                                                                                       FILED
                                                                                   Feb 08 2017, 8:42 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Karen Celestino-Horseman                                   Curtis T. Hill, Jr.
      Indianapolis, Indiana                                      Attorney General of Indiana

                                                                 Monika Prekopa Talbot
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Matthew James Cole,                                        February 8, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1603-CR-542
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Marc T.
      Appellee-Plaintiff                                         Rothenberg, Judge
                                                                 Trial Court Cause No.
                                                                 49G02-1506-F3-22317



      Altice, Judge.


                                                 Case Summary


[1]   Following a jury trial, Matthew Cole was convicted of Level 3 felony resisting

      law enforcement, Level 5 felony possession of an altered handgun, Level 5


      Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017                           Page 1 of 17
      felony possession of methamphetamine, Level 5 felony possession of a narcotic

      drug, three counts of class A misdemeanor carrying a handgun without license,

      and class A infraction possession of paraphernalia. On appeal, Cole argues that

      the State presented insufficient evidence to support a number of his convictions.


[2]   We affirm.


                                        Facts & Procedural History

[3]   While on patrol during the early evening hours of June 23, 2015, Officer

      Timothy Elliott of the Indianapolis Police Department parked his marked

      police vehicle on an access road in Washington Park in Indianapolis. Officer

      Elliott heard a car engine rev and saw pedestrians leaping out of the way of a

      car traveling down the access road at a high rate of speed. Officer Elliott

      activated his lights and positioned his vehicle to block the car’s path. When it

      reached Officer Elliott’s vehicle, the car came to an abrupt stop.


[4]   When Officer Elliott approached the vehicle, he observed two male occupants

      and saw a knife near the center console. Officer Elliott asked the driver, who

      was later identified as Cole, for his license and registration. Cole had very

      contracted pupils and appeared to be nervous. Specifically, Cole would not

      look Officer Elliott in the eye, repeatedly looked toward his passenger, stuttered

      while answering questions, and was evasive and unable to give specific answers

      when asked where he had been and where he was going. Cole gave Officer

      Elliott a picture identification card that clearly belonged to someone else. Cole

      reached toward the glove box, then stopped and stated that the vehicle belonged
      Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 2 of 17
      to his friend and that he did not have the registration. Based on this behavior,

      Officer Elliott believed that Cole was under the influence of drugs.


[5]   Meanwhile, the passenger, Joshua Dyer, opened the glove box and reached

      inside and also reached down toward the floorboard. Officer Elliott ordered

      Dyer to keep his hands where he could see them. Dyer gave his identification

      to Officer Elliott. As Officer Elliott walked toward the back of the car to get the

      license plate number, the car sped away. Officer Elliott immediately called for

      backup and got back into his vehicle and began pursuing the car with his lights

      and sirens activated.


[6]   Cole led Officer Elliott and other responding officers on a high-speed chase,

      during which Cole repeatedly crossed into the path of oncoming traffic, failed

      to stop at several stop signs, endangered pedestrians, went airborne on at least

      two occasions, and reached a top speed of approximately ninety miles per hour.

      At the end of the pursuit, Cole drove through the parking lot of a fast food

      restaurant, into a residential alley, and came to a stop in a residential backyard

      after crashing through a fence.


[7]   By the time the car came to a stop, IMPD Officer Derrick Harper had joined

      the pursuit. Officer Harper parked his police car beside Officer Elliott in the

      driveway of the residence. Officers Elliott and Harper both exited their vehicles

      and approached the car with their weapons drawn—Officer Elliott on the

      driver-side and Officer Harper on the passenger-side—while shouting

      commands for Cole and Dyer to exit the vehicle with their hands up.


      Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 3 of 17
[8]   Cole opened the driver-side door and put his hands in the air, but then pulled

      the door closed. Dyer opened the passenger-side door with his left hand and

      then put his left hand out while keeping his right hand hidden. Dyer then

      briefly put his right foot on the ground as if he was going to get out of the car,

      but then pulled it back inside. Dyer then started rummaging around on the

      floorboard and under his seat, continuing to disregard the officers’ commands

      to put his hands up. Officer Harper then observed Dyer, who was bent over

      and whose hands were not in view, make a motion with his shoulder that

      Officer Harper believed was consistent with cocking a firearm. Dyer then sat

      up and began to raise his right elbow as if he had something in his hand. At the

      same time, Cole put the car in reverse and accelerated. The car fishtailed first

      toward Officer Elliott and then toward Officer Harper, who was trapped

      between the accelerating car and the fence. In response to the threat of the

      oncoming car and believing that Dyer was armed and preparing to fire on him,

      Officer Harper shot and fatally wounded Dyer. Officer Harper was unable to

      get a clear shot at Cole, so he did not fire again. Cole continued to accelerate

      and only surrendered when the car became stuck on a chain-link fence.


[9]   After Cole was taken into custody, police searched the car and discovered three

      handguns—a .22 revolver and a 9mm Taurus were found in the glove box and a

      Ruger .380 with an obliterated serial number was found on the rear passenger

      floorboard. Additionally, a large amount of ammunition and numerous

      syringes were found throughout the car. In the center console, police found two




      Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 4 of 17
       digital scales, a glass pipe with methamphetamine residue, and a manicure kit

       containing a spoon with heroin residue, a razor blade, and .35 grams of heroin.


[10]   As a result of these events, Cole was charged as follows: Count I, Resisting

       Law Enforcement as a Level 3 felony; Count II, Possession of an Altered

       Handgun, a Level 5 felony; Count III, Possession of Methamphetamine as a

       Level 5 felony; Count IV, Possession of a Narcotic Drug as a Level 5 felony,

       Counts V-VII, Carrying a Handgun Without a License as a class A

       misdemeanor; and Count VIII, Possession of Paraphernalia as a class A

       infraction.1 A two-day jury trial commenced on November 10, 2016, at the

       conclusion of which Cole was found guilty as charged. The trial court

       sentenced Cole to an aggregate term of eighteen years, with ten years executed

       and eight years suspended to probation. Cole now appeals.


                                             Discussion & Decision


[11]   On appeal, Cole argues that the State presented insufficient evidence to support

       his convictions. In reviewing a challenge to the sufficiency of the evidence, we

       neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.

       State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the

       evidence supporting the conviction and the reasonable inferences flowing

       therefrom. Id. If there is substantial evidence of probative value from which a




       1
        Effective July 1, 2015, this offense has been reclassified as a Class C misdemeanor. See Ind. Code § 35-48-4-
       8.3.

       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017                       Page 5 of 17
       reasonable trier of fact could have drawn the conclusion that the defendant was

       guilty of the crime charged beyond a reasonable doubt, the judgment will not be

       disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It

       is not necessary that the evidence overcome every reasonable hypothesis of

       innocence; rather, the evidence is sufficient if an inference may reasonably be

       drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147

       (Ind. 2007).

                                          1. Resisting Law Enforcement


[12]   Cole first challenges his conviction for resisting law enforcement as a Level 3

       felony. A person commits resisting law enforcement as a class A misdemeanor

       if he or she knowingly or intentionally “forcibly resists, obstructs, or interferes

       with a law enforcement officer or a person assisting the officer while the officer

       is lawfully engaged in the execution of the officer’s duties[.]” Ind. Code § 35-

       44.1-3-1(a)(1). The offense is elevated to a Level 3 felony if, while committing

       the offense, “the person operates a vehicle in a manner that causes the death of

       another person[.]” I.C. § 35-44.1-3-1(b)(3). On appeal, Cole argues that the

       evidence was insufficient to support the elevation of his conviction to a Level 3

       felony because the State failed to prove that it was Cole’s operation of the car

       that caused Dyer’s death. Instead, he argues that Dyer’s death was caused by

       Officer Harper, who shot Dyer in response to Dyer’s own actions in making

       furtive movements and refusing to show his hands.




