                                                                          FILED
                                                                     Jan 18 2017, 8:24 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                        Curtis T. Hill
Anderson, Indiana                                          Attorney General of Indiana
                                                           James B. Martin
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jeremiah Edward Ericksen,                                  January 18, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           82A05-1605-CR-1153
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
State of Indiana,                                          The Honorable Kelli E. Fink,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           82C01-1511-F5-7086



Riley, Judge.




Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017                   Page 1 of 12
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jeremiah Edward Ericksen (Ericksen), appeals his

      conviction for carrying a handgun without a license, a Class A misdemeanor,

      Ind. Code § 35-47-2-1(e), enhanced to a Level 5 felony based on a prior

      conviction; and resisting law enforcement, a Level 6 felony, I.C. § 35-44.1-3-1.


[2]   We affirm.


                                                     ISSUES

[3]   Ericksen raises two issues on appeal, which we restate as:


          (1) Whether the State presented sufficient evidence beyond a reasonable

              doubt to support Ericksen’s conviction for carrying a handgun without a

              license; and

          (2) Whether the trial court tendered a proper jury instruction on the charge

              of carrying a handgun without a license.


                            FACTS AND PROCEDURAL HISTORY

[4]   In September 2015, Detective James Budde (Detective Budde) of the

      Vanderburgh County Sheriff’s Department initiated an undercover operation to

      purchase a handgun from Ericksen. During a meeting on October 8, 2015,

      Ericksen showed Detective Budde a black and silver Taurus .45 caliber




      Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017   Page 2 of 12
      handgun and referred to it as a “throwaway.” 1 (Transcript p. 169). The

      following month, on November 8, 2015, Detective Budde discussed with

      Ericksen the purchase of the Taurus handgun and Ericksen indicated that if this

      sale went smoothly, they could conduct future firearms transactions. They

      scheduled the purchase for November 11, 2015.


[5]   On November 11, 2015, officers conducting surveillance on Ericksen witnessed

      him putting a black bag, a “possible gun case type thing,” inside the trunk of a

      black Jaguar, which was registered to Marilyn Ericksen (Marilyn). (Tr. p. 150).

      Ericksen got into the back seat of the vehicle, directly behind the driver. Shortly

      after the vehicle crossed into Vanderburgh County, Indiana, on the Lloyd

      Expressway, officers conducted a traffic stop. During the stop, the officers held

      the occupants of the vehicle at gunpoint because of the high risk that Ericksen

      might be armed and ordered the occupants to exit the Jaguar. The front

      passenger, believed to be Ericksen’s son, exited and was placed in handcuffs

      and seated in the police car. While the female driver, later identified as

      Marilyn, was complying with the officers’ orders, Ericksen opened his car door

      and started cursing the officers. He jumped out of the car, smashed a full can of

      Coke on the ground, and yelled “to shoot him and kill him.” (Tr. p. 93). He

      started “pumping up, throwing his hands, [and] clinching his fists.” (Tr. p. 44).

      When Ericksen charged the officers, Officer Robert Schmitt (Officer Schmitt)




      1
       A “throwaway” is a term typically “used by a criminal with a firearm that has no direct ties to that person,
      so if it’s used in the commission of a crime, it cannot be traced back to them.” (Transcript p. 169).

      Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017                       Page 3 of 12
      deployed his K-9 partner, Boss. Boss bit Ericksen in his stomach and forced

      him to the ground. While officers approached to place Ericksen in custody,

      Officer Schmitt ordered Boss to release Ericksen. Although Ericksen initially

      put his hands out, he continued to resist after Boss withdrew.


[6]   Subsequent to Ericksen’s arrest, the officers obtained a search warrant for the

      Jaguar. During the search of the vehicle, officers discovered two empty firearm

      magazines and one loose round in the black bag in the trunk. Inside the

      vehicle, the officers discovered a Taurus handgun underneath the driver’s seat

      with the barrel of the handgun pointing towards the rear of the vehicle.


