MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Dec 21 2018, 10:18 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Augustus B. Gaines, Jr.,                                December 21, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1711-CR-2656
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Richard
Appellee-Plaintiff.                                     Hagenmaier, Commissioner
                                                        Trial Court Cause No.
                                                        49G21-1605-F4-17685



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018      Page 1 of 14
                                          Statement of the Case
[1]   Augustus Gaines, Jr. (“Gaines”) appeals, following a bench trial, his

      convictions for Level 4 felony unlawful possession of a firearm by a serious

      violent felon1 and Level 5 felony possession of a narcotic drug.2 Gaines argues

      that: (1) the trial court committed fundamental error when it admitted into

      evidence the drugs that had been found in his pocket and the handgun that had

      been found in his front yard; and (2) there was insufficient evidence to support

      his Level 4 felony unlawful possession of a firearm by a serious violent felon

      conviction.3 Concluding that Gaines has failed to show fundamental error and

      that the evidence was sufficient, we affirm Gaines’s convictions.


[2]   We affirm.


                                                        Issues
                1. Whether the trial court committed fundamental error when it
                   admitted into evidence the drugs that had been found in Gaines’
                   pocket and the handgun that had been found on his property.

                2. Whether sufficient evidence supports Gaines’ Level 4 felony
                   unlawful possession of a firearm by a serious violent felon
                   conviction.




      1
          IND. CODE § 35-47-4-5.
      2
          I.C. § 35-48-4-6.
      3
       Gaines does not challenge the sufficiency of the evidence for his Level 5 felony possession of a narcotic
      drug conviction.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018          Page 2 of 14
                                                     Facts
[3]   On May 7, 2016, around 11:30 p.m., Officer Zachary Taylor (“Officer Taylor”),

      Officer Jamie Thorn (“Officer Thorn”), and some other police officers from the

      Indianapolis Metropolitan Police Department (“IMPD”) went to the 1900

      block of Sharon Avenue after receiving a dispatch regarding “shots fired.” (Tr.

      Vol. 2 at 71, 87). Once on the scene, Officer Thorn spoke to a lady who

      indicated that there had been a “disturbance” at 1904 Sharon Avenue, which

      was Gaines’ house. (Tr. Vol. 2 at 88). As the officers checked for shell casings

      and any damage related to the shots fired, they saw an unoccupied car, which

      had its windows down and the radio loudly playing, parked in front Gaines’

      house. After Officer Taylor looked to see if a victim was inside the car, Gaines,

      who was standing in his fenced-in front yard, “started yelling, yelling like get off

      my street, this is my street.” (Tr. Vol. 2 at 72). Gaines was “agitated, upset,

      [and] belligerent[,]” and Officer Taylor asked Gaines to see his identification.

      (Tr. Vol. 2 at 72). Officer Taylor noticed that Gaines had slurred speech and

      bloodshot eyes. The officer returned Gaines’s identification and told Gaines

      that he was free to leave and that he should go inside his house.


[4]   Officer Taylor walked down to the intersection to talk with the other officers

      who continued to search for shell casings. Gaines, however, stayed outside and

      continued yelling. As Gaines stood in his yard, he walked back and forth

      numerous times from his fence to his screened-in porch. Gaines’ “demeanor

      was agitated,” and he was “verbally abusive towards officers and people on the

      scene.” (Tr. Vol. 2 at 73). During that time, the police received a dispatch

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018   Page 3 of 14
      regarding a “disturbance” in relation to the “noise” at Gaines’s house. (Tr. Vol.

      2 at 74, 89). Officer Taylor walked to Gaines’ yard, where Gaines “continued

      to be belligerent” and was “verbally . . . aggressive” with the officers. (Tr. Vol.

      2 at 75). Gaines refused to quiet down, and the officers then arrested him for

      disorderly conduct. The officers placed Gaines in handcuffs and sat him on the

      curb in front of his house. An officer subsequently patted down Gaines and

      found, in Gaines’ pocket, a knotted baggie corner containing 9.03 grams of

      heroin.


[5]   At that same time, Gaines’s girlfriend, Dawn George (“George”), George’s

      sister, Michelle George (“Michelle”), and two young children pulled up in van,

      and Gaines “yelled towards them.” (Tr. Vol. 2 at 76). Officer Taylor spoke

      with George, and she told the officer that she lived at the house with Gaines.

      The officer asked George if she would consent to the search of the yard for a

      weapon, and she agreed. Gaines then yelled out the following to George: “[I]f

      you let them [the officers] do anything, you ain’t going to have no place to

      live.” (Tr. Vol. 2 at 78). When Officer Taylor walked up the sidewalk and

      approached the outside door of Gaines’ screened-in porch, he saw a chicken-

      shaped flower pot that was in the yard and just a few feet from the sidewalk.