       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 6 of 17
[13]   This court recently discussed causation in the context of the resisting law

       enforcement statute in Moore v. State, 49 N.E.3d 1095 (Ind. Ct. App. 2016),

       trans. denied. In that case, the court was asked to consider whether the evidence

       was sufficient to establish that the defendant had caused the injury sustained by

       the arresting officer when he fell down while chasing the fleeing defendant. Id.

       at 1106; see also I.C. § 35-44.1-3-1(b)(1)(B) (elevating resisting law enforcement

       to a Level 6 felony when the defendant “inflicts bodily injury on or otherwise

       causes bodily injury to another person”). The court held that the defendant’s

       acts of resistance must be a proximate cause of the injury, and not merely a

       contributing cause. Id. at 1107-08. As the court noted, a contributing cause is

       “a factor that—though not the primary cause—plays a part in producing a

       result.” Id. at 1107 (quoting Abney v. State, 766 N.E.2d 1175, 1178 (Ind. 2002)).

       The court described proximate cause as follows:

               A finding of proximate cause embodies a value judgment as to
               the extent of the physical consequences of an action for which the
               actor should be held responsible. Accordingly, “proximate cause
               questions are often couched in terms of ‘foreseeability;’ an actor
               is not held responsible for consequences which are
               unforeseeable.” It follows that, where an intervening cause is
               claimed as superseding the defendant’s actions, the intervening
               cause must be unforeseeable to relieve the defendant of criminal
               liability.


       Id. at 1107-08 (quoting Gibbs v. State, 677 N.E.2d 1106, 1109 (Ind. Ct. App.

       1997)).




       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 7 of 17
[14]   Applying the proximate cause standard, the majority in Moore found the

       evidence insufficient to prove that the defendant’s actions caused the arresting

       officer’s injuries. The court noted that the officer would not have been injured

       if he had not pursued the defendant, but reasoned that “that fact is only

       sufficient to prove that Moore was a contributing cause of the injury” and that

       “[t]he actual cause of [the officer's] fall [was] not clear from the record.” Id. at

       1108. Judge Bradford dissented, reasoning that the evidence was sufficient to

       support a finding of proximate cause because “it is not unreasonable to

       anticipate that a consequence of fleeing from the police would be that an officer

       could fall and be injured during the ensuing chase.” Id. at 1109 (Bradford, J.,

       dissenting).


[15]   Cole directs our attention to two additional cases, both of which predate Moore

       and neither of which employed the proximate-cause standard. In Whaley v.

       State, 843 N.E.2d 1, 10-11 (Ind. Ct. App. 2006), trans. denied, this court held that

       the defendant had caused injuries to the arresting officers so as to support the

       elevation of his resisting law enforcement charges to class D felonies. In that

       case, Whaley was lying on the ground and put his arms underneath his body to

       prevent the officers from handcuffing him. The officers had to hit Whaley’s

       forearms in order to bring his arms behind his back, and both officers sustained

       injuries in the process of doing so. This court held that the convictions were

       properly elevated because the officers’ injuries “were directly related to and

       caused by Whaley’s resisting arrest.” Id. at 11.




       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 8 of 17
[16]   In Smith v. State, 21 N.E.3d 121, 125-26 (Ind. Ct. App. 2014), however, another

       panel of this court found the evidence insufficient to support a finding that the

       defendant had inflicted or otherwise caused bodily injury to the arresting officer

       as necessary to support the elevation of the crime to a class D felony. In that

       case, Smith refused to put her hands behind her back to be handcuffed even

       after receiving a “knee strike” from the officer, so the officer pulled her arm

       “possibly as hard as [he] could” and they both ended up on the ground. Id. at

       123. During this process, the officer sustained injuries to his knuckles and

       fingers. In reversing the elevation of Smith’s conviction, the Smith court

       reasoned that “we do not believe a person who is thrown to the ground

       necessarily ‘inflicts’ or ‘causes’ an injury suffered by the person who throws her

       to the ground[.]” Id. at 125. The court went on to distinguish Whaley, noting

       that “[u]nlike Whaley, Smith did not create a scenario in which Officer

       Jones’[s] only option in handcuffing her was to remove her hands from a

       location in which he could not reach.” Id. at 126.


[17]   Although Smith and Whaley did not use the language of proximate cause, in

       Moore, 49 N.E.3d at 1108, this court noted that those cases may be interpreted

       in a manner consistent with that standard.


