MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           FILED
this Memorandum Decision shall not be                        Dec 16 2016, 8:45 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
Timothy J. O’Connor                                     Gregory F. Zoeller
O’Connor & Auersch                                      Attorney General of Indiana
Indianapolis, Indiana
                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marquis Lewins,                                         December 16, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1603-CR-428
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Peggy Hart, Master
Appellee-Plaintiff.                                     Commissioner
                                                        Trial Court Cause No.
                                                        49G20-1410-F4-47928



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-428 | December 16, 2016   Page 1 of 7
                                             Case Summary
[1]   Marquis Lewins appeals his conviction for Level 4 felony unlawful possession

      of a firearm by a serious violent felon. We affirm.


                                                     Issue
[2]   Lewins raises one issue, which we restate as whether the evidence is sufficient

      to prove that he possessed a firearm.


                                                     Facts
[3]   On October 10, 2015, officers with the Indianapolis Metropolitan Police

      Department were executing a no knock search warrant at a residence on King

      Avenue in Indianapolis. Officer Kenneth Kunz was part of the SWAT team

      executing the warrant. As other officers were entering the front door, Officer

      Kunz was standing next to a bedroom window. The bedroom window was

      open six to eight inches, and he saw Lewins in the bedroom. Officer Kunz

      yelled into the bedroom, “Police. Search Warrant. Show your hands. Stop.

      Show your hands.” Tr. p. 44. However, Lewins looked at Officer Kunz and

      “went about what he was doing.” Id. at 45. Lewins removed a grate from a

      floor heat register and placed cocaine in the register. He then retrieved a bag of

      marijuana off of an aquarium and placed it in the register too. Lewins also

      opened a built-in cupboard in the bedroom, retrieved an item, and placed it in

      his waistband. Lewins then left the bedroom and locked himself in a bathroom.

      The officers eventually kicked in the bathroom door, deployed a flash bang



      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-428 | December 16, 2016   Page 2 of 7
      device, and apprehended Lewins. Two other people were also apprehended in

      the house.


[4]   The officers found marijuana on Lewins. They also found marijuana and

      cocaine in the register. In the bedroom where Lewins was seen, officers found

      a handgun under the mattress and another handgun in the cupboard. In the

      cupboard, officers also found marijuana, a box of syringes with Lewins’s name

      on it, paperwork bearing Lewins’s name and the address of the King Avenue

      house, a box of Accu-Chek Softclix with Lewins’s name on the box, and

      prescription medications in Lewins’s name. A third handgun was found in a

      kitchen cabinet along with marijuana and digital scales. In a kitchen drawer,

      officers found an electric bill for the house addressed to Lewins.


[5]   DNA testing on the handgun found under the mattress revealed a mixture of

      DNA profiles of Lewins and an unidentified person. DNA testing on the

      handgun found in the cupboard also revealed a mixture of DNA profiles of

      Lewins and another individual with Lewins being the major contributor.


[6]   The State charged Lewins with: Count I, Level 4 felony unlawful possession of

      a firearm by a serious violent felon; Count II, Level 6 felony possession of

      cocaine, enhanced to a Level 5 felony based on a prior conviction; and Count

      III, Class B misdemeanor possession of marijuana, enhanced to a Level 6

      felony based on a prior conviction. The State also alleged that Lewins was an

      habitual offender. In a bifurcated trial, the jury found that Lewins had

      unlawfully possessed a firearm, and Lewins stipulated that he was a serious


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-428 | December 16, 2016   Page 3 of 7
      violent felon. The jury also found that Lewins had possessed cocaine and

      marijuana, and Lewins stipulated to his prior convictions and his status as an

      habitual offender. The trial court entered judgments of conviction on Count I,

      on the unenhanced convictions for Counts II and III, and on Lewins’s status as

      an habitual offender. The trial court sentenced Lewins to eighteen years in the

      Department of Correction. Lewins now appeals.


