Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                            Mar 06 2013, 8:50 am
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:

DERICK W. STEELE                                    GREGORY F. ZOELLER
Deputy Public Defender                              Attorney General of Indiana
Kokomo, Indiana
                                                    AARON J. SPOLARICH
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

BRIAN RINEARSON,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )     No. 34A02-1209-CR-715
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HOWARD SUPERIOR COURT
                          The Honorable George A. Hopkins, Judge
                              Cause No. 34D04-1206-CM-100


                                          March 6, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
       Appellant-Defendant Brian Rinearson was convicted of Class A misdemeanor

carrying a handgun without a license, and the trial court sentenced him to 365 days of

incarceration, all of it suspended to probation. Rinearson contends that the State produced

insufficient evidence to sustain his conviction and that the trial court erred in sentencing him.

Concluding that the State produced sufficient evidence to sustain Rinearson’s conviction and

that the trial court did not err in sentencing him, we affirm.

                          FACTS AND PROCEDURAL HISTORY

       On June 16, 2012, Kokomo Police Officer Aaron Tarrh stopped a white Pontiac Grand

Am because of a window tint violation and an oversized sticker in the back window. Officer

Tarrh asked the driver for identification, and the driver replied that he did not have any.

Officer Tarrh noticed that the driver appeared nervous and that his hands were shaking;

Officer Tarrh characterized the driver as unusually nervous. Officer Tarrh then had the

passenger, Anastasia Partida, exit the Grand Am, and he asked her to identify the driver.

After Partida identified the driver as Rinearson, Officer Tarrh was able to learn his birthdate.

Officer Tarrh determined that Rinearson’s driver’s license was valid, the plates on the Grand

Am belonged to Partida and were registered to a 2001 Chevrolet, and the Grand Am itself

was registered to Partida’s parents.

       Officer Tarrh asked if he could search the Grand Am and was granted permission to

do so. Officer Tarrh found a .22 caliber revolver loaded with two rounds in the pouch on the

back of the front passenger’s seat. Located in the pouch, the revolver would have been

accessible to the driver but not the front passenger wearing a seatbelt.



                                               2
       At some point before Officer Tarrh had Partida exit the Grand Am, Kokomo Police

Officer Dereck Kidwell arrived to assist. Officer Kidwell stood by the passenger side of the

Grand Am observing Rinearson. Rinearson appeared “very nervous” and “more nervous

than usual” for someone involved in a traffic stop. Tr. pp. 27, 28. According to Officer

Kidwell, Rinearson turned around several times while Officer Tarrh was speaking with

Partida and “all [Rinearson] had to do was reach around the back of the seat and [he] would

have had the gun.” Tr. p. 33.

       On June 19, 2012, the State charged Rinearson with Class A misdemeanor carrying a

handgun without a license. On August 2, 2012, the trial court found Rinearson guilty as

charged.   On August 24, 2012, the trial court sentenced Rinearson to 365 days of

incarceration, all suspended to probation, and gave him credit for twenty-two days actually

served awaiting trial.

                              DISCUSSION AND DECISION

                                I. Sufficiency of the Evidence

       The revolver was not found in Rinearson’s possession, and he contends that the State

produced insufficient evidence to sustain a finding that he constructively possessed it. Our

standard of review for challenges to the sufficiency of the evidence supporting a criminal

conviction is well-settled:

              In reviewing a sufficiency of the evidence claim, the Court neither
       reweighs the evidence nor assesses the credibility of the witnesses. We look to
       the evidence most favorable to the [finding of guilt] and reasonable inferences
       drawn therefrom. We will affirm the conviction if there is probative evidence
       from which a reasonable [finder of fact] could have found Defendant guilty
       beyond a reasonable doubt.


                                              3
Vitek v. State, 750 N.E.2d 346, 352 (Ind. 2001) (citations omitted).

       “[C]onviction 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).

