James Dean Childers v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 29 2019, 10:59 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy Noe Dudas Curtis T. Hill, Jr.
Richmond, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Dean Childers, May 29, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2956
v. Appeal from the Wayne Circuit
Court
State of Indiana, The Honorable David A. Kolger,
Appellee-Plaintiff. Judge
Trial Court Cause No.
89C01-1702-F5-21
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019 Page 1 of 7
STATEMENT OF THE CASE
[1] Appellant-Defendant, James Childers (Childers), appeals following his
conviction for carrying a handgun without a license, a Level 5 felony, Ind.
Code §§ 35-47-2-1(a); -(e)(2)(B).
[2] We affirm.
ISSUE
[3] Childers presents one issue on appeal, which we restate as: Whether the State
produced sufficient evidence to prove beyond a reasonable doubt that he carried
a handgun without a license.
FACTS AND PROCEDURAL HISTORY
[4] In January 2017, Childers was staying in the home of a long-time family friend,
John Mills (Mills), in Cincinnati, Ohio. Childers brought a black backpack
with him to Cincinnati. Unbeknownst to Mills, Childers also brought a black,
nine-millimeter Smith & Wesson handgun with him into Mills’ home. Because
of his own criminal history, Mills was not allowed to have firearms in his
home. After observing Childers with the handgun on multiple occasions, Mills
told Childers that he would have to dispose of the handgun or leave his home.
Childers was adamant about not parting with the handgun.
[5] Mills had also learned that Childers had an active warrant for his arrest in an
unrelated criminal matter in Wayne County, Indiana. Mills contacted the
Richmond Police Department and advised that he would be driving Childers to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019 Page 2 of 7
Childers’ father’s home in Richmond on January 23, 2017. Before leaving for
Richmond, Mills observed Childers place Childers’ black backpack in Mills’
SUV. Mills asked Childers if he had disposed of the handgun, and Childers
replied that he had not. Mills directed Childers to place the black backpack in
the back of the SUV, out of arm’s reach.
[6] Officers intercepted Mills’ SUV in Richmond. After taking Childers into
custody on the active arrest warrant, an officer asked Mills if there were any
weapons in the SUV. Mills informed the officer that there was a handgun in
the black backpack. The officer retrieved the backpack and readily observed the
outline of a handgun in its front pocket. The officer removed the handgun,
which was loaded, to secure it. The investigating officer obtained a search
warrant for the backpack, the search of which yielded clothing belonging to
Childers and a letter addressed to Childers enclosing a pre-paid debit card with
Childers’ name on it.
[7] On February 3, 2017, the State filed an Information, charging Childers with
Class A misdemeanor carrying a handgun without a license. In a separate
Information the State alleged that Childers had a previous Level 6 felony
conviction for battery which enhanced the instant offense to a Level 5 felony.
On October 30 and 31, 2018, the trial court conducted Childers’ jury trial.
Mills testified that he did not own a gun, did not own the black backpack found
in his SUV, had no bags or luggage of his own in the SUV, and that none of the
clothing or other items found in the black backpack were his. Mills identified
the handgun found in the backpack as the handgun he had previously seen in
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019 Page 3 of 7
Childers’ possession. Mills identified a shirt found in the backpack as having
been worn by Childers when he stayed at Mills’ home.
[8] The jury found Childers guilty of Class A misdemeanor carrying a handgun
without a license. Childers then pleaded guilty to the enhancement of having a
prior felony conviction. On November 26, 2018, the trial court entered
judgment of conviction on the offense as a Level 5 felony and sentenced
Childers to five years and 182 days.
[9] Childers now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] Childers challenges the evidence supporting his conviction. It is well-
established that when we review the sufficiency of the evidence to support a
conviction, we consider only the probative evidence and reasonable inferences
supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not
our role as an appellate court to assess witness credibility or to weigh the
evidence. Id. We will affirm the conviction unless no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt. Id.[11] The carrying a handgun without a license statute provides, in relevant part, that
“a person shall not carry a handgun in any vehicle or on or about the person’s
body without being licensed under this chapter to carry a handgun.” I.C. § 35-
47-2-1(a). In the absence of actual possession, the State may prove the offense
by showing that a defendant constructively possessed the handgun. Grim v.
