MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Oct 26 2015, 8:36 am
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
Megan Shipley                                            Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Roy Huddleston,                                          October 26, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1502-CR-65
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Ronnie Huerta,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49F19-1403-CM-12049



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 1 of 18
                                  Case Summary and Issues
[1]   Following a bench trial, Roy Huddleston was convicted of carrying a handgun

      without a license as a Class A misdemeanor. Huddleston appeals his

      conviction, raising two restated issues for our review: 1) whether the trial court

      abused its discretion by admitting evidence obtained during a warrantless

      search; and 2) whether the trial court violated Huddleston’s privilege against

      self-incrimination by improperly considering his failure to testify at trial.

      Concluding the trial court did not abuse its discretion and did not violate

      Huddleston’s privilege against self-incrimination, we affirm.



                              Facts and Procedural History
[2]   On March 8, 2014, Officer William Wogan of the Indianapolis Metropolitan

      Police Department was patrolling in the 1500 block of North Rural Street when

      he observed four individuals standing around a parked silver Pontiac. The car

      was parked less than fifteen feet from a fire hydrant.1 Officer Wogan

      recognized one of the individuals and decided to circle the block. When Officer

      Wogan returned, the same four individuals were getting into the parked car.

      Rodrey Milo, whom Officer Wogan knew, was sitting in the driver’s seat.




      1
        Pursuant to Indiana Code section 9-21-16-5(4), a person may not stop, stand, or park a vehicle within
      fifteen feet of a fire hydrant. A violation of this section is a Class C infraction. Ind. Code § 9-21-16-9.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015                Page 2 of 18
[3]   Officer Wogan requested assistance because he knew from previous encounters

      that Milo did not have a valid driver’s license. Officer John Walters responded

      and ran a Bureau of Motor Vehicles (“BMV”) check to confirm Milo did not

      have a valid driver’s license. While waiting for Officer Walters to arrive,

      Officer Wogan observed Milo start the car, but the car did not move. When

      Officer Walters arrived, he activated his emergency lights and parked directly

      behind the Pontiac.


[4]   As Officer Walters pulled in, the occupants of the car became “animated and

      start[ed] moving about.” Transcript at 18. They seemed to be reaching in the

      area around the center console. Using a two-way radio, Officer Walters

      advised Officer Wogan of the movement in the car. Both officers exited their

      squad cars and approached the Pontiac—Officer Walters on the driver’s side

      and Officer Wogan on the passenger side. Officer Walters requested

      identification from all of the occupants. Milo was still in the driver’s seat;

      Huddleston was in the front passenger seat; Stephanie Pettigrew was in the rear

      passenger-side seat; and Jaquez Perkins was in the rear seat on the driver’s side.

      Officer Wogan remained by the car while Officer Walters returned to his squad

      car to confirm identities, conduct BMV checks, and check for outstanding

      warrants. There were no outstanding warrants, but none of the occupants had a

      valid driver’s license.


[5]   When Officer Walters returned, he ordered the occupants out of the vehicle,

      “due to their movements” and the fact that no one had a valid driver’s license.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 3 of 18
      Id. at 44. Officer Walters suspected the occupants had been concealing a

      weapon:

              [State:] Officer Walters, why was it that you deemed it necessary
              to ask the subjects to exit the car?

              [Officer Walters:] According to my training and experience, I
              know that the center console and underneath the seats are often
              times—areas that weapons can be concealed and other
              contraband can be concealed. So when I see people that are
              reaching towards those areas, obviously that alerts my senses to
              the possibility of those items being found there.

              [State:] Okay. Was it for safety reasons that you did proceed the
              way that you did?

              [Officer Walters:] Yes. * * * I told them to get out of the car
              because I’m not going to leave people in the car that could have a
              weapon at their access. * * * I can tell you, by the movements
              that I saw, they were consistent with somebody manipulating
              items either in the center console or reaching into the floorboard
              to the rear. . . . I’m saying that those movements in and of
              themselves are indicative of people that may be concealing
              weapons or contraband.


      Id. at 27, 31, 33.


[6]   The officers conducted patdown searches but found nothing. Officer Wogan

      proceeded to search the vehicle. He discovered a black leather holster in the

      center console and a handgun inside a purse. The purse was on the floorboard

      behind the front passenger seat, “[c]loser to the middle of the vehicle.” Id. at

      68. The handgun was a black and silver, .45 caliber semi-automatic; it was


      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 4 of 18
      wrapped in a black stocking cap and placed “directly on top” of the purse’s

      contents. Id.