[7]   On November 16, 2015, the State filed its Information, charging Ericksen with

      carrying a handgun without a license, a Class A misdemeanor; theft of a

      firearm, a Level 6 felony; and resisting law enforcement, a Level 6 felony. The

      State additionally filed an enhancement of the carrying a handgun without a

      license charge to a Level 5 felony based on a prior conviction. On April 13 and

      14, 2016, the trial court conducted a jury trial. At the onset of the bifurcated

      trial, the State moved to dismiss the theft charge, which was granted by the trial

      court. After the evidence was presented, the jury returned a guilty verdict on

      the remaining two Counts. Ericksen pled guilty to the enhancement later that

      same day.


[8]   On May 10, 2016, the trial court sentenced Ericksen to four years for carrying a

      firearm without a license, as enhanced to a Level 5 felony, and to one year for




      Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017   Page 4 of 12
       the offense of resisting law enforcement. The trial court ordered the terms to be

       served concurrently.


[9]    Ericksen now appeals. Additional facts will be provided as necessary.


                                         DISCUSSION AND DECISION


                                              I. Sufficiency of the Evidence


[10]   Ericksen contends that the State failed to present sufficient evidence beyond a

       reasonable doubt to support his conviction for carrying a firearm without a

       license. 2 When reviewing a claim of insufficient evidence, the appellate court

       will neither reweigh the evidence nor judge the credibility of the witnesses.

       McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the

       probative evidence and reasonable inferences supporting the verdict. Id. And

       we must affirm “if the probative evidence and reasonable inferences drawn

       from the evidence could have allowed a reasonable trier of fact to find the

       defendant guilty beyond a reasonable doubt.” Id.


[11]   To convict Ericksen of carrying a handgun without a license as a Level 5

       felony, the State was required to establish beyond a reasonable doubt that

       Ericksen did knowingly or intentionally carry a handgun in or upon his vehicle

       or person without a license in his possession after he had already been

       previously convicted for carrying a handgun without a license. See I.C. § 35-47-




       2
           Ericksen does not contest his conviction for resisting law enforcement.


       Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017   Page 5 of 12
       2-1. Focusing on the “carry” element of the offense, Ericksen argues that “there

       is no evidence that [Ericksen] ‘carried’ the handgun.” (Appellant’s Br. p. 13).

       In essence, Ericksen claims that because the statute requires a person to be

       carrying, rather than possessing a handgun, constructive possession is not an

       appropriate analysis to find a defendant guilty of carrying a handgun without a

       license.


[12]   In support of his argument, Ericksen points to Walker v. State, 631 N.E.2d 1, 2

       (Ind. Ct. App. 1994), where we rejected the State’s argument that constructive

       possession of a handgun is sufficient to sustain a conviction for carrying a

       handgun without a license because the statute “speaks in terms of carrying a

       handgun” and “does not speak in terms of possessing a handgun.” However, in

       Henderson v. State, 715 N.E.2d 833 (Ind. 1999), our supreme court concluded

       otherwise. Focusing on Indiana’s handgun statute, the court explained:


               The relative breadth of [the statute’s] language led us long ago to
               the conclusion that it encompasses more than moving about with
               a firearm attached to one’s body. . . . The liberality of the
               Indiana text has nevertheless obliged us to examine the sort of
               evidence adequate to demonstrate that a defendant “carried” the
               weapon. We have approached this task, and the similar question
               of “possessing” drugs, by characterizing the possession of
               contraband as either actual or constructive. Actual possession
               occurs when a person had direct physical control over the item.
               Constructive possession occurs when somebody had “the intent
               and capability to maintain dominion and control over the item.”


       Id. at 835 (internal references omitted). See also Woods v. State, 471 N.E.2d 691

       (Ind. 1984) (handgun hidden under dashboard was “carried”).

       Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017   Page 6 of 12
[13]   Here, Ericksen had no “direct physical control over the [handgun];”

       accordingly, at trial, the State proceeded on a theory of constructive possession.

