MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Feb 09 2018, 10:52 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
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
O’Connor & Auersch                                       Attorney General of Indiana
Indianapolis, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Troy Briscoe,                                            February 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1709-CR-2050
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia Gooden,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G21-1603-F2-11126



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2050 | February 9, 2018           Page 1 of 6
[1]   Troy Briscoe appeals his conviction for Level 5 Felony Carrying a Handgun

      Without a License.1 He argues that the evidence is insufficient to support his

      conviction. Finding the evidence sufficient, we affirm.


                                                     Facts
[2]   On March 19, 2016, Lawrence Police Lieutenant Scott Evans responded to a

      reported disturbance at a motel. When he arrived, the motel manager, Chad

      York, stated that he needed assistance evicting people from a room at the back

      of the motel. Lieutenant Evans drove to the back of the motel and, while he

      was waiting on backup, York knocked on the door.


[3]   Briscoe partially opened the door and began arguing with York. Hearing the

      argument, Lieutenant Evans approached the room. When the lieutenant

      reached the door, he could see about half of Briscoe’s body, but not his left arm.

      Lieutenant Evans yelled at Briscoe and, after Briscoe saw the lieutenant, he

      made a quick, jerking motion and hit something against the door or adjacent

      wall, causing a loud bang. Lieutenant Evans ordered Briscoe to step back and

      then entered the room.


[4]   Briscoe and two women were the only people in the room. Briscoe was “very

      nervous, very fidgety,” and told Lieutenant Evans that he was leaving, but

      Lieutenant Evans instructed him to stay where he was. Tr. Vol. II p. 72. When




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


      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2050 | February 9, 2018   Page 2 of 6
      backup arrived, Briscoe was arrested on an outstanding warrant. The police

      searched the room and found a .380 semi-automatic handgun directly behind

      the door—where Lieutenant Evans had heard the bang—on top of a man’s

      jacket in a bucket of laundry. Police also found twenty-three grams of heroin

      next to the gun and a scale and baggies in the kitchenette. Subsequent

      investigation revealed that Briscoe did not have a license to carry a firearm and

      that there was male DNA on the gun, though there was an insufficient amount

      to determine whose DNA it was.


[5]   On March 23, 2016, the State charged Briscoe with one count of Level 2 felony

      dealing in a narcotic drug, two counts of Level 3 felony possession of a narcotic

      drug, and one count of Class A misdemeanor carrying a handgun without a

      license. Following Briscoe’s June 27, 2017, jury trial, the jury found him guilty

      of carrying a handgun without a license and not guilty of dealing in a narcotic

      drug, and was unable to return a verdict on the remaining charges. Following

      his conviction, Briscoe stipulated that he had been convicted of a felony within

      fifteen years of the date of the offense; consequently, on July 12, 2017, the trial

      court found Briscoe guilty of Level 5 felony carrying a handgun without a

      license. On August 11, 2017, the trial court sentenced Briscoe to five years with

      three years executed in the Department of Correction, one year executed with

      Community Corrections, and one year suspended to probation. Briscoe now

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2050 | February 9, 2018   Page 3 of 6
                                   Discussion and Decision
[6]   Briscoe’s sole contention on appeal is that the evidence is insufficient to support

      his conviction; specifically, he argues that the State failed to demonstrate that

      he possessed the gun. When reviewing challenges to the sufficiency of the

      evidence, we do not reweigh the evidence or judge the credibility of the

      witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct. App. 2010). Instead, we

      consider only the evidence most favorable to the verdict and the reasonable

      inferences drawn therefrom, and we will affirm if the evidence and those

      inferences constitute substantial evidence of probative value to support the

      verdict. Id. Reversal is appropriate only when a reasonable trier of fact would

      not be able to form inferences as to each material element of the offense. Id.


[7]   To convict Briscoe of Level 5 felony carrying a handgun without a license, the

      State must prove, among other things, that he had actual or constructive

      possession of the gun. Wallace v. State, 722 N.E.2d 910, 913 (Ind. Ct. App.

      2000). Actual possession occurs when a person has direct physical control over

      an item. Id. Constructive possession is shown by the intent and capability to

      maintain dominion and control over an item. Id. Knowledge is a key element

      in proving intent and where, as here, a person’s control over the premises where

      the contraband is found is nonexclusive, additional factors may be considered

      to infer intent and capability to establish dominion and control. Henderson v.

      State, 715 N.E.2d 833, 835-36 (Ind. 1999); see also Hardister v. State, 849 N.E.2d

      563, 574 (Ind. 2006) (listing “attempted flight,” “furtive gestures,” “proximity



      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2050 | February 9, 2018   Page 4 of 6
      of the defendant to the [contraband],” and whether the contraband is in plain

      view as possible considerations).


[8]   With respect to actual possession, the evidence establishes that, when Briscoe

      saw Lieutenant Evans, he made a quick, jerking motion that was immediately

      followed by a bang, and Lieutenant Evans testified that the gun was found

      “exactly where I heard that hit, I mean exactly.” Tr. Vol. II p. 75.

      Additionally, Briscoe was the only man in the room and DNA evidence

      revealed a man’s DNA on the gun. A reasonable factfinder could have inferred

      from the circumstances that Briscoe was holding the gun and that the loud bang

      was a result of his attempt to discard it. In other words, the evidence is

      sufficient to support a conclusion that Briscoe actually possessed the gun.


[9]   Further, there is sufficient evidence for a reasonable juror to find constructive

      possession. When Briscoe saw Lieutenant Evans, he made a quick, jerking

      motion that was immediately followed by a bang. Briscoe was visibly nervous

      and uneasy and the gun was found near to where Briscoe had been standing. In

      light of Briscoe’s behavior2 and his proximity to the gun when he opened the

      door, a reasonable factfinder could infer that he knew about the gun and that he

      had an intent and capability to establish dominion and control over it.




      2
        Briscoe offers several alternative interpretations to explain his behavior; however, these are veiled requests
      to reweigh the evidence—requests we decline.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2050 | February 9, 2018               Page 5 of 6
[10]   In sum, there is sufficient evidence to support the finding that Briscoe possessed

       the gun, regardless of the theory of possession. Likewise, there is sufficient

       evidence to support his conviction for Level 5 felony carrying a handgun

       without a license.


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


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2050 | February 9, 2018   Page 6 of 6
