MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 05 2018, 8:47 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyree Gilbert, September 5, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-695 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven J. Rubick, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G01-1711-F4-42566
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 1 of 7 [1] Tyree Gilbert appeals his conviction for Level 4 Felony Unlawful Possession of
a Firearm by a Serious Violent Felon,1 arguing that there is insufficient evidence
to support the conviction. Finding the evidence sufficient, we affirm.
Facts
[2] On October 31, 2017, Officer Kenneth Kunz of the Indianapolis Metropolitan
Police Department (IMPD) was monitoring the intersection of 25th Street and
Keystone Avenue in Indianapolis. Kunz and other IMPD officers classified this
location as a “high crime” area due to its high rate of drug and gun violence. As
such, the IMPD heavily patrolled this intersection. Officer Kunz noticed a
white Ford Explorer turning onto Keystone Avenue without signaling, which is
a standard traffic infraction. Gilbert was driving the Ford Explorer. Officer
Kunz began to follow the vehicle, and he called other IMPD officers for
assistance with the pursuit.
[3] Officer Peter Koe, Officer Brandon Brown, and Sergeant Phillip Bulfer
responded to Officer Kunz’s call for back-up. A few minutes later, Sergeant
Bulfer found Gilbert stopped at a red light and turned on his police lights to pull
Gilbert over. Noticing the police lights, Gilbert drove away at a high speed. All
four officers pursued Gilbert via different routes; they planned to create a
perimeter around Gilbert to prevent him from escaping.
1 Ind. Code § 35-47-4-5(c).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 2 of 7 [4] Gilbert’s vehicle eventually hit a concrete rainspout. He immediately exited the
car and fled on foot through a residential backyard. At a certain point, Gilbert
reached a tall corrugated metal fence. Officer Koe, pursuing Gilbert from
behind, watched as he climbed over the fence. Officer Brown also watched as
Gilbert eventually scaled and dropped down on the other side of the fence and
continued to flee on foot. Officer Brown and Officer Matthew Early eventually
caught up with Gilbert and arrested him. Neither Officer Brown nor Officer
Koe saw any other person throughout the entire pursuit. Officer Early searched
Gilbert incident to his arrest and found 3.23 grams of marijuana on his person.
[5] Roughly ten minutes after arresting Gilbert, Officer Brown and other IMPD
officers retraced Gilbert’s foot path to look for evidence. Officer Brown found a
handgun located very close to where Gilbert had landed after climbing the
metal fence. According to IMPD, the gun was “dry,” and it felt “room
temperature” to the touch. Tr. p. 107. The ground around the gun was littered
with debris and was wet while the outside temperature was approximately forty
degrees Fahrenheit. Id.
[6] On November 2, 2017, the State charged Gilbert with Count I, Level 4 felony
unlawful possession of a firearm by a serious violent felon; Count II, Level 5
felony carrying a handgun with a prior felony conviction; Count III, Level 6
felony resisting law enforcement; Count IV, Class A misdemeanor resisting law
enforcement; and Count V, Class B misdemeanor possession of marijuana.
Gilbert waived his right to a jury trial, and his case proceeded to a bench trial
on February 14, 2018.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 3 of 7 [7] On March 2, 2018, the trial court found Gilbert guilty as charged. However, at
sentencing, the judge merged Count II into Count I and merged Count IV into
Count III. The trial court sentenced him to an aggregate term of eight years in
the Department of Correction. Gilbert now appeals.
Discussion and Decision
[8] Gilbert’s sole argument on appeal is that the State failed to present sufficient
evidence to show that he either had actual or constructive possession of the
firearm discovered close to the metal fence. In other words, he challenges the
sufficiency of the evidence supporting his conviction for unlawful possession of
a firearm by a serious violent felon.
[9] When reviewing the sufficiency of the evidence supporting a conviction, we
must affirm if the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005). It is not our job to reweigh the evidence or to judge the credibility of the
witnesses, and we consider any conflicting evidence most favorably to the trial
court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).
