Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                                Jan 22 2014, 9:36 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                   GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                JAMES B. MARTIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

BRUCE JONES,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1304-CR-363
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Rebekah F. Pierson-Treacy, Judge
                         The Honorable Steven Rubick, Magistrate
                            Cause No. 49F19-1208-CM-58272


                                     January 22, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant-Defendant, Bruce Jones (Jones), appeals his conviction for carrying a

handgun without a license, a Class A misdemeanor, Ind. Code § 35-47-2-1(a).

       We affirm.

                                         ISSUE

       Jones raises one issue on appeal, which we restate as: Whether the State presented

sufficient evidence beyond a reasonable doubt to support Jones’ conviction.

                         FACTS AND PROCEDURAL HISTORY

       On August 22, 2012, at approximately 7 p.m., Officers Scott Stauffer (Officer

Stauffer) and Timothy Elliott (Officer Elliott) of the Indianapolis Metropolitan Police

Department were issuing parking tickets near Meadows Drive in Marion County, Indiana.

A distraught female drove up and informed Officer Stauffer that a baby had fallen out of

her car and that the mother was trying to fight her. While Officer Stauffer was trying to

calm her down, a crowd of “about fifteen to twenty people” approached the Officers,

yelling and screaming about the incident. (Transcript p. 6). The Officers managed to

appease the situation.

       As the Officers were leaving, they heard engines revving and “brakes slamming

down really, really hard.” (Tr. p. 7). Deputy James Ellis of the Marion County Sheriff’s

Department (Deputy Ellis), who was also on the scene, noticed a silver Dodge Charger,

driven by Jones, turn “at a high rate of speed” and come to an “abrupt stop.” (Tr. p. 7).

The vehicle stopped approximately a hundred feet away, with the driver’s side facing the



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Officers. Jones exited the car, “obviously agitated” and with his chest “puffed out” and

his fists “clenched.” (Tr. p. 7-8). Jones walked towards the Officers in an aggressive and

determinated manner.

       Deputy Ellis requested Jones to stop, but Jones attempted to walk past the

Officers. After ignoring the Officers’ request several times, the Officers physically

stopped Jones. “Just based on the manner of the driving and [Jones’] demeanor and his

behavior,” the Officers assumed that he was there regarding the fight that they had just

pacified. (Tr. p. 8). Deputy Ellis placed his hands on Jones’ chest and Jones cursed him

while the Deputy performed a pat down search. Upon running a background check,

Deputy Ellis was informed that Jones had a “suspended with a prior conviction.” (Tr. p.

11). The Deputy placed Jones under arrest and escorted him back to Jones’ vehicle.

       When Deputy Ellis approached Jones’ car, he noticed a passenger in the vehicle.

Deputy Ellis requested the passenger to exit the car and conducted a pat down search.

When he looked in the vehicle, he noticed a handgun “next to the driver’s seat in the

center console.” (Tr. p. 35). Deputy Ellis opined that the handgun was in plain view,

“next to the driver’s seat, on the right side in between the driver’s seat and the [c]enter

console.” (Tr. p. 36) Half of the barrel and the handgrip were exposed. Deputy Ellis

noticed that the handgun was positioned such that “Jones would be able to grab it,

directly next to his leg.” (Tr. p. 36).

       On August 23, 2012, the State filed an Information, charging Jones with Count I,

carrying a handgun without a license, a Class A misdemeanor, I.C. § 35-47-2-1; and

Count II, driving while suspended/prior, a Class A misdemeanor, I.C. § 9-24-19-2. On


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February 11, 2013 and March 25, 2013, the trial court conducted a bifurcated bench trial.

At the close of the evidence, the trial court found Jones guilty on Count I but not guilty

on Count II and sentenced Jones to three hundred and sixty-five days, with four days

executed, two days credit for time served, and the remainder on probation.

       Jones now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

       Jones contends that the State failed to establish beyond a reasonable doubt that he

constructively possessed the handgun. In reviewing a sufficiency of the evidence claim,

this court does not reweigh the evidence or assess the credibility of witnesses. Cox v.

