Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                  Feb 13 2014, 9:27 am
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:

THOMAS C. ALLEN                                    GREGORY F. ZOELLER
Fort Wayne, Indiana                                Attorney General of Indiana

                                                   CHANDRA K. HEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DETRICK L. BROWN,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 02A05-1309-CR-455
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                              Cause No. 02D04-1303-FC-73



                                       February 13, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                     CASE SUMMARY

       On March 11, 2013, members of the Fort Wayne Police Department (“FWPD”) were

attempting to serve an active warrant for Appellant-Defendant Detrick L. Brown’s arrest. At

approximately 11:00 p.m., Officer Gary Hensler encountered Brown, who fled after

observing an approaching FWPD squad car. Brown was apprehended soon thereafter. After

Brown was apprehended, Sergeant Thomas Strausborger looked in the window of the vehicle

that Brown had been driving and observed a handgun, in plain sight, on the floorboard in

front of the front seat on the passenger side of the vehicle. The handgun was recovered after

the owner of the vehicle consented to a search of the vehicle. The owner of the vehicle told

Sergeant Strausborger that she had given Brown permission to drive her vehicle, the handgun

did not belong to her, she had never seen the handgun before, and Brown was alone when he

left in her vehicle earlier in the evening.

       Appellee-Plaintiff the State of Indiana charged Brown with Class C felony carrying a

handgun without a license. Brown was found guilty of this charge following a jury trial.

Brown now appeals, claiming that the evidence is insufficient to sustain his conviction.

Concluding that the evidence is sufficient to sustain Brown’s conviction, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       On March 11, 2013, members of the FWPD were attempting to serve a warrant for

Brown’s arrest. Officer Hensler was patrolling the area near where Antoinette Amburgey

lived after receiving information that Brown would be driving Amburgey’s vehicle, a maroon

Ford Taurus. While the exact nature of Brown’s relationship with Amburgey is unclear, it is

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undisputed that Brown and Amburgey have a child together.

       Around 11:00 p.m., Officer Hensler encounter Brown. When Officer Hensler first

observed Brown, Brown was driving Amburgey’s vehicle. Officer Hensler then observed

Brown park Amburgey’s vehicle a few doors down and across the street from Amburgey’s

residence. Officer Hensler, who was parked in an unmarked vehicle two to three car lengths

away from where Brown had parked Amburgey’s vehicle, further observed that Brown was

the sole occupant of Amburgey’s vehicle.

       Officer Hensler notified other members of the FWPD who were nearby of Brown’s

location and indicated that the others should begin to approach. When Brown observed an

approaching FWPD squad car, Brown “took off running southbound.” Tr. p. 58. Brown ran

for a short distance before being apprehended by Officer Hensler.

       Sergeant Strausborger, who was parked a block away, arrived at Amburgey’s

residence after Brown had been apprehended. Sergeant Strausborger looked into the window

of Amburgey’s vehicle and saw a handgun sitting in plain view on the floorboard of the front

seat on the passenger’s side of the vehicle. The handgun was removed from the vehicle after

Sergeant Strausborger received Amburgey’s permission to search the vehicle.1 Amburgey

told Sergeant Strausborger that she had last used her vehicle at approximately 7:30 p.m. or

8:30 p.m. that evening, she had granted Brown permission to use her vehicle, the handgun

did not belong to her, and she “had never seen [the handgun] before.” Tr. p. 71. Amburgey

also told Sergeant Strausborger that Brown was “by himself when he left her house” in her



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vehicle. Tr. p. 74.

        On May 15, 2013, the State charged Brown with one count of Class C felony carrying

a handgun without a license, one count of Class D felony possession of cocaine, and one

count of Class A misdemeanor possession of paraphernalia. Following a July 10, 2013 jury

trial, the jury found Brown guilty of Class C felony carrying a handgun without a license.

The jury found Brown not guilty of the possession charges. On August 14, 2013, the trial

court sentenced Brown to a term of six years, with four years executed and two years

suspended to probation. This appeal follows.

                                  DISCUSSION AND DECISION

        Brown contends that the evidence is insufficient to sustain his conviction for Class C

felony carrying a handgun without a license.

