Dominique Laray Davis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 12, 2020
• Docket: 19A-CR-1182
• 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 2020, 5:59 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Talisha Griffin Lauren A. Jacobsen Marion County Public Defender Agency Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dominique Laray Davis, June 12, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1182 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton Graham, Appellee-Plaintiff. Judge Trial Court Cause No. 49G14-1604-CM-16180

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 1 of 13 Statement of the Case

[1] Dominique Davis (“Davis”) was found guilty of Class A misdemeanor carrying

a handgun without a license.1 On appeal, Davis argues that: (1) there was

insufficient evidence to support his carrying a handgun without a license

conviction; and (2) the trial court abused its discretion when it ordered him to

pay a $50 public defender recoupment fee. We conclude that: (1) the State

presented sufficient evidence to support Davis’ carrying a handgun without a

license conviction; and (2) the trial court abused its discretion by ordering Davis

to pay the public defender fee without first making a finding regarding an ability

to pay. Therefore, we affirm Davis’ conviction, reverse the trial court’s

imposition of the public defender fee, and remand for a determination of Davis’

ability to pay.

[2] We affirm in part, reverse in part, and remand.

Issues

1. Whether there was sufficient evidence to support Davis’ carrying a handgun without a license conviction.

2. Whether the trial court abused its discretion by ordering Davis to pay the public defender fee.

Facts

1 IND. CODE § 35-47-2-1.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 2 of 13 [3] On April 26, 2016, Indianapolis Metropolitan Police Department Officer Carl

Clark (“Officer Clark”) observed a black Honda Pilot with no lights illuminated

drive in front of his police vehicle. Officer Clark ran the license plate on the

vehicle, and the plate number came back as registered to a different vehicle.

Officer Clark then initiated a traffic stop and made contact with the driver,

Davis.

[4] Officer Clark ran Davis’ information and learned that his license had been

suspended. When Officer Clark asked for the vehicle’s registration, Davis

stated that he did not have it. Officer Clark then obtained the vehicle

identification number to ascertain the vehicle’s owner. The officer learned that

the Honda had been reported stolen.

[5] When Officer Clark’s backup arrived, Officer Clark approached the vehicle,

removed Davis and his passenger, and secured them with handcuffs. Officer

Clark performed a pat-down search of Davis and found a bag of marijuana in

Davis’ front right cargo pocket. When Officer Clark searched the vehicle, he

found a loaded handgun underneath the driver’s seat where Davis had been

sitting. The officer then checked to see if Davis had a valid permit for the

handgun, which he did not. Thereafter, Officer Clark read Davis and the

passenger their Miranda rights and interviewed them both. Davis explained that

he had borrowed the vehicle from his brother to go to the store and stated that

he did not know anything about the handgun. Officer Clark then arrested

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 3 of 13 [6] The State charged Davis with Class A misdemeanor carrying a handgun

without a license and Class B misdemeanor possession of marijuana. In early

May 2016, Davis appeared for his initial hearing. Davis informed the court that

he did not know if he would be hiring counsel. Thereafter, the following

colloquy ensued:

THE COURT: Well, how do you support yourself?

DEFENDANT: Uh, right now I’m detailing cars.

***

THE COURT: So here’s what I’m going to do: I’m going to – you make good money detailing cars – how much is it – how much do you get for detailing cars?

DEFENDANT: I initially get $10.00 for every car[.]

(IH. Tr. 6).2 Based on Davis’ income, the trial court did not appoint a public

defender but found that Davis qualified for the Indianapolis Bar Association’s

Modest Means program. The trial court also gave Davis a list of attorneys who

practice in the courtroom on a regular basis and informed Davis that he should

be able to find an attorney who would provide an “acceptable fee waiver.” (IH.

Tr. 8). The trial court set a status of counsel hearing for the end of May.

[7] At the ensuing status of counsel hearing, Davis appeared without counsel.

Davis explained that he had called the attorneys on the list who regularly

2 We have three separate transcript volumes for this appeal. We will refer to the initial hearing transcript as (IH. Tr.), Davis’s status of counsel and pretrial hearings transcript as (Hrg. Tr.), and the bench trial and sentencing transcript as (Tr.).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 4 of 13 practice in the courtroom but that he had not called the Modest Means

program. He also stated that since his last hearing, he had lost his job.

However, Davis informed the court that he had “orientation and also a[n]

interview[]” later in the week. (Hrg. Tr. 5). Thereafter, the trial court

appointed the public defender’s office to represent Davis and ordered that he

pay a $50 public defender recoupment fee.

[8] Nearly three years later, the trial court held a bench trial in April 2019. Officer

Clark testified about conducting the traffic stop, finding the handgun, and

arresting Davis. Officer Clark specifically testified that the loaded handgun

“was right underneath the driver’s seat and very easy to reach. It was not

difficult to find.” (Tr. 10). In his case-in-chief, Davis called his brother,

Alexander Williams (“Williams”), as his only witness. Williams testified that

he had borrowed the vehicle from an acquaintance and that he had allowed

Davis to drive the vehicle the night Davis was stopped. Williams further

testified that he had no knowledge of a handgun ever being in the vehicle.

