MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Mar 26 2018, 10:07 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Marvin Williams,                                         March 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1711-CR-2592
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff.                                      Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1707-F3-26459



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018             Page 1 of 12
[1]   Marvin Williams appeals his conviction for carrying a handgun without a

      license as a class A misdemeanor. Williams raises one issue which we revise

      and restate as whether the evidence is sufficient to sustain his conviction. We

      affirm.


                                      Facts and Procedural History

[2]   On July 15, 2016, Abrege Cruite called 911 and, upon questioning by the

      operator, indicated that she was in a vehicle with a male and was unable to

      speak about the person. For seven minutes, Cruite spoke in code, pretending to

      speak with her mother rather than the operator. When the operator asked if the

      male had any weapons, Cruite responded “yeah.” State’s Exhibit 1 at 3:06-

      3:09. During the time she spoke with Cruite, the operator dispatched police to

      the location of the call and informed the officers to look for a “possibly armed

      male.” Transcript Volume 2 at 28.


[3]   Officer Jordan Bull of the Indianapolis Metropolitan Police Department

      (“IMPD”) responded to the location of the call and pulled into the entrance of

      an apartment parking lot near 32nd Street and Baltimore Avenue. As Officer

      Bull turned south onto Brouse Avenue, Cruite ran towards him, seemed

      frightened and panicked, and was crying with her voice trembling. Officer Bull

      heard her say “a male[] was over there” and “[h]e’s by the truck,” and she

      directed his attention to the truck in the parking lot. Id. at 25. Williams was

      halfway in the passenger-side cab portion of the truck such that his upper torso

      “was kind of leaning in the [truck] and his legs were still on the ground.” Id. at

      26. After Officer Bull positioned his vehicle towards and drove closer to the
      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018   Page 2 of 12
      truck, Williams exited or quit leaning in the truck, shut the door and the hood

      of the truck, and started walking westbound. Williams had a tool or what

      appeared to be a wrench in his hands. Officer Bull exited his vehicle and

      ordered Williams to stop and to drop the tool. After doing so, Williams began

      to walk towards Officer Bull. Officer Bull and another officer, Sergio

      Rodriguez De Leon, conducted a pat-down of Williams and secured him in

      handcuffs. Williams appeared nervous and looked around a lot. Based upon

      Officer Bull’s training and experience, Williams’s demeanor raised a red flag

      that he might be “looking for a way out, to run or possibly fight, or who

      knows.” Id. at 30. The officers arrested Williams.


[4]   On their way to the scene, Officers Ivan Ivanov and Jason Beacker encountered

      Cruite on North Keystone Avenue and she was panicked, walking fast, and

      crying. When they arrived at Williams’s location, Officer Ivanov spoke to

      Williams and then to Detective Chris White, who had arrived at some point.

      Based on his conversation with Detective White, Officer Ivanov completed an

      inventory search of the truck, pursuant to IMPD General Order 7.3 governing

      the policy for towing and impounding vehicles.


[5]   During the search, Officer Ivanov found tools and court paperwork belonging

      to Williams. The court paperwork was found in the truck’s glovebox. Small

      items of clothing, speakers, and speaker wire were also found in the truck’s cab

      compartment. Officer Beacker, who also conducted the inventory search,

      located a small black revolver behind the folding bench seat on the passenger

      side of the truck, lying “just like on the floor.” Id. at 62. Officer Beacker, not

      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018   Page 3 of 12
      touching or moving the gun, notified Officer Ivanov, who then called for a gun

      liason, or an evidence technician, to process it. When Officer Thomas White

      arrived at the scene, the truck’s back rest was leaning forward and he was

      directed to the gun laying on the floor of the vehicle, between the back rest and

      the back end of the cab. After he attempted to fingerprint the gun, Officer

      White collected and made the fully-loaded gun safe by opening the cylinder and

      removing five live rounds.


