MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
court except for the purpose of establishing                            Sep 20 2019, 10:13 am

the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kelly Starling                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bryant Edwards,                                          September 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-757
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda E. Brown,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Steven J. Rubick,
                                                         Magistrate

                                                         Trial Court Cause No.
                                                         49G10-1805-CM-17445



Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-757 | September 20, 2019                Page 1 of 6
                                          Case Summary
[1]   Bryant Edwards was charged with and convicted of Class A misdemeanor

      carrying a handgun without a license after he was observed sitting in the

      driver’s seat of a vehicle with a handgun stuck between his seat and the center

      console, resting against his leg. On appeal, he contends that the evidence is

      insufficient to prove that he possessed the handgun. We affirm.



                            Facts and Procedural History
[2]   On May 29, 2018, Edwards’s girlfriend, Christy Mays, parked her vehicle

      outside Davion Adams’s residence. Edwards, who claimed not to be feeling

      well, remained in the vehicle, sitting alone in the driver’s seat. At some point

      after Edwards had been sitting alone in the vehicle for a few hours, Adams

      arrived at the residence and went to sit in the passenger seat of the vehicle with

      Edwards. Shortly thereafter, police arrived at the residence to serve a warrant

      on Adams for an unrelated case.


[3]   Indianapolis Metropolitan Police Officer Dustin Carmack approached the

      passenger side of the vehicle and observed through the open window that there

      was a handgun wedged between the driver’s seat and the center console. The

      handgun was resting against Edwards’s leg and had an extended magazine that

      protruded upwards approximately six inches.


[4]   Edwards remained calm while the officers struggled to arrest Adams. He

      complied with the officer’s requests and was handcuffed without incident.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-757 | September 20, 2019   Page 2 of 6
      During a subsequent search of the vehicle, officers found a pill bottle belonging

      to Edwards and items belonging to Mays in the center console of the vehicle.

      Mays indicated that there had been no firearm placed between the driver’s seat

      and the center console of her vehicle when she drove it to Adams’s residence

      earlier that day.


[5]   On May 31, 2018, the State charged Edwards with Class A misdemeanor

      carrying a handgun without a license and Class B misdemeanor possession of

      marijuana. Following the State’s presentation of evidence at the November 20,

      2018 bench trial, Edwards moved for an involuntary dismissal of both counts

      pursuant to Indiana Trial Rule 41(B). The trial court granted the motion with

      regard to the possession-of-marijuana charge. The trial court then bifurcated

      the trial and requested that the parties submit briefs on the issue of whether the

      State had met its burden in proving the Class A misdemeanor handgun charge.

      After reviewing the parties’ briefs, the trial court denied Edwards’s motion.

      The trial court subsequently found Edwards guilty of Class A misdemeanor

      carrying a handgun without a license and sentenced him 356 days. The trial

      court awarded Edwards credit for time served, suspended the remainder of the

      sentence, and imposed ninety days of non-reporting probation.



                                 Discussion and Decision
[6]   Edwards contends that the evidence is insufficient to sustain his conviction for

      Class A misdemeanor carrying a handgun without a license. Our standard of

      review for challenges to the sufficiency of the evidence is well-settled. Bell v.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-757 | September 20, 2019   Page 3 of 6
      State, 31 N.E.3d 495, 499 (Ind. 2015). “We do not reweigh the evidence or

      assess the credibility of witnesses in reviewing a sufficiency of the evidence

      claim.” Id. Conflicting evidence is considered “in the light most favorable to

      the trial court’s finding.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). This is

      because the factfinder, and not the appellate court, “is obliged to determine not

      only whom to believe, but also what portions of conflicting testimony to

      believe, and is not required to believe a witness’s testimony even when it is

      uncontradicted.” Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017) (internal

      quotation and brackets omitted). On appeal, we “look to the evidence and

      reasonable inferences drawn therefrom that support the verdict and will affirm

      the conviction if there is probative evidence from which a reasonable fact-finder

      could have found the defendant guilty beyond a reasonable doubt.” Bell, 31

      N.E.3d at 499.


[7]   In challenging the sufficiency of the evidence to sustain his conviction, Edwards

      argues that the State failed to prove that he possessed the handgun. The

      Indiana Supreme Court has held that possession may be either actual or

      constructive. Gray, 957 N.E.2d at 174. “Actual possession occurs when a

      person has direct physical control over the item.” Henderson v. State, 715

      N.E.2d 833, 835 (Ind. 1999). “Constructive possession occurs when somebody

      has the intent and capability to maintain dominion and control over the item.”

      Id. (internal quotation omitted).


              When constructive possession is asserted, the State must
              demonstrate the defendant’s knowledge of the contraband. This

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-757 | September 20, 2019   Page 4 of 6
              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 v. State, 471 N.E.2d 691, 694 (Ind. 1984) (internal 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.


      Henderson, 715 N.E.2d at 836 (internal citation omitted).


[8]   In this case, the State presented evidence that the handgun was in close

      proximity to Edwards, that the handgun was located within Edwards’s plain

      view, and that it was co-mingled with other items belonging to Edwards. It is

      undisputed that the handgun was in close proximity to Edwards and Officer

      Carmack testified that it was touching Edwards’s thigh. In addition to its close

      proximity to Edwards, the handgun was in plain view with its extended

      magazine protruding upwards approximately six inches. Further, while it is

      undisputed that the vehicle in which Edwards was sitting belonged to his

      girlfriend, a pill bottle belonging to Edwards was found near the handgun in the

      center console of the vehicle. These facts are sufficient to support the inference

      that Edwards had knowledge of and constructively possessed the handgun.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-757 | September 20, 2019   Page 5 of 6
      Further, to the extent that Edwards argues that the evidence demonstrates that

      Adams admitted that the handgun belonged to him, the evidence also

      demonstrates that Adams denied that the handgun belonged to him. The trial

      court, acting as the trier-of-fact, was in the best position to judge the credibility

      of the evidence and determine which statements to believe. See Perry, 78

      N.E.3d at 8.


[9]   The judgment of the trial court is affirmed.


      Vaidik, C.J., and Riley, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-757 | September 20, 2019   Page 6 of 6