       See Bradshaw v. State, 818 N.E.2d 59, 62 (Ind. Ct. App. 2004). When

       constructive possession is asserted, the State must demonstrate the defendant’s

       knowledge of the contraband. This knowledge may be inferred from either the

       exclusive dominion and control over the premise containing the contraband, or,

       where as here, the control is non-exclusive, with evidence of additional

       circumstances pointing to the defendant’s knowledge of the presence of the

       contraband. Woods, 471 N.E.2d at 694. Proof of dominion and control of

       contraband has been found through a variety of means: (1) incriminating

       statements by the defendant, (2) attempted flight or furtive gestures, (3) location

       of substances like drugs in settings that suggest manufacturing, (4) proximity of

       the contraband to the defendant, (5) location of the contraband within the

       defendant’s plain view, and (6) the mingling of the contraband with other items

       owned by the defendant. Henderson, 715 N.E.2d at 836.


[14]   The record reflects that Detective Budde had arranged to purchase a Taurus

       handgun from Ericksen on the evening of the traffic stop. The handgun

       recovered from the vehicle was “the same handgun that was shown to [him] by

       [Ericksen] on October 8, [2015]” when Detective Budde met with Ericksen

       during the undercover operation. (Tr. p. 167). Before stopping the vehicle, an

       officer had observed that Ericksen placed a black bag in the trunk, that later was

       discovered to contain empty firearm magazines. During the stop and prior to

       Ericksen exiting the vehicle, Ericksen was seated in the backseat and appeared


       Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017   Page 7 of 12
       “agitated, you could see his head bobbing back and forth[.]” (Tr. pp. 92-93).

       After Ericksen was arrested and a search warrant had been obtained, the

       officers located the Taurus handgun under the driver’s seat, immediately in

       front of where Ericksen had been sitting. The handgun was discovered in a

       holster with the barrel pointing towards the rear of the vehicle.


[15]   Accordingly, the evidence indicates that the handgun was found within easy

       reach of where Ericksen had been sitting, he had displayed the handgun during

       his meeting with Detective Budde, he made furtive movements during the

       traffic stop and charged the officers resulting in resisting arrest charges. Based

       on the totality of the circumstances, we conclude that sufficient evidence exists

       establishing that Ericksen constructively possessed the handgun while seated in

       the vehicle.


                                                II. Jury Instruction


[16]   Next, Ericksen contends that the trial court’s final jury instruction erroneously

       broadened the factual allegations sustaining his charge of carrying a handgun

       without a license. Because instructing the jury is a matter within the sound

       discretion of the trial court, we will reverse a trial court’s decision to tender or

       reject a jury instruction only if there is an abuse of that discretion. Pattison v.

       State, 54 N.E.3d 361, 365 (Ind. 2016). We determine whether the instruction

       states the law correctly, whether it is supported by record evidence, and whether

       its substance is covered by other instructions. Id. Jury instructions are to be

       considered as a whole and in reference to each other; error in a particular


       Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017   Page 8 of 12
       instruction will not result in reversal unless the entire jury charge misleads the

       jury as to the law in the case. Id.


[17]   Ericksen’s charging information for carrying a handgun without a license read

       as follows:


               [O]n or about November 11, 2015, [Ericksen] did knowlingly or
               intentionally carry a handgun in or upon the defendant’s vehicle or
               in person without a license in the defendant’s possession.


       (Appellant’s App. Vol II, p. 11) (emphasis added). Ericksen now asserts that

       the trial court expanded these factual circumstances when it instructed the jury

       by tendering:

               In Count I, the statute defining the offense of [c]arrying a
               [h]andgun without a [l]icense, a Class A misdemeanor, which
               was in force at the time of the offense charged, reads in part as
               follows: A person who carries a handgun in any vehicle or on or
               about a person’s body, except in his dwelling, on his property, or
               fixed place of business, without a license being in possession,
               commits [c]arrying a [h]andgun without a [l]icense, a Class A
               misdemeanor.