[10] To convict Gilbert of Level 4 felony unlawful possession of a firearm by a
serious violent felon, the State was required to prove beyond a reasonable doubt
that Gilbert, a serious violent felon, (1) knowingly or intentionally (2) possessed
a firearm. I.C. § 35-47-4-5(c).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 4 of 7 [11] Possession of a firearm may be either actual or constructive. Causey v. State, 808
N.E.2d 139, 143 (Ind. Ct. App. 2004). An individual has actual possession over
a firearm if he or she “has direct physical control” of the weapon. Grim v. State,
797 N.E.2d 825, 831 (Ind. Ct. App. 2003). An individual has constructive
possession of a firearm when he has the intent and capability to maintain
dominion and control over the contraband. Id.
[12] Moreover, “when constructive possession is asserted, the State must
demonstrate the defendant’s knowledge of the contraband.” Woods v. State, 471
N.E.2d 691, 694 (Ind. 1984). Knowledge may be inferred from either exclusive
dominion and control over the premises containing the firearm, or from
evidence of additional circumstances indicating the defendant’s knowledge of
the presence of the firearm. Id. Proof of this can be shown through (1)
incriminating statements 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; and (5) the “mingling” of a firearm
with other items owned by the defendant. Grim, 797 N.E.2d at 831.
[13] It is clear that Gilbert did not have actual possession of the firearm at the time
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 05 2018, 8:47 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyree Gilbert, September 5, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-695 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven J. Rubick, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G01-1711-F4-42566
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 1 of 7 [1] Tyree Gilbert appeals his conviction for Level 4 Felony Unlawful Possession of
a Firearm by a Serious Violent Felon,1 arguing that there is insufficient evidence
to support the conviction. Finding the evidence sufficient, we affirm.
Facts
[2] On October 31, 2017, Officer Kenneth Kunz of the Indianapolis Metropolitan
Police Department (IMPD) was monitoring the intersection of 25th Street and
Keystone Avenue in Indianapolis. Kunz and other IMPD officers classified this
location as a “high crime” area due to its high rate of drug and gun violence. As
such, the IMPD heavily patrolled this intersection. Officer Kunz noticed a
white Ford Explorer turning onto Keystone Avenue without signaling, which is
a standard traffic infraction. Gilbert was driving the Ford Explorer. Officer
Kunz began to follow the vehicle, and he called other IMPD officers for
assistance with the pursuit.
[3] Officer Peter Koe, Officer Brandon Brown, and Sergeant Phillip Bulfer
responded to Officer Kunz’s call for back-up. A few minutes later, Sergeant
Bulfer found Gilbert stopped at a red light and turned on his police lights to pull
Gilbert over. Noticing the police lights, Gilbert drove away at a high speed. All
four officers pursued Gilbert via different routes; they planned to create a
perimeter around Gilbert to prevent him from escaping.
1 Ind. Code § 35-47-4-5(c).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 2 of 7 [4] Gilbert’s vehicle eventually hit a concrete rainspout. He immediately exited the
car and fled on foot through a residential backyard. At a certain point, Gilbert
reached a tall corrugated metal fence. Officer Koe, pursuing Gilbert from
behind, watched as he climbed over the fence. Officer Brown also watched as
Gilbert eventually scaled and dropped down on the other side of the fence and
continued to flee on foot. Officer Brown and Officer Matthew Early eventually
caught up with Gilbert and arrested him. Neither Officer Brown nor Officer
Koe saw any other person throughout the entire pursuit. Officer Early searched
Gilbert incident to his arrest and found 3.23 grams of marijuana on his person.
[5] Roughly ten minutes after arresting Gilbert, Officer Brown and other IMPD
officers retraced Gilbert’s foot path to look for evidence. Officer Brown found a
handgun located very close to where Gilbert had landed after climbing the
metal fence. According to IMPD, the gun was “dry,” and it felt “room
temperature” to the touch. Tr. p. 107. The ground around the gun was littered
with debris and was wet while the outside temperature was approximately forty
degrees Fahrenheit. Id.
[6] On November 2, 2017, the State charged Gilbert with Count I, Level 4 felony
unlawful possession of a firearm by a serious violent felon; Count II, Level 5
felony carrying a handgun with a prior felony conviction; Count III, Level 6
felony resisting law enforcement; Count IV, Class A misdemeanor resisting law
enforcement; and Count V, Class B misdemeanor possession of marijuana.
