Brilan Keith Williams v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 16, 2017
• Docket: 71A03-1703-CR-680
• 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 Aug 16 2017, 9:45 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ernest P. Galos Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brilan Keith Williams, August 16, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1703-CR-680 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Steven L. Appellee-Plaintiff Hostetler, Judge The Honorable Keith Doi, Magistrate Trial Court Cause No. 71D07-1506-CM-2233

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017 Page 1 of 6 Case Summary

[1] Following a bench trial, Brilan K. Williams was convicted of Class A

misdemeanor carrying a handgun without a license and Class B misdemeanor

possession of marijuana. On appeal, Williams argues that the State presented

insufficient evidence to support his conviction for carrying a handgun without a

license.

[2] We affirm.

Facts & Procedural History

[3] On June 22, 2015, Officer David Johnson of the South Bend Police Department

was conducting traffic enforcement when he saw a blue Jeep Liberty with no

front bumper make a right turn without signaling. Officer Johnson activated his

vehicle’s lights to initiate a traffic stop, and the Jeep sped up and made another

quick turn without signaling. The Jeep ultimately came to a stop in an alley

behind a church, and Officer Johnson parked behind it and waited for backup

to arrive. While he waited, Officer Johnson saw three people inside the Jeep

and observed the driver of the vehicle and the front-seat passenger, who was

later identified as Williams, moving around as though they were attempting to

hide something.

[4] Within two minutes, Officer Daniel Lawecki arrived to assist Officer Johnson.

The two officers approached the Jeep, with Officer Lawecki approaching the

passenger side and Officer Johnson approaching driver side. As the officers

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017 Page 2 of 6 approached, they smelled a strong odor of marijuana coming from inside the

Jeep. The officers asked Williams and the driver to exit the vehicle. During a

pat-down search, Officer Johnson felt an object in Williams’s pocket. Officer

Johnson asked Williams what it was, and Williams responded, “I don’t know,

go ahead and look.” Transcript at 16. Officer Johnson removed the item, which

turned out to be a bag of marijuana.

[5] Meanwhile, Officer Lawecki also saw the barrel of a handgun sticking out from

under the passenger seat where Williams had been sitting. The gun was a

loaded .40 caliber Smith and Wesson. A subsequent search of the vehicle

resulted in the discovery of another handgun, a silver revolver, in the pocket on

the back of the driver’s seat. Officer Johnson determined that Williams did not

have a license to carry a handgun, and Williams was arrested and advised of his

Miranda rights.

[6] Officer Neil Graber then arrived to transport Williams to the county jail.

Williams asked Officer Graber what he was being charged with, and Officer

Graber informed him of the charges. At that point, Williams told Officer

Graber that “the Smith and Wesson .40 is mine, I will take it, I’m not a

convicted felon.” Id. at 57.

[7] Williams was charged with Class A misdemeanor carrying a handgun without a

license and Class B misdemeanor possession of marijuana. A bench trial was

held on October 25, 2016, and Williams was found guilty as charged. Williams

now appeals.

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017 Page 3 of 6 Discussion & Decision

[8] Williams argues that the State presented insufficient evidence to support his

conviction for carrying a handgun without a license. In reviewing a challenge

to the sufficiency of the evidence, we neither reweigh the evidence nor judge the

credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App.

2009). Instead, we consider only the evidence supporting the conviction and

the reasonable inferences flowing therefrom. Id. If there is substantial evidence

of probative value from which a reasonable trier of fact could have drawn the

conclusion that the defendant was guilty of the crime charged beyond a

reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891

N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not necessary that the evidence

overcome every reasonable hypothesis of innocence; rather, the evidence is

sufficient if an inference may reasonably be drawn from it to support the

conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).

[9] Ind. Code § 35-47-2-1(a) provides in relevant part that “a person shall not carry

a handgun in any vehicle or on or about the person’s body without being

licensed under this chapter to carry a handgun.” In order to satisfy these

elements, the State is required to prove that the defendant had either actual or

constructive possession of a handgun. Deshazier v. State, 877 N.E.2d 200, 204

(Ind. Ct App. 2007), trans. denied. It is undisputed that Williams did not have

actual possession of a handgun. On appeal, Williams argues that the State

failed to establish his constructive possession of the .40 caliber Smith and

Wesson.

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017 Page 4 of 6 [10] When proceeding on a theory of constructive possession, the State must

establish that the defendant had both the intent and the capability to maintain

dominion and control over the handgun. Id. at 205. “We have previously

noted five types of evidence the State may use to demonstrate constructive

possession of a handgun: ‘(1) incriminating statements by the defendant; (2)

attempted flight or furtive gestures; (3) proximity of the firearm to the

defendant; (4) location of the firearm within the defendant’s plain view; and (5)

the mingling of a firearm with other items owned by the defendant.’” Id. at 206

(quoting Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004)).

[11] The Smith and Wesson was located under the passenger seat where Williams

was sitting, easily within his reach. Additionally, Officer Johnson observed

Williams and the driver of the vehicle making furtive movements, and

according to Officer Johnson, it appeared that the men were trying to hide

something. Perhaps most importantly, Williams told Officer Graber that the

Smith and Wesson belonged to him. On appeal, Williams claims he falsely

claimed ownership of the gun in order to protect the other occupants of the

vehicle, who were convicted felons and consequently prohibited from

possessing handguns. This argument is simply a request to reweigh the

evidence, which we will not do on appeal. Moreover, we note that Williams

claimed ownership of only one of the two handguns found in the car, and he

made specific reference to a “.40 caliber Smith and Wesson”, clearly indicating

his familiarity with the weapon. Transcript at 56. This evidence was sufficient

to support Williams’s conviction for carrying a handgun without a license.

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017 Page 5 of 6 [12] Judgment affirmed.

[13] Baker, J. and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017 Page 6 of 6