MEMORANDUM DECISION
                                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                                            Apr 19 2016, 6:05 am

this Memorandum Decision shall not be                                                  CLERK
                                                                                  Indiana Supreme Court
regarded as precedent or cited before any                                            Court of Appeals
                                                                                       and Tax Court
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
Craig Persinger                                          Gregory F. Zoeller
Marion, Indiana                                          Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Maurice Knight, Sr.,                                     April 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1506-CR-517
        v.                                               Appeal from the
                                                         Grant Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Jeffrey D. Todd, Judge
                                                         Trial Court Cause No.
                                                         27D01-1301-FB-7



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016            Page 1 of 10
[1]   Maurice Knight, Sr. (“Knight”) was convicted after a jury trial of unlawful

      possession of a firearm by a serious violent felon (“SVF”),1 a Class B felony,

      and was sentenced to eighteen years executed. He appeals and raises the

      following restated issues for our review:


               I. Whether the State presented sufficient evidence to support his
               conviction; and


               II. Whether his sentence was inappropriate in light of the nature
               of the offense and the character of the offender.


[2]   We affirm.


                                    Facts and Procedural History
[3]   In January 2013, Morgan Creech (“Creech”) was living with her father at a

      residence located on East 27th Street in Marion, Indiana. On January 9, at

      approximately 7:00 p.m., Creech was outside in the yard with her boyfriend

      when Knight, who lived next door, came to the fence between the properties.

      Knight angrily accused Creech of stealing his dog, and his demeanor scared

      Creech. Knight placed his hands on the fence and threatened to jump over it

      and go into Creech’s house to look for the dog. Creech did not have Knight’s

      dog, but offered to allow Knight to come inside the house to look for the dog.




      1
        See Ind. Code § 35-47-4-5(c). We note that, effective July 1, 2014, a new version of this criminal statute was
      enacted. Because Knight committed his crime prior to July 1, 2014, we will apply the statute in effect at that
      time.



      Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016               Page 2 of 10
      Knight declined the offer. Creech called her father, who was not at home at the

      time, and informed him of what occurred. He told Creech to call the police, but

      she did not as she feared retaliation from Knight. Knight left his home at that

      time in a grey cargo van. He was wearing a white stocking hat and was seated

      in the passenger seat of the van.


[4]   In the meantime, Creech’s father had called the police to report what had

      transpired. Marion Police Department Officer Steve Pyle (“Officer Pyle”) and

      Sergeant Kenneth Allen (“Sergeant Allen”) arrived at Creech’s residence a few

      minutes after Knight left his residence. Creech told the officers about her

      encounter with Knight and gave a description of Knight and the grey van.

      While Creech was speaking with the officers, a grey van pulled up to the corner

      of 27th and Terrace Streets. Officer Pyle asked Creech if the van resembled the

      one in which Knight had left, and Sergeant Allen shone his flashlight over the

      van. Creech stated that the van was the actual van in which she saw Knight

      leave.


[5]   The officers got into their marked patrol car and pursued the van in order to

      speak with Knight about the incident with Creech. The officers caught up to

      the van, and Sergeant Allen activated the car’s lights to initiate a traffic stop.

      Before the van stopped, Sergeant Allen twice saw the passenger door of the van

      open slightly and then close. The van pulled over to the side of the road and

      stopped. As Officer Pyle exited the passenger side of the patrol car, he observed

      the passenger door of the van open about twelve to eighteen inches and stay

      open for just about a second. Sergeant Allen also saw the passenger door open

      Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016   Page 3 of 10
      and informed Officer Pyle, who confirmed to Sergeant Allen that he was aware

      of it. Officer Pyle walked to the passenger side of the van and yelled several

      times for the passenger to open the door and show his hands. Knight

      eventually complied and opened the door to exit the van. Officer Pyle ordered

      Knight, who was wearing a white stocking hat, to put his hands on the side of

      the van, which Knight did. Officer Pyle began to conduct a pat-down search.


[6]   As he was patting Knight down, Officer Pyle observed a handgun in the snow

      just outside the passenger door and told Sergeant Allen about its presence.