[7]   During the course of the stop, Officer Christopher Shaw arrived on scene to

      assist. Officer Shaw advised Huddleston of his Miranda rights, and Huddleston

      stated he understood those rights. Officer Walters then asked Huddleston “if

      there would be anything in the car concerning.” Id. at 94. Huddleston

      responded, “There’s a pistol.” Id. When asked to describe it, Huddleston said

      it was a black and silver “forty-five” that “shouldn’t have a round in its

      chamber.” Id. at 94-95. Officer Walters told Huddleston the handgun was

      found in Pettigrew’s purse and asked Huddleston if the handgun belonged to

      her. Huddleston said, “No, it’s mine.” Id. at 94.


[8]   Based on Huddleston’s admission, the officers arrested only Huddleston. The

      State charged Huddleston with carrying a handgun without a license as a Class

      A misdemeanor. A bench trial was held on January 22, 2015, during which

      Huddleston objected to the admission of evidence seized from the car. Defense

      counsel argued the search was unreasonable under the Fourth Amendment and

      Article 1, Section 11 of the Indiana Constitution. The trial court took the

      admission of the handgun under advisement.


[9]   In addition, Huddleston called Tianna Yates-Mason to testify. Yates-Mason

      testified the car belonged Pettigrew but the handgun belonged to her. Yates-

      Mason claimed she had placed the handgun in Pettigrew’s purse. She described

      the gun as a black and silver “forty caliber.” Id. at 112. When asked how many


      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 5 of 18
       bullets the gun could hold, Yates-Mason answered, “I think the clip held

       twelve, maybe. I’m not really—I’m not a hundred percent sure.” Id. at 121.

       Huddleston did not testify. During closing argument, defense counsel argued

       Huddleston’s earlier admission was “just a stupid moment of chivalry” to “take

       . . . the heat off of someone else.” Id. at 129.


[10]   After hearing the evidence and closing argument, the trial court admitted the

       handgun and found Huddleston guilty as charged. The trial court sentenced

       Huddleston to twenty-four hours of community service and 365 days in jail,

       with eight days of credit for time served and the remainder suspended to

       probation. Huddleston now appeals.



                                  Discussion and Decision
                                   I. Admission of Evidence
                                        A. Standard of Review
[11]   Huddleston contends the trial court erred in denying his motion to suppress.

       But when a defendant challenges the constitutionality of a search following a

       completed trial, the issue is more appropriately framed as whether the trial

       court abused its discretion by admitting evidence. Cartwright v. State, 26 N.E.3d

       663, 667 (Ind. Ct. App. 2015), trans. denied. “The trial court abuses its

       discretion only if its decision is clearly against the logic and effect of the facts

       and circumstances before it, or if the court has misinterpreted the law.” Fuqua

       v. State, 984 N.E.2d 709, 713 (Ind. Ct. App. 2013), trans. denied. In reviewing


       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 6 of 18
       the trial court’s decision, we do not reweigh the evidence and consider

       conflicting evidence most favorably to the ruling. Meredith v. State, 906 N.E.2d

       867, 869 (Ind. 2009). We defer to the trial court’s factual determinations unless

       clearly erroneous, but review the constitutionality of the search de novo. Id.


                                            B. Fourth Amendment
[12]   Huddleston concedes the initial traffic stop was proper but argues the

       warrantless search of the Pontiac violated the Fourth Amendment 2 because the

       police lacked “reasonable suspicion Huddleston was armed and dangerous.”

