MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Oct 27 2015, 9:01 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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Collin McAllister, October 27, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1502-CR-00081 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Rebekah Pierson- Appellee-Plaintiff Treacy, Judge Trial Court Cause No. 49G19-1410-CM-046717
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 1 of 6 Case Summary [1] After a police officer stopped a car in which Collin McAllister was riding as the
front-seat passenger, McAllister — who was free to leave — voluntarily told the
officer that he was “probably about to go to jail . . . because there’s a gun
underneath the front seat.” A gun was indeed found beneath the front seat of
the car, and McAllister did not have a license to carry a handgun. We find that
McAllister’s knowledge of and proximity to the gun is sufficient evidence to
establish his constructive possession, and thus we affirm his conviction for Class
A misdemeanor carrying a handgun without being licensed.
Facts and Procedural History [2] One afternoon in October 2014, Indianapolis Metropolitan Police Department
Officer Ethan Forrest was patrolling the area of South Madison Avenue and
Southport Road when he saw a car with passengers not wearing seatbelts. In
addition to the driver, there was a front-seat passenger and one back-seat
passenger. Officer Forrest ran the car’s license plate and learned that the
driver’s license was suspended. The officer activated his emergency lights, and
the car came to a stop in a residential driveway on Tulip Drive, where the car’s
front-seat passenger, Collin McAllister, lived. Officer Forrest allowed
McAllister to leave the car, and he and his father, who had come outside, began
walking away from the car, toward their house.
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 2 of 6 [3] Then McAllister stopped and asked Officer Forrest if he could speak with him.
McAllister said, “Officer Forrest I’m probably about to go to jail.” Tr. p. 12.
When the officer asked him why, McAllister responded, “I’m going to go to jail
because there’s a gun underneath the front seat.” Id. Officer Forrest recovered
a Cobra .380 semi-automatic pistol, with serial number 05822, from beneath the
front-passenger seat, where McAllister had been sitting. The officer determined
that McAllister did not have a valid handgun license. Thereafter, Officer
Fritsche of the IMPD photographed the gun and then gave it to Officer Cook,
IMPD, who took it to the property room.
[4] The State charged McAllister with Class A misdemeanor carrying a handgun
without a license. See Appellant’s App. p. 13. During the bench trial, Defense
counsel objected to the admission of the gun into evidence, arguing that there
was a chain-of-custody problem. Specifically, Officer Cook had testified that
the box in which the gun was kept in the property room was not in the same
condition as when he submitted it — the red tape had been removed from the
box and replaced with yellow tape. The trial court overruled the objection,
allowed the admission of the gun, and found McAllister guilty as charged.
[5] McAllister now appeals his conviction.
Discussion and Decision [6] On appeal McAllister contends that the evidence is insufficient to sustain his
conviction for Class A misdemeanor carrying a handgun without being
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 3 of 6 licensed. Our standard of reviewing claims of sufficiency of the evidence is well
settled. When reviewing the sufficiency of the evidence, we consider only the
probative evidence and reasonable inferences supporting the verdict. Boggs v.
State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We do not
reweigh the evidence or assess witness credibility. Id. We consider conflicting
evidence most favorably to the trial court’s ruling. Id. We will affirm the
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. Id. It is not necessary that the evidence
overcome every reasonable hypothesis of innocence. Id. The evidence is
sufficient if an inference may be reasonably drawn from it to support the
verdict. Id. A conviction may be based upon circumstantial evidence alone.
Id.
[7] In order to convict McAllister of Class A misdemeanor carrying a handgun
without being licensed, the State was required to prove beyond a reasonable
doubt that he carried a handgun in a vehicle or on or about his body without
being licensed to do so. See Ind. Code § 35-47-2-1(a), (e). To prove that the
defendant had control of the weapon, the State may present evidence of actual
or constructive possession. Grim v. State, 797 N.E.2d 825, 831 (Ind. Ct. App.
2003). Actual possession occurs when a person has direct physical control over
the item. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Constructive
possession occurs when an individual has the intent and capability to maintain
dominion and control over the item. Id. Suggesting that knowledge is a key
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 4 of 6 element in proving intent, our Supreme Court has repeatedly enunciated the
following rule:
When constructive possession is asserted, the State must demonstrate the defendant’s knowledge of the contraband. This knowledge may be inferred from either the exclusive dominion and control over the premise[s] containing the contraband or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant’s knowledge of the presence of the contraband.
Grim, 797 N.E.2d at 831 (quoting Woods v. State, 471 N.E.2d 691, 694 (Ind.
1984)). Proof of dominion and control over contraband has been found
through a variety of means: (1) incriminating statements by the defendant, (2)
attempted 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 contraband with other items owned by the defendant.
Henderson, 715 N.E.2d at 836.
[8] Here, the gun was found beneath the front passenger seat, where McAllister
had been sitting. Most significant, however, is McAllister’s unambiguous
knowledge that the gun was there, and his incriminating statement to Officer
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Oct 27 2015, 9:01 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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Collin McAllister, October 27, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1502-CR-00081 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Rebekah Pierson- Appellee-Plaintiff Treacy, Judge Trial Court Cause No. 49G19-1410-CM-046717
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 1 of 6 Case Summary [1] After a police officer stopped a car in which Collin McAllister was riding as the
front-seat passenger, McAllister — who was free to leave — voluntarily told the
officer that he was “probably about to go to jail . . . because there’s a gun
underneath the front seat.” A gun was indeed found beneath the front seat of
the car, and McAllister did not have a license to carry a handgun. We find that
McAllister’s knowledge of and proximity to the gun is sufficient evidence to
establish his constructive possession, and thus we affirm his conviction for Class
A misdemeanor carrying a handgun without being licensed.
