Opinion
24A-JV-1231
11-08-2024
C.B., Appellant-Respondent v. State of Indiana, Appellee-Petitioner
ATTORNEYS FOR APPELLANT Talisha Griffin Marion County Public Defender Agency Appellate Division Indianapolis, Indiana Lisa Johnson Brownsburg, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Philip C. Sheward, Judge Trial Court Cause No. 49D24-2309-JD-7952
ATTORNEYS FOR APPELLANT Talisha Griffin Marion County Public Defender Agency Appellate Division Indianapolis, Indiana Lisa Johnson Brownsburg, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Judge Brown Judges Mathias and Kenworthy concur.
MEMORANDUM DECISION
Brown, Judge.
[¶1] C.B. appeals his adjudication as delinquent for committing dangerous possession of a firearm. We affirm.
Facts and Procedural History
[¶2] On September 16, 2023, Lawrence Police Officer Andrew Thorup initiated a traffic stop of a Chevy Malibu. Officer Thorup approached the Malibu, saw four occupants in the vehicle, obtained the driver's information, obtained a verbal identification from C.B., who was seated in the backseat behind the front passenger seat, and returned to his police vehicle. Officer Stewart Bishop arrived at the scene and stood next to Officer Thorup's vehicle while he ran information through the BMV. Officer Bishop "observed all the 4 occupants in the vehicle appeared to be moving around," he "heard movement," and he "gave a loud command for them to stop reaching around." Transcript Volume II at 23. Officer Thorup exited his vehicle, and the officers had the occupants of the Malibu exit the vehicle. Officer Thorup observed that the occupants showed "a little bit of nervous behavior, especially once we got them out." Id. at 33.
[¶3] Officer Bishop deployed his canine and conducted an open-air sniff, and the canine alerted to the front passenger door. Officers found a handgun with an extended magazine under the front passenger seat. The officers also found a black bag that "almost looked like a duffel bag" on the "passenger side back floorboard," which would have been located "directly in between the legs of [C.B.]." Id. at 47. The bag contained a pistol with a live cartridge in the chamber and a loaded magazine.
[¶4] On September 18, 2023, the State alleged that C.B. committed dangerous possession of a firearm. On February 23, 2024, the court held a factfinding hearing. Officer Thorup indicated on cross-examination that he had to unzip the duffel bag to view its contents. The court found that C.B. committed the alleged delinquent act, adjudicated him a delinquent child, placed him on probation, and ordered that he participate in a gun violence prevention program.
Discussion
[¶5] C.B. asserts that the evidence is insufficient to support his delinquency adjudication. Specifically, he contends that the State failed to show that he possessed a firearm. He argues the bag containing the firearm "would have been close to [his] feet when he was sitting in the car," "[h]owever, the firearm was not visible to [him]," Officer Thorup "had to unzip the bag before he saw the firearm," and there was no evidence that the bag belonged to him. Appellant's Brief at 11.
[¶6] In reviewing the sufficiency of the evidence in a juvenile adjudication, we do not reweigh the evidence or judge the credibility of the witnesses. K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006). Rather, we look only to the evidence most favorable to the trial court's judgment and to the reasonable inferences to be drawn from that evidence. Id. We will affirm if there is substantial probative evidence to support the conclusion. Id.
[¶7] Ind. Code § 35-47-10-5(a) provides: "A child who knowingly, intentionally, or recklessly possesses a firearm for any purpose other than a purpose described in section 1 of this chapter commits dangerous possession of a firearm, a Class A misdemeanor." It is well-established that possession of an item may be either actual or constructive. See Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh'g, 685 N.E.2d 698 (Ind. 1997). Constructive possession occurs when a person has the capability and intent to maintain control over the contraband. Id. The capability element is met when the State shows the defendant is able to reduce the contraband to his personal possession. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). To show the intent element, the State must demonstrate the defendant's knowledge of the presence of the contraband. Id. This knowledge may be inferred from either the exclusive control over the premises containing the contraband or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant's knowledge of the contraband's presence. Id. Some possible examples of such circumstances include (1) incriminating statements; (2) attempting to leave or making furtive gestures; (3) the location of contraband like drugs in settings suggesting manufacturing; (4) the item's proximity to the defendant; (5) the location of contraband within the defendant's plain view; and (6) the mingling of contraband with other items the defendant owns. Gray v. State, 957 N.E.2d 171, 175 (Ind. 2011). The issue is not ownership but possession. See Goliday, 708 N.E.2d at 6.
C.B. did not assert that he possessed a firearm for a purpose described in Ind. Code § 35-47-10-1.
[¶8] The record reveals that, when the police initiated the traffic stop of the Malibu, C.B. was seated in the backseat behind the front passenger seat. The State presented testimony that the black bag containing the pistol was found on the floorboard directly behind the front passenger seat and in the area where C.B.'s feet would be positioned. Officer Thorup testified the bag "was directly in between the legs of [C.B.]." Transcript Volume II at 47. The State also presented testimony regarding the movement of the occupants of the Malibu before they were asked to exit the vehicle and their display of nervous behavior after they exited the vehicle. In light of the record, including the proximity of the firearm and its position relative to C.B., the evidence most favorable to the judgment shows that he had the capability to maintain control of the contraband and knew of its presence. Based upon the record, we conclude that the State presented evidence of a probative nature from which a reasonable trier of fact could find that C.B. committed dangerous possession of a firearm.
[¶9] For the foregoing reasons, we affirm the court's adjudication of C.B. as a delinquent.
[¶10] Affirmed.
Mathias, J., and Kenworthy, J., concur.