        When reviewing the sufficiency of the evidence to support a conviction,
        appellate courts must consider only the probative evidence and reasonable
        inferences supporting the verdict. It is the fact-finder’s role, not that of
        appellate courts, to assess witness credibility and weigh the evidence to
        determine whether it is sufficient to support a conviction. To preserve this
        structure, when appellate courts are confronted with conflicting evidence, they
        must consider it most favorably to the trial court’s ruling. Appellate courts
        affirm the conviction unless no reasonable fact-finder could find the elements
        of the crime proven beyond a reasonable doubt. It is therefore not necessary
        that the evidence overcome every reasonable hypothesis of innocence. The
        evidence is sufficient if an inference may reasonably be drawn from it to
        support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations

omitted). “In essence, we assess only whether the verdict could be reached based on


        1
          Police also recovered a digital scale with a white powdery residue, later identified as cocaine, and a
razor blade from inside the vehicle.
                                                       4
reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968

N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Upon review, appellate courts do not

reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d

433, 435 (Ind. 2002).

       Indiana Code section 35-47-2-1 provides that “a person shall not carry a handgun in

any vehicle or on or about the person’s body without being licensed … to carry a handgun.”

A person who violates Indiana Code section 35-47-2-1 commits a Class A misdemeanor.

Ind. Code § 35-47-2-23(c). “However, the offense is a Class C felony … if the person … has

been convicted of a felony within fifteen (15) years before the date of the offense.” Id.

       Initially, we note that Brown does not challenge the sufficiency of the evidence to

prove the necessary facts to enhance his conviction for carrying a handgun without a license

to a Class C felony, as he has admitted that he had been convicted of a felony within fifteen

years of March 11, 2013. Brown merely argues that the evidence is insufficient to sustain the

jury’s determination that he possessed the handgun. We disagree.

       A conviction for carrying a handgun without a license may rest on proof of actual or

constructive possession of said handgun. Bradshaw v. State, 818 N.E.2d 59, 62 (Ind. Ct.

App. 2004) (citing Person v. State, 764 N.E.2d 743, 750 (Ind. Ct. App. 2002), trans. denied).

       Actual possession occurs when a person has direct physical control over the
       items. Walker v. State, 631 N.E.2d 1, 2 (Ind. Ct. App. 1994). On the other
       hand, we have observed that to prove constructive possession, the State must
       show that a defendant had both the intent and capability to maintain dominion
       and control over the contraband. Id. Proof of dominion and control may be
       shown, inter alia, by (1) incriminating statements made by a defendant; (2)
       attempted flight or furtive gestures; (3) proximity of contraband to the
       defendant; (4) location of the contraband within the defendant’s plain view; or
                                              5
       (5) the mingling of the contraband with other items owned by the defendant.
       Henderson v. State, 715 N.E.2d 833, 836 (Ind. 1999).
               When constructive possession is alleged, the State must demonstrate the
       defendant’s knowledge of the contraband. Id. at 835. Such knowledge may be
       inferred from the exclusive dominion or control over the premises containing
       the contraband or, if the control is nonexclusive, evidence of additional
       circumstances pointing to the defendant’s knowledge of the presence of the
       contraband. Id. at 835-36. Moreover, while an accused must have actual
       knowledge of the presence of the item and of the item’s character, this
       knowledge can be inferred from the fact that the item was found in a place
       under his dominion and control. Taylor v. State, 482 N.E.2d 259, 261 (Ind.
       1985).

Id. at 62-63.

       Here, the record demonstrates that Brown had both the intent and capability to

maintain control over the handgun as well as knowledge of the handgun. Upon seeing the

approaching FWPD squad cars, Brown attempted to flee from the officers. The handgun in

question was subsequently found in plain view on the floorboard of the front seat on the

passenger side of Amburgey’s vehicle and was within arm’s reach from where Brown had

been sitting in the driver’s seat. Additionally, the record indicates that Brown was in sole

possession of the vehicle just prior to the discovery of the handgun as he was alone in the

vehicle both when he left and when he returned to Amburgey’s home. Amburgey told

Sergeant Strausborger that the handgun did not belong to her and that she had never seen it

before. In addition, after being apprehended, Brown requested permission to speak to

Amburgey. While speaking with Amburgey, Officer Martin Grooms heard Brown tell

Amburgey that “he was not worried about the [hand]gun because it wasn’t stolen.” Tr. p. 99.

Brown’s statement indicates that he had knowledge of the presence of the handgun in the


                                             6
vehicle. The evidence is sufficient to prove constructive possession of the handgun by

Brown. Brown’s claim to the contrary effectively amounts to an invitation to reweigh the

evidence on appeal, which we will not do. See Stewart, 768 N.E.2d at 435.

      The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




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