MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Apr 25 2018, 9:57 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
Timothy J. Burns                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Lamons Robinson, Jr.,                            April 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1711-CR-2590
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W.
Appellee-Plaintiff.                                      Hawkins, Judge
                                                         Trial Court Cause No.
                                                         49G05-1612-CM-48638



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018               Page 1 of 8
                                        Statement of the Case
[1]   Michael Lamons Robinson, Jr. appeals his conviction, following a bench trial,

      for carrying a handgun without a license, as a Class A misdemeanor. He raises

      one issue on appeal, namely, whether the State presented sufficient evidence to

      support his conviction.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On December 22, 2016, an individual called the Indianapolis Metropolitan

      Police Department (“IMPD”) to file a report that gunshots had been fired in the

      1900 block of North LaSalle Street. Victoria Robinson, who lives in that area

      and is Robinson’s sister, heard the same gunshots. Victoria called Robinson

      and asked him to come over. After Robinson had arrived, Robinson and

      Victoria got into Victoria’s company car with her infant child and left the area.

      Victoria drove the car, and Robinson was in the front passenger seat.


[4]   IMPD Officer Cameron Taylor responded to the report that gunshots had been

      fired, and he arrived on the scene approximately two minutes later. Officer

      Taylor observed Victoria’s vehicle leaving the area. Victoria failed to stop at a

      stop sign and failed to properly use her turn signal, so Officer Taylor conducted

      a traffic stop. Victoria reported to Officer Taylor that she had heard the

      gunshots and that they were leaving the area for their safety.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018   Page 2 of 8
[5]   Officer Taylor observed that Robinson, with whom Officer Taylor had had

      previous encounters, “was looking around, he seemed to be breathing heavily,

      was very attentive,” and was “absorbing [his] surroundings more.” Tr. Vol. II

      at 10-11. Officer Taylor also noticed that Robinson was “more nervous than

      usual.” Id. at 11-12.


[6]   A few minutes after Officer Taylor had arrived, IMPD Officers Simone Willis

      and William Wogan also arrived at the scene. Officer Willis exited her vehicle

      and went to stand by the driver’s side of Victoria’s vehicle. At that point,

      Officer Taylor asked Victoria to exit the vehicle and speak with him about the

      gunshots she had heard so that Officer Taylor could write a report. After

      Victoria exited the vehicle, Officer Willis had an unobstructed view of

      Robinson and could see Robinson “completely.” Id. at 27.


[7]   Officer Willis observed that Robinson “had his left hand tucked in between the

      center console and the passenger seat and he had his body and right arm leaned

      over [t]o where I couldn’t see his left hand.” Id. at 29. At that point, Officer

      Willis asked Robinson to place both of his hands in his lap. Robinson initially

      complied, but he “leaned back over again, tucked his hand back down to the

      passenger side console” and he tried to look out of the back of the car. Id.

      Officer Willis again asked Robinson to place his hands where Officer Willis

      could see them. Robinson yet again placed his hands down between the

      passenger seat and the center console. Based on Officer Willis’ experience, she

      believed Robinson “was trying to conceal something[.]” Id.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018   Page 3 of 8
[8]    Officer Willis signaled to Officer Wogan, who was standing on the passenger

       side of the vehicle, that Robinson was not listening to her. Officer Wogan had

       also noticed that Robinson, with whom he had had “quite a few” previous

       interactions, “appeared to be visibly nervous.” Id. at 37. After Officer Wogan

       heard Officer Willis ask Robinson to show his hands for the second or third

       time, Officer Wogan asked Robinson to step out of the vehicle. Robinson did

       not comply, and Officer Wogan ultimately had to pull him to get him to leave

       the vehicle. Officer Wogan placed Robinson in handcuffs.


[9]    At that point, Victoria, with permission from the officers, went to the rear

       passenger door of the vehicle so that she could remove her baby. After she

       removed her baby, she left the door open and went to stand near Robinson.

       With the door to the vehicle open, Officer Wogan was able to see a handgun

       underneath Robinson’s seat. After obtaining Victoria’s consent to search her

       vehicle, Officer Wogan confirmed that the item under Robinson’s seat was a

       handgun. Officer Wogan also noticed that the only other object under

       Robinson’s seat was a coin. Officer Taylor confirmed that Robinson did not

       have a license to carry a handgun.


