Charles Johnson v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 27 2018, 9:06 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott H. Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles Johnson, July 27, 2018
Appellant-Defendant, Court of Appeals Case No.
71A03-1712-CR-2948
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff Marnocha, Judge
Trial Court Cause No.
71D02-1706-F4-30
May, Judge.
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[1] Charles Johnson appeals his conviction of Level 4 felony unlawful possession of
a firearm by a serious violent felon. 1 He asserts the State did not present
sufficient evidence he constructively possessed the firearm. We affirm.
Facts and Procedural History
[2] In the early morning hours of June 13, 2017, South Bend Police Officers David
Boutsomsy and Brandon Martin were parked at a gas station when they saw a
tan Ford Explorer pull into the parking lot and then, without anyone exiting or
entering the vehicle, quickly pull back out. The officers followed the Explorer,
observed the driver fail to use a turn signal, and noted the vehicle did not have a
properly lit license plate.
[3] Once Officer Boutsomsy activated his lights to initiate a traffic stop, the
Explorer sped away. The officers pursued the Explorer until it crashed into a
tree. The officers saw both the driver and passenger exit the Explorer and flee
on foot. Officer Boutsomsy chased them but, when they split up, he followed
the passenger, who was later identified as Johnson. Officer Boutsomsy caught
up with Johnson as Johnson started kicking and pounding on the door of a
nearby apartment. Johnson was arrested. Johnson first gave his name as
“Carlos Smith” (Tr. Vol. 3 at 36), and claimed he was seventeen years old and
preparing to enter the military. He also claimed he had not been in the
1
Ind. Code § 35-47-4-5 (2016).
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Explorer but rather had been sitting at a picnic table with his girlfriend when he
saw the wreck.
[4] During the investigation, officers discovered the Explorer had been reported
stolen the day before. Officers found two guns in the vehicle - a .22 caliber rifle
leaning against the front passenger seat and a Colt .380 caliber handgun
between the console and front passenger seat. The owner of the Explorer
testified no firearms were in the vehicle when it was stolen.
[5] The State charged Johnson with Level 4 felony unlawful possession of a firearm
by a serious violent felon. On September 26, 2017, a jury trial commenced.
Johnson admitted to being in the passenger seat but claimed he did not see the
firearms. Johnson claimed he had run and had given false information because
he was on probation and thought he would get in more trouble.
[6] Ashley Nailon, Johnson’s sister, testified Travion Smith had been driving the
Explorer earlier in the evening and had given Johnson a ride to the grocery
store. When Nailon and her family could not locate Johnson the next day,
Nailon confronted Smith. Nailon testified Smith told her that he “had to leave
[his] guns. [He] had two guns in the car.” (Tr. Vol. 4 at 20.) The State
questioned Nailon as to why she had not come forward with this information
before the day of the trial. Nailon stated she had told Johnson’s attorney but
that he later told her “he didn’t recall [her] telling him every little bitty thing.”
(Id. at 24.) She also stated she had not disclosed this information to the State
even though she was allowed to ask defense counsel if she could.
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[7] The jury found Johnson guilty. The trial court sentenced Johnson to twelve
years on the firearm conviction, with eight years executed and four years
suspended to probation. Because the conviction violated the terms of Johnson’s
probation in a prior case, the trial court also revoked his probation therein and
ordered him to serve eight years, with six years executed and two years
suspended to probation, consecutive to the new firearm sentence.
Discussion and Decision
[8] When reviewing sufficiency of the evidence in support of a conviction, we will
consider only probative evidence in the light most favorable to the trial court’s
judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The
decision comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the fact-finder. Id. We do not assess the
credibility of the witnesses or reweigh the evidence in determining whether the
evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal
is appropriate only when no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence and is sufficient
if an inference reasonably may be drawn from it to support the verdict. Id. at
147.
[9] Johnson contends the State did not present sufficient evidence to allow the jury
to make a reasonable inference he constructively possessed either firearm
because the vehicle, in which Johnson was a passenger, was not under
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Johnson’s control or dominion, Johnson made no furtive movements in the
vehicle prior to fleeing, and Johnson did not make any incriminating statements
about possessing either firearm. The State counters that not only did it present
sufficient evidence Johnson constructively possessed the firearm but also
sufficient evidence he actually possessed them due to the proximity of the
firearms to Johnson’s location in the vehicle, Johnson’s flight from the vehicle,
and Johnson’s false information regarding his name, age, and whereabouts
during the car crash.
