Opinion
24A-CR-81
07-29-2024
Steven D. Boruff, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Timothy M. Sledd Chief Public Defender Lawrence County Public Defender Agency Beford, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Justin F. Roebel Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Lawrence Superior Court The Honorable John M. Plummer, III, Judge Trial Court Cause No. 47D01-2306-F4-872
ATTORNEY FOR APPELLANT Timothy M. Sledd Chief Public Defender Lawrence County Public Defender Agency Beford, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana.
MEMORANDUM DECISION
CRONE, JUDGE.
Case Summary
[¶1] After a jury trial, Steven D. Boruff was convicted of level 4 felony unlawful possession of a firearm by a serious violent felon (SVF). On appeal, Boruff argues that the State failed to present sufficient evidence to support his conviction. We affirm.
Boruff also argues that the trial court erred in denying his motion for a directed verdict, which he made at the end of the State's case. Because he offered his own evidence after that ruling, however, he is precluded from challenging it on appeal. Davidson v. State, 580 N.E.2d 238, 242 (Ind. 1991).
Facts and Procedural History
[¶2] Boruff lived with his romantic partner Brittany Carter for a couple months until she was evicted from her apartment at the beginning of June 2023. They began living in Carter's minivan. On the afternoon of June 8, 2023, Bedford Police Department Sergeant Faheem Bade and another officer approached the minivan, which was in a restaurant parking lot, in response to a report that "there was a[n] intoxicated couple getting ready to leave in [a] motor vehicle." Tr. Vol. 2 at 181. Boruff was in the driver's seat, and Carter was in the front passenger's seat. The driver's side window was partially down, and the minivan's engine was not running. The sergeant walked up to the driver's side door, and the other officer walked up to the passenger's side door.
[¶3] Sergeant Bade was wearing a bodycam that recorded his interaction with Boruff and Carter. The sergeant asked them how they were doing. Boruff replied, "All right," and started rummaging in the console between the front seats. State's Ex. 1 at 0:00:03. Sergeant Bade asked if Boruff had his driver's license or ID. Boruff replied that he had not driven the minivan, that the keys were not in the ignition, and that Carter had the keys. Boruff again started rummaging in the console, and Sergeant Bade told him, "Stop digging around." Id. at 0:00:11. Boruff complied. He told the sergeant that they had just eaten at the restaurant and were "sitting here talking." Id. at 0:00:45. The sergeant asked how they had gotten to the restaurant, and Boruff said that Carter had driven the minivan. Sergeant Bade asked, "Is there anything in the car we should know about?" Id. at 0:1:00. Boruff replied, "We're moving." Id. at 0:01:02. Both sides concede that Carter's reply, which is not in the record, gave the officers probable cause to search the minivan.
At trial, Sergeant Bade testified that Boruff "reached towards the floorboard of the vehicle[.]" Tr. Vol. 2 at 189. This statement is not supported by the bodycam video.
[¶4] Boruff asked to step out of the minivan, and the sergeant let him do so. Sergeant Bade asked Boruff if he had his ID. Boruff responded, "No, I do not. It's at the house." Id. at 0:01:26. Shortly thereafter, the sergeant searched the minivan's driver's compartment. He opened the console lid and found Boruff's license/ID inside. He then peered under the driver's seat and found a loaded semiautomatic handgun on the floorboard.
[¶5] The State charged Boruff with level 4 felony unlawful possession of a firearm by an SVF. A jury trial was held in December 2023. The parties stipulated to Boruff's SVF status based on a domestic battery conviction. The State called Sergeant Bade as its only witness. He testified that the handgun was "[r]ight underneath of [Boruff]" and was "[a]bsolutely" within his reach. Tr. Vol. 2 at 203. He also testified that the minivan was "[c]luttered" with "totes and hampers with clothes, men and women's clothes, shoes, papers" and that "Mr. Boruff's stuff was in the car along with the passenger[.]" Id. at 204, 205. A redacted version of Sergeant Bade's bodycam video was played for the jury.
[¶6] Boruff moved for a directed verdict, which the trial court denied, and called Carter as a witness. She testified that she was evicted from her apartment and that she and Boruff were living in the minivan "at a campground." Id. at 220. She further testified that she owned the minivan and the handgun, which she bought at a local gun shop before she met Boruff. She also testified that she told Boruff about the handgun at the beginning of their relationship and that she put the handgun under the minivan's driver's seat to "keep it away from" him because she "knew that he was a felon." Id. at 222. According to Carter, she "slept in the driver's seat" and Boruff slept in "[t]he passenger seat" when they lived in the minivan. Id. at 226.
[¶7] Boruff renewed his motion for directed verdict, which the trial court denied. The jury found him guilty as charged. The trial court sentenced him to seven years, with eighteen months suspended to probation. Boruff now appeals.
Discussion and Decision
[¶8] Indiana Code Section 35-47-4-5(c) makes it unlawful for an SVF to knowingly or intentionally possess a firearm. Boruff argues that the State failed to establish that he possessed the handgun that Sergeant Bade found under the driver's seat in which he was sitting.
[¶9] "In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses." Morales v. State, 227 N.E.3d 183, 188 (Ind.Ct.App. 2024), trans. denied. "We respect the jury's exclusive province to weigh conflicting evidence, and we consider only the evidence most favorable to its verdict." Id. "The factfinder is obliged to determine not only whom to believe, but also what portions of conflicting testimony to believe, and is not required to believe a witness'[s] testimony even when it is uncontradicted." Wood v. State, 999 N.E.2d 1054, 1064 (Ind.Ct.App. 2013) (citation omitted), trans. denied (2014), cert. denied. On appeal, it is "not necessary that the evidence overcome every reasonable hypothesis of innocence." Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We must affirm if the evidence and the reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Anderson v. State, 37 N.E.3d 972, 974 (Ind.Ct.App. 2015), trans. denied.
[¶10] 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).
[¶11] Boruff does not argue that he did not have the capability to maintain dominion and control over the handgun. Rather, he 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).
[¶12] Here, Boruff did not have exclusive dominion and control over the minivan in which the handgun was found. But he was sitting only inches above the handgun, which was within his reach and in close proximity to his personal effects. From this evidence, a reasonable factfinder could conclude that Boruff knew of the handgun's presence, and the factfinder was free to disbelieve Carter's contrary testimony. Therefore, we affirm Boruff's conviction.
[¶13] Affirmed.
Bradford, J., and Tavitas, J., concur.