MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                  Feb 19 2020, 11:01 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Rodney T. Sarkovics                                      Curtis T. Hill, Jr.
Carmel, Indiana                                          Attorney General of Indiana

                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

James Edward Williams,                                   February 19, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1412
        v.                                               Appeal from the
                                                         Hamilton Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Paul A. Felix, Judge
                                                         Trial Court Cause No.
                                                         29C01-1806-F4-4190



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020                Page 1 of 14
                                                  Case Summary
[1]   James Edward Williams was convicted after a bifurcated jury trial of Level 4

      felony unlawful possession of a firearm by a serious violent felon, Level 5

      felony carrying a handgun without a license, and Class A misdemeanor

      resisting law enforcement. Williams appeals 1 and asserts that (1) the trial court

      abused its discretion when it denied his motion to suppress, and thereafter

      admitted into evidence during trial, a backpack and its contents discovered in

      the area where he was seen running from police, and (2) the State failed to

      present sufficient evidence to convict him. Because we find no error in the

      admission of evidence or with regard to sufficiency, we affirm his convictions.


[2]   However, we sua sponte identify a double jeopardy violation not remedied

      through the merger of convictions at sentencing, and we therefore remand with

      instructions to vacate the conviction for Level 5 felony carrying a handgun

      without a license.


[3]   We affirm in part, vacate in part, and remand.


                                       Facts & Procedural History
[4]   Around noon on June 14, 2018, Fishers Police Department (FPD) Officer

      Daniel Nelson was dispatched to an address in the Cumberland Crossing

      Apartments on a report of a domestic disturbance involving Williams. Officer




      1
          Williams does not challenge his conviction for resisting law enforcement.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 2 of 14
      Nelson was familiar with Williams because he and other FPD officers had been

      to that address two weeks prior to serve Williams with an arrest warrant, but

      were unsuccessful.


[5]   In response to the radio call, Officer Nelson drove his marked police vehicle to

      the scene. He had been informed that Williams was on foot. While driving

      toward the apartment complex, Officer Nelson noticed Williams walking on the

      east side of a north/south tree line, on the west side of which is an industrial

      strip mall and parking lot. Officer Nelson noticed that Williams was carrying a

      black backpack. Officer Nelson stopped and yelled to Williams out of his open

      window, “Stop. Police.” Transcript Vol. II at 140. Williams looked briefly at

      Officer Williams and then ran westerly toward the tree line. Officer Nelson

      exited his vehicle and repeatedly yelled at Williams to stop but did not pursue

      Williams on foot. He saw Williams run through a creek or culvert and

      disappear somewhere along the tree line and foliage.


[6]   Minutes later, Officer Nelson located a black backpack laying on the grass near

      the tree line area where Williams was seen running. The backpack was

      consistent in size, shape, and color with the one he saw Williams carrying, and

      it did not have grass clippings, leaves, or other debris on it, which indicated to

      Officer Nelson that it had not been there for long. Officer Nelson called for

      additional units to assist and search for Williams, and a dozen or so FPD

      officers responded and established a perimeter. About forty-five minutes after

      Officer Nelson lost sight of Williams, Officer Charles Yeager located and

      apprehended Williams near a loading dock by the strip mall on the west side of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 3 of 14
      the tree line and approximately eighty yards from where the backpack was

      found. Williams had a small twig in his hair and was holding a water bottle but

      did not have a backpack. Officer Nelson requested an evidence technician

      come to the scene and process the backpack. Officer Christopher Marshall

      conducted a warrantless search of the backpack and found men’s shoes and

      clothes and a .22 caliber semi-automatic Smith & Wesson M& P pistol.

      Williams was transported back to Officer Nelson’s location, and he denied

      ownership of the backpack.


[7]   The next day, the State charged Williams with Count 1, Level 4 felony

      unlawful possession of a firearm by a serious violent felon (SVF); Count 2,

      Level 5 felony carrying a handgun without a license; and Count 3, Class A

      misdemeanor resisting law enforcement. Williams filed a motion to suppress,

      seeking to suppress the evidence seized in the warrantless search of the

      backpack.


