Brandon Artis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 22, 2017
• Docket: 82A05-1608-CR-1747
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 22 2017, 6:40 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Yvette M. LaPlante Curtis T. Hill, Jr. Keating and LaPlante, LLP Attorney General of Indiana Evansville, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brandon Artis, February 22, 2017 Appellant-Defendant, Court of Appeals Case No. 82A05-1608-CR-1747 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Michael J. Cox, Appellee-Plaintiff. Magistrate Trial Court Cause No. 82C01-1604-F4-2033

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A05-1608-CR-1747 | February 22, 2017 Page 1 of 5 Case Summary [1] Brandon Artis (“Artis”) appeals his conviction for Unlawful Possession of a

Firearm by a Serious Violent Felon, a Level 4 felony.1 He presents the sole

issue of whether sufficient evidence supports the conviction. We affirm.

Facts and Procedural History [2] On April 6, 2016, Evansville Police Department officers were dispatched to a

residential neighborhood after someone reported suspected drug odors

emanating from a parked black truck. The caller had also indicated that the

truck occupants were blaring loud music.

[3] Officers Herbert Adams and Michael Beitler located a truck meeting the caller’s

description. As the officers approached, two passengers exited and walked

away from the truck. Officer Beitler attempted to speak to the men, but they

refused to engage in conversation. They walked to a nearby residence and

watched the officers from the window.

[4] Officer Adams approached the black vehicle, where he saw Artis sitting in the

driver’s seat. Artis opened the driver’s side door, and a conversation ensued.

Artis stated that he and his companions had been listening to music. In

response to the officer’s questions, Artis replied that the truck was not his and

1 Ind. Code § 35-47-4-5.

Court of Appeals of Indiana | Memorandum Decision 82A05-1608-CR-1747 | February 22, 2017 Page 2 of 5 that he did not have a driver’s license. He refused permission to search the

vehicle.

[5] One of the officers advised Artis that the vehicle was illegally parked, and it

would probably need to be towed. Artis was told that he could “head off and

leave the keys.” (Tr. at 49.) Alternatively, the officer suggested that Artis could

“go in there and find the owner,” who would then be asked to consent to a

search. (Tr. at 49.) An unidentified woman appeared and offered to allow

Artis to “leave [the truck] right here.” (Tr. at 51.) However, she also denied

ownership of the truck.

[6] At some point during the encounter, Officer Beitler saw a Ruger .45 caliber

pistol under the driver’s seat. He alerted other officers, and Artis was arrested.

Inside Artis’s right front jacket pocket was a magazine compatible with a Ruger

.45 caliber pistol.

[7] On June 15, 2016, Artis was brought to trial on a charge of Unlawful

Possession of a Firearm by a Serious Violent Felon. At the conclusion of the

first stage of the bifurcated proceedings, a jury found that Artis had possessed a

firearm. He then admitted that he is a serious violent felon, having previously

been convicted of armed robbery. The trial court entered judgment and

sentenced Artis to six years imprisonment. Artis now appeals.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 82A05-1608-CR-1747 | February 22, 2017 Page 3 of 5 [8] Indiana Code Section 35-47-4-5(c) provides: “A serious violent felon who

knowingly or intentionally possesses a firearm commits unlawful possession of

a firearm by a serious violent felon, a Level 4 felony.” Artis claims that the

State failed to establish, beyond a reasonable doubt, that he knowingly or

intentionally possessed the handgun.

[9] When reviewing the sufficiency of the evidence to support a criminal

conviction, we do not reweigh the evidence or judge witness credibility.

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only the

evidence supporting the verdict and any reasonable inferences to be drawn

therefrom, we will affirm if there is substantial evidence of probative value such

that a reasonable trier of fact could have concluded the defendant was guilty

beyond a reasonable doubt. Id.

[10] The possession of contraband may be characterized as either actual or

constructive. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Actual

possession occurs when a person has direct physical control over the item and

constructive possession occurs when someone has the intent and capability to

maintain dominion and control over the item. Id. Here, the State asserted that

Artis constructively possessed the handgun found under the driver’s seat where

he was seated. When constructive possession is asserted, the State must

demonstrate the defendant’s knowledge of the contraband. Id.

[11] Proof of dominion and control of contraband has been found through such

means as: (1) incriminating statements made by a defendant, (2) attempted

Court of Appeals of Indiana | Memorandum Decision 82A05-1608-CR-1747 | February 22, 2017 Page 4 of 5 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. Id. at

836.

[12] Here, officers testified to the following circumstances. Artis was sitting in the

driver’s seat of the black truck as officers approached. A Ruger .45 caliber

pistol was visible from underneath the driver’s seat of that vehicle. A magazine,

compatible with a Ruger .45 caliber pistol, was found in Artis’s right front

jacket pocket. Inside the black truck were items of Artis’s clothing and his

identification card. Sufficient evidence was presented from which the jury

could reasonably have concluded that Artis constructively possessed the

handgun.

Conclusion [13] Artis’s conviction is supported by sufficient evidence.

[14] Affirmed.

Najam, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 82A05-1608-CR-1747 | February 22, 2017 Page 5 of 5