Charles Johnson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 27, 2018
• Docket: 71A03-1712-CR-2948
• 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 Jul 27 2018, 9:06 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charles Johnson, July 27, 2018 Appellant-Defendant, Court of Appeals Case No. 71A03-1712-CR-2948 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff Marnocha, Judge Trial Court Cause No. 71D02-1706-F4-30

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018 Page 1 of 8 [1] Charles Johnson appeals his conviction of Level 4 felony unlawful possession of

a firearm by a serious violent felon. 1 He asserts the State did not present

sufficient evidence he constructively possessed the firearm. We affirm.

Facts and Procedural History [2] In the early morning hours of June 13, 2017, South Bend Police Officers David

Boutsomsy and Brandon Martin were parked at a gas station when they saw a

tan Ford Explorer pull into the parking lot and then, without anyone exiting or

entering the vehicle, quickly pull back out. The officers followed the Explorer,

observed the driver fail to use a turn signal, and noted the vehicle did not have a

properly lit license plate.

[3] Once Officer Boutsomsy activated his lights to initiate a traffic stop, the

Explorer sped away. The officers pursued the Explorer until it crashed into a

tree. The officers saw both the driver and passenger exit the Explorer and flee

on foot. Officer Boutsomsy chased them but, when they split up, he followed

the passenger, who was later identified as Johnson. Officer Boutsomsy caught

up with Johnson as Johnson started kicking and pounding on the door of a

nearby apartment. Johnson was arrested. Johnson first gave his name as

“Carlos Smith” (Tr. Vol. 3 at 36), and claimed he was seventeen years old and

preparing to enter the military. He also claimed he had not been in the

1 Ind. Code § 35-47-4-5 (2016).

Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018 Page 2 of 8 Explorer but rather had been sitting at a picnic table with his girlfriend when he

saw the wreck.

[4] During the investigation, officers discovered the Explorer had been reported

stolen the day before. Officers found two guns in the vehicle - a .22 caliber rifle

leaning against the front passenger seat and a Colt .380 caliber handgun

between the console and front passenger seat. The owner of the Explorer

testified no firearms were in the vehicle when it was stolen.

[5] The State charged Johnson with Level 4 felony unlawful possession of a firearm

by a serious violent felon. On September 26, 2017, a jury trial commenced.

Johnson admitted to being in the passenger seat but claimed he did not see the

firearms. Johnson claimed he had run and had given false information because

he was on probation and thought he would get in more trouble.

[6] Ashley Nailon, Johnson’s sister, testified Travion Smith had been driving the

Explorer earlier in the evening and had given Johnson a ride to the grocery

store. When Nailon and her family could not locate Johnson the next day,

Nailon confronted Smith. Nailon testified Smith told her that he “had to leave

[his] guns. [He] had two guns in the car.” (Tr. Vol. 4 at 20.) The State

questioned Nailon as to why she had not come forward with this information

before the day of the trial. Nailon stated she had told Johnson’s attorney but

that he later told her “he didn’t recall [her] telling him every little bitty thing.”

(Id. at 24.) She also stated she had not disclosed this information to the State

even though she was allowed to ask defense counsel if she could.

Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018 Page 3 of 8 [7] The jury found Johnson guilty. The trial court sentenced Johnson to twelve

years on the firearm conviction, with eight years executed and four years

suspended to probation. Because the conviction violated the terms of Johnson’s

probation in a prior case, the trial court also revoked his probation therein and

ordered him to serve eight years, with six years executed and two years

suspended to probation, consecutive to the new firearm sentence.

Discussion and Decision [8] When reviewing sufficiency of the evidence in support of a conviction, we will

consider only probative evidence in the light most favorable to the trial court’s

judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

decision comes before us with a presumption of legitimacy, and we will not

substitute our judgment for that of the fact-finder. Id. We do not assess the

credibility of the witnesses or reweigh the evidence in determining whether the

evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

is appropriate only when no reasonable fact-finder could find the elements of

the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

required to overcome every reasonable hypothesis of innocence and is sufficient

if an inference reasonably may be drawn from it to support the verdict. Id. at

147.

[9] Johnson contends the State did not present sufficient evidence to allow the jury

to make a reasonable inference he constructively possessed either firearm

because the vehicle, in which Johnson was a passenger, was not under

Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018 Page 4 of 8 Johnson’s control or dominion, Johnson made no furtive movements in the

vehicle prior to fleeing, and Johnson did not make any incriminating statements

about possessing either firearm. The State counters that not only did it present

sufficient evidence Johnson constructively possessed the firearm but also

sufficient evidence he actually possessed them due to the proximity of the

firearms to Johnson’s location in the vehicle, Johnson’s flight from the vehicle,

and Johnson’s false information regarding his name, age, and whereabouts

during the car crash.

