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 2019, 6:50 am

court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
the defense of res judicata, collateral                                            Court of Appeals
                                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott H. Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Johnny Cross,                                      June 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2499
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause Nos.
                                                         71D02-1403-FC-64
                                                         71D02-1510-F5-227



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019                           Page 1 of 6
                                       Statement of the Case
[1]   David Johnny Cross (“Cross”) appeals his conviction following a jury trial of

      Level 5 felony carrying a handgun without a license.1 He argues that there is

      insufficient evidence to support his conviction. Concluding that the evidence is

      sufficient, we affirm Cross’ conviction.


[2]   We affirm.


                                                     Issue
                Whether there is sufficient evidence to support Cross’ conviction.


                                                     Facts
[3]   The facts most favorable to the verdict reveal that the trial court issued a bench

      warrant for Cross’ arrest in March 2015. Seven months later, Cross was still at

      large. South Bend Police Department officers noticed Cross’ car parked in front

      of a house. Two officers who were assigned to watch Cross’ car and the house

      noticed Cross leave the house carrying a drawstring bag.


[4]   Cross got into the front passenger seat of Dornisha Wallace’s (“Wallace”) car

      and Wallace drove away from the house. Cross placed the drawstring bag at

      his feet when he got into the car. In the first two to three minutes that Cross




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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019   Page 2 of 6
      was in the car, Wallace saw him bend down near the bag, but she could not see

      what he was doing.


[5]   Police officers followed the car, and they noticed Cross moving around in the

      passenger seat and looking out the back window at them. Cross told Wallace to

      pull over into a parking lot to see what the officers would do. As the officers

      surrounded Wallace’s car, Cross exited the vehicle without being asked to do

      so. One of the officers placed Cross in the back of a police car. When an

      officer asked Cross what he would find in the car, Cross responded, “maybe a

      gun.” (Tr. at 64). A search of the vehicle revealed a handgun under the front

      passenger’s seat. The gun’s grip was facing forward, and the gun was located

      next to Cross’ bag.


[6]   Wallace told the officers that the gun did not belong to her and that she had

      never seen it. She further explained that she had just purchased the car two to

      three days before and she had cleaned and vacuumed under all the seats at that

      time. She had found nothing under the seats. Cross was the first person to ride

      in the front passenger seat.


[7]   A jury convicted Cross of Level 5 felony carrying a handgun without a license.

      He now appeals.


                                                  Decision
[8]   Cross argues that there is insufficient evidence to support his conviction for

      Level 5 felony carrying a handgun without a license. Specifically, he contends

      that there is insufficient evidence that he constructively possessed the handgun.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019   Page 3 of 6
       Our standard of review for sufficiency of the evidence claims is well settled.

       We consider only the probative evidence and reasonable inferences supporting

       the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not

       reweigh the evidence or judge witness credibility. Id. We will affirm the

       conviction unless no reasonable fact finder could find the elements of the crime

       proven beyond a reasonable doubt. Id. The evidence is sufficient if an

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


[9]    In order to convict Cross of Level 5 felony carrying a handgun without a

       license, the State had the burden to prove beyond a reasonable doubt that Cross

       carried a handgun without a license in a vehicle or on or about his person after

       having previously been convicted of a felony within fifteen years. See IND.

       CODE § 35-47-2-1. To satisfy these elements, the State must prove the

       defendant had either actual or constructive possession of the handgun. Negash

       v. State, 113 N.E.3d 1281, 1291 (Ind. Ct. App. 2018). Actual possession occurs

       when a person has direct physical control over an item, whereas constructive

       possession occurs when a person has the intent and the capability to maintain

       dominion and control over the item. Id.


[10]   To fulfill the intent element of constructive possession, the State must

       demonstrate the defendant’s knowledge of the presence of the firearm. Griffin v.

       State, 945 N.E.2d 781, 783 (Ind. Ct. App. 2011). 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. see also Causey v. State, 808 N.E.2d 139, 143 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019   Page 4 of 6
       Ct. App. 2004) (explaining that knowledge may be inferred from exclusive

       dominion and control over the premises containing the firearm). Where 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, 808 N.E.2d at 143. 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; and (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. To fulfill the capability

       requirement of constructive possession, the State must demonstrate that the

       defendant had the ability to reduce the firearm to his personal possession.

       Griffin, 945 N.E.2d at 783.


[11]   Here, our review of the evidence reveals that the handgun was under Cross’ seat

       next to his bag and easily within his reach. Cross was therefore able to reduce

       the handgun to his personal possession. Further, although Cross did not have

       exclusive possession of the vehicle where the handgun was found, there were

       additional circumstances proving Cross’ knowledge of the presence of the

       handgun and his ability to control it. First, Cross made an incriminating

       statement to the officers that they might find a gun in Wallace’s car. The police

       officers noticed Cross moving around in the car and looking back at them. The

       gun was found under the front passenger seat next to Cross’ bag. Cross was the

       first person to ride in the front passenger seat. Together, the incriminating


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019   Page 5 of 6
       statement, Cross’ furtive gestures, and his close proximity to the gun

       demonstrate the additional circumstances required to show his knowledge of

       the handgun and ability to maintain dominion and control over it.


[12]   Based on this evidence, we find that there was sufficient evidence that Cross

       constructively possessed the handgun to support his conviction for carrying a

       handgun without a license. Cross’ arguments are simply a request that we

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


[13]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019   Page 6 of 6