               Before you may convict the Defendant in Count I, the State must
               have proved each of the following beyond a reasonable doubt:


                1. The Defendant [Ericksen],

                2. Carried a handgun in a vehicle or on or about his person

                3. Away from Defendant’s dwelling, property, or fixed place of
                   business.



       Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017   Page 9 of 12
               If the State failed to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant not guilty of
               [c]arrying a [h]andgun without a [l]icense, a Class A
               misdemeanor, as charged in Count 1.


       (Tr. Vol. V, Final Instruction No. 2) (emphasis added).


[18]   Essentially, Ericksen now alleges that “under the charging information [he]

       could not be convicted for carrying a handgun in someone else’s vehicle,

       however, Final Jury Instruction No. 2 allows just such a conviction.”

       (Appellant’s Br. p. 22). He claims that this change left him unprepared to

       defend on the allegation because he prepared his defense based on the State’s

       inability to show he owned the Jaguar. As such, the instruction improperly

       expanded the charge and Ericksen’s “liability exposure.” (Appellant’s Br. p.

       22).


[19]   Ericksen relies on Kelly v. State, 535 N.E.2d 140 (Ind. 1989), to support his

       argument. In Kelly, the defendant was charged by information with non-

       consensual criminal confinement, but the trial court instructed the jury on the

       statutory definition of criminal confinement, which includes both non-

       consensual criminal confinement and criminal confinement by removal. Id. at

       141. The jury convicted the defendant on a general verdict. Id. at 142. Our

       supreme court reversed, holding that the jury instruction constituted prejudicial

       error because it was impossible to tell on which charge the jury had convicted

       the defendant. Id. at 143. We find Kelly to be inapposite to the case at hand as




       Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017   Page 10 of 12
       the statute under which Ericksen was charged does not provide alternate factual

       bases for conviction such as the criminal confinement statute at issue in Kelly.


[20]   Here, the jury instruction followed the handgun statute verbatim and referred to

       the mandate that “a person shall not carry a handgun in any vehicle[.]” I.C. §

       35-47-2-1 (emphasis added). The language of the charging information was

       simply indicative of the fact that there was only one vehicle involved.

       Moreover, the recitation of the statutory elements in the instruction did not

       serve as a basis to mislead the jury under the facts and circumstances of this

       case, nor does Ericksen explain how he was misled to his detriment by the

       charging information. As noted by the trial court:


               I did take a look at this and it does, the charging document does
               say that it alleged that the handgun was in or upon the
               defendant’s vehicle . . . I think that while they did not have to
               allege that they did, however, it seems to me if there were two
               vehicles involved in this case and I was allowing the State to
               present evidence as to a vehicle that was not factually known to
               the parties or a vehicle other than that charged in the charging
               document I think that would be a problem, but in this case
               there’s clearly, as far as I could tell, only one vehicle involved, it
               just has been delineated in the charging document as the
               defendant’s vehicle and I think if I make that change to the
               elements all I’m really doing is making the State prove an
               additional element that the vehicle belongs to the defendant and I
               don’t think that that is, that is not an element of carrying a
               handgun without a license, so for that reason I’m going to
               overrule that objection to [c]ourt’s instruction number 2.


       (Tr. pp. 224-25). A finding of prejudicial error requires more than an overly

       broad jury instruction. Potter v. State, 684 N.E.2d 1127, 1132 (Ind. 1997).
       Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017   Page 11 of 12
       Accordingly, we conclude that the trial court properly instructed the jury on the

       elements of the charge of carrying a handgun without a license.


                                                CONCLUSION

[21]   Based on the foregoing, we hold that the State presented sufficient evidence

       beyond a reasonable doubt to support Ericksen’s conviction for carrying a

       handgun without a license; and the trial court tendered a proper jury instruction

       on the charge of carrying a handgun without a license


[22]   Affirmed.


[23]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017   Page 12 of 12