[6]   On July 18, 2017, the State charged Williams with kidnapping as a level 3

      felony; criminal confinement as a level 3 felony; pointing a firearm as a level 6

      felony; domestic battery as a class A misdemeanor; battery resulting in bodily

      injury as a class A misdemeanor; and carrying a handgun without a license as a

      class A misdemeanor. On September 20, 2017, the court dismissed the first five

      counts.


[7]   On October 11, 2017, Williams filed a motion to suppress all evidence directly

      or derivatively gained as a result of an illegal search and seizure of Williams

      and that stated, subsequent to Williams’s arrest, “law enforcement searched

      [Williams’s] person and the truck nearby him.” Appellant’s Appendix Volume

      2 at 91-92. On October 13, 2017, the court denied the motion to suppress.


[8]   The trial court held a bench trial on the remaining charge of carrying a handgun

      without a license at which the prosecutor introduced the recording of the 911

      call as Exhibit 1 and counsel for Williams stipulated to its admission for

      purposes of the foundation of the suppression motion. After some discussion,


      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018   Page 4 of 12
the court stated, “I have to listen to it anyway for the purposes of getting to the

matter at hand,” and “I mean I can disregard it if need be later.” Transcript

Volume 2 at 20. The recording reveals that Cruite described in code her

location and clothing, ran, and then exclaimed “hurry up, hurry up please,”

“hurry the f--- up,” and “he’s trying to kill me.” State’s Exhibit 1 at 7:08-7:14.

Later, after hearing the recording, the testimony of the first witness, and

arguments by Williams’s counsel and the prosecutor as to the suppression, the

court stated:


         I do believe the 911 call does provide some very important
         information. At first I wasn’t sure and will eventually get to
         whether or not it should be admitted I suppose for the purpose of
         trial. At first I wasn’t sure it was an excited utterance but at the
         very end it clearly, in my opinion, is an excited utterance. But
         the information on the 911 call indicates someone fixing their
         car. Also indicates the location. Also indicates a woman who is
         fleeing from the situation and the person. When the police arrive
         they do in fact see a woman fleeing and they see that she is
         pointing to a truck, and in this truck, there is a man who
         eventually proves out to be the defendant, and therefore, I do
         think there is reasonable suspicion for the stop. So, at this time I
         will deny the motion to suppress.


Transcript Volume 2 at 43.1




1
  On appeal, Williams cites to State’s Exhibit 1 in the Statement of Facts section of his appellant’s brief and
the Argument section of his reply brief. Appellant’s Brief at 5-6; Appellant’s Reply Brief at 6-8.

Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018               Page 5 of 12
[9]   Officer Bull testified that, based on what he observed, Williams appeared to be

      working on the truck and that he was holding a wrench in his hand. Officer

      Ivanov testified that, pursuant to IMPD General Order 7.3, he inventoried the

      truck for any valuables to prepare it for towing and that the windows and doors

      could not be locked. Officer Beacker testified, when asked to describe the seat,

      that “there’s a pull knob thing th[at] comes up, you drop the seat down” and

      also testified that, if he remembered correctly, “there was a gap” before he

      moved the seat and that he believes that if he had looked behind the seat he

      would have seen the gun without moving it. Id. at 63. Officer White testified

      that when he was directed to the gun, it was positioned such that the grip was

      towards the driver’s side and “up” and the “muzzle [was] pointing down

      towards the floor,” that the gun “wasn’t laying on the bottom of the floor” and

      leaned up against the back of the cab, and that it was about a “foot in or so”

      from the door and “[m]aybe about two or three feet” from the driver side of the

      seat. Id. at 69. He also testified that if he were to sit in the driver seat, the gun

      would be within his arm range and that when he first arrived, he could see it

      pretty plainly “from out of the vehicle.” Id. at 70. When the prosecutor asked

      if there was “anything else back behind there other than the gun,” Officer

      White stated “[j]ust like tool kit and stuff like that” and, when the prosecutor

      asked “[t]ools were back there,” he followed up by responding, “[y]es ma’am.