       Brief of Appellant at 19.3 The Fourth Amendment guarantees “[t]he right of the




       2
         Huddleston also claims the police impermissibly extended the duration of the traffic stop. See, e.g., Illinois v.
       Caballes, 543 U.S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket
       to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that
       mission.”). To the extent Huddleston refers to the time required to conduct BMV checks and check for
       outstanding warrants, the U.S. Supreme Court has stated,
              Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary
              inquiries incident to the traffic stop. Typically such inquiries involve checking the driver’s
              license, determining whether there are outstanding warrants against the driver, and inspecting
              the automobile’s registration and proof of insurance. These checks serve the same objective as
              enforcement of the traffic code: ensuring that vehicles on the road are operated safely and
              responsibly.
       Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015) (citations, alterations, and internal quotation
       marks omitted); accord State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006) (“Where an officer stops a
       vehicle for a traffic violation, a request for the driver’s license and vehicle registration, a license plate
       check, a request to search the driver’s vehicle and an inquiry regarding whether the driver has a
       weapon in the vehicle are within the scope of reasonable detention [under Article 1, Section 11].”).
       In the present case, after completing the routine checks associated with a traffic stop, the police ordered
       the occupants out of the vehicle to conduct patdown searches and search the passenger compartment of
       the vehicle. The traffic stop was prolonged by the search of the occupants and the vehicle, and the
       handgun was discovered in the vehicle. Accordingly, Huddleston essentially challenges the propriety
       of the search of the vehicle.
       3
         The passenger compartment of a vehicle may be searched without a warrant when the police have a
       reasonable belief that a suspect poses a danger:
              [T]he search of the passenger compartment of an automobile, limited to those areas in which a
              weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief
              based on “specific and articulable facts which, taken together with the rational inferences from

       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015                    Page 7 of 18
       people to be secure in their persons, houses, papers, and effects, against

       unreasonable searches and seizures . . . .” U.S. Const. amend. IV. “But the

       extent to which the Fourth Amendment protects people may depend upon

       where those people are.” Minnesota v. Carter, 525 U.S. 83, 88 (1998). In order

       to claim the protection of the Fourth Amendment, a defendant must

       demonstrate that he or she has a legitimate expectation of privacy in the place

       searched. Id.


[13]   In Rakas v. Illinois, 439 U.S. 128 (1978), the petitioners challenged the

       admission of evidence seized from a vehicle in which they were passengers. The

       United States Supreme Court concluded it was unnecessary to decide whether

       the search of the vehicle violated the Fourth Amendment, as the petitioners had

       failed to show “they had any legitimate expectation of privacy in the glove

       compartment or area under the seat of the car in which they were merely

       passengers.” Id. at 148. The Supreme Court affirmed the trial court’s decision

       to admit the evidence because “Fourth Amendment rights are personal rights

       which . . . may not be vicariously asserted.” Id. at 133-34 (quoting Alderman v.

       United States, 394 U.S. 165, 174 (1969)). “Like the trunk of an automobile,” the

       Court reasoned, “these are areas in which a passenger qua passenger simply

       would not normally have a legitimate expectation of privacy.” Id. at 148-49.




             those facts, reasonably warrant” the officers in believing that the suspect is dangerous and the
             suspect may gain immediate control of weapons.
       Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015              Page 8 of 18
[14]   Likewise, Huddleston was merely a passenger in the vehicle. The handgun was

       discovered in a purse that did not belong to him, inside a car that he neither

       owned nor used. Yet, Huddleston contends his romantic relationship with

       Pettigrew “suggests a possessory interest in the car and the purse, since couples

       expect to share the use of cars, regardless of whose name is on the title, and

       couples often store personal items in each other’s purses and bags.” Br. of

       Appellant at 20. He relies on Pollard v. State, 270 Ind. 599, 388 N.E.2d 496

       (1979), a case in which our supreme court held that a husband had a legitimate

       expectation of privacy in a vehicle titled to his wife.


[15]   As to the vehicle, the present case is distinguishable because Huddleston and

       Pettigrew are not married, and nothing in the record suggests Huddleston ever

       used Pettigrew’s car. Furthermore, the Pollard decision seems to turn on a

       statement from Rakas disclaiming “arcane distinctions developed in property

       and tort law” in defining the scope of Fourth Amendment interests. Id. at 606,

       388 N.E.2d at 503 (quoting Rakas, 439 U.S. at 143). “Thus the legitimacy of a

       defendant’s privacy expectations in the searched premises will not always turn

       upon whether his name appears on the deed, lease or certificate of registration,”

       our supreme court explained. Id. Although the car was titled to Pollard’s wife,

       Pollard also used the car and therefore had a reasonable expectation of privacy

       in the car. By contrast, we have no basis on which to conclude Huddleston had

       any sort of possessory interest in the Pontiac.