[8]   The trial court held a hearing on William’s motion, addressing the issue of

      whether the backpack was abandoned property. Williams argued that he had

      not “denied ownership and disassociated himself from the property before the

      search” and had “retained exclusive control of the bag until being forced to

      relinquish his possession by pursuit of the police.” Appellant’s Appendix Vol. II at

      25 (emphasis in original). Williams maintained that such circumstances were

      not sufficient to establish abandonment. The trial court denied Williams’s

      motion, stating that “[i]f in fact the backpack was the Defendant’s, he

      abandoned it once he ran away from the officer.” Id. at 33. Pursuant to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 4 of 14
       Williams’s request, the March 11 jury trial was bifurcated such that, during the

       first phase of trial, the jury was not aware of the possession of a firearm by a

       SVF charge.


[9]    At trial, the parties stipulated that Officer Nelson had a legal reason to stop

       Williams and knew his identity and physical description. The State’s theory

       was that Williams had actual and exclusive possession of the backpack and that

       he dropped it while fleeing from police. The State presented the testimony of

       Officers Nelson, Marshall, and Yeager, after which both parties rested.


[10]   The jury found Williams guilty of carrying a handgun without a license and

       resisting law enforcement. In phase two of the trial, Williams pled guilty to

       Count 1, possession of a firearm by a SVF, and to the charged enhancement

       associated with Count 2, carrying a handgun without a license. At sentencing,

       the trial court merged Count 2 into Count 1 and imposed ten years with six

       years executed in the Indiana Department of Correction on Count 1 and 365

       days in the Hamilton County Jail on Count 3. The two sentences were ordered

       to be served concurrently. Williams now appeals.


                                        Discussion & Decision

                                          a. Double Jeopardy
[11]   Initially, we address the double jeopardy concerns that we find exist in the

       record before us. Double jeopardy violations implicate fundamental rights, and

       this Court may address such violations sua sponte. See Whitham v. State, 49

       N.E.3d 162, 168 (Ind. Ct. App. 2015), trans. denied. Article 1, Section 14 of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 5 of 14
       Indiana Constitution provides that “[n]o person shall be put in jeopardy twice

       for the same offense.” “[T]wo or more offenses are the ‘same offense’ . . . if,

       with respect to either the statutory elements of the challenged crimes or the

       actual evidence used to convict, the essential elements of one challenged offense

       also establish the essential elements of another challenged offense.” Richardson

       v. State, 717 N.E.2d 32, 49 (Ind. 1999).


[12]   Here, the jury returned a guilty verdict for carrying a handgun without a

       license. To convict Williams of this offense, the State was required to establish

       beyond a reasonable doubt that Williams did knowingly or intentionally carry a

       handgun in or upon his vehicle or person. 2 See Ind. Code § 35-47-2-1. At trial,

       the State’s evidence in support of this charge was Williams’s possession of the

       handgun found in the backpack. In the second phase of the trial, Williams pled

       guilty to unlawful possession of a firearm by a serious violent felon, i.e., he

       admitted to having a prior qualifying conviction and that he knowingly or

       intentionally possessed a firearm. See I.C. § 35-47-4-5. The State did not

       present a factual basis that specified an instance of possession separate from that

       supporting the other count of carrying a handgun.


[13]   The facts of this case are similar to those in Jarrell v. State, 818 N.E.2d 88 (Ind.

       Ct. App. 2004), trans. denied, where the defendant was arrested when he was




       2
        We note that the State was not required to prove that Williams did not possess a valid license to carry the
       handgun because it is not an essential element of the crime, but rather proof of a valid license is a defense.
       Ind. Code § 35-47-2-24; Alexander v. State, 768 N.E.2d 971, 977 (Ind. Ct. App. 2002), aff’d on reh’g, trans.
       denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020                   Page 6 of 14
       found to be in possession of a loaded firearm during a routine traffic stop. He

       was subsequently convicted of both possession of a firearm by a serious violent

       felon and carrying a handgun without a license. Id. at 91. This court concluded

       that, because both offenses stemmed from carrying the same gun, the

       convictions violated the double jeopardy clause, and we vacated the carrying a

       handgun without a license conviction. Id. at 93; see also George v. State, No.