      Like tire change. Tire – tire rod.” Id. The gun was admitted into evidence over

      Williams’s objection. At the conclusion of the trial, the court stated that “[i]n

      considering all the factors, I find that his [sic] did have the intent to maintain

      dominion and the capability of maintaining dominion or control over the
      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018   Page 6 of 12
       weapon” and that Williams “was in possession of a firearm without a license

       class A misdemeanor.” Id. at 84. The court found Williams guilty as charged

       and sentenced him to 180 days in the Marion County Jail.


                                                   Discussion

[10]   The issue is whether the evidence is sufficient to sustain Williams’s conviction

       for carrying a handgun without a license as a class A misdemeanor. When

       reviewing claims of insufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of witnesses. Drane v. State, 867 N.E.2d 144,

       146 (Ind. 2007), reh’g denied. We consider conflicting evidence most favorably

       to the trial court’s ruling. Id. We affirm the conviction unless “no reasonable

       fact-finder could find the elements of the crime proven beyond a reasonable

       doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). The

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

       the verdict. Id. at 147.


[11]   Williams argues that there is no reasonable inference that he had actual

       knowledge of the presence of the gun in the truck as required and that the State

       failed to meet its burden of proving that he intended to convey or transport the

       gun in the truck. He contends that the State’s evidence showed only

       momentary close proximity of the gun to Williams as he leaned into the truck

       briefly, that the gun was in plain view only after Williams was leaning into the

       car, and that the gun was not commingled with other items belonging to him.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018   Page 7 of 12
[12]   The State argues that sufficient evidence supports Williams’s conviction and

       that he had control of the truck with knowledge of the gun’s presence as well as

       the intent to transport or convey the weapon. Specifically, the State asserts that,

       with respect to Williams’s control of the truck, he held a tool and was working

       on the truck when the officers arrived and that the officers located court

       paperwork in Williams’s name. With respect to Williams’s knowledge of the

       gun’s presence, the State asserts that the officers testified that they observed the

       loaded gun on the floor of the passenger side of the vehicle where Williams was

       standing when the officers arrived on the scene, that the gun had been propped

       against the back of the cab, and that they found it about a foot in from the

       passenger side of the truck where they first observed Williams.


[13]   In its July 18, 2017 charging information, the State cited Ind. Code §§ 35-47-2-1

       and -1(e) and alleged that Williams did “knowingly carry a handgun in a

       vehicle or on or about his person, without being licensed as required by law.”

       Appellant’s Appendix Volume 2 at 17. At the time of the offense, Ind. Code §

       35-47-2-1(a) provided 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,” and Ind. Code § 35-47-2-1(e) provided in part

       that a “person who knowingly or intentionally violates this section commits a

       Class A misdemeanor.”2




       2
           Subsequently amended by Pub. L. No. 221-2017, § 1 (eff. July 1. 2017).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018   Page 8 of 12
[14]   In reviewing a conviction under a previous version of the statute, the Indiana

       Supreme Court held that Ind. Code § 35-47-2-1 is “relatively broad” and “thus

       prohibits both carrying a handgun on or about one’s person and carrying a

       handgun in a vehicle.” Henderson v. State, 715 N.E.2d 833, 835, 835 n.2 (Ind.

       1999).3 When referring to the carrying of a gun on or about one’s person, the

       statute proscribes “having on one’s person an unlicensed handgun” and

       conviction of the offense does not require proof that the weapon was conveyed

       or transported from one place to another. McAnalley v. State, 514 N.E.2d 831,

       834 (Ind. 1987).