[16]   As to the purse, our supreme court has more recently stated, “a woman’s purse

       . . . is uniquely related to a given individual and is not ordinarily accessible by a

       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 9 of 18
       man.” Lee v. State, 849 N.E.2d 602, 608 (Ind. 2006), cert. denied, 549 U.S. 1211

       (2007); see also Krise v. State, 746 N.E.2d 957, 970 (Ind. 2001) (“[P]ersons have a

       legitimate expectation of privacy in their purses and other closed containers that

       normally hold highly personal items.”) (emphasis added). It may be true

       couples occasionally store personal items in each other’s bags, but absent

       evidence that Huddleston and Pettigrew actually did this, we have no basis on

       which to conclude Huddleston had any expectation of privacy in Pettigrew’s

       purse. See Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (holding the defendant

       who dumped drugs into a friend’s purse did not have a legitimate expectation of

       privacy in the purse because he “never sought or received access to her purse

       prior to that sudden bailment”).


[17]   Huddleston also argues he has standing to object to the search of the car

       because there was no evidence he “did not have permission to use the car.” Br.

       of Appellant at 20 (emphasis in original). He cites Campos v. State, 885 N.E.2d

       590 (Ind. 2008), in support of this argument. In Campos, our supreme court

       addressed the ability of a passenger in a borrowed car to challenge the

       constitutionality of a search, holding Campos had standing to challenge the

       search of the car because “the State . . . produced no evidence . . . that Campos

       did not have permission to use it.” Id. In Campos, the car was borrowed, and its

       owner was absent. Here, the owner was present in the car at the time of the

       stop. The exception announced in Campos simply does not apply. See Campos,

       885 N.E.2d at 598 (“[A] driver who is not the owner has no standing if the

       owner is also in the car.”).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 10 of 18
[18]   As Huddleston has failed to show he had a legitimate expectation of privacy in

       the places searched, we conclude the search did not violate Huddleston’s

       Fourth Amendment rights.


                                       C. Article 1, Section 11
[19]   Huddleston also claims the search violated his rights under Article 1, Section 11

       of the Indiana Constitution, which provides in relevant part: “The right of the

       people to be secure in their persons, houses, papers, and effects, against

       unreasonable search or seizure, shall not be violated . . . .” Although Section

       11 and the Fourth Amendment are “textually identical, they are analytically

       distinct.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). “The Fourth

       Amendment analysis turns on whether the subject has a ‘reasonable expectation

       of privacy,’ while the Section 11 analysis turns on whether the police conduct

       was reasonable under the totality of the circumstances.” Id. at 1001-02 (quoting

       Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)).


[20]   In addition, standing to challenge a search under Section 11 differs in some

       respects from standing to assert a Fourth Amendment claim. Campos, 885

       N.E.2d at 598. The Indiana Constitution “provides protection for claimed

       possessions irrespective of the defendant’s interest in the place where the

       possession was found.” Id. Stated differently, to challenge a search under

       Section 11, “a defendant must establish ownership, control, possession, or

       interest in either the premises searched or the property seized.” Peterson v. State,




       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 11 of 18
       674 N.E.2d 528, 534 (Ind. 1996) (emphasis added), cert. denied, 522 U.S. 1078

       (1998).


[21]   Huddleston argues he has standing to challenge the search under Section 11

       because he “told Officer Walters that the handgun was his” and thus has “an

       ownership interest in the handgun.” Br. of Appellant at 9. The State disagrees,

       arguing Huddleston has no standing under Section 11 because he “did

       everything he could to disclaim ownership and control of the firearm at trial.”

       Brief of Appellee at 24. “If a defendant who disclaims ownership in property

       found in a purse that does not belong to him in a car that does not belong to

       him has standing, it is difficult to envision scenarios where a defendant would

       not have standing,” the State maintains. Id. We are inclined to agree with the

       State but narrowly conclude the search was reasonable, regardless of the

       standing issue.4


[22]   We evaluate the reasonableness of a search under Section 11 by balancing: “1)

       the degree of concern, suspicion, or knowledge that a violation has occurred, 2)

       the degree of intrusion the method of the search or seizure imposes on the

       citizen’s ordinary activities, and 3) the extent of law enforcement needs.”




       4
         A defendant’s “disclaimer of ownership” is a “strong indication that a defendant does not expect the article
       to be free from government intrusion.” State v. Machlah, 505 N.E.2d 873, 877 (Ind. Ct. App. 1987) (quoting
       United States v. Hawkins, 681 F.2d 1343, 1346 (11th Cir.), cert. denied, 459 U.S. 994 (1982)), trans. denied.
       Where a defendant’s disavowal is entirely “inconsistent with a claim of privacy interest . . . he cannot later
       successfully assert that claim.” Id.; see also Tyler v. State, 202 Ind. 559, 177 N.E. 197, 198 (1931) (“A
       defendant cannot avail himself of an objection to the legality of the search of premises or property which he
       does not own, control, or have an interest in, or of premises or property in which he disclaims ownership,
       control, or interest”) (citation omitted), cited with approval in Peterson, 674 N.E.2d at 534 n.4.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015            Page 12 of 18
       Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). In assessing reasonableness,

       “we recognize that Indiana citizens are concerned not only with personal

       privacy, but also with safety, security, and protection from crime.” Saffold v.