       18A-CR-2300 (Ind. Ct. App. Jan. 23, 2020) (opinion not yet certified) (vacating

       carrying handgun without a license conviction where defendant’s possession of

       same handgun also was used to establish possession of firearm by SVF

       conviction); Alexander v. State, 768 N.E.2d 971, 978 (Ind. Ct. App. 2002) (same),

       aff’d on reh’g, trans. denied.


[14]   Here, in its May 23, 2019 sentencing order, the trial court merged Count 2 into

       Count 1, but at that point the court had already entered judgment of conviction

       on both counts. See Appellant’s Appendix Vol. II at 37 (March 14, 2019 Judgment

       of Conviction entering judgment on Counts 1, 2, and 3). We have recognized

       that “[a] trial court act of merging, without also vacating, the conviction is not

       sufficient to cure a double jeopardy violation.” Gregory v. State, 885 N.E.2d 698,

       703 (Ind. Ct. App. 2008), trans. denied; cf. Green v. State, 856 N.E.2d 703, 704

       (Ind. 2006) (“[A] merged offense for which a defendant is found guilty, but on

       which there is neither a judgment nor a sentence, is ‘unproblematic’ as far as

       double jeopardy is concerned.”). Accordingly, merger at sentencing did not

       remedy the double jeopardy violation, and we remand with instructions to




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 7 of 14
       vacate Williams’s conviction for Level 5 felony carrying a handgun without a

       license.


                                     b. Admission of Evidence
[15]   Turning to Williams’s claims, he first argues that the backpack was

       unconstitutionally searched without a warrant and, therefore, its contents

       including the handgun should have been suppressed and not admitted at trial.

       Trial courts have broad discretion when ruling on the admissibility of evidence.

       Hines v. State, 981 N.E.2d 150, 153 (Ind. Ct. App. 2013). In reviewing the trial

       court’s ruling on the admissibility of evidence from an allegedly illegal search,

       we do not reweigh the evidence and defer to the trial court’s factual

       determinations unless clearly erroneous. Hall v. State, 975 N.E.2d 401, 405

       (Ind. Ct. App. 2012). We consider the conflicting evidence most favorable to

       the trial court’s ruling, but also consider any uncontroverted evidence in the

       defendant’s favor. Id. “We consider afresh any legal question of the

       constitutionality of a search or seizure.” Id. (citing Meredith v. State, 906 N.E.2d

       867, 869 (Ind. 2009)).


[16]   The Fourth Amendment to the Constitution of the United States protects

       citizens against unreasonable searches and seizures. “The reasonableness of a

       search requires that the subject of the search has exhibited an actual subjective

       expectation of privacy that society as a whole is prepared to recognize as

       objectively ‘reasonable.’” State v. Seidl, 939 N.E.2d 679, 683 (Ind. Ct. App.

       2010) (citing Katz v. United States, 389 U.S. 347, 361 (1967)). The fundamental


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 8 of 14
       purpose of the Fourth Amendment is to protect the legitimate expectations of

       privacy that citizens possess in their persons, their homes, and their belongings.

       Hines, 981 N.E.2d at 153 (quotations omitted).


[17]   It is well-recognized that abandoned property is not subject to protection under

       the Fourth Amendment. Harrison v. State, 32 N.E.3d 240, 250 (Ind. Ct. App.

       2015), trans. denied; Hines, 981 N.E.2d at 154. The issue of abandonment is

       primarily a question of intent, and intent may be inferred from words, acts, and

       other objective facts. Hall, 975 N.E.2d at 405. “Abandonment rests upon

       whether the defendant so relinquished his interest in the property that he no

       longer retained a reasonable expectation of privacy in it at the time of the

       search.” Id. (quoting State v. Machlah, 505 N.E.2d 873, 879 (Ind. Ct. App.

       1987) (citations omitted), trans. denied). One way a defendant can abandon

       property is by leaving the property behind while fleeing law enforcement. See

       Wilson v. State, 825 N.E.2d 49, 52 (Ind. Ct. App. 2005) (finding that defendant

       abandoned bag when he tossed it under a car as he fled from police).


