MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                         Feb 23 2016, 8:42 am
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 L. Joley                                           Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marquen Coker,                                           February 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1506-CR-744
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Judge

                                                         The Honorable Robert E. Ross,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         02D04-1504-CM-1227



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 1 of 19
                                       Statement of the Case
[1]   Marquen Coker appeals his convictions, following a bench trial, for carrying a

      handgun without a license, as a Class A misdemeanor, and possession of

      marijuana, as a Class B misdemeanor. Coker raises two issues on appeal,

      which we restate as follows:

              1. Whether the trial court erred in admitting into evidence the
                 marijuana found on Coker’s person and the handgun found in
                 the car he drove because they were found as a result of an
                 unconstitutional search and seizure.


              2. Whether there was sufficient evidence that the item found in
                 the car Coker drove was a handgun as defined under Indiana
                 law.


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


                                 Facts and Procedural History
[3]   On April 6, 2015, Coker was driving his mother’s car on Suttenfield Street in

      Fort Wayne when he pulled in front of Officer Gary Hensler’s marked squad

      car. Officer Hensler followed Coker for approximately one block before Coker

      stopped at his brother’s house. Officer Hensler circled the block because he

      believed Coker’s behavior of exiting his car quickly and standing in the front

      yard of a house was odd. Officer Hensler watched Coker from a distance and

      followed Coker when he returned to his car approximately five minutes later.

      Officer Hensler then observed Coker use an alley as a throughway, in violation

      of a city ordinance. Coker stopped his car in the parking lot of a barber shop

      Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 2 of 19
      and got out of the car just as Officer Hensler pulled up behind Coker’s car and

      activated his emergency lights. Officer Hensler observed that Coker got out of

      the car quickly and that Coker looked nervous, fearful, and sweaty.


[4]   The area in which Coker was located was a high-crime area, with a high

      incidence of gun use and drug activity. Because of this fact and Coker’s

      behavior, Officer Hensler instructed Coker to stop, and Coker immediately did

      so. Officer Hensler approached Coker, detained him, handcuffed his hands

      behind his back, and then conducted a pat down of Coker “for officer safety.”

      Tr. at 10. Three or four people came out of the barber shop toward which

      Coker had been walking when he was stopped. Another officer, Officer Taylor,

      arrived at the scene while Officer Hensler had Coker detained.


[5]   During his pat down of Coker, Officer Hensler felt what he believed from his

      past experience as a police officer to be two pill bottles in Coker’s pants pocket.

      Officer Hensler removed the pill bottles and observed a green, leafy substance in

      a transparent, amber-colored pill bottle. Officer Hensler then opened the other

      bottle, which was opaque, and discovered marijuana in it. Officer Hensler then

      smelled the odor of marijuana coming from the car Coker had been driving. He

      then handed over custody of Coker to Officer Taylor, who placed Coker in the

      back seat of his squad car while Officer Hensler conducted a search of the

      interior of Coker’s car. Officer Hensler found a handgun under the driver’s seat

      of the car. Officer Hensler took photographs of the gun, read Coker his Miranda

      rights, and asked Coker questions. Coker stated at this point that the car was



      Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 3 of 19
      his mother’s car, the gun belonged to his friend, and Coker needed the gun for

      protection.


[6]   On April 7, 2015, the State charged Coker with carrying a handgun without a

      license, as a Class A misdemeanor, and possession of marijuana, as a Class B

      misdemeanor. On May 12, 2015, Coker filed a motion to suppress both the

      marijuana and the gun on the theory that they had been obtained pursuant to

      an unconstitutional search and seizure. Coker waived his right to a jury trial

      and, on June 2, 2015, the trial court heard evidence on the motion to suppress

      and the criminal charges.


[7]   At the bench trial, Officer Hensler testified as the sole witness for the State. The

      trial court denied the motion to suppress and proceeded on the criminal

      charges. The State admitted into evidence, over Coker’s objections, the pill

      bottles and marijuana found on Coker’s person and the handgun found in the

      car Coker was driving. The court found Coker guilty on both charges and

      sentenced him to an aggregate term of 180 days of home detention. This appeal

      ensued.


