MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 25 2018, 9:57 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 Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Lamons Robinson, Jr., April 25, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1711-CR-2590 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Plaintiff. Hawkins, Judge Trial Court Cause No. 49G05-1612-CM-48638
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 1 of 8 Statement of the Case [1] Michael Lamons Robinson, Jr. appeals his conviction, following a bench trial,
for carrying a handgun without a license, as a Class A misdemeanor. He raises
one issue on appeal, namely, whether the State presented sufficient evidence to
support his conviction.
[2] We affirm.
Facts and Procedural History [3] On December 22, 2016, an individual called the Indianapolis Metropolitan
Police Department (“IMPD”) to file a report that gunshots had been fired in the
1900 block of North LaSalle Street. Victoria Robinson, who lives in that area
and is Robinson’s sister, heard the same gunshots. Victoria called Robinson
and asked him to come over. After Robinson had arrived, Robinson and
Victoria got into Victoria’s company car with her infant child and left the area.
Victoria drove the car, and Robinson was in the front passenger seat.
[4] IMPD Officer Cameron Taylor responded to the report that gunshots had been
fired, and he arrived on the scene approximately two minutes later. Officer
Taylor observed Victoria’s vehicle leaving the area. Victoria failed to stop at a
stop sign and failed to properly use her turn signal, so Officer Taylor conducted
a traffic stop. Victoria reported to Officer Taylor that she had heard the
gunshots and that they were leaving the area for their safety.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 2 of 8 [5] Officer Taylor observed that Robinson, with whom Officer Taylor had had
previous encounters, “was looking around, he seemed to be breathing heavily,
was very attentive,” and was “absorbing [his] surroundings more.” Tr. Vol. II
at 10-11. Officer Taylor also noticed that Robinson was “more nervous than
usual.” Id. at 11-12.
[6] A few minutes after Officer Taylor had arrived, IMPD Officers Simone Willis
and William Wogan also arrived at the scene. Officer Willis exited her vehicle
and went to stand by the driver’s side of Victoria’s vehicle. At that point,
Officer Taylor asked Victoria to exit the vehicle and speak with him about the
gunshots she had heard so that Officer Taylor could write a report. After
Victoria exited the vehicle, Officer Willis had an unobstructed view of
Robinson and could see Robinson “completely.” Id. at 27.
[7] Officer Willis observed that Robinson “had his left hand tucked in between the
center console and the passenger seat and he had his body and right arm leaned
over [t]o where I couldn’t see his left hand.” Id. at 29. At that point, Officer
Willis asked Robinson to place both of his hands in his lap. Robinson initially
complied, but he “leaned back over again, tucked his hand back down to the
passenger side console” and he tried to look out of the back of the car. Id.
Officer Willis again asked Robinson to place his hands where Officer Willis
could see them. Robinson yet again placed his hands down between the
passenger seat and the center console. Based on Officer Willis’ experience, she
believed Robinson “was trying to conceal something[.]” Id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 3 of 8 [8] Officer Willis signaled to Officer Wogan, who was standing on the passenger
side of the vehicle, that Robinson was not listening to her. Officer Wogan had
also noticed that Robinson, with whom he had had “quite a few” previous
interactions, “appeared to be visibly nervous.” Id. at 37. After Officer Wogan
heard Officer Willis ask Robinson to show his hands for the second or third
time, Officer Wogan asked Robinson to step out of the vehicle. Robinson did
not comply, and Officer Wogan ultimately had to pull him to get him to leave
the vehicle. Officer Wogan placed Robinson in handcuffs.
[9] At that point, Victoria, with permission from the officers, went to the rear
passenger door of the vehicle so that she could remove her baby. After she
removed her baby, she left the door open and went to stand near Robinson.
With the door to the vehicle open, Officer Wogan was able to see a handgun
underneath Robinson’s seat. After obtaining Victoria’s consent to search her
vehicle, Officer Wogan confirmed that the item under Robinson’s seat was a
handgun. Officer Wogan also noticed that the only other object under
Robinson’s seat was a coin. Officer Taylor confirmed that Robinson did not
have a license to carry a handgun.
[10] The State charged Robinson with one count of carrying a handgun without a
license, as a Class A misdemeanor, and one count of resisting law enforcement,
as a Class A misdemeanor. On October 13, 2017, the trial court held a bench
trial. During the trial, Victoria testified that she does not own a handgun and
did not place a handgun inside the vehicle. She further testified that, in the
month and a half prior to the incident, she had not had any other passengers in
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 4 of 8 her vehicle besides Robinson and her baby. The court found Robinson guilty of
carrying a handgun without a license but not guilty of resisting law
enforcement. The court sentenced Robinson to 180 days, all suspended to
nonreporting probation. This appeal ensued.
