MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                  May 29 2019, 10:59 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         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
Amy Noe Dudas                                           Curtis T. Hill, Jr.
Richmond, Indiana                                       Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Dean Childers,                                    May 29, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2956
        v.                                              Appeal from the Wayne Circuit
                                                        Court
State of Indiana,                                       The Honorable David A. Kolger,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        89C01-1702-F5-21



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019                     Page 1 of 7
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, James Childers (Childers), appeals following his

      conviction for carrying a handgun without a license, a Level 5 felony, Ind.

      Code §§ 35-47-2-1(a); -(e)(2)(B).


[2]   We affirm.


                                                   ISSUE
[3]   Childers presents one issue on appeal, which we restate as: Whether the State

      produced sufficient evidence to prove beyond a reasonable doubt that he carried

      a handgun without a license.


                      FACTS AND PROCEDURAL HISTORY
[4]   In January 2017, Childers was staying in the home of a long-time family friend,

      John Mills (Mills), in Cincinnati, Ohio. Childers brought a black backpack

      with him to Cincinnati. Unbeknownst to Mills, Childers also brought a black,

      nine-millimeter Smith & Wesson handgun with him into Mills’ home. Because

      of his own criminal history, Mills was not allowed to have firearms in his

      home. After observing Childers with the handgun on multiple occasions, Mills

      told Childers that he would have to dispose of the handgun or leave his home.

      Childers was adamant about not parting with the handgun.


[5]   Mills had also learned that Childers had an active warrant for his arrest in an

      unrelated criminal matter in Wayne County, Indiana. Mills contacted the

      Richmond Police Department and advised that he would be driving Childers to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019   Page 2 of 7
      Childers’ father’s home in Richmond on January 23, 2017. Before leaving for

      Richmond, Mills observed Childers place Childers’ black backpack in Mills’

      SUV. Mills asked Childers if he had disposed of the handgun, and Childers

      replied that he had not. Mills directed Childers to place the black backpack in

      the back of the SUV, out of arm’s reach.


[6]   Officers intercepted Mills’ SUV in Richmond. After taking Childers into

      custody on the active arrest warrant, an officer asked Mills if there were any

      weapons in the SUV. Mills informed the officer that there was a handgun in

      the black backpack. The officer retrieved the backpack and readily observed the

      outline of a handgun in its front pocket. The officer removed the handgun,

      which was loaded, to secure it. The investigating officer obtained a search

      warrant for the backpack, the search of which yielded clothing belonging to

      Childers and a letter addressed to Childers enclosing a pre-paid debit card with

      Childers’ name on it.


[7]   On February 3, 2017, the State filed an Information, charging Childers with

      Class A misdemeanor carrying a handgun without a license. In a separate

      Information the State alleged that Childers had a previous Level 6 felony

      conviction for battery which enhanced the instant offense to a Level 5 felony.

      On October 30 and 31, 2018, the trial court conducted Childers’ jury trial.

      Mills testified that he did not own a gun, did not own the black backpack found

      in his SUV, had no bags or luggage of his own in the SUV, and that none of the

      clothing or other items found in the black backpack were his. Mills identified

      the handgun found in the backpack as the handgun he had previously seen in

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019   Page 3 of 7
       Childers’ possession. Mills identified a shirt found in the backpack as having

       been worn by Childers when he stayed at Mills’ home.


[8]    The jury found Childers guilty of Class A misdemeanor carrying a handgun

       without a license. Childers then pleaded guilty to the enhancement of having a

       prior felony conviction. On November 26, 2018, the trial court entered

       judgment of conviction on the offense as a Level 5 felony and sentenced

       Childers to five years and 182 days.


[9]    Childers now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   Childers challenges the evidence supporting his conviction. It is well-

       established that when we review the sufficiency of the evidence to support a

       conviction, we consider only the probative evidence and reasonable inferences

       supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not

       our role as an appellate court to assess witness credibility or to weigh the

       evidence. Id. We will affirm the conviction unless no reasonable fact-finder

       could find the elements of the crime proven beyond a reasonable doubt. Id.


[11]   The carrying a handgun without a license statute provides, in relevant part, that

       “a person shall not carry a handgun in any vehicle or on or about the person’s

       body without being licensed under this chapter to carry a handgun.” I.C. § 35-

       47-2-1(a). In the absence of actual possession, the State may prove the offense

       by showing that a defendant constructively possessed the handgun. Grim v.

