      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                          FILED
      this Memorandum Decision shall not be                                    Jun 24 2019, 7:40 am
      regarded as precedent or cited before any
                                                                                      CLERK
      court except for the purpose of establishing                              Indiana Supreme Court
                                                                                   Court of Appeals
      the defense of res judicata, collateral                                        and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Michael R. Fisher                                        Attorney General of Indiana
      Marion County Public Defender Agency                     Robert A. Rowlett
      – Appellate Division                                     Angela Sanchez
      Indianapolis, Indiana                                    Deputy Attorneys General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA
      John L. Smith,                                           June 24, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2596
              v.                                               Appeal from the Marion County
                                                               Superior Court
      State of Indiana,                                        The Honorable Shatrese M.
      Appellee-Plaintiff.                                      Flowers, Judge
                                                               Trial Court Cause No.
                                                               49G20-1709-F4-34977



      Mathias, Judge.


[1]   John L. Smith (“Smith”) was convicted in the Marion Superior Court of three

      counts of Level 4 unlawful possession of a firearm by a serious violent felon.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019                     Page 1 of 6
      Smith now appeals arguing that the evidence was insufficient to support his

      convictions.

[2]   We affirm.


                                 Facts and Procedural History
[3]   On September 13, 2017, the Indiana State Police executed a search warrant of

      an apartment located at 5092 Oakhurst Drive in Marion County. The search

      warrant was issued as part of a larger narcotics investigation. The apartment

      had been under surveillance for drug activity. During the search of the

      apartment, one of the officers observed a man, who was later identified as

      Smith, in a white van parked outside.

[4]   The officer advised one of the canine officers at the scene to conduct a “free air

      sniff” around the exterior of the van. State police trooper Susan Rinschler

      (“Trooper Rinschler”) conducted the “free air sniff” with her canine partner.

      The canine was trained to detect and locate six different kinds of narcotics. The

      canine gave a response, indicating the detection of narcotics inside the van.

      Trooper Rinschler questioned Smith, and Smith admitted to smoking

      marijuana recently.


[5]   Detective Nathaniel Raney (“Detective Raney”) asked Smith to step out of the

      van for questioning. Smith informed Detective Raney that he was going to the

      apartment complex to do handywork for a man who lived at the apartment

      named “Larry.” Tr. p. 25. Detective Raney recognized the name “Larry.” The

      name had come up during his time on the investigation and during the search of
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019   Page 2 of 6
      the apartment complex. Id. Smith also informed Detective Raney that he owned

      the van.1 Id. at 27. The van had also been under police surveillance by Detective

      Larry Antic (“Detective Antic”) since August 26, 2017 in connection with the

      narcotics investigation, and Smith had been previously photographed entering

      the van. Id. at 52–53. Based on these facts, Detective Raney asked Smith for

      consent to search the van. Smith consented.


[6]   Detective Rusty Slater (“Detective Slater”) and Detective Rick Shoemaker

      (“Detective Shoemaker”) searched the van. The detectives discovered

      marijuana in the cup holder and a .22 caliber Rough Rider revolver under the

      front passenger seat. In the back-storage area of the van, the detectives observed

      two black milk crates, a red bag, and several miscellaneous items. The crates

      were located immediately behind the driver and passenger seats. The detectives

      found a Beretta pistol in one of the milk crates and a High Point pistol in the

      red bag. The firearms were accessible from the driver’s seat.


[7]   On September 15, 2017, the State charged Smith with three counts of Level 4

      felony unlawful possession of a firearm by a serious violent felon (Count I, IV,

      V).2 On June 4, 2018, the State amended the information to allege that Smith

      was a habitual offender.




      1
          The van was not registered to Smith.
      2
       Smith was also charged with one count of Level 5 felony possession of altered handgun (Count II) and one
      count of Level 5 felony possession of a narcotic drug (Count III). On September 17, 2018, the State sought to
      dismiss Counts II and III, and the State’s motion was granted.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019                     Page 3 of 6
[8]    A one-day jury trial commenced on September 17, 2018. At trial, Smith argued

       that there was insufficient evidence to show actual or constructive possession of

       the firearms since he did not have knowledge that the guns were in the van. The

       jury found Smith guilty as charged on all three counts of unlawful possession of

       a firearm by a serious violent felon. Smith waived jury trial for the habitual

       offender count and entered a plea of guilty.

