MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Feb 19 2016, 5:35 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jerry T. Drook                                           Gregory F. Zoeller
Marion, Indiana                                          Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Courtney Johnson,                                        February 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A05-1506-CR-619
        v.                                               Appeal from the Grant Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark E. Spitzer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27C01-1402-FB-9



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-619 | February 19, 2016        Page 1 of 9
[1]   Courtney Johnson appeals his conviction following a jury trial for Unlawful

      Possession of a Firearm by a Serious Violent Felon,1 a Class B felony.2 He

      presents two issues for review. First, he contends the conviction was not

      supported by sufficient evidence that he possessed the firearm in question.

      Second, he argues that the trial court abused its discretion by denying his

      request for a bifurcated proceeding with respect to this charge.


[2]   We affirm.


                                            Facts & Procedural History


[3]   On February 23, 2014, Marion Police Officer Kyle Griffith observed Johnson

      driving erratically and committing multiple traffic infractions. Officer Griffith

      ran the vehicle’s plate number and learned that the license of the registered

      owner, Ricky Booker, was suspended. As Officer Griffith attempted to catch

      up to initiate a stop, Johnson quickly changed lanes and turned into an empty

      parking lot. Officer Griffith followed with his lights and siren activated.


[4]   Officer Griffith approached Johnson, who was the driver and sole occupant of

      the vehicle. The officer immediately smelled the odor of raw marijuana

      emanating from the vehicle. He asked Johnson for his license, registration, and




      1
          Subsequent references to serious violent felon will be shortened to SVF.
      2
       Ind. Code § 35-47-4-5. Effective July 1, 2014, this offense was reclassified as a Level 4 felony. Because
      Johnson committed the offense prior to that date, it retains its prior classification as a class B felony

      Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-619 | February 19, 2016            Page 2 of 9
      proof of insurance. Johnson provided his name but no documents and argued

      with the officer about the basis of the stop.


[5]   Officer Griffith returned to his police vehicle and radioed in Johnson’s name

      and a request for backup due to Johnson’s demeanor and the odor of

      marijuana. Once informed that Johnson’s license was suspended, the officer

      initiated an arrest for driving while suspended by asking Johnson to step out of

      the vehicle. Johnson refused and tried to put the key back in the ignition.

      Officer Griffith grabbed Johnson’s hand, and the keys fell. Johnson then

      shoved Officer Griffith, forcing the officer to take several steps backward.


[6]   Officer Griffith drew his taser and ordered Johnson to exit the vehicle and put

      his hands behind his back. Johnson stepped out and continued arguing.

      Despite repeated commands, Johnson refused to turn around and place his

      hands behind his back. When Johnson stepped aggressively forward, the officer

      fired his taser. After a bit of thrashing around and refusing orders to go to the

      ground, Johnson pulled the taser’s probes from his chest and charged at the

      officer. Johnson forcefully shoved Officer Griffith and then took off running.

      Johnson was eventually brought down by the officer’s canine. Johnson,

      however, continued to struggle and refuse orders. Officer Griffith struck

      Johnson, who finally surrendered and was placed under arrest.


[7]   A search of the vehicle resulted in the discovery of a loaded handgun directly

      beneath the driver’s seat. Several plastic baggies containing approximately




      Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-619 | February 19, 2016   Page 3 of 9
      sixty-eight grams of marijuana, a baggie containing a small amount of cocaine,

      a digital scale, and cash were also recovered from Johnson’s person.


[8]   Booker, the registered owner of the vehicle, had sold the vehicle in question to

      Johnson on February 14, 2014 for about $800 cash. Booker left the license plate

      on the car and, aside from giving Johnson the title to the vehicle within a week

      of the purchase, he took no steps to legally transfer title. Booker testified at trial

      that he cleaned out his car before the sale and removed all of his personal

      property. Booker testified further that he did not own the firearm found at the

      time of Johnson’s arrest.


[9]   Following a two-day, bifurcated jury trial, Johnson was convicted of Class B

      felony unlawful possession of a firearm by an SVF, Class D felony possession of

      marijuana, and Class D felony possession of cocaine, as well as driving while

      suspended, battery, and two counts of resisting law enforcement, all as Class A

      misdemeanors. The first phase of trial involved all charges except the SVF

      charge. Johnson requested that the second phase of the trial—the portion

      involving the SVF charge—be split into two parts. Specifically, he wanted the

      jury to decide whether he possessed the handgun before receiving evidence

      regarding whether he had a prior conviction qualifying him as a serious violent

      felon. The trial court denied this request. Johnson was sentenced to an

      aggregate term of twenty years in prison. On appeal, Johnson challenges only

      his conviction for unlawful possession of a firearm by an SVF.


                                          Discussion & Decision


      Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-619 | February 19, 2016   Page 4 of 9
                                        Sufficiency of the Evidence


[10]   Johnson challenges the sufficiency of the evidence regarding his possession of

       the firearm. When reviewing a challenge to the sufficiency of the evidence, we

       do not reweigh evidence or judge the credibility of witnesses. Duncan v. State,

       23 N.E.3d 805, 812 (Ind. Ct. App. 2014), trans. denied. Instead, we consider

       only the evidence and the reasonable inferences supporting the verdict. Id. If

       there is substantial evidence of probative value from which a reasonable trier of

       fact could have found the defendant guilty of the crime charged beyond a

       reasonable doubt, then the judgment will not be disturbed. Id. Further, a

       conviction may be based on circumstantial evidence, and it is not necessary that

       the evidence overcome every reasonable hypothesis of innocence. Boggs v. State,

       928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied.


