Donnis K. Wilkerson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 24, 2015
• Docket: 48A05-1410-CR-481
• Status: Published

Opinion

MEMORANDUM DECISION Aug 24 2015, 9:26 am Pursuant to Ind. Appellate Rule 65(D), 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 David W. Stone, IV Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana

George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Donnis K. Wilkerson, August 24, 2015

Appellant-Defendant, Court of Appeals Cause No. 48A05-1410-CR-481 v. Appeal from the Madison Superior Court Cause No. 48C03-1311-FB-2164 State of Indiana, Appellee-Plaintiff. The Honorable Thomas Newman, Jr., Judge

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015 Page 1 of 9 Case Summary [1] Donnis Wilkerson appeals his conviction for Class B Felony unlawful

possession of a firearm by a serious violent felon. We affirm.

Issues [2] The issues before us are:

I. whether there is sufficient evidence to support Wilkerson’s conviction; and

II. whether the prosecutor committed prosecutorial misconduct and fundamental error in closing argument.

Facts [3] The evidence most favorable to the conviction is that, on November 6, 2013,

Lieutenant John Branson of the Anderson Police Department inspected a high

crime business known as the VIP Lounge, which is a strip club. On that

evening, around midnight, Lieutenant Branson observed a new Cadillac

Escalade parked in an unusual spot against a fence in the back of the parking

lot. Lieutenant Branson noticed that the vehicle was running with a person

sitting in the driver’s seat whose head began to “slink down further and further”

as Lieutenant Branson got closer “[l]ike he was trying to avoid detection . . . .”

Tr. p. 314.

[4] Lieutenant Branson parked his marked police car and walked over to the driver

side of the Escalade. Lieutenant Branson detected “a very strong odor of

Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015 Page 2 of 9 marijuana coming from in the vehicle.” Id. at 315. Lieutenant Branson then

had the driver, Tremayne McPhaul, step out of the vehicle. While Lieutenant

Branson was speaking to McPhaul, Roger Randolph, whose mother owned the

Escalade, arrived on the scene requesting the keys to the vehicle. Lieutenant

Branson called in additional officers for help before inspecting the vehicle.

[5] A few minutes later, Officer Michael Lee arrived on the scene and began

inspecting the vehicle. Officer Lee had to use his flashlight to see into the

vehicle. As Officer Lee was looking through the windows next to the third row

seat, he spotted a gun in plain view lying in the middle of the seat. The weapon

was a Glock forty-caliber hand pistol that was fully loaded. Wilkerson was

discovered hiding on the floor of the vehicle “scrunched down between the

seats” next to the third row seat. Id. at 323. Wilkerson was so close to the

weapon that “his head and his hands would have been right by where the gun

was.” Id.

[6] An additional handgun was discovered by officers in the front seat of the

vehicle. McPhaul admitted to placing the handgun in the passenger seat before

he got out of the vehicle. McPhaul also admitted that marijuana found in the

Escalade driver’s door belonged to him. At trial, Randolph testified that he did

not carry guns or place the guns or marijuana in the vehicle. No other

individuals were in the vehicle that night other than McPhaul, Randolph, and

Wilkerson.

Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015 Page 3 of 9 [7] On November 7, 2013, Wilkerson was charged with Count I, Class D felony

receiving stolen property, and Count II, Class B felony unlawful possession of a

firearm by a serious violent felon. The State filed a motion to dismiss Count I,

which the trial court granted. Wilkerson stipulated that he qualified as a serious

violent felon under Indiana law but challenged whether he possessed a firearm.

He was subsequently found guilty of Count II. Wilkerson was sentenced to

twenty years and now appeals.

Analysis I. Sufficiency of Evidence

[8] Wilkerson challenges the sufficiency of the evidence supporting his conviction

for unlawful possession of a firearm by a serious violent felon. When reviewing

the sufficiency of evidence, we examine only the probative evidence and

reasonable inferences which support a guilty verdict. Lock v. State, 971 N.E.2d

71, 74 (Ind. 2012). We do not assess witness credibility, nor do we reweigh

evidence to determine the sufficiency to support a conviction. Id. Under our

appellate system, those roles are not reserved for the appellate court, but

exclusively for the finder of fact. Id. Our role is to consider only the evidence

most favorable to the conviction and to affirm the conviction unless no

reasonable fact-finder could conclude the elements of the crime were proven

beyond a reasonable doubt. Id. Evidence is sufficient provided that an

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

Circumstantial evidence alone is sufficient for a conviction. Naas v. State, 993

N.E.2d 1151, 1152 (Ind. Ct. App. 2013). “Reversal is appropriate only when

Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015 Page 4 of 9 reasonable persons would not be able to form inferences as to each material

element of the offense.” Id.

[9] Wilkerson argues that he did not possess the firearm. Constructive possession

is at issue here. It is well-settled in Indiana that when constructive possession is

asserted, the State must show the defendant had knowledge of the contraband.

Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). This knowledge may be

inferred from the defendant’s exclusive dominion and control over the premises

containing the contraband or, if the control is non-exclusive, evidence of

additional circumstances showing the defendant had knowledge of the presence

of the contraband. Henderson, 715 N.E.2d at 835-36. The various factors that

can lead to constructive possession are:

(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 the contraband with other items owned by the defendant. Id. at 836.

