      MEMORANDUM DECISION
                                                                       Aug 04 2015, 9:36 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
      Michael R. Fisher                                         Gregory F. Zoeller
      Marion County Public Defender                             Attorney General of Indiana
      Indianapolis, Indiana
                                                                Katherine Modesitt Cooper
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kimtai Wilkerson,                                        August 4, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1501-CR-18
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable David Cook, Judge
                                                               Cause No. 49F07-1403-CM-13243
      Appellee-Plaintiff,




      Bradford, Judge.



                                            Case Summary
[1]   On March 13, 2014, Speedway police received a tip regarding a suspicious

      vehicle parked in an apartment complex with three passengers. Appellant-


      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-18 | August 4, 2015     Page 1 of 10
      Defendant Kamtai Wilkerson was seated in the rear passenger-side seat of the

      vehicle. After investigating the vehicle, officers discovered a loaded handgun on

      the floorboards of the rear passenger-side of the vehicle. Wilkerson was

      charged and convicted of Class A misdemeanor possession of a handgun

      without a license.


[2]   Prior to trial, the trial court held a deposition of one of the arresting officers

      who was scheduled to be deployed on active military duty overseas before

      Wilkerson’s trial date. Wilkerson initially appeared at the courthouse for the

      deposition but left before the deposition began. The officer’s deposition

      testimony was later admitted at trial. On appeal, Wilkerson claims that he was

      deprived of his federal and state constitutional rights to confront the witness

      and that the evidence is insufficient to support his conviction. We affirm.



                            Facts and Procedural History
[3]   On the night of March 13, 2014, Speedway Police Officers Robert Fekkes and

      Scott Highland were dispatched to investigate a suspicious vehicle parked at the

      Stanford Court apartment complex. Upon arriving at the apartments, the

      officers identified the vehicle, parked their patrol cars about forty feet away, and

      approached the vehicle on foot. As the officers approached, they “could see

      smoke coming from the windows” and “immediately detect[ed] the odor of

      burnt marijuana.” Tr. p. 209.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-18 | August 4, 2015   Page 2 of 10
[4]   Officer Fekkes approached the passenger side of the car and asked Kimble

      Wilkerson, who was sitting in the front passenger seat, to exit the vehicle. As

      Kimble exited the vehicle, Officer Fekkes observed a clear plastic baggy

      hanging out from Kimble’s jacket pocket containing what appeared to be

      marijuana, at which point Officer Fekkes placed Kimble in handcuffs. Upon

      searching Kimble, Officer Fekkes found another small baggy of marijuana in

      his pocket. Officer Fekkes then asked Wilkerson, who was seated directly

      behind Kimble, to step out of the vehicle and placed him in handcuffs. At the

      same time, Officer Highland had placed the driver, Devon Thompson, in

      handcuffs. 1


[5]   Officer Fekkes began searching the vehicle and discovered a fully-loaded .38

      caliber handgun sitting in plain view on the back passenger-side floorboard

      “laying right where [Wilkerson’s] feet would have been sitting.” Tr. p. 213.

      After unloading the gun, Officer Fekkes Mirandized2 Kimble, Wilkerson, and

      Thompson. None of three individuals had a license to carry a handgun and all

      three denied having any knowledge of the gun.


[6]   Appellee-Plaintiff the State of Indiana (“the State”) charged Wilkerson with

      Class A misdemeanor carrying a handgun without a license. Officer Highland

      was scheduled to be deployed for active military duty overseas in mid-




      1
        Officer Fekkes noted that they placed Wilkerson and Thompson in handcuffs in order to safely conduct a
      search of the vehicle incident to Kimble’s arrest. (Tr. 211)
      2
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-18 | August 4, 2015           Page 3 of 10
      November of 2014, prior to the December trial date. The parties agreed that

      Officer Highland’s video deposition could be taken for use at trial “so long as

      the presiding Judge is present to rule on objections, and that [Wilkerson] be

      allowed to be present to confront [Officer Highland].” App. p. 26. Officer

      Highland’s deposition was scheduled for October 21, 2014 in Marion Superior

      Court 7. Wilkerson arrived at the courthouse prior to the deposition but left

      before the deposition began. The record is unclear as to why Wilkerson left.

      Wilkerson’s counsel was present for the deposition but objected to proceeding

      without Wilkerson and requested a continuance. The trial court stated

              the defendant is not here pursuant to the Court order, he was here
              earlier, he has left. I have no real evidence as to why he has left. Uh,
              the issue, that he has an opportunity for confrontation that he elects
              not to take it – that opportunity that’s his choice. Um, we do have a
              time sensitive issue, so I am going to order that the deposition proceed.
       Tr. pp. 6-7.


