MEMORANDUM DECISION
                                                                          Jun 09 2015, 5:42 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before 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
Karen Celestino-Horseman                                  Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

D.B.,                                                     June 9, 2015

Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A02-1410-JV-757
        v.                                                Appeal from the Marion Superior
                                                          Court.
                                                          The Honorable Marilyn Moores,
State of Indiana,                                         Judge.
Appellee-Petitioner                                       The Honorable Gary Chavers,
                                                          Magistrate.
                                                          Cause No. 49D09-1404-JD-828




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JV-828 | June 9, 2015               Page 1 of 7
[1]   D.B. appeals after he was adjudicated delinquent for committing an offense that

      would have been Carrying a Handgun Without a License, 1 a class A

      misdemeanor, had it been committed by an adult. D.B. raises two arguments

      on appeal, one of which we find dispositive: D.B. contends that the evidence is

      insufficient to support the adjudication. We agree, and reverse.


                                                     Facts
[2]   D.B. was sixteen years old in March 2014. On March 7, 2014, Indianapolis

      Metropolitan Police Department Officer Kenneth Kuntz observed a young

      man, later identified as an individual named D.P., begin charging another

      young man “in a fighting manner,” in the parking lot of a fast food restaurant.

      Tr. p. 11. Officer Kuntz exited his vehicle and told D.P. he needed to talk with

      him. The officer then observed a blue vehicle quickly back up in the parking

      lot. D.P. jumped into the backseat of the vehicle behind the passenger seat, and

      the vehicle drove away.


[3]   Officer Kuntz began following the vehicle, which was being driven by D.B.,

      eventually turning on his lights to signal D.B. to pull over. D.B. pulled over

      within a reasonable amount of time after the officer turned on his lights.


[4]   While Officer Kuntz spoke with D.B., Officer Dustin Carmack spoke with D.P.

      D.B. produced an Indiana temporary driver’s permit and D.P. refused to




      1
          Ind. Code § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JV-828 | June 9, 2015   Page 2 of 7
      provide any identification. Both officers asked D.P. to step out of the vehicle.

      After the backseat door was opened and as D.P. was stepping out, Officer

      Kuntz noticed a handgun sticking out from under the front passenger seat into

      the rear floorboard of the vehicle, between D.P.’s feet. As Officer Kuntz pulled

      the gun out, a second gun slid out from under the front passenger seat.


[5]   After the officers found the guns, Officer Carmack asked D.B. to exit the

      vehicle, and both D.B. and D.P. were seated on a curb and handcuffed. Officer

      Carmack stood behind them and watched as Officer Kuntz completed a search

      of the vehicle. Officer Carmack overheard D.B. ask D.P. “if he was going to

      take the gun . . . , and telling [D.P.] that he had a gun charge.” Id. at 61.

      Although both guns were tested for fingerprint and DNA evidence, no physical

      evidence resulted that linked D.B. to either weapon. Id. at 43.


[6]   On April 30, 2014, the State filed a petition alleging D.B. had committed acts

      that would be class A misdemeanor carrying a handgun without a license and

      class A misdemeanor dangerous possession of a firearm had the acts been

      committed by an adult. On September 18, 2014, the juvenile court held a fact-

      finding hearing. At the close of the hearing, the juvenile court adjudicated D.B.

      a delinquent for carrying a handgun without a license and found that the second

      count merged into the first. On September 30, 2014, the juvenile court held a

      dispositional hearing and ordered D.B. committed to the Department of

      Correction until the age of twenty-one, for at least twelve months. D.B. now

      appeals.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JV-828 | June 9, 2015   Page 3 of 7
                                      Discussion and Decision
[7]   Although D.B. makes two arguments on appeal, we find his argument that the

      evidence is insufficient to sustain his adjudication to be dispositive. When the

      State seeks to have a juvenile adjudicated as a delinquent for committing an act

      that would be a crime if committed by an adult, the State must prove every

      element of the crime beyond a reasonable doubt. M.S. v. State, 889 N.E.2d 900,

      901 (Ind. Ct. App. 2008). In reviewing a juvenile adjudication, we will consider

      only the evidence and reasonable inferences supporting the judgment and will

      neither reweigh evidence nor judge the credibility of the witnesses. Id. If there

      is substantial evidence of probative value from which a reasonable trier of fact

      could conclude that the juvenile was guilty beyond a reasonable doubt, we will

      affirm the adjudication. Id.