[10] Here, it was not possible for Wilkerson to flee the scene because he would have

been instantly detected by Lieutenant Branson while trying to escape. It is

evident by Wilkerson’s actions that he was making an attempt to avoid being

detected by officers. Wilkerson was buried down between the seats of a vehicle

that had windows so darkly tinted that officers were unable to see inside

without their flashlights. Not only was there no indication that someone else

remained inside the vehicle, but Wilkerson made no attempt to make his Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015 Page 5 of 9 presence known. While Lieutenant Branson was speaking with McPhaul,

Wilkerson did not open any doors to the vehicle or “volunteer to let [the

officers] know he was there[.]” Tr. p. 322. Instead Wilkerson was physically

removed from the car by Lieutenant Branson. We cannot agree with Wilkerson

that his being hunched down between the seats had no logical connection with

the gun that was found. Wilkerson argued he “wasn’t hiding based on the fact

that he had a weapon that day. He had a warrant.” Id. at 362. Although we

do not dispute there was a warrant for Wilkerson’s arrest, to assert that he was

hiding solely for this reason is pure speculation. It is reasonable to assume that

the weapon found near his head was related to his attempt to avoid detection.

[11] Along with the obvious furtive nature of his actions to imply his knowledge of

possessing the handgun, the weapon was not only closest in proximity to

Wilkerson, but it was also in plain sight. It is undisputed that the gun was in

plain sight “laying right in the middle of the seat.” Id. at 290. Not only was the

gun in plain sight, but the particular placement was on the third row of seats

where Wilkerson was attempting to hide from police. “His head and his hands

would have been right by where the gun was.” Id. at 323. The gun was so close

to Wilkerson’s hands that officers testified within “a moments notice he could

have grabbed it.” Id. at 335. The gun was not close in proximity to anyone

other than Wilkerson. Furthermore, McPhaul admitted possessing the

marijuana and another handgun discovered in the vehicle and Randolph,

whose mother owned the car, denied ever possessing guns or placing any in the

Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015 Page 6 of 9 vehicle. The evidence most logically points to Wilkerson possessing the

handgun.

[12] This case is distinguishable from Henderson, upon which Wilkerson relies. In

Henderson, the driver of the car owned the guns, had permits for both guns, and

notified the officer that guns were in the vehicle. The guns were also found in

the middle of the car near the defendant and driver. Due to the fact that the

driver owned the gun and had a gun permit and the location of the gun was

equally close to both men, there was insufficient evidence to suggest the

defendant exercised dominion. Henderson, 715 N.E.2d at 838. Here, by

contrast, no one had a permit for the gun and the gun was mere inches away

from Wilkerson and nowhere close to the driver. There is sufficient evidence to

support Wilkerson’s conviction.

II. Prosecutorial Misconduct

[13] We now assess whether the prosecutor committed prosecutorial misconduct

and fundamental error in closing argument. Wilkerson asserts that he was

denied a fair trial by the prosecutor’s improper closing argument. He further

asserts that the prosecutor made improper statements unsupported by evidence

such as the cost of Glock pistols, the deadly injuries associated with different

types of ammunition, and asking the jurors to speculate why Wilkerson would

have the pistol, in order to play on the emotional fears of jurors.

[14] The standard of review for a claim of improper closing argument was stated by

our supreme court in Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014):

Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015 Page 7 of 9 In reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) “whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected” otherwise. The gravity of peril is determined by the probable persuasive effect of the

misconduct on the jury’s decision, not on the amount of impropriety of the

conduct. Carter v. State, 956 N.E.2d 167, 169 (Ind. Ct. App. 2011).

[15] Wilkerson’s trial counsel did not object to the prosecutor’s closing argument.

When presented on appeal, a claim of prosecutorial misconduct without a

contemporaneous trial objection cannot succeed unless the defendant

establishes both prosecutorial misconduct and additional grounds for

fundamental error. Id. at 170. For prosecutorial misconduct to be

fundamental error, it must make a fair trial impossible or amount to obvious

blatant violations of basic and elementary principles of due process and present

an undeniable and substantial potential for harm. Id. Misconduct occurs when

a prosecutor requests the jury to convict a defendant for any reason other than

his or her guilt. Id.

[16] Wilkerson points to several statements made by the prosecutor during closing

argument. Specifically, the prosecutor said:

So two (2) different purposes, but you know what they both will kill you. Now what’s he doing out there with this glock . . . . [H]ave you ever shopped for a weapon. Have you ever priced them? This is no Saturday night special. This will run you five hundred ($500.00) dollars any where you want to buy it. *****

Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015 Page 8 of 9 You don’t have to worry about thing [sic] until the guns, until the money and drugs come together. When the money and the drugs come together carry a pistol, and we got two (2) of them. ***** Cause guys like McPhaul and this make it dangerous. Tr. pp. 348-49, 350, 367.

[17] These statements were not based on any actual evidence and were used purely

to inflame the jury. Although we agree that these statements were

inappropriate, give their context, the overwhelming evidence of Wilkerson’s

guilt, and that the fact that they constituted a relatively brief part of the entire

closing argument, we decline to find that these statements amounted to

fundamental error. The prosecutor’s additional statements regarding the

doctrine of constructive possession and other arguments were entirely proper

based on fair comments on the law and evidence presented.

Conclusion [18] Wilkerson has not established that there is insufficient evidence to support his

conviction or that the prosecutor committed fundamental error during closing

argument. We affirm.

[19] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015 Page 9 of 9