[7]   Wilkerson filed a pre-trial motion in limine to exclude Officer Highland’s

      deposition testimony from being admitted at trial on the grounds that it violated

      Wilkerson’s right of confrontation under the Indiana Constitution. In the

      motion, Wilkerson claims that he informed his counsel that he left the

      deposition early because he was sick. The trial court denied Wilkerson’s

      motion. At trial, the State moved to admit Officer Highland’s deposition and

      Wilkerson objected on the same grounds as outlined in his motion in limine.

      The trial court overruled Wilkerson’s objection and admitted Officer Highland’s

      deposition as evidence.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-18 | August 4, 2015   Page 4 of 10
                                    Discussion and Decision
[8]    On appeal, Wilkerson claims that (1) the trial court abused its discretion by

       admitting Officer Highland’s deposition and (2) that the evidence was not

       sufficient to support his conviction.


                    I. Sixth Amendment Right to Confrontation
[9]    The admission or exclusion of evidence is within the sound discretion of the

       trial court and we will reverse such a decision only if the trial court abused

       that discretion. Kindred v. State, 973 N.E.2d 1245, 1252 (Ind. Ct. App. 2012).

       An abuse of discretion occurs when the trial court’s decision is clearly

       against the logic, facts, and circumstances presented. Id. We do not reweigh

       evidence or judge the credibility of witnesses, and we consider conflicting

       evidence most favorable to the trial court’s ruling. Id.

[10]   The Sixth Amendment to the United States Constitution provides, in part, that

       “In all criminal prosecutions, the accused shall enjoy the right…to be

       confronted with the witnesses against him.”3 Article 1 Section 13 of the Indiana

       Constitution provides that “In all criminal prosecutions, the accused shall have

       the right…to meet the witnesses face to face….”




       3
        We note that Wilkerson did not object to the admission of Highland’s testimony on Sixth Amendment
       grounds at trial or in his motion in limine and so waived that issue for consideration on appeal. Nevertheless,
       as we discuss below, Wilkerson waived his right to confrontation under both the federal and state
       constitutions.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-18 | August 4, 2015                Page 5 of 10
               Neither the Sixth Amendment nor Article 1, Section 13 has been
               interpreted literally to guarantee a criminal defendant all rights of
               confrontation at every trial for every witness; otherwise, no testimony
               of any absent witness would ever be admissible at trial. State v. Owings,
               622 N.E.2d 948, 951 (Ind. 1993). Thus, the right of confrontation
               “must occasionally give way to considerations of public policy and the
               necessities of the case.” Id.
       Mathews v. State, 26 N.E.3d 130, 135 (Ind. Ct. App. 2015). The Indiana

       Supreme Court explained the extent of the Indiana right of confrontation as

       follows:

               The right is not absolute. It is secured where the testimony of a
               witness at a former hearing or trial on the same case is reproduced and
               admitted, where the defendant either cross-examined such witness or
               was afforded an opportunity to do so, and the witness cannot be
               brought to testify at trial again because he has died, become insane, or
               is permanently or indefinitely absent from the state and is therefore
               beyond the jurisdiction of the court in which the case is pending.
               Wilson v. State (1910), 175 Ind. 458, 93 N.E. 609. In such cases, there
               has been a prior face-to-face meeting with the opportunity to cross-
               examine the witness before a trier of fact in the same case and a
               necessity for the reproduction of testimony exists.
       Brady v. State, 575 N.E.2d 981, 987 (Ind. 1991).

[11]           The right of a criminal defendant to confront the witnesses against
               him, however, is an individual privilege relating to the procedure at
               trial and, therefore, may be waived. Brady, 575 N.E.2d at 987. For a
               waiver to be effective, there must be “an intentional relinquishment or
               abandonment of a known right or privilege.” Phillips v. State (1989),
               Ind. App., 543 N.E.2d 646, 648. The determination of whether a
               defendant has waived a constitutional right depends on the
               circumstances of the particular case, including the conduct of the
               defendant. Id.
               Waiver can occur by word or deed. Where there is no showing in the
               record that a defendant is unable to attend a deposition and he makes
               no objection to it proceeding, the defendant waives his right to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-18 | August 4, 2015   Page 6 of 10
               confrontation even if the witness is unable to testify at trial. [Coleman
               v. State, 546 N.E.2d 827, 830 (Ind. 1989)].
       Owings, 622 N.E.2d at 952. In Owings, the Indiana Supreme Court found that

               Owings waived her right of a face-to-face confrontation by failing to
               attend the deposition….[when] the only information in the record
               tending to suggest that Owings’ absence from the deposition was not
               an intentional relinquishment of a known right comes from her
               counsel’s remarks to the trial court during oral argument that he
               thought Owings was prohibited from attending the deposition because
               it took place at the Indiana Youth Center and officials had banned
               Owings from visiting there. However, counsel admitted that no
               request was made that she be allowed to enter the Indiana Youth
               Center or that the deposition be taken elsewhere. Under these
               circumstances, Owings waived her constitutional rights to confront
               [the witness] face to face.
       Id. at 953.


