MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Oct 27 2015, 9:01 am
this Memorandum Decision shall not be
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
Timothy J. Burns                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Collin McAllister,                                       October 27, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1502-CR-00081
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Rebekah Pierson-
Appellee-Plaintiff                                       Treacy, Judge
                                                         Trial Court Cause No.
                                                         49G19-1410-CM-046717



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015   Page 1 of 6
                                          Case Summary
[1]   After a police officer stopped a car in which Collin McAllister was riding as the

      front-seat passenger, McAllister — who was free to leave — voluntarily told the

      officer that he was “probably about to go to jail . . . because there’s a gun

      underneath the front seat.” A gun was indeed found beneath the front seat of

      the car, and McAllister did not have a license to carry a handgun. We find that

      McAllister’s knowledge of and proximity to the gun is sufficient evidence to

      establish his constructive possession, and thus we affirm his conviction for Class

      A misdemeanor carrying a handgun without being licensed.



                            Facts and Procedural History
[2]   One afternoon in October 2014, Indianapolis Metropolitan Police Department

      Officer Ethan Forrest was patrolling the area of South Madison Avenue and

      Southport Road when he saw a car with passengers not wearing seatbelts. In

      addition to the driver, there was a front-seat passenger and one back-seat

      passenger. Officer Forrest ran the car’s license plate and learned that the

      driver’s license was suspended. The officer activated his emergency lights, and

      the car came to a stop in a residential driveway on Tulip Drive, where the car’s

      front-seat passenger, Collin McAllister, lived. Officer Forrest allowed

      McAllister to leave the car, and he and his father, who had come outside, began

      walking away from the car, toward their house.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015   Page 2 of 6
[3]   Then McAllister stopped and asked Officer Forrest if he could speak with him.

      McAllister said, “Officer Forrest I’m probably about to go to jail.” Tr. p. 12.

      When the officer asked him why, McAllister responded, “I’m going to go to jail

      because there’s a gun underneath the front seat.” Id. Officer Forrest recovered

      a Cobra .380 semi-automatic pistol, with serial number 05822, from beneath the

      front-passenger seat, where McAllister had been sitting. The officer determined

      that McAllister did not have a valid handgun license. Thereafter, Officer

      Fritsche of the IMPD photographed the gun and then gave it to Officer Cook,

      IMPD, who took it to the property room.

[4]   The State charged McAllister with Class A misdemeanor carrying a handgun

      without a license. See Appellant’s App. p. 13. During the bench trial, Defense

      counsel objected to the admission of the gun into evidence, arguing that there

      was a chain-of-custody problem. Specifically, Officer Cook had testified that

      the box in which the gun was kept in the property room was not in the same

      condition as when he submitted it — the red tape had been removed from the

      box and replaced with yellow tape. The trial court overruled the objection,

      allowed the admission of the gun, and found McAllister guilty as charged.

[5]   McAllister now appeals his conviction.



                                 Discussion and Decision
[6]   On appeal McAllister contends that the evidence is insufficient to sustain his

      conviction for Class A misdemeanor carrying a handgun without being


      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015   Page 3 of 6
      licensed. Our standard of reviewing claims of sufficiency of the evidence is well

      settled. When reviewing the sufficiency of the evidence, we consider only the

      probative evidence and reasonable inferences supporting the verdict. Boggs v.

      State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We do not

      reweigh the evidence or assess witness credibility. Id. We consider conflicting

      evidence most favorably to the trial court’s ruling. Id. We will affirm the

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

      proven beyond a reasonable doubt. Id. It is not necessary that the evidence

      overcome every reasonable hypothesis of innocence. Id. The evidence is

      sufficient if an inference may be reasonably drawn from it to support the

      verdict. Id. A conviction may be based upon circumstantial evidence alone.

      Id.


[7]   In order to convict McAllister of Class A misdemeanor carrying a handgun

      without being licensed, the State was required to prove beyond a reasonable

      doubt that he carried a handgun in a vehicle or on or about his body without

      being licensed to do so. See Ind. Code § 35-47-2-1(a), (e). To prove that the

      defendant had control of the weapon, the State may present evidence of actual

      or constructive possession. Grim v. State, 797 N.E.2d 825, 831 (Ind. Ct. App.

      2003). Actual possession occurs when a person has direct physical control over

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

      possession occurs when an individual has the intent and capability to maintain

      dominion and control over the item. Id. Suggesting that knowledge is a key



      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015   Page 4 of 6
      element in proving intent, our Supreme Court has repeatedly enunciated the

      following rule:

              When constructive possession is asserted, the State must
              demonstrate the defendant’s knowledge of the contraband. This
              knowledge may be inferred from either the exclusive dominion
              and control over the premise[s] containing the contraband or, if
              the control is non-exclusive, evidence of additional circumstances
              pointing to the defendant’s knowledge of the presence of the
              contraband.


      Grim, 797 N.E.2d at 831 (quoting Woods v. State, 471 N.E.2d 691, 694 (Ind.

      1984)). Proof of dominion and control over contraband has been found

      through a variety of means: (1) incriminating statements by the defendant, (2)

      attempted flight or furtive gestures, (3) location of substances like drugs in

      settings that suggest manufacturing, (4) proximity of the contraband to the

      defendant, (5) location of the contraband within the defendant’s plain view, and

      (6) the mingling of contraband with other items owned by the defendant.

      Henderson, 715 N.E.2d at 836.


[8]   Here, the gun was found beneath the front passenger seat, where McAllister

      had been sitting. Most significant, however, is McAllister’s unambiguous

      knowledge that the gun was there, and his incriminating statement to Officer

      Forrest that he was “probably about to go to jail . . . because there’s a gun

      underneath the front seat.” Tr. p. 12. This is sufficient to establish McAllister’s

      constructive possession of the gun — that he had the intent and capability to

      maintain control and dominion over it. See Henderson, 715 N.E.2d at 835.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015   Page 5 of 6
      McAllister’s other proposed scenarios and interpretations of McAllister’s

      statement to Officer Forrest — “[I]t could have been that [McAllister], being

      concerned for Officer Forrest’s safety, motivated him to inform of the gun to

      Officer Forrest[,]” Appellant’s Br. p. 7 — are simply requests for us to reweigh

      the evidence, which we cannot do. We find the evidence is sufficient to support

      McAllister’s conviction.1

[9]   Affirmed.


      Robb, J., and Pyle, J., concur.




      1
[1]     McAllister in his appellate brief also “mentions the chain of custody issue only because trial counsel made
      the record by objection.” Appellant’s Br. p. 9. He then concedes that Officer Cook “identified the firearm as
      the one he retrieved from the vehicle” and points out that any chain-of-custody argument would go to the
      weight of the evidence and not its admissibility. Id. (citing Gambill v. State, 479 N.E.2d 523 (Ind. 1985)).
      Although he has effectively waived this issue by failing to develop a cogent argument, we note that Officer
      Cook’s testimony as to the make, model, and serial number of the gun – a non-fungible item – coupled with
      his retrieval of the gun from the evidence room, where it was located in a box with a property sheet that
      included the name of the submitting officer, McAllister’s name, and the date of arrest, was sufficient to
      establish that this was the same gun confiscated during the traffic stop.




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