                                                  Analysis
[7]   Lewins argues that the evidence was insufficient to show that he possessed a

      handgun. Lewins does not challenge his other convictions or his status as an

      habitual offender. In reviewing the sufficiency of the evidence, we neither

      reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27

      N.E.3d 1065, 1066 (Ind. 2015). We only consider “the evidence supporting the

      judgment and any reasonable inferences that can be drawn from such

      evidence.” Id. A conviction will be affirmed if there is substantial evidence of

      probative value supporting each element of the offense such that a reasonable

      trier of fact could have found the defendant guilty beyond a reasonable doubt.

      Id. “‘It is the job of the fact-finder to determine whether the evidence in a

      particular case sufficiently proves each element of an offense, and we consider

      conflicting evidence most favorably to the trial court’s ruling.’” Id. at 1066-67

      (quoting Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)).


[8]   Indiana Code Section 35-47-4-5(c) provides: “A serious violent felon who

      knowingly or intentionally possesses a firearm commits unlawful possession of


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-428 | December 16, 2016   Page 4 of 7
       a firearm by a serious violent felon, a Level 4 felony.” A conviction for

       possession of contraband may rest upon proof of either actual or constructive

       possession. Houston v. State, 997 N.E.2d 407, 409-10 (Ind. Ct. App. 2013).

       Actual possession occurs when a person has direct physical control over the

       item. Id. at 410. A person constructively possesses contraband when the

       person has: (1) the capability to maintain dominion and control over the item;

       and (2) the intent to maintain dominion and control over it. Gray v. State, 957

       N.E.2d 171, 174 (Ind. 2011). Although the State argues that Lewins had actual

       possession of the weapons, Lewins argues that he did not have actual or

       constructive possession. We need only address whether Lewins had

       constructive possession.


[9]    “The capability prong [of constructive possession] may be satisfied by ‘proof of

       a possessory interest in the premises in which [contraband is] found.’” Houston,

       997 N.E.2d at 410 (quoting Monroe v. State, 899 N.E.2d 688, 692 (Ind. Ct. App.

       2009)). “This is so regardless of whether the possession of the premises is

       exclusive or not.” Id. The State presented evidence that Lewins was seen in the

       bedroom where two of the guns were located immediately before they were

       found. He was also seen taking an item out of the cupboard where one of the

       guns was found. The officers also found an electric bill for the house bearing

       Lewins’s name. The State presented sufficient evidence to prove that Lewins

       had the capability to maintain dominion and control over the handguns.


[10]   With regard to the intent prong of the test, where a defendant’s possession of

       the premises upon which contraband is found is not exclusive, the inference of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-428 | December 16, 2016   Page 5 of 7
       intent to maintain dominion and control over the drugs must be supported by

       additional circumstances pointing to the defendant’s knowledge of the nature of

       the controlled substances and their presence. Id. Those additional

       circumstances include: (1) incriminating statements by the defendant, (2)

       attempted flight or furtive gestures, (3) location of substances like drugs in

       settings that suggest manufacturing, (4) proximity of the contraband to the

       defendant, (5) location of the contraband within the defendant’s plain view, and

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

       Henderson v. State, 715 N.E.2d 833, 836 (Ind. 1999).


[11]   The State presented evidence that Lewins ignored Officer Kunz’s commands

       and locked himself in the bathroom during the execution of the search warrant.

       Officer Kunz saw Lewins in close proximity to the handgun under the mattress

       and the handgun in the cupboard. Further, items belonging to Lewins were

       found in the cupboard with the handgun. Finally, Lewins’s DNA was found on

       both weapons. The State presented sufficient evidence to show that Lewins had

       the intent to maintain dominion and control over the weapons found in the

       bedroom.1


[12]   Because we conclude that Lewins had constructive possession of the weapons,

       we need not address whether he had actual possession. We conclude that the




       1
         The State also argues that Lewins had constructive possession of the handgun found in the kitchen. As we
       have found Lewins had constructive possession of the handguns found in the bedroom, we need not address
       this argument.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-428 | December 16, 2016         Page 6 of 7
       evidence is sufficient to sustain Lewins’s conviction for Level 4 felony unlawful

       possession of a firearm by a serious violent felon.


                                                 Conclusion
[13]   The evidence is sufficient to sustain Lewins’s conviction for Level 4 felony

       unlawful possession of a firearm by a serious violent felon. We affirm.


[14]   Affirmed.


       Bailey, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-428 | December 16, 2016   Page 7 of 7
