Davon Lamont Cummings v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 31 2018, 10:52 am
regarded as precedent or cited before any
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
Michael R. Fisher Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Davon Lamont Cummings, December 31, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1774
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Hooper,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G08-1702-CM-4280
Brown, Judge.
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[1] Davon Lamont Cummings appeals his conviction for carrying a handgun
without a license as a class A misdemeanor. Cummings raises one issue which
we revise and restate as whether the evidence is sufficient to sustain his
conviction. We affirm.
Facts and Procedural History
[2] On the early morning of January 31, 2017, Officer Daniel Majors of the
Indianapolis Metropolitan Police Department (“IMPD”) observed a grey Buick
with one operating headlight and a plate light which was not in operation.
Officer Majors pulled the vehicle over, approached it from the rear, and when
he was “between five and eight feet away from the car,” he observed “the four
occupants in the vehicle to be making a lot of movements,” which started to
make him nervous. Transcript Volume II at 38, 44. He observed the driver,
Kiera Hidleburg, “reach back to the back seat of the vehicle,” and the front
passenger “did not make any movements at all.” Id. at 38. The rear passenger
on the driver’s side, who was identified as Ms. Johnson, was “looking back” at
Officer Majors and “wasn’t moving her hands at all.”1 Id. Cummings, the rear
passenger on the right side, was “turned towards the center of the vehicle
making movements with his hands that [Officer Majors] couldn’t see.” Id.
1
At trial, when asked to demonstrate his observation of Johnson’s movements for the jurors, Officer Majors
stated “[s]he was looking back at me, but I couldn’t tell what her hands were doing.” Transcript Volume II
at 38.
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[3] Upon his approach, Officer Majors detected a strong odor of burnt marijuana
coming from inside the vehicle and, being “nervous about the movements in the
vehicle,” called for backup. Id. at 42. While seated, Cummings verbally
identified himself when he was asked for identification but did not produce
identification. At some point, Officer Majors ordered the occupants to exit the
vehicle because he “conducted a probable cause search for the odor of
marijuana coming from inside the vehicle and movements.” Id. at 41. “[D]ue
to the movement in the back seat,” officers “started with the backseat
passengers first and as [they] removed [Johnson] and [Cummings], there was a
handgun right there in plain view in the center of the backseat.” Id. A second
handgun sat “under a small purse” but “you could still see it.” Id. Officer
Majors found a third handgun “in a holster inside of [Johnson’s] pants.” Id.
Officer Majors arrested Cummings after verifying that he did not have a valid
gun permit. Officer Michael Margetson photographed the scene and collected,
boxed, and transported the handguns to the southeast district roll call, where he
swabbed them for DNA and attempted to collect fingerprints from them.
[4] On February 1, 2017, the State charged Cummings with carrying a handgun
without a license as a class A misdemeanor. At the jury trial, Officer Majors
was positioned so that he faced away from the jurors and was asked to
“demonstrate . . . what movements [he] observed” from the occupants of the
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vehicle, including Cummings.2 Id. at 38. When the court admitted an aerial
diagram of the vehicle, Officer Majors marked where each of the occupants of
the vehicle had been seated and was asked to show the location of the handgun
in the holster inside of Johnson’s pants. Officer Margetson indicated that he
was not able to collect fingerprints from the handguns, the prosecutor asked if
that was uncommon, and Officer Margetson stated: “Not off of a handgun
because most handguns do not [sic] many smooth surfaces and you really need
a smooth surface to get the fingerprint off because the dust will go into the
grooves and the little pocket marks in the gun and all you’re pulling off is all the
dust that came off into that little area.” Id. at 54. A pair of boxes, which each
contained a handgun, magazine, and bullets, were admitted without objection
as State’s Exhibits 4 and 5. One box, which contained a handgun, magazine,
bullets, and a holster, was admitted without objection as State’s Exhibit 6, and
Officer Margetson indicated that the three handguns were those collected at the
scene. The jury found Cummings guilty as charged, and the court sentenced
him to 365 days with 282 days suspended.
Discussion
[5] The issue is whether the evidence is sufficient to sustain Cummings’s conviction
for carrying a handgun without a license as a class A misdemeanor. When
2
During closing arguments, the prosecutor recounted to the jury Officer Majors’s testimony and stated:
“What did Officer Majors tell you? What did he see when he was pulling that car over? He saw [Cummings]
make movements sort of passing something over.” Transcript Volume II at 74.
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reviewing claims of insufficiency of the evidence, we do not reweigh the
evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,
817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable
inferences therefrom that support the verdict. Id. The conviction will be
affirmed if there exists evidence of probative value from which a reasonable jury
could find the defendant guilty beyond a reasonable doubt. Id.[6] Cummings argues that the evidence merely showed that he was a passenger in a
car in which the handguns were found, that Officer Majors never observed him
in possession of such a weapon, and that it cannot be reasonably inferred that
he possessed one. He contends that the most logical inference would be that
Hidleburg, as the driver of the car, was in constructive possession of the
handguns. In response, the State argues that sufficient evidence supports
Cummings’s conviction and that, viewed in the light most favorable to the
verdict, multiple factors establish his dominion and control over the handguns
that were found in the backseat of the car where he was a passenger.