                                     Discussion and Decision
                Issue One: Fourth Amendment and Article 1, Section 11 claims

                                              Standard of Review


[8]   Coker argues on appeal that Officer Hensler’s seizure and search of Coker and

      the car he drove violated his rights under both the Fourth Amendment to the


      Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 4 of 19
      United States Constitution and Article 1, Section 11 of the Indiana

      Constitution. He originally challenged the admission of the marijuana and

      handgun in a motion to suppress. However, rather than taking an interlocutory

      appeal on the denial of his motion, he proceeded to a complete bench trial.


              “Thus, the issue is ... appropriately framed as whether the trial
              court abused its discretion by admitting the evidence at trial.”
              Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003).
              Our standard of review of rulings on the admissibility of evidence
              is essentially the same whether the challenge is made by a pre-
              trial motion to suppress or by trial objection. Ackerman v. State,
              774 N.E.2d 970, 974-75 (Ind. Ct. App. 2002), trans. denied. We
              do not reweigh the evidence, and we consider conflicting
              evidence most favorable to the trial court’s ruling. Collins v. State,
              822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied.
              However, we must also consider the uncontested evidence
              favorable to the defendant. Id. In this sense, the standard of
              review differs from the typical sufficiency of the evidence case
              where only evidence favorable to the verdict is considered. Fair
              v. State, 627 N.E.2d 427, 434 (Ind. 1993).


      Widduck v. State, 861 N.E.2d 1267, 1269 (Ind. Ct. App. 2007).


                                           Search and Seizure of Coker


[9]   Coker first challenges the constitutionality of Officer Hensler’s seizure and

      search of Coker’s person;1 these actions, he claims, went beyond a mere traffic




      1
       Coker does not challenge Officer Hensler’s initial traffic stop, nor should he. Under both the Fourth
      Amendment and Article 1, Section 11 of the Indiana Constitution, “[i]t is well settled that a police officer
      may stop a vehicle when he observes a minor traffic violation.” Kroft v. State, 992 N.E.2d 818, 821 (Ind. Ct.
      App. 2013). Here, it is undisputed that Officer Hensler pulled Coker over for using an alley as a throughway,

      Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016           Page 5 of 19
       stop and, instead, constituted an arrest2 and search incident to arrest without

       probable cause. Both federal and state constitutional provisions prohibit a

       search without a warrant unless certain narrow exceptions apply. State v.

       Cunningham, 26 N.E.3d 21, 25 (Ind. 2015). One such exception is a search

       incident to a valid arrest.3 Id.


[10]   However, a Fourth Amendment claim is analyzed differently than a claim

       under Article 1, Section 11 of the Indiana Constitution. Under the Fourth

       Amendment, if a search is conducted without a warrant, the State bears the

       burden of proving an exception to the warrant requirement. See, e.g., Swanson v.

       State, 730 N.E.2d 205, 208 (Ind. Ct. App. 2000), trans. denied. An officer may

       briefly detain an individual without a warrant or probable cause if the officer

       observes unusual conduct that leads him to conclude, in light of his experience,

       that criminal activity is afoot. Id. at 209 (citing Terry v. Ohio, 392 U.S. 1 (1968)).

       However, reasonable suspicion must be based upon specific and articulable

       facts, not mere hunches. Id. Under Article 1, Section 11 of the Indiana




       in violation of a local ordinance. Such a traffic stop without a warrant is constitutional, provided it is for a
       short period of time. Id.
       2
          By handcuffing Coker, Officer Hensley effected an arrest. Although “‘there is no bright line for evaluating
       whether an investigative detention is unreasonable,’ Mitchell v. State, 745 N.E.2d 775, 782 (Ind.
       2001), . . . [o]ur supreme court has held that an arrest occurs ‘when a police officer interrupts the freedom of
       the accused and restricts his liberty of movement.’ Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996).” Reinhart
       v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010). Such was clearly the case here, and neither party argues
       otherwise.

       3
         “A search incident to arrest serves important purposes, such as ensuring that the arrestee is unarmed,
       preventing the arrestee from bringing contraband into jail, and preventing the destruction of evidence.”
       Edmond v. State, 951 N.E.2d 585, 592 (Ind. Ct. App. 2011).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016                Page 6 of 19
       Constitution, the State must show that, in the totality of the circumstances of a

       detention, the police behavior was reasonable. Id. This analysis is similar to

       that set forth in Terry; that is, reasonable suspicion will be found where the facts

       known to the officer at the time of the stop and the reasonable inferences drawn

       therefrom would cause an ordinarily prudent person to believe that criminal

       activity has occurred or is about to occur. Davis v. State, 858 N.E.2d 168, 172

       (Ind. Ct. App. 2006).


