MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Jun 12 2020, 5:59 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Talisha Griffin                                          Lauren A. Jacobsen
Marion County Public Defender Agency                     Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dominique Laray Davis,                                   June 12, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1182
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton Graham,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G14-1604-CM-16180



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020                 Page 1 of 13
                                       Statement of the Case

[1]   Dominique Davis (“Davis”) was found guilty of Class A misdemeanor carrying

      a handgun without a license.1 On appeal, Davis argues that: (1) there was

      insufficient evidence to support his carrying a handgun without a license

      conviction; and (2) the trial court abused its discretion when it ordered him to

      pay a $50 public defender recoupment fee. We conclude that: (1) the State

      presented sufficient evidence to support Davis’ carrying a handgun without a

      license conviction; and (2) the trial court abused its discretion by ordering Davis

      to pay the public defender fee without first making a finding regarding an ability

      to pay. Therefore, we affirm Davis’ conviction, reverse the trial court’s

      imposition of the public defender fee, and remand for a determination of Davis’

      ability to pay.


[2]   We affirm in part, reverse in part, and remand.


                                                     Issues

               1. Whether there was sufficient evidence to support Davis’ carrying
                  a handgun without a license conviction.

               2. Whether the trial court abused its discretion by ordering Davis
                  to pay the public defender fee.

                                                     Facts




      1
          IND. CODE § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020   Page 2 of 13
[3]   On April 26, 2016, Indianapolis Metropolitan Police Department Officer Carl

      Clark (“Officer Clark”) observed a black Honda Pilot with no lights illuminated

      drive in front of his police vehicle. Officer Clark ran the license plate on the

      vehicle, and the plate number came back as registered to a different vehicle.

      Officer Clark then initiated a traffic stop and made contact with the driver,

      Davis.


[4]   Officer Clark ran Davis’ information and learned that his license had been

      suspended. When Officer Clark asked for the vehicle’s registration, Davis

      stated that he did not have it. Officer Clark then obtained the vehicle

      identification number to ascertain the vehicle’s owner. The officer learned that

      the Honda had been reported stolen.


[5]   When Officer Clark’s backup arrived, Officer Clark approached the vehicle,

      removed Davis and his passenger, and secured them with handcuffs. Officer

      Clark performed a pat-down search of Davis and found a bag of marijuana in

      Davis’ front right cargo pocket. When Officer Clark searched the vehicle, he

      found a loaded handgun underneath the driver’s seat where Davis had been

      sitting. The officer then checked to see if Davis had a valid permit for the

      handgun, which he did not. Thereafter, Officer Clark read Davis and the

      passenger their Miranda rights and interviewed them both. Davis explained that

      he had borrowed the vehicle from his brother to go to the store and stated that

      he did not know anything about the handgun. Officer Clark then arrested

      Davis.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020   Page 3 of 13
[6]   The State charged Davis with Class A misdemeanor carrying a handgun

      without a license and Class B misdemeanor possession of marijuana. In early

      May 2016, Davis appeared for his initial hearing. Davis informed the court that

      he did not know if he would be hiring counsel. Thereafter, the following

      colloquy ensued:


               THE COURT: Well, how do you support yourself?

               DEFENDANT: Uh, right now I’m detailing cars.

                                                           ***

               THE COURT: So here’s what I’m going to do: I’m going to – you
               make good money detailing cars – how much is it – how much do
               you get for detailing cars?

               DEFENDANT: I initially get $10.00 for every car[.]

      (IH. Tr. 6).2 Based on Davis’ income, the trial court did not appoint a public

      defender but found that Davis qualified for the Indianapolis Bar Association’s

      Modest Means program. The trial court also gave Davis a list of attorneys who

      practice in the courtroom on a regular basis and informed Davis that he should

      be able to find an attorney who would provide an “acceptable fee waiver.” (IH.

      Tr. 8). The trial court set a status of counsel hearing for the end of May.


[7]   At the ensuing status of counsel hearing, Davis appeared without counsel.

      Davis explained that he had called the attorneys on the list who regularly




      2
        We have three separate transcript volumes for this appeal. We will refer to the initial hearing transcript as
      (IH. Tr.), Davis’s status of counsel and pretrial hearings transcript as (Hrg. Tr.), and the bench trial and
      sentencing transcript as (Tr.).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020                       Page 4 of 13
      practice in the courtroom but that he had not called the Modest Means

      program. He also stated that since his last hearing, he had lost his job.