      The flower pot was in the area of the yard where Gaines had been pacing back

      and forth when he was yelling at the officers. Officer Taylor “looked down

      into” the flower pot and saw a handgun sitting on top of the dirt in the pot. (Tr.

      Vol. 2 at 79). The handgun, which was a Taurus .40 caliber pistol, contained a




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018   Page 4 of 14
      loaded magazine and a live round in the chamber. Later testing revealed that

      Gaines’ DNA was found on the live round that had been inside the handgun.


[6]   The State ultimately charged Gaines with Level 4 felony unlawful possession of

      a firearm by a serious violent felon4 and Level 5 felony possession of a narcotic

      drug, and it alleged that he was an habitual offender. Gaines filed a motion to

      suppress the gun and drugs, arguing that “the officers lacked probable cause to

      arrest” him and that they “conducted a warrantless search of [his] residence

      without an adequate exception to the warrant requirement.” (App. Vol. 2 at

      113). The trial court held a hearing on Gaines’ motion and denied the motion.


[7]   The trial court held a bench trial on October 2, 2017. Officer Taylor and

      Officer Thorn testified to the facts above. When the State moved to admit

      State’s Exhibit 10, the heroin discovered in Gaines’ pocket, the trial court asked

      Gaines if he had any objection, and Gaines’ counsel replied, “No, Judge.” (Tr.

      Vol. 2 at 95). When the State moved to admit State’s Exhibit 19, the gun

      recovered from the flower pot in Gaines’ yard, Gaines’ counsel stated, “No

      objection, Judge.” (Tr. Vol. 2 at 110).5


[8]   The trial court found Gaines guilty of Level 4 felony unlawful possession of a

      firearm by a serious violent felon and Level 5 felony possession of a narcotic




      4
       The State alleged that Gaines had been convicted in 2007 of the serious violent felony of Class B felony
      dealing cocaine.
      5
       Gaines did, however, object to Officer Thorn’s testimony regarding finding drugs in Gaines’ pocket and to
      Officer Taylor’s testimony regarding obtaining George’s consent to search the yard.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018         Page 5 of 14
       drug, and it determined that he was an habitual offender. For Gaines’ unlawful

       possession of a firearm conviction, the trial court imposed an eight (8) year

       sentence, with six (6) years executed and two (2) years suspended to probation,

       and it enhanced that sentence by six (6) years for Gaines’ habitual offender

       adjudication. The trial court also imposed a concurrent three (3) year sentence

       for his possession of a narcotic drug conviction. Thus, the trial court imposed

       an aggregate fourteen (14) year sentence, with twelve (12) year executed in the

       Indiana Department of Correction and two (2) years suspended to probation.

       Gaines now appeals.


                                                        Decision
[9]    Gaines argues that: (1) the trial court committed fundamental error when it

       admitted into evidence the drugs that had been found in Gaines’ pocket and the

       handgun that had been found in his yard; and (2) there was insufficient

       evidence to support his Level 4 felony unlawful possession of a firearm by a

       serious violent felon conviction. We will review each argument in turn.


       1. Admission of Evidence


[10]   Gaines first challenges the admission of evidence during his bench trial.6 He

       contends that the admission of the evidence violated his Fourth Amendment




       6
         Gaines initially raised this issue as a challenge to the trial court’s denial of his motion to suppress. However,
       because Gaines is appealing following a trial, the issue presented is more appropriately framed as whether the
       trial court abused its discretion by admitting the evidence at trial. See Guilmette v. State, 14 N.E.3d 38, 40
       (Ind. 2014).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018              Page 6 of 14
       rights because the drugs and gun were obtained through a warrantless search.

       Specifically, Gaines asserts that the heroin found in his pocket should not have

       been admitted into evidence because the drugs were found pursuant to an

       unlawful arrest, and he contends that the gun found in his yard was improperly

       admitted because the police did not obtain a valid consent to search his yard.


[11]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the admission of evidence only for an abuse of

       discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,

       871 (Ind. 2012), reh’g denied.