[11]   The prerequisites for conducting a lawful pat-down due to officer safety

       concerns are also well-settled. A police officer may conduct a pat-down search

       for weapons if the officer reasonably believes, based on specific reasonable

       inferences drawn from the facts in light of his experience, that the person is

       armed and dangerous. Swanson, 730 N.E.2d at 210. A generalized concern of

       officer safety, alone, will not support a lawful frisk. Id. As the Supreme Court

       has stated:

               The police officer is not entitled to seize and search every person
               whom he sees on the street or of whom he makes inquiries.
               Before he places a hand on the person of a citizen in search of
               anything, he must have constitutionally adequate, reasonable
               grounds for doing so. In the case of the self-protective search for
               weapons, [the police officer] must be able to point to particular
               facts from which he reasonably inferred that the individual was
               armed and dangerous.


       Sibron v. New York, 392 U.S. 40, 64 (1968) (citing Terry, 392 U.S. 1).




       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 7 of 19
[12]   Here, the only reasonable suspicion of unlawful activity to have occurred at the

       time of the search was a minor traffic violation. Such suspicion clearly justified

       the initial stop of Coker, Kroft, 992 N.E.2d at 821. However, a routine traffic

       stop “does not automatically justify a non-consensual pat-down without

       reasonable suspicion that the subject may be armed and dangerous.”

       Cunningham, 26 N.E.3d at 26 (citing Knowles, 525 U.S. at 117-118).


[13]   Officer Hensler testified that the reasons he detained and searched Coker were

       because of Coker’s nervous behavior and because they were in a high-crime and

       high-drug area. However, these reasons do not support a warrantless search of

       Coker. “[I]ndividuals who enter these ‘high drug areas’ do not lose their Fourth

       Amendment protections; there must be something about the individual or the

       situation which causes the officer to reasonably believe that a certain individual

       carries a weapon.” Swanson, 730 N.E.2d at 211. Thus, this court held in

       Swanson that the facts that the defendant had been detained in a high drug area

       and had his hands in his pockets were “not sufficient to cause a reasonable

       officer to fear for his safety” and conduct a pat-down. Id. Moreover,

       “[b]ecause it is not at all unusual that a citizen may become nervous when

       confronted by law enforcement officials, other evidence that a person may be

       engaged in criminal activity must accompany nervousness before the

       nervousness will evoke suspicion necessary to support detention.” State v.

       Quirk, 842 N.E.2d 334, 341 (Ind. 2006). The facts that Coker looked nervous

       and was in a high-crime and high-drug area do not support a reasonable

       inference that would cause an ordinarily prudent person to believe that Coker


       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 8 of 19
       had engaged in or was about to engage in criminal activity or that he was armed

       and dangerous.


[14]   However, the trial court found that Officer Hensler also detained and searched

       Coker because he had smelled marijuana coming from Coker’s car. In its

       decision on the motion to suppress, the trial court stated that “when the

       Defendant did stop the car and the Officer approached . . . and I’m quoting

       now from the Officer’s testimony, ‘As I was encountering the Defendant, I

       noticed a strong odor of burned marijuana coming from the vehicle.’” 4 Tr. at

       35. The trial court concluded that Officer Hensler’s testimony was that he

       smelled the marijuana coming from the car before handcuffing and searching

       Coker, and, based on that conclusion, the trial court denied the motion to

       suppress.


[15]   But the record shows that the trial court’s conclusion was erroneous because it

       took Officer Hensler’s statement out of the context and order of his testimony.

       During the State’s direct examination, Officer Hensler testified that, upon

       pulling his car up behind Coker’s car in the barbershop parking lot, Coker

       exited his car quickly, and he appeared nervous, and they were in a high crime

       area. The direct examination of Officer Hensler continued as follows:




       4
         The trial court misquoted Officer Hensler’s testimony; his actual testimony was as follows: “As I was
       encountering the Defendant, the door was still open to the vehicle and I smelled a strong odor of marijuana
       coming from inside the vehicle.” Tr. at 11.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016           Page 9 of 19
               Q.      What happened at that point in time, sir?


