Troy Briscoe v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 09 2018, 10:52 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing 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
Timothy J. O’Connor Curtis T. Hill, Jr.
O’Connor & Auersch Attorney General of Indiana
Indianapolis, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Troy Briscoe, February 9, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1709-CR-2050
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia Gooden,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G21-1603-F2-11126
Baker, Judge.
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[1] Troy Briscoe appeals his conviction for Level 5 Felony Carrying a Handgun
Without a License.1 He argues that the evidence is insufficient to support his
conviction. Finding the evidence sufficient, we affirm.
Facts
[2] On March 19, 2016, Lawrence Police Lieutenant Scott Evans responded to a
reported disturbance at a motel. When he arrived, the motel manager, Chad
York, stated that he needed assistance evicting people from a room at the back
of the motel. Lieutenant Evans drove to the back of the motel and, while he
was waiting on backup, York knocked on the door.
[3] Briscoe partially opened the door and began arguing with York. Hearing the
argument, Lieutenant Evans approached the room. When the lieutenant
reached the door, he could see about half of Briscoe’s body, but not his left arm.
Lieutenant Evans yelled at Briscoe and, after Briscoe saw the lieutenant, he
made a quick, jerking motion and hit something against the door or adjacent
wall, causing a loud bang. Lieutenant Evans ordered Briscoe to step back and
then entered the room.
[4] Briscoe and two women were the only people in the room. Briscoe was “very
nervous, very fidgety,” and told Lieutenant Evans that he was leaving, but
Lieutenant Evans instructed him to stay where he was. Tr. Vol. II p. 72. When
1
Ind. Code § 35-47-2-1.
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backup arrived, Briscoe was arrested on an outstanding warrant. The police
searched the room and found a .380 semi-automatic handgun directly behind
the door—where Lieutenant Evans had heard the bang—on top of a man’s
jacket in a bucket of laundry. Police also found twenty-three grams of heroin
next to the gun and a scale and baggies in the kitchenette. Subsequent
investigation revealed that Briscoe did not have a license to carry a firearm and
that there was male DNA on the gun, though there was an insufficient amount
to determine whose DNA it was.
[5] On March 23, 2016, the State charged Briscoe with one count of Level 2 felony
dealing in a narcotic drug, two counts of Level 3 felony possession of a narcotic
drug, and one count of Class A misdemeanor carrying a handgun without a
license. Following Briscoe’s June 27, 2017, jury trial, the jury found him guilty
of carrying a handgun without a license and not guilty of dealing in a narcotic
drug, and was unable to return a verdict on the remaining charges. Following
his conviction, Briscoe stipulated that he had been convicted of a felony within
fifteen years of the date of the offense; consequently, on July 12, 2017, the trial
court found Briscoe guilty of Level 5 felony carrying a handgun without a
license. On August 11, 2017, the trial court sentenced Briscoe to five years with
three years executed in the Department of Correction, one year executed with
Community Corrections, and one year suspended to probation. Briscoe now
appeals.
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Discussion and Decision
[6] Briscoe’s sole contention on appeal is that the evidence is insufficient to support
his conviction; specifically, he argues that the State failed to demonstrate that
he possessed the gun. When reviewing challenges to the sufficiency of the
evidence, we do not reweigh the evidence or judge the credibility of the
witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct. App. 2010). Instead, we
consider only the evidence most favorable to the verdict and the reasonable
inferences drawn therefrom, and we will affirm if the evidence and those
inferences constitute substantial evidence of probative value to support the
verdict. Id. Reversal is appropriate only when a reasonable trier of fact would
not be able to form inferences as to each material element of the offense. Id.[7] To convict Briscoe of Level 5 felony carrying a handgun without a license, the
State must prove, among other things, that he had actual or constructive
possession of the gun. Wallace v. State, 722 N.E.2d 910, 913 (Ind. Ct. App.
2000). Actual possession occurs when a person has direct physical control over
an item. Id. Constructive possession is shown by the intent and capability to
maintain dominion and control over an item. Id. Knowledge is a key element
in proving intent and where, as here, a person’s control over the premises where
the contraband is found is nonexclusive, additional factors may be considered
to infer intent and capability to establish dominion and control. Henderson v.
State, 715 N.E.2d 833, 835-36 (Ind. 1999); see also Hardister v. State, 849 N.E.2d
563, 574 (Ind. 2006) (listing “attempted flight,” “furtive gestures,” “proximity
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of the defendant to the [contraband],” and whether the contraband is in plain
view as possible considerations).
[8] With respect to actual possession, the evidence establishes that, when Briscoe
saw Lieutenant Evans, he made a quick, jerking motion that was immediately
followed by a bang, and Lieutenant Evans testified that the gun was found
“exactly where I heard that hit, I mean exactly.” Tr. Vol. II p. 75.
Additionally, Briscoe was the only man in the room and DNA evidence
revealed a man’s DNA on the gun. A reasonable factfinder could have inferred
from the circumstances that Briscoe was holding the gun and that the loud bang
was a result of his attempt to discard it. In other words, the evidence is
sufficient to support a conclusion that Briscoe actually possessed the gun.
[9] Further, there is sufficient evidence for a reasonable juror to find constructive
possession. When Briscoe saw Lieutenant Evans, he made a quick, jerking
motion that was immediately followed by a bang. Briscoe was visibly nervous
and uneasy and the gun was found near to where Briscoe had been standing. In
light of Briscoe’s behavior2 and his proximity to the gun when he opened the
door, a reasonable factfinder could infer that he knew about the gun and that he
had an intent and capability to establish dominion and control over it.
2
Briscoe offers several alternative interpretations to explain his behavior; however, these are veiled requests
to reweigh the evidence—requests we decline.
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[10] In sum, there is sufficient evidence to support the finding that Briscoe possessed
the gun, regardless of the theory of possession. Likewise, there is sufficient
evidence to support his conviction for Level 5 felony carrying a handgun
without a license.
[11] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
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