MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Jan 30 2017, 8:50 am

regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         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
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana

                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark A. Price,                                           January 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1607-CR-1665
        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-F2-4731



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1665 | January 30, 2017       Page 1 of 10
                                          Case Summary                    1




[1]   Mark Price appeals his conviction for unlawful possession of a firearm by a

      serious violent felon. He contends that the State failed to present sufficient

      evidence that he possessed a firearm and that the trial court committed

      fundamental error by allowing the State to present and rely on evidence that he

      remained silent after his arrest. 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. Nahamani Sargent was driving the truck, Calvin Tunstall

      was in the front passenger seat, and 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, near where




      1
        We held oral argument in this case on January 12, 2017, at Ben Davis High School in Indianapolis. We
      thank the students and staff for their enthusiasm and hospitality.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1665 | January 30, 2017      Page 2 of 10
      Price’s feet were. A subsequent search revealed the presence of two additional

      handguns and a rock 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 Price, Sargent, and Tunstall with possession of heroin and

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

      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. Price and

      Sargent 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 his closing argument, Price’s attorney 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




      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1665 | January 30, 2017   Page 3 of 10
      referenced the evidence that none of the three men, including Tunstall, said

      anything after being ordered out of the truck:

              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 Price’s attorney to object 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 Price’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 Price and Sargent 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 (and that Price joined) that day. Among other things, the

      motion asked the court to revisit the claim that the State violated the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1665 | January 30, 2017   Page 4 of 10
      defendants’ right to remain silent by referencing their post-arrest silence.

      Sargent’s attorney first acknowledged that there was no defense objection when

      the prosecutor asked the officers whether any of the suspects had made any

      statements regarding the guns. 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. at 67. Price’s attorney agreed that

      the objectionable matter arose during the State’s closing argument and added

      that no objections to the initial questions by the prosecutor and answers by the

      officers were necessary “because one of the elements of constructive possession

      that the Court instructed is a lack of incriminating statements by a defendant.”

      Id. at 73. The trial court denied the defendants’ 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.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1665 | January 30, 2017   Page 5 of 10
[8]    Price now appeals.2



                                  Discussion and Decision
[9]    Price raises two issues on appeal. First, he challenges the sufficiency of the

       evidence supporting his conviction. Second, he argues that even if the evidence

       is sufficient, his conviction should be reversed because the State should not

       have been allowed to present and rely on evidence that he remained silent after

       being arrested.


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

       reasonable doubt that Price possessed a firearm after having been convicted of a

       crime that qualifies as a “serious violent felony.” Price 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

       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




       2
        Sargent appealed separately. In another memorandum decision issued today, we affirm Sargent’s
       conviction. See Nahamani Sargent v. State, No. 49A02-1607-CR-01666 (Ind. Ct. App. Jan. 30, 2017).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1665 | January 30, 2017       Page 6 of 10
       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.


[11]   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). Price does not dispute that

       he was physically capable of maintaining dominion and control over one or

       more of the guns, so the issue is whether the State proved that he had the intent

       to do so. To prove such intent, the State must demonstrate the defendant’s

       knowledge of the contraband. Id. 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 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.


[12]   Price contends that the only circumstance present in this case was his proximity

       to the guns and that this circumstance, standing alone, is insufficient. We need

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1665 | January 30, 2017   Page 7 of 10
       not decide whether proximity alone would have been sufficient in this case,

       because we agree with the State that there was other evidence that a reasonable

       juror could have found to be incriminating. First, the fact that there were three

       guns and three men supports a conclusion that each man possessed one gun.

       Second, the floorboard under the front passenger seat “was a location where the

       guns could have been quickly and easily stashed during the police pursuit

       between the first and second traffic stops.” Appellee’s Br. p. 12. Third, given

       the fact that the revolver was slightly protruding out toward Price’s seat and

       was visible to Officers Ly and Wright, the jury was entitled to find that it was in

       plain view. This evidence is sufficient to support the jury’s finding of

       constructive possession.


                                      II. Post-Arrest Silence
[13]   Price also argues that the trial court should not have allowed the State to

       present evidence that he remained silent after he was arrested or to reference

       this evidence during its closing argument. 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 Price did

       not object when the State introduced the evidence, he must establish that its

       admission 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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1665 | January 30, 2017   Page 8 of 10
       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.


[14]   Price must also demonstrate fundamental error with regard to the State’s

       closing argument. While he did object at that time, and the objection was

       overruled, neither Price nor Sargent 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.”).

[15]   Price has not convinced us that the initial admission of the silence evidence was

       fundamental error. He not only declined to object when the questions were

       asked and the answers were given but also explained to the trial court that he

       had a tactical reason for not objecting: “because one of the elements of

       constructive possession that the Court instructed is a lack of incriminating

       statements by a defendant.” Tr. Vol. III p. 73. In other words, Price intended

       to argue that his silence was evidence of his innocence. Because this evidence

       may have worked to Price’s benefit, we cannot say that the trial court was

       required to step in, sua sponte, and exclude it.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1665 | January 30, 2017   Page 9 of 10
[16]   We reach the same conclusion with regard to the State’s reference to Price’s

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

       as affirmative evidence of his guilt during the initial portion of its closing.

       Second, when the State did mention Price’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 Price’s own 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 Price’s silence

       proves his guilt or that Price “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

       Price’s silence, we cannot say that the limited reference “made a fair trial

       impossible.” See Gavin, 41 N.E.3d at 1042.


[17]   Affirmed.

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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1665 | January 30, 2017   Page 10 of 10