               A.      Because of the way he was acting and this area where I
                       initially observed him, in this area now is a very high
                       crime area of the city, with a lot of narcotics dealing and
                       gun fire, shots fired, homicides are very high in this area. I
                       approached him and I detained him at this point.


       Id. at 9-10 (emphases added).


[16]   After discussing the weather conditions at the time of the stop and the fact that

       Coker was sweating when it was cold outside, the direct examination continued

       as follows:


               Q.      So at that point in time, you said you detained the
                       Defendant?


               A.      Yes.


               Q.      How did you proceed at that point, sir?


               A.      For officer safety[,] I handcuffed him.


               Q.      Okay, and what did you do next?


               A.      I patted him down for officer safety.


       Id. at 10–11 (emphases added). The State then questioned Officer Hensler

       about what he found in his pat-down of Coker. Officer Hensler testified that he




       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 10 of 19
       found pill bottles with what appeared to be marijuana in them. The direct

       examination continued as follows:


               Q.      Did you make any observations regarding the vehicle at
                       that point in time?


               A.      As I was encountering the Defendant, the door was still
                       open to the vehicle and I smelled a strong odor of
                       marijuana coming from inside the vehicle.


       Id. at 11 (emphases added). Officer Henlser then testified about his training and

       experience with marijuana, and then the direct examination continued as

       follows:


               Q.      How did you proceed at that point in time, Sir?


               A.      The Defendant was given over to Officer Taylor, and
                       placed in the back of his squad car for being detained for
                       this investigation, and at that point [I] conducted a
                       Probable Cause search of the interior of the vehicle.


               Q.      And did you find anything at that point in time?


               A.      Underneath the driver’s seat, I located a handgun.


       Id. at 12 (emphasis added).


[17]   At no point did Officer Hensler state that he detained and patted-down Coker

       because he had smelled marijuana emanating from Coker’s vehicle. To the

       contrary, it is clear from Officer Hensler’s testimony that he handcuffed and


       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 11 of 19
       patted down Coker before he smelled marijuana coming from the car. He

       testified that he approached Corker and then he immediately detained, cuffed,

       and searched him. The prosecutor then asked Officer Hensler if he made any

       observations about the vehicle at that time, that is, after he had searched Coker

       and found the pill bottles. The officer testified that the car door was “still” open

       and that he smelled marijuana coming from the car. Tr. at 11. At that point,

       Coker was already in custody.


[18]   Officer Hensler’s use of the word “still” confirms the timing and order of events

       as set out in his testimony. The word “still” denotes the passage of time. Here,

       the word “still” indicates that it was only after he had arrested Coker that

       Officer Hensler turned his attention to the vehicle, found that the door was

       “still” open, and smelled the marijuana. Officer Hensler testified that he then

       handed Coker over to the other officer to be placed in the squad car while he

       searched the vehicle. Thus, there is no conflict in the evidence. Rather, Officer

       Hensler’s testimony consistently demonstrates that he had hand-cuffed,

       detained, and searched Coker before he smelled marijuana coming from the

       vehicle. Viewing this uncontested evidence in favor of the defendant, as we

       must, Widduck, 861 N.E.2d at 1269, it is clear that the officer smelled the

       marijuana only after he had arrested and searched Coker. Under the Fourth

       Amendment, an officer must have reasonable suspicion of criminal activity

       before making an investigative stop, and he must have reasonable suspicion that

       the suspect is armed and dangerous before conducting a pat down for weapons

       under Terry v. Ohio. Arizona v. Johnson, 555 U.S. 323, 327 (2009) (citing Terry,


       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 12 of 19
       392 U.S. 1). Likewise, Article 1, Section 11 only permits a stop and frisk after

       the officer has formed reasonable suspicion. Mitchell v. State, 745 N.E.2d 775,

       787 (Ind. 2001). And the totality of the circumstances test of Article 1, Section

       11 does not mean that the trier of fact in the first instance, or this court on

       appeal, can re-order the facts to establish reasonable suspicion for a stop and

       frisk after-the-fact.


[19]   Further, on the motion to suppress, the State did not argue that Officer Hensler

       smelled marijuana before seizing and searching Coker’s person. Rather, in its

       closing statement on the motion, the State cited the following evidence as the

       grounds for the investigatory stop and pat-down: Coker had exited his vehicle

       immediately upon being stopped, he was in a high crime area, he appeared

       nervous, and he tried to distance himself from the vehicle. The State then

       concluded, “[a]t that point, the reasonable suspicion was certainly there for the

       Terry stop for the officer’s safety. At that point, he pulled out the first pill bottle.”

