Marquis Lewins v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 16 2016, 8:45 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. O’Connor Gregory F. Zoeller
O’Connor & Auersch Attorney General of Indiana
Indianapolis, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marquis Lewins, December 16, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1603-CR-428
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Peggy Hart, Master
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
49G20-1410-F4-47928
Barnes, Judge.
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Case Summary
[1] Marquis Lewins appeals his conviction for Level 4 felony unlawful possession
of a firearm by a serious violent felon. We affirm.
Issue
[2] Lewins raises one issue, which we restate as whether the evidence is sufficient
to prove that he possessed a firearm.
Facts
[3] On October 10, 2015, officers with the Indianapolis Metropolitan Police
Department were executing a no knock search warrant at a residence on King
Avenue in Indianapolis. Officer Kenneth Kunz was part of the SWAT team
executing the warrant. As other officers were entering the front door, Officer
Kunz was standing next to a bedroom window. The bedroom window was
open six to eight inches, and he saw Lewins in the bedroom. Officer Kunz
yelled into the bedroom, “Police. Search Warrant. Show your hands. Stop.
Show your hands.” Tr. p. 44. However, Lewins looked at Officer Kunz and
“went about what he was doing.” Id. at 45. Lewins removed a grate from a
floor heat register and placed cocaine in the register. He then retrieved a bag of
marijuana off of an aquarium and placed it in the register too. Lewins also
opened a built-in cupboard in the bedroom, retrieved an item, and placed it in
his waistband. Lewins then left the bedroom and locked himself in a bathroom.
The officers eventually kicked in the bathroom door, deployed a flash bang
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device, and apprehended Lewins. Two other people were also apprehended in
the house.
[4] The officers found marijuana on Lewins. They also found marijuana and
cocaine in the register. In the bedroom where Lewins was seen, officers found
a handgun under the mattress and another handgun in the cupboard. In the
cupboard, officers also found marijuana, a box of syringes with Lewins’s name
on it, paperwork bearing Lewins’s name and the address of the King Avenue
house, a box of Accu-Chek Softclix with Lewins’s name on the box, and
prescription medications in Lewins’s name. A third handgun was found in a
kitchen cabinet along with marijuana and digital scales. In a kitchen drawer,
officers found an electric bill for the house addressed to Lewins.
[5] DNA testing on the handgun found under the mattress revealed a mixture of
DNA profiles of Lewins and an unidentified person. DNA testing on the
handgun found in the cupboard also revealed a mixture of DNA profiles of
Lewins and another individual with Lewins being the major contributor.
[6] The State charged Lewins with: Count I, Level 4 felony unlawful possession of
a firearm by a serious violent felon; Count II, Level 6 felony possession of
cocaine, enhanced to a Level 5 felony based on a prior conviction; and Count
III, Class B misdemeanor possession of marijuana, enhanced to a Level 6
felony based on a prior conviction. The State also alleged that Lewins was an
habitual offender. In a bifurcated trial, the jury found that Lewins had
unlawfully possessed a firearm, and Lewins stipulated that he was a serious
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violent felon. The jury also found that Lewins had possessed cocaine and
marijuana, and Lewins stipulated to his prior convictions and his status as an
habitual offender. The trial court entered judgments of conviction on Count I,
on the unenhanced convictions for Counts II and III, and on Lewins’s status as
an habitual offender. The trial court sentenced Lewins to eighteen years in the
Department of Correction. Lewins now appeals.
Analysis
[7] Lewins argues that the evidence was insufficient to show that he possessed a
handgun. Lewins does not challenge his other convictions or his status as an
habitual offender. In reviewing the sufficiency of the evidence, we neither
reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27
N.E.3d 1065, 1066 (Ind. 2015). We only consider “the evidence supporting the
judgment and any reasonable inferences that can be drawn from such
evidence.” Id. A conviction will be affirmed if there is substantial evidence of
probative value supporting each element of the offense such that a reasonable
trier of fact could have found the defendant guilty beyond a reasonable doubt.
Id. “‘It is the job of the fact-finder to determine whether the evidence in a
particular case sufficiently proves each element of an offense, and we consider
conflicting evidence most favorably to the trial court’s ruling.’” Id. at 1066-67(quoting Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)).
[8] Indiana Code Section 35-47-4-5(c) provides: “A serious violent felon who
knowingly or intentionally possesses a firearm commits unlawful possession of
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a firearm by a serious violent felon, a Level 4 felony.” A conviction for
possession of contraband may rest upon proof of either actual or constructive
possession. Houston v. State, 997 N.E.2d 407, 409-10 (Ind. Ct. App. 2013).
Actual possession occurs when a person has direct physical control over the
item. Id. at 410. 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. Gray v. State, 957
N.E.2d 171, 174 (Ind. 2011). Although the State argues that Lewins had actual
possession of the weapons, Lewins argues that he did not have actual or
constructive possession. We need only address whether Lewins had
constructive possession.
[9] “The capability prong [of constructive possession] may be satisfied by ‘proof of
a possessory interest in the premises in which [contraband is] found.’” Houston,
997 N.E.2d at 410 (quoting Monroe v. State, 899 N.E.2d 688, 692 (Ind. Ct. App.
2009)). “This is so regardless of whether the possession of the premises is
exclusive or not.” Id. The State presented evidence that Lewins was seen in the
bedroom where two of the guns were located immediately before they were
found. He was also seen taking an item out of the cupboard where one of the
guns was found. The officers also found an electric bill for the house bearing
Lewins’s name. The State presented sufficient evidence to prove that Lewins
had the capability to maintain dominion and control over the handguns.
[10] With regard to the intent prong of the test, where a defendant’s possession of
the premises upon which contraband is found is not exclusive, the inference of
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intent to maintain dominion and control over the drugs must be supported by
additional circumstances pointing to the defendant’s knowledge of the nature of
the controlled substances and their presence. Id. Those additional
circumstances include: (1) incriminating statements 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.
Henderson v. State, 715 N.E.2d 833, 836 (Ind. 1999).
[11] The State presented evidence that Lewins ignored Officer Kunz’s commands
and locked himself in the bathroom during the execution of the search warrant.
Officer Kunz saw Lewins in close proximity to the handgun under the mattress
and the handgun in the cupboard. Further, items belonging to Lewins were
found in the cupboard with the handgun. Finally, Lewins’s DNA was found on
both weapons. The State presented sufficient evidence to show that Lewins had
the intent to maintain dominion and control over the weapons found in the
bedroom.1
[12] Because we conclude that Lewins had constructive possession of the weapons,
we need not address whether he had actual possession. We conclude that the
1
The State also argues that Lewins had constructive possession of the handgun found in the kitchen. As we
have found Lewins had constructive possession of the handguns found in the bedroom, we need not address
this argument.
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evidence is sufficient to sustain Lewins’s conviction for Level 4 felony unlawful
possession of a firearm by a serious violent felon.
Conclusion
[13] The evidence is sufficient to sustain Lewins’s conviction for Level 4 felony
unlawful possession of a firearm by a serious violent felon. We affirm.
[14] Affirmed.
Bailey, J., and Riley, J., concur.
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