MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Aug 16 2017, 9:45 am
court except for the purpose of establishing
                                                                    CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
estoppel, or the law of the case.                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ernest P. Galos                                          Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Brilan Keith Williams,                                   August 16, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1703-CR-680
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Steven L.
Appellee-Plaintiff                                       Hostetler, Judge
                                                         The Honorable Keith Doi,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         71D07-1506-CM-2233



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017   Page 1 of 6
                                               Case Summary


[1]   Following a bench trial, Brilan K. Williams was convicted of Class A

      misdemeanor carrying a handgun without a license and Class B misdemeanor

      possession of marijuana. On appeal, Williams argues that the State presented

      insufficient evidence to support his conviction for carrying a handgun without a

      license.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On June 22, 2015, Officer David Johnson of the South Bend Police Department

      was conducting traffic enforcement when he saw a blue Jeep Liberty with no

      front bumper make a right turn without signaling. Officer Johnson activated his

      vehicle’s lights to initiate a traffic stop, and the Jeep sped up and made another

      quick turn without signaling. The Jeep ultimately came to a stop in an alley

      behind a church, and Officer Johnson parked behind it and waited for backup

      to arrive. While he waited, Officer Johnson saw three people inside the Jeep

      and observed the driver of the vehicle and the front-seat passenger, who was

      later identified as Williams, moving around as though they were attempting to

      hide something.


[4]   Within two minutes, Officer Daniel Lawecki arrived to assist Officer Johnson.

      The two officers approached the Jeep, with Officer Lawecki approaching the

      passenger side and Officer Johnson approaching driver side. As the officers


      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017   Page 2 of 6
      approached, they smelled a strong odor of marijuana coming from inside the

      Jeep. The officers asked Williams and the driver to exit the vehicle. During a

      pat-down search, Officer Johnson felt an object in Williams’s pocket. Officer

      Johnson asked Williams what it was, and Williams responded, “I don’t know,

      go ahead and look.” Transcript at 16. Officer Johnson removed the item, which

      turned out to be a bag of marijuana.


[5]   Meanwhile, Officer Lawecki also saw the barrel of a handgun sticking out from

      under the passenger seat where Williams had been sitting. The gun was a

      loaded .40 caliber Smith and Wesson. A subsequent search of the vehicle

      resulted in the discovery of another handgun, a silver revolver, in the pocket on

      the back of the driver’s seat. Officer Johnson determined that Williams did not

      have a license to carry a handgun, and Williams was arrested and advised of his

      Miranda rights.


[6]   Officer Neil Graber then arrived to transport Williams to the county jail.

      Williams asked Officer Graber what he was being charged with, and Officer

      Graber informed him of the charges. At that point, Williams told Officer

      Graber that “the Smith and Wesson .40 is mine, I will take it, I’m not a

      convicted felon.” Id. at 57.


[7]   Williams was charged with Class A misdemeanor carrying a handgun without a

      license and Class B misdemeanor possession of marijuana. A bench trial was

      held on October 25, 2016, and Williams was found guilty as charged. Williams

      now appeals.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017   Page 3 of 6
                                          Discussion & Decision


[8]   Williams argues that the State presented insufficient evidence to support his

      conviction for carrying a handgun without a license. In reviewing a challenge

      to the sufficiency of the evidence, we neither reweigh the evidence nor judge the

      credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App.

      2009). Instead, we consider only the evidence supporting the conviction and

      the reasonable inferences flowing therefrom. Id. If there is substantial evidence

      of probative value from which a reasonable trier of fact could have drawn the

      conclusion that the defendant was guilty of the crime charged beyond a

      reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891

      N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not necessary that the evidence

      overcome every reasonable hypothesis of innocence; rather, the evidence is

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

      conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).


[9]   Ind. Code § 35-47-2-1(a) provides in relevant part that “a person shall not carry

      a handgun in any vehicle or on or about the person’s body without being

      licensed under this chapter to carry a handgun.” In order to satisfy these

      elements, the State is required to prove that the defendant had either actual or

      constructive possession of a handgun. Deshazier v. State, 877 N.E.2d 200, 204

      (Ind. Ct App. 2007), trans. denied. It is undisputed that Williams did not have

      actual possession of a handgun. On appeal, Williams argues that the State

      failed to establish his constructive possession of the .40 caliber Smith and

      Wesson.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017   Page 4 of 6
[10]   When proceeding on a theory of constructive possession, the State must

       establish that the defendant had both the intent and the capability to maintain

       dominion and control over the handgun. Id. at 205. “We have previously

       noted five types of evidence the State may use to demonstrate constructive

       possession of a handgun: ‘(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. at 206

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


[11]   The Smith and Wesson was located under the passenger seat where Williams

       was sitting, easily within his reach. Additionally, Officer Johnson observed

       Williams and the driver of the vehicle making furtive movements, and

       according to Officer Johnson, it appeared that the men were trying to hide

       something. Perhaps most importantly, Williams told Officer Graber that the

       Smith and Wesson belonged to him. On appeal, Williams claims he falsely

       claimed ownership of the gun in order to protect the other occupants of the

       vehicle, who were convicted felons and consequently prohibited from

       possessing handguns. This argument is simply a request to reweigh the

       evidence, which we will not do on appeal. Moreover, we note that Williams

       claimed ownership of only one of the two handguns found in the car, and he

       made specific reference to a “.40 caliber Smith and Wesson”, clearly indicating

       his familiarity with the weapon. Transcript at 56. This evidence was sufficient

       to support Williams’s conviction for carrying a handgun without a license.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017   Page 5 of 6
[12]   Judgment affirmed.


[13]   Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-680 | August 16, 2017   Page 6 of 6