Discussion and Decision [11] Robinson contends that the State failed to present sufficient evidence to support
his conviction. Our standard of review on a claim of insufficient evidence is
well settled:
For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the [judgment]. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[12] Indiana Code Section 35-47-2-1(a) (2018) provides 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.” In order to
satisfy these elements, “the State must prove the defendant had either actual or
constructive possession of the handgun.” Deshazier v. State, 877 N.E.2d 200
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 25 2018, 9:57 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 Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Lamons Robinson, Jr., April 25, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1711-CR-2590 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Plaintiff. Hawkins, Judge Trial Court Cause No. 49G05-1612-CM-48638
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 1 of 8 Statement of the Case [1] Michael Lamons Robinson, Jr. appeals his conviction, following a bench trial,
for carrying a handgun without a license, as a Class A misdemeanor. He raises
one issue on appeal, namely, whether the State presented sufficient evidence to
support his conviction.
[2] We affirm.
Facts and Procedural History [3] On December 22, 2016, an individual called the Indianapolis Metropolitan
Police Department (“IMPD”) to file a report that gunshots had been fired in the
1900 block of North LaSalle Street. Victoria Robinson, who lives in that area
and is Robinson’s sister, heard the same gunshots. Victoria called Robinson
and asked him to come over. After Robinson had arrived, Robinson and
Victoria got into Victoria’s company car with her infant child and left the area.
Victoria drove the car, and Robinson was in the front passenger seat.
[4] IMPD Officer Cameron Taylor responded to the report that gunshots had been
fired, and he arrived on the scene approximately two minutes later. Officer
Taylor observed Victoria’s vehicle leaving the area. Victoria failed to stop at a
stop sign and failed to properly use her turn signal, so Officer Taylor conducted
a traffic stop. Victoria reported to Officer Taylor that she had heard the
gunshots and that they were leaving the area for their safety.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 2 of 8 [5] Officer Taylor observed that Robinson, with whom Officer Taylor had had
previous encounters, “was looking around, he seemed to be breathing heavily,
was very attentive,” and was “absorbing [his] surroundings more.” Tr. Vol. II
at 10-11. Officer Taylor also noticed that Robinson was “more nervous than
usual.” Id. at 11-12.
[6] A few minutes after Officer Taylor had arrived, IMPD Officers Simone Willis
and William Wogan also arrived at the scene. Officer Willis exited her vehicle
and went to stand by the driver’s side of Victoria’s vehicle. At that point,
Officer Taylor asked Victoria to exit the vehicle and speak with him about the
gunshots she had heard so that Officer Taylor could write a report. After
Victoria exited the vehicle, Officer Willis had an unobstructed view of
Robinson and could see Robinson “completely.” Id. at 27.
[7] Officer Willis observed that Robinson “had his left hand tucked in between the
center console and the passenger seat and he had his body and right arm leaned
over [t]o where I couldn’t see his left hand.” Id. at 29. At that point, Officer
Willis asked Robinson to place both of his hands in his lap. Robinson initially
complied, but he “leaned back over again, tucked his hand back down to the
passenger side console” and he tried to look out of the back of the car. Id.
Officer Willis again asked Robinson to place his hands where Officer Willis
could see them. Robinson yet again placed his hands down between the
passenger seat and the center console. Based on Officer Willis’ experience, she
believed Robinson “was trying to conceal something[.]” Id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 3 of 8 [8] Officer Willis signaled to Officer Wogan, who was standing on the passenger
side of the vehicle, that Robinson was not listening to her. Officer Wogan had
also noticed that Robinson, with whom he had had “quite a few” previous
interactions, “appeared to be visibly nervous.” Id. at 37. After Officer Wogan
heard Officer Willis ask Robinson to show his hands for the second or third
time, Officer Wogan asked Robinson to step out of the vehicle. Robinson did
not comply, and Officer Wogan ultimately had to pull him to get him to leave
the vehicle. Officer Wogan placed Robinson in handcuffs.
[9] At that point, Victoria, with permission from the officers, went to the rear
passenger door of the vehicle so that she could remove her baby. After she
removed her baby, she left the door open and went to stand near Robinson.
