Antonio Floyd v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Dec 07 2015, 9:15 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Gregory F. Zoeller
Oldenburg, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio Floyd, December 7, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1504-CR-143
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy Jones, Judge
Appellee-Plaintiff Trial Court Cause No.
49F08-1405-CM-26171
Robb, Judge.
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Case Summary and Issue
[1] Following a bench trial, Antonio Floyd was convicted of carrying a handgun
without a license and possession of marijuana, both Class A misdemeanors.
Floyd appeals only his conviction for carrying a handgun without a license,
raising the issue of whether the evidence is sufficient to support the conviction.
Concluding the evidence is sufficient, we affirm.
Facts and Procedural History
[2] On May 19, 2014, Officer Eric Trost of Pike Township Schools was on foot
patrol near an Indianapolis apartment complex when he smelled a strong odor
of marijuana. In an attempt to locate the origin of the odor, Officer Trost
turned around and discovered smoke emitting from a parked vehicle’s front
driver’s side window. He observed an individual—later identified as Floyd—
behind the wheel. Floyd, the vehicle’s lone occupant, was the owner of the
vehicle.
[3] Officer Trost approached the front of the vehicle and made eye contact with
Floyd. Floyd, with his right hand, reached down between his legs toward the
vehicle’s floorboard. Fearing for his safety, Officer Trost raised his service
weapon, pointed it at Floyd, and demanded Floyd put both hands in the air.
Floyd obeyed Officer Trost’s command.
[4] Thereafter, another police officer arrived on scene and removed Floyd from the
vehicle. When the officer removed Floyd, a marijuana cigarette fell from
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Floyd’s lap onto the ground. Curious as to what Floyd had reached for on the
floorboard, Officer Trost looked inside the vehicle and observed, in plain view,
the handle of a black handgun sticking out from underneath the front driver’s
side seat. Police later discovered Floyd’s uncle was the registered owner of the
handgun, a .45 caliber Hi-Point. Floyd did not provide officers with a valid
license to carry a handgun. Officer Trost placed Floyd under arrest.
[5] On May 20, the State charged Floyd with carrying a handgun without a license
and possession of marijuana. A bench trial was held at which Floyd testified he
had no knowledge of the handgun’s presence inside the vehicle. He explained
his uncle had recently borrowed the vehicle and must have forgotten the
handgun was under the seat. In addition, Floyd stated he had no plans of
driving the car and had not driven recently because the license plates were
expired. Instead, he claimed he sat in the car and smoked marijuana while he
waited for a friend to come pick him up. When Officer Trost approached the
vehicle, Floyd reached down in an attempt “to put the marijuana out” in an
ashtray. Transcript at 35. Floyd’s uncle did not testify. The trial court found
Floyd guilty of carrying a handgun without a license and possession of
marijuana. Floyd now appeals his conviction for carrying a handgun without a
license.
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Discussion and Decision
I. Standard of Review
[6] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh
the evidence nor reassess the credibility of witnesses. Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009). We will affirm a conviction unless “no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable doubt.”
Drane, 867 N.E.2d at 146-47 (citation omitted).
II. Constructive Possession
[7] Floyd argues the evidence is insufficient to support his conviction because the
State failed to prove beyond a reasonable doubt he constructively possessed the
handgun. “[A] person shall not carry a handgun in any vehicle or on or about
the person’s body without being licensed . . . to carry a handgun.” Ind. Code §
35-47-2-1(a). Before a defendant can be convicted of carrying a handgun
without a license, the State must prove the defendant had either actual or
constructive possession of the handgun.1 K.F. v. State, 961 N.E.2d 501, 509
(Ind. Ct. App. 2012), trans. denied.
[8] Constructive possession occurs when somebody has the intent
and capability to maintain dominion and control over the item.
1
There is no evidence Floyd was in actual possession of the handgun.
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To prove capability, the State must show that the defendant is
able to reduce the contraband to her personal possession. To
prove the intent element, the State must demonstrate the
defendant’s knowledge of the presence of the contraband. This
knowledge may be inferred from either the exclusive dominion
and control over the premises containing the contraband or, if the
control is non-exclusive, evidence of additional circumstances
that point to the defendant’s knowledge of the presence of the
contraband. These additional circumstances may include
incriminating statements by the defendant; flight or furtive
gestures; defendant’s proximity to the contraband; the
contraband being in plain view; or the location of the contraband
in close proximity to items owned by the defendant.
Id. at 509-10 (internal citations and quotation marks omitted).
[9] Floyd does not contend the evidence is insufficient to support a finding he had
the capability to maintain dominion and control over the handgun. Rather,
Floyd contends he did not have the intent to maintain dominion and control
over the handgun because 1) he did not have exclusive dominion and control
over the vehicle, and 2) he had no knowledge of the presence of the handgun.
We disagree.
[10] Floyd was the sole occupant of the vehicle, which he owned. Once Floyd made
eye contact with Officer Trost, Floyd made a furtive gesture towards the
floorboard where the handgun was later discovered in plain view and in close
proximity to where Floyd had been sitting. Floyd counters his testimony at
trial established he had no knowledge of the handgun’s presence, he did not
have exclusive control of vehicle because his uncle had previously borrowed the
car, and Floyd’s furtive gesture was neither an attempt to possess nor hide the
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handgun. Rather, Floyd contends his movement was an attempt to extinguish
the marijuana cigarette in an ashtray. Floyd’s arguments, however, invite us to
reassess his credibility—an invitation we must decline when reviewing the
sufficiency of the evidence. See Bailey, 907 N.E.2d at 1005. Therefore, we
conclude the evidence is sufficient to show Floyd had the intent and capability
to maintain dominion and control over the handgun. See K.F., 961 N.E.2d at
509.
[11] Taking into account Floyd’s proximity to the handgun and furtive movement
inside the vehicle, coupled with the fact the vehicle was registered in Floyd’s
name, the handgun was discovered in plain view, and Floyd was the vehicle’s
lone occupant, we conclude the evidence was sufficient to prove beyond a
reasonable doubt Floyd constructively possessed the handgun.
Conclusion
[12] The evidence presented at trial is sufficient to support Floyd’s conviction for
carrying a handgun without a license. Floyd’s conviction is therefore affirmed.
[13] Affirmed.
Barnes, J., and Altice, J., concur.
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