State, 797 N.E.2d 825, 830 (Ind. Ct. App. 2003) (collecting cases wherein our
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019 Page 4 of 7
supreme court applied constructive possession analysis to handgun offenses). If
a person does not have direct physical control over an item, he constructively
possesses it if he has the capability to maintain dominion and control over it
and he intends to maintain dominion and control over it. Negash v. State, 113
N.E.3d 1281, 1291 (Ind. Ct. App. 2018). Where a defendant has exclusive
possession of the premises where the item was found, an inference arises that he
knew of the presence of the item and was capable of controlling it. Id.However, if possession of the premises is not exclusive, the inference arises only
if additional circumstances indicate the defendant’s knowledge of the item and
the ability to control it. Id. Examples of these additional circumstances include
incriminating statements by the defendant, attempted flight or furtive gestures, a
drug manufacturing setting, proximity of the defendant to the item, whether the
item is in plain view, and other items belonging to the defendant in close
proximity to the item. Id. These are merely examples of additional
circumstances which may show constructive possession. Cannon v. State, 99
N.E.3d 274, 279-80 (Ind. Ct. App. 2018), trans. denied. Other circumstances
may just as reasonably demonstrate the requisite knowledge and intent. Id.[12] Here, the evidence showed that Mills saw Childers with the handgun at issue in
his home and that Childers refused to abandon the handgun when directed to
do so by Mills. Mills observed Childers place the backpack containing the
handgun in the SUV. The outline of the handgun in the pocket of the bulging
backpack was readily apparent. Other items belonging to Childers were found
in the backpack, including his clothing and a letter addressed to him enclosing a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019 Page 5 of 7
pre-paid debit card with his name on it. Mills denied owning the handgun or
the backpack. Although possession of the SUV was not exclusive, as both Mills
and Childers were in it when it was stopped, we conclude that the additional
circumstances of Mills observing Childers place the backpack in the SUV, the
outline of the gun being readily apparent in the pocket of the backpack, and
Childers’ property being found in close proximity to the handgun permitted the
jury to conclude beyond a reasonable doubt that Childers knew the handgun
was in the SUV and that he had the ability and intent to control it. See Negash,
113 N.E.3d at 1291.
[13] Childers’ sole challenge to the sufficiency of the evidence is his contention that
the State was required to show that he controlled the SUV itself in order to
prove the offense. Childers relies on Cole v. State, 69 N.E.3d 552 (Ind. Ct. App.
2017), trans. denied, in which another panel of this court held that to
support a conviction for carrying a handgun in a vehicle, the
State is required to prove that: “(1) the defendant had control
over the vehicle, (2) the unlicensed handgun was found in a
vehicle, and (3) the defendant had knowledge of the weapons’
presence.” Henderson v. State, 715 N.E.2d 833, 835 n.2 (Ind.
1999).
Id. at 560. However, Henderson itself held that “when a car has multiple
passengers, a gun near a backseat passenger and no permit” a jury can infer
possession by the backseat passenger for purposes of a carrying a handgun
without a license conviction. Henderson, 715 N.E.2d at 837. In addition, the
Cole court held that the offense of carrying a handgun without a license may be
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019 Page 6 of 7
established where it is shown that “a handgun was found in a vehicle and that
the defendant had control of either the weapon or of the vehicle with knowledge of the
weapon’s presence.” Cole, 69 N.E.3d at 560 (quotation omitted and some
emphasis added). Thus, Cole and Henderson do not stand for the proposition
that the State may only prove the offense by establishing that the defendant
controlled the vehicle. Indeed, this court has held that, while a passenger’s
mere presence in a vehicle in which a handgun is transported does not establish
the offense, “this does not mean that a passenger in a car is precluded from
being prosecuted for the handgun offense.” Grim, 767 N.E.2d at 830-31. The
State established that Childers constructively possessed the handgun in question
while in Mills’ SUV, and the State was not required to also establish that
Childers controlled the SUV.
CONCLUSION
[14] Based on the foregoing, we conclude that the State proved beyond a reasonable
doubt that Childers carried a handgun without a license.
[15] Affirmed.
[16] Bailey, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2956 | May 29, 2019 Page 7 of 7