                                                                             FILED
                                                                       Nov 29 2018, 5:55 am

                                                                             CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Curtis T. Hill, Jr.
      Deborah Markisohn                                         Attorney General of Indiana
      Marion County Public Defender Agency                      Chandra K. Hein
      Indianapolis, Indiana                                     Ian McLean
                                                                Deputy Attorneys General
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Pierre A. Smith, Jr.,                                     November 29, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-478
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Alicia A. Gooden,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                49G21-1706-F4-20545


      Mathias, Judge.


[1]   Pierre Smith (“Smith”) was convicted in Marion Superior Court of Level 4

      felony unlawful possession of a firearm by a serious violent felon. Smith appeals

      and argues that the State failed to prove that he constructively possessed the

      firearm.


      Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018                      Page 1 of 11
[2]   We affirm.


                                  Facts and Procedural History
[3]   At approximately 8:00 p.m. on May 31, 2017, Indianapolis Metropolitan Police

      Department Officer William Wogan (“Officer Wogan”) was on patrol in his

      district when he observed Smith driving a silver Chevrolet Monte Carlo. Smith

      “rolled” a stop sign and then turned right onto East Eleventh Street. Tr. p. 40.

      The officer followed Smith onto East Eleventh Street and observed that Smith

      failed to stop at the stop sign at the intersection of East Eleventh and LaSalle

      Street. Smith then proceeded northbound on LaSalle Street.


[4]   As the officer turned northbound onto LaSalle, he saw Smith’s vehicle

      “suddenly slow down [and] pull to the right.” Tr. p. 44. The tires on the

      passenger side of the vehicle hit the curb, and the car jolted. Id. At that point,

      Officer Wogan activated his lights to initiate a traffic stop. While Smith’s

      vehicle was stopped at the curb, the officer saw Smith moving around in the

      vehicle and shift from the middle of the front seat back to the driver’s seat. Tr.

      pp. 44–45. The officer could not see the passenger side of Smith’s vehicle

      because a parked car partially blocked the officer’s view.


[5]   Smith then pulled away from the curb and continued to drive northbound on

      LaSalle Street with Officer Wogan in pursuit with his lights activated. Officer

      Wogan radioed for assistance.


[6]   Smith turned right onto Thirteenth Street and drove approximately one-half of

      the block before stopping his vehicle. Because Smith initially fled from him
      Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018       Page 2 of 11
      before stopping, the officer considered the traffic stop high risk. The officer

      instructed Smith to turn his vehicle off, exit the vehicle, and walk back toward

      Officer Wogan. Smith complied with the officer’s commands.


[7]   Officer Wogan obtained Smith’s name and date of birth and determined that

      Smith did not have a driver’s license, active arrest warrants, or a handgun

      permit. Because Smith cooperated and Officer Wogan was “not tasked with

      traffic enforcement,” the officer released Smith and instructed him that a

      licensed driver would need to pick up Smith and the car. Tr. pp. 48–49. Before

      Smith was allowed to return to the vehicle, Officer Brett Lorah (“Officer

      Lorah”) made a quick sweep of the vehicle to check for weapons. Officer Lorah

      did not find any weapons but did notice that the front passenger window of the

      vehicle was in a lowered position.


[8]   Because Smith’s driving behavior had piqued Officer Wogan’s curiosity, after

      the traffic stop was complete, Officer Wogan and Officer Lorah returned to the

      area on LaSalle Street where Smith had pulled his vehicle over to the curb just

      before Officer Wogan initiated the traffic stop. The officers stood on the

      sidewalk in front of 1213 LaSalle Street, an abandoned property, and saw a

      black and silver 9mm semi-automatic pistol laying in the grass approximately

      fifteen feet from the curb. Tr. p. 52. Just after locating the gun, the officers saw

      Smith driving his vehicle “backwards on Thirteenth Street.” Id. Smith then

      stopped in the intersection, turned south on LaSalle Street, and drove by the

      officer. Smith and Officer Wogan made eye contact as Smith drove by. As

      Smith was driving without a license after being directed not to do so, Officer

      Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018        Page 3 of 11
       Wogan instructed Officer Lorah to stop Smith, which he did just a few blocks

       away.