[9] At the conclusion of evidence, the trial court stated that Davis’ case was about

“constructive possession . . . not about ownership. It’s about whether or not the

evidence was sufficient to establish that [Davis] constructively possessed the

handgun, as required to establish the offense of carrying a handgun without a

license, where he was stopped in a reported stolen vehicle.” (Tr. 32). The trial

court further explained that “[b]ased on the testimony of the officer and based

on the testimony of Mr. Williams, the Court finds that the State has met its

burden, and [the] State has proved its case beyond a reasonable doubt that

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 5 of 13 [Davis] did constructively possess a handgun, carrying a handgun without a

license.” (Tr. 33). The trial court also found Davis guilty of the possession of

marijuana charge.3

[10] The trial court sentenced Davis to three hundred and sixty-five (365) days in the

Marion County Jail, credit for ten (10) days, with three hundred and fifty-five

(355) days suspended to probation for his carrying a handgun without a license

conviction. The trial court sentenced Davis to one hundred and eighty (180)

days, credit for ten (10) days, with the remaining one hundred and seventy

(170) days suspended to probation for his possession of marijuana conviction.

The court ordered both counts to run concurrently. After acknowledging that it

had already assessed the public defender recoupment fee, the trial court

imposed court costs and waived probation fees. Davis now appeals.

Decision

[11] Davis argues that: (1) there was insufficient evidence to support his carrying a

handgun without a license conviction; and (2) the trial court abused its

discretion when it ordered him to pay a $50 public defender recoupment fee.

We will address each argument in turn.

1. Sufficiency of Evidence

3 Davis does not challenge this conviction in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 6 of 13 [12] Davis challenges the sufficiency of the evidence for his carrying a handgun

without a license conviction. Our standard of review for sufficiency of evidence

claims is well-settled. 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). We consider the probative evidence

and reasonable inferences supporting the verdict. Id. 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 may

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

[13] In order to convict Davis of carrying a handgun without a license, the State was

required to prove beyond a reasonable doubt that Davis “carr[ied] a handgun in

any vehicle or on or about [his] body without being licensed under this chapter

to carry a handgun.” I.C. § 35-47-2-1. To prove that a defendant possessed

contraband, the State may prove either actual or constructive possession.

Eckrich v. State, 73 N.E.3d 744, 746 (Ind. Ct. App. 2017), trans. denied. Actual

possession occurs “when a person has direct physical control over [an] item.”

Sargent v. State, 27 N.E.3d 729, 733 (Ind. 2015). When, as in this case, the State

proceeds on a theory of constructive possession, it must show that the

defendant had “both the intent and capability to maintain dominion and

control over the [handgun].” Bradshaw v. State, 818 N.E.2d 59, 62-63 (Ind. Ct.

App. 2004).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 7 of 13 [14] Beginning with the capability prong of constructive possession, the State must

demonstrate that the defendant had the ability to maintain dominion and

control over the handgun; in other words, to reduce the handgun to his personal

possession. Griffin v. State, 945 N.E.2d 781, 783 (Ind. Ct. App. 2011). Here,

Officer Clark testified that he discovered the loaded handgun directly beneath

the driver’s seat that Davis had occupied when the stop had occurred.

Specifically, the officer stated that the handgun “was right underneath the

driver’s seat and very easy to reach.” (Tr. 10). Accordingly, the State presented

sufficient evidence to show that Davis was able to maintain dominion and

control over the handgun.

[15] To prove intent, the State must demonstrate the defendant’s knowledge of the

presence of the firearm. Griffin, 945 N.E.2d at 784. 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. Where, as here, 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 v. State, 808

N.E.2d 139, 143 (Ind. Ct. App. 2004). 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; or (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. In addition to the above

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 8 of 13 circumstances, we have also recognized that the nature of the place in which

the contraband is found can be an additional circumstance that demonstrates

the defendant’s knowledge of the contraband. Johnson v. State, 59 N.E.3d 1071,

1073 (Ind. Ct. App. 2016). These circumstances are non-exhaustive and

ultimately, our question is whether a reasonable fact-finder could conclude from

the evidence that the defendant knew of the nature and presence of the

contraband. Id. at 1074.

[16] The evidence presented at trial established that Davis, with an expired driver’s

license, was driving a stolen vehicle4 when Officer Clark initiated the traffic

stop. The loaded handgun recovered from the vehicle was located underneath

the driver’s seat, which Davis occupied. During the stop, Davis told the officers

that the vehicle was his brother’s and claimed that he did not know anything

about the handgun. At trial, Davis’ brother acknowledged his connection to the

vehicle and stated that he also had no knowledge of a handgun ever being in the

vehicle. Accordingly, there was sufficient evidence of additional circumstances

to support the inference of Davis’ knowledge of the nature and presence of the

handgun.

