MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                         Jan 13 2017, 7:51 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Edward M. Tate, Jr.,                                     January 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1602-CR-369
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Jones, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G08-1503-CM-9751



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-369 | January 13, 2017     Page 1 of 8
[1]   Edward M. Tate, Jr. appeals his conviction of Class A misdemeanor carrying a

      handgun without a license 1 and the fees imposed. We affirm.



                                Facts and Procedural History
[2]   On March 19, 2015, Tate met with friends Raven Williams and Satori Cooper

      at a hotel. Unbeknownst to the three friends, Indiana State Police were

      surveilling Cooper because he had outstanding warrants for his arrest. The

      three left the hotel and got into a white car. Williams drove, Cooper was in the

      front passenger seat, and Tate sat behind Williams.


[3]   Indiana State Police Trooper Kyle Freeman followed the car and initiated a

      traffic stop for failure to signal. When asked, Cooper lied about his name.

      Trooper Freeman smelled burnt marijuana in the car. Based on that

      observation, Trooper Freeman asked the three to get out of the car and he gave

      them Miranda warnings. Trooper Freeman had his K-9 dog “seek narcotics,”

      (Tr. at 28), and the dog alerted at the car’s trunk.


[4]   As a result of the K-9’s alert, Indiana State Police Sergeant Dean Wildauer

      searched the vehicle and “found a 45 caliber [sic] handgun loaded with seven

      rounds in it . . . within twelve inches of . . . where Mr. Tate’s right foot

      would’ve been.” (Id. at 38.) The gun was “directly behind the passenger on the




      1
          Ind. Code § 35-47-2-1(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-369 | January 13, 2017   Page 2 of 8
      rear floorboard . . . underneath some clothing[.]” (Id.) Only Tate could have

      easily reached the gun.


[5]   All three friends denied knowledge of the gun. However, Tate did not look

      surprised when questioned about the handgun, whereas Williams and Cooper

      did. The officers asked Tate if his DNA and fingerprints would be on the gun

      and Tate claimed they would not. Sergeant Wildauer then “explained to [Tate]

      the way DNA works[,]” (id. at 39), and Tate admitted he had touched the gun.

      Tate also admitted he did not have a license to carry a handgun.


[6]   After a bench trial, the court found Tate guilty as charged and sentenced him to

      365 days, with 60 days to be served on home detention with a “sliding fee

      scale” and 305 days on probation with a “sliding fee scale.” (Corrected

      Appellant’s App. Vol. II (hereinafter “App.”) at 11.) The court ordered Tate to

      pay other fees in the sum of $383.00. (Id. at 12.) The court did not hold an

      indigency hearing at the time of sentencing.



                                 Discussion and Decision
                                      Sufficiency of Evidence
[7]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the


      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-369 | January 13, 2017   Page 3 of 8
      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference may reasonably be drawn from it to support the verdict. Id. at

      147.


[8]   To convict Tate of carrying a handgun without a license, the State had to prove

      Tate had a handgun on his body or in a vehicle without being licensed. Ind.

      Code § 35-47-2-1(a). In this instance, the alleged possession of the handgun

      was constructive rather than actual. “Constructive possession involves the

      intent and capability to maintain dominion and control over the contraband

      even though actual physical control is absent.” Walker v. State, 631 N.E.2d 1, 2

      (Ind. Ct. App. 1994). To prove constructive possession, “the State must

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

      N.E.2d 691, 694 (Ind. 1984), reh’g denied. Knowledge of the handgun can be

      “inferred from either the exclusive dominion and control over the premise

      containing the contraband or, if the control is non-exclusive, evidence of

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

      of the contraband.” Id. Such control can be shown through a variety of means,

      such as:

              (1) incriminating statements by the defendant, (2) attempted
              flight or furtive gestures, (3) location of substances like drugs in

      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-369 | January 13, 2017   Page 4 of 8
               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 v. State, 715 N.E.2d 833, 836 (Ind. 1999).


[9]    The State presented evidence the gun was “within twelve inches of . . . Mr.

       Tate’s right foot[.]” (Tr. at 38.) Tate was the only one who could easily reach

       the weapon, Tate admitted he touched it, and Tate did not seem surprised the

       officers had found a gun in the car.


