Opinion
22A-JV-2229
04-24-2023
K.T., Appellant-Respondent, v. State of Indiana, Appellee-Petitioner
ATTORNEY FOR APPELLANT Talisha Griffin Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Nicole D. Wiggins 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Ryan K. Gardner, Judge Trial Court Cause No. 49D10-2202-JD-1582
ATTORNEY FOR APPELLANT Talisha Griffin Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Nicole D. Wiggins Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
KENWORTHY, JUDGE.
Case Summary
[¶1] During a traffic stop, police officers found a handgun in a vehicle near where seventeen-year-old K.T. had been sitting. The trial court determined K.T. had committed the delinquent act of Class A misdemeanor dangerous possession of a firearm by a child. K.T. appeals, arguing the evidence cannot sustain the court's judgment. We reverse because there is insufficient evidence to show K.T. possessed the handgun.
Ind. Code § 35-47-10-5(a) (2014).
Facts and Procedural History
[¶2] On February 26, 2022, Trooper Ryan McKnight and Trooper Daniel Magnabosco of the Indiana State Police stopped a Chevrolet Suburban because it had an expired license plate and the driver was not wearing a seat belt. Michael Poindexter was the driver. K.T. sat in the front passenger seat, and an unidentified person sat in the back seat, behind K.T. Poindexter's father owned the vehicle.
[¶3] Trooper McKnight approached the driver-side window, and Trooper Magnabosco approached the front passenger-side window. Both officers smelled the odor of marijuana emanating from the vehicle and ordered all three occupants to step out.
[¶4] Trooper McKnight asked Poindexter if he had any weapons. Poindexter admitted he was carrying a handgun. The officer took the handgun, placed it on the driver's seat, and handcuffed Poindexter.
[¶5] Next, the officers gathered Poindexter, K.T., and the other passenger at the back of the vehicle and provided Miranda advisements. Poindexter then admitted he had marijuana on his person. The officers seized the marijuana and searched the vehicle. Trooper McKnight searched the passenger side of the vehicle as Trooper Magnabosco searched the driver side. They then traded sides and searched again to ensure they did not miss anything.
[¶6] Trooper McKnight was still a trainee officer, and he did not discover any contraband during his search of the Suburban's passenger side. But after the officers traded sides, Trooper Magnabosco found a handgun in a pocket on the front passenger-side door, near where K.T. had been sitting.
[¶7] On February 28, 2022, the State of Indiana filed a petition alleging K.T. was a delinquent child for two acts: (1) Class A misdemeanor dangerous possession of a firearm by a child; and (2) Class A misdemeanor carrying a firearm without a license, if the act had been committed by an adult.
[¶8] The court held a fact-finding hearing. During the hearing, K.T. asked Trooper Magnabosco if the firearm was "in plain sight" when he found it. Tr. Vol. 2 at 39. The officer responded, "[N]o, it was somewhat covered up by some trash in the door panel." Id. at 39-40.
[¶9] The trial court entered a true finding on the allegation of dangerous possession of a firearm by a child. But the court entered a not true finding on the allegation of carrying a firearm without a license. Later, the court held a dispositional hearing and placed K.T. on formal probation, to remain in his father's custody. This appeal followed.
Discussion and Decision
[¶10] When reviewing the sufficiency of the evidence in a juvenile delinquency case, we do not reweigh the evidence or judge witness credibility. B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). Instead, we review only the evidence and the reasonable inferences drawn from the evidence supporting the fact-finder's conclusion. Al-Saudv. State, 658 N.E.2d 907, 909 (Ind. 1995). We must determine whether there is substantial evidence of probative value from which a fact-finder could decide beyond a reasonable doubt the juvenile committed the act at issue. Id.
[¶11] Here, the State had to prove beyond a reasonable doubt (1) K.T. (2) a child (3) knowingly, intentionally, or recklessly (4) possessed a firearm (5) for any purpose other than those described in Indiana Code Section 35-47-10-1 (2014).I.C. § 35-47-10-5.
The exemptions set forth in Indiana Code section 35-47-10-1 include possessing firearms at a firearms safety course or while hunting. K.T. does not argue any of those exemptions apply to this case.
[¶12] K.T. argues there is insufficient evidence to prove he possessed the handgun the officers found in Poindexter's vehicle. The Indiana Supreme Court recognizes "both actual and constructive possession of weapons." Hoffman v. State, 520 N.E.2d 436, 437 (Ind. 1988). This case involves constructive possession. To prove constructive possession of contraband, the State must show the person had both the capability and the intent to maintain dominion and control over the item. Hardisterv. State, 849 N.E.2d 563, 573 (Ind. 2006).
[¶13] In this case, we focus on the question of intent because it is dispositive. When a person has non-exclusive control over the location where contraband is found, the fact-finder may infer intent to maintain dominion and control from additional circumstances proving the person "knew of the presence of the contraband." Id. at 574. The Indiana Supreme Court has identified a nonexhaustive list of circumstances that may prove intent:
(1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the accused's plain view, and (6) the mingling of the contraband with other items owned by the defendant.Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004).
