MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                    Dec 07 2015, 9:15 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
Barbara J. Simmons                                      Gregory F. Zoeller
Oldenburg, Indiana                                      Attorney General of Indiana
                                                        Angela N. Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Antonio Floyd,                                          December 7, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1504-CR-143
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Amy Jones, Judge
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        49F08-1405-CM-26171



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015     Page 1 of 6
                                Case Summary and Issue
[1]   Following a bench trial, Antonio Floyd was convicted of carrying a handgun

      without a license and possession of marijuana, both Class A misdemeanors.

      Floyd appeals only his conviction for carrying a handgun without a license,

      raising the issue of whether the evidence is sufficient to support the conviction.

      Concluding the evidence is sufficient, we affirm.



                            Facts and Procedural History
[2]   On May 19, 2014, Officer Eric Trost of Pike Township Schools was on foot

      patrol near an Indianapolis apartment complex when he smelled a strong odor

      of marijuana. In an attempt to locate the origin of the odor, Officer Trost

      turned around and discovered smoke emitting from a parked vehicle’s front

      driver’s side window. He observed an individual—later identified as Floyd—

      behind the wheel. Floyd, the vehicle’s lone occupant, was the owner of the

      vehicle.


[3]   Officer Trost approached the front of the vehicle and made eye contact with

      Floyd. Floyd, with his right hand, reached down between his legs toward the

      vehicle’s floorboard. Fearing for his safety, Officer Trost raised his service

      weapon, pointed it at Floyd, and demanded Floyd put both hands in the air.

      Floyd obeyed Officer Trost’s command.


[4]   Thereafter, another police officer arrived on scene and removed Floyd from the

      vehicle. When the officer removed Floyd, a marijuana cigarette fell from

      Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015   Page 2 of 6
      Floyd’s lap onto the ground. Curious as to what Floyd had reached for on the

      floorboard, Officer Trost looked inside the vehicle and observed, in plain view,

      the handle of a black handgun sticking out from underneath the front driver’s

      side seat. Police later discovered Floyd’s uncle was the registered owner of the

      handgun, a .45 caliber Hi-Point. Floyd did not provide officers with a valid

      license to carry a handgun. Officer Trost placed Floyd under arrest.


[5]   On May 20, the State charged Floyd with carrying a handgun without a license

      and possession of marijuana. A bench trial was held at which Floyd testified he

      had no knowledge of the handgun’s presence inside the vehicle. He explained

      his uncle had recently borrowed the vehicle and must have forgotten the

      handgun was under the seat. In addition, Floyd stated he had no plans of

      driving the car and had not driven recently because the license plates were

      expired. Instead, he claimed he sat in the car and smoked marijuana while he

      waited for a friend to come pick him up. When Officer Trost approached the

      vehicle, Floyd reached down in an attempt “to put the marijuana out” in an

      ashtray. Transcript at 35. Floyd’s uncle did not testify. The trial court found

      Floyd guilty of carrying a handgun without a license and possession of

      marijuana. Floyd now appeals his conviction for carrying a handgun without a

      license.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015   Page 3 of 6
                                    Discussion and Decision
                                         I. Standard of Review
[6]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh

      the evidence nor reassess the credibility of witnesses. Bailey v. State, 907 N.E.2d

      1003, 1005 (Ind. 2009). We will affirm a conviction unless “no reasonable fact-

      finder could find the elements of the crime proven beyond a reasonable doubt.”

      Drane, 867 N.E.2d at 146-47 (citation omitted).


                                     II. Constructive Possession
[7]   Floyd argues the evidence is insufficient to support his conviction because the

      State failed to prove beyond a reasonable doubt he constructively possessed the

      handgun. “[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.” Ind. Code §

      35-47-2-1(a). Before a defendant can be convicted of carrying a handgun

      without a license, the State must prove the defendant had either actual or

      constructive possession of the handgun.1 K.F. v. State, 961 N.E.2d 501, 509

      (Ind. Ct. App. 2012), trans. denied.


[8]              Constructive possession occurs when somebody has the intent
                 and capability to maintain dominion and control over the item.



      1
          There is no evidence Floyd was in actual possession of the handgun.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015   Page 4 of 6
               To prove capability, the State must show that the defendant is
               able to reduce the contraband to her personal possession. To
               prove the intent element, the State must demonstrate the
               defendant’s knowledge of the presence of the contraband. This
               knowledge may be inferred from either the exclusive dominion
               and control over the premises containing the contraband or, if the
               control is non-exclusive, evidence of additional circumstances
               that point to the defendant’s knowledge of the presence of the
               contraband. These additional circumstances may include
               incriminating statements by the defendant; flight or furtive
               gestures; defendant’s proximity to the contraband; the
               contraband being in plain view; or the location of the contraband
               in close proximity to items owned by the defendant.


       Id. at 509-10 (internal citations and quotation marks omitted).


[9]    Floyd does not contend the evidence is insufficient to support a finding he had

       the capability to maintain dominion and control over the handgun. Rather,

       Floyd contends he did not have the intent to maintain dominion and control

       over the handgun because 1) he did not have exclusive dominion and control

       over the vehicle, and 2) he had no knowledge of the presence of the handgun.

       We disagree.


[10]   Floyd was the sole occupant of the vehicle, which he owned. Once Floyd made

       eye contact with Officer Trost, Floyd made a furtive gesture towards the

       floorboard where the handgun was later discovered in plain view and in close

       proximity to where Floyd had been sitting. Floyd counters his testimony at

       trial established he had no knowledge of the handgun’s presence, he did not

       have exclusive control of vehicle because his uncle had previously borrowed the

       car, and Floyd’s furtive gesture was neither an attempt to possess nor hide the
       Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015   Page 5 of 6
       handgun. Rather, Floyd contends his movement was an attempt to extinguish

       the marijuana cigarette in an ashtray. Floyd’s arguments, however, invite us to

       reassess his credibility—an invitation we must decline when reviewing the

       sufficiency of the evidence. See Bailey, 907 N.E.2d at 1005. Therefore, we

       conclude the evidence is sufficient to show Floyd had the intent and capability

       to maintain dominion and control over the handgun. See K.F., 961 N.E.2d at

       509.


[11]   Taking into account Floyd’s proximity to the handgun and furtive movement

       inside the vehicle, coupled with the fact the vehicle was registered in Floyd’s

       name, the handgun was discovered in plain view, and Floyd was the vehicle’s

       lone occupant, we conclude the evidence was sufficient to prove beyond a

       reasonable doubt Floyd constructively possessed the handgun.



                                               Conclusion
[12]   The evidence presented at trial is sufficient to support Floyd’s conviction for

       carrying a handgun without a license. Floyd’s conviction is therefore affirmed.


[13]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-143 | December 7, 2015   Page 6 of 6