       State, 797 N.E.2d 825, 830 (Ind. Ct. App. 2003) (collecting cases wherein our
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019   Page 4 of 7
       supreme court applied constructive possession analysis to handgun offenses). If

       a person does not have direct physical control over an item, he constructively

       possesses it if he has the capability to maintain dominion and control over it

       and he intends to maintain dominion and control over it. Negash v. State, 113

       N.E.3d 1281, 1291 (Ind. Ct. App. 2018). Where a defendant has exclusive

       possession of the premises where the item was found, an inference arises that he

       knew of the presence of the item and was capable of controlling it. Id.

       However, if possession of the premises is not exclusive, the inference arises only

       if additional circumstances indicate the defendant’s knowledge of the item and

       the ability to control it. Id. Examples of these additional circumstances include

       incriminating statements by the defendant, attempted flight or furtive gestures, a

       drug manufacturing setting, proximity of the defendant to the item, whether the

       item is in plain view, and other items belonging to the defendant in close

       proximity to the item. Id. These are merely examples of additional

       circumstances which may show constructive possession. Cannon v. State, 99

       N.E.3d 274, 279-80 (Ind. Ct. App. 2018), trans. denied. Other circumstances

       may just as reasonably demonstrate the requisite knowledge and intent. Id.


[12]   Here, the evidence showed that Mills saw Childers with the handgun at issue in

       his home and that Childers refused to abandon the handgun when directed to

       do so by Mills. Mills observed Childers place the backpack containing the

       handgun in the SUV. The outline of the handgun in the pocket of the bulging

       backpack was readily apparent. Other items belonging to Childers were found

       in the backpack, including his clothing and a letter addressed to him enclosing a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019   Page 5 of 7
       pre-paid debit card with his name on it. Mills denied owning the handgun or

       the backpack. Although possession of the SUV was not exclusive, as both Mills

       and Childers were in it when it was stopped, we conclude that the additional

       circumstances of Mills observing Childers place the backpack in the SUV, the

       outline of the gun being readily apparent in the pocket of the backpack, and

       Childers’ property being found in close proximity to the handgun permitted the

       jury to conclude beyond a reasonable doubt that Childers knew the handgun

       was in the SUV and that he had the ability and intent to control it. See Negash,

       113 N.E.3d at 1291.


[13]   Childers’ sole challenge to the sufficiency of the evidence is his contention that

       the State was required to show that he controlled the SUV itself in order to

       prove the offense. Childers relies on Cole v. State, 69 N.E.3d 552 (Ind. Ct. App.

       2017), trans. denied, in which another panel of this court held that to


               support a conviction for carrying a handgun in a vehicle, the
               State is required to prove that: “(1) the defendant had control
               over the vehicle, (2) the unlicensed handgun was found in a
               vehicle, and (3) the defendant had knowledge of the weapons’
               presence.” Henderson v. State, 715 N.E.2d 833, 835 n.2 (Ind.
               1999).


       Id. at 560. However, Henderson itself held that “when a car has multiple

       passengers, a gun near a backseat passenger and no permit” a jury can infer

       possession by the backseat passenger for purposes of a carrying a handgun

       without a license conviction. Henderson, 715 N.E.2d at 837. In addition, the

       Cole court held that the offense of carrying a handgun without a license may be

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019   Page 6 of 7
       established where it is shown that “a handgun was found in a vehicle and that

       the defendant had control of either the weapon or of the vehicle with knowledge of the

       weapon’s presence.” Cole, 69 N.E.3d at 560 (quotation omitted and some

       emphasis added). Thus, Cole and Henderson do not stand for the proposition

       that the State may only prove the offense by establishing that the defendant

       controlled the vehicle. Indeed, this court has held that, while a passenger’s

       mere presence in a vehicle in which a handgun is transported does not establish

       the offense, “this does not mean that a passenger in a car is precluded from

       being prosecuted for the handgun offense.” Grim, 767 N.E.2d at 830-31. The

       State established that Childers constructively possessed the handgun in question

       while in Mills’ SUV, and the State was not required to also establish that

       Childers controlled the SUV.


                                             CONCLUSION
[14]   Based on the foregoing, we conclude that the State proved beyond a reasonable

       doubt that Childers carried a handgun without a license.


[15]   Affirmed.


[16]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019   Page 7 of 7