[10]   Despite those facts, Tate asserts the State did not provide sufficient evidence to

       prove he constructively possessed the handgun. Tate argues he admitted

       touching a gun he saw in the hotel room, but he did not place the gun in the car

       or see anyone else place the gun in the car. Tate argued at trial a second gun

       was present, but no second gun was located in the search of the hotel room.


[11]   Although Tate argues the gun he admitted touching was the gun he saw in the

       hotel and not the gun found in the car, the trial court said specifically that it

       “d[id]n’t think that there was any confusion about what gun was being

       referenced” when Tate made his statement regarding touching it. (Id. at 65.)

       Tate is, in essence, asking us to reweigh the evidence, which we will not do. See

       Drane, 867 N.E.2d at 146 (appellate court will not reweigh evidence or judge

       the credibility of witnesses). Based on Tate’s statement admitting to touching

       the gun and his proximity in the car to the gun, the State provided sufficient

       evidence Tate illegally carried a handgun under a constructive possession

       Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-369 | January 13, 2017   Page 5 of 8
       theory. See Henderson, 715 N.E.2d at 836 (listing possible ways to prove

       constructive possession, including “incriminating statements by the defendant

       [and] proximity of the contraband to the defendant”).


                                                         Fees
[12]   “Sentencing decisions include decisions to impose fees and costs.” Johnson v.

       State, 27 N.E.3d 793, 794 (Ind. Ct. App. 2015). If the trial court imposes fees

       within the statutory limits, there is no abuse of discretion. Mathis v. State, 776

       N.E.2d 1283, 1289 (Ind. Ct. App. 2002), trans. denied. An abuse of discretion

       occurred if the trial court misinterpreted the law or if its decision was clearly

       against the logic and effect of the facts and circumstances before it. Pavlovich v.

       State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied. A defendant’s

       indigency does not shield him from all costs or fees related to his conviction.

       See, e.g., Like v. State, 760 N.E.2d 1188, 1193 (Ind. Ct. App. 2002) (finding no

       abuse of discretion in a $300 marijuana eradication fee imposed on an indigent

       defendant because the fee was mandatory per the relevant statute), reh’g granted

       and remanded on other grounds, 766 N.E.2d 416 (Ind. Ct. App. 2002).


[13]   On January 26, 2016, the trial court entered an order stating Tate was assessed

       “Criminal Court Costs and Fees” of $183.00 and a “Safe Schools Fee” of

       $200.00 for a total of $383.00. (App. at 9.) Additionally, it ordered his

       community corrections fees and probation fees be on a “sliding fee scale.” 2 (Id.)



       2
        Tate includes in his Appendix a “Case Transactions Summary” purportedly issued by the Probation
       Department and listing fees. (App. at 43.) We decline to review this document as “[t]he appellate rules do

       Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-369 | January 13, 2017           Page 6 of 8
       To impose probation fees, a trial court must conduct an indigency hearing. Ind.

       Code § 33-37-2-3; Johnson, 27 N.E.3d at 794. However, there is no requirement

       as to when the hearing must be held. Johnson, 27 N.E.3d at 795. Here, the trial

       court did not conduct an indigency hearing when it ordered fees to be paid.

       Nevertheless, a “court acts within its authority when it chooses to wait and see

       if a defendant can pay probation fees before it finds the defendant indigent.” Id.

       The latest date to conduct the hearing would be either at the completion of the

       sentence or before a probation revocation premised on failure to pay fees. Id.

       The trial court has no duty to conduct the indigency hearing until the

       completion of Tate’s probationary period. Ind. Code § 33-37-2-3. Thus we find

       no error at this juncture.



                                                   Conclusion
[14]   As the State presented sufficient evidence to prove Tate was carrying a handgun

       without a license and the trial court did not abuse its discretion in ordering fees,

       we affirm.


[15]   Affirmed.




       not permit material to be included in a party’s appendix that was not presented to the trial court.” In re
       Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50, 57 n.6 (Ind. Ct. App. 2005).
       Tate asks us to remand for an indigency hearing. We concede an indigency hearing is required at some
       point, but we do not know whether one has occurred since the sentencing hearing on January 26, 2016, or
       whether Tate has reached the end of his probation. If Tate believes an indigency hearing is now required or
       the probation department’s determination of the amount of fees was inappropriate, Tate must first raise these
       issues before the trial court.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-369 | January 13, 2017               Page 7 of 8
Kirsch, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-369 | January 13, 2017   Page 8 of 8
