Davon Lamont Cummings v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 31, 2018
• Docket: 18A-CR-1774
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 31 2018, 10:52 am regarded as precedent or cited before any 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 Michael R. Fisher Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Davon Lamont Cummings, December 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1774 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Hooper, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G08-1702-CM-4280

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018 Page 1 of 9 [1] Davon Lamont Cummings appeals his conviction for carrying a handgun

without a license as a class A misdemeanor. Cummings raises one issue which

we revise and restate as whether the evidence is sufficient to sustain his

conviction. We affirm.

Facts and Procedural History

[2] On the early morning of January 31, 2017, Officer Daniel Majors of the

Indianapolis Metropolitan Police Department (“IMPD”) observed a grey Buick

with one operating headlight and a plate light which was not in operation.

Officer Majors pulled the vehicle over, approached it from the rear, and when

he was “between five and eight feet away from the car,” he observed “the four

occupants in the vehicle to be making a lot of movements,” which started to

make him nervous. Transcript Volume II at 38, 44. He observed the driver,

Kiera Hidleburg, “reach back to the back seat of the vehicle,” and the front

passenger “did not make any movements at all.” Id. at 38. The rear passenger

on the driver’s side, who was identified as Ms. Johnson, was “looking back” at

Officer Majors and “wasn’t moving her hands at all.”1 Id. Cummings, the rear

passenger on the right side, was “turned towards the center of the vehicle

making movements with his hands that [Officer Majors] couldn’t see.” Id.

1 At trial, when asked to demonstrate his observation of Johnson’s movements for the jurors, Officer Majors stated “[s]he was looking back at me, but I couldn’t tell what her hands were doing.” Transcript Volume II at 38.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018 Page 2 of 9 [3] Upon his approach, Officer Majors detected a strong odor of burnt marijuana

coming from inside the vehicle and, being “nervous about the movements in the

vehicle,” called for backup. Id. at 42. While seated, Cummings verbally

identified himself when he was asked for identification but did not produce

identification. At some point, Officer Majors ordered the occupants to exit the

vehicle because he “conducted a probable cause search for the odor of

marijuana coming from inside the vehicle and movements.” Id. at 41. “[D]ue

to the movement in the back seat,” officers “started with the backseat

passengers first and as [they] removed [Johnson] and [Cummings], there was a

handgun right there in plain view in the center of the backseat.” Id. A second

handgun sat “under a small purse” but “you could still see it.” Id. Officer

Majors found a third handgun “in a holster inside of [Johnson’s] pants.” Id.

Officer Majors arrested Cummings after verifying that he did not have a valid

gun permit. Officer Michael Margetson photographed the scene and collected,

boxed, and transported the handguns to the southeast district roll call, where he

swabbed them for DNA and attempted to collect fingerprints from them.

[4] On February 1, 2017, the State charged Cummings with carrying a handgun

without a license as a class A misdemeanor. At the jury trial, Officer Majors

was positioned so that he faced away from the jurors and was asked to

“demonstrate . . . what movements [he] observed” from the occupants of the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018 Page 3 of 9 vehicle, including Cummings.2 Id. at 38. When the court admitted an aerial

diagram of the vehicle, Officer Majors marked where each of the occupants of

the vehicle had been seated and was asked to show the location of the handgun

in the holster inside of Johnson’s pants. Officer Margetson indicated that he

was not able to collect fingerprints from the handguns, the prosecutor asked if

that was uncommon, and Officer Margetson stated: “Not off of a handgun

because most handguns do not [sic] many smooth surfaces and you really need

a smooth surface to get the fingerprint off because the dust will go into the

grooves and the little pocket marks in the gun and all you’re pulling off is all the

dust that came off into that little area.” Id. at 54. A pair of boxes, which each

contained a handgun, magazine, and bullets, were admitted without objection

as State’s Exhibits 4 and 5. One box, which contained a handgun, magazine,

bullets, and a holster, was admitted without objection as State’s Exhibit 6, and

Officer Margetson indicated that the three handguns were those collected at the

scene. The jury found Cummings guilty as charged, and the court sentenced

him to 365 days with 282 days suspended.

Discussion

[5] The issue is whether the evidence is sufficient to sustain Cummings’s conviction

for carrying a handgun without a license as a class A misdemeanor. When

2 During closing arguments, the prosecutor recounted to the jury Officer Majors’s testimony and stated: “What did Officer Majors tell you? What did he see when he was pulling that car over? He saw [Cummings] make movements sort of passing something over.” Transcript Volume II at 74.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018 Page 4 of 9 reviewing claims of insufficiency of the evidence, we do not reweigh the

evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable

inferences therefrom that support the verdict. Id. The conviction will be

affirmed if there exists evidence of probative value from which a reasonable jury

could find the defendant guilty beyond a reasonable doubt. Id.

[6] Cummings argues that the evidence merely showed that he was a passenger in a

car in which the handguns were found, that Officer Majors never observed him

in possession of such a weapon, and that it cannot be reasonably inferred that

he possessed one. He contends that the most logical inference would be that

Hidleburg, as the driver of the car, was in constructive possession of the

handguns. In response, the State argues that sufficient evidence supports

Cummings’s conviction and that, viewed in the light most favorable to the

verdict, multiple factors establish his dominion and control over the handguns

that were found in the backseat of the car where he was a passenger.

Specifically, the State asserts that Cummings was making furtive gestures and

that he was in close proximity to the handguns that were found in plain view.

