David Johnny Cross v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 12, 2019
• Docket: 18A-CR-2499
• 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 Jun 12 2019, 6:50 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 Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David Johnny Cross, June 12, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2499 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge Trial Court Cause Nos. 71D02-1403-FC-64 71D02-1510-F5-227

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019 Page 1 of 6 Statement of the Case [1] David Johnny Cross (“Cross”) appeals his conviction following a jury trial of

Level 5 felony carrying a handgun without a license.1 He argues that there is

insufficient evidence to support his conviction. Concluding that the evidence is

sufficient, we affirm Cross’ conviction.

[2] We affirm.

Issue Whether there is sufficient evidence to support Cross’ conviction.

Facts [3] The facts most favorable to the verdict reveal that the trial court issued a bench

warrant for Cross’ arrest in March 2015. Seven months later, Cross was still at

large. South Bend Police Department officers noticed Cross’ car parked in front

of a house. Two officers who were assigned to watch Cross’ car and the house

noticed Cross leave the house carrying a drawstring bag.

[4] Cross got into the front passenger seat of Dornisha Wallace’s (“Wallace”) car

and Wallace drove away from the house. Cross placed the drawstring bag at

his feet when he got into the car. In the first two to three minutes that Cross

1 IND. CODE § 35-47-2-1.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019 Page 2 of 6 was in the car, Wallace saw him bend down near the bag, but she could not see

what he was doing.

[5] Police officers followed the car, and they noticed Cross moving around in the

passenger seat and looking out the back window at them. Cross told Wallace to

pull over into a parking lot to see what the officers would do. As the officers

surrounded Wallace’s car, Cross exited the vehicle without being asked to do

so. One of the officers placed Cross in the back of a police car. When an

officer asked Cross what he would find in the car, Cross responded, “maybe a

gun.” (Tr. at 64). A search of the vehicle revealed a handgun under the front

passenger’s seat. The gun’s grip was facing forward, and the gun was located

next to Cross’ bag.

[6] Wallace told the officers that the gun did not belong to her and that she had

never seen it. She further explained that she had just purchased the car two to

three days before and she had cleaned and vacuumed under all the seats at that

time. She had found nothing under the seats. Cross was the first person to ride

in the front passenger seat.

[7] A jury convicted Cross of Level 5 felony carrying a handgun without a license.

He now appeals.

Decision [8] Cross argues that there is insufficient evidence to support his conviction for

Level 5 felony carrying a handgun without a license. Specifically, he contends

that there is insufficient evidence that he constructively possessed the handgun. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019 Page 3 of 6 Our standard of review for sufficiency of the evidence claims is well settled.

We consider only the probative evidence and reasonable inferences supporting

the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not

reweigh the evidence or judge witness credibility. Id. We will affirm the

conviction unless no reasonable fact finder could find the elements of the crime

proven beyond a reasonable doubt. Id. The evidence is sufficient if an

inference may be reasonably drawn from it to support the verdict. Id. at 147.

[9] In order to convict Cross of Level 5 felony carrying a handgun without a

license, the State had the burden to prove beyond a reasonable doubt that Cross

carried a handgun without a license in a vehicle or on or about his person after

having previously been convicted of a felony within fifteen years. See IND.

CODE § 35-47-2-1. To satisfy these elements, the State must prove the

defendant had either actual or constructive possession of the handgun. Negash

v. State, 113 N.E.3d 1281, 1291 (Ind. Ct. App. 2018). Actual possession occurs

when a person has direct physical control over an item, whereas constructive

possession occurs when a person has the intent and the capability to maintain

dominion and control over the item. Id.

[10] To fulfill the intent element of constructive possession, the State must

demonstrate the defendant’s knowledge of the presence of the firearm. Griffin v.

State, 945 N.E.2d 781, 783 (Ind. Ct. App. 2011). In cases where the accused

has exclusive possession of the premises on which the contraband is found, an

inference is permitted that he knew of the presence of the contraband and was

capable of controlling it. Id. see also Causey v. State, 808 N.E.2d 139, 143 (Ind.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019 Page 4 of 6 Ct. App. 2004) (explaining that knowledge may be inferred from exclusive

dominion and control over the premises containing the firearm). Where the

control is non-exclusive, knowledge may be inferred from evidence of

additional circumstances pointing to the defendant’s knowledge of the presence

of the firearm. Causey, 808 N.E.2d at 143. These additional circumstances may

include: (1) incriminating statements made 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. Deshazier v. State, 877

N.E.2d 200, 206 (Ind. Ct. App. 2007), trans denied. To fulfill the capability

requirement of constructive possession, the State must demonstrate that the

defendant had the ability to reduce the firearm to his personal possession.

Griffin, 945 N.E.2d at 783.

[11] Here, our review of the evidence reveals that the handgun was under Cross’ seat

next to his bag and easily within his reach. Cross was therefore able to reduce

the handgun to his personal possession. Further, although Cross did not have

exclusive possession of the vehicle where the handgun was found, there were

additional circumstances proving Cross’ knowledge of the presence of the

handgun and his ability to control it. First, Cross made an incriminating

statement to the officers that they might find a gun in Wallace’s car. The police

officers noticed Cross moving around in the car and looking back at them. The

gun was found under the front passenger seat next to Cross’ bag. Cross was the

first person to ride in the front passenger seat. Together, the incriminating

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019 Page 5 of 6 statement, Cross’ furtive gestures, and his close proximity to the gun

demonstrate the additional circumstances required to show his knowledge of

the handgun and ability to maintain dominion and control over it.

[12] Based on this evidence, we find that there was sufficient evidence that Cross

constructively possessed the handgun to support his conviction for carrying a

handgun without a license. Cross’ arguments are simply a request that we

reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146.

[13] Affirmed.

Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019 Page 6 of 6