MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Sep 05 2018, 8:47 am

regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyree Gilbert,                                           September 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-695
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven J. Rubick,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G01-1711-F4-42566



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018                  Page 1 of 7
[1]   Tyree Gilbert appeals his conviction for Level 4 Felony Unlawful Possession of

      a Firearm by a Serious Violent Felon,1 arguing that there is insufficient evidence

      to support the conviction. Finding the evidence sufficient, we affirm.


                                                    Facts

[2]   On October 31, 2017, Officer Kenneth Kunz of the Indianapolis Metropolitan

      Police Department (IMPD) was monitoring the intersection of 25th Street and

      Keystone Avenue in Indianapolis. Kunz and other IMPD officers classified this

      location as a “high crime” area due to its high rate of drug and gun violence. As

      such, the IMPD heavily patrolled this intersection. Officer Kunz noticed a

      white Ford Explorer turning onto Keystone Avenue without signaling, which is

      a standard traffic infraction. Gilbert was driving the Ford Explorer. Officer

      Kunz began to follow the vehicle, and he called other IMPD officers for

      assistance with the pursuit.


[3]   Officer Peter Koe, Officer Brandon Brown, and Sergeant Phillip Bulfer

      responded to Officer Kunz’s call for back-up. A few minutes later, Sergeant

      Bulfer found Gilbert stopped at a red light and turned on his police lights to pull

      Gilbert over. Noticing the police lights, Gilbert drove away at a high speed. All

      four officers pursued Gilbert via different routes; they planned to create a

      perimeter around Gilbert to prevent him from escaping.




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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018   Page 2 of 7
[4]   Gilbert’s vehicle eventually hit a concrete rainspout. He immediately exited the

      car and fled on foot through a residential backyard. At a certain point, Gilbert

      reached a tall corrugated metal fence. Officer Koe, pursuing Gilbert from

      behind, watched as he climbed over the fence. Officer Brown also watched as

      Gilbert eventually scaled and dropped down on the other side of the fence and

      continued to flee on foot. Officer Brown and Officer Matthew Early eventually

      caught up with Gilbert and arrested him. Neither Officer Brown nor Officer

      Koe saw any other person throughout the entire pursuit. Officer Early searched

      Gilbert incident to his arrest and found 3.23 grams of marijuana on his person.


[5]   Roughly ten minutes after arresting Gilbert, Officer Brown and other IMPD

      officers retraced Gilbert’s foot path to look for evidence. Officer Brown found a

      handgun located very close to where Gilbert had landed after climbing the

      metal fence. According to IMPD, the gun was “dry,” and it felt “room

      temperature” to the touch. Tr. p. 107. The ground around the gun was littered

      with debris and was wet while the outside temperature was approximately forty

      degrees Fahrenheit. Id.


[6]   On November 2, 2017, the State charged Gilbert with Count I, Level 4 felony

      unlawful possession of a firearm by a serious violent felon; Count II, Level 5

      felony carrying a handgun with a prior felony conviction; Count III, Level 6

      felony resisting law enforcement; Count IV, Class A misdemeanor resisting law

      enforcement; and Count V, Class B misdemeanor possession of marijuana.

      Gilbert waived his right to a jury trial, and his case proceeded to a bench trial

      on February 14, 2018.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018   Page 3 of 7
[7]    On March 2, 2018, the trial court found Gilbert guilty as charged. However, at

       sentencing, the judge merged Count II into Count I and merged Count IV into

       Count III. The trial court sentenced him to an aggregate term of eight years in

       the Department of Correction. Gilbert now appeals.


                                  Discussion and Decision

[8]    Gilbert’s sole argument on appeal is that the State failed to present sufficient

       evidence to show that he either had actual or constructive possession of the

       firearm discovered close to the metal fence. In other words, he challenges the

       sufficiency of the evidence supporting his conviction for unlawful possession of

       a firearm by a serious violent felon.


[9]    When reviewing the sufficiency of the evidence supporting a conviction, 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. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). It is not our job to reweigh the evidence or to judge the credibility of the

       witnesses, and we consider any conflicting evidence most favorably to the trial

       court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).


[10]   To convict Gilbert of Level 4 felony unlawful possession of a firearm by a

       serious violent felon, the State was required to prove beyond a reasonable doubt

       that Gilbert, a serious violent felon, (1) knowingly or intentionally (2) possessed

       a firearm. I.C. § 35-47-4-5(c).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018   Page 4 of 7
[11]   Possession of a firearm may be either actual or constructive. Causey v. State, 808

       N.E.2d 139, 143 (Ind. Ct. App. 2004). An individual has actual possession over

       a firearm if he or she “has direct physical control” of the weapon. Grim v. State,

       797 N.E.2d 825, 831 (Ind. Ct. App. 2003). An individual has constructive

       possession of a firearm when he has the intent and capability to maintain

       dominion and control over the contraband. Id.


[12]   Moreover, “when constructive possession is asserted, the State must

       demonstrate the defendant’s knowledge of the contraband.” Woods v. State, 471

       N.E.2d 691, 694 (Ind. 1984). 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. Id. Proof of this can be shown through (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. Grim, 797 N.E.2d at 831.


[13]   It is clear that Gilbert did not have actual possession of the firearm at the time

       of his arrest. Officer Early conducted a full search of Gilbert incident to his

       arrest and did not discover a firearm in his possession. Therefore, Gilbert did

       not have direct, physical control over the firearm. Nevertheless, a reasonable

       trier of fact could conclude that Gilbert had constructive possession of the

       firearm at the time he was fleeing the police.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018   Page 5 of 7
[14]   The record reveals that Officer Brown discovered a firearm right where he saw

       Gilbert drop down from the fence. While this firearm may not have been

       “proximate” to the defendant or his other personal possessions, it was located

       precisely at the place where Officer Brown identified Gilbert during his pursuit.

       Also, Officer Brown noticed that the firearm was “dry” and felt like it was at

       “room temperature” when he discovered it. Tr. p. 107. A metal firearm would

       be noticeably colder, wetter, and messier to the touch if it had been laying on

       the ground for such a long time on a cold, wet night. Therefore, a reasonable

       trier of fact could infer that such a firearm had not been in that location for very

       long. Additionally, Gilbert was attempting to escape the police. In other words,

       he was “in flight,” and the evidence demonstrates that the firearm could very

       well have been within his dominion until he tossed it away.


[15]   Moreover, multiple officers witnessed Gilbert’s flight and did not see any other

       person during this time. According to the officers’ eyewitness testimony, the

       gun was found almost exactly where Gilbert had fallen after he climbed the

       metal fence. In looking at the totality of the evidence, a reasonable trier of fact

       could conclude that Gilbert had possessed the firearm until he voluntarily

       tossed the firearm in flight to avoid having it on his person. Gilbert argues to

       the contrary, amounting to a request to reweigh the evidence, which we may

       not do.


[16]   We hold a reasonable trier of fact could have found Gilbert had constructive

       possession of the firearm. In other words, the evidence is sufficient to support

       his conviction.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018   Page 6 of 7
[17]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-695 | September 5, 2018   Page 7 of 7
