MEMORANDUM DECISION
                                                                    Aug 24 2015, 9:26 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone, IV                                       Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Donnis K. Wilkerson,                                     August 24, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         48A05-1410-CR-481
        v.                                               Appeal from the Madison Superior
                                                         Court
                                                         Cause No. 48C03-1311-FB-2164
State of Indiana,
Appellee-Plaintiff.                                      The Honorable Thomas Newman,
                                                         Jr., Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015       Page 1 of 9
                                             Case Summary
[1]   Donnis Wilkerson appeals his conviction for Class B Felony unlawful

      possession of a firearm by a serious violent felon. We affirm.


                                                    Issues
[2]   The issues before us are:


                      I.       whether there is sufficient evidence to support
                               Wilkerson’s conviction; and

                      II.      whether the prosecutor committed
                               prosecutorial misconduct and fundamental
                               error in closing argument.

                                                     Facts
[3]   The evidence most favorable to the conviction is that, on November 6, 2013,

      Lieutenant John Branson of the Anderson Police Department inspected a high

      crime business known as the VIP Lounge, which is a strip club. On that

      evening, around midnight, Lieutenant Branson observed a new Cadillac

      Escalade parked in an unusual spot against a fence in the back of the parking

      lot. Lieutenant Branson noticed that the vehicle was running with a person

      sitting in the driver’s seat whose head began to “slink down further and further”

      as Lieutenant Branson got closer “[l]ike he was trying to avoid detection . . . .”

      Tr. p. 314.


[4]   Lieutenant Branson parked his marked police car and walked over to the driver

      side of the Escalade. Lieutenant Branson detected “a very strong odor of

      Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015   Page 2 of 9
      marijuana coming from in the vehicle.” Id. at 315. Lieutenant Branson then

      had the driver, Tremayne McPhaul, step out of the vehicle. While Lieutenant

      Branson was speaking to McPhaul, Roger Randolph, whose mother owned the

      Escalade, arrived on the scene requesting the keys to the vehicle. Lieutenant

      Branson called in additional officers for help before inspecting the vehicle.


[5]   A few minutes later, Officer Michael Lee arrived on the scene and began

      inspecting the vehicle. Officer Lee had to use his flashlight to see into the

      vehicle. As Officer Lee was looking through the windows next to the third row

      seat, he spotted a gun in plain view lying in the middle of the seat. The weapon

      was a Glock forty-caliber hand pistol that was fully loaded. Wilkerson was

      discovered hiding on the floor of the vehicle “scrunched down between the

      seats” next to the third row seat. Id. at 323. Wilkerson was so close to the

      weapon that “his head and his hands would have been right by where the gun

      was.” Id.


[6]   An additional handgun was discovered by officers in the front seat of the

      vehicle. McPhaul admitted to placing the handgun in the passenger seat before

      he got out of the vehicle. McPhaul also admitted that marijuana found in the

      Escalade driver’s door belonged to him. At trial, Randolph testified that he did

      not carry guns or place the guns or marijuana in the vehicle. No other

      individuals were in the vehicle that night other than McPhaul, Randolph, and

      Wilkerson.




      Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015   Page 3 of 9
[7]   On November 7, 2013, Wilkerson was charged with Count I, Class D felony

      receiving stolen property, and Count II, Class B felony unlawful possession of a

      firearm by a serious violent felon. The State filed a motion to dismiss Count I,

      which the trial court granted. Wilkerson stipulated that he qualified as a serious

      violent felon under Indiana law but challenged whether he possessed a firearm.

      He was subsequently found guilty of Count II. Wilkerson was sentenced to

      twenty years and now appeals.


                                                  Analysis
                                        I. Sufficiency of Evidence

[8]   Wilkerson challenges the sufficiency of the evidence supporting his conviction

      for unlawful possession of a firearm by a serious violent felon. When reviewing

      the sufficiency of evidence, we examine only the probative evidence and

      reasonable inferences which support a guilty verdict. Lock v. State, 971 N.E.2d

      71, 74 (Ind. 2012). We do not assess witness credibility, nor do we reweigh

      evidence to determine the sufficiency to support a conviction. Id. Under our

      appellate system, those roles are not reserved for the appellate court, but

      exclusively for the finder of fact. Id. Our role is to consider only the evidence

      most favorable to the conviction and to affirm the conviction unless no

      reasonable fact-finder could conclude the elements of the crime were proven

      beyond a reasonable doubt. Id. Evidence is sufficient provided that an

      inference may reasonably be drawn from it to support the verdict. Id.

      Circumstantial evidence alone is sufficient for a conviction. Naas v. State, 993

      N.E.2d 1151, 1152 (Ind. Ct. App. 2013). “Reversal is appropriate only when

      Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015   Page 4 of 9
       reasonable persons would not be able to form inferences as to each material

       element of the offense.” Id.


[9]    Wilkerson argues that he did not possess the firearm. Constructive possession

       is at issue here. It is well-settled in Indiana that when constructive possession is

       asserted, the State must show the defendant had knowledge of the contraband.

       Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). This knowledge may be

       inferred from the defendant’s exclusive dominion and control over the premises

       containing the contraband or, if the control is non-exclusive, evidence of

       additional circumstances showing the defendant had knowledge of the presence

       of the contraband. Henderson, 715 N.E.2d at 835-36. The various factors that

       can lead to constructive possession are:

                (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.
       Id. at 836.


