MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Feb 22 2017, 6:40 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
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
Keating and LaPlante, LLP                                Attorney General of Indiana
Evansville, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon Artis,                                           February 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A05-1608-CR-1747
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Michael J. Cox,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1604-F4-2033



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A05-1608-CR-1747 | February 22, 2017   Page 1 of 5
                                          Case Summary
[1]   Brandon Artis (“Artis”) appeals his conviction for Unlawful Possession of a

      Firearm by a Serious Violent Felon, a Level 4 felony.1 He presents the sole

      issue of whether sufficient evidence supports the conviction. We affirm.



                                   Facts and Procedural History
[2]   On April 6, 2016, Evansville Police Department officers were dispatched to a

      residential neighborhood after someone reported suspected drug odors

      emanating from a parked black truck. The caller had also indicated that the

      truck occupants were blaring loud music.


[3]   Officers Herbert Adams and Michael Beitler located a truck meeting the caller’s

      description. As the officers approached, two passengers exited and walked

      away from the truck. Officer Beitler attempted to speak to the men, but they

      refused to engage in conversation. They walked to a nearby residence and

      watched the officers from the window.


[4]   Officer Adams approached the black vehicle, where he saw Artis sitting in the

      driver’s seat. Artis opened the driver’s side door, and a conversation ensued.

      Artis stated that he and his companions had been listening to music. In

      response to the officer’s questions, Artis replied that the truck was not his and




      1
          Ind. Code § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 82A05-1608-CR-1747 | February 22, 2017   Page 2 of 5
      that he did not have a driver’s license. He refused permission to search the

      vehicle.


[5]   One of the officers advised Artis that the vehicle was illegally parked, and it

      would probably need to be towed. Artis was told that he could “head off and

      leave the keys.” (Tr. at 49.) Alternatively, the officer suggested that Artis could

      “go in there and find the owner,” who would then be asked to consent to a

      search. (Tr. at 49.) An unidentified woman appeared and offered to allow

      Artis to “leave [the truck] right here.” (Tr. at 51.) However, she also denied

      ownership of the truck.


[6]   At some point during the encounter, Officer Beitler saw a Ruger .45 caliber

      pistol under the driver’s seat. He alerted other officers, and Artis was arrested.

      Inside Artis’s right front jacket pocket was a magazine compatible with a Ruger

      .45 caliber pistol.


[7]   On June 15, 2016, Artis was brought to trial on a charge of Unlawful

      Possession of a Firearm by a Serious Violent Felon. At the conclusion of the

      first stage of the bifurcated proceedings, a jury found that Artis had possessed a

      firearm. He then admitted that he is a serious violent felon, having previously

      been convicted of armed robbery. The trial court entered judgment and

      sentenced Artis to six years imprisonment. Artis now appeals.



                                 Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 82A05-1608-CR-1747 | February 22, 2017   Page 3 of 5
[8]    Indiana Code Section 35-47-4-5(c) provides: “A serious violent felon who

       knowingly or intentionally possesses a firearm commits unlawful possession of

       a firearm by a serious violent felon, a Level 4 felony.” Artis claims that the

       State failed to establish, beyond a reasonable doubt, that he knowingly or

       intentionally possessed the handgun.


[9]    When reviewing the sufficiency of the evidence to support a criminal

       conviction, we do not reweigh the evidence or judge witness credibility.

       McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only the

       evidence supporting the verdict and any reasonable inferences to be drawn

       therefrom, we will affirm if there is substantial evidence of probative value such

       that a reasonable trier of fact could have concluded the defendant was guilty

       beyond a reasonable doubt. Id.


[10]   The possession of contraband may be characterized as either actual or

       constructive. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Actual

       possession occurs when a person has direct physical control over the item and

       constructive possession occurs when someone has the intent and capability to

       maintain dominion and control over the item. Id. Here, the State asserted that

       Artis constructively possessed the handgun found under the driver’s seat where

       he was seated. When constructive possession is asserted, the State must

       demonstrate the defendant’s knowledge of the contraband. Id.


[11]   Proof of dominion and control of contraband has been found through such

       means as: (1) incriminating statements made by a defendant, (2) attempted


       Court of Appeals of Indiana | Memorandum Decision 82A05-1608-CR-1747 | February 22, 2017   Page 4 of 5
       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

       836.


[12]   Here, officers testified to the following circumstances. Artis was sitting in the

       driver’s seat of the black truck as officers approached. A Ruger .45 caliber

       pistol was visible from underneath the driver’s seat of that vehicle. A magazine,

       compatible with a Ruger .45 caliber pistol, was found in Artis’s right front

       jacket pocket. Inside the black truck were items of Artis’s clothing and his

       identification card. Sufficient evidence was presented from which the jury

       could reasonably have concluded that Artis constructively possessed the

       handgun.



                                               Conclusion
[13]   Artis’s conviction is supported by sufficient evidence.


[14]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1608-CR-1747 | February 22, 2017   Page 5 of 5