      However, Davis informed the court that he had “orientation and also a[n]

      interview[]” later in the week. (Hrg. Tr. 5). Thereafter, the trial court

      appointed the public defender’s office to represent Davis and ordered that he

      pay a $50 public defender recoupment fee.


[8]   Nearly three years later, the trial court held a bench trial in April 2019. Officer

      Clark testified about conducting the traffic stop, finding the handgun, and

      arresting Davis. Officer Clark specifically testified that the loaded handgun

      “was right underneath the driver’s seat and very easy to reach. It was not

      difficult to find.” (Tr. 10). In his case-in-chief, Davis called his brother,

      Alexander Williams (“Williams”), as his only witness. Williams testified that

      he had borrowed the vehicle from an acquaintance and that he had allowed

      Davis to drive the vehicle the night Davis was stopped. Williams further

      testified that he had no knowledge of a handgun ever being in the vehicle.


[9]   At the conclusion of evidence, the trial court stated that Davis’ case was about

      “constructive possession . . . not about ownership. It’s about whether or not the

      evidence was sufficient to establish that [Davis] constructively possessed the

      handgun, as required to establish the offense of carrying a handgun without a

      license, where he was stopped in a reported stolen vehicle.” (Tr. 32). The trial

      court further explained that “[b]ased on the testimony of the officer and based

      on the testimony of Mr. Williams, the Court finds that the State has met its

      burden, and [the] State has proved its case beyond a reasonable doubt that

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020   Page 5 of 13
       [Davis] did constructively possess a handgun, carrying a handgun without a

       license.” (Tr. 33). The trial court also found Davis guilty of the possession of

       marijuana charge.3


[10]   The trial court sentenced Davis to three hundred and sixty-five (365) days in the

       Marion County Jail, credit for ten (10) days, with three hundred and fifty-five

       (355) days suspended to probation for his carrying a handgun without a license

       conviction. The trial court sentenced Davis to one hundred and eighty (180)

       days, credit for ten (10) days, with the remaining one hundred and seventy

       (170) days suspended to probation for his possession of marijuana conviction.

       The court ordered both counts to run concurrently. After acknowledging that it

       had already assessed the public defender recoupment fee, the trial court

       imposed court costs and waived probation fees. Davis now appeals.


                                                         Decision

[11]   Davis argues that: (1) there was insufficient evidence to support his carrying a

       handgun without a license conviction; and (2) the trial court abused its

       discretion when it ordered him to pay a $50 public defender recoupment fee.

       We will address each argument in turn.


       1. Sufficiency of Evidence




       3
           Davis does not challenge this conviction in this appeal.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020   Page 6 of 13
[12]   Davis challenges the sufficiency of the evidence for his carrying a handgun

       without a license conviction. Our standard of review for sufficiency of evidence

       claims is well-settled. We do not assess the credibility of the witnesses or

       reweigh the evidence in determining whether the evidence is sufficient. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). We consider the probative evidence

       and reasonable inferences supporting the verdict. Id. Reversal is appropriate

       only when no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt. Id. Thus, the evidence is not required to overcome

       every reasonable hypothesis of innocence and is sufficient if an inference may

       reasonably be drawn from it to support the verdict. Id. at 147.


[13]   In order to convict Davis of carrying a handgun without a license, the State was

       required to prove beyond a reasonable doubt that Davis “carr[ied] a handgun in

       any vehicle or on or about [his] body without being licensed under this chapter

       to carry a handgun.” I.C. § 35-47-2-1. To prove that a defendant possessed

       contraband, the State may prove either actual or constructive possession.

       Eckrich v. State, 73 N.E.3d 744, 746 (Ind. Ct. App. 2017), 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). When, as in this case, the State

       proceeds on a theory of constructive possession, it must show that the

       defendant had “both the intent and capability to maintain dominion and

       control over the [handgun].” Bradshaw v. State, 818 N.E.2d 59, 62-63 (Ind. Ct.