[9]    On October 1, 2018, Smith was sentenced to eight years on each count to be

       served concurrently. The sentence was enhanced by six years due to the habitual

       offender adjudication. Thus, Smith’s aggregate sentence was fourteen years of

       incarceration at the Indiana Department of Correction. Smith now appeals.


                                      Discussion and Decision

[10]   Smith contends that the evidence is insufficient to sustain his convictions. When

       reviewing a claim of insufficient evidence to sustain a conviction, we consider

       only the probative evidence and reasonable inferences supporting the verdict.

       Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). In this case, the jury was the fact-

       finder. It is the fact-finder’s role, not ours, to assess witness credibility and weigh

       the evidence to determine whether it is sufficient to support a conviction. Id. We

       will affirm the conviction unless no reasonable fact-finder could have found the

       elements of the crime proven beyond a reasonable doubt. Id. It is therefore 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 verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019   Page 4 of 6
[11]   To convict Smith of Level 4 felony unlawful possession of a firearm by a serious

       violent felon, the State had to show that Smith: (1) knowingly or intentionally;

       (2) possessed; (3) a firearm; (4) and that Smith was a serious violent felon. Ind.

       Code § 35-47-4-5(c). Smith argues that there was insufficient evidence to

       support the conclusion that he knowingly or intentionally possessed the

       firearms in the van. We disagree.

[12]   Possession of a firearm can be either actual or constructive. Actual possession is

       “the direct physical control of the gun,” whereas constructive possession occurs

       when an individual has the “intent and capability to maintain dominion and

       control over the item.” Houston v. State, 997 N.E.2d 407, 409–10 (Ind. Ct. App.

       2013). When constructive possession is asserted, the State must demonstrate the

       individual’s knowledge of the contraband. Such knowledge may be “inferred

       from either the exclusive dominion and control over the premise containing the

       contraband, or . . . [if] the control is non-exclusive, with evidence of additional

       circumstances pointing to the defendant’s knowledge of the presence of the

       contraband.” Ericksen v. State, 68 N.E.3d 597, 601 (Ind. Ct. App. 2017), trans.

       denied. We conclude that Smith had “exclusive dominion and control” over the

       van containing the three firearms.

[13]   Here, Smith was sitting alone in a van outside an apartment complex that was

       of interest in a narcotics investigation. Detective Antic testified that he had

       photographed Smith on August 26, 2017 driving the van as part of his

       surveillance related to the narcotics investigation. Tr. pp. 52–53; Ex. Vol.,

       State’s Exs. 16–18. A “free-air sniff” around the exterior of the van indicated

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019   Page 5 of 6
       the presence of narcotics inside the van. A search of the van turned up a

       revolver under the passenger seat and two more firearms in the back cabin

       within arm’s reach. The photographs show that the firearms were loaded and

       accessible from the driver’s seat. Ex. Vol., State’s Exs. 5–15. Further, Smith told

       the detectives that he owned the van and he was there to do handywork for a

       resident at the apartment complex by the name of “Larry,” an individual of

       interest in the narcotics investigation. The jury could have made a reasonable

       inference that the items inside the van belonged to Smith and Smith had

       constructive possession. Smith also had his dog in the back cabin, adding

       support to the conclusion that Smith had control over the van. Lastly, there was

       no evidence at trial that someone other than Smith had occupied the van on the

       day of Smith’s arrest or the days leading up to the arrest.


[14]   Smith argues that if he had known that there were firearms in the van, he would

       not have given consent to Detective Raney to search the van. Smith’s argument

       is nothing more than a request for us to reweigh the evidence and witness

       credibility on appeal, which we will not do.


                                                 Conclusion
[15]   Based on the facts and circumstances before us, the evidence presented to the

       jury was sufficient to sustain Smith’s conviction. Accordingly, we affirm.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2596 | June 24, 2019   Page 6 of 6
