MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                     Jun 23 2017, 9:26 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
Randy M. Fisher                                          Curtis T. Hill, Jr.
Leonard, Hammond, Thoma & Terrill                        Attorney General of Indiana
Fort Wayne, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lamontae J. White,                                       June 23, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1702-CR-304
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1603-F4-21



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017    Page 1 of 10
                                       Statement of the Case
[1]   Lamontae White appeals his conviction for unlawful possession of a firearm by

      a serious violent felon, a Level 4 felony, following a jury trial. White presents

      the following issues for our review:

              1.      Whether the State presented sufficient evidence to support
                      his conviction.

              2.      Whether the trial court abused its discretion when it
                      sentenced him.

              3.      Whether his sentence is inappropriate in light of the nature
                      of the offense and his character.


      We affirm.


                                 Facts and Procedural History
[2]   On January 7, 2016, at approximately 9:00 p.m., Timothy Swift was driving his

      grandmother’s car in Fort Wayne, with his brother Timon Swift sitting in the

      front passenger seat and White sitting in the back seat behind Timothy. Fort

      Wayne Police Department (“FWPD”) Detective David Wilkins initiated a

      traffic stop when he saw that the car’s license plate had expired. As Detective

      Wilkins approached the driver’s side of the car, FWPD Officer Matthew Foote

      arrived at the scene and approached the passenger’s side of the car. The

      occupants identified themselves, and Timothy told the officers that his driver’s

      license was suspended. The officers then instructed all three men to exit the

      car, and the officers conducted pat-down searches of the men.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 2 of 10
[3]   Because Timon’s driver’s license was suspended and the car’s license plate had

      expired, the officers conducted an inventory search of the car in preparation to

      have it towed. During the search, Detective Wilkins found a baggie containing

      what appeared to be marijuana between the front passenger seat and the middle

      console. Detective Wilkins also found a silver Ruger handgun on top of a red

      notebook on the floor under the “rear portion of the front passenger’s seat.” Tr.

      at 32. The slide on the handgun was in the forward position, “covering the

      barrel.” Id. at 33. Officers also found clothing and shoes in the backseat.

      White initially denied that the clothing and shoes belonged to him, but he later

      admitted that they were his. In addition, officers observed that there was a

      drawer underneath the front passenger seat that obstructed access to the rear of

      the floor of the seat. And officers found a large piece of Styrofoam wedged

      behind the driver’s seat area that obstructed the driver from accessing the back

      seat area of the car. The officers placed all three men in handcuffs and

      transported them to the police station. The men denied any knowledge of the

      handgun found in the car.


[4]   On January 13, Timothy went to the police station and told Officer Foote that

      the handgun belonged to him. However, after a latent fingerprint examiner

      with the FWPD found White’s partial palm print on the barrel of the Luger

      handgun, on March 4, the State charged White with unlawful possession of a

      firearm by a serious violent felon, a Level 4 felony, and carrying a handgun

      without a license, as a Level 5 felony. The State dismissed the Level 5 felony

      charge prior to trial, and a jury found White guilty of the remaining charge.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 3 of 10
      The trial court entered judgment of conviction and sentenced White to twelve

      years executed. This appeal ensued.


                                     Discussion and Decision
                                Issue One: Sufficiency of the Evidence

[5]   White first contends that the State failed to present sufficient evidence to

      support his conviction. Our standard of review on a claim of insufficient

      evidence is well-established:


              When reviewing a claim that the evidence introduced at trial was
              insufficient to support a conviction, we consider only the
              probative evidence and reasonable inferences that support the
              trial court’s finding of guilt. Drane v. State, 867 N.E.2d 144 (Ind.
              2007). We likewise consider conflicting evidence in the light
              most favorable to the trial court’s finding. Wright v. State, 828
              N.E.2d 904 (Ind. 2005). It is therefore not necessary that the
              evidence overcome every reasonable hypothesis of innocence.
              Drane, 867 N.E.2d at 147. Instead, we will affirm the conviction
              unless no reasonable trier of fact could have found the elements
              of the crime beyond a reasonable doubt. Jenkins v. State, 726
              N.E.2d 268, 270 (Ind. 2000).


      Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011) (footnote omitted).


[6]   To convict White of unlawful possession of a firearm by a serious violent felon,

      a Level 4 felony, the State was required to show that he, a serious violent felon,

      knowingly or intentionally possessed a firearm. Ind. Code § 35-47-4-5 (2015).

      White’s sole contention on appeal is that the evidence is insufficient to prove

      that he possessed a firearm. We cannot agree.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 4 of 10
[7]   Possession can be actual or constructive. A person constructively possesses

      contraband when the person has (1) the capability to maintain dominion and

      control over the item, and (2) the intent to maintain dominion and control over

      it. Id. There is no question that White had the capability to maintain dominion

      and control over the firearm inside the car, as it was within his reach. Holmes v.

      State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003). Thus, we turn to whether a

      reasonable fact-finder could conclude on these facts that White had the intent to

      possess that contraband.


[8]   For such issues, our ultimate question is “whether a reasonable fact-finder

      could conclude from the evidence that the defendant knew of the nature and

      presence of the contraband.” Johnson v. State, 59 N.E.3d 1071, 1074 (Ind. Ct.

      App. 2016). We have previously enumerated several nonexhaustive facts that

      the fact-finder might consider where, as here, a defendant’s possession of the

      premises in which the contraband is found is not exclusive:

              (1) incriminating statements made 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.


      Wilkerson v. State, 918 N.E.2d 458, 462 (Ind. Ct. App. 2009).


