MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                       Aug 27 2018, 8:59 am
court except for the purpose of establishing                                        CLERK
the defense of res judicata, collateral                                         Indiana Supreme Court
                                                                                   Court of Appeals
estoppel, or the law of the case.                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
T. Andrew Perkins                                        Curtis T. Hill, Jr.
Peterson Waggoner & Perkins, LLP                         Attorney General of Indiana
Rochester, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Clifford J. Reffitt,                                     August 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-532
        v.                                               Appeal from the Fulton Superior
                                                         Court
State of Indiana,                                        The Honorable Wayne E. Steele,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         25D01-1711-CM-517




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-532| August 27, 2018                           Page 1 of 8
                                          Case Summary
[1]   On November 20, 2017, the State charged Clifford J. Reffitt with Class A

      misdemeanor carrying a handgun without a license. The case proceeded to a

      jury trial on January 25, 2018, and the jury found Reffitt guilty as charged. On

      February 15, 2018, the trial court sentenced Reffitt to 365 days executed.

      Reffitt raises the following restated issues: whether the State failed to present

      sufficient evidence that he possessed a handgun without a license and whether

      the trial court abused its discretion when it considered his criminal history and

      the volume of alcohol-related offenses during sentencing. Because the State

      presented sufficient evidence to prove that Reffitt carried a handgun without a

      license and the trial court did not abuse its discretion during sentencing, we

      affirm.



                            Facts and Procedural History
[2]   On November 16, 2017, Rochester Police Department dispatcher Kristine

      Lease received a call that Reffitt was intoxicated, had threated to hurt a family

      member, and was walking down an alley near Beacon Bank. Police Chief

      Andrew Shotts responded to the dispatch. Chief Shotts drove to Beacon Bank,

      and when he could not find Reffitt, began driving around town to locate him.

      Knowing that Reffitt had a connection to the Four Seasons trailer court, Chief

      Shotts decided to see if Reffitt was there.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-532| August 27, 2018   Page 2 of 8
[3]   Chief Shotts was driving down the center drive when he saw Reffitt walk out

      from between two lots. Chief Shotts exited his vehicle and called out to Reffitt.

      He observed that Reffitt had a grocery bag in his left hand and his right hand

      was tucked into his jacket. Reffitt began to jog away from Chief Shotts, keeping

      his hand in his right jacket pocket as he ran. Reffitt ran around the corner of

      one of the trailers and out of sight. Chief Shotts then observed Reffitt kneel

      down next to one of the trailers, stand up, and start jogging away from the area

      where he had knelt down. Chief Shotts ran past the area where Ruffitt had bent

      over and observed a handgun in the bottom skirting of the trailer.


[4]   Shortly thereafter, Chief Shotts caught Reffitt and took him into custody. After

      he transferred Reffitt to another officer, Chief Shotts went and retrieved the

      handgun, which was still warm to the touch despite the fact that it was forty-

      one degrees outside. Reffitt has never had a license to carry a firearm in the

      State of Indiana. The owner of the trailer testified that neither she nor her

      husband owned any firearms.


[5]   On November 20, 2017, the State charged Reffitt with Class A misdemeanor

      carrying a handgun without a license. The case proceeded to a jury trial on

      January 25, 2018, and the jury found Reffitt guilty as charged. During the

      sentencing hearing on February 15, 2018, the trial court received a

      memorandum from the probation department detailing Reffitt’s criminal

      history. The memorandum indicated that Reffitt was first convicted of public

      intoxication when he was seventeen years old and was subsequently convicted

      of public intoxication in 1981, twice in 1990, 1993, 1995, 2001, 2002, 2007,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-532| August 27, 2018   Page 3 of 8
      2011, 2012, and 2014, and operating while intoxicated in 1985, 1991, 1994,

      1995, 1998, 2003, and 2007. In total, Reffitt has nineteen convictions and six

      additional arrests for alcohol-related offenses. Reffitt has also failed to

      successfully complete probation seven times for his various offenses. Reffitt

      did not make any additions or corrections to the memorandum.


[6]   Based on his criminal history and the number of alcohol-related offenses, the

      trial court found that Reffitt was not an appropriate candidate for work release.

      Specifically, the trial court observed that, “When you’re not in jail, you’re

      drinking.” Tr. Vol. II. p. 170. After the sentencing hearing, the trial court

      sentenced Reffitt to 365 days executed.