               [I]n Whaley, Whaley was the direct cause of the officers’ injuries
               because he left the officers no other choice but to hit his arms. In
               terms of proximate cause, this meant that the officers’ injuries
               were a highly foreseeable result of Whaley’s actions. In contrast,
               in Smith, the officer had other options, and his decision to take
               Smith “to the ground” and injure himself was not as foreseeable.
               Therefore, although the Smith Court did not frame its decision in

       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 9 of 17
               terms of proximate cause, we interpret the Smith Court’s holding
               to imply that Smith’s actions were not a proximate cause of the
               officer's injuries.


       Id.


[18]   Thus, we are brought back to the touchstone of our proximate cause analysis—

       foreseeability. Although Cole cites Moore and acknowledges that the proximate

       cause standard is controlling, in his analysis, he does not discuss the

       foreseeability of the shooting that led to Dyer’s death. Instead, he simply

       argues that while his operation of the car might have been a contributing factor,

       “[t]he proximate cause of Dyer’s death was the shooting of Dyer by Officer

       Harper and Officer Harper pulled that trigger because he thought Dyer was

       going to try and shoot him.” Appellant’s Brief at 17. We interpret this as an

       argument that an intervening cause—whether it be Officer Harper’s decision to

       fire his weapon or Dyer’s furtive gestures and refusal to show his hands—

       superseded Cole’s actions. But as we noted above, this court has explained that

       an intervening cause must itself be unforeseeable if it is to relieve the defendant

       of criminal liability. See Moore, 49 N.E.3d at 1107-08.


[19]   The foreseeability of an intervening cause presents a question of fact for the

       jury. Marlow v. Better Bars, Inc., 45 N.E.3d 1266, 1275 (Ind. Ct. App. 2015),

       trans. denied. Under the circumstances of this case, we conclude that all of the

       events Cole claims to be superseding causes were foreseeable. Cole and Dyer

       were attempting to evade police in a car containing multiple firearms and a

       large amount of ammunition. In fleeing from police, Cole drove very

       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 10 of 17
       recklessly, crossing into the path of oncoming traffic, disregarding traffic

       signals, nearly striking pedestrians, and reaching a top speed of approximately

       ninety miles per hour before crashing through a fence and coming to a stop in a

       residential backyard. When police approached the car, Cole accelerated toward

       them, and Officer Harper was trapped between a fence and the oncoming car.

       Simultaneously, Dyer was reaching down, and although Officer Harper could

       not see what he was doing, it appeared that Dyer was cocking a gun. In light of

       these facts, it was reasonable for the jury to conclude that Cole and Dyer were

       acting in concert to evade the police by any means necessary, including the use

       of deadly force against the officers, and Dyer’s furtive movements and refusal to

       show his hands were therefore easily foreseeable. It was equally foreseeable

       that a police officer would respond by firing on the occupants of the vehicle.

       Contrary to Cole’s arguments, it makes little difference that Officer Harper shot

       Dyer rather than Cole. Officer Harper testified as follows:

               This is a very, very small amount of time. I assessed that the first
               threat was the person with the gun and the second threat is the
               car moving. You can’t really decipher which one is more
               important. It’s just you go with what you see and have a picture
               of. I know I can’t shoot a car. So I shot the person with the gun.


       Transcript at 167. Officer Harper testified further that if he had been able to get

       a clear shot, he would have shot Cole as well.


[20]   In sum, Cole created a situation in which Officer Harper’s only option to

       protect himself was to discharge his weapon. The fact that Officer Harper was

       able to get a clear shot at Dyer and not Cole does nothing to relieve Cole of

       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 11 of 17
       responsibility for the foreseeable results of his actions. For all of these reasons,

       we conclude that the State presented sufficient evidence to prove that Cole’s

       operation of the car was a proximate cause of Dyer’s death. Accordingly, his

       resisting law enforcement conviction was properly elevated to a Level 3 felony.

                                      2. Possession of an Altered Handgun


[21]   Next, Cole argues that the evidence was insufficient to support his conviction

       for possession of an altered handgun, a Level 5 felony. In order to support this

       conviction, the State was required to prove that Cole “possess[ed] any handgun

       on which the name of the maker, model, manufacturer's serial number, or other

       mark of identification has been changed, altered, removed, or obliterated[.]”

