MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Dec 31 2018, 10:52 am
regarded as precedent or cited before any
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
Michael R. Fisher                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Tiffany A. McCoy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Davon Lamont Cummings,                                  December 31, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1774
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David Hooper,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G08-1702-CM-4280



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018              Page 1 of 9
[1]   Davon Lamont Cummings appeals his conviction for carrying a handgun

      without a license as a class A misdemeanor. Cummings raises one issue which

      we revise and restate as whether the evidence is sufficient to sustain his

      conviction. We affirm.


                                        Facts and Procedural History

[2]   On the early morning of January 31, 2017, Officer Daniel Majors of the

      Indianapolis Metropolitan Police Department (“IMPD”) observed a grey Buick

      with one operating headlight and a plate light which was not in operation.

      Officer Majors pulled the vehicle over, approached it from the rear, and when

      he was “between five and eight feet away from the car,” he observed “the four

      occupants in the vehicle to be making a lot of movements,” which started to

      make him nervous. Transcript Volume II at 38, 44. He observed the driver,

      Kiera Hidleburg, “reach back to the back seat of the vehicle,” and the front

      passenger “did not make any movements at all.” Id. at 38. The rear passenger

      on the driver’s side, who was identified as Ms. Johnson, was “looking back” at

      Officer Majors and “wasn’t moving her hands at all.”1 Id. Cummings, the rear

      passenger on the right side, was “turned towards the center of the vehicle

      making movements with his hands that [Officer Majors] couldn’t see.” Id.




      1
        At trial, when asked to demonstrate his observation of Johnson’s movements for the jurors, Officer Majors
      stated “[s]he was looking back at me, but I couldn’t tell what her hands were doing.” Transcript Volume II
      at 38.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018                Page 2 of 9
[3]   Upon his approach, Officer Majors detected a strong odor of burnt marijuana

      coming from inside the vehicle and, being “nervous about the movements in the

      vehicle,” called for backup. Id. at 42. While seated, Cummings verbally

      identified himself when he was asked for identification but did not produce

      identification. At some point, Officer Majors ordered the occupants to exit the

      vehicle because he “conducted a probable cause search for the odor of

      marijuana coming from inside the vehicle and movements.” Id. at 41. “[D]ue

      to the movement in the back seat,” officers “started with the backseat

      passengers first and as [they] removed [Johnson] and [Cummings], there was a

      handgun right there in plain view in the center of the backseat.” Id. A second

      handgun sat “under a small purse” but “you could still see it.” Id. Officer

      Majors found a third handgun “in a holster inside of [Johnson’s] pants.” Id.

      Officer Majors arrested Cummings after verifying that he did not have a valid

      gun permit. Officer Michael Margetson photographed the scene and collected,

      boxed, and transported the handguns to the southeast district roll call, where he

      swabbed them for DNA and attempted to collect fingerprints from them.


[4]   On February 1, 2017, the State charged Cummings with carrying a handgun

      without a license as a class A misdemeanor. At the jury trial, Officer Majors

      was positioned so that he faced away from the jurors and was asked to

      “demonstrate . . . what movements [he] observed” from the occupants of the




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018   Page 3 of 9
      vehicle, including Cummings.2 Id. at 38. When the court admitted an aerial

      diagram of the vehicle, Officer Majors marked where each of the occupants of

      the vehicle had been seated and was asked to show the location of the handgun

      in the holster inside of Johnson’s pants. Officer Margetson indicated that he

      was not able to collect fingerprints from the handguns, the prosecutor asked if

      that was uncommon, and Officer Margetson stated: “Not off of a handgun

      because most handguns do not [sic] many smooth surfaces and you really need

      a smooth surface to get the fingerprint off because the dust will go into the

      grooves and the little pocket marks in the gun and all you’re pulling off is all the

      dust that came off into that little area.” Id. at 54. A pair of boxes, which each

      contained a handgun, magazine, and bullets, were admitted without objection

      as State’s Exhibits 4 and 5. One box, which contained a handgun, magazine,

      bullets, and a holster, was admitted without objection as State’s Exhibit 6, and

      Officer Margetson indicated that the three handguns were those collected at the

      scene. The jury found Cummings guilty as charged, and the court sentenced

      him to 365 days with 282 days suspended.


                                                  Discussion

[5]   The issue is whether the evidence is sufficient to sustain Cummings’s conviction

      for carrying a handgun without a license as a class A misdemeanor. When




      2
       During closing arguments, the prosecutor recounted to the jury Officer Majors’s testimony and stated:
      “What did Officer Majors tell you? What did he see when he was pulling that car over? He saw [Cummings]
      make movements sort of passing something over.” Transcript Volume II at 74.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018           Page 4 of 9
      reviewing claims of insufficiency of the evidence, we do not reweigh the

      evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

      817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable

      inferences therefrom that support the verdict. Id. The conviction will be

      affirmed if there exists evidence of probative value from which a reasonable jury

      could find the defendant guilty beyond a reasonable doubt. Id.


[6]   Cummings argues that the evidence merely showed that he was a passenger in a

      car in which the handguns were found, that Officer Majors never observed him

      in possession of such a weapon, and that it cannot be reasonably inferred that

      he possessed one. He contends that the most logical inference would be that

      Hidleburg, as the driver of the car, was in constructive possession of the

      handguns. In response, the State argues that sufficient evidence supports

      Cummings’s conviction and that, viewed in the light most favorable to the

      verdict, multiple factors establish his dominion and control over the handguns

      that were found in the backseat of the car where he was a passenger.

      Specifically, the State asserts that Cummings was making furtive gestures and

      that he was in close proximity to the handguns that were found in plain view.