[10] Possession of an item may be 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.” Id. Constructive possession occurs when

someone has “the intent and capability to maintain dominion and control over

the item.” Id. Possession may be exclusive or joint. Joint possession can be

shown without proof the “defendant had actual physical control” of the item in

question. Godar v. State, 643 N.E.2d 12, 14 (Ind. Ct. App. 1994), reh’g denied,

trans. denied. If non-exclusive, however, the State must prove the defendant had

actual knowledge of the firearm and the illegal character of possessing it. Id.

[11] Additional circumstances that support finding a defendant had the intent and

capability to maintain dominion and control over contraband kept in non-

exclusive premises include: “(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)

Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018 Page 5 of 8 the mingling of a firearm with other items owned by the defendant.” Causey v.

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

[12] Although the State argues it proved actual possession, Johnson only addresses

constructive possession. When Nailon made her at-trial revelation that Smith

admitted owning the guns, the trial court had a discussion with counsel during

which the court opined the State was not precluded from arguing joint

possession by the passenger and driver. (See Tr. Vol. 4 at 7-8.) In its closing,

the State specifically defined actual and constructive possession and told the

jury constructive possession “is what the defendant is guilty of; [sic] he had

knowledge.” (Id. at 81.) Therefore, we will analyze whether the State provided

evidence beyond a reasonable doubt that Johnson and the driver jointly

possessed the firearms constructively.

[13] Here, Crime Scene Technician Paul Daley testified to photo-documenting the

scene. The State introduced photo evidence of the passenger seat showing

some items in the seat and in the floorboard along with a long gun propped

against the front of the passenger seat nearest the console and a handgun

shoved between the passenger seat and the console. A subsequent photo

showed the handgun on the passenger seat. Technician Daley testified that

after the handgun had been removed from between the seat and console, he

“placed it on the seat so [he] could get a better picture of it.” (Tr. Vol. 3 at 52.)

Technician Daley testified his photo-documentation of the scene occurs “prior

to anybody being around it, and just documenting the scene as it is presented to

[him].” (Id. at 51.)

Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018 Page 6 of 8 [14] Although Nailon testified Smith had said the guns were his, that does not

preclude either 1) the jury’s disbelief of her statements or 2) joint possession of

the firearms. See Henderson v. State, 715 N.E.2d 833, 836-37 (Ind. 1999)

(comparison of different constructive possession cases wherein proximity to the

firearm weighed heavily in the calculus of possession, such that if the firearm

was in the trunk, the defendant was not “carrying” it but if three firearms were

under the three respective seats of the defendants, it was reasonable to infer

each possessed one). Therefore, even if Nailon was testifying truthfully about

statements by Smith and even if Smith was truthful the guns belonged to him, it

was not unreasonable for the jury to infer Johnson had non-exclusive

constructive possession over one or both firearms due to the proximity of the

firearms to where Johnson admitted he was sitting in the vehicle.

[15] Johnson did not make incriminating statements about the firearms but he did

flee the scene, both firearms were in close proximity to Johnson, and the rifle

was in plain sight. Johnson’s arguments that he fled only because he was on

probation are a request for us to reweigh the evidence, which we cannot do. See

Drane, 867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the

credibility of witnesses). The State presented evidence the firearms were

located near or on the passenger seat where Johnson admitted he was sitting.

Johnson’s arguments the police placed the rifle in the passenger seat floorboard

is an invitation for us to reweigh the evidence, which we cannot do. See id. We

conclude the State presented sufficient evidence Johnson had joint constructive

Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018 Page 7 of 8 possession of the firearms. 2 See Deshazier v. State, 877 N.E.2d 200, 208 (Ind. Ct.

App. 2007) (constructive possession of a handgun based on Deshazier’s furtive

gestures, flight from officer, and sitting on the gun), trans. denied.

Conclusion [16] The State presented sufficient evidence Johnson committed Level 4 felony

unlawful possession of a firearm by a serious violent felon based on a theory of

non-exclusive constructive possession. Accordingly, we affirm.

[17] Affirmed.

Riley, J., and Mathias, J., concur.

2 If preponderance of evidence supporting an allegation of the commission of a new crime is presented, even without conviction of a new crime, we will affirm the revocation of probation. Richeson v. State, 648 N.E.2d 384, 389 (Ind. Ct. App. 1995), reh’g denied, trans. denied. One violation of a condition of probation is enough to support a probation revocation. Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997). As the State presented sufficient evidence Johnson committed the new crime under the heightened standard of beyond a reasonable doubt, sufficient evidence was presented to support the revocation of Johnson’s probation under a preponderance of the evidence standard; therefore, we need not address Johnson’s arguments to reverse his probation revocation based on insufficient evidence to support this conviction. See Henderson v. State, 544 N.E.2d 507, 512 (Ind. 1989) (affirmed trial court proceeding of combined sentencing and probation revocation wherein trial court took judicial notice of conviction of new crime to support probation revocation).

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