MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 24 2019, 7:40 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Michael R. Fisher Attorney General of Indiana Marion County Public Defender Agency Robert A. Rowlett – Appellate Division Angela Sanchez Indianapolis, Indiana Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA John L. Smith, June 24, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2596 v. Appeal from the Marion County Superior Court State of Indiana, The Honorable Shatrese M. Appellee-Plaintiff. Flowers, Judge Trial Court Cause No. 49G20-1709-F4-34977
Mathias, Judge.
[1] John L. Smith (“Smith”) was convicted in the Marion Superior Court of three
counts of Level 4 unlawful possession of a firearm by a serious violent felon.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019 Page 1 of 6 Smith now appeals arguing that the evidence was insufficient to support his
convictions.
[2] We affirm.
Facts and Procedural History [3] On September 13, 2017, the Indiana State Police executed a search warrant of
an apartment located at 5092 Oakhurst Drive in Marion County. The search
warrant was issued as part of a larger narcotics investigation. The apartment
had been under surveillance for drug activity. During the search of the
apartment, one of the officers observed a man, who was later identified as
Smith, in a white van parked outside.
[4] The officer advised one of the canine officers at the scene to conduct a “free air
sniff” around the exterior of the van. State police trooper Susan Rinschler
(“Trooper Rinschler”) conducted the “free air sniff” with her canine partner.
The canine was trained to detect and locate six different kinds of narcotics. The
canine gave a response, indicating the detection of narcotics inside the van.
Trooper Rinschler questioned Smith, and Smith admitted to smoking
marijuana recently.
[5] Detective Nathaniel Raney (“Detective Raney”) asked Smith to step out of the
van for questioning. Smith informed Detective Raney that he was going to the
apartment complex to do handywork for a man who lived at the apartment
named “Larry.” Tr. p. 25. Detective Raney recognized the name “Larry.” The
name had come up during his time on the investigation and during the search of Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019 Page 2 of 6 the apartment complex. Id. Smith also informed Detective Raney that he owned
the van.1 Id. at 27. The van had also been under police surveillance by Detective
Larry Antic (“Detective Antic”) since August 26, 2017 in connection with the
narcotics investigation, and Smith had been previously photographed entering
the van. Id. at 52–53. Based on these facts, Detective Raney asked Smith for
consent to search the van. Smith consented.
[6] Detective Rusty Slater (“Detective Slater”) and Detective Rick Shoemaker
(“Detective Shoemaker”) searched the van. The detectives discovered
marijuana in the cup holder and a .22 caliber Rough Rider revolver under the
front passenger seat. In the back-storage area of the van, the detectives observed
two black milk crates, a red bag, and several miscellaneous items. The crates
were located immediately behind the driver and passenger seats. The detectives
found a Beretta pistol in one of the milk crates and a High Point pistol in the
red bag. The firearms were accessible from the driver’s seat.
[7] On September 15, 2017, the State charged Smith with three counts of Level 4
felony unlawful possession of a firearm by a serious violent felon (Count I, IV,
V).2 On June 4, 2018, the State amended the information to allege that Smith
was a habitual offender.
1 The van was not registered to Smith. 2 Smith was also charged with one count of Level 5 felony possession of altered handgun (Count II) and one count of Level 5 felony possession of a narcotic drug (Count III). On September 17, 2018, the State sought to dismiss Counts II and III, and the State’s motion was granted.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019 Page 3 of 6 [8] A one-day jury trial commenced on September 17, 2018. At trial, Smith argued
that there was insufficient evidence to show actual or constructive possession of
the firearms since he did not have knowledge that the guns were in the van. The
jury found Smith guilty as charged on all three counts of unlawful possession of
a firearm by a serious violent felon. Smith waived jury trial for the habitual
offender count and entered a plea of guilty.
[9] On October 1, 2018, Smith was sentenced to eight years on each count to be
served concurrently. The sentence was enhanced by six years due to the habitual
offender adjudication. Thus, Smith’s aggregate sentence was fourteen years of
incarceration at the Indiana Department of Correction. Smith now appeals.
Discussion and Decision
[10] Smith contends that the evidence is insufficient to sustain his convictions. When
reviewing a claim of insufficient evidence to sustain a conviction, we consider
only the probative evidence and reasonable inferences supporting the verdict.
Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). In this case, the jury was the fact-
finder. It is the fact-finder’s role, not ours, to assess witness credibility and weigh
the evidence to determine whether it is sufficient to support a conviction. Id. We
will affirm the conviction unless no reasonable fact-finder could have found the
elements of the crime proven beyond a reasonable doubt. Id. It is therefore not
necessary that the evidence overcome every reasonable hypothesis of innocence;
rather, the evidence is sufficient if an inference may reasonably be drawn from it
to support the verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019 Page 4 of 6 [11] To convict Smith of Level 4 felony unlawful possession of a firearm by a serious
violent felon, the State had to show that Smith: (1) knowingly or intentionally;
(2) possessed; (3) a firearm; (4) and that Smith was a serious violent felon. Ind.
Code § 35-47-4-5(c). Smith argues that there was insufficient evidence to
support the conclusion that he knowingly or intentionally possessed the
firearms in the van. We disagree.
[12] Possession of a firearm can be either actual or constructive. Actual possession is
“the direct physical control of the gun,” whereas constructive possession occurs
when an individual has the “intent and capability to maintain dominion and
control over the item.” Houston v. State, 997 N.E.2d 407, 409–10 (Ind. Ct. App.
2013). When constructive possession is asserted, the State must demonstrate the
individual’s knowledge of the contraband. Such knowledge may be “inferred
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 24 2019, 7:40 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Michael R. Fisher Attorney General of Indiana Marion County Public Defender Agency Robert A. Rowlett – Appellate Division Angela Sanchez Indianapolis, Indiana Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA John L. Smith, June 24, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2596 v. Appeal from the Marion County Superior Court State of Indiana, The Honorable Shatrese M. Appellee-Plaintiff. Flowers, Judge Trial Court Cause No. 49G20-1709-F4-34977
Mathias, Judge.
[1] John L. Smith (“Smith”) was convicted in the Marion Superior Court of three
counts of Level 4 unlawful possession of a firearm by a serious violent felon.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019 Page 1 of 6 Smith now appeals arguing that the evidence was insufficient to support his
convictions.
[2] We affirm.
Facts and Procedural History [3] On September 13, 2017, the Indiana State Police executed a search warrant of
an apartment located at 5092 Oakhurst Drive in Marion County. The search
warrant was issued as part of a larger narcotics investigation. The apartment
had been under surveillance for drug activity. During the search of the
apartment, one of the officers observed a man, who was later identified as
Smith, in a white van parked outside.
[4] The officer advised one of the canine officers at the scene to conduct a “free air
sniff” around the exterior of the van. State police trooper Susan Rinschler
(“Trooper Rinschler”) conducted the “free air sniff” with her canine partner.
The canine was trained to detect and locate six different kinds of narcotics. The
canine gave a response, indicating the detection of narcotics inside the van.
Trooper Rinschler questioned Smith, and Smith admitted to smoking
marijuana recently.
[5] Detective Nathaniel Raney (“Detective Raney”) asked Smith to step out of the
van for questioning. Smith informed Detective Raney that he was going to the
apartment complex to do handywork for a man who lived at the apartment
named “Larry.” Tr. p. 25. Detective Raney recognized the name “Larry.” The
name had come up during his time on the investigation and during the search of Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019 Page 2 of 6 the apartment complex. Id. Smith also informed Detective Raney that he owned
the van.1 Id. at 27. The van had also been under police surveillance by Detective
Larry Antic (“Detective Antic”) since August 26, 2017 in connection with the
narcotics investigation, and Smith had been previously photographed entering
the van. Id. at 52–53. Based on these facts, Detective Raney asked Smith for
consent to search the van. Smith consented.
[6] Detective Rusty Slater (“Detective Slater”) and Detective Rick Shoemaker
(“Detective Shoemaker”) searched the van. The detectives discovered
marijuana in the cup holder and a .22 caliber Rough Rider revolver under the
front passenger seat. In the back-storage area of the van, the detectives observed
two black milk crates, a red bag, and several miscellaneous items. The crates
were located immediately behind the driver and passenger seats. The detectives
found a Beretta pistol in one of the milk crates and a High Point pistol in the
red bag. The firearms were accessible from the driver’s seat.
[7] On September 15, 2017, the State charged Smith with three counts of Level 4
felony unlawful possession of a firearm by a serious violent felon (Count I, IV,
V).2 On June 4, 2018, the State amended the information to allege that Smith
was a habitual offender.
