Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Jan 22 2014, 9:36 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRUCE JONES, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1304-CR-363 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Rebekah F. Pierson-Treacy, Judge The Honorable Steven Rubick, Magistrate Cause No. 49F19-1208-CM-58272
January 22, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Bruce Jones (Jones), appeals his conviction for carrying a
handgun without a license, a Class A misdemeanor, Ind. Code § 35-47-2-1(a).
We affirm.
ISSUE
Jones raises one issue on appeal, which we restate as: Whether the State presented
sufficient evidence beyond a reasonable doubt to support Jones’ conviction.
FACTS AND PROCEDURAL HISTORY
On August 22, 2012, at approximately 7 p.m., Officers Scott Stauffer (Officer
Stauffer) and Timothy Elliott (Officer Elliott) of the Indianapolis Metropolitan Police
Department were issuing parking tickets near Meadows Drive in Marion County, Indiana.
A distraught female drove up and informed Officer Stauffer that a baby had fallen out of
her car and that the mother was trying to fight her. While Officer Stauffer was trying to
calm her down, a crowd of “about fifteen to twenty people” approached the Officers,
yelling and screaming about the incident. (Transcript p. 6). The Officers managed to
appease the situation.
As the Officers were leaving, they heard engines revving and “brakes slamming
down really, really hard.” (Tr. p. 7). Deputy James Ellis of the Marion County Sheriff’s
Department (Deputy Ellis), who was also on the scene, noticed a silver Dodge Charger,
driven by Jones, turn “at a high rate of speed” and come to an “abrupt stop.” (Tr. p. 7).
The vehicle stopped approximately a hundred feet away, with the driver’s side facing the
2 Officers. Jones exited the car, “obviously agitated” and with his chest “puffed out” and
his fists “clenched.” (Tr. p. 7-8). Jones walked towards the Officers in an aggressive and
determinated manner.
Deputy Ellis requested Jones to stop, but Jones attempted to walk past the
Officers. After ignoring the Officers’ request several times, the Officers physically
stopped Jones. “Just based on the manner of the driving and [Jones’] demeanor and his
behavior,” the Officers assumed that he was there regarding the fight that they had just
pacified. (Tr. p. 8). Deputy Ellis placed his hands on Jones’ chest and Jones cursed him
while the Deputy performed a pat down search. Upon running a background check,
Deputy Ellis was informed that Jones had a “suspended with a prior conviction.” (Tr. p.
11). The Deputy placed Jones under arrest and escorted him back to Jones’ vehicle.
When Deputy Ellis approached Jones’ car, he noticed a passenger in the vehicle.
Deputy Ellis requested the passenger to exit the car and conducted a pat down search.
When he looked in the vehicle, he noticed a handgun “next to the driver’s seat in the
center console.” (Tr. p. 35). Deputy Ellis opined that the handgun was in plain view,
“next to the driver’s seat, on the right side in between the driver’s seat and the [c]enter
console.” (Tr. p. 36) Half of the barrel and the handgrip were exposed. Deputy Ellis
noticed that the handgun was positioned such that “Jones would be able to grab it,
directly next to his leg.” (Tr. p. 36).
On August 23, 2012, the State filed an Information, charging Jones with Count I,
carrying a handgun without a license, a Class A misdemeanor, I.C. § 35-47-2-1; and
Count II, driving while suspended/prior, a Class A misdemeanor, I.C. § 9-24-19-2. On
3 February 11, 2013 and March 25, 2013, the trial court conducted a bifurcated bench trial.
At the close of the evidence, the trial court found Jones guilty on Count I but not guilty
on Count II and sentenced Jones to three hundred and sixty-five days, with four days
executed, two days credit for time served, and the remainder on probation.
Jones now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Jones contends that the State failed to establish beyond a reasonable doubt that he
constructively possessed the handgun. In reviewing a sufficiency of the evidence claim,
this court does not reweigh the evidence or assess the credibility of witnesses. Cox v.
State, 774 N.E.2d 1025, 2028-29 (Ind. Ct. App. 2002). We consider only the evidence
most favorable to the judgment, together with all reasonable and logical inferences to be
drawn therefrom. Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004). The
conviction will be affirmed if there is substantial evidence of probative value to support
the conclusion of the trier-of-fact. Id.
To convict Jones of carrying a handgun without a license, the State was required
to establish that Jones carried a handgun in the vehicle or on or about his body without
being licensed to do so. See I.C. § 35-47-2-1. Furthermore, to convict a defendant of
carrying a handgun in a vehicle, the State must present evidence that a handgun was
found in a vehicle and that the defendant had control of either the weapon or of the
vehicle, with knowledge of the weapon’s presence. Klopfenstein v. State, 439 N.E.2d
1181, 1184 (Ind. Ct. App. 1982).