      Officer Pyle began to handcuff Knight, who struggled and had to be taken to

      the ground. Officer Pyle later retrieved the handgun, which was sticking barrel

      first in the snow, with the butt of the gun visible. When the handgun was

      recovered from the snow, it did not have any snow on it. The handgun was

      determined to be a black, .22 caliber revolver.


[7]   The State charged Knight with one count of unlawful possession of a firearm by

      a SVF, a Class B felony. A jury trial was held, and Knight was found guilty as

      charged. At sentencing, the trial court found Knight’s extensive and “very

      significant” criminal history, which included crimes of intimidation and

      aggression and multiple probation violations, as an aggravating circumstance.

      Tr. at 283. The trial court found no mitigating circumstances and sentenced

      Knight to eighteen years executed. Knight now appeals.




      Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016   Page 4 of 10
                                     Discussion and Decision

                                       I. Sufficient Evidence
[8]   The deferential standard of review for sufficiency claims is well settled. When

      we review the sufficiency of evidence to support a conviction, we do not

      reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

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

      evidence most favorable to the verdict and the reasonable inferences that can be

      drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

      2014), trans. denied. We will not disturb the jury’s verdict if there is substantial

      evidence of probative value to support it. Id. A conviction may be based upon

      circumstantial evidence alone. Boggs, 928 N.E.2d at 864. We will affirm unless

      no reasonable fact-finder could find the elements of the crime proven beyond a

      reasonable doubt. Tooley v. State, 911 N.E.2d 721, 724-25 (Ind. Ct. App. 2009),

      trans. denied. As the reviewing court, we respect “the jury’s exclusive province

      to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind.

      2005).


[9]   Knight contends that the evidence presented at trial was insufficient to support

      his conviction for unlawful possession of a firearm by a SVF. He does not

      claim that the State failed to prove that he was a SVF; he only argues that there

      was not sufficient evidence to prove that he possessed the handgun discovered

      in the snow next to the passenger door of the van. Knight asserts that he did

      not have actual possession of the handgun, and there was insufficient evidence

      to establish that he had constructive possession of the firearm. He specifically
      Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016   Page 5 of 10
       alleges that the State did not prove any of the additional circumstances

       indicating his knowledge of the presence of the handgun and his ability to

       control it.


[10]   In order to convict Knight of unlawful possession of a firearm by a SVF, the

       State was required to prove beyond a reasonable doubt that he was a SVF who

       knowingly or intentionally possessed a firearm. Ind. Code § 35-47-4-5(c).

       Knight only contends insufficient evidence was presented to prove that he

       possessed the handgun found by Officer Pyle. Possession of contraband need

       not be actual but, rather, can be constructive. Mack v. State, 23 N.E.3d 742, 759

       (Ind. Ct. App. 2014), trans. denied. In order to establish constructive possession,

       the State must show that the defendant had both the intent and capability to

       maintain dominion and control over the handgun. Id. When possession of the

       premises where the contraband is found is non-exclusive, knowledge of

       presence of the contraband may not be inferred absent some additional

       circumstances indicating knowledge of the presence of the contraband and the

       ability to control it. Gaynor v. State, 914 N.E.2d 815, 819 (Ind. Ct. App. 2009),

       trans. denied. Among the recognized “additional circumstances” are: (1)

       incriminating statements by the defendant; (2) attempted flight or furtive

       gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the

       contraband; (5) contraband is in plain view; and (6) location of the contraband

       is in close proximity to items owned by the defendant. Id. at 819-20.


[11]   Here, the evidence presented showed that Knight was the passenger in the grey

       van pursued by the police. Before the van stopped, Officer Pyle observed the

       Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016   Page 6 of 10
       passenger door open twice, and an inference could be made that Knight was

       attempting to discard contraband, such as the handgun at that time. At the

       time the van was pulled over on the side of the road, Knight opened the

       passenger door approximately twelve to eighteen inches, and the door remained

       open for just about a second, which was enough time for Knight to drop the

       unlawfully possessed handgun into the snow next to the van. After Office Pyle

       was able to get Knight to exit the van, he began to pat him down and

       immediately saw the handgun in the snow. The handgun was located just

       outside of the passenger door of the van, which was in close proximity to

       Knight. Officer Pyle testified that the handgun was in a location that Knight

       could have easily reached down, grabbed it, and used it against the officers. Tr.

       at 105.


