MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be                              Jan 30 2017, 10:16 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
Hilary Bowe Ricks                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Nahamani Sargent,                                        January 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1607-CR-1666
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Jeffrey Marchal,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G06-1502-F2-4742



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1666 | January 30, 2017     Page 1 of 10
                                          Case Summary
[1]   Nahamani Sargent appeals his conviction for unlawful possession of a firearm

      by a serious violent felon. He contends that the State engaged in prosecutorial

      misconduct when it elicited testimony that Sargent remained silent after his

      arrest and then referenced that testimony in its closing argument. He also

      argues that the State failed to present sufficient evidence to prove that he

      possessed a firearm. We affirm.



                            Facts and Procedural History
[2]   At around 3:00 a.m. on February 5, 2015, Indianapolis Metropolitan Police

      Department Officer John Ly pulled over a Ford Expedition that changed lanes

      without signaling. Sargent was driving the truck, Calvin Tunstall was in the

      front passenger seat, and Mark Price was in the back seat behind Tunstall.

      After checking the status of Sargent’s license, Officer Ly gave him a verbal

      warning and told him he was free to go. Sargent sped off and began driving

      over the speed limit, and Officer Ly followed him and pulled him over again.

      Officer Ly and Officer Michael Wright approached the truck with guns drawn

      and ordered the three men to get out. Officer Ly stayed with the three men

      while Officer Wright and other officers looked in the truck to clear it. Officer

      Wright saw a revolver protruding slightly toward the rear passenger-side

      floorboard from underneath the front passenger seat—that is, from underneath

      the seat Tunstall was sitting in, toward the seat Price was sitting in. A

      subsequent search revealed the presence of two additional handguns and a rock

      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1666 | January 30, 2017   Page 2 of 10
      of heroin under the same seat. Neither Officer Ly nor Officer Wright heard any

      of the men make any statements about the guns. After the men were

      transported to a police station, they were advised of their Miranda rights and

      chose to remain silent.

[3]   The State charged Sargent, Price, and Tunstall with possession of heroin and

      carrying a handgun without a license. The State also charged Sargent and Price

      with unlawful possession of a firearm by a serious violent felon (“SVF”). In

      April 2016, Tunstall pled guilty to both of the charges against him. Sargent and

      Price took their cases to a joint jury trial two months later.

[4]   During the State’s case-in-chief, the prosecutor asked Officer Ly, “At any point

      did you hear any of the three suspects make any voluntary statements in regards

      to who owned the gun?” Tr. Vol. II p. 87. Officer Ly answered, “I did not.”

      Id. Later, the prosecutor asked Officer Wright, “Did any of the three occupants

      of that Ford [Expedition] make any voluntary statements as to knowledge of or

      ownership or possession of the firearm that you saw?” Id. at 127. Officer

      Wright replied, “Not to me. No.” Id. The defendants did not object to either

      of the questions or either of the answers.

[5]   During their closing arguments, the defense attorneys repeatedly suggested to

      the jury that Tunstall’s guilty plea (which had been admitted into evidence)

      constituted an admission that the guns and drugs were his. In rebuttal, the

      prosecutor referenced the evidence that none of the three men, including

      Tunstall, said anything after being ordered out of the truck:


      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1666 | January 30, 2017   Page 3 of 10
              And then there is Tunstall, the “I’m guilty.” Right. If he admits
              to it then we don’t have to worry about it. Right. If that is how
              everything worked, that only one person has to admit and the
              rest go free, our laws would be failing us. That’s all there is to it.
              And when does he say it? One of the factors that you guys will
              be given is incriminating statements. We ask officers, “Did
              anybody say anything when they got out of that car?” Nobody
              said a word, including Tunstall. And, in fact, he didn’t say a
              word about his guilt –


      Tr. Vol. III p. 42. This prompted a defense objection based on the United

      States Supreme Court’s decision in Doyle v. Ohio, 426 U.S. 610 (1976), which

      restricts the prosecution’s use of a defendant’s silence. The trial court overruled

      the objection without explanation, and Sargent’s attorney did not request an

      admonishment or a mistrial. The prosecutor then resumed her argument,

      adding that Tunstall “didn’t say a word about his guilt until April 15th, 2016.

      Fourteen months later.” Id.