[9]   We agree with the State that a reasonable fact-finder could have concluded that

      White knew of the nature and presence of the firearm under the front passenger

      seat of the car. First, White’s partial palm print was found on the barrel of the
      Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 5 of 10
       gun, which was covered by the slide when officers found the gun under the seat.

       Second, the front seat passenger could not readily access the location where the

       gun was found because there was a fixed drawer under the seat between the

       front and back of the floor underneath the seat. Third, the driver could not

       readily access the location where the gun was found because there was a large

       piece of Styrofoam blocking the driver’s access to the back seat area of the car.

       Fourth, White was sitting in the back seat and had easy access to the area

       underneath the front passenger seat. Fifth, White’s clothing and shoes were

       found in the back seat near the gun. Sixth, White made an incriminating

       statement when he initially denied that the clothing and shoes were his but later

       admitted that they belonged to him. And seventh, while Timothy testified that

       he had thrown the gun into the back seat after he saw the officers following the

       car,1 the officers testified that they did not see anyone throw anything into the

       back seat. We conclude that the State presented sufficient evidence from which

       a reasonable fact-finder could conclude that White constructively possessed the

       handgun.


                              Issue Two: Abuse of Discretion in Sentencing

[10]   White also contends that the trial court abused its discretion when it sentenced

       him. Generally, sentencing decisions are left to the sound discretion of the trial

       court, and we review its decision only for an abuse of that discretion. Singh v.




       1
         The officers found the gun neatly placed on top of the red notebook, which indicates that it had not been
       thrown there but had been placed there.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017              Page 6 of 10
       State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied. “An abuse of

       discretion occurs if the decision is clearly against the logic and effect of the facts

       and circumstances before the trial court.” Id.


               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include
               entering a sentencing statement that explains reasons for
               imposing a sentence—including a finding of aggravating and
               mitigating factors if any—but the record does not support the
               reasons, or the sentencing statement omits reasons that are
               clearly supported by the record and advanced for consideration,
               or the reasons given are improper as a matter of law. Under
               those circumstances, remand for resentencing may be the
               appropriate remedy if we cannot say with confidence that the
               trial court would have imposed the same sentence had it properly
               considered reasons that enjoy support in the record.


       Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (“Anglemyer I”) (internal

       quotation marks and citations omitted), clarified on reh’g, 875 N.E.2d 218

       (“Anglemyer II”).


[11]   White maintains that the trial court abused its discretion when it did not

       consider his bad childhood and current family support as mitigators. An

       allegation that the trial court failed to identify or find a mitigating factor

       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record. Anglemyer I, 868 N.E.2d at 493.

       Further, “‘[i]f the trial court does not find the existence of a mitigating factor

       after it has been argued by counsel, the trial court is not obligated to explain




       Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 7 of 10
       why it has found that the factor does not exist.’” Id. (quoting Fugate v. State,

       608 N.E.2d 1370, 1374 (Ind. 1993)).


[12]   Here, White has not demonstrated either that the proffered mitigators are

       significant or that they are clearly supported by the record. With regard to his

       bad childhood, White directs us to his mother’s statement at sentencing where

       she briefly mentioned that White’s father was verbally and physically abusive

       and that she raised White and his siblings in “house-to-house situations” that

       “tarnished [White] a lot.” Tr. at 156. With regard to his current family

       support, White directs us to his defense counsel’s statement to the trial court at

       sentencing that there were “a number of friends and family members” in the

       courtroom. Id. at 155. White does not cite to any evidence that he has support

       from friends and family outside of the courtroom. White has not demonstrated

       that the trial court abused its discretion when it did not find his bad childhood

       and family support to be mitigating circumstances.


                                    Issue Three: Appellate Rule 7(B)

[13]   Finally, White contends that his sentence is inappropriate in light of the nature

       of the offense and his character. As we have explained:

               Indiana Appellate Rule 7(B) permits an Indiana appellate court
               to “revise a sentence authorized by statute if, after due
               consideration of the trial court’s decision, the Court finds that the
               sentence is inappropriate in light of the nature of the offense and
               the character of the offender.” We assess the trial court’s
               recognition or nonrecognition of aggravators and mitigators as an
               initial guide to determining whether the sentence imposed was
               inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 8 of 10
               App. 2006). The principal role of appellate review is to “leaven
               the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). A defendant must persuade the appellate court that his or
               her sentence has met the inappropriateness standard of review.
               Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[14]   White asserts that the nature of the offense “is certainly not the most egregious

       seen by this Court.” Appellant’s Br. at 22. He maintains that he was arrested

       after a “simple traffic stop” and he had not attempted to use the handgun “in

       any sort of violent manner” at the time. Id. at 22-23. But the State points out

       that White possessed the fully loaded handgun while he was “still on supervised

       release” for a federal conviction for unlawfully possessing a firearm. Appellee’s

       Br. at 14. We cannot say that White’s twelve-year sentence is inappropriate in

       light of the nature of the offense.


[15]   White also maintains that his sentence is inappropriate in light of his character.

       White acknowledges that his juvenile and adult criminal histories are

       “significant.” Appellant’s Br. at 23. Still, he asserts that most of his juvenile

       adjudications and two of his six adult convictions were for non-violent offenses.

       And White contends that his “character can be gleaned from his

       correspondence to the trial court, as well as the two character witnesses [who]

       testified on his behalf at the sentencing hearing.” Id. However, not only is

       White’s criminal history significant, but this is his third conviction related to the

       illegal possession of a firearm. Again, he was on supervised release for a federal



       Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 9 of 10
       firearm possession conviction at the time of the instant offense. We cannot say

       that Smith’s sentence is inappropriate in light of his character.


[16]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 10 of 10