[8]   D.B. was found delinquent for committing an act that would be class A

      misdemeanor carrying a handgun without a license. Indiana Code section 35-

      47-2-1(a) provides that subject to certain exceptions not at issue in this case, “a

      person shall not carry a handgun in any vehicle . . . without being licensed

      under this chapter to carry a handgun.” Indiana Code section 35-47-2-23

      provides that a person who violates section 1 of the chapter commits a class A

      misdemeanor.2




      2
        These statutes were modified with an effective date of July 1, 2014; in relevant part, Indiana Code section
      35-47-2-23 was repealed and relocated to be subsection (e) of section 35-47-2-1. As D.B. committed the
      alleged offenses herein prior to July 1, 2014, we will apply and cite to the earlier versions of the statutes.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JV-828 | June 9, 2015                   Page 4 of 7
[9]   Our Supreme Court has explained that to convict a defendant of carrying a

      handgun in a vehicle, the State must prove that the defendant either actually or

      constructively possessed the handgun. Henderson v. State, 715 N.E.2d 833, 835-

      36 (Ind. 1999). It is undisputed that in the instant case, D.B. did not have

      actual possession of the handguns. We turn, therefore, to the concept of

      constructive possession. The Henderson Court has described this concept as

      follows:

              Constructive possession occurs when somebody has “the intent and
              capability to maintain dominion and control over the item.” Id. We
              suggested in Woods v. State, 471 N.E.2d 691 (Ind. 1984),] that
              knowledge is a key element in proving intent:
                       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, if the control is
                       non-exclusive, evidence of additional circumstances
                       pointing to the defendant’s knowledge of the presence of
                       the contraband.
              Woods, 471 N.E.2d at 694 (citations omitted). 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.
      Id. at 835-36. Turning to the instant case, we consider each of these factors in

      turn.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JV-828 | June 9, 2015   Page 5 of 7
[10]   1. Incriminating statements by the defendant. The State argues that D.B.’s

       questioning of D.P. as to whether he was going to take responsibility for the

       gun is an incriminating statement. We cannot agree. This statement was made

       after the guns were found by the officers, so it establishes no prior knowledge of

       the weapons’ presence in the car. And a mere question to a car passenger as to

       whether he intended to accept responsibility for a gun, with an accompanied

       explanation that the speaker has a prior gun charge, does not tend to

       incriminate the speaker in the possession of the gun.


[11]   2. Attempted flight or furtive gestures. As soon as Officer Kuntz activated his

       police lights, D.B. pulled over the vehicle. He made no furtive gestures, and

       Officer Kuntz testified that D.B. did not seem to be attempting to evade him

       when he drove away from the parking lot.


[12]   3. Location of contraband in settings that suggest manufacturing. This factor is not

       relevant to this case.


[13]   4. Proximity of the contraband to the defendant. The handguns were underneath

       the passenger’s seat, with the handle of one sticking out into the backseat area.

       There is no evidence regarding the proximity of the weapons to D.B., who was

       in the driver’s seat. There is no evidence regarding D.B.’s ability to reach back

       for the weapons.


[14]   5. Location of the contraband within the defendant’s plain view. The handle of one of

       the handguns was sticking out slightly into the backseat area. The officers were



       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JV-828 | June 9, 2015   Page 6 of 7
       unable to see the handgun until the door was opened. There is no evidence

       establishing that D.B. was able to see either handgun.


[15]   6. The mingling of the contraband with other items owned by the defendant. There

       was no mingling of the weapons with items owned by D.B.


[16]   In addition to all of these factors, we note that it is undisputed that D.B. did not

       own the vehicle being driven. There is no evidence establishing how long he

       had been driving it, to what extent the vehicle was actually under his control, or

       what knowledge he had or should have had of the contents of the vehicle.


[17]   It is readily apparent that this record does not support a reasonable inference

       that D.B. had knowledge of the presence of the handguns in the vehicle. None

       of the circumstances set forth by our Supreme Court tend to support a claim

       that D.B. had dominion and control of the handguns. Therefore, we cannot

       conclude that the evidence supports a conclusion that D.B. carried a handgun

       in the vehicle. Given this record, we are compelled to conclude that there is

       insufficient evidence supporting the adjudication.


[18]   The judgment of the juvenile court is reversed and remanded with instructions

       to vacate the adjudication.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JV-828 | June 9, 2015   Page 7 of 7