[6]   The jury found Sargent and Price not guilty of possession of heroin but guilty of

      carrying a handgun without a license. Both then filed waivers of their right to a

      jury trial on the SVF charges. When the parties returned to court for the SVF

      bench trial, the trial court began by addressing a “Motion for Judgment on the

      Evidence or as an Alternative to Set Aside Judgment and Grant a New Trial”

      that Sargent filed that day. Among other things, the motion asked the court to

      revisit the claim that the State violated the defendants’ right to remain silent by

      referencing their post-arrest silence. Sargent’s attorney explained why he did

      not object when the prosecutor asked the officers whether any of the suspects

      had made any statements regarding the guns or when the officers answered:
      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1666 | January 30, 2017   Page 4 of 10
              I don’t believe that the question in and of itself was improper.
              And the reason for that it, that easily one of those officers could
              have said, “Mr. Tunst[a]ll said that guns were his,” which would
              have been admissible because it’s a statement against penal
              interest. However, that’s not what the officer said and that’s not
              what the prosecutor’s answer – or question expected. What the
              answer was, “nobody said anything.” There was no comment
              from any of the defendants. Now, if that was the only thing that
              had occurred during the trial, my personal belief is that would be
              harmless error.


      Tr. Vol. III p. 67. He argued that the objectionable matter occurred—and noted

      that the defense did object—during the State’s closing argument, when “the

      Deputy Prosecutor specifically commented and argued that their silence was

      evidence of guilt.” Id. The trial court denied Sargent’s motion without

      explanation, incorporated the jury trial and the jury’s verdict into the bench-trial

      record, and, after taking evidence of the defendants’ serious violent felonies,

      found both of them guilty on the SVF charges.

[7]   The trial court entered judgments of conviction on the SVF counts but due to

      double-jeopardy concerns did not enter separate convictions on the carrying-a-

      handgun-without-a-license charges and instead “merged” the jury’s guilty

      verdicts on those charges with the SVF convictions.


[8]   Sargent now appeals.1




      1
       Price appealed separately. In another memorandum decision issued today, we affirm Price’s conviction.
      See Mark A. Price v. State, No. 49A02-1607-CR-01665 (Ind. Ct. App. Jan. 30, 2017).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1666 | January 30, 2017      Page 5 of 10
                                  Discussion and Decision
[9]    Sargent raises two issues on appeal. First, he argues that the State committed

       prosecutorial misconduct when it elicited the officers’ testimony that he

       remained silent after his arrest and then mentioned that testimony during its

       closing argument. Second, he challenges the sufficiency of the evidence

       supporting his conviction.


                                 I. Prosecutorial Misconduct
[10]   Sargent first contends that the State’s elicitation and use of evidence that he

       remained silent after being arrested constituted prosecutorial misconduct. See,

       e.g., Peters v. State, 959 N.E.2d 347, 353 (Ind. Ct. App. 2011) (“[P]ost-arrest, pre-

       Miranda silence cannot be used as substantive evidence in the State’s case-in-

       chief.”). Because Sargent did not object when the State introduced the

       challenged evidence, he must establish that its introduction constituted

       fundamental error. See Gavin v. State, 41 N.E.3d 1038, 1042 (Ind. Ct. App.

       2015). The doctrine of fundamental error is an extremely narrow exception to

       the waiver rule that requires the defendant to show that the alleged error was so

       prejudicial to the defendant’s rights as to make a fair trial impossible. Id. The

       defendant must show that, under the circumstances, the trial judge erred in not

       raising the issue sua sponte because the alleged error (a) constituted a clearly

       blatant violation of basic and elementary principles of due process and (b)

       presented an undeniable and substantial potential for harm. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1666 | January 30, 2017   Page 6 of 10
[11]   Sargent must also demonstrate fundamental error with regard to the State’s

       closing argument. While there was a defense objection at that time, and the

       objection was overruled, neither Sargent nor Price then asked for a jury

       admonishment or a mistrial. Our Supreme Court has held that a defendant

       must do so in order to preserve for appeal a claim of closing-argument

       misconduct. See, e.g., Brown v. State, 799 N.E.2d 1064, 1066 (Ind. 2003)

       (“Because Brown failed to request an admonishment or move for a mistrial

       when the trial court overruled his objection, his claim of prosecutorial

       misconduct is procedurally foreclosed and reversal on appeal requires a

       showing of fundamental error.”).