[9]    Officer Wogan believed the pistol belonged to Smith and arrested him for

       carrying a handgun without a license. The officer recovered the pistol and

       observed scratches on the side of the pistol that had been laying on the freshly

       mown grass. The officer opined that the scratches looked “relatively fresh.” Tr.

       p. 57. The officer believed that the markings and damage to the pistol “would

       be consistent with being thrown across concrete and on the ground.” Tr. p. 59.

       And based on its appearance, the officer did not believe that the pistol had been

       exposed to the elements for any significant length of time.

[10]   The State charged Smith with Level 4 felony unlawful possession of a firearm

       by a serious violent felon,1 and a jury trial was held on January 23, 2018. At

       trial, Officer Wogan testified that due to his observations “that [he] had of the

       driving behavior and the movements of Mr. Smith, where we located the

       firearm and the fact that no one was around, we came to the conclusion that

       Mr. Smith had thrown the firearm out the window when he pulled over.” Tr. p.

       64.

[11]   The jury found Smith guilty as charged. Smith waived his right to a jury trial on

       his status as a serious violent felon. The trial court found that Smith is a serious




       1
        Smith was also charged with Class A misdemeanor driving while suspended, but that charge was dismissed
       one day before Smith’s jury trial.

       Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018                        Page 4 of 11
       violent felon and entered judgment of conviction for Level 4 felony possession

       of a firearm by a serious violent felon. On February 22, 2018, the trial court

       ordered Smith to serve ten years, eight years executed in the Department of

       Correction and two years suspended to probation. Smith appeals his

       conviction.2


                                           Standard of Review
[12]   Our standard of review for claims of insufficient evidence is well settled: we

       neither reweigh the evidence nor judge the credibility of the witnesses, and we

       consider only the evidence most favorable to the verdict and the reasonable

       inferences that can be drawn from this evidence. Knight v. State, 42 N.E.3d 990,

       993 (Ind. Ct. App. 2015). We will not disturb the jury’s verdict if substantial

       evidence of probative value supports it. Id. As an appellate court, we respect the

       jury’s exclusive province to weigh conflicting evidence. Id.


                                       Discussion and Decision
[13]   Smith argues that the State failed to prove beyond a reasonable doubt that he

       “constructively possessed the handgun that police found abandoned on the

       front lawn of a vacant house.” Appellant’s Br. at 10. Indiana Code section 35-

       47-4-5(c) provides: “A serious violent felon who knowingly or intentionally




       2
         We held oral argument in this case at North Newton High School in Morocco, Indiana, on October 23,
       2018. We thank the school and its faculty, staff and students for their gracious hospitality. We also thank
       Newton Circuit Court Judge Jeryl Leach for sponsoring the oral argument. Finally, we commend counsel for
       the quality of their oral and written advocacy.

       Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018                           Page 5 of 11
       possesses a firearm commits unlawful possession of a firearm by a serious

       violent felon, a Level 4 felony.” A conviction for possession of a firearm may

       rest upon proof of either actual or constructive possession. See Houston v. State,

       997 N.E.2d 407, 409–10 (Ind. Ct. App. 2013).

[14]   Actual possession is the direct physical control of the gun. Bradshaw v. State, 818

       N.E.2d 59, 62 (Ind. Ct. App. 2004). In this case, there is no evidence that the

       officers saw the gun in Smith’s possession.


[15]   “Constructive possession occurs when somebody has the intent and capability

       to maintain dominion and control over the item.” Henderson v. State, 715

       N.E.2d 833, 835 (Ind. 1999). A person constructively possesses contraband

       when the person has (1) the capability to maintain dominion and control over

       the item, and (2) the intent to maintain dominion and control over it. Gray v.

