Lamontae J. White v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 23 2017, 9:26 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Randy M. Fisher Curtis T. Hill, Jr.
Leonard, Hammond, Thoma & Terrill Attorney General of Indiana
Fort Wayne, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lamontae J. White, June 23, 2017
Appellant-Defendant, Court of Appeals Case No.
02A05-1702-CR-304
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1603-F4-21
Najam, Judge.
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Statement of the Case
[1] Lamontae White appeals his conviction for unlawful possession of a firearm by
a serious violent felon, a Level 4 felony, following a jury trial. White presents
the following issues for our review:
1. Whether the State presented sufficient evidence to support
his conviction.
2. Whether the trial court abused its discretion when it
sentenced him.
3. Whether his sentence is inappropriate in light of the nature
of the offense and his character.
We affirm.
Facts and Procedural History
[2] On January 7, 2016, at approximately 9:00 p.m., Timothy Swift was driving his
grandmother’s car in Fort Wayne, with his brother Timon Swift sitting in the
front passenger seat and White sitting in the back seat behind Timothy. Fort
Wayne Police Department (“FWPD”) Detective David Wilkins initiated a
traffic stop when he saw that the car’s license plate had expired. As Detective
Wilkins approached the driver’s side of the car, FWPD Officer Matthew Foote
arrived at the scene and approached the passenger’s side of the car. The
occupants identified themselves, and Timothy told the officers that his driver’s
license was suspended. The officers then instructed all three men to exit the
car, and the officers conducted pat-down searches of the men.
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[3] Because Timon’s driver’s license was suspended and the car’s license plate had
expired, the officers conducted an inventory search of the car in preparation to
have it towed. During the search, Detective Wilkins found a baggie containing
what appeared to be marijuana between the front passenger seat and the middle
console. Detective Wilkins also found a silver Ruger handgun on top of a red
notebook on the floor under the “rear portion of the front passenger’s seat.” Tr.
at 32. The slide on the handgun was in the forward position, “covering the
barrel.” Id. at 33. Officers also found clothing and shoes in the backseat.
White initially denied that the clothing and shoes belonged to him, but he later
admitted that they were his. In addition, officers observed that there was a
drawer underneath the front passenger seat that obstructed access to the rear of
the floor of the seat. And officers found a large piece of Styrofoam wedged
behind the driver’s seat area that obstructed the driver from accessing the back
seat area of the car. The officers placed all three men in handcuffs and
transported them to the police station. The men denied any knowledge of the
handgun found in the car.
[4] On January 13, Timothy went to the police station and told Officer Foote that
the handgun belonged to him. However, after a latent fingerprint examiner
with the FWPD found White’s partial palm print on the barrel of the Luger
handgun, on March 4, the State charged White with unlawful possession of a
firearm by a serious violent felon, a Level 4 felony, and carrying a handgun
without a license, as a Level 5 felony. The State dismissed the Level 5 felony
charge prior to trial, and a jury found White guilty of the remaining charge.
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The trial court entered judgment of conviction and sentenced White to twelve
years executed. This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence
[5] White first contends that the State failed to present sufficient evidence to
support his conviction. Our standard of review on a claim of insufficient
evidence is well-established:
When reviewing a claim that the evidence introduced at trial was
insufficient to support a conviction, we consider only the
probative evidence and reasonable inferences that support the
trial court’s finding of guilt. Drane v. State, 867 N.E.2d 144 (Ind.
2007). We likewise consider conflicting evidence in the light
most favorable to the trial court’s finding. Wright v. State, 828
N.E.2d 904 (Ind. 2005). It is therefore not necessary that the
evidence overcome every reasonable hypothesis of innocence.
Drane, 867 N.E.2d at 147. Instead, we will affirm the conviction
unless no reasonable trier of fact could have found the elements
of the crime beyond a reasonable doubt. Jenkins v. State, 726
N.E.2d 268, 270 (Ind. 2000).
Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011) (footnote omitted).
[6] To convict White of unlawful possession of a firearm by a serious violent felon,
a Level 4 felony, the State was required to show that he, a serious violent felon,
knowingly or intentionally possessed a firearm. Ind. Code § 35-47-4-5 (2015).
White’s sole contention on appeal is that the evidence is insufficient to prove
that he possessed a firearm. We cannot agree.
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[7] Possession can be actual or constructive. A person constructively possesses
contraband when the person has (1) the capability to maintain dominion and
control over the item, and (2) the intent to maintain dominion and control over
it. Id. There is no question that White had the capability to maintain dominion
and control over the firearm inside the car, as it was within his reach. Holmes v.
State, 785 N.E.2d 658, 661 (Ind. Ct. App. 2003). Thus, we turn to whether a
reasonable fact-finder could conclude on these facts that White had the intent to
possess that contraband.
[8] For such issues, our ultimate question is “whether a reasonable fact-finder
could conclude from the evidence that the defendant knew of the nature and
presence of the contraband.” Johnson v. State, 59 N.E.3d 1071, 1074 (Ind. Ct.