Specifically, the State asserts that Cummings was making furtive gestures and
that he was in close proximity to the handguns that were found in plain view.
It also contends that reasonable inferences support the argument that
Cummings had dominion and control over a handgun, and that “[s]ince there
were three guns found and three people . . . that were making furtive gestures, a
reasonable inference can be made that each gun was controlled by the people
making the furtive gestures.” Appellee’s Brief at 10. It states the fact that
Cummings and Hidleburg both did not have valid gun permits while Johnson
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did “also supports this inference and the argument that [Cummings] was giving
the gun in his control to Johnson.” Id.[7] In its February 1, 2017 charging information, the State cited Ind. Code § 35-47-
2-1 and alleged that Cummings did “knowingly carry a handgun in a vehicle or
on or about his person, without being licensed as required by law.” Appellant’s
Appendix Volume 2 at 16. At the time of the offense, Ind. Code § 35-47-2-1(a)
provided 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,” and Ind. Code § 35-47-2-1(e) provided in part that a “person
who knowingly or intentionally violates this section commits a Class A
misdemeanor.”3
[8] The Indiana Supreme Court held that Ind. Code § 35-47-2-1 is “relatively
broad” and “thus prohibits both carrying a handgun on or about one’s person
and carrying a handgun in a vehicle.” Henderson v. State, 715 N.E.2d 833, 835,
835 n.2 (Ind. 1999).4 When referring to the carrying of a gun on or about one’s
person, the statute proscribes “having on one’s person an unlicensed handgun”
and conviction of the offense does not require proof that the weapon was
3
Subsequently amended by Pub. L. No. 221-2017, § 1 (eff. July 1. 2017).
4
In Henderson, the Indiana Supreme Court addressed a previous version of Ind. Code § 35-47-2-1, which
provided: “a person shall not carry a handgun in any vehicle or on or about his person, except in his
dwelling, on his property or fixed place of business, without a license issued under this chapter being in his
possession.” 715 N.E.2d at 835.
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conveyed or transported from one place to another. McAnalley v. State, 514
N.E.2d 831, 834 (Ind. 1987).
[9] In Henderson, the Indiana Supreme Court addressed a conviction for carrying a
handgun on or about the defendant’s person and held that “[t]he liberality of
the Indiana text has nevertheless obliged us to examine the sort of evidence
adequate to demonstrate that a defendant ‘carried’ the weapon.” 715 N.E.2d at
835. The Court observed that it had “approached this task, and the similar
question of ‘possessing’ drugs, by characterizing the possession of contraband
as either actual or constructive.” Id. Actual possession occurs when a person
has direct physical control over the item. Id. Constructive possession occurs
when a person has “the intent and capability to maintain dominion and control
over the item.” Id. When constructive possession is asserted, the defendant’s
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 pointing to his knowledge of the presence
of the contraband. Id. at 835-836. The intent element of constructive
possession is shown if the State demonstrates the defendant’s knowledge of the
presence of the contraband. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Proof
of dominion and control has been found through a variety of means, including:
(1) incriminating statements by the defendant, (2) attempted flight or furtive
gestures, (3) proximity of the contraband to the defendant, (4) location of the
contraband within the defendant’s plain view, and (5) the mingling of the
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contraband with other items owned by the defendant. Henderson, 715 N.E.2d at
836.
[10] The record reveals that, after pulling the vehicle over, Officer Majors
approached it from the rear. When he was “between five and eight feet away
from the car,” he observed “the four occupants in the vehicle to be making a lot
of movements,” which started to make him nervous. Transcript Volume II at
38, 44. Cummings, the rear passenger on the right side, was “turned towards
the center of the vehicle making movements with his hands that [Officer
Majors] couldn’t see.” Id. at 38. Hidleburg reached to the vehicle’s backseat
and Johnson was looking back at Officer Majors. When officers ordered the
occupants to exit the vehicle, they started with the backseat passengers first, and
as they removed Cummings, a handgun was located “right there in plain view
in the center of the backseat” and a second handgun sat “under a small purse”
but remained visible. Id. at 41. At trial, Officer Majors marked where
Cummings sat on an aerial diagram of the vehicle and demonstrated to the jury
his movements.
[11] The jury could reasonably infer from the evidence as set forth above and in the
record that Cummings had knowledge of a handgun as well as the capability
and intent to maintain control over it in light of his movements, his proximity
to it, and other factors. Cummings’s argument is merely a request that we
reweigh the evidence, which we will not do. See Jordan, 656 N.E.2d at 816.
We conclude that, under these circumstances, evidence of probative value exists
from which the jury as a trier of fact could find that Cummings had constructive
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possession of the gun and could have found him guilty beyond a reasonable
doubt of carrying a handgun “on or about his person” without a license as a
class A misdemeanor. See Grim v. State, 797 N.E.2d 825, 831 (Ind. Ct. App.
2003) (finding sufficient circumstantial evidence from which the jury could have
concluded beyond a reasonable doubt that defendant constructively possessed a
handgun found in close proximity to him within a vehicle in which he was a
passenger).
Conclusion
[12] For the foregoing reasons, we affirm Cummings’s conviction for carrying a
handgun without a license as a class A misdemeanor.
[13] Affirmed.
Bailey, J., and Bradford, J., concur.
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