       State, 957 N.E.2d 171, 174 (Ind. 2011).


[16]   “To prove capability, the State must show that the defendant is able to reduce

       the contraband to [his] personal possession.” K.F. v. State, 961 N.E.2d 501, 510

       (Ind. Ct. App. 2012), trans. denied. To prove intent, the State must establish the

       defendant’s knowledge of the presence of the contraband. Id. When possession

       of the premises where the contraband is found is non-exclusive, the defendant’s

       knowledge may not be inferred absent some additional circumstances indicating

       knowledge of the presence of the contraband and the ability to control it.

       Gaynor v. State, 914 N.E.2d 815, 819 (Ind. Ct. App. 2009), trans. denied. “Among

       the recognized ‘additional circumstances’ are: (1) incriminating statements by


       Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018      Page 6 of 11
       the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing

       setting; (4) proximity of the defendant to the contraband; (5) contraband is in

       plain view; and (6) location of the contraband is in close proximity to items

       owned by the defendant.” Id. at 819–20 (quoting Holmes v. State, 785 N.E.2d

       658, 660–61 (Ind. Ct. App. 2003)).


[17]   It is well-settled that “conviction for possessory offenses does not depend on the

       accused being ‘caught red-handed’ in the act by the police.” Wilburn v. State,

       442 N.E.2d 1098, 1101 (Ind. 1982). Moreover, it is “not necessary that the

       evidence ‘overcome every reasonable hypothesis of innocence.’ The evidence is

       sufficient if an inference may reasonably be drawn from it to support the

       verdict.” Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citation omitted).


[18]   Smith argues that the evidence is insufficient to support his conviction because

       Officer Wogan did not see a handgun in his possession, and he did not see

       Smith throw a handgun from his vehicle. Smith further argues that he did not

       make any incriminating statements to the officers, the handgun was found in a

       high crime area in the yard of an abandoned house, and the gun was not found

       within close proximity to him. Moreover, Smith argues that his flight from the

       police only establishes “consciousness of guilt of not having a valid driver’s

       license.” Appellant’s Br. at 15.


[19]   Officer Wogan found the handgun laying in the grass near to the area that

       Smith pulled over and hit the curb. While Smith was stopped at the curb, the

       officer saw Smith shift from the middle of the front seat back to the driver’s


       Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018     Page 7 of 11
       seat. Tr. pp. 44–45. Officer Wogan activated his lights to initiate a traffic stop,

       and Smith fled in his vehicle. Smith eventually stopped, and during the ensuing

       traffic stop, Officer Lorah observed that the passenger side window of the

       vehicle was lowered.


[20]   After Officer Wogan returned to the area where Smith stopped his car and hit

       the curb, the officer found the handgun. Based on its appearance, the officer did

       not believe that the pistol had been exposed to the elements for any significant

       length of time. The officer recovered the pistol and observed scratches on the

       side of the pistol that had been laying on the freshly mown grass. He

       determined that the scratches looked “relatively fresh.” Tr. p. 57. The officer

       believed that the markings and damage to the pistol “would be consistent with

       being thrown across concrete and on the ground.” Tr. p. 59. The officer did not

       observe any other individuals in the area near the abandoned property either

       before or after the traffic stop.


[21]   Finally, just after Officer Wogan found the handgun, the officer saw Smith

       driving his vehicle “backwards on Thirteenth Street.” Id. at 52. Smith then

       stopped in the intersection, turned south on LaSalle Street, and drove by the

       officer. Smith and Officer Wogan made eye contact as Smith drove by.