              Possession of a firearm may be either actual or constructive. See
       Conrad v. State, 747 N.E.2d 575, 582 (Ind. Ct. App. 2001), trans. denied. For
       instance, a person, who has direct physical control over the firearm, has actual
       possession. See Grim v. State, 797 N.E.2d 825, 831 (Ind. Ct. App. 2003).
       However, constructive possession occurs when the person has the intent and
       capability to maintain dominion and control over the firearm. Id. To prove the
       element of intent, the State must demonstrate the defendant’s knowledge of the
       presence of the firearm. Id. Knowledge may be inferred from either exclusive
       dominion and control over the premises containing the firearm, or from
       evidence of additional circumstances indicating the defendant’s knowledge of
       the presence of the firearm. See Grim, 797 N.E.2d at 831.
              The following types of evidence are among those utilized by the State to
       show proof of the defendant’s dominion and control over a firearm: (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) the mingling of a firearm
       with other items owned by the defendant. Id. The State must also present
       evidence demonstrating the defendant’s capability to exercise control over the
       firearm, which includes the ability to reduce the firearm to his personal
       possession or to otherwise direct its disposition or use. See Conrad, 747
       N.E.2d at 582-3.

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

       We conclude that the State produced sufficient evidence to sustain a finding of

constructive possession. The revolver was found secreted in the pouch behind the front

passenger seat of the Grand Am, a pouch to which Rinearson had easy access, due to his

position in the driver’s seat, but not Partida. There is no evidence that the revolver belonged

to Partida (or anyone else, for that matter), and there were no rear passengers. Deshazier v.

State, 877 N.E.2d 200, 208 (Ind. Ct. App. 2007) (in a case where constructive possession was


                                              4
found, relying, in part, on facts “that Deshazier was in the best position to exercise control

over the gun, and no evidence indicates that the gun belonged to another person”), trans.

denied. Additionally, both Officers Tarrh and Kidwell testified that Rinearson appeared to

be unusually nervous for a person involved in a routine traffic stop, a circumstance, like

furtive movements or flight, indicating a guilty conscience. Finally, Rinearson clearly had

the capability to exercise dominion over the revolver. See, e.g., Calvert v. State, 930 N.E.2d

633, 641 (Ind. Ct. App. 2010) (“Because Calvert was the Jeep’s driver and the shotgun was

found inside the passenger compartment, Calvert had the capability to reduce the shotgun to

his personal possession.”). The State produced sufficient evidence to sustain Rinearson’s

conviction for carrying a handgun without a license.

             II. Whether the Trial Court Erred in Sentencing Rinearson

       Rinearson contends that the trial court erred in suspending a portion of his

misdemeanor sentence to probation, relying on Court of Appeals decisions holding that the

phrase “term of imprisonment” used in Indiana Code section 35-50-3-1 (Indiana’s

misdemeanor sentencing statute) includes time suspended from a sentence. See Jennings v.

State, 956 N.E.2d 203 (Ind. Ct. App. 2011), reaff’d on reh’g 962 N.E.2d 1260 (Ind. Ct. App.

2012), trans. granted and vacated.       Rinearson contends that his combined terms of

imprisonment (including both incarceration and suspended portions of his sentence) and

probation therefore exceed the one-year maximum sentence for a Class A misdemeanor. On

February 20, 2013, however, the Indiana Supreme Court handed down its decision in

Jennings v. State, --- N.E.2d --- (Ind. February 20, 2013), which held that “for purposes of



                                              5
Indiana Code § 35-50-3-1, ‘term of imprisonment’ means the total amount of time a

misdemeanant is incarcerated” but does not include suspended portions of the sentence. Id.,

slip op. at 1, 10. Rinearson’s sentence therefore does not exceed the one-year maximum for a

Class A misdemeanor.

       We affirm the judgment of the trial court.

NAJAM, J., and FRIEDLANDER, J., concur.




                                             6