       Tr. at 31-32 (emphases added). In arguing the facts which led to Coker’s arrest

       the State made no reference to the smell of marijuana.


[20]   In sum, Officer Hensler did not testify, and the State did not contend in

       opposing the motion to suppress, that the smell of marijuana emanating from

       the vehicle was a basis for the detention and the pat-down frisk of Coker.

       Neither the trial court nor this court may rely on such extrinsic evidence as a

       post hoc justification for the initial Terry stop and search of Coker’s person. See,

       e.g., Query v. State, 745 N.E.2d 769, 771 (2001) (noting that neither the trial

       court ruling on a motion to suppress nor an appellate court reviewing that

       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 13 of 19
       decision will consider post hoc justifications for a search). Officer Hensler’s

       seizure and pat-down of Coker was not supported by reasonable suspicion that

       Coker was armed and dangerous or had engaged, or would engage, in criminal

       activity. Therefore, the search of his person violated both the federal and state

       constitutions.

                                       Search of the Vehicle Coker Drove


[21]   Coker also alleges that the search of the car he drove was unconstitutional. He

       is mistaken. Rather, regardless of when Officer Hensler smelled marijuana

       coming from the car, that smell was sufficient to justify a search of the car.


               [W]hen a trained and experienced police officer detects the
               strong and distinctive odor of burnt marijuana coming from a
               vehicle, the officer has probable cause to search the vehicle. That
               is true under both the Fourth Amendment of our federal
               constitution and under Article 1, Section 11 of the Indiana
               Constitution.


       State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002), trans. denied. This is

       also true for the smell of raw marijuana. Miller v. State, 846 N.E.2d 1077, 1082

       (Ind. Ct. App. 2006), trans. denied. The search of the car driven by Coker was

       constitutional.

                                          Suppression of the Evidence


[22]   Having determined that the search of Coker’s person violated both the United

       States and the Indiana Constitutions, we next turn to whether the evidence



       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 14 of 19
       unconstitutionally seized from Coker’s person must be suppressed.5 We

       conclude that, while the Fourth Amendment does not mandate the suppression

       of this evidence, Article 1, Section 11, as interpreted by Indiana’s appellate

       courts, does mandate the evidence be suppressed.


[23]   Under the Fourth Amendment, “the inevitable discovery exception to the

       exclusionary rule permits the introduction of evidence that eventually would

       have been located had there been no error.” Shultz v. State, 742 N.E.2d 961, 965

       (Ind. Ct. App. 2001) (quotations and citations omitted), trans. denied. Because

       the search of Coker’s car was constitutional, at the point Officer Hensler found

       the gun he would have had probable cause to arrest Coker and search him

       incident to that arrest. And, during that legal search, the officer inevitably

       would have discovered the marijuana on Coker’s person. Thus, under the

       Fourth Amendment, the marijuana would have been admissible because it

       eventually would have been located even had there been no original misconduct

       by the police. See, e.g., Nix v. Williams, 467 U.S. 431, 444 (1984).


[24]   However, “the inevitable discovery doctrine has not been adopted as a matter

       of Indiana constitutional law.” Ammons v. State, 770 N.E.2d 927, 935 (Ind. Ct.

       App. 2002), trans. denied. Rather, our supreme court has clearly and firmly held

       that “our state constitution mandates that the evidence found as a result of a[n

       unreasonable] . . . search be suppressed.” Brown v. State, 653 N.E.2d 77, 80



       5
        Of course, since the search of the vehicle was constitutional, the trial court did not abuse its discretion in the
       admission of the evidence seized from the vehicle.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016               Page 15 of 19
       (Ind. 1995). Accordingly, the inevitable discovery doctrine is not available to

       validate the evidence of marijuana recovered from Coker’s person as a result of

       the unjustified pat-down. Id. And the State does not argue otherwise in this

       appeal. Thus, because the search of Coker’s person was unconstitutional, the

       marijuana found on his person must be suppressed under Article 1, Section 11

       of the Indiana Constitution.