                                 Discussion and Decision
                          I.     Sufficiency of the Evidence
[7]   Reffitt argues that the evidence is insufficient to support his conviction for

      possession of a handgun without a license. Specifically, he asserts that the State

      failed to prove that he constructively possessed the handgun that was recovered

      from the skirting of the trailer. We do not reweigh the evidence or assess the

      credibility of the witnesses when we are reviewing sufficiency-of-the-evidence

      claims. Cox v. State, 774 N.E.2d 1025, 1028–29 (Ind. Ct. App. 2002). We

      consider only the evidence most favorable to the verdict, together with all

      reasonable and logical inferences to be drawn therefrom. Alspach v. State, 755

      N.E.2d 209, 210 (Ind. Ct. App. 2001), trans. denied. The conviction will be


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-532| August 27, 2018   Page 4 of 8
      affirmed if there is substantial evidence of probative value to support the

      conclusion of the trier-of-fact. Cox, 774 N.E.2d at 1028–29.


[8]   In order to convict Reffitt of carrying a handgun without a license, the State

      was required to prove that on or about November 16, 2017, Reffitt did

      knowingly or intentionally carry a handgun in or upon his person without a

      license in his possession. See Ind. Code § 35-47-2-1. A conviction for

      possession may rest upon proof of actual or constructive possession. Bradshaw

      v. State, 818 N.E.2d 59, 63 (Ind. Ct. App. 2004). Actual possession occurs

      when a person has direct physical control over the items. Griffin v. State, 945

      N.E.2d. 781, 784 (Ind. Ct. App. 2011). On the other hand, we have observed

      that to prove constructive possession, the State must show that a person 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) the mingling of the contraband with other items
              owned by the defendant.


      Bradshaw, 818 N.E.2d at 63.


[9]           When constructive possession is alleged, the State must
              demonstrate the defendant’s knowledge of the contraband. 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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-532| August 27, 2018   Page 5 of 8
               pointing to the defendant's knowledge of the presence of the
               contraband. 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.


       Id.


[10]   Reffitt argues that the State was required to prove direct evidence of possession.

       However, the State was allowed to use circumstantial evidence to prove Reffitt

       unlawfully possessed a handgun without a license. “Constructive possession

       may be inferred even when the defendant’s control is not exclusive and

       circumstantial evidence points to the defendant’s knowledge of the presence of

       a weapon.” Ferrell v. State, 656 N.E.2d 839, 842 (Ind. Ct. App 1995).


[11]   In this case, when Chief Shotts first saw Reffitt, Reffitt had his right hand in his

       coat pocket. Reffitt ignored Chief Shotts and began to jog away from him,

       keeping his right hand in his pocket as he ran. Chief Shotts then saw Reffitt

       bend down next to one of the trailers, stand up, and jog away from the trailer.

       When Chief Shotts arrived at the trailer, he observed a handgun in the bottom

       skirting of the trailer. The gun was warm to the touch when Chief Shotts

       discovered it despite the fact that it was only forty-one degrees that day and no

       one else was around the trailer. When asked, the owner of the trailer stated that

       neither she nor her husband owned a handgun. In light of this evidence, we

       conclude that there is sufficient probative evidence from which a reasonable

       factfinder could conclude that Reffitt was in possession of the handgun. Thus,

       we reject Reffitt’s argument that the State failed to meet its burden of proof.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-532| August 27, 2018   Page 6 of 8
                                          II. Sentencing
[12]   Reffitt also argues that the trial court improperly considered his alcoholism

       during sentencing.1 Sentencing decisions rest within the sound discretion of the

       trial court and are reviewed on appeal only for an abuse of discretion.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on

       reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if the

       decision is clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Id. We do not reweigh the evidence and consider conflicting

       evidence in the light most favorable to the trial court’s ruling when reviewing

       such claims. Mogg v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009).

       However, we will not find that a trial court abused its discretion in failing to

       properly weigh the aggravating and mitigating circumstances. Anglemyer, 868

       N.E.2d at 491.


[13]   Reffitt is essentially arguing that the trial court abused its discretion when it

       considered and gave weight to his drinking. Reffitt points to the trial court’s

       statement that “When you’re not in jail, you’re drinking.” Tr. Vol. II p. 170.

       This statement is not evidence of bias; rather, it is an accurate assessment of

       Reffitt’s history. Reffitt has nineteen prior alcohol-related convictions and six




       1
         While Reffitt says the trial court’s comments about Reffitt’s drinking demonstrated bias, the heart of the
       issue appears to be whether the trial court abused its discretion in weighing the mitigating and aggravating
       circumstances during sentencing.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-532| August 27, 2018                       Page 7 of 8
       additional arrests for alcohol-related offenses. See id at 492 (trial courts are

       allowed to consider a defendant’s criminal history during sentencing). The trial

       court also gave weight to the fact that Reffitt was intoxicated at the time of the

       offense and the danger he created when he hid a handgun in an area where

       children might find it. See Gleason v. State, 956 N.E.2d 702, 711 (Ind. Ct. App.

       2012) (“[T]he nature and circumstances of the crime can be an aggravator.”).

       The trial court did not abuse its discretion in considering Reffitt’s history of

       alcohol abuse.


[14]   The judgment of the trial court is affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-532| August 27, 2018   Page 8 of 8