4 The key additional circumstances having a bearing on Davis’ knowledge of the handgun is the status of the vehicle––it was reported stolen. The location of the handgun under the driver’s seat has meager value in proving Davis’ knowledge of the handgun; even lawful gun owners can place handguns under their seats in automobiles. The vehicle’s status combined with William’s testimony that he knew nothing about the handgun distinguishes this case from other constructive possession cases cited by Davis.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 9 of 13 [17] Based on the above, we conclude that the trial court, as trier of fact, could have

reasonably inferred that Davis had the capability and intent to maintain

dominion and control over the handgun and that he constructively possessed

the handgun. Davis’ arguments are simply a request that we reweigh the

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

2. Public Defender Recoupment Fee

[18] Davis next argues that the trial court abused its discretion when it assessed a

$50 public defender recoupment fee. Specifically, Davis argues that the trial

court did not determine his ability to pay before assessing the public defender

fee. “[D]ecisions to impose restitution, fines, costs, or fees, are generally left to

the trial court’s discretion.” Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct.

App. 2009). An abuse of discretion has occurred when the trial court’s decision

is clearly against the logic and effect of the facts and circumstances before the

court, or the reasonable, probable, and actual deductions to be drawn

therefrom. Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App. 2016). If the

fees imposed by the trial court fall within the parameters provided by statute,

we will not find an abuse of discretion. Berry v. State, 950 N.E.2d 798, 799 (Ind.

Ct. App. 2011).

[19] There are three statutory provisions that allow a trial court to impose fees on a

defendant to offset public defender costs, and the trial court can order

reimbursement under any or a combination thereof. Jackson v. State, 968

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 10 of 13 N.E.2d 328, 333 (Ind. Ct. App. 2012). Both Davis and the State rely on

INDIANA CODE § 33-40-3-6, which provides in pertinent part:

(a) If at any stage of a prosecution for a felony or a misdemeanor the court makes a finding of ability to pay the costs of representation under section 7 of this chapter, the court shall require payment by the person . . . of the following costs in addition to other costs assessed against the person:

(1) Reasonable attorney’s fees if an attorney had been appointed for the person by the court.

(2) Costs incurred by the county as a result of court appointed legal services rendered to the person.

I.C. § 33-40-3-6(a). 5

[20] INDIANA CODE § 33-40-3-6 applies only in those situations where the court

makes a finding of an ability to pay under the enumerated factors in INDIANA

CODE § 33-40-3-7. The factors that the court shall consider include:

(1) the person’s independently held assets and assets available to the spouse of the person or the person’s parents if the person is unemancipated; (2) the person’s income; (3) the person’s liabilities; and (4) the extent of the burden that payment of costs assessed

5 The two other statutes address the trial court’s authority to order a defendant to pay all or part of the costs of counsel provided at public expense. The first, INDIANA CODE § 35-33-7-6, provides that the trial court may impose a public defender supplemental fund fee before completing the initial hearing. Under this statute, the trial court is required to determine whether the defendant is indigent. I.C. § 35-33-7-6(a). If the defendant is found to be indigent, the costs of representation are $100 in felony cases and $50 in misdemeanor cases. I.C. § 35-33-7-6(c). Because the trial court did not find Davis indigent, it is unlikely that the public defender fee was ordered pursuant to INDIANA CODE § 35-33-7-6. The next statute, INDIANA CODE § 33-37-2-3, provides that the trial court may impose part of the costs of representation upon a convicted person, provided that the trial court first determine that such person is not indigent. Further, this Court has held that INDIANA CODE § 33-37-2-3 “explicitly requires an indigency hearing.” Berry, 950 N.E.2d at 801-02. Here, the trial court imposed the public defender fee prior to Davis’ conviction and did not hold an indigency hearing. Thus, this statute is inapplicable.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 11 of 13 under section 6 of this chapter would impose on the person and dependents of the person.

I.C. § 33-40-3-7(a) (format altered). “If, after considering the factors described

in subsection (a), the court determines that the person is able to pay the costs of

representation, the court shall enter a finding that the person is able to pay those

additional costs.” I.C. § 33-40-3-7(b).

[21] Here, the trial court did not specify which statute, or combination of statutes,

authorized the public defender fee it imposed. Our review of the record reveals

that at Davis’ initial hearing, the trial court asked how he supported himself.

Based on his income, the trial court did not appoint a public defender but found

that Davis qualified for the Modest Means program. At the ensuing status of

counsel hearing, the court only inquired about why Davis had returned without

counsel. Davis informed the court that since his last hearing, he had lost his

job. Immediately thereafter, the trial court appointed the public defender’s

officer and imposed the public defender recoupment fee.

[22] Davis is correct that the trial court did not make a finding regarding an ability

to pay. The trial court’s brief inquiry into Davis’ income was too cursory to

satisfy the requirements of finding of an ability to pay under INDIANA CODE §

33-40-3-6 based on the criteria set forth in INDIANA CODE § 33-40-3-7. See

Jackson, 968 N.E.2d at 334 (explaining that “although the trial court asked [the

defendant] if he could work, we cannot say this constituted a sufficient inquiry

into [the defendant’s] ability to pay[]”). Accordingly, the trial court abused its

discretion by imposing the $50 public defender recoupment fee. Therefore, we

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 12 of 13 reverse the trial court’s imposition of the fee and remand for a determination of

Davis’ ability to pay.

[23] Affirmed in part, reversed in part, and remanded.

Bradford, C.J., and Baker, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020 Page 13 of 13