App. 2016). We have previously enumerated several nonexhaustive facts that
the fact-finder might consider where, as here, a defendant’s possession of the
premises in which the contraband is found is not exclusive:
(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 defendant’s plain view, and (6) the mingling of the
contraband with other items owned by the defendant.
Wilkerson v. State, 918 N.E.2d 458, 462 (Ind. Ct. App. 2009).
[9] We agree with the State that a reasonable fact-finder could have concluded that
White knew of the nature and presence of the firearm under the front passenger
seat of the car. First, White’s partial palm print was found on the barrel of the
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gun, which was covered by the slide when officers found the gun under the seat.
Second, the front seat passenger could not readily access the location where the
gun was found because there was a fixed drawer under the seat between the
front and back of the floor underneath the seat. Third, the driver could not
readily access the location where the gun was found because there was a large
piece of Styrofoam blocking the driver’s access to the back seat area of the car.
Fourth, White was sitting in the back seat and had easy access to the area
underneath the front passenger seat. Fifth, White’s clothing and shoes were
found in the back seat near the gun. Sixth, White made an incriminating
statement when he initially denied that the clothing and shoes were his but later
admitted that they belonged to him. And seventh, while Timothy testified that
he had thrown the gun into the back seat after he saw the officers following the
car,1 the officers testified that they did not see anyone throw anything into the
back seat. We conclude that the State presented sufficient evidence from which
a reasonable fact-finder could conclude that White constructively possessed the
handgun.
Issue Two: Abuse of Discretion in Sentencing
[10] White also contends that the trial court abused its discretion when it sentenced
him. Generally, sentencing decisions are left to the sound discretion of the trial
court, and we review its decision only for an abuse of that discretion. Singh v.
1
The officers found the gun neatly placed on top of the red notebook, which indicates that it had not been
thrown there but had been placed there.
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State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied. “An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the trial court.” Id.One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the
trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.
Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (“Anglemyer I”) (internal
quotation marks and citations omitted), clarified on reh’g, 875 N.E.2d 218(“Anglemyer II”).
[11] White maintains that the trial court abused its discretion when it did not
consider his bad childhood and current family support as mitigators. An
allegation that the trial court failed to identify or find a mitigating factor
requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Anglemyer I, 868 N.E.2d at 493.
Further, “‘[i]f the trial court does not find the existence of a mitigating factor
after it has been argued by counsel, the trial court is not obligated to explain
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why it has found that the factor does not exist.’” Id. (quoting Fugate v. State,
608 N.E.2d 1370, 1374 (Ind. 1993)).
[12] Here, White has not demonstrated either that the proffered mitigators are
significant or that they are clearly supported by the record. With regard to his
bad childhood, White directs us to his mother’s statement at sentencing where
she briefly mentioned that White’s father was verbally and physically abusive
and that she raised White and his siblings in “house-to-house situations” that
“tarnished [White] a lot.” Tr. at 156. With regard to his current family
support, White directs us to his defense counsel’s statement to the trial court at
sentencing that there were “a number of friends and family members” in the
courtroom. Id. at 155. White does not cite to any evidence that he has support
from friends and family outside of the courtroom. White has not demonstrated
that the trial court abused its discretion when it did not find his bad childhood
and family support to be mitigating circumstances.
Issue Three: Appellate Rule 7(B)
[13] Finally, White contends that his sentence is inappropriate in light of the nature
of the offense and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court
to “revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and
the character of the offender.” We assess the trial court’s
recognition or nonrecognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
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App. 2006). The principal role of appellate review is to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). A defendant must persuade the appellate court that his or
her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[14] White asserts that the nature of the offense “is certainly not the most egregious
seen by this Court.” Appellant’s Br. at 22. He maintains that he was arrested
after a “simple traffic stop” and he had not attempted to use the handgun “in
any sort of violent manner” at the time. Id. at 22-23. But the State points out
that White possessed the fully loaded handgun while he was “still on supervised
release” for a federal conviction for unlawfully possessing a firearm. Appellee’s
Br. at 14. We cannot say that White’s twelve-year sentence is inappropriate in
light of the nature of the offense.
[15] White also maintains that his sentence is inappropriate in light of his character.
White acknowledges that his juvenile and adult criminal histories are
“significant.” Appellant’s Br. at 23. Still, he asserts that most of his juvenile
adjudications and two of his six adult convictions were for non-violent offenses.
And White contends that his “character can be gleaned from his
correspondence to the trial court, as well as the two character witnesses [who]
testified on his behalf at the sentencing hearing.” Id. However, not only is
White’s criminal history significant, but this is his third conviction related to the
illegal possession of a firearm. Again, he was on supervised release for a federal
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firearm possession conviction at the time of the instant offense. We cannot say
that Smith’s sentence is inappropriate in light of his character.
[16] Affirmed.
Riley, J., and Bradford, J., concur.
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