MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Jul 27 2018, 9:06 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott H. Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Johnson,                                         July 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1712-CR-2948
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff                                       Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1706-F4-30



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018         Page 1 of 8
[1]   Charles Johnson appeals his conviction of Level 4 felony unlawful possession of

      a firearm by a serious violent felon. 1 He asserts the State did not present

      sufficient evidence he constructively possessed the firearm. We affirm.



                                Facts and Procedural History
[2]   In the early morning hours of June 13, 2017, South Bend Police Officers David

      Boutsomsy and Brandon Martin were parked at a gas station when they saw a

      tan Ford Explorer pull into the parking lot and then, without anyone exiting or

      entering the vehicle, quickly pull back out. The officers followed the Explorer,

      observed the driver fail to use a turn signal, and noted the vehicle did not have a

      properly lit license plate.


[3]   Once Officer Boutsomsy activated his lights to initiate a traffic stop, the

      Explorer sped away. The officers pursued the Explorer until it crashed into a

      tree. The officers saw both the driver and passenger exit the Explorer and flee

      on foot. Officer Boutsomsy chased them but, when they split up, he followed

      the passenger, who was later identified as Johnson. Officer Boutsomsy caught

      up with Johnson as Johnson started kicking and pounding on the door of a

      nearby apartment. Johnson was arrested. Johnson first gave his name as

      “Carlos Smith” (Tr. Vol. 3 at 36), and claimed he was seventeen years old and

      preparing to enter the military. He also claimed he had not been in the




      1
          Ind. Code § 35-47-4-5 (2016).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018   Page 2 of 8
      Explorer but rather had been sitting at a picnic table with his girlfriend when he

      saw the wreck.


[4]   During the investigation, officers discovered the Explorer had been reported

      stolen the day before. Officers found two guns in the vehicle - a .22 caliber rifle

      leaning against the front passenger seat and a Colt .380 caliber handgun

      between the console and front passenger seat. The owner of the Explorer

      testified no firearms were in the vehicle when it was stolen.


[5]   The State charged Johnson with Level 4 felony unlawful possession of a firearm

      by a serious violent felon. On September 26, 2017, a jury trial commenced.

      Johnson admitted to being in the passenger seat but claimed he did not see the

      firearms. Johnson claimed he had run and had given false information because

      he was on probation and thought he would get in more trouble.


[6]   Ashley Nailon, Johnson’s sister, testified Travion Smith had been driving the

      Explorer earlier in the evening and had given Johnson a ride to the grocery

      store. When Nailon and her family could not locate Johnson the next day,

      Nailon confronted Smith. Nailon testified Smith told her that he “had to leave

      [his] guns. [He] had two guns in the car.” (Tr. Vol. 4 at 20.) The State

      questioned Nailon as to why she had not come forward with this information

      before the day of the trial. Nailon stated she had told Johnson’s attorney but

      that he later told her “he didn’t recall [her] telling him every little bitty thing.”

      (Id. at 24.) She also stated she had not disclosed this information to the State

      even though she was allowed to ask defense counsel if she could.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018   Page 3 of 8
[7]   The jury found Johnson guilty. The trial court sentenced Johnson to twelve

      years on the firearm conviction, with eight years executed and four years

      suspended to probation. Because the conviction violated the terms of Johnson’s

      probation in a prior case, the trial court also revoked his probation therein and

      ordered him to serve eight years, with six years executed and two years

      suspended to probation, consecutive to the new firearm sentence.



                                 Discussion and Decision
[8]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference reasonably may be drawn from it to support the verdict. Id. at

      147.


[9]   Johnson contends the State did not present sufficient evidence to allow the jury

      to make a reasonable inference he constructively possessed either firearm

      because the vehicle, in which Johnson was a passenger, was not under

      Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018   Page 4 of 8
       Johnson’s control or dominion, Johnson made no furtive movements in the

       vehicle prior to fleeing, and Johnson did not make any incriminating statements

       about possessing either firearm. The State counters that not only did it present

       sufficient evidence Johnson constructively possessed the firearm but also

       sufficient evidence he actually possessed them due to the proximity of the

       firearms to Johnson’s location in the vehicle, Johnson’s flight from the vehicle,

       and Johnson’s false information regarding his name, age, and whereabouts

       during the car crash.


[10]   Possession of an item may be either actual or constructive. Henderson v. State,

       715 N.E.2d 833, 835 (Ind. 1999). “Actual possession occurs when a person has

       direct physical control over the item.” Id. Constructive possession occurs when

       someone has “the intent and capability to maintain dominion and control over

       the item.” Id. Possession may be exclusive or joint. Joint possession can be

       shown without proof the “defendant had actual physical control” of the item in

       question. Godar v. State, 643 N.E.2d 12, 14 (Ind. Ct. App. 1994), reh’g denied,

       trans. denied. If non-exclusive, however, the State must prove the defendant had

       actual knowledge of the firearm and the illegal character of possessing it. Id.