       Ind. Code § 35-47-2-18. This court has interpreted this statute to also require

       the State to prove that the defendant knew that the handgun had been altered.

       Robles v. State, 758 N.E.2d 581, 583 (Ind. Ct. App. 2001), trans. denied. Cole

       does not dispute that he possessed the Ruger or that its serial number was

       obliterated. Instead, he argues that the State presented insufficient evidence to

       prove that he was aware that the Ruger had been altered.


[22]   “A person engages in conduct ‘knowingly’ if, when he engages in the conduct,

       he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b);

       see also Robles, 758 N.E.2d at 583. Knowledge may be proven by circumstantial

       evidence and inferred from the facts and circumstances presented in a particular

       case. Robles, 758 N.E.2d at 583. In Robles, our Supreme Court concluded that

       the evidence was sufficient to permit a reasonable inference that the defendant


       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 12 of 17
       was aware that the handgun he possessed was altered because “the spot where

       the serial number had been filed off was ‘shiny’” and the defendant had

       “possessed the gun for over a week and had ample opportunity to discover that

       the serial number had been removed.” Id. at 584. In Wagerman v. State, on the

       other hand, this court found that the evidence was insufficient to establish

       knowledge where the weapons at issue were “thrust upon” the defendant by his

       companions mere seconds before he was searched. 597 N.E.2d 13, 14 (Ind. Ct.

       App. 1992), trans. denied. Under those circumstances, this court held that the

       defendant had no opportunity to apprise himself of the facts and avoid the

       prohibited conduct. Id. at 16.


[23]   The evidence in this case was sufficient to support a reasonable inference that

       Cole had the opportunity to apprise himself of the fact that the Ruger had been

       altered. When police searched the car, they found the Ruger within Cole’s

       reach on the rear passenger floor board. Moreover, the holster Cole was

       wearing on his belt at the time of his arrest was sized to fit the Ruger and its

       curvature and wear patterns matched the Ruger. This evidence supports an

       inference that Cole not only possessed the Ruger, but had been carrying it on

       his person for some length of time. Under these circumstances, it was

       reasonable for the jury to infer that Cole knew that the Ruger had been altered.

                                        3. Possession of a Narcotic Drug


[24]   Cole next argues that the State presented insufficient evidence to support his

       conviction for Level 5 felony possession of a narcotic drug, i.e., heroin. His


       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 13 of 17
argument, however, is premised on a misunderstanding of the evidence

presented at trial and relied upon by the State. Specifically, Cole asserts that he

was convicted of possessing heroin found in Dyer’s groin area during an

autopsy. A review of the record reveals that this is not the case. As an initial

matter, the substance found on Dyer’s body during his autopsy was

methamphetamine, not heroin.2 Second, the record reveals that Cole’s

conviction for possession of a narcotic drug was based on the heroin residue on

the spoon and the baggie of heroin found in the manicure kit in the car’s center

console. Indeed, during closing argument, the State referred to the baggie and

the residue and made no mention of the substance found on Dyer’s body. See

Transcript at 422 (prosecutor noting in closing argument “[t]he heroin, the

residue on the spoon. The spoon that's in that manicure kit. Additionally,

there was a baggie, an actual baggie of heroin in that kit.”). Cole makes no

argument that he did not possess the heroin found in the manicure kit.

Accordingly, we cannot conclude that the evidence was insufficient to support

his conviction for possession of a narcotic drug.

                            4. Carrying a Handgun without a License




2
  To the extent that Cole intended to use his argument that he did not possess the substance found on Dyer’s
body to challenge his conviction for possession of methamphetamine as a Level 5 felony, we note that his
conviction on that charge was based on methamphetamine residue found on two glass pipes found in the
center console, not the substance found on Dyer’s body. Indeed, the prosecutor made the following
statement in closing argument: “Methamphetamine. We saw that—the residue on the two glass pipes. You
heard Matthew Whitt from the Crime Lab testify that there were two glass pipes. You saw them in the
center console. You saw the manicure kit.” Transcript at 421-22. The State did not ask the jury to convict
Cole of possessing the methamphetamine discovered on Dyer’s body.

Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017                     Page 14 of 17
[25]   Finally, Cole challenges two of his three convictions for carrying a handgun

       without a license. Although he does not challenge the conviction relating to the

       Ruger, he argues that the State presented insufficient evidence to support his

       convictions with respect to the .22 revolver and the 9mm Taurus, both of which

       were found in the glove box. Cole concedes that he was not licensed to carry a

       handgun, but he argues that these convictions must be reversed because the

       State failed to prove that he knew the guns were in the glove box.


[26]   Ind. Code § 35-47-2-1(a) provides in relevant part that “a person shall not carry

       a handgun in any vehicle or on or about the person's body without being

       licensed under this chapter to carry a handgun.” To support a conviction for

       carrying a handgun in a vehicle, the State is required to prove that: “(1) the

       defendant had control over the vehicle, (2) the unlicensed handgun was found

       in a vehicle, and (3) the defendant had knowledge of the weapons’ presence.”

       Henderson v. State, 715 N.E.2d 833, 835 n.2 (Ind. 1999).


               As held by this court in Klopfenstein v. State, 439 N.E.2d 1181,
               1184 (Ind. Ct. App. 1982), to establish this offense, the State
               must prove that a handgun was found in a vehicle and that the
               defendant had control of either the weapon or of the vehicle with
               knowledge of the weapon's presence. In addition, it must be
               established that there was an intention to convey or transport the
               weapon. Id. See also D.C.C. v. State, 695 N.E.2d 1015, 1016 (Ind.
               Ct. App. 1998); Ferrell v. State, 656 N.E.2d 839, 842 (Ind. Ct.
               App. 1995). Although the presence of a passenger in a car in
               which a handgun is being transported is insufficient to find that
               passenger guilty of carrying a handgun in a vehicle, the driver of
               a vehicle is in violation of the statute if he conveys a handgun in
               the vehicle regardless of whether it is on or about his person.

       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 15 of 17
                Klopfenstein, 439 N.E.2d at 1185. Knowledge of the presence of
                the handgun is all that is required. Id.[3]


       Thurman v. State, 793 N.E.2d 318, 320 (Ind. Ct. App. 2003) (emphasis in

       original).


[27]   In this case, there is ample evidence from which the jury could reasonably infer

       Cole’s knowledge and intent. When Officer Elliot asked for the car’s

       registration during the initial stop, Cole started to reach for the glove box, but

       then stopped and told the officer that he did not have the registration. It is

       reasonable to infer from this that Cole knew that there was contraband in the

       glove box and did not want Officer Elliot to see it. Moreover, there was a large

       amount of ammunition of various calibers found throughout the car.

       Specifically, there were thirty-two unfired cartridges found scattered among

       loose change, unwrapped candy, and miscellaneous debris in the driver-side

       door pocket. Four of the cartridges were 9mm, one was .380 caliber, and the

       remaining twenty-seven cartridges bore a “C” headstamp. Four more

       cartridges were found in a backpack in the backseat, two of which were .380

       caliber and two of which bore the “C” headstamp. A gun box found behind the

       driver’s seat contained firearm pieces and forty-three unfired cartridges, and a

       separate ammunition box also found on the rear driver-side floorboard




       3
         For this reason, Cole’s reliance on Henderson, 715 N.E.2d at 838, is misplaced because the defendant in that
       case was a passenger, not a driver in control of the vehicle. See Thurman v. State, 793 N.E.2d 318, 320 n.2
       (noting “that the defendant in Henderson was charged with carrying the handgun on or about his person, not
       in a vehicle”).

       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017                       Page 16 of 17
       contained an additional nine unfired cartridges, five of which were .45 caliber

       and four of which were .410 caliber. Additionally, a loaded 9mm magazine

       was found in the center console, a holster was wedged between the driver’s seat

       and the center console, and a gun box for a Smith & Wesson was found in the

       trunk. The sheer ubiquity of ammunition and firearm accessories throughout

       the entire car was more than sufficient to support an inference that Cole had

       control of the car with knowledge of the guns’ presence, as well as the intent to

       convey or transport those weapons. Accordingly, Cole’s convictions for

       carrying a handgun without a license are supported by sufficient evidence.


[28]   Judgment affirmed.


[29]   Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1603-CR-542 | February 8, 2017   Page 17 of 17