[12]   As in Owings, the only information here that tends to show that Wilkerson did

       not intentionally relinquish his right to confrontation with Officer Highland was

       his counsel’s remarks that Wilkerson “received conflicting information from the

       court staff about whether the deposition” was taking place and/or that

       Wilkerson was ill. Appellant’s Br. p. 6-7. However, according to the

       prosecutor, Wilkerson was informed that the deposition was set to proceed

       before he left. Furthermore, Wilkerson did not inform the trial court that he

       was ill on the day of the deposition or request a continuance for that fact. As

       the trial court noted, there was “no real evidence” to support Wilkerson’s self-

       serving claims. Tr. p. 6. Accordingly, we conclude that the trial court was




       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-18 | August 4, 2015   Page 7 of 10
       within its discretion to conclude that Wilkerson waived his right of

       confrontation.4


                                    II. Sufficiency of Evidence
[13]           When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative evidence
               and reasonable inferences supporting the verdict. It is the fact-finder’s
               role, not that of appellate courts, to assess witness credibility and
               weigh the evidence to determine whether it is sufficient to support a
               conviction. To preserve this structure, when appellate courts are
               confronted with conflicting evidence, they must consider it most
               favorably to the trial court’s ruling. Appellate courts affirm the
               conviction unless no reasonable fact-finder could find the elements of
               the crime proven beyond a reasonable doubt. It is therefore not
               necessary that the evidence overcome every reasonable hypothesis of
               innocence. 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, 146 (Ind. 2007) (internal quotations and

       citations omitted, emphasis in original).


[14]   Indiana Code Section 35-47-2-1(a), as it was in effect at the time the instant

       offenses were committed, provided that “a person shall not carry a handgun in

       any vehicle or on or about the person’s body without being licensed under this




       4
         Wilkerson also argues that Officer Highland was not “unavailable” as a witness for purposes of Indiana
       Evidence Rule 804(a). Although we think it clear that Officer Highland was unavailable, we will not address
       the issue on its merits because Wilkerson waived the issue for consideration on appeal. Wilkerson
       acknowledges in his brief that he had previously conceded that Officer Highland was unavailable within the
       meaning of Rule 804. Furthermore, he made no objection at trial, in his pre-trial motion in limine, or during
       Officer Highland’s deposition that Officer Highland was not unavailable. As such, his argument on this issue
       is waived. See Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct. App. 2014) (A party generally waives appellate
       review of an issue or argument unless that party presented that issue or argument before the trial court).



       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-18 | August 4, 2015              Page 8 of 10
       chapter to carry a handgun.” To convict Wilkerson under this statute, the State

       was required to prove that Wilkerson had actual or constructive possession of

       the handgun.5 The State argues that Wilkerson had constructive possession of

       the handgun.

                  [T]o prove constructive possession, the State must show that a
                  defendant had both the intent and capability to maintain dominion
                  and control over the contraband. [Walker v. State, 631 N.E.2d 1, 2
                  (Ind. Ct. App. 1994)]. Proof of dominion and control may be shown,
                  inter alia, by (1) incriminating statements made by a defendant; (2)
                  attempted flight or furtive gestures; (3) proximity of contraband to the
                  defendant; (4) location of the contraband within the defendant’s plain
                  view; or (5) the mingling of the contraband with other items owned by
                  the defendant. Henderson v. State, 715 N.E.2d 833, 836 (Ind. 1999).
                  When constructive possession is alleged, the State must demonstrate
                  the defendant’s knowledge of the contraband. Id. at 835.
       Bradshaw v. State, 818 N.E.2d 59, 62-63 (Ind. Ct. App. 2004).


[15]   Here, the handgun found by Officer Fekkes was located on the floorboard

       directly behind the front passenger seat “laying right where [Wilkerson’s] feet

       would have been sitting.” Tr. p. 213. Officer Fekkes testified that the gun was

       positioned in a manner that “it would have been highly improbable for the

       driver or the front seat passenger to have any sort of access to the gun.” Tr. p.

       216. Additionally, Thompson testified that as the officers approached the

       vehicle, Wilkerson and Kimble were “freaked out” and “were fidgeting around




       5
           Wilkerson admitted that he did not possess a license to carry a handgun.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-18 | August 4, 2015   Page 9 of 10
       and messing with stuff” as if they were attempting to conceal something. Tr. p.

       235.


[16]   In light of Wilkerson’s close proximity to the handgun, the location of the

       handgun within Wilkerson’s plain view and out of the reach of the other

       passengers, and Wilkerson’s furtive movements, we find that there was

       substantial evidence of probative value from which the jury could reasonably

       infer that Wilkerson had constructive possession of the firearm.


[17]   The judgment of the trial court is affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-18 | August 4, 2015   Page 10 of 10