Facts and Procedural History [2] One afternoon in October 2014, Indianapolis Metropolitan Police Department
Officer Ethan Forrest was patrolling the area of South Madison Avenue and
Southport Road when he saw a car with passengers not wearing seatbelts. In
addition to the driver, there was a front-seat passenger and one back-seat
passenger. Officer Forrest ran the car’s license plate and learned that the
driver’s license was suspended. The officer activated his emergency lights, and
the car came to a stop in a residential driveway on Tulip Drive, where the car’s
front-seat passenger, Collin McAllister, lived. Officer Forrest allowed
McAllister to leave the car, and he and his father, who had come outside, began
walking away from the car, toward their house.
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 2 of 6 [3] Then McAllister stopped and asked Officer Forrest if he could speak with him.
McAllister said, “Officer Forrest I’m probably about to go to jail.” Tr. p. 12.
When the officer asked him why, McAllister responded, “I’m going to go to jail
because there’s a gun underneath the front seat.” Id. Officer Forrest recovered
a Cobra .380 semi-automatic pistol, with serial number 05822, from beneath the
front-passenger seat, where McAllister had been sitting. The officer determined
that McAllister did not have a valid handgun license. Thereafter, Officer
Fritsche of the IMPD photographed the gun and then gave it to Officer Cook,
IMPD, who took it to the property room.
[4] The State charged McAllister with Class A misdemeanor carrying a handgun
without a license. See Appellant’s App. p. 13. During the bench trial, Defense
counsel objected to the admission of the gun into evidence, arguing that there
was a chain-of-custody problem. Specifically, Officer Cook had testified that
the box in which the gun was kept in the property room was not in the same
condition as when he submitted it — the red tape had been removed from the
box and replaced with yellow tape. The trial court overruled the objection,
allowed the admission of the gun, and found McAllister guilty as charged.
[5] McAllister now appeals his conviction.
Discussion and Decision [6] On appeal McAllister contends that the evidence is insufficient to sustain his
conviction for Class A misdemeanor carrying a handgun without being
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 3 of 6 licensed. Our standard of reviewing claims of sufficiency of the evidence is well
settled. When reviewing the sufficiency of the evidence, we consider only the
probative evidence and reasonable inferences supporting the verdict. Boggs v.
State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We do not
reweigh the evidence or assess witness credibility. Id. We consider conflicting
evidence most favorably to the trial court’s ruling. Id. We will affirm the
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. Id. It is not necessary that the evidence
overcome every reasonable hypothesis of innocence. Id. The evidence is
sufficient if an inference may be reasonably drawn from it to support the
verdict. Id. A conviction may be based upon circumstantial evidence alone.
Id.
[7] In order to convict McAllister of Class A misdemeanor carrying a handgun
without being licensed, the State was required to prove beyond a reasonable
doubt that he carried a handgun in a vehicle or on or about his body without
being licensed to do so. See Ind. Code § 35-47-2-1(a), (e). To prove that the
defendant had control of the weapon, the State may present evidence of actual
or constructive possession. Grim v. State, 797 N.E.2d 825, 831 (Ind. Ct. App.
2003). Actual possession occurs when a person has direct physical control over
the item. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Constructive
possession occurs when an individual has the intent and capability to maintain
dominion and control over the item. Id. Suggesting that knowledge is a key
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 4 of 6 element in proving intent, our Supreme Court has repeatedly enunciated the
following rule:
When constructive possession is asserted, the State must demonstrate the defendant’s knowledge of the contraband. This knowledge may be inferred from either the exclusive dominion and control over the premise[s] containing the contraband or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant’s knowledge of the presence of the contraband.
Grim, 797 N.E.2d at 831 (quoting Woods v. State, 471 N.E.2d 691, 694 (Ind.
1984)). Proof of dominion and control over contraband has been found
through a variety of means: (1) incriminating statements by the defendant, (2)
attempted 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 contraband with other items owned by the defendant.
Henderson, 715 N.E.2d at 836.
[8] Here, the gun was found beneath the front passenger seat, where McAllister
had been sitting. Most significant, however, is McAllister’s unambiguous
knowledge that the gun was there, and his incriminating statement to Officer
Forrest that he was “probably about to go to jail . . . because there’s a gun
underneath the front seat.” Tr. p. 12. This is sufficient to establish McAllister’s
constructive possession of the gun — that he had the intent and capability to
maintain control and dominion over it. See Henderson, 715 N.E.2d at 835.
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 5 of 6 McAllister’s other proposed scenarios and interpretations of McAllister’s
statement to Officer Forrest — “[I]t could have been that [McAllister], being
concerned for Officer Forrest’s safety, motivated him to inform of the gun to
Officer Forrest[,]” Appellant’s Br. p. 7 — are simply requests for us to reweigh
the evidence, which we cannot do. We find the evidence is sufficient to support
McAllister’s conviction.1
[9] Affirmed.
Robb, J., and Pyle, J., concur.
1 [1] McAllister in his appellate brief also “mentions the chain of custody issue only because trial counsel made the record by objection.” Appellant’s Br. p. 9. He then concedes that Officer Cook “identified the firearm as the one he retrieved from the vehicle” and points out that any chain-of-custody argument would go to the weight of the evidence and not its admissibility. Id. (citing Gambill v. State, 479 N.E.2d 523 (Ind. 1985)). Although he has effectively waived this issue by failing to develop a cogent argument, we note that Officer Cook’s testimony as to the make, model, and serial number of the gun – a non-fungible item – coupled with his retrieval of the gun from the evidence room, where it was located in a box with a property sheet that included the name of the submitting officer, McAllister’s name, and the date of arrest, was sufficient to establish that this was the same gun confiscated during the traffic stop.
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 6 of 6