1 The van was not registered to Smith. 2 Smith was also charged with one count of Level 5 felony possession of altered handgun (Count II) and one count of Level 5 felony possession of a narcotic drug (Count III). On September 17, 2018, the State sought to dismiss Counts II and III, and the State’s motion was granted.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019 Page 3 of 6 [8] A one-day jury trial commenced on September 17, 2018. At trial, Smith argued
that there was insufficient evidence to show actual or constructive possession of
the firearms since he did not have knowledge that the guns were in the van. The
jury found Smith guilty as charged on all three counts of unlawful possession of
a firearm by a serious violent felon. Smith waived jury trial for the habitual
offender count and entered a plea of guilty.
[9] On October 1, 2018, Smith was sentenced to eight years on each count to be
served concurrently. The sentence was enhanced by six years due to the habitual
offender adjudication. Thus, Smith’s aggregate sentence was fourteen years of
incarceration at the Indiana Department of Correction. Smith now appeals.
Discussion and Decision
[10] Smith contends that the evidence is insufficient to sustain his convictions. When
reviewing a claim of insufficient evidence to sustain a conviction, we consider
only the probative evidence and reasonable inferences supporting the verdict.
Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). In this case, the jury was the fact-
finder. It is the fact-finder’s role, not ours, to assess witness credibility and weigh
the evidence to determine whether it is sufficient to support a conviction. Id. We
will affirm the conviction unless no reasonable fact-finder could have found the
elements of the crime proven beyond a reasonable doubt. Id. It is therefore not
necessary that the evidence overcome every reasonable hypothesis of innocence;
rather, the evidence is sufficient if an inference may reasonably be drawn from it
to support the verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019 Page 4 of 6 [11] To convict Smith of Level 4 felony unlawful possession of a firearm by a serious
violent felon, the State had to show that Smith: (1) knowingly or intentionally;
(2) possessed; (3) a firearm; (4) and that Smith was a serious violent felon. Ind.
Code § 35-47-4-5(c). Smith argues that there was insufficient evidence to
support the conclusion that he knowingly or intentionally possessed the
firearms in the van. We disagree.
[12] Possession of a firearm can be either actual or constructive. Actual possession is
“the direct physical control of the gun,” whereas constructive possession occurs
when an individual has the “intent and capability to maintain dominion and
control over the item.” Houston v. State, 997 N.E.2d 407, 409–10 (Ind. Ct. App.
2013). When constructive possession is asserted, the State must demonstrate the
individual’s knowledge of the contraband. Such knowledge may be “inferred
from either the exclusive dominion and control over the premise containing the
contraband, or . . . [if] the control is non-exclusive, with evidence of additional
circumstances pointing to the defendant’s knowledge of the presence of the
contraband.” Ericksen v. State, 68 N.E.3d 597, 601 (Ind. Ct. App. 2017), trans.
denied. We conclude that Smith had “exclusive dominion and control” over the
van containing the three firearms.
[13] Here, Smith was sitting alone in a van outside an apartment complex that was
of interest in a narcotics investigation. Detective Antic testified that he had
photographed Smith on August 26, 2017 driving the van as part of his
surveillance related to the narcotics investigation. Tr. pp. 52–53; Ex. Vol.,
State’s Exs. 16–18. A “free-air sniff” around the exterior of the van indicated
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019 Page 5 of 6 the presence of narcotics inside the van. A search of the van turned up a
revolver under the passenger seat and two more firearms in the back cabin
within arm’s reach. The photographs show that the firearms were loaded and
accessible from the driver’s seat. Ex. Vol., State’s Exs. 5–15. Further, Smith told
the detectives that he owned the van and he was there to do handywork for a
resident at the apartment complex by the name of “Larry,” an individual of
interest in the narcotics investigation. The jury could have made a reasonable
inference that the items inside the van belonged to Smith and Smith had
constructive possession. Smith also had his dog in the back cabin, adding
support to the conclusion that Smith had control over the van. Lastly, there was
no evidence at trial that someone other than Smith had occupied the van on the
day of Smith’s arrest or the days leading up to the arrest.
[14] Smith argues that if he had known that there were firearms in the van, he would
not have given consent to Detective Raney to search the van. Smith’s argument
is nothing more than a request for us to reweigh the evidence and witness
credibility on appeal, which we will not do.
Conclusion [15] Based on the facts and circumstances before us, the evidence presented to the
jury was sufficient to sustain Smith’s conviction. Accordingly, we affirm.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019 Page 6 of 6