[12]   We need not, however, review whether the trial court erred in admitting the

       gun and drugs into evidence because Gaines failed to preserve the issue for

       appeal by failing to make a contemporaneous objection at trial. “A

       contemporaneous objection at the time the evidence is introduced at trial is

       required to preserve the issue for appeal, whether or not the appellant has filed a

       pretrial motion to suppress.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010),

       reh’g denied. See also Ind. Evidence Rule 103(a)(1) (providing that a “party may

       claim error in a ruling to admit . . . evidence only if . . . [the] party, on the




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018   Page 7 of 14
       record[,] . . . timely objects . . . and . . . states the specific ground” for the

       objection) (emphases added).7


[13]   Here, when the State moved to admit the gun and drugs into evidence, Gaines

       did not object. In fact, Gaines affirmatively stated that he had no objection to

       the admission of this evidence. An “‘appellant cannot on the one hand state at

       trial that he has no objection to the admission of evidence and thereafter in this

       Court claim such admission to be erroneous.’” Halliburton v. State, 1 N.E.3d

       670, 678-79 (Ind. 2013) (quoting Harrison v. State, 258 Ind. 359, 363, 281 N.E.2d

       98, 100 (1972)). Consequently, Gaines has waived appellate review of his claim

       of error. See, e.g., Brown, 929 N.E.2d at 207 (holding that defendant, who did

       not object to evidence upon introduction of evidence and who affirmatively

       stated he had no objection, waived review of his argument that evidence was

       unlawfully seized); Nowling v. State, 961 N.E.2d 34, 35 (Ind. Ct. App. 2012)

       (holding that a defendant had waived appellate challenge to the admission of

       evidence by stating “no objection” when the evidence was offered for

       admission), trans. denied.


[14]   Gaines acknowledges that he did not object to the admission of the gun and

       heroin into evidence. Because Gaines failed to object to the admission of the

       challenged evidence, he must meet the “daunting” fundamental error standard.




       7
         We note that there is a limited exception—not applicable here—to the requirement to continuously object
       at trial. Specifically, Indiana Evidence Rule 103(b), which became effective January 1, 2014, provides that
       “[o]nce the court rules definitively on the record at trial a party need not renew an objection . . . to preserve a
       claim of error for appeal.”

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018              Page 8 of 14
See Harris v. State, 76 N.E.3d 137, 140 (Ind. 2017). “A claim that has been

waived by a defendant’s failure to raise a contemporaneous objection can be

reviewed on appeal if the reviewing court determines that a fundamental error

occurred.” Brown, 929 N.E.2d at 207. “The fundamental error exception is

‘extremely narrow, and applies only when the error constitutes a blatant

violation of basic principles, the harm or potential for harm is substantial, and

the resulting error denies the defendant fundamental due process.’” Id. (quoting

Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). The Brown Court explained

that a showing of fundamental error arising from the admission of alleged

illegally seized evidence is very limited:


        [A]n error in ruling on a motion to exclude improperly seized
        evidence is not per se fundamental error. Indeed, because
        improperly seized evidence is frequently highly relevant, its
        admission ordinarily does not cause us to question guilt. That is
        the case here. The only basis for questioning Brown’s conviction
        lies not in doubt as to whether Brown committed these crimes,
        but rather in a challenge to the integrity of the judicial process.
        We do not consider that admission of unlawfully seized evidence
        ipso facto requires reversal. Here, there is no claim of fabrication
        of evidence or willful malfeasance on the part of the investigating
        officers and no contention that the evidence is not what it
        appears to be. In short, the claimed error does not rise to the
        level of fundamental error.

Brown, 929 N.E.2d at 207. See also Swinehart v. State, 268 Ind. 460, 466-67, 376

N.E.2d 486, 491 (1978) (explaining that even if “evidence may have been

obtained in violation of the defendant’s constitutional rights to be protected

against unlawful search and seizure,” its introduction at trial “does not elevate


Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018   Page 9 of 14
       the issue to the status of fundamental error that may be raised for the first time

       on appeal”).


[15]   Just as in Brown, Gaines does not assert any such claims in this case. He does

       not argue that the evidence was not what it appeared to be. Instead, Gaines

       asserts that the evidence was improperly admitted, alleging that the evidence

       was the product of an unconstitutional search and seizure. Thus, Gaines’ claim

       of error does not rise to the level of fundamental error. See Brown, 929 N.E.2d

       at 207 (holding that a claim of error asserting that evidence was unlawfully

       seized, without more, does not constitute fundamental error). Because Gaines

       affirmatively stated that he had no objection to the admission of the evidence at

       issue and has failed to surmount the daunting task of demonstrating any

       fundamental error in the admission of the evidence, he has failed to show any

       grounds for reversal. See, e.g., id. at 208 (explaining that it is not necessary to

       resolve the issue of whether a search was lawful where the defendant had failed

       to preserve the issue by failing to object and where there was no fundamental

       error); see also Mamon v. State, 6 N.E.3d 488, 490 (Ind. Ct. App. 2014) (rejecting

       the defendant’s claim of fundamental error where the defendant made no

       assertion of evidence fabrication or willful malfeasance).8




       8
         Moreover, our review of the record reveals that the State established exceptions to the warrant requirement.
       The heroin in Gaines’ pocket was seized pursuant to the search incident to arrest exception and that the gun
       in Gaines’ yard was seized pursuant to consent exception as George had given consent to search the yard for
       a weapon. Thus, there was no error, fundamental or otherwise, in the admission of the evidence.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018         Page 10 of 14
       2. Sufficiency of Evidence


