).

[9] Floyd does not contend the evidence is insufficient to support a finding he had

the capability to maintain dominion and control over the handgun. Rather,

Floyd contends he did not have the intent to maintain dominion and control

over the handgun because 1) he did not have exclusive dominion and control

over the vehicle, and 2) he had no knowledge of the presence of the handgun.

We disagree.

[10] Floyd was the sole occupant of the vehicle, which he owned. Once Floyd made

eye contact with Officer Trost, Floyd made a furtive gesture towards the

floorboard where the handgun was later discovered in plain view and in close

proximity to where Floyd had been sitting. Floyd counters his testimony at

trial established he had no knowledge of the handgun’s presence, he did not

have exclusive control of vehicle because his uncle had previously borrowed the

car, and Floyd’s furtive gesture was neither an attempt to possess nor hide the Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015 Page 5 of 6 handgun. Rather, Floyd contends his movement was an attempt to extinguish

the marijuana cigarette in an ashtray. Floyd’s arguments, however, invite us to

reassess his credibility—an invitation we must decline when reviewing the

sufficiency of the evidence. See Bailey, 907 N.E.2d at 1005. Therefore, we

conclude the evidence is sufficient to show Floyd had the intent and capability

to maintain dominion and control over the handgun. See K.F., 961 N.E.2d at

509.

[11] Taking into account Floyd’s proximity to the handgun and furtive movement

inside the vehicle, coupled with the fact the vehicle was registered in Floyd’s

name, the handgun was discovered in plain view, and Floyd was the vehicle’s

lone occupant, we conclude the evidence was sufficient to prove beyond a

reasonable doubt Floyd constructively possessed the handgun.

Conclusion [12] The evidence presented at trial is sufficient to support Floyd’s conviction for

carrying a handgun without a license. Floyd’s conviction is therefore affirmed.

[13] Affirmed.

Barnes, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015 Page 6 of 6