                                 Issue Two: Sufficiency of the Evidence

[25]   Coker contends that his conviction for carrying a handgun without a license is

       not supported by sufficient evidence. Our standard of review under such claims

       is clear and well-settled:

               In reviewing the sufficiency of the evidence, we examine only the
               probative evidence and reasonable inferences that support the
               verdict. We do not assess witness credibility, nor do we reweigh
               the evidence to determine if it was sufficient to support a
               conviction. Under our appellate system, those roles are reserved
               for the finder of fact. Instead, we consider only the evidence
               most favorable to the trial court ruling and affirm the conviction
               unless no reasonable fact-finder could find the elements of the
               crime proven beyond a reasonable doubt.


       Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and

       quotation marks omitted).


[26]   To prove that Coker carried a handgun without a license in violation of Indiana

       Code Section 35-47-2-1 (West 2015), the State had to provide evidence that a

       handgun was found in the vehicle and that Coker had control of either the

       weapon or of the vehicle with knowledge of the weapon’s presence in the
       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 16 of 19
       vehicle. Thurman v. State, 793 N.E.2d 318, 320 (Ind. Ct. App. 2003) (citing

       Klopfenstein v. State, 439 N.E.2d 1181, 1184 (Ind. Ct. App. 1982)). Once the

       State demonstrates that a defendant had possession of a handgun on his body or

       in a vehicle, it then becomes the defendant’s burden to demonstrate that he had

       a valid license to carry the handgun. Wilson v. State, No. 49A02-1409-CR-673,

       2015 WL 4496244, *9 (Ind. Ct. App. July 23, 2015).


[27]   Here, the evidence shows that Officer Hensler found a gun under the driver’s

       seat of the car Coker was driving, and the gun was placed in such a way that a

       driver could reach down below the seat to access it. Knowledge of the gun’s

       presence in the car “can be inferred from the fact that the item was found in a

       place under [the defendant’s] dominion and control.” Klopfenstein v. State, 439

       N.E.2d at 1185. Moreover, when Officer Hensler asked Coker about the car

       and the gun,6 Coker stated that the car belonged to his mother, the gun

       belonged to a friend, and Coker needed the gun for protection. Clearly, Coker

       was aware that he was driving a car with a handgun in it. This evidence is

       sufficient to prove that a gun was found in the car over which Coker had

       control, and he knew of the weapon’s presence in the car, and he intended to

       transport the gun in the car. Moreover, Coker provided no evidence that he

       had a license to carry a handgun or firearm. Therefore, the evidence was




       6
           Officer Hensler read Coker his Miranda rights before questioning Coker.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 17 of 19
       sufficient to support Coker’s conviction of carrying a handgun without a

       license.


[28]   Still, Coker claims the evidence was insufficient because the State did not prove

       that the item they found was a “handgun” as defined under Indiana law, i.e.,

       Indiana Code Section 35-47-1-6 (2015).7 The evidence presented showed that:

       1) Officer Hensler, who is familiar with firearms, testified that the gun he found

       under the passenger seat of the car Coker drove was a handgun; 2) the handgun

       bore a serial number as a unique identifier; 3) a continuity report identified the

       item found in the car as a firearm, specifically a .40 caliber Glock; and 4) the

       gun itself was shown in court and admitted into evidence. This is sufficient

       evidence that the gun found in the car driven by Coker was a handgun pursuant

       to Indiana law.


                                                       Conclusion

[29]   Officer Hensler conducted an illegal pat-down of Coker; therefore, we reverse

       the trial court’s admission of the evidence seized from that pat-down and the

       conviction that resulted from the admission of that evidence. However, the

       search of the car driven by Coker was constitutional; therefore, we affirm the

       trial court’s admission of the handgun seized from the car.




       7
         That section defines a handgun as “any firearm (1) designed or adapted so as to be aimed and fired from
       one hand, regardless of barrel length; or (2) any firearm with: (A) a barrel less than sixteen (16) inches in
       length; or (B) an overall length of less than twenty-six inches.” Ind. Code § 35-47-1-6 (2015). “Firearm” is
       defined as “any weapon: (1) that is: (A) capable of expelling; or (B) designed to expel; or (2) that may readily
       be converted to expel; a projectile by means of an explosion.” I.C. § 35-47-1-5.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016            Page 18 of 19
[30]   Affirmed in part and reversed in part.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-744| February 23, 2016   Page 19 of 19