[22]   In Brent v. State, 957 N.E.2d 648, 652 (Ind. Ct. App. 2011), trans. denied, the

       defendant was a front seat passenger, rather than the driver. Police officers were

       investigating a possible illegal drug transaction and initiated a traffic stop. The

       vehicle did not stop initially but did briefly stop next to a parked vehicle. The


       Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018       Page 8 of 11
       driver eventually stopped the vehicle, and during the traffic stop, the officers

       smelled fresh marijuana. The driver was arrested for resisting law enforcement,

       and the passenger, Brent, was removed from the car and handcuffed. When an

       officer returned to the area where the driver had briefly stopped the vehicle, he

       found a plastic baggie containing marijuana. Thereafter, Brent was charged

       with and convicted of possession of marijuana.

[23]   On appeal, our court observed that Brent did not make incriminating

       statements, the marijuana was not found in close proximity to any items owned

       by him, and the driver’s flight was beyond Brent’s control. Brent did not flee or

       make any furtive gestures when the driver finally stopped the vehicle.

       Moreover, our court attributed any suspicion resulting from the suspect car

       stopping briefly so close to another vehicle to the driver, and not to Brent. Our

       court noted that the officer did not observe anything thrown out of the vehicle’s

       passenger side window and did not testify that he observed “a throwing

       motion.” Id. at 651.


[24]   Finally, our court discussed the trial court’s reliance on the fact that the

       marijuana was found where the vehicle had briefly stopped and agreed that it

       was not simply a coincidence that a baggie containing marijuana was found in

       that spot. However, we observed:

               We agree that the likelihood of a coincidence is low, and have
               searched for case law that explains when a coincidence is so
               unlikely that it leads to a reasonable inference that may support a
               conviction. “Coincidence” case law generally either looks inward
               to other factual circumstances to emphasize the unlikelihood of a

       Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018       Page 9 of 11
               coincidence and that something more intentional must have
               occurred, or highlights the lack of additional evidence and
               concludes that without more, the evidence presented does not
               lead to any inferences.


               Based on the evidence presented, we are inclined to follow the
               latter approach in this case. An officer[’]s gut feeling and
               deduction based solely on the same do not amount to evidence
               that Brent possessed marijuana. The fact that Brent's driver
               momentarily stopped the suspect vehicle so that Brent, as the
               passenger, was sitting (inside the car) in the same spot where
               Officer Lushin later found the marijuana outside the car, would
               not lead a fact-finder to reasonably infer Brent's constructive
               possession of the marijuana.


       Id. at 651–52.


[25]   We reached the opposite result in Womack v. State, 738 N.E.2d 320 (Ind. Ct.

       App. 2000), trans. denied. In that case, Womack was approached by police

       investigating a domestic disturbance, and he fled on foot. While Womack was

       running, he reached into his pockets and made a motion as if throwing

       something. Id. at 322–23. Soon thereafter, the police searched the area where

       Womack made the throwing motion, and a baggie containing marijuana was

       found. Although it had been lightly snowing, the baggie was covered by

       droplets of water and was free of snow. Id. at 323. Our court affirmed

       Womack’s conviction after concluding that the evidence was sufficient to

       support his conviction for marijuana possession. Id. at 324


[26]   Here, Smith fled from the officer, there were no other individuals in the area,

       and the gun was found in front of an abandoned house. And like the marijuana
       Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018      Page 10 of 11
       found in Womack, in this case the officer did not believe that the gun had been

       exposed to the elements for any significant length of time. The officer also

       observed that the grass in the yard where the gun was found had been freshly

       cut. Moreover, the gun bore scratch marks that were likely received when it

       clattered across the concrete. Importantly, shortly after the traffic stop

       concluded, Smith drove his vehicle without a license, in order to return to the

       area where the gun was located after he was instructed to have a licensed driver

       pick up his car.

[27]   From these facts, a reasonable jury could find that Smith had intent to maintain

       dominion and control over the contraband, and therefore, that he constructively

       possessed the handgun at issue. For this reason, we affirm his conviction for

       Level 4 felony unlawful possession of a firearm by a serious violent felon.


[28]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-478 | November 29, 2018         Page 11 of 11