[10] Possession of an item may be either actual or constructive. Henderson v. State,
715 N.E.2d 833, 835 (Ind. 1999). “Actual possession occurs when a person has
direct physical control over the item.” Id. Constructive possession occurs when
someone has “the intent and capability to maintain dominion and control over
the item.” Id. Possession may be exclusive or joint. Joint possession can be
shown without proof the “defendant had actual physical control” of the item in
question. Godar v. State, 643 N.E.2d 12, 14 (Ind. Ct. App. 1994), reh’g denied,
trans. denied. If non-exclusive, however, the State must prove the defendant had
actual knowledge of the firearm and the illegal character of possessing it. Id.[11] Additional circumstances that support finding a defendant had the intent and
capability to maintain dominion and control over contraband kept in non-
exclusive premises include: “(1) incriminating statements by the defendant; (2)
attempted flight or furtive gestures; (3) proximity of the firearm to the
defendant; (4) location of the firearm within the defendant’s plain view; and (5)
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the mingling of a firearm with other items owned by the defendant.” Causey v.
State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004).
[12] Although the State argues it proved actual possession, Johnson only addresses
constructive possession. When Nailon made her at-trial revelation that Smith
admitted owning the guns, the trial court had a discussion with counsel during
which the court opined the State was not precluded from arguing joint
possession by the passenger and driver. (See Tr. Vol. 4 at 7-8.) In its closing,
the State specifically defined actual and constructive possession and told the
jury constructive possession “is what the defendant is guilty of; [sic] he had
knowledge.” (Id. at 81.) Therefore, we will analyze whether the State provided
evidence beyond a reasonable doubt that Johnson and the driver jointly
possessed the firearms constructively.
[13] Here, Crime Scene Technician Paul Daley testified to photo-documenting the
scene. The State introduced photo evidence of the passenger seat showing
some items in the seat and in the floorboard along with a long gun propped
against the front of the passenger seat nearest the console and a handgun
shoved between the passenger seat and the console. A subsequent photo
showed the handgun on the passenger seat. Technician Daley testified that
after the handgun had been removed from between the seat and console, he
“placed it on the seat so [he] could get a better picture of it.” (Tr. Vol. 3 at 52.)
Technician Daley testified his photo-documentation of the scene occurs “prior
to anybody being around it, and just documenting the scene as it is presented to
[him].” (Id. at 51.)
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[14] Although Nailon testified Smith had said the guns were his, that does not
preclude either 1) the jury’s disbelief of her statements or 2) joint possession of
the firearms. See Henderson v. State, 715 N.E.2d 833, 836-37 (Ind. 1999)
(comparison of different constructive possession cases wherein proximity to the
firearm weighed heavily in the calculus of possession, such that if the firearm
was in the trunk, the defendant was not “carrying” it but if three firearms were
under the three respective seats of the defendants, it was reasonable to infer
each possessed one). Therefore, even if Nailon was testifying truthfully about
statements by Smith and even if Smith was truthful the guns belonged to him, it
was not unreasonable for the jury to infer Johnson had non-exclusive
constructive possession over one or both firearms due to the proximity of the
firearms to where Johnson admitted he was sitting in the vehicle.
[15] Johnson did not make incriminating statements about the firearms but he did
flee the scene, both firearms were in close proximity to Johnson, and the rifle
was in plain sight. Johnson’s arguments that he fled only because he was on
probation are a request for us to reweigh the evidence, which we cannot do. See
Drane, 867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the
credibility of witnesses). The State presented evidence the firearms were
located near or on the passenger seat where Johnson admitted he was sitting.
Johnson’s arguments the police placed the rifle in the passenger seat floorboard
is an invitation for us to reweigh the evidence, which we cannot do. See id. We
conclude the State presented sufficient evidence Johnson had joint constructive
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possession of the firearms. 2 See Deshazier v. State, 877 N.E.2d 200, 208 (Ind. Ct.
App. 2007) (constructive possession of a handgun based on Deshazier’s furtive
gestures, flight from officer, and sitting on the gun), trans. denied.
Conclusion
[16] The State presented sufficient evidence Johnson committed Level 4 felony
unlawful possession of a firearm by a serious violent felon based on a theory of
non-exclusive constructive possession. Accordingly, we affirm.
[17] Affirmed.
Riley, J., and Mathias, J., concur.
2
If preponderance of evidence supporting an allegation of the commission of a new crime is presented, even
without conviction of a new crime, we will affirm the revocation of probation. Richeson v. State, 648 N.E.2d
384, 389 (Ind. Ct. App. 1995), reh’g denied, trans. denied. One violation of a condition of probation is enough
to support a probation revocation. Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997). As the State
presented sufficient evidence Johnson committed the new crime under the heightened standard of beyond a
reasonable doubt, sufficient evidence was presented to support the revocation of Johnson’s probation under a
preponderance of the evidence standard; therefore, we need not address Johnson’s arguments to reverse his
probation revocation based on insufficient evidence to support this conviction. See Henderson v. State, 544
N.E.2d 507, 512 (Ind. 1989) (affirmed trial court proceeding of combined sentencing and probation
revocation wherein trial court took judicial notice of conviction of new crime to support probation
revocation).
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