[¶14] In B.R. v. State, 162 N.E.3d 1173, 1178 (Ind.Ct.App. 2021), the Court reversed the trial court's judgment of delinquency, determining there was insufficient evidence to prove the juvenile had constructively possessed a firearm officers discovered in a vehicle. The State alleged the juvenile had made furtive gestures and incriminating statements, but the Court determined there was insufficient evidence to support those allegations. Further, the firearm was not in the juvenile's plain view, because the officers found it in a hidden compartment. The State argued the juvenile sat closest to the firearm, but the Court concluded the juvenile's mere proximity to the firearm was insufficient proof of intent to exercise dominion and control over the weapon.
[¶15] Similarly, in D.C.C. v. State, 695 N.E.2d 1015, 1016-17 (Ind.Ct.App. 1998), the Court reversed the trial court's judgment of delinquency, determining there was insufficient evidence to prove the juvenile had constructively possessed the firearm officers had found in a vehicle. The firearm was under the juvenile's seat and not in plain view. No evidence showed the juvenile was aware of the firearm. The Court concluded proximity alone could not demonstrate the juvenile constructively possessed the firearm. See also Frasier v. State, 312 N.E.2d 77, 79 (Ind. 1974) (reversing a conviction of unlawful possession of a firearm; officers found the handgun on the seat where the defendant had been sitting, but only after he had exited the car and a gunfight had ensued).
[¶16] In contrast, in Deshazier v. State, 877 N.E.2d 200, 208 (Ind.Ct.App. 2007), trans. denied, the Court affirmed the defendant's conviction of unlawful possession of a firearm on a theory of constructive possession. Officers found the defendant sitting in a vehicle's driver's seat, repeatedly making furtive gestures toward his legs. After the officers removed the defendant and a passenger from the vehicle, the officers saw a handgun on the "front seat." Id. at 203. Next, the defendant fought with an officer and fled. The Court concluded the defendant "was in the best position to exercise control over the gun, and no evidence indicate[d] that the gun belonged to another person." Id. at 208. The Court further stated defendant's "acts of moving his hands towards his legs, resisting arrest, and fleeing all are factors considered in favor of finding constructive possession." Id.
[¶17] Also, in Person v. State, 661 N.E.2d 587, 590 (Ind.Ct.App. 1996), the Court determined the evidence was sufficient to support the defendant's conviction of unlawful possession of a firearm officers discovered in a vehicle. An officer approached the car and saw the defendant sitting in the back seat. The defendant placed his hand behind his back on the seat. After the officer removed the passenger from the vehicle, the officer saw the handle of a handgun sticking out of the seat the defendant had been occupying. The Court determined the defendant's furtive gestures, plus proximity to the firearm, were sufficient to establish intent to exercise dominion and control over the firearm.
[¶18] In K.T.'s case, he did not have exclusive dominion over the vehicle, so we must consider whether the circumstances, viewed in the light most favorable to the judgment, demonstrate he knew of the presence of the firearm in the vehicle. The facts of K.T.'s case are more like the facts in B.R. v. State and D.C.C. v. State than the facts in Deshazier v. State and Person v. State. For instance, the State presented no evidence K.T. made incriminating statements or furtive gestures during the traffic stop, and K.T. did not attempt to flee. Moreover, the officers found marijuana, but not in the vehicle and not in a manufacturing setting. And the firearm was not in K.T.'s plain view. Finally, the State failed to present evidence showing K.T. owned the trash that "somewhat covered" the firearm. Tr. Vol. 2 at 39; see Gee, 810 N.E.2d at 341 (noting that the mingling of the contraband with other items owned by the defendant may prove intent to exercise dominion and control over contraband).
[¶19] The State argues K.T. was "in the best position to exercise control over the weapon." Appellee's Br. at 8. The State further claims there is no evidence the firearm belonged to anyone else, pointing out K.T. was closest to the handgun. Even so, "[c]ontraband found in close proximity to the [person], but not in [the person's] plain view, is insufficient, by itself, to infer the [person's] knowledge of the contraband's presence." Holmes v. State, 785 N.E.2d 658, 661 (Ind.Ct.App. 2003) (affirming a conviction for unlawful possession of marijuana; the evidence showed the defendant had been sitting in a vehicle closest to the contraband, but he also tried to flee during the traffic stop).
[¶20] The State also cites Taylor v. State, 482 N.E.2d 259, 260 (Ind. 1985), and Bradshaw v. State, 818 N.E.2d 59, 63 (Ind.Ct.App. 2004), to support its claim the evidence proved K.T. knew the firearm was present in the vehicle. Both cases addressed the discovery of a firearm in a vehicle, but they involved different circumstances than K.T.'s case. Most importantly, in both cases, the firearm was in the accused's plain view when an officer investigated the vehicle. See Taylor, 482 N.E.2d at 260; Bradshaw, 818 N.E.2d at 63. Yet in K.T.'s case, the State failed to elicit testimony that the firearm was visible from K.T.'s vantage as a passenger. And Trooper McKnight did not discover the firearm during his search of the passenger side of the vehicle. All in all, the evidence is insufficient to demonstrate K.T.'s knowledge of the firearm's presence. Consequently, we cannot sustain the trial court's true finding that K.T. possessed the firearm.
Conclusion
[¶21] For the reasons stated above, we reverse the trial court's judgment.
[¶22] Reversed.
Robb, J., and Crone, J., concur.