Gilbert waived his right to a jury trial, and his case proceeded to a bench trial
on February 14, 2018.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 3 of 7 [7] On March 2, 2018, the trial court found Gilbert guilty as charged. However, at
sentencing, the judge merged Count II into Count I and merged Count IV into
Count III. The trial court sentenced him to an aggregate term of eight years in
the Department of Correction. Gilbert now appeals.
Discussion and Decision
[8] Gilbert’s sole argument on appeal is that the State failed to present sufficient
evidence to show that he either had actual or constructive possession of the
firearm discovered close to the metal fence. In other words, he challenges the
sufficiency of the evidence supporting his conviction for unlawful possession of
a firearm by a serious violent felon.
[9] When reviewing the sufficiency of the evidence supporting a conviction, we
must affirm if the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005). It is not our job to reweigh the evidence or to judge the credibility of the
witnesses, and we consider any conflicting evidence most favorably to the trial
court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).
[10] To convict Gilbert of Level 4 felony unlawful possession of a firearm by a
serious violent felon, the State was required to prove beyond a reasonable doubt
that Gilbert, a serious violent felon, (1) knowingly or intentionally (2) possessed
a firearm. I.C. § 35-47-4-5(c).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 4 of 7 [11] Possession of a firearm may be either actual or constructive. Causey v. State, 808
N.E.2d 139, 143 (Ind. Ct. App. 2004). An individual has actual possession over
a firearm if he or she “has direct physical control” of the weapon. Grim v. State,
797 N.E.2d 825, 831 (Ind. Ct. App. 2003). An individual has constructive
possession of a firearm when he has the intent and capability to maintain
dominion and control over the contraband. Id.
[12] Moreover, “when constructive possession is asserted, the State must
demonstrate the defendant’s knowledge of the contraband.” Woods v. State, 471
N.E.2d 691, 694 (Ind. 1984). Knowledge may be inferred from either exclusive
dominion and control over the premises containing the firearm, or from
evidence of additional circumstances indicating the defendant’s knowledge of
the presence of the firearm. Id. Proof of this can be shown through (1)
incriminating statements 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; and (5) the “mingling” of a firearm
with other items owned by the defendant. Grim, 797 N.E.2d at 831.
[13] It is clear that Gilbert did not have actual possession of the firearm at the time
of his arrest. Officer Early conducted a full search of Gilbert incident to his
arrest and did not discover a firearm in his possession. Therefore, Gilbert did
not have direct, physical control over the firearm. Nevertheless, a reasonable
trier of fact could conclude that Gilbert had constructive possession of the
firearm at the time he was fleeing the police.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 5 of 7 [14] The record reveals that Officer Brown discovered a firearm right where he saw
Gilbert drop down from the fence. While this firearm may not have been
“proximate” to the defendant or his other personal possessions, it was located
precisely at the place where Officer Brown identified Gilbert during his pursuit.
Also, Officer Brown noticed that the firearm was “dry” and felt like it was at
“room temperature” when he discovered it. Tr. p. 107. A metal firearm would
be noticeably colder, wetter, and messier to the touch if it had been laying on
the ground for such a long time on a cold, wet night. Therefore, a reasonable
trier of fact could infer that such a firearm had not been in that location for very
long. Additionally, Gilbert was attempting to escape the police. In other words,
he was “in flight,” and the evidence demonstrates that the firearm could very
well have been within his dominion until he tossed it away.
[15] Moreover, multiple officers witnessed Gilbert’s flight and did not see any other
person during this time. According to the officers’ eyewitness testimony, the
gun was found almost exactly where Gilbert had fallen after he climbed the
metal fence. In looking at the totality of the evidence, a reasonable trier of fact
could conclude that Gilbert had possessed the firearm until he voluntarily
tossed the firearm in flight to avoid having it on his person. Gilbert argues to
the contrary, amounting to a request to reweigh the evidence, which we may
not do.
[16] We hold a reasonable trier of fact could have found Gilbert had constructive
possession of the firearm. In other words, the evidence is sufficient to support
his conviction.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 6 of 7 [17] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018 Page 7 of 7