[12]   Sargent has not convinced us that the initial introduction of the silence evidence

       was fundamental error. His attorney not only declined to object when the

       questions were asked and the answers were given but later acknowledged that

       (1) he had a strategic reason for not objecting to the questions (i.e., because the

       answers could have been good for Sargent) and (2) any error in allowing the

       officers’ answers to stand was “harmless,” presumably because a defendant’s

       silence, standing alone, is not necessarily a bad thing. See Tr. Vol. III p. 73

       (Price’s attorney explaining that he did not object to the evidence “because one

       of the elements of constructive possession that the Court instructed is a lack of

       incriminating statements by a defendant”). In light of these acknowledgements,

       we simply cannot say that the trial court was required to step in, sua sponte,

       and strike the silence evidence.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1666 | January 30, 2017   Page 7 of 10
[13]   We reach the same conclusion with regard to the State’s reference to Sargent’s

       silence during its closing argument. First, the State did not cite Sargent’s

       silence as affirmative evidence of his guilt during the initial portion of its

       closing. Second, when the State did mention Sargent’s silence during its

       rebuttal, it was referencing evidence that had come in without objection. And

       third, when the State noted that “[n]obody said a word” after getting out of the

       truck, it did so only in response to the defendants’ closing argument that

       Tunstall’s guilty plea—fourteen months after the traffic stops—amounted to an

       admission that all of the guns were his. The State did not explicitly contend

       that Sargent’s silence proves his guilt or that Sargent “would have said

       something if none of the guns were his.” While it is true that the State easily

       could have, and definitely should have, made its point about Tunstall’s silence

       without also referencing Sargent’s silence, we cannot say that the limited

       reference “made a fair trial impossible.” See Gavin, 41 N.E.3d at 1042.


                               II. Sufficiency of the Evidence
[14]   To obtain a conviction for SVF, the State was required to prove beyond a

       reasonable doubt that Sargent possessed a firearm after having been convicted

       of a crime that qualifies as a “serious violent felony.” Sargent asserts that the

       State failed to prove that he possessed any of the guns that were in the truck. In

       reviewing the sufficiency of the evidence supporting a conviction, we consider

       only the probative evidence and reasonable inferences supporting the verdict.

       Wilson v. State, 39 N.E.3d 705, 716 (Ind. Ct. App. 2015), trans. denied. We do

       not reweigh the evidence or assess witness credibility. Id. We consider

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1666 | January 30, 2017   Page 8 of 10
       conflicting evidence most favorably to the verdict. Id. We will affirm the

       conviction unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Id. It is not necessary that the evidence

       overcome every reasonable hypothesis of innocence. Id. The evidence is

       sufficient if an inference may reasonably be drawn from it to support the

       verdict. Id.


[15]   Where, as here, the State does not allege actual possession, it must establish

       constructive possession. “Constructive possession occurs when somebody has

       the intent and capability to maintain dominion and control over the item.”

       Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Sargent concedes that, as

       the driver of the truck, “he is presumed to have the capability to possess

       everything inside of it.” Appellant’s Br. p. 30 (citing Gee v. State, 810 N.E.2d

       338, 340 (Ind. 2004)). Therefore, the only issue is whether the State proved that

       he had the intent to possess one or more of the guns.

[16]   To prove such intent, the State must demonstrate the defendant’s knowledge of

       the contraband. Henderson, 715 N.E.2d at 835. Knowledge may be inferred

       from the exclusive dominion and control over the premise containing the

       contraband. Id. But when, as in this case, the defendant’s control over the

       premise is non-exclusive, there must be “evidence of additional circumstances

       pointing to the defendant’s knowledge of the presence of the contraband.” Id.

       at 835-36 (quoting Woods v. State, 471 N.E.2d 691, 694 (Ind. 1984)). Examples

       of such circumstances are: (1) incriminating statements by the defendant, (2)

       attempted flight or furtive gestures, (3) proximity of the contraband to the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1666 | January 30, 2017   Page 9 of 10
       defendant, (4) location of the contraband within the defendant’s plain view, and

       (5) the mingling of the contraband with other items owned by the defendant.

       Id.


[17]   Several “additional circumstances” existed in this case. First, the fact that there

       were three guns and three men supports a conclusion that each man possessed

       one gun. Second, although the guns were not under Sargent’s seat, they were

       still in close proximity to him. Third, as the State notes, “the location of the

       guns is consistent with Tunstall’s having hidden his own and Sargent’s gun to

       keep them from being seen either before the first or second stop[.]” Appellee’s

       Br. p. 36. Finally, while the parties dispute whether Sargent’s high-speed exit

       from the first traffic stop actually constituted an attempt to “flee” (since Officer

       Ly acknowledged that he “didn’t have to pursue [Sargent] in any kind of high

       speed chase,” Tr. Vol. II p. 94), the jury was certainly entitled to consider this

       odd behavior as evidence of guilt. All of this evidence supports the jury’s

       finding of constructive possession.

[18]   Affirmed.

       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1666 | January 30, 2017   Page 10 of 10
