Opinion
23A-JV-2950
07-29-2024
B.E., Appellant-Respondent v. State of Indiana, Appellee-Petitioner
ATTORNEY FOR APPELLANT Joel M. Schumm Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Pauline A. Beeson, Magistrate Trial Court Cause No. 49D16-2307-JD-6258
ATTORNEY FOR APPELLANT Joel M. Schumm Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[¶1] The trial court adjudicated B.E. a delinquent for possessing a machine gun, a level 5 felony. On appeal, B.E. argues that the State failed to establish that he possessed the firearm. We affirm.
Facts and Procedural History
[¶2] On July 24, 2023, Indianapolis Metropolitan Police Department Officer Connor Finch witnessed a traffic violation, and he activated his emergency lights and siren to conduct a traffic stop of the vehicle. The officer saw the vehicle's two occupants "looking back at [his] vehicle" and "talking to each other." Tr. Vol. 2 at 17. Officer Finch saw the front-seat passenger, fifteen-year-old B.E., "push[] himself back into the seat, pushing his waist up[,]" and then "lean forward toward the glove box before returning to his seat." Id. at 19. Based on his experience, the officer found this movement to be consistent with retrieving a firearm from the front of one's waistband. Officer Finch called for backup because he "wasn't sure what the driver and the passenger were planning to do." Id. at 20.
[¶3] The vehicle rolled to a stop, and the driver's door opened. Officer Finch ordered the driver back in the vehicle. When backup arrived, Officer Finch approached the passenger's side of the vehicle. "[T]he driver and passenger were both very nervous" and "didn't want to make eye contact with [him] when [he] came up to the vehicle." Id. at 20, 21. Officer Finch asked if there were any firearms inside the vehicle. B.E. replied that, to his knowledge, there were not, but the officer "could see his eyes shift to the glove box of the vehicle." Id. at 21. In Officer Finch's experience, it is "pretty common for people, whenever you ask them about something that they're hiding, they're subconscious, they don't do it intentionally, just inadvertently they'll look directly at wherever it is that they placed an item." Id. The officers removed B.E. and the driver from the vehicle, patted them down, and handcuffed them. Officer Finch then detected the odor of raw marijuana and began to search the vehicle, which belonged to the driver's aunt. In the glove box, the officer found a Glock handgun with an extended magazine and a Glock switch.
The only evidence in the record that the switch converted the handgun into a machine gun as defined by Indiana Code Section 35-31.5-2-190 is found in the following exchange between the deputy prosecutor and Officer Finch: "Q: So this is not the first time that you've seen a handgun that's been converted with the switch? A: No, ma'am." Tr. Vol. 2 at 24. B.E. does not challenge the sufficiency of the evidence in this regard. That said, we are confident that the United States Supreme Court will eventually formulate some tortured logic for legalizing switch-equipped handguns. See Garland v. Cargill, 602 U.S. 406, 410 (2024) (holding that a bump stock does not convert a semiautomatic rifle into an illegal "machinegun" as defined by federal law).
[¶4] The State filed a petition alleging that B.E. committed level 5 felony possession of a machine gun and class A misdemeanor dangerous possession of a firearm. After a factfinding hearing, the trial court found that B.E. committed both offenses and adjudicated him a delinquent as to the machine gun offense. The court placed B.E. on probation. B.E. now appeals.
Discussion and Decision
[¶5] Indiana Code Section 35-47-5-8 makes it unlawful for a person to knowingly or intentionally possess a machine gun. B.E. argues that the State failed to establish that he possessed the machine gun that Officer Finch found in the glove box.
[¶6] "In juvenile delinquency adjudication proceedings, the State must prove every element of the offense beyond a reasonable doubt." C.D.H. v. State, 860 N.E.2d 608, 610 (Ind.Ct.App. 2007), trans. denied. "When reviewing a claim challenging the sufficiency of the evidence, we will neither reweigh the evidence nor judge witnesses' credibility." Id. "We will affirm the adjudication if we conclude that evidence of probative value exists so that a reasonable factfinder could find the elements of the underlying crime proven beyond a reasonable doubt." Id.
[¶7] Possession of a firearm can be either actual or constructive. Tate v. State, 835 N.E.2d 499, 511 (Ind.Ct.App. 2005), trans. denied. "Actual possession occurs when a defendant had direct physical control over the item. Constructive possession occurs when the defendant had the intent and capability to maintain dominion and control over the item." Jones v. State, 881 N.E.2d 1095, 1098 (Ind.Ct.App. 2008) (citation omitted).
[¶8] B.E. concedes that he had the capability to maintain dominion and control over the machine gun and challenges only the State's evidence regarding his intent. To prove the intent element of constructive possession, the State must demonstrate the defendant's knowledge of the contraband's presence. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). "Knowledge may be inferred from either exclusive dominion and control over the premises containing the firearm, or from evidence of additional circumstances indicating the defendant's knowledge of the presence of the firearm." Causey v. State, 808 N.E.2d 139, 143 (Ind.Ct.App. 2004). "These additional circumstances may include incriminating statements by the defendant; flight or furtive gestures; defendant's proximity to the contraband; the contraband being in plain view; or the location of the contraband in close proximity to items owned by the defendant." K.F. v. State, 961 N.E.2d 501, 510 (Ind.Ct.App. 2012), trans. denied. These circumstances are nonexhaustive, and ultimately the question is whether a reasonable factfinder could conclude from the evidence that the defendant knew of the contraband's presence. Johnson v. State, 59 N.E.3d 1071, 1074 (Ind.Ct.App. 2016).
[¶9] Here, B.E. did not have exclusive dominion and control over the vehicle in which the machine gun was found. But Officer Finch saw him contort his body in such a way that was consistent with removing a firearm from the front of his waistband and then "lean forward toward the glove box before returning to his seat." Tr. Vol. 2 at 19. The glove box was "directly in front of" B.E. Id. at 44. B.E. denied that any firearms were in the vehicle, but he glanced at the glove box while doing so, which aroused the officer's suspicions even further. From this evidence, a reasonable factfinder could conclude that B.E. knew of the machine gun's presence in the glove box. B.E.'s argument to the contrary is simply an invitation to reweigh the evidence in his favor, which we may not do. Accordingly, we affirm his adjudication.
This evidence indicates that B.E. actually possessed the machine gun, but the State proceeded under a theory of constructive possession at trial.
The State asserts,
[T]here was evidence that led to an inference that the gun was commingled with items that belonged to B.E. He told Officer Finch that he had gone to McDonald's, showed officer Finch the McDonald's bag, and Officer Finch found sauce packets and plastic forks next to the gun in the glove compartment.Appellee's Br. at 12. A photo of the glove box shows that one sauce packet in the glove box bears a Burger King logo and that the other packets appear to be ketchup packets with no restaurant logo. Ex. Vol. at 6. Another photo shows a McDonald's bag and food containers on the floorboard of the vehicle. Id. at 8.
[¶10] Affirmed.
Bradford, J., and Tavitas, J., concur in result without opinion.