State, 774 N.E.2d 1025, 2028-29 (Ind. Ct. App. 2002). We consider only the evidence

most favorable to the judgment, together with all reasonable and logical inferences to be

drawn therefrom. Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004). The

conviction will be affirmed if there is substantial evidence of probative value to support

the conclusion of the trier-of-fact. Id.

       To convict Jones of carrying a handgun without a license, the State was required

to establish that Jones carried a handgun in the vehicle or on or about his body without

being licensed to do so. See I.C. § 35-47-2-1. Furthermore, to convict a defendant of

carrying a handgun in a vehicle, the State must present evidence 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. Klopfenstein v. State, 439 N.E.2d

1181, 1184 (Ind. Ct. App. 1982).




                                            4
       To prove that Jones had control of the weapon, the State may present evidence of

actual or constructive possession. A person who has direct physical control over the

firearm, has actual possession. Causey, 808 N.E.2d at 143. However, constructive

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

control over the firearm. Id. To prove the element of intent, the State must demonstrate

the defendant’s knowledge of the presence of the firearm. Id. Knowledge may be

inferred from either exclusive dominion and control over the premises containing the

firearm, or from evidence of additional circumstances indicating the defendant’s

knowledge of the presence of the firearm. Id.

       Proof of dominion and control over a firearm has been found through a variety of

means: (1) incriminating statements by the defendant; (2) attempted flight or furtive

gestures; (3) proximity of the firearm to the defendant; (4) location of the firearms within

the defendant’s plain view; and (5) the mingling of a firearm with other items owned by

the defendant. Id. In addition, the State must demonstrate the defendant’s capability to

exercise control over the firearm, which includes the ability to reduce the firearm to his

personal possession or to otherwise direct its disposition or use. Id.

       Here, we are presented with a non-exclusive dominion case. Because Jones did

not have exclusive dominion and control over his vehicle in which the handgun was

found, we must consider the evidence in light of additional circumstances indicating

Jones’ knowledge of the presence of the weapon and his ability to exercise control over

it.




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      In support of his argument, Jones refers us to E.D. v. State, 905 N.E.2d 505 (Ind.

Ct. App. 2009), where we found insufficient evidence to establish constructive

possession. In E.D., E.D. was seated in the backseat between two males. Id. at 506.

During an inventory search of the vehicle, the officer located a handgun in the pocket

behind the driver’s seat, one foot away from where E.D. had been sitting. Id. We

concluded that other than E.D.’s proximity to the gun, there was no other evidence to

suggest that E.D. was capable of maintaining control and dominion of the gun. Id. at

507. In fact, E.D. was “only marginally closer to the gun” than the passenger riding

behind the driver’s seat. Id. at 507-08. We also noted that the evidence failed to

establish whether the gun was in plain view and there was no evidence to suggest E.D.

made incriminating statements or furtive gestures. Id. at 508.

      We find E.D. readily distinguishable from the situation before us. While in E.D.

there were several people who were arguably close enough to the gun to handle it, here,

the gun was immediately next to Jones’ seat, in plain view, and positioned in such a way

that he could easily grab it and have actual control over it. Also, the record before us

does not reflect any evidence that the gun was visible to the passenger. Jones’ argument

that the weapon was planted by the passenger during the short time span in which Jones

had exited the car and the Deputy discovered the passenger is merely a request to reweigh

the evidence, which we must decline. Because of the weapon’s proximity, its visibility,

and its positioning, it can reasonably be inferred that Jones knew that the gun was in his

vehicle. Therefore, we conclude that the State presented sufficient evidence to support




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that Jones had both the capability and the intent to maintain dominion and control over

the handgun.

                                    CONCLUSION

      Based on the foregoing, we conclude that the State established beyond a

reasonable doubt that Jones constructively possessed the handgun.

      Affirmed.

VAIDIK, C.J. and MAY, J. concur




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