Opinion
24A-CR-1328
12-17-2024
Jimearle Davis, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT STEVEN R. KNECHT TIPPECANOE PUBLIC DEFENDER'S OFFICE LAFAYETTE, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA KATHY J. BRADLEY 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tippecanoe Circuit Court The Honorable Sean M. Persin, Judge Trial Court Cause No. 79C01-2106-F4-21
ATTORNEY FOR APPELLANT STEVEN R. KNECHT TIPPECANOE PUBLIC DEFENDER'S OFFICE LAFAYETTE, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA KATHY J. BRADLEY DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Mathias, Judge.
[¶1] Jimearle Davis, Jr., appeals his conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon following a bench trial. Davis presents a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction.
[¶2] We affirm.
Facts and Procedural History
[¶3] In June 2021, Officers Keifer Mikels and Jeremy Kennedy with the Lafayette Police Department were looking for Davis because he had an outstanding warrant for his arrest. They learned that Davis was staying in Room 240 at a local Motel 6, and they knocked on the door. Davis answered the door, but he gave his name as "J[ay] Adams." Tr. pp. 66, 136. Davis then closed and locked the door. While the door was open, the officers smelled the odor of raw marijuana. The officers requested additional officers for their safety. In the meantime, they waited outside the motel room.
[¶4] After a "few minutes," Davis "made verbal contact" with the officers and stated that he would come out of the room. Id. at 29. After Davis exited the motel room, someone inside the room locked the door. Officer Kennedy placed Davis in handcuffs. Davis told the officers that he had rented the motel room and that there were two women still inside. Given the odor of marijuana, Officer Mikels asked Davis for permission to search the room, but Davis declined. Officer Kennedy then transported Davis to jail.
[¶5] Officer Mikels and supporting officers waited outside Davis's motel room, and, a short time later, two people, a man and a woman, exited the room. The man identified himself as Niree Brown and the woman identified herself as Charlie Moore. Officers detained Brown and Moore and transported them to jail. An officer found marijuana on Moore's person.
[¶6] Officers obtained and executed a search warrant for Davis's motel room. During that search, they found two firearms inside the toilet tank. Officers also found a duffel bag with a "30 round AR magazine" inside of it. Id. at 84. Forensic testing later revealed that DNA found on one of the firearms, an "AR pistol," was a "very strong" match with Davis's DNA. Id. at 112.
[¶7] The State charged Davis with Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony carrying a handgun without a license, and Class A misdemeanor carrying a handgun without a license. Following a bench trial, the trial court found Davis guilty on all three counts, but the court only entered judgment of conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon. The trial court sentenced Davis to seven years in the Indiana Department of Correction. This appeal ensued.
Discussion and Decision
[¶8] Davis contends that the State presented insufficient evidence to support his conviction. Our standard of review is well settled. For challenges to the sufficiency of the evidence, we consider only the probative evidence and the reasonable inferences therefrom that support the judgment of the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will neither reweigh the evidence nor judge witness credibility. Id. We will affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.
[¶9] To support Davis's conviction for Level 4 unlawful possession of a firearm by a serious violent felon as charged, the State was required to show beyond a reasonable doubt that Davis, having previously committed a serious violent felony (Level 5 felony robbery), knowingly or intentionally possessed a firearm. Ind. Code § 35-47-4-5. Davis's sole contention on appeal is that the State did not prove that he constructively possessed a firearm. Davis is incorrect.
[¶10] It is well-established that possession of an item may be either actual or constructive. See, e.g., Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). Constructive possession occurs when a defendant has: (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it. Id. The capability element of constructive possession may be met when the State shows that the defendant is "in possession of the premises," regardless of whether his "possession of the premises is exclusive or not." Id. at 340-41. When that possessory interest is not exclusive, however, the State must support this second inference with additional circumstances pointing to the defendant's knowledge of the presence and the nature of the item. Gray v. State, 957 N.E.2d 171, 174-75 (Ind. 2011). We have previously identified some possible examples, including (1) a defendant's incriminating statements; (2) a defendant's 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. Id.
[¶11] During Davis's trial, Moore testified that she, Davis, and Brown had been staying in the motel room for two days. She testified further that the AR pistol belonged to Brown and the other firearm was hers. But Moore also testified that Davis had rented the motel room and that he knew the guns were there. Also at trial, Kimberly Anderson, a forensic biologist, testified that the DNA testing on parts of the AR pistol, including the handle, provided "very strong support for the inclusion of" Davis as having handled the firearm. Tr. p. 110. Anderson explained that "['v]ery strong support['] is the top of the verbal scale . . . that the lab uses." Id. at 112.
[¶12] The State is correct that the evidence that Davis had rented and paid for the motel room meant that he had a possessory interest in it, which supports a reasonable inference that he had the capability to maintain dominion and control of the firearms found in the room. See Gee, 810 N.E.2d at 341. In addition, Davis gave a false name when he first answered the motel room door, which was furtive behavior. See Gray, 957 N.E.2d at 175. And the evidence, namely, Moore's testimony and the DNA evidence, shows that Davis knew the firearms were in the motel room and that Davis had physically handled the AR pistol specifically. Davis's argument on appeal is a request that we reweigh the evidence, which we will not do.
[¶13] For all these reasons, the State presented sufficient evidence to support Davis's conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon.
[¶14] Affirmed.
Brown, J., and Kenworthy, J., concur.