[16]   Gaines argues that the evidence was insufficient to support his conviction for

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


               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 would 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) (internal quotation marks

       and citations omitted) (emphasis in original). Additionally, our Indiana

       Supreme Court has explained that “when determining whether the elements of

       an offense are proven beyond a reasonable doubt, a fact-finder may consider

       both the evidence and the resulting reasonable inferences.” Thang v. State,

       10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).


[17]   To convict Gaines of unlawful possession of a firearm by a serious violent felon

       as charged, the State was required to prove beyond a reasonable doubt that

       Gaines knowingly or intentionally possessed a firearm and had previously been


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018   Page 11 of 14
       convicted of a serious violent felony. Gaines challenges only one element and

       contends that the State failed to prove that he possessed the gun found in his

       yard because the police officers “never saw him with a gun[.]” (Gaines’ Br. 19).


[18]   “[A] conviction for a possessory offense does not depend on catching a

       defendant red-handed.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). It is

       well-established that possession of an item may be either actual or constructive.

       See Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g, 685

       N.E.2d 698 (Ind. 1997). Constructive possession, which is applicable in this

       case, occurs when a person has: (1) the capability to maintain dominion and

       control over the item; and (2) the intent to maintain dominion and control over

       it. Id.


[19]   The capability element of constructive possession is met when the State shows

       that the defendant is able to reduce the contraband to the defendant’s personal

       possession. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Additionally, “[a]

       trier of fact may infer that a defendant had the capability to maintain dominion

       and control over contraband from the simple fact that the defendant had a

       possessory interest in the premises on which an officer found the item.” Gray,

       957 N.E.2d at 174.


[20]   The intent element of constructive possession is shown if the State demonstrates

       the defendant’s knowledge of the presence of the contraband. Goliday, 708

       N.E.2d at 6. A defendant’s knowledge may be inferred from either the

       exclusive dominion and control over the premises containing the contraband, or


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018   Page 12 of 14
       if the control is non-exclusive, evidence of additional circumstances pointing to

       the defendant’s knowledge of the presence of contraband. Id. These additional

       circumstances may include: “(1) a defendant’s incriminating statements; (2) a

       defendant’s attempting to leave or making furtive gestures; (3) the location of

       contraband like drugs in settings suggesting manufacturing; (4) the item’s

       proximity to the defendant; (5) the location of contraband within the

       defendant’s plain view; and (6) the mingling of contraband with other items the

       defendant owns.” Gray, 957 N.E.2d at 175.


[21]   Turning to the capability element, we note that the evidence is undisputed that

       that the gun was found on Gaines’ property. Gaines’ possessory interest in the

       premises where the gun was found is adequate to show the capability to

       maintain control and dominion over the gun. See Goliday, 708 N.E.2d at 6

       (explaining that “[p]roof of a possessory interest in the premises in which

       [contraband is] found is adequate to show the capability to maintain control

       and dominion over the items in question”). Additionally, Gaines was the only

       person in his yard and was seen pacing back and forth to the area of the yard

       where the gun was ultimately found. Thus, he had the capability to reduce the

       gun to his personal possession.


[22]   There was also sufficient evidence to satisfy the intent element of constructive

       possession. Here, the evidence revealed that when the police were investigating

       a report that shots had been fired near Gaines’ house, Gaines continually yelled

       at the officers to get off his street. As the officers were in the street searching for

       spent bullets, Gaines paced back and forth between his fence and the area of his

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018   Page 13 of 14
       yard where the gun was ultimately found. Officer Taylor testified that when he

       looked down at the chicken-shaped flower pot, he saw the gun that was atop the

       dirt in the pot. Additionally, the parties stipulated that Gaines’ DNA was

       contained on a live round that was inside the gun. Thus, Gaines’ knowledge of

       the presence of the contraband, and his resulting intent for purposes of

       constructive possession, could have been inferred from evidence of additional

       circumstances pointing to Gaines’ knowledge of the presence of contraband.


[23]   From the evidence presented at trial, the judge, as trier of fact, could have

       reasonably determined that Gaines had the capability and intent to maintain

       dominion and control over the gun and that he constructively possessed the

       gun. Accordingly, we affirm Gaines’ Level 4 felony unlawful possession of a

       firearm by a serious violent felon conviction.


[24]   Affirmed.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2656 | December 21, 2018   Page 14 of 14