[10]   The State charged Robinson with one count of carrying a handgun without a

       license, as a Class A misdemeanor, and one count of resisting law enforcement,

       as a Class A misdemeanor. On October 13, 2017, the trial court held a bench

       trial. During the trial, Victoria testified that she does not own a handgun and

       did not place a handgun inside the vehicle. She further testified that, in the

       month and a half prior to the incident, she had not had any other passengers in

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018   Page 4 of 8
       her vehicle besides Robinson and her baby. The court found Robinson guilty of

       carrying a handgun without a license but not guilty of resisting law

       enforcement. The court sentenced Robinson to 180 days, all suspended to

       nonreporting probation. This appeal ensued.


                                      Discussion and Decision
[11]   Robinson contends that the State failed to present sufficient evidence to support

       his conviction. Our standard of review on a claim of insufficient evidence is

       well settled:


               For a sufficiency of the evidence claim, we look only at the
               probative evidence and reasonable inferences supporting the
               [judgment]. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We
               do not assess the credibility of witnesses or reweigh the evidence.
               Id. We will affirm the conviction unless no reasonable fact-finder
               could find the elements of the crime proven beyond a reasonable
               doubt. Id.


       Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).


[12]   Indiana Code Section 35-47-2-1(a) (2018) provides in relevant part that “a

       person shall not carry a handgun in any vehicle or on or about the person’s

       body without being licensed under this chapter to carry a handgun.” In order to

       satisfy these elements, “the State must prove the defendant had either actual or

       constructive possession of the handgun.” Deshazier v. State, 877 N.E.2d 200,

       204 (Ind. Ct. App. 2007). Here, the parties dispute only whether Robinson

       constructively possessed the gun.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018   Page 5 of 8
[13]   Evidence of constructive possession is sufficient if the State shows that the

       defendant had both the capability and the intent to maintain dominion and

       control over the contraband. Hardister v. State, 849 N.E.2d 563, 573 (Ind. 2006).

       There is no question that Robinson had the capability to maintain dominion

       and control over the firearm inside the car, as it was within his reach. Holmes v.

       State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003). Thus, we turn to whether a

       reasonable fact-finder could conclude that Robinson had the intent to possess

       the firearm.


[14]   For such issues, our ultimate question is “whether a reasonable fact-finder

       could conclude from the evidence that the defendant knew of the nature and

       presence of the contraband.” Johnson v. State, 59 N.E.3d 1071, 1074 (Ind. Ct.

       App. 2016). We have previously enumerated several nonexhaustive factors that

       the fact-finder might consider where, as here, a defendant’s possession of the

       premises in which the contraband is found is not exclusive. These factors

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

       furtive gestures; (3) a drug manufacturing setting; (4) proximity of the defendant

       to the drugs or weapons; (5) drugs or weapons in plain view; and (6) location of

       the drugs or weapons in close proximity to items owned by the defendant.

       Hardister, 849 N.E.2d at 573.


[15]   Here, a reasonable fact-finder could have concluded that Robinson knew of the

       nature and presence of the firearm under the front passenger seat of the car.

       Both Officer Wogan and Officer Taylor, who had had numerous previous

       contacts with Robinson, testified that Robinson was more nervous than usual.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018   Page 6 of 8
       Officer Taylor also testified that Robinson “was looking around, he seemed to

       be breathing heavily, he was very attentive” and he was “absorbing [his]

       surroundings more.” Id. at 10-11. Further, Officer Willis testified that

       Robinson “had his left hand tucked in between the center console and the

       passenger seat and he had his body and right arm leaned over [t]o where I

       couldn’t see his left hand.” Id. at 29. Officer Willis asked Robinson to place his

       hands where she could see them. Robinson initially complied, but he again

       placed his hand between the center console and his seat. After the second time

       that Officer Willis asked Robinson to show his hands, Robinson asked where

       Officer Wogan was located. Officer Willis testified that “normally people

       [who] are being squirrely, if you want to say, or looking around trying to see

       where other officers are, are trying to conceal firearms.” Id. at 30-31. In sum,

       Robinson was nervous, he tried to determine where all of the officers were

       located, he repeatedly put his hand between the seat and the console, and he

       leaned his body over to the point where officers could no longer see his left

       hand.


[16]   Based on those furtive gestures, Robinson’s close proximity to the handgun,

       and the fact that Officer Wogan could easily see the handgun from outside the

       vehicle, there is sufficient evidence to support the trial court’s conclusion that

       Robinson constructively possessed the firearm. Robinson’s contentions on

       appeal are merely a request that we reweigh the evidence, which we cannot do.

       We affirm Robinson’s conviction.


[17]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018   Page 7 of 8
Robb, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2590 | April 25, 2018   Page 8 of 8