4 To prove that Jones had control of the weapon, the State may present evidence of
actual or constructive possession. A person who has direct physical control over the
firearm, has actual possession. Causey, 808 N.E.2d at 143. However, constructive
possession occurs when the person has the intent and capability to maintain dominion and
control over the firearm. Id. To prove the element of intent, the State must demonstrate
the defendant’s knowledge of the presence of the firearm. Id. Knowledge may be
inferred from either exclusive dominion and control over the premises containing the
firearm, or from evidence of additional circumstances indicating the defendant’s
knowledge of the presence of the firearm. Id.
Proof of dominion and control over a firearm has been found through a variety of
means: (1) incriminating statements by the defendant; (2) attempted flight or furtive
gestures; (3) proximity of the firearm to the defendant; (4) location of the firearms within
the defendant’s plain view; and (5) the mingling of a firearm with other items owned by
the defendant. Id. In addition, the State must demonstrate the defendant’s capability to
exercise control over the firearm, which includes the ability to reduce the firearm to his
personal possession or to otherwise direct its disposition or use. Id.
Here, we are presented with a non-exclusive dominion case. Because Jones did
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Jan 22 2014, 9:36 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRUCE JONES, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1304-CR-363 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Rebekah F. Pierson-Treacy, Judge The Honorable Steven Rubick, Magistrate Cause No. 49F19-1208-CM-58272
January 22, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Bruce Jones (Jones), appeals his conviction for carrying a
handgun without a license, a Class A misdemeanor, Ind. Code § 35-47-2-1(a).
We affirm.
ISSUE
Jones raises one issue on appeal, which we restate as: Whether the State presented
sufficient evidence beyond a reasonable doubt to support Jones’ conviction.
FACTS AND PROCEDURAL HISTORY
On August 22, 2012, at approximately 7 p.m., Officers Scott Stauffer (Officer
Stauffer) and Timothy Elliott (Officer Elliott) of the Indianapolis Metropolitan Police
Department were issuing parking tickets near Meadows Drive in Marion County, Indiana.
A distraught female drove up and informed Officer Stauffer that a baby had fallen out of
her car and that the mother was trying to fight her. While Officer Stauffer was trying to
calm her down, a crowd of “about fifteen to twenty people” approached the Officers,
yelling and screaming about the incident. (Transcript p. 6). The Officers managed to
appease the situation.
As the Officers were leaving, they heard engines revving and “brakes slamming
down really, really hard.” (Tr. p. 7). Deputy James Ellis of the Marion County Sheriff’s
Department (Deputy Ellis), who was also on the scene, noticed a silver Dodge Charger,
driven by Jones, turn “at a high rate of speed” and come to an “abrupt stop.” (Tr. p. 7).
The vehicle stopped approximately a hundred feet away, with the driver’s side facing the
2 Officers. Jones exited the car, “obviously agitated” and with his chest “puffed out” and
his fists “clenched.” (Tr. p. 7-8). Jones walked towards the Officers in an aggressive and
determinated manner.
Deputy Ellis requested Jones to stop, but Jones attempted to walk past the
Officers. After ignoring the Officers’ request several times, the Officers physically
stopped Jones. “Just based on the manner of the driving and [Jones’] demeanor and his
behavior,” the Officers assumed that he was there regarding the fight that they had just
pacified. (Tr. p. 8). Deputy Ellis placed his hands on Jones’ chest and Jones cursed him
while the Deputy performed a pat down search. Upon running a background check,
Deputy Ellis was informed that Jones had a “suspended with a prior conviction.” (Tr. p.
11). The Deputy placed Jones under arrest and escorted him back to Jones’ vehicle.
When Deputy Ellis approached Jones’ car, he noticed a passenger in the vehicle.
Deputy Ellis requested the passenger to exit the car and conducted a pat down search.
When he looked in the vehicle, he noticed a handgun “next to the driver’s seat in the
center console.” (Tr. p. 35). Deputy Ellis opined that the handgun was in plain view,
“next to the driver’s seat, on the right side in between the driver’s seat and the [c]enter
console.” (Tr. p. 36) Half of the barrel and the handgrip were exposed. Deputy Ellis
noticed that the handgun was positioned such that “Jones would be able to grab it,
directly next to his leg.” (Tr. p. 36).