       State, 938 N.E.2d 837, 840 (Ind. Ct. App. 2010), trans. denied. “[T]herefore,

       reasonableness under the totality of circumstances may include consideration of

       police officer safety.” Id.


[23]   In the present case, Officer Walters testified he ordered the occupants out of the

       vehicle “due to their movements” and the fact that no one had a valid driver’s

       license. Tr. at 44. Officer Wogan searched the vehicle because Officer Walters

       suspected the occupants had been concealing a weapon. Officer Walters

       recounted his observations at trial:

               [Officer Walters:] As I pulled behind the car and . . . initiated the
               traffic stop, with the emergency equipment, I noticed the
               individuals inside the vehicle to become animated [sic] and start
               moving about.

               [State:] How many individuals did you see from your position?

               [Officer Walters:] I could see all four of the occupants’ heads
               and shoulders in the vehicle.

               [State:] And how far away would you say you were?

               [Officer Walters:] Less—probably less than a car length behind
               the vehicle.

               [State:] Okay. So go ahead, you observed people moving about?

               [Officer Walters:] Correct. And obviously my attention was

       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 13 of 18
               draw [sic] to these movements because they can be an officer
               safety awareness issue, so I witnessed Roy Huddleston start
               moving about in the manner—he actually turned his body
               towards the center console. Dipped his left shoulder towards the
               center console. . . . He looked towards the rear of the car,
               towards the rear seat passengers. I also saw the rear seat
               passenger, Miss Pettigrew, who was seated directly behind Roy
               Huddleston, bend over to where her head and her shoulders
               disappeared from my view briefly. As if she might be reaching
               for something on the floorboard or something in front of her. . . .
               These movements were in sync with one another. They
               precipitated . . . one another. I also saw the—the driver, Mr.
               Milo, also turn towards the center console dippin’ his shoulders
               as if he was possibly reaching as well towards the center console
               or—or to the rear of the back seat.


       Id. at 18-20.


[24]   Under the totality of the circumstances, we narrowly conclude the protective

       search of the Pontiac was reasonable. First, regarding the degree of suspicion,

       Officer Walters had reason to believe the occupants were concealing an object

       in the center console area. He observed three of the occupants moving “in sync

       with one another,” toward the same area of the car. Id. at 20. In his

       experience, these coordinated movements were “indicative of people that may

       be concealing weapons or contraband.” Id. at 33; see Patterson v. State, 958

       N.E.2d 478, 486 (Ind. Ct. App. 2011) (“In determining whether an officer acted

       reasonably under the circumstances, we consider the specific, reasonable

       inferences that the officer is entitled to draw from the facts in light of his or her

       experience.”). Second, as to Huddleston specifically, the degree of intrusion

       was slight at best. Huddleston was merely a passenger in the car, and the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 14 of 18
       handgun was discovered in a purse that did not belong to him. Finally, we note

       traffic stops are “especially fraught with danger to police officers.” Patterson, 958

       N.E.2d at 487 (quoting Long, 463 U.S. at 1047). As Officer Walters testified,

       furtive movements can be an officer safety issue.


[25]   In this instance, in light of the special dangers facing police officers conducting

       traffic stops, the search was reasonable under the totality of circumstances and

       did not violate Huddleston’s rights under Section 11. The trial court did not

       abuse its discretion by admitting the handgun.


                      II.     Privilege Against Self-Incrimination
                                        A. Standard of Review
[26]   Lastly, Huddleston argues the trial court violated his privilege against self-

       incrimination by improperly considering his failure to testify at trial. The Fifth

       Amendment prevents a person from being “compelled in any criminal case to

       be a witness against himself.” U.S. Const. amend. V. Comment on a

       defendant’s refusal to testify at trial is barred by the Fifth Amendment, as it

       penalizes the exercise of a constitutional privilege. Griffin v. California, 380 U.S.

       609, 614 (1965). However, statements concerning the uncontradicted nature of

       the State’s evidence do not violate a defendant’s Fifth Amendment privilege.

       Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004). Comment on the lack of

       defense evidence is permissible so long as the statement focuses on the absence

       of any evidence to contradict the State’s evidence and not on the accused’s

       failure to testify. Id. Moreover, “[w]e presume the trial judge is aware of and


       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 15 of 18
       knows the law, and considers only evidence properly before the judge in

       reaching a decision.” Id. at 1121.


                                       B. Huddleston’s Silence
[27]   Huddleston was found guilty at the conclusion of a bench trial. He claims the

       trial court improperly considered his failure to testify in reaching this verdict

       and takes issue with the trial court’s explanation of its verdict. During closing

       argument, defense counsel argued Huddleston’s earlier admission was “just a

       stupid moment of chivalry” to “take the heat off of someone else.” Tr. at 129.

       The State countered,

               It was not chivalry. . . . [I]t was a refreshing moment of honesty
               by a defendant who had a gun without a permit. He owned up to
               it immediately. We have heard nothing today . . . that refutes
               his position that day . . . his admission that it was in his
               possession.


       Id. at 130-31. Defense counsel objected, asserting Huddleston’s privilege

       against self-incrimination. The trial court assured defense counsel Huddleston’s

       silence would not be considered and allowed the State to conclude.


[28]   After hearing the evidence and closing argument, the trial court found

       Huddleston guilty of carrying a handgun without a license:


                [T]his is a constructive possession case obviously. . . . He didn’t
               possess it, he didn’t have it exactly at that moment . . . . But the
               problem becomes and the State said, he knew the condition of
               the gun. He knew the color of the gun. He knew the description


       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 16 of 18
                  of the gun. He knew that the gun was not loaded. 5 Then you
                  have another witness, Defense’s only witness that comes in and I
                  just found her totally . . . not credible at all. Problem is, what
                  caliber is it. It’s a forty cal. She was certain that it was a forty
                  cal. Mr. Huddleston knew it was a forty-five caliber. And the
                  gun was a forty-five caliber. She’s talking about a double stack
                  magazine, which that gun is not capable of taking. She’s talking
                  about twelve rounds. It’s a single stack magazine. It only takes
                  six. She wasn’t even close. I just didn’t find her credible. . . .
                  And he made, you know, admissions to the officers that were
                  counter to his interest. And that’s a tough one to overcome as
                  well. Had the testimony been different, had she been accurate with the
                  gun and then he stated that explanation why he did what he did. That
                  may . . . have muddied the waters enough. But for me, I just didn’t
                  find her credible. She was just so inaccurate with the gun.
                  And—I didn’t believe her. So based on that I am going to find
                  the State has met their burden and find Mr. Huddleston guilty of
                  Possession of a Firearm.


       Id. at 133-34 (emphasis added).


[29]   Citing Mitchell v. United States, 526 U.S. 314, 330 (1999), Huddleston claims the

       trial court is stating that it held his silence against him, thereby imposing an

       impermissible burden on the exercise of a constitutional privilege. Br. of

       Appellant at 26. But in Mitchell, the comments at issue plainly focused on the

       defendant’s failure to testify. The district court judge told Mitchell at

       sentencing, “I held it against you that you didn’t come forward today . . . . I’m

       taking the position that you should come forward and explain your side of the




       5
           The gun was technically loaded, but as Huddleston stated, it did not have a round in the chamber.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015            Page 17 of 18
       issue.” Id. at 319 (holding the district court’s comments imposed an

       impermissible burden on the privilege against self-incrimination). Here, the

       trial court judge explicitly stated he would not be considering Huddleston’s

       silence. Tr. at 131 (“No, I’m not going to hold it against him for sure.”).


[30]   We believe the trial court judge was referring to the uncontradicted nature of

       the State’s evidence. The bulk of the judge’s remarks concerned the credibility

       of the defense witness who directly contradicted Huddleston’s prior admission.

       The judge, as fact-finder, did not consider her testimony credible. Accordingly,

       the statement concerned “the absence of any evidence to contradict the State’s

       evidence,” not Huddleston’s failure to testify. Dumas, 803 N.E.2d at 1118.



                                               Conclusion
[31]   The trial court did not abuse its discretion by admitting evidence and did not

       violate Huddleston’s privilege against self-incrimination. We therefore affirm

       Huddleston’s conviction for carrying a handgun without a license.


[32]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-65 | October 26, 2015   Page 18 of 18