[10]   Here, it was not possible for Wilkerson to flee the scene because he would have

       been instantly detected by Lieutenant Branson while trying to escape. It is

       evident by Wilkerson’s actions that he was making an attempt to avoid being

       detected by officers. Wilkerson was buried down between the seats of a vehicle

       that had windows so darkly tinted that officers were unable to see inside

       without their flashlights. Not only was there no indication that someone else

       remained inside the vehicle, but Wilkerson made no attempt to make his
       Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015   Page 5 of 9
       presence known. While Lieutenant Branson was speaking with McPhaul,

       Wilkerson did not open any doors to the vehicle or “volunteer to let [the

       officers] know he was there[.]” Tr. p. 322. Instead Wilkerson was physically

       removed from the car by Lieutenant Branson. We cannot agree with Wilkerson

       that his being hunched down between the seats had no logical connection with

       the gun that was found. Wilkerson argued he “wasn’t hiding based on the fact

       that he had a weapon that day. He had a warrant.” Id. at 362. Although we

       do not dispute there was a warrant for Wilkerson’s arrest, to assert that he was

       hiding solely for this reason is pure speculation. It is reasonable to assume that

       the weapon found near his head was related to his attempt to avoid detection.


[11]   Along with the obvious furtive nature of his actions to imply his knowledge of

       possessing the handgun, the weapon was not only closest in proximity to

       Wilkerson, but it was also in plain sight. It is undisputed that the gun was in

       plain sight “laying right in the middle of the seat.” Id. at 290. Not only was the

       gun in plain sight, but the particular placement was on the third row of seats

       where Wilkerson was attempting to hide from police. “His head and his hands

       would have been right by where the gun was.” Id. at 323. The gun was so close

       to Wilkerson’s hands that officers testified within “a moments notice he could

       have grabbed it.” Id. at 335. The gun was not close in proximity to anyone

       other than Wilkerson. Furthermore, McPhaul admitted possessing the

       marijuana and another handgun discovered in the vehicle and Randolph,

       whose mother owned the car, denied ever possessing guns or placing any in the




       Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015   Page 6 of 9
       vehicle. The evidence most logically points to Wilkerson possessing the

       handgun.


[12]   This case is distinguishable from Henderson, upon which Wilkerson relies. In

       Henderson, the driver of the car owned the guns, had permits for both guns, and

       notified the officer that guns were in the vehicle. The guns were also found in

       the middle of the car near the defendant and driver. Due to the fact that the

       driver owned the gun and had a gun permit and the location of the gun was

       equally close to both men, there was insufficient evidence to suggest the

       defendant exercised dominion. Henderson, 715 N.E.2d at 838. Here, by

       contrast, no one had a permit for the gun and the gun was mere inches away

       from Wilkerson and nowhere close to the driver. There is sufficient evidence to

       support Wilkerson’s conviction.


                                       II. Prosecutorial Misconduct

[13]   We now assess whether the prosecutor committed prosecutorial misconduct

       and fundamental error in closing argument. Wilkerson asserts that he was

       denied a fair trial by the prosecutor’s improper closing argument. He further

       asserts that the prosecutor made improper statements unsupported by evidence

       such as the cost of Glock pistols, the deadly injuries associated with different

       types of ammunition, and asking the jurors to speculate why Wilkerson would

       have the pistol, in order to play on the emotional fears of jurors.


[14]   The standard of review for a claim of improper closing argument was stated by

       our supreme court in Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014):


       Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015   Page 7 of 9
               In reviewing a claim of prosecutorial misconduct properly raised in the
               trial court, we determine (1) whether misconduct occurred, and if so,
               (2) “whether the misconduct, under all of the circumstances, placed
               the defendant in a position of grave peril to which he or she would not
               have been subjected” otherwise.
       The gravity of peril is determined by the probable persuasive effect of the

       misconduct on the jury’s decision, not on the amount of impropriety of the

       conduct. Carter v. State, 956 N.E.2d 167, 169 (Ind. Ct. App. 2011).


[15]   Wilkerson’s trial counsel did not object to the prosecutor’s closing argument.

       When presented on appeal, a claim of prosecutorial misconduct without a

       contemporaneous trial objection cannot succeed unless the defendant

       establishes both prosecutorial misconduct and additional grounds for

       fundamental error. Id. at 170. For prosecutorial misconduct to be

       fundamental error, it must make a fair trial impossible or amount to obvious

       blatant violations of basic and elementary principles of due process and present

       an undeniable and substantial potential for harm. Id. Misconduct occurs when

       a prosecutor requests the jury to convict a defendant for any reason other than

       his or her guilt. Id.


[16]   Wilkerson points to several statements made by the prosecutor during closing

       argument. Specifically, the prosecutor said:

               So two (2) different purposes, but you know what they both will kill
               you. Now what’s he doing out there with this glock . . . . [H]ave you
               ever shopped for a weapon. Have you ever priced them? This is no
               Saturday night special. This will run you five hundred ($500.00)
               dollars any where you want to buy it.
                                                     *****

       Court of Appeals of Indiana | Memorandum Decision 48A05-1410-CR-481| August 24, 2015   Page 8 of 9
               You don’t have to worry about thing [sic] until the guns, until the
               money and drugs come together. When the money and the drugs
               come together carry a pistol, and we got two (2) of them.
                                                     *****
               Cause guys like McPhaul and this make it dangerous.
       Tr. pp. 348-49, 350, 367.


[17]   These statements were not based on any actual evidence and were used purely

       to inflame the jury. Although we agree that these statements were

       inappropriate, give their context, the overwhelming evidence of Wilkerson’s

       guilt, and that the fact that they constituted a relatively brief part of the entire

       closing argument, we decline to find that these statements amounted to

       fundamental error. The prosecutor’s additional statements regarding the

       doctrine of constructive possession and other arguments were entirely proper

       based on fair comments on the law and evidence presented.


                                                 Conclusion
[18]   Wilkerson has not established that there is insufficient evidence to support his

       conviction or that the prosecutor committed fundamental error during closing

       argument. We affirm.


[19]   Affirmed.


       Riley, J., and Bailey, J., concur.




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