[11]   Additional circumstances that support finding a defendant had the intent and

       capability to maintain dominion and control over contraband kept in non-

       exclusive premises include: “(1) incriminating statements by the defendant; (2)

       attempted flight or furtive gestures; (3) proximity of the firearm to the

       defendant; (4) location of the firearm within the defendant’s plain view; and (5)



       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018   Page 5 of 8
       the mingling of a firearm with other items owned by the defendant.” Causey v.

       State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004).


[12]   Although the State argues it proved actual possession, Johnson only addresses

       constructive possession. When Nailon made her at-trial revelation that Smith

       admitted owning the guns, the trial court had a discussion with counsel during

       which the court opined the State was not precluded from arguing joint

       possession by the passenger and driver. (See Tr. Vol. 4 at 7-8.) In its closing,

       the State specifically defined actual and constructive possession and told the

       jury constructive possession “is what the defendant is guilty of; [sic] he had

       knowledge.” (Id. at 81.) Therefore, we will analyze whether the State provided

       evidence beyond a reasonable doubt that Johnson and the driver jointly

       possessed the firearms constructively.


[13]   Here, Crime Scene Technician Paul Daley testified to photo-documenting the

       scene. The State introduced photo evidence of the passenger seat showing

       some items in the seat and in the floorboard along with a long gun propped

       against the front of the passenger seat nearest the console and a handgun

       shoved between the passenger seat and the console. A subsequent photo

       showed the handgun on the passenger seat. Technician Daley testified that

       after the handgun had been removed from between the seat and console, he

       “placed it on the seat so [he] could get a better picture of it.” (Tr. Vol. 3 at 52.)

       Technician Daley testified his photo-documentation of the scene occurs “prior

       to anybody being around it, and just documenting the scene as it is presented to

       [him].” (Id. at 51.)

       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018   Page 6 of 8
[14]   Although Nailon testified Smith had said the guns were his, that does not

       preclude either 1) the jury’s disbelief of her statements or 2) joint possession of

       the firearms. See Henderson v. State, 715 N.E.2d 833, 836-37 (Ind. 1999)

       (comparison of different constructive possession cases wherein proximity to the

       firearm weighed heavily in the calculus of possession, such that if the firearm

       was in the trunk, the defendant was not “carrying” it but if three firearms were

       under the three respective seats of the defendants, it was reasonable to infer

       each possessed one). Therefore, even if Nailon was testifying truthfully about

       statements by Smith and even if Smith was truthful the guns belonged to him, it

       was not unreasonable for the jury to infer Johnson had non-exclusive

       constructive possession over one or both firearms due to the proximity of the

       firearms to where Johnson admitted he was sitting in the vehicle.


[15]   Johnson did not make incriminating statements about the firearms but he did

       flee the scene, both firearms were in close proximity to Johnson, and the rifle

       was in plain sight. Johnson’s arguments that he fled only because he was on

       probation are a request for us to reweigh the evidence, which we cannot do. See

       Drane, 867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the

       credibility of witnesses). The State presented evidence the firearms were

       located near or on the passenger seat where Johnson admitted he was sitting.

       Johnson’s arguments the police placed the rifle in the passenger seat floorboard

       is an invitation for us to reweigh the evidence, which we cannot do. See id. We

       conclude the State presented sufficient evidence Johnson had joint constructive




       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018   Page 7 of 8
       possession of the firearms. 2 See Deshazier v. State, 877 N.E.2d 200, 208 (Ind. Ct.

       App. 2007) (constructive possession of a handgun based on Deshazier’s furtive

       gestures, flight from officer, and sitting on the gun), trans. denied.



                                                  Conclusion
[16]   The State presented sufficient evidence Johnson committed Level 4 felony

       unlawful possession of a firearm by a serious violent felon based on a theory of

       non-exclusive constructive possession. Accordingly, we affirm.


[17]   Affirmed.


       Riley, J., and Mathias, J., concur.




       2
         If preponderance of evidence supporting an allegation of the commission of a new crime is presented, even
       without conviction of a new crime, we will affirm the revocation of probation. Richeson v. State, 648 N.E.2d
       384, 389 (Ind. Ct. App. 1995), reh’g denied, trans. denied. One violation of a condition of probation is enough
       to support a probation revocation. Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997). As the State
       presented sufficient evidence Johnson committed the new crime under the heightened standard of beyond a
       reasonable doubt, sufficient evidence was presented to support the revocation of Johnson’s probation under a
       preponderance of the evidence standard; therefore, we need not address Johnson’s arguments to reverse his
       probation revocation based on insufficient evidence to support this conviction. See Henderson v. State, 544
       N.E.2d 507, 512 (Ind. 1989) (affirmed trial court proceeding of combined sentencing and probation
       revocation wherein trial court took judicial notice of conviction of new crime to support probation
       revocation).



       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2948 | July 27, 2018                Page 8 of 8
