Pursuant to Ind. Appellate Rule 65(D), this                            Oct 17 2013, 5:43 am

Memorandum Decision shall not be
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:

MATTHEW D. ANGLEMEYER                           GREGORY F. ZOELLER
Marion County Public Defender                   Attorney General of Indiana
Indianapolis, Indiana
                                                ANDREW R. FALK
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DEVON MILLER,                                   )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1303-CR-286
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Kimberly J. Brown, Judge
                           Cause No. 49F07-1209-CM-66996



                                     October 17, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          This case illustrates that an individual’s possession of contraband need not be

exclusive to sustain a conviction. Here, a handgun was found under the passenger seat

where appellant-defendant Devon Miller had been seated. He now appeals his conviction

for Carrying a Handgun Without a License,1 a class A misdemeanor. More particularly,

Miller argues that the State did not provide sufficient evidence to support the finding that

Miller was in constructive possession of the handgun.

          While Miller’s control over the vehicle where the handgun was found was not

exclusive, Miller’s behavior and proximity to the handgun showed or established Miller’s

intent to establish dominion and control over the handgun. Concluding that sufficient

evidence existed to support a finding that Miller had constructive possession of the

handgun, we affirm the judgment of the trial court.

                                             FACTS

          Around midnight on September 11, 2012, police officers were responding to a

reported homicide when they observed two individuals standing outside a vehicle in the

driveway of a home the officers believed to be abandoned. The officers, finding it

suspicious that the vehicle’s headlights were turned off while its brake lights were on,

shone a light on the vehicle. When they did so, the individuals outside the vehicle moved

closer to it in order to conceal their movements. At the same time, Miller immediately

opened the rear passenger door, as if ready to run from the vehicle or throw something

out the door.

1
    Ind. Code § 35-47-2-1.
                                             2
      The police removed Miller from the vehicle.          Miller was uncooperative and

nervous while being patted down and handcuffed. The officers searched the vehicle and

discovered a loaded Hi-Point 9mm handgun hidden under a pair of jeans on the floor.

The vehicle was compact, and the handgun was found directly under the passenger seat

that Miller had occupied. When the police ran Miller’s information, they discovered he

did not have a permit to carry the handgun. The officers arrested Miller, and he was

charged and subsequently convicted of carrying a handgun without a license. The trial

court subsequently sentenced Miller, and he now appeals.

                            DISCUSSION AND DECISION

      Miller argues that there was insufficient evidence to convict him, claiming that the

evidence did not show that he possessed the handgun. When reviewing the sufficiency of

the evidence claims, an appellate court weighs “only the probative evidence and

reasonable inferences supporting the verdict.” Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007) (emphasis in original). This Court does not judge the credibility of witnesses or

reweigh the evidence. We will affirm the trial court’s verdict unless “no reasonable fact-

finder could find the elements of the crime proven beyond a reasonable doubt.” Jenkins

v. State, 726 N.E.2d 268, 270 (Ind. 2000).

      To establish that Miller carried a handgun without a license, the State must prove

that Miller had actual or constructive possession of the handgun. Goliday v. State, 708

N.E.2d 4, 6 (Ind. 1999). Generally, constructive possession is shown by the intent and

capability to maintain dominion and control over a handgun. Id. at 6. Where, as here,

                                             3
a person’s control over the premises where the contraband is found is nonexclusive,

additional factors may be used to infer intent to establish dominion and control. See

Hardister v. State, 849 N.E.2d 563, 574 (Ind. 2006) (listing both “attempted flight and

furtive gestures” and “proximity to the drugs or weapon” as possible additional factors).

      Miller threw open the passenger door when the police shone a light on the vehicle,

as if to dispose of an object or run. Appellant’s App. p. 12. He was uncooperative and

nervous while being patted down by the police. Id. The handgun was found on the floor

of the seat of the vehicle that Miller had just occupied, and it would have been directly

beneath his feet or legs. Id. Miller’s actions and proximity to the handgun provide

additional factors supporting the conclusion that he was in constructive possession.

Therefore, a reasonable fact-finder could find that the State proved the elements of

carrying a handgun without a license beyond a reasonable doubt.

      The judgment of the trial court is affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.




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