[15]   In Henderson, the Indiana Supreme Court addressed a conviction for carrying a

       handgun on or about the defendant’s person, and held that “[t]he liberality of

       the Indiana text has nevertheless obliged us to examine the sort of evidence

       adequate to demonstrate that a defendant ‘carried’ the weapon.” 715 N.E.2d at

       835. The Court observed that it had “approached this task, and the similar

       question of ‘possessing’ drugs, by characterizing the possession of contraband

       as either actual or constructive.” Id. Actual possession occurs when a person

       has direct physical control over the item. Id. Constructive possession occurs

       when a person has “the intent and capability to maintain dominion and control

       over the item.” Id. When constructive possession is asserted, the defendant’s




       3
        In Henderson, the Indiana Supreme Court addressed a previous version of Ind. Code § 35-47-2-1, which
       provided: “a person shall not carry a handgun in any vehicle or on or about his person, except in his
       dwelling, on his property or fixed place of business, without a license issued under this chapter being in his
       possession.” 715 N.E.2d at 835.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018               Page 9 of 12
       knowledge may be inferred from either the exclusive dominion and control over

       the premises containing the contraband or, if the control is non-exclusive,

       evidence of additional circumstances pointing to his knowledge of the presence

       of the contraband. Id. at 835-836. The intent element of constructive

       possession is shown if the State demonstrates the defendant’s knowledge of the

       presence of the contraband. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Proof

       of dominion and control has been found through a variety of means, including:

       (1) incriminating statements by the defendant, (2) attempted flight or furtive

       gestures, (3) proximity of the contraband to the defendant, (4) location of the

       contraband within the defendant’s plain view, and (5) the mingling of the

       contraband with other items owned by the defendant. Henderson, 715 N.E.2d at

       836.


[16]   The record reveals that officers were dispatched in response to a 911 call and

       were looking for a “possibly armed male.” Transcript Volume 2 at 28. During

       the 911 call, Cruite described in code her location and clothing, ran, and

       exclaimed “hurry up, hurry up please,” “hurry the f--- up,” and “he’s trying to

       kill me.” State’s Exhibit 1 at 7:08-7:14. The operator asked Cruite if Williams

       had any weapons, and she responded “yeah.” Id. at 3:06-3:09. When Officer

       Bull first encountered Williams, he was leaning halfway into the passenger-side

       cab portion of a truck, which had court paperwork belonging to him inside the

       glovebox, with his upper torso inside. The hood of the truck was up. When

       Officer Bull approached Williams, he quit leaning in the truck, shut its door and

       hood, and began walking westbound with a wrench away from the truck.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018   Page 10 of 12
       Williams appeared nervous, looked around a lot, and looked like he might be

       “looking for a way out, to run or possibly fight, or who knows.” Transcript

       Volume 2 at 30. When the officers inventoried the truck, they found a gun in

       the back on the truck’s passenger side. Officer Beacker, who located the gun,

       indicated that he believed he would have seen the gun without moving it if he

       had looked behind the seat. Officer White testified that the gun, which was

       located about a foot in or so from the passenger door and about two or three

       feet from the driver seat, would be within arm’s range from the driver’s seat,

       and that it could be seen from “out of the vehicle.” Id. at 70.


[17]   The court could reasonably infer from the evidence as set forth above and in the

       record that Williams had knowledge of the gun as well as the capability and

       intent to maintain control over it in light of his appearance, his proximity to it

       when officers first saw him, and other factors. Williams’s argument is merely a

       request that we reweigh the evidence, which we will not do. See Drane, 867

       N.E.2d at 146. We conclude that, under these circumstances, evidence of

       probative value exists from which the court could find that Williams had

       constructive possession of the gun and could have found him guilty beyond a

       reasonable doubt of carrying a handgun “on or about his person” without a

       license as a class A misdemeanor. See Deshazier v. State, 877 N.E.2d 200, 208

       (Ind. Ct. App. 2007) (“Based on the totality of the circumstances, we conclude

       sufficient evidence exists to support Deshazier’s conviction based on a theory

       that he constructively possessed the handgun while seated in the vehicle . . . .”),

       trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018   Page 11 of 12
                                                   Conclusion

[18]   For the foregoing reasons, we affirm Williams’s conviction for carrying a

       handgun without a license as a class A misdemeanor.


[19]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2592 | March 26, 2018   Page 12 of 12