       App. 2004).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020   Page 7 of 13
[14]   Beginning with the capability prong of constructive possession, the State must

       demonstrate that the defendant had the ability to maintain dominion and

       control over the handgun; in other words, to reduce the handgun to his personal

       possession. Griffin v. State, 945 N.E.2d 781, 783 (Ind. Ct. App. 2011). Here,

       Officer Clark testified that he discovered the loaded handgun directly beneath

       the driver’s seat that Davis had occupied when the stop had occurred.

       Specifically, the officer stated that the handgun “was right underneath the

       driver’s seat and very easy to reach.” (Tr. 10). Accordingly, the State presented

       sufficient evidence to show that Davis was able to maintain dominion and

       control over the handgun.


[15]   To prove intent, the State must demonstrate the defendant’s knowledge of the

       presence of the firearm. Griffin, 945 N.E.2d at 784. In cases where the accused

       has exclusive possession of the premises on which the contraband is found, an

       inference is permitted that he knew of the presence of the contraband and was

       capable of controlling it. Id. Where, as here, the control is non-exclusive,

       knowledge may be inferred from evidence of additional circumstances pointing

       to the defendant’s knowledge of the presence of the firearm. Causey v. State, 808

       N.E.2d 139, 143 (Ind. Ct. App. 2004). These additional circumstances may

       include: (1) incriminating statements made by the defendant; (2) attempted

       flight or furtive gestures; (3) proximity of the firearm to the defendant; (4)

       location of the firearm within the defendant’s plain view; or (5) the mingling of

       a firearm with other items owned by the defendant. Deshazier v. State, 877

       N.E.2d 200, 206 (Ind. Ct. App. 2007), trans. denied. In addition to the above


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020   Page 8 of 13
       circumstances, we have also recognized that the nature of the place in which

       the contraband is found can be an additional circumstance that demonstrates

       the defendant’s knowledge of the contraband. Johnson v. State, 59 N.E.3d 1071,

       1073 (Ind. Ct. App. 2016). These circumstances are non-exhaustive and

       ultimately, our question is whether a reasonable fact-finder could conclude from

       the evidence that the defendant knew of the nature and presence of the

       contraband. Id. at 1074.


[16]   The evidence presented at trial established that Davis, with an expired driver’s

       license, was driving a stolen vehicle4 when Officer Clark initiated the traffic

       stop. The loaded handgun recovered from the vehicle was located underneath

       the driver’s seat, which Davis occupied. During the stop, Davis told the officers

       that the vehicle was his brother’s and claimed that he did not know anything

       about the handgun. At trial, Davis’ brother acknowledged his connection to the

       vehicle and stated that he also had no knowledge of a handgun ever being in the

       vehicle. Accordingly, there was sufficient evidence of additional circumstances

       to support the inference of Davis’ knowledge of the nature and presence of the

       handgun.




       4
        The key additional circumstances having a bearing on Davis’ knowledge of the handgun is the status of the
       vehicle––it was reported stolen. The location of the handgun under the driver’s seat has meager value in
       proving Davis’ knowledge of the handgun; even lawful gun owners can place handguns under their seats in
       automobiles. The vehicle’s status combined with William’s testimony that he knew nothing about the
       handgun distinguishes this case from other constructive possession cases cited by Davis.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020                  Page 9 of 13
[17]   Based on the above, we conclude that the trial court, as trier of fact, could have

       reasonably inferred that Davis had the capability and intent to maintain

       dominion and control over the handgun and that he constructively possessed

       the handgun. Davis’ arguments are simply a request that we reweigh the

       evidence, which we cannot do. See Drane, 867 N.E.2d at 146.


       2. Public Defender Recoupment Fee


[18]   Davis next argues that the trial court abused its discretion when it assessed a

       $50 public defender recoupment fee. Specifically, Davis argues that the trial

       court did not determine his ability to pay before assessing the public defender

       fee. “[D]ecisions to impose restitution, fines, costs, or fees, are generally left to

       the trial court’s discretion.” Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct.

       App. 2009). An abuse of discretion has occurred when the trial court’s decision

       is clearly against the logic and effect of the facts and circumstances before the

       court, or the reasonable, probable, and actual deductions to be drawn

       therefrom. Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App. 2016). If the

       fees imposed by the trial court fall within the parameters provided by statute,

       we will not find an abuse of discretion. Berry v. State, 950 N.E.2d 798, 799 (Ind.

       Ct. App. 2011).