[18]   Here, Officer Nelson responded to a disturbance call involving Williams and

       saw Williams walking away from the apartment complex carrying a backpack.

       Williams had active arrest warrants, and Officer Nelson ordered Williams to

       stop, but Williams looked at Officer Nelson and fled. Williams ran to and

       through a tree line with brush and foliage, and shortly thereafter Officer Nelson

       found a black backpack in the grass in the area where he had seen Williams

       running. Williams was apprehended by a loading dock on the other side of the

       tree line, with a twig in his hair and without the backpack, which he denied

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 9 of 14
       belonged to him. From this evidence, the jury reasonably could have inferred

       that Williams intended to relinquish any possessory interest in the backpack

       and its contents – and no longer retained a reasonable expectation of privacy in

       it – when he discarded it as he ran from police. See Hines, 981 N.E.2d at 155

       (“objective facts . . . show[ed] Hines’ clear intention to relinquish any

       possessory interest in the firearm” when he threw it while fleeing from police).


[19]   To the extent that Williams argues that he could not have voluntarily

       relinquished possession of the backpack because, when Officer Nelson ordered

       him to stop, “he was subject to law enforcement’s authority” and thus was not

       acting voluntarily, we reject this claim. Appellant’s Brief at 12-13. While

       “abandoned property is inadmissible if the abandonment occurs after the owner

       is improperly detained[,]” J.B. v. State, 30 N.E.3d 51, 55 (Ind. Ct. App. 2015),

       here it is uncontested both that law enforcement had a valid basis to stop

       Williams and that the abandonment occurred before Williams was

       apprehended. Furthermore, our courts have recognized that when a defendant

       disregards an officer’s order to stop, items that he or she discards while fleeing

       from police may be considered abandoned property. See Gipson v. State, 459

       N.E.2d 366, 367 (Ind. 1984) (defendant found to have abandoned sack

       containing a revolver when he threw the sack under a parked car after police

       officer, who believed defendant was engaging in a drug transaction, had stepped

       out of police vehicle and ordered defendant to “hold it”); Hines, 981 N.E.2d at

       154-55 (defendant, who was a person of interest in an investigation, found to

       have abandoned firearm when he threw it as he was fleeing from police after


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 10 of 14
       they had called out to him “Hey, Jermaine, come here [we] want to talk to

       you”); Wilson, 825 N.E.2d at 52 (defendant found to have abandoned bag

       containing cocaine when he dropped it under a parked car when officers,

       suspecting a drug transaction was occurring, exited their vehicle and asked him

       to stop).


[20]   We find that, in this case, the trial court properly determined that Williams

       abandoned the backpack such that the search of it did not violate the Fourth

       Amendment and that the court did not abuse its discretion when it admitted the

       contents of the backpack at trial. 3


                                     c. Sufficiency of the Evidence
[21]   In challenging the sufficiency of the evidence, Williams contends that the State

       failed to present sufficient evidence “that the backpack belonged to [him]

       and/or that he knew the contents of [it].” 4 Appellant’s Brief at 17.


                When reviewing a claim of insufficient evidence, the appellate
                court will neither reweigh the evidence nor judge the credibility



       3
        Williams also challenges the search under the Indiana Constitution. However, as the State observes,
       Williams made no separate argument under Article 1, Section 11 in his motion to suppress or when he
       objected to the admission of the handgun at trial. Therefore, his argument on appeal based on Article 1,
       Section 11 is waived for failure to raise it in the trial court. Redfield v. State, 78 N.E.3d 1104, 1108 (Ind. Ct.
       App. 2017), trans. denied. Waiver notwithstanding, we find no state constitutional violation. Just as
       abandoned property is not subject to Fourth Amendment protection, “the same is true under Article 1,
       Section 11 of the Indiana Constitution.” Harrison v. State, 32 N.E.3d 240, 250 (Ind. Ct. App. 2015), trans.
       denied.
       4
        Although Williams frames his argument as insufficient evidence to convict him of carrying a handgun
       without a license and contends that his convictions on Count 1 and 2 should be reversed, we have already
       dealt with Count 2 above, ordering that it be vacated. Thus, we address his sufficiency claim in terms of
       whether the evidence was sufficient to convict him of unlawful possession of a firearm by a SVF.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020                     Page 11 of 14
               of the witnesses. We consider only the probative evidence and
               reasonable inferences supporting the verdict. And we must
               affirm if the probative evidence and reasonable inferences drawn
               from the evidence could have allowed a reasonable trier of fact to
               find the defendant guilty beyond a reasonable doubt.