It also contends that reasonable inferences support the argument that

Cummings had dominion and control over a handgun, and that “[s]ince there

were three guns found and three people . . . that were making furtive gestures, a

reasonable inference can be made that each gun was controlled by the people

making the furtive gestures.” Appellee’s Brief at 10. It states the fact that

Cummings and Hidleburg both did not have valid gun permits while Johnson

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018 Page 5 of 9 did “also supports this inference and the argument that [Cummings] was giving

the gun in his control to Johnson.” Id.

[7] In its February 1, 2017 charging information, the State cited Ind. Code § 35-47-

2-1 and alleged that Cummings did “knowingly carry a handgun in a vehicle or

on or about his person, without being licensed as required by law.” Appellant’s

Appendix Volume 2 at 16. At the time of the offense, Ind. Code § 35-47-2-1(a)

provided 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,” and Ind. Code § 35-47-2-1(e) provided in part that a “person

who knowingly or intentionally violates this section commits a Class A

misdemeanor.”3

[8] The Indiana Supreme Court held that Ind. Code § 35-47-2-1 is “relatively

broad” and “thus prohibits both carrying a handgun on or about one’s person

and carrying a handgun in a vehicle.” Henderson v. State, 715 N.E.2d 833, 835,

835 n.2 (Ind. 1999).4 When referring to the carrying of a gun on or about one’s

person, the statute proscribes “having on one’s person an unlicensed handgun”

and conviction of the offense does not require proof that the weapon was

3 Subsequently amended by Pub. L. No. 221-2017, § 1 (eff. July 1. 2017). 4 In Henderson, the Indiana Supreme Court addressed a previous version of Ind. Code § 35-47-2-1, which provided: “a person shall not carry a handgun in any vehicle or on or about his person, except in his dwelling, on his property or fixed place of business, without a license issued under this chapter being in his possession.” 715 N.E.2d at 835.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018 Page 6 of 9 conveyed or transported from one place to another. McAnalley v. State, 514

N.E.2d 831, 834 (Ind. 1987).

[9] In Henderson, the Indiana Supreme Court addressed a conviction for carrying a

handgun on or about the defendant’s person and held that “[t]he liberality of

the Indiana text has nevertheless obliged us to examine the sort of evidence

adequate to demonstrate that a defendant ‘carried’ the weapon.” 715 N.E.2d at

835. The Court observed that it had “approached this task, and the similar

question of ‘possessing’ drugs, by characterizing the possession of contraband

as either actual or constructive.” Id. Actual possession occurs when a person

has direct physical control over the item. Id. Constructive possession occurs

when a person has “the intent and capability to maintain dominion and control

over the item.” Id. When constructive possession is asserted, the defendant’s

knowledge may be inferred from either the exclusive dominion and control over

the premises containing the contraband or, if the control is non-exclusive,

evidence of additional circumstances pointing to his knowledge of the presence

of the contraband. Id. at 835-836. The intent element of constructive

possession is shown if the State demonstrates the defendant’s knowledge of the

presence of the contraband. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Proof

of dominion and control has been found through a variety of means, including:

(1) incriminating statements by the defendant, (2) attempted flight or furtive

gestures, (3) proximity of the contraband to the defendant, (4) location of the

contraband within the defendant’s plain view, and (5) the mingling of the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018 Page 7 of 9 contraband with other items owned by the defendant. Henderson, 715 N.E.2d at

836.

[10] The record reveals that, after pulling the vehicle over, Officer Majors

approached it from the rear. When he was “between five and eight feet away

from the car,” he observed “the four occupants in the vehicle to be making a lot

of movements,” which started to make him nervous. Transcript Volume II at

38, 44. Cummings, the rear passenger on the right side, was “turned towards

the center of the vehicle making movements with his hands that [Officer

Majors] couldn’t see.” Id. at 38. Hidleburg reached to the vehicle’s backseat

and Johnson was looking back at Officer Majors. When officers ordered the

occupants to exit the vehicle, they started with the backseat passengers first, and

as they removed Cummings, a handgun was located “right there in plain view

in the center of the backseat” and a second handgun sat “under a small purse”

but remained visible. Id. at 41. At trial, Officer Majors marked where

Cummings sat on an aerial diagram of the vehicle and demonstrated to the jury

his movements.

[11] The jury could reasonably infer from the evidence as set forth above and in the

record that Cummings had knowledge of a handgun as well as the capability

and intent to maintain control over it in light of his movements, his proximity

to it, and other factors. Cummings’s argument is merely a request that we

reweigh the evidence, which we will not do. See Jordan, 656 N.E.2d at 816.

We conclude that, under these circumstances, evidence of probative value exists

from which the jury as a trier of fact could find that Cummings had constructive

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018 Page 8 of 9 possession of the gun and could have found him guilty beyond a reasonable

doubt of carrying a handgun “on or about his person” without a license as a

class A misdemeanor. See Grim v. State, 797 N.E.2d 825, 831 (Ind. Ct. App.

2003) (finding sufficient circumstantial evidence from which the jury could have

concluded beyond a reasonable doubt that defendant constructively possessed a

handgun found in close proximity to him within a vehicle in which he was a

passenger).

Conclusion

[12] For the foregoing reasons, we affirm Cummings’s conviction for carrying a

handgun without a license as a class A misdemeanor.

[13] Affirmed.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018 Page 9 of 9