[19]   There are three statutory provisions that allow a trial court to impose fees on a

       defendant to offset public defender costs, and the trial court can order

       reimbursement under any or a combination thereof. Jackson v. State, 968




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020   Page 10 of 13
       N.E.2d 328, 333 (Ind. Ct. App. 2012). Both Davis and the State rely on

       INDIANA CODE § 33-40-3-6, which provides in pertinent part:


            (a) If at any stage of a prosecution for a felony or a misdemeanor the
            court makes a finding of ability to pay the costs of representation under
            section 7 of this chapter, the court shall require payment by the person .
            . . of the following costs in addition to other costs assessed against the
            person:

                (1) Reasonable attorney’s fees if an attorney had been appointed
                for the person by the court.

                (2) Costs incurred by the county as a result of court appointed
                legal services rendered to the person.

       I.C. § 33-40-3-6(a). 5


[20]   INDIANA CODE § 33-40-3-6 applies only in those situations where the court

       makes a finding of an ability to pay under the enumerated factors in INDIANA

       CODE § 33-40-3-7. The factors that the court shall consider include:


                (1) the person’s independently held assets and assets available to
                the spouse of the person or the person’s parents if the person is
                unemancipated; (2) the person’s income; (3) the person’s liabilities;
                and (4) the extent of the burden that payment of costs assessed



       5
         The two other statutes address the trial court’s authority to order a defendant to pay all or part of the costs
       of counsel provided at public expense. The first, INDIANA CODE § 35-33-7-6, provides that the trial court may
       impose a public defender supplemental fund fee before completing the initial hearing. Under this statute, the
       trial court is required to determine whether the defendant is indigent. I.C. § 35-33-7-6(a). If the defendant is
       found to be indigent, the costs of representation are $100 in felony cases and $50 in misdemeanor cases. I.C.
       § 35-33-7-6(c). Because the trial court did not find Davis indigent, it is unlikely that the public defender fee
       was ordered pursuant to INDIANA CODE § 35-33-7-6.
       The next statute, INDIANA CODE § 33-37-2-3, provides that the trial court may impose part of the costs of
       representation upon a convicted person, provided that the trial court first determine that such person is not
       indigent. Further, this Court has held that INDIANA CODE § 33-37-2-3 “explicitly requires an indigency
       hearing.” Berry, 950 N.E.2d at 801-02. Here, the trial court imposed the public defender fee prior to Davis’
       conviction and did not hold an indigency hearing. Thus, this statute is inapplicable.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020                      Page 11 of 13
               under section 6 of this chapter would impose on the person and
               dependents of the person.

       I.C. § 33-40-3-7(a) (format altered). “If, after considering the factors described

       in subsection (a), the court determines that the person is able to pay the costs of

       representation, the court shall enter a finding that the person is able to pay those

       additional costs.” I.C. § 33-40-3-7(b).


[21]   Here, the trial court did not specify which statute, or combination of statutes,

       authorized the public defender fee it imposed. Our review of the record reveals

       that at Davis’ initial hearing, the trial court asked how he supported himself.

       Based on his income, the trial court did not appoint a public defender but found

       that Davis qualified for the Modest Means program. At the ensuing status of

       counsel hearing, the court only inquired about why Davis had returned without

       counsel. Davis informed the court that since his last hearing, he had lost his

       job. Immediately thereafter, the trial court appointed the public defender’s

       officer and imposed the public defender recoupment fee.


[22]   Davis is correct that the trial court did not make a finding regarding an ability

       to pay. The trial court’s brief inquiry into Davis’ income was too cursory to

       satisfy the requirements of finding of an ability to pay under INDIANA CODE §

       33-40-3-6 based on the criteria set forth in INDIANA CODE § 33-40-3-7. See

       Jackson, 968 N.E.2d at 334 (explaining that “although the trial court asked [the

       defendant] if he could work, we cannot say this constituted a sufficient inquiry

       into [the defendant’s] ability to pay[]”). Accordingly, the trial court abused its

       discretion by imposing the $50 public defender recoupment fee. Therefore, we


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020   Page 12 of 13
       reverse the trial court’s imposition of the fee and remand for a determination of

       Davis’ ability to pay.


[23]   Affirmed in part, reversed in part, and remanded.


       Bradford, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1182 | June 12, 2020   Page 13 of 13
