David Johnny Cross v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 12 2019, 6:50 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
Scott H. Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Johnny Cross, June 12, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2499
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff. Marnocha, Judge
Trial Court Cause Nos.
71D02-1403-FC-64
71D02-1510-F5-227
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2499 | June 12, 2019 Page 1 of 6
Statement of the Case
[1] David Johnny Cross (“Cross”) appeals his conviction following a jury trial of
Level 5 felony carrying a handgun without a license.1 He argues that there is
insufficient evidence to support his conviction. Concluding that the evidence is
sufficient, we affirm Cross’ conviction.
[2] We affirm.
Issue
Whether there is sufficient evidence to support Cross’ conviction.
Facts
[3] The facts most favorable to the verdict reveal that the trial court issued a bench
warrant for Cross’ arrest in March 2015. Seven months later, Cross was still at
large. South Bend Police Department officers noticed Cross’ car parked in front
of a house. Two officers who were assigned to watch Cross’ car and the house
noticed Cross leave the house carrying a drawstring bag.
[4] Cross got into the front passenger seat of Dornisha Wallace’s (“Wallace”) car
and Wallace drove away from the house. Cross placed the drawstring bag at
his feet when he got into the car. In the first two to three minutes that Cross
1
IND. CODE § 35-47-2-1.
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was in the car, Wallace saw him bend down near the bag, but she could not see
what he was doing.
[5] Police officers followed the car, and they noticed Cross moving around in the
passenger seat and looking out the back window at them. Cross told Wallace to
pull over into a parking lot to see what the officers would do. As the officers
surrounded Wallace’s car, Cross exited the vehicle without being asked to do
so. One of the officers placed Cross in the back of a police car. When an
officer asked Cross what he would find in the car, Cross responded, “maybe a
gun.” (Tr. at 64). A search of the vehicle revealed a handgun under the front
passenger’s seat. The gun’s grip was facing forward, and the gun was located
next to Cross’ bag.
[6] Wallace told the officers that the gun did not belong to her and that she had
never seen it. She further explained that she had just purchased the car two to
three days before and she had cleaned and vacuumed under all the seats at that
time. She had found nothing under the seats. Cross was the first person to ride
in the front passenger seat.
[7] A jury convicted Cross of Level 5 felony carrying a handgun without a license.
He now appeals.
Decision
[8] Cross argues that there is insufficient evidence to support his conviction for
Level 5 felony carrying a handgun without a license. Specifically, he contends
that there is insufficient evidence that he constructively possessed the handgun.
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Our standard of review for sufficiency of the evidence claims is well settled.
We consider only the probative evidence and reasonable inferences supporting
the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not
reweigh the evidence or judge witness credibility. Id. We will affirm the
conviction unless no reasonable fact finder could find the elements of the crime
proven beyond a reasonable doubt. Id. The evidence is sufficient if an
inference may be reasonably drawn from it to support the verdict. Id. at 147.
[9] In order to convict Cross of Level 5 felony carrying a handgun without a
license, the State had the burden to prove beyond a reasonable doubt that Cross
carried a handgun without a license in a vehicle or on or about his person after
having previously been convicted of a felony within fifteen years. See IND.
CODE § 35-47-2-1. To satisfy these elements, the State must prove the
defendant had either actual or constructive possession of the handgun. Negash
v. State, 113 N.E.3d 1281, 1291 (Ind. Ct. App. 2018). Actual possession occurs
when a person has direct physical control over an item, whereas constructive
possession occurs when a person has the intent and the capability to maintain
dominion and control over the item. Id.
[10] To fulfill the intent element of constructive possession, the State must
demonstrate the defendant’s knowledge of the presence of the firearm. Griffin v.
State, 945 N.E.2d 781, 783 (Ind. Ct. App. 2011). In cases where the accused
has exclusive possession of the premises on which the contraband is found, an
inference is permitted that he knew of the presence of the contraband and was
capable of controlling it. Id. see also Causey v. State, 808 N.E.2d 139, 143 (Ind.
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Ct. App. 2004) (explaining that knowledge may be inferred from exclusive
dominion and control over the premises containing the firearm). Where the
control is non-exclusive, knowledge may be inferred from evidence of
additional circumstances pointing to the defendant’s knowledge of the presence
of the firearm. Causey, 808 N.E.2d at 143. These additional circumstances may
include: (1) incriminating statements made 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) the mingling
of a firearm with other items owned by the defendant. Deshazier v. State, 877
N.E.2d 200, 206 (Ind. Ct. App. 2007), trans denied. To fulfill the capability
requirement of constructive possession, the State must demonstrate that the
defendant had the ability to reduce the firearm to his personal possession.
Griffin, 945 N.E.2d at 783.
[11] Here, our review of the evidence reveals that the handgun was under Cross’ seat
next to his bag and easily within his reach. Cross was therefore able to reduce
the handgun to his personal possession. Further, although Cross did not have
exclusive possession of the vehicle where the handgun was found, there were
additional circumstances proving Cross’ knowledge of the presence of the
handgun and his ability to control it. First, Cross made an incriminating
statement to the officers that they might find a gun in Wallace’s car. The police
officers noticed Cross moving around in the car and looking back at them. The
gun was found under the front passenger seat next to Cross’ bag. Cross was the
first person to ride in the front passenger seat. Together, the incriminating
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statement, Cross’ furtive gestures, and his close proximity to the gun
demonstrate the additional circumstances required to show his knowledge of
the handgun and ability to maintain dominion and control over it.
[12] Based on this evidence, we find that there was sufficient evidence that Cross
constructively possessed the handgun to support his conviction for carrying a
handgun without a license. Cross’ arguments are simply a request that we
reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146.
[13] Affirmed.
Riley, J., and Bailey, J., concur.
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