      It also contends that reasonable inferences support the argument that

      Cummings had dominion and control over a handgun, and that “[s]ince there

      were three guns found and three people . . . that were making furtive gestures, a

      reasonable inference can be made that each gun was controlled by the people

      making the furtive gestures.” Appellee’s Brief at 10. It states the fact that

      Cummings and Hidleburg both did not have valid gun permits while Johnson


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018   Page 5 of 9
      did “also supports this inference and the argument that [Cummings] was giving

      the gun in his control to Johnson.” Id.


[7]   In its February 1, 2017 charging information, the State cited Ind. Code § 35-47-

      2-1 and alleged that Cummings did “knowingly carry a handgun in a vehicle or

      on or about his person, without being licensed as required by law.” Appellant’s

      Appendix Volume 2 at 16. At the time of the offense, Ind. Code § 35-47-2-1(a)

      provided 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,” and Ind. Code § 35-47-2-1(e) provided in part that a “person

      who knowingly or intentionally violates this section commits a Class A

      misdemeanor.”3


[8]   The Indiana Supreme Court held that Ind. Code § 35-47-2-1 is “relatively

      broad” and “thus prohibits both carrying a handgun on or about one’s person

      and carrying a handgun in a vehicle.” Henderson v. State, 715 N.E.2d 833, 835,

      835 n.2 (Ind. 1999).4 When referring to the carrying of a gun on or about one’s

      person, the statute proscribes “having on one’s person an unlicensed handgun”

      and conviction of the offense does not require proof that the weapon was




      3
          Subsequently amended by Pub. L. No. 221-2017, § 1 (eff. July 1. 2017).
      4
       In Henderson, the Indiana Supreme Court addressed a previous version of Ind. Code § 35-47-2-1, which
      provided: “a person shall not carry a handgun in any vehicle or on or about his person, except in his
      dwelling, on his property or fixed place of business, without a license issued under this chapter being in his
      possession.” 715 N.E.2d at 835.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018                    Page 6 of 9
      conveyed or transported from one place to another. McAnalley v. State, 514

      N.E.2d 831, 834 (Ind. 1987).


[9]   In Henderson, the Indiana Supreme Court addressed a conviction for carrying a

      handgun on or about the defendant’s person and held that “[t]he liberality of

      the Indiana text has nevertheless obliged us to examine the sort of evidence

      adequate to demonstrate that a defendant ‘carried’ the weapon.” 715 N.E.2d at

      835. The Court observed that it had “approached this task, and the similar

      question of ‘possessing’ drugs, by characterizing the possession of contraband

      as either actual or constructive.” Id. Actual possession occurs when a person

      has direct physical control over the item. Id. Constructive possession occurs

      when a person has “the intent and capability to maintain dominion and control

      over the item.” Id. When constructive possession is asserted, the defendant’s

      knowledge may be inferred from either the exclusive dominion and control over

      the premises containing the contraband or, if the control is non-exclusive,

      evidence of additional circumstances pointing to his knowledge of the presence

      of the contraband. Id. at 835-836. The intent element of constructive

      possession is shown if the State demonstrates the defendant’s knowledge of the

      presence of the contraband. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Proof

      of dominion and control has been found through a variety of means, including:

      (1) incriminating statements by the defendant, (2) attempted flight or furtive

      gestures, (3) proximity of the contraband to the defendant, (4) location of the

      contraband within the defendant’s plain view, and (5) the mingling of the




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018   Page 7 of 9
       contraband with other items owned by the defendant. Henderson, 715 N.E.2d at

       836.


[10]   The record reveals that, after pulling the vehicle over, Officer Majors

       approached it from the rear. When he was “between five and eight feet away

       from the car,” he observed “the four occupants in the vehicle to be making a lot

       of movements,” which started to make him nervous. Transcript Volume II at

       38, 44. Cummings, the rear passenger on the right side, was “turned towards

       the center of the vehicle making movements with his hands that [Officer

       Majors] couldn’t see.” Id. at 38. Hidleburg reached to the vehicle’s backseat

       and Johnson was looking back at Officer Majors. When officers ordered the

       occupants to exit the vehicle, they started with the backseat passengers first, and

       as they removed Cummings, a handgun was located “right there in plain view

       in the center of the backseat” and a second handgun sat “under a small purse”

       but remained visible. Id. at 41. At trial, Officer Majors marked where

       Cummings sat on an aerial diagram of the vehicle and demonstrated to the jury

       his movements.


[11]   The jury could reasonably infer from the evidence as set forth above and in the

       record that Cummings had knowledge of a handgun as well as the capability

       and intent to maintain control over it in light of his movements, his proximity

       to it, and other factors. Cummings’s argument is merely a request that we

       reweigh the evidence, which we will not do. See Jordan, 656 N.E.2d at 816.

       We conclude that, under these circumstances, evidence of probative value exists

       from which the jury as a trier of fact could find that Cummings had constructive

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018   Page 8 of 9
       possession of the gun and could have found him guilty beyond a reasonable

       doubt of carrying a handgun “on or about his person” without a license as a

       class A misdemeanor. See Grim v. State, 797 N.E.2d 825, 831 (Ind. Ct. App.

       2003) (finding sufficient circumstantial evidence from which the jury could have

       concluded beyond a reasonable doubt that defendant constructively possessed a

       handgun found in close proximity to him within a vehicle in which he was a

       passenger).


                                                   Conclusion

[12]   For the foregoing reasons, we affirm Cummings’s conviction for carrying a

       handgun without a license as a class A misdemeanor.


[13]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1774 | December 31, 2018   Page 9 of 9