On August 23, 2012, the State filed an Information, charging Jones with Count I,
carrying a handgun without a license, a Class A misdemeanor, I.C. § 35-47-2-1; and
Count II, driving while suspended/prior, a Class A misdemeanor, I.C. § 9-24-19-2. On
3 February 11, 2013 and March 25, 2013, the trial court conducted a bifurcated bench trial.
At the close of the evidence, the trial court found Jones guilty on Count I but not guilty
on Count II and sentenced Jones to three hundred and sixty-five days, with four days
executed, two days credit for time served, and the remainder on probation.
Jones now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Jones contends that the State failed to establish beyond a reasonable doubt that he
constructively possessed the handgun. In reviewing a sufficiency of the evidence claim,
this court does not reweigh the evidence or assess the credibility of witnesses. Cox v.
State, 774 N.E.2d 1025, 2028-29 (Ind. Ct. App. 2002). We consider only the evidence
most favorable to the judgment, together with all reasonable and logical inferences to be
drawn therefrom. Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004). The
conviction will be affirmed if there is substantial evidence of probative value to support
the conclusion of the trier-of-fact. Id.
To convict Jones of carrying a handgun without a license, the State was required
to establish that Jones carried a handgun in the vehicle or on or about his body without
being licensed to do so. See I.C. § 35-47-2-1. Furthermore, to convict a defendant of
carrying a handgun in a vehicle, the State must present evidence that a handgun was
found in a vehicle and that the defendant had control of either the weapon or of the
vehicle, with knowledge of the weapon’s presence. Klopfenstein v. State, 439 N.E.2d
1181, 1184 (Ind. Ct. App. 1982).
4 To prove that Jones had control of the weapon, the State may present evidence of
actual or constructive possession. A person who has direct physical control over the
firearm, has actual possession. Causey, 808 N.E.2d at 143. However, constructive
possession occurs when the person has the intent and capability to maintain dominion and
control over the firearm. Id. To prove the element of intent, the State must demonstrate
the defendant’s knowledge of the presence of the firearm. Id. Knowledge may be
inferred from either exclusive dominion and control over the premises containing the
firearm, or from evidence of additional circumstances indicating the defendant’s
knowledge of the presence of the firearm. Id.
Proof of dominion and control over a firearm has been found through a variety of
means: (1) incriminating statements by the defendant; (2) attempted flight or furtive
gestures; (3) proximity of the firearm to the defendant; (4) location of the firearms within
the defendant’s plain view; and (5) the mingling of a firearm with other items owned by
the defendant. Id. In addition, the State must demonstrate the defendant’s capability to
exercise control over the firearm, which includes the ability to reduce the firearm to his
personal possession or to otherwise direct its disposition or use. Id.
Here, we are presented with a non-exclusive dominion case. Because Jones did
not have exclusive dominion and control over his vehicle in which the handgun was
found, we must consider the evidence in light of additional circumstances indicating
Jones’ knowledge of the presence of the weapon and his ability to exercise control over
it.
5 In support of his argument, Jones refers us to E.D. v. State, 905 N.E.2d 505 (Ind.
Ct. App. 2009), where we found insufficient evidence to establish constructive
possession. In E.D., E.D. was seated in the backseat between two males. Id. at 506.
During an inventory search of the vehicle, the officer located a handgun in the pocket
behind the driver’s seat, one foot away from where E.D. had been sitting. Id. We
concluded that other than E.D.’s proximity to the gun, there was no other evidence to
suggest that E.D. was capable of maintaining control and dominion of the gun. Id. at
507. In fact, E.D. was “only marginally closer to the gun” than the passenger riding
behind the driver’s seat. Id. at 507-08. We also noted that the evidence failed to
establish whether the gun was in plain view and there was no evidence to suggest E.D.
made incriminating statements or furtive gestures. Id. at 508.
We find E.D. readily distinguishable from the situation before us. While in E.D.
there were several people who were arguably close enough to the gun to handle it, here,
the gun was immediately next to Jones’ seat, in plain view, and positioned in such a way
that he could easily grab it and have actual control over it. Also, the record before us
does not reflect any evidence that the gun was visible to the passenger. Jones’ argument
that the weapon was planted by the passenger during the short time span in which Jones
had exited the car and the Deputy discovered the passenger is merely a request to reweigh
the evidence, which we must decline. Because of the weapon’s proximity, its visibility,
and its positioning, it can reasonably be inferred that Jones knew that the gun was in his
vehicle. Therefore, we conclude that the State presented sufficient evidence to support
6 that Jones had both the capability and the intent to maintain dominion and control over
the handgun.
CONCLUSION
Based on the foregoing, we conclude that the State established beyond a
reasonable doubt that Jones constructively possessed the handgun.
Affirmed.
VAIDIK, C.J. and MAY, J. concur