[11]   In order to convict Johnson of unlawful possession of a firearm by an SVF, the

       State was required to establish that Johnson was an SVF who knowingly or

       intentionally possessed a firearm. See I.C. § 35-47-4-5. He does not challenge

       the sufficiency of the evidence with respect to the SVF determination. His sole

       contention is that the State failed to establish that he knowingly or intentionally

       possessed the firearm in question.


[12]   It is well established that possession of an item may be either actual or

       constructive. See Massey v. State, 816 N.E.2d 979, 989 (Ind. Ct. App. 2004).

       Constructive possession, applicable in this case, occurs when a person does not

       have direct physical control over the item but has “the intent and capability to


       Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-619 | February 19, 2016   Page 5 of 9
       maintain dominion and control over the item.” Id. (quoting Henderson v. State,

       715 N.E.2d 833, 835 (Ind. 1999)).


[13]   To prove the intent element, the State must demonstrate the defendant’s

       knowledge of the presence of the contraband. Massey, 816 N.E.2d at 989. This

       may be inferred from either the exclusive dominion and control over the

       premises containing the contraband or, if the control is non-exclusive, evidence

       of additional circumstances pointing to the defendant’s knowledge.3 Massey,

       816 N.E.2d at 989. The capability requirement is met when the State shows

       that the defendant is able to reduce the contraband to the defendant’s personal

       possession. Id.


[14]   Johnson does not argue that he did not have the capability to maintain

       dominion and control over the firearm. Rather, his argument focuses only on

       the intent element.


[15]   The evidence viewed in the light most favorable to the State establishes that this

       is a case of exclusive dominion and control. Johnson was the driver, owner,

       and sole occupant of the vehicle at the time of his arrest. See Woods v. State, 471

       N.E.2d 691, 694 (Ind. 1984) (“Appellant’s undisputed control over his own

       vehicle for four days is sufficient to establish exclusive dominion and control”);




       3
         These additional circumstances may include: 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 contraband with other items owned by the
       defendant. Deshazier v. State, 877 N.E.2d 200, 206 (Ind. Ct. App. 2007), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-619 | February 19, 2016           Page 6 of 9
       Parson v. State, 431 N.E.2d 870, 872 (Ind. Ct. App. 1982) (defendant was the

       lessee, driver, and sole occupant of the motor home, so despite testimony that

       another person had access to the vehicle earlier, “the jury could reasonably

       conclude that the motor home had been reduced to [his] exclusive possession

       for longer than a brief period of time before the search, thereby supporting the

       inference that [defendant] had the requisite intent to maintain control and

       dominion over the handgun”). Further, Booker testified that the firearm did

       not belong to him and that he had removed all of his personal belongings from

       the vehicle before he sold it to Johnson nine days earlier. The jury had ample

       evidence to conclude that Johnson possessed the firearm found directly beneath

       the driver’s seat of the car he owned and was driving in alone.


                                                   Bifurcation


[16]   Johnson contends that the trial court abused its discretion when it denied his

       motion to bifurcate the proceedings regarding the SVF charge. See Russell v.

       State, 997 N.E.2d 351, 354 (Ind. 2013) (a trial court’s discretion regarding

       bifurcation of trial is subject to an abuse of discretion standard on appeal). He

       argues the jury should have been tasked first with determining whether he had

       committed the (non-existent) offense of unlawful possession of a firearm by

       knowingly possessing the firearm. According to Johnson, not until the jury had

       decided this question in the affirmative should it have been presented with

       evidence regarding whether he was an SVF.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-619 | February 19, 2016   Page 7 of 9
[17]   This argument has been soundly rejected by our appellate courts, which have

       held that a defendant tried solely for an SVF charge is “not entitled to have the

       proceedings bifurcated in such a way that the jury would not hear of his prior

       felony conviction before it determined whether he was in possession of a

       firearm.” Hines v. State, 801 N.E.2d 634, 635 (Ind. 2004). See also Spearman v.

       State, 744 N.E.2d 545, 547-48 (Ind. Ct. App. 2001), trans. denied. This is

       because the evidence of the prior conviction—establishing the legal status of the

       offender as an SVF—is an essential element of the crime. See Spearman, 744

       N.E.2d at 547-48 (“the rationale for inadmissibility of prior convictions breaks

       down when the evidence of the prior conviction not only has the ‘tendency’ to

       establish guilt or innocence but also is essential to such determination”). The

       act—possession of a firearm—is illegal only if performed by one with this

       status. I.C. § 35-47-4-5 (making it unlawful for a person convicted of one of

       several enumerated felony offenses to knowingly or intentionally possess a

       firearm); Spearman, 744 N.E.2d at 548.


[18]   Here, the trial court properly bifurcated the proceedings in such a way that the

       jury decided Johnson’s guilt on all the charges except the SVF charge in the first

       phase of trial. In the second phase, the jury decided his guilt on the SVF

       charge. This protected Johnson from unfair prejudice by insulating the jury,

       during the first phase, from any evidence of his prior felony conviction. See

       Hines, 801 N.E.2d at 635. Johnson’s claim that the trial court abused its

       discretion by refusing to further split the trial for the SVF charge is without

       merit. Johnson was not exposed to unfair prejudice by the jury hearing all of


       Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-619 | February 19, 2016   Page 8 of 9
       the evidence necessary to determine his guilt on the SVF charge in the second

       phase of trial. See, e.g., Spearman, 744 N.E.2d at 547-48. Cf. Russell, 997 N.E.2d

       at 354 (“Had the trial court fully bifurcated the trial on the SVF charge from the

       trial on the murder charge, the trial court would have avoided instructing the

       jury on the non-existing offense of ‘unlawfully’ possessing a firearm.”).

       Accordingly, we find no abuse of discretion.


[19]   Judgment affirmed.


       Robb, J. and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-619 | February 19, 2016   Page 9 of 9