[12]   The evidence, therefore, established that the handgun was in close proximity to

       Knight, in plain view as Officer Pyle noticed it immediately, and easily

       accessible to Knight. Additionally, the handgun had not been in the snow for

       any length of time as it was not covered in snow. Further, there were no

       footprints in the area where the handgun was discovered. Based on the

       evidence presented, the jury could have reasonably inferred that Knight had

       both the intent and capability to maintain dominion and control over the

       handgun and, thus, had constructive possession of the handgun. We conclude

       that the evidence was sufficient to support Knight’s conviction for unlawful

       possession of a firearm by a SVF.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016   Page 7 of 10
                                    II. Inappropriate Sentence
[13]   Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by

       statute if we deem it to be inappropriate in light of the nature of the offense and

       the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.

       App. 2014). The question under Appellate Rule 7(B) is not whether another

       sentence is more appropriate; rather, the question is whether the sentence

       imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.

       2008). It is the defendant’s burden on appeal to persuade the reviewing court

       that the sentence imposed by the trial court is inappropriate. Chappell v. State,

       966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.


[14]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Id. at 1224.


[15]   Knight argues that his eighteen-year sentence is inappropriate in light of the

       nature of the offense and the character of the offender. Knight concedes that

       the trial court properly took his extensive criminal history into consideration

       when it sentenced him and that this court may “rightfully conclude that [his]


       Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016   Page 8 of 10
       criminal history reflects poorly on his character.” Appellant’s Br. at 9. However,

       he contends that the nature of his crime involved nothing that “would shock the

       conscience of the average person or which could fairly be characterized as

       representing the mindset of a hardened criminal.” Id. Knight asserts that the

       circumstances of the present case do not lend themselves to an eighteen-year

       sentence because no threats of physical harm were made, no weapons were

       displayed or used, and his neighbor’s property was never invaded.


[16]   Knight was convicted of Class B felony unlawful possession of a firearm by a

       SVF. A person who commits a Class B felony shall be imprisoned for a fixed

       term of between six and twenty years, with the advisory sentence being ten

       years. Ind. Code § 35-50-2-5. Here, the trial court sentenced Knight to eighteen

       years executed.


[17]   Looking to the nature of the offense, this case began when Knight aggressively

       confronted his neighbor, Creech, about his missing dog. After the police were

       called and were able to stop Knight, they observed that he was in constructive

       possession of a handgun that he had discarded from the passenger door of the

       van. Although Knight was not in actual possession of the handgun when the

       police approached him, Officer Pyle testified that the handgun was located in

       close proximity to Knight and that Knight could have easily reached down,

       grabbed it, and used it against the officers. Tr. at 105. It was also proven at

       trial that Knight was a SVF as he had a prior conviction for attempted robbery,

       the commission of which made him a SVF. Ind. Code § 35-47-4-5(a)(2),

       (b)(12).

       Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016   Page 9 of 10
[18]   Considering Knight’s character, he has an extensive criminal history that

       includes crimes of aggression, violence, and intimidation. As a juvenile, Knight

       had seven adjudications for offenses such as incorrigibility, battery, and

       possession of a handgun. As an adult, Knight has been convicted of eleven

       felonies, twenty-six misdemeanors, and nine probation violations. Many of

       Knight’s convictions are for domestic battery, invasion of privacy, intimidation,

       or battery. As evidenced by this lengthy history of criminal convictions, Knight

       has been committing crimes the majority of his adult life. His criminal history

       demonstrates his unwillingness and inability to lead a law-abiding life and his

       contempt for the law and the authority of the court. Knight’s past convictions

       have not caused him to change his behavior, and he continued to commit

       criminal offenses even after being arrested for the present offense. Knight’s

       character does not support a determination that his sentence is inappropriate.

       We, therefore, conclude that Knight’s sentence is not inappropriate in light of

       the nature of the offense and the character of the offender.


[19]   Affirmed.


[20]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016   Page 10 of 10