With the door to the vehicle open, Officer Wogan was able to see a handgun
underneath Robinson’s seat. After obtaining Victoria’s consent to search her
vehicle, Officer Wogan confirmed that the item under Robinson’s seat was a
handgun. Officer Wogan also noticed that the only other object under
Robinson’s seat was a coin. Officer Taylor confirmed that Robinson did not
have a license to carry a handgun.
[10] The State charged Robinson with one count of carrying a handgun without a
license, as a Class A misdemeanor, and one count of resisting law enforcement,
as a Class A misdemeanor. On October 13, 2017, the trial court held a bench
trial. During the trial, Victoria testified that she does not own a handgun and
did not place a handgun inside the vehicle. She further testified that, in the
month and a half prior to the incident, she had not had any other passengers in
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 4 of 8 her vehicle besides Robinson and her baby. The court found Robinson guilty of
carrying a handgun without a license but not guilty of resisting law
enforcement. The court sentenced Robinson to 180 days, all suspended to
nonreporting probation. This appeal ensued.
Discussion and Decision [11] Robinson contends that the State failed to present sufficient evidence to support
his conviction. Our standard of review on a claim of insufficient evidence is
well settled:
For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the [judgment]. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[12] Indiana Code Section 35-47-2-1(a) (2018) provides 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.” In order to
satisfy these elements, “the State must prove the defendant had either actual or
constructive possession of the handgun.” Deshazier v. State, 877 N.E.2d 200,
204 (Ind. Ct. App. 2007). Here, the parties dispute only whether Robinson
constructively possessed the gun.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 5 of 8 [13] Evidence of constructive possession is sufficient if the State shows that the
defendant had both the capability and the intent to maintain dominion and
control over the contraband. Hardister v. State, 849 N.E.2d 563, 573 (Ind. 2006).
There is no question that Robinson had the capability to maintain dominion
and control over the firearm inside the car, as it was within his reach. Holmes v.
State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003). Thus, we turn to whether a
reasonable fact-finder could conclude that Robinson had the intent to possess
the firearm.
[14] For such issues, our ultimate question is “whether a reasonable fact-finder
could conclude from the evidence that the defendant knew of the nature and
presence of the contraband.” Johnson v. State, 59 N.E.3d 1071, 1074 (Ind. Ct.
App. 2016). We have previously enumerated several nonexhaustive factors that
the fact-finder might consider where, as here, a defendant’s possession of the
premises in which the contraband is found is not exclusive. These factors
include: (1) incriminating statements by the defendant; (2) attempted flight or
furtive gestures; (3) a drug manufacturing setting; (4) proximity of the defendant
to the drugs or weapons; (5) drugs or weapons in plain view; and (6) location of
the drugs or weapons in close proximity to items owned by the defendant.
Hardister, 849 N.E.2d at 573.
[15] Here, a reasonable fact-finder could have concluded that Robinson knew of the
nature and presence of the firearm under the front passenger seat of the car.
Both Officer Wogan and Officer Taylor, who had had numerous previous
contacts with Robinson, testified that Robinson was more nervous than usual.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 6 of 8 Officer Taylor also testified that Robinson “was looking around, he seemed to
be breathing heavily, he was very attentive” and he was “absorbing [his]
surroundings more.” Id. at 10-11. Further, Officer Willis testified that
Robinson “had his left hand tucked in between the center console and the
passenger seat and he had his body and right arm leaned over [t]o where I
couldn’t see his left hand.” Id. at 29. Officer Willis asked Robinson to place his
hands where she could see them. Robinson initially complied, but he again
placed his hand between the center console and his seat. After the second time
that Officer Willis asked Robinson to show his hands, Robinson asked where
Officer Wogan was located. Officer Willis testified that “normally people
[who] are being squirrely, if you want to say, or looking around trying to see
where other officers are, are trying to conceal firearms.” Id. at 30-31. In sum,
Robinson was nervous, he tried to determine where all of the officers were
located, he repeatedly put his hand between the seat and the console, and he
leaned his body over to the point where officers could no longer see his left
hand.
[16] Based on those furtive gestures, Robinson’s close proximity to the handgun,
and the fact that Officer Wogan could easily see the handgun from outside the
vehicle, there is sufficient evidence to support the trial court’s conclusion that
Robinson constructively possessed the firearm. Robinson’s contentions on
appeal are merely a request that we reweigh the evidence, which we cannot do.
We affirm Robinson’s conviction.
[17] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 7 of 8 Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018 Page 8 of 8