       Ericksen v. State, 68 N.E.3d 597, 600 (Ind. Ct. App. 2017) (citations and

       quotations omitted), trans. denied. It is not necessary that the evidence

       overcome every reasonable hypothesis of innocence. Drane v. State, 867 N.E.2d

       144, 147 (Ind. 2007). A conviction may be based purely on circumstantial

       evidence. Willis v. State, 27 N.E.3d 1065, 1067 (Ind. 2015).


[22]   To convict Williams of unlawful possession of a firearm by an SVF, the State

       was required to demonstrate that he knowingly or intentionally possessed a

       firearm after having been convicted of a qualifying felony. See I.C. § 35-47-4-

       5(c). Here, after Williams was found guilty of carrying a handgun without a

       license, he pled guilty to the enhancement for that offense as well as to unlawful

       possession of a firearm by a serious violent felon, pursuant to an agreement that

       he would be permitted to challenge on appeal the jury’s finding that he was in

       possession of a handgun.


[23]   To prove that a defendant possessed an item, the State may prove either actual

       or constructive possession. Payne v. State, 96 N.E.3d 606, 610 (Ind. Ct. App.

       2018), trans. denied. Actual possession occurs “when a person has direct

       physical control over [an] item.” Sargent v. State, 27 N.E.3d 729, 733 (Ind.

       2015). Constructive possession occurs when the person has the intent and

       capability to maintain dominion and control over the firearm. Causey v. State,
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 12 of 14
       808 N.E.2d 139, 143 (Ind. Ct. App. 2004). To prove the element of intent, the

       State must demonstrate the defendant’s knowledge of the presence of the

       firearm. Id. Knowledge may be inferred from either exclusive dominion and

       control over the premises containing the firearm, or from evidence of additional

       circumstances indicating the defendant’s knowledge of the presence of the

       firearm. Id.


[24]   Here, the State presented evidence that Williams was carrying a black backpack

       when Officer Nelson first saw him walking and when he fled after the officer

       ordered him to stop. Williams ran to a tree line area and into the wooded area.

       No other people were with Williams or in the area. Minutes later, Officer

       Nelson found a black backpack, of the “basic size, shape, and color” that

       Williams had been seen wearing/carrying, laying in the grass by the same tree

       line area where Williams was seen, and the backpack appeared to have not

       been there in the grass for “any length of time.” Transcript Vol. II at 142, 143.

       Williams did not have a backpack when he was apprehended about forty-five

       minutes later. From the evidence presented, the jury could have reasonably

       inferred that Williams possessed the backpack and discarded it so that he would

       not be caught with the firearm in it. Payne, 96 N.E.3d at 611 (circumstances

       permitted inference that defendant had possessed the duffel bag and firearm in

       it and dropped it as he was trying to avoid police, where earlier a witness had

       seen him carrying duffel bag into apartment and police found a duffel bag in

       close proximity to location where defendant was detained in the common

       hallway as he was attempting to flee the apartment building).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 13 of 14
[25]   Williams highlights that there was no DNA or fingerprint evidence linking him

       to the firearm and that nothing in the backpack positively identified him as the

       owner of it and its contents. However, the evidence does not have to rule out

       every hypothesis of innocence. Drane, 867 N.E.2d at 147. The State presented

       sufficient evidence to convict Williams of possession of a firearm by a SVF.


[26]   Judgment affirmed in part, vacated in part, and remanded.


       Robb, J. and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1412 | February 19, 2020   Page 14 of 14
