MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Jan 21 2020, 7:56 am
regarded as precedent or cited before any
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
Steven Knecht                                            Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                               Attorney General of Indiana
Lafayette, Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lawrence Lucas,                                          January 21, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1264
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D01-1704-F4-20



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1264 | January 21, 2020                Page 1 of 6
[1]   Lawrence Lucas appeals his conviction of Level 4 felony unlawful possession of

      a firearm by a serious violent felon.1 He raises one issue on appeal, which is

      whether the State presented sufficient evidence that he committed the crime.

      We affirm.



                                Facts and Procedural History
[2]   On May 11, 2016, around 9:30 a.m., the Lafayette Police Department

      responded to a report of battery. Police arrived at an apartment complex and

      found Bernard Brooks, who was bleeding from his mouth, had swelling around

      his face and eyes, and had blood on his clothing. Brooks explained that he was

      in a relationship with Lucas’ mother and that he would sometimes stay at

      Lucas’ house after arguments with Lucas’ mother. Brooks reported that

      overnight he had fallen asleep on the floor in Lucas’ house and that sometime

      thereafter, Lucas’ mother and sister began punching him and hitting him with a

      baseball bat. They also took Brooks’ wallet and cellphone. Brooks managed to

      get out the back door and run for safety, but he left some of his possessions

      behind in Lucas’ home. Brooks described to police where the attack occurred.

      The police located the home, finding Lucas and another male there. Lucas

      denied police access to the home to investigate the allegations.




      1
          Ind. Code § 35-47-4-5(c).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1264 | January 21, 2020   Page 2 of 6
[3]   Police obtained a warrant to search Lucas’ home and garage. While searching

      the garage, police noticed a chemical smell and a large object covered with a

      blanket in the backseat of a vehicle. Upon closer inspection, the police

      recognized the items as raw materials for manufacturing synthetic marijuana.

      The police then obtained a second search warrant authorizing a search for

      evidence of suspected narcotics activity. During the second search, police

      found 9mm ammunition and .45 caliber ammunition in a kitchen drawer. In

      addition, the police found a loaded .25 caliber Beretta handgun in a bedroom

      dresser drawer.


[4]   The State charged Lucas with Level 4 felony unlawful possession of a firearm

      by a serious violent felon, Level 6 felony dealing in a synthetic drug, 2 and Class

      A misdemeanor possession of a synthetic drug. 3 After a bench trial, 4 the trial

      court found Lucas guilty of all charges. The court imposed an eight-year

      sentence for Level 4 felony unlawful possession of a firearm by a serious violent

      felon and a two-year sentence for Level 6 felony dealing in a synthetic drug, and

      it vacated the conviction of Class A misdemeanor possession of a synthetic

      drug. The court ordered the sentences be served consecutively, for a cumulative




      2
          Ind. Code § 35-48-4-10.5(c)(2).
      3
          Ind. Code § 35-48-4-11.5(c).
      4
       Before trial, Lucas challenged the constitutionality of the police search of the vehicle inside the garage,
      which search provided justification for the second search warrant, the execution of which uncovered the
      Beretta in Lucas’ bedroom. The trial court granted Lucas’ motion to suppress, and the State appealed that
      decision. On appeal, we reversed the grant of that motion and remanded for trial. State v. Lucas, 112 N.E.3d
      726, 731 (Ind. Ct. App. 2018).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1264 | January 21, 2020                 Page 3 of 6
      sentence of ten years. The court further ordered three years suspended to

      supervised probation and seven years served executed, five of those seven years

      served in the Department of Correction and two served in community

      corrections.



                                 Discussion and Decision
[5]   Lucas challenges only his conviction of possession of a firearm by a serious

      violent felon. When reviewing claims of insufficient evidence, we examine the

      evidence presented in a light most favorable to the verdict. Pierce v. State, 29

      N.E.3d 1258, 1265 (Ind. 2015). Assessment of witness credibility and

      evaluation of the evidence is the role of the fact-finder. Wright v. State, 828

      N.E.2d 904, 905-906 (Ind. 2005). We give deference to the trial court and

      affirm the verdict unless there is “no substantial evidence of probative value to

      support it.” Pierce, 29 N.E.3d at 1265. We consider evidence sufficient if a

      conclusion can be “reasonably drawn from it to support the verdict.” Drane v.

      State, 867 N.E.2d 144, 146 (Ind. 2007).


[6]   Lucas asserts there is insufficient evidence supporting his conviction because

      the State failed to prove he constructively possessed the firearm found in the

      dresser drawer in the bedroom of his home. To determine whether a defendant

      constructively possessed an item, we consider a two-prong test adopted by our

      Indiana Supreme Court. The first prong is whether the defendant had “the

      capability to maintain dominion and control over the item.” Gray v. State, 957



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1264 | January 21, 2020   Page 4 of 6
      N.E.2d 171, 174 (Ind. 2011). The second prong asks whether the defendant

      had “the intent to maintain dominion and control over [the item].” Id.


[7]   The first prong, capability, may be demonstrated by showing the defendant had

      a possessory interest in the location where the firearm was found. Id.

      Capability may be inferred even when the possessory interest is non-exclusive.

      Id. Lucas concedes he had a possessory interest in the house, as he was renting

      and residing in the house. Lucas had been staying at the house by himself for

      several months because his wife and children had moved out. Lucas slept and

      watched television in the bedroom where the firearm was found, and the

      firearm was in the same unlocked dresser drawer as the remotes Lucas used for

      the television. This evidence demonstrates Lucas had the capability to take the

      firearm into his possession. See Massey v. State, 816 N.E.2d 979, 990 (Ind. Ct.

      App. 2004) (exclusive control of the location of firearms unnecessary to

      establish constructive possession because of the ability to take the guns into

      personal possession).


[8]   The second prong, intent to maintain dominion and control, may be shown by

      the State demonstrating the defendant knew the gun was in the house. See

      Gray, 957 N.E.2d at 175 (discussing possession of marijuana). Knowledge may

      be inferred from either exclusive dominion over the premises or control of the

      specific location where the firearm was found. See id. If control of the location

      is not exclusive, the State must produce additional evidence establishing the

      defendant’s knowledge of the firearm. See id. Such additional evidence may

      include incriminating statements, the location of the firearm being within the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1264 | January 21, 2020   Page 5 of 6
       defendant’s view, the location being in proximity to the defendant, or the

       intermingling of the firearm with other possessions owned by the defendant.

       See id. at 175.


[9]    The firearm was kept in Lucas’ bedroom, in an unlocked dresser drawer that

       also housed the remote controls for the television that sat on the dresser. Lucas’

       wife testified Lucas would watch television in the bedroom. It is reasonable to

       infer Lucas would use the remotes to watch television and he would have

       noticed the firearm whenever he used the remotes. This evidence supports

       determining Lucas knew about the presence of the gun, such that he had both

       the capability and the intent to maintain dominion and control over the gun.

       See Carnes v. State, 480 N.E.2d 581, 587 (Ind. Ct. App. 1985) (finding the

       contraband was located where “a reasonable person could reasonably infer

       from the evidence that neither of the two adults was trying to hide contraband

       from the other”).



                                               Conclusion
[10]   The State presented sufficient evidence to support Lucas’ conviction of Level 4

       felony unlawful possession of a firearm by a serious violent felon. As that is the

       only conviction Lucas challenges, we affirm the trial court’s judgment.


[11]   Affirmed.


       Crone, J., and Pyle, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1264 | January 21, 2020   Page 6 of 6
