Pursuant to Ind. Appellate Rule 65(D), this Oct 17 2013, 5:43 am
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:
MATTHEW D. ANGLEMEYER GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DEVON MILLER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1303-CR-286
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kimberly J. Brown, Judge
Cause No. 49F07-1209-CM-66996
October 17, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
This case illustrates that an individual’s possession of contraband need not be
exclusive to sustain a conviction. Here, a handgun was found under the passenger seat
where appellant-defendant Devon Miller had been seated. He now appeals his conviction
for Carrying a Handgun Without a License,1 a class A misdemeanor. More particularly,
Miller argues that the State did not provide sufficient evidence to support the finding that
Miller was in constructive possession of the handgun.
While Miller’s control over the vehicle where the handgun was found was not
exclusive, Miller’s behavior and proximity to the handgun showed or established Miller’s
intent to establish dominion and control over the handgun. Concluding that sufficient
evidence existed to support a finding that Miller had constructive possession of the
handgun, we affirm the judgment of the trial court.
FACTS
Around midnight on September 11, 2012, police officers were responding to a
reported homicide when they observed two individuals standing outside a vehicle in the
driveway of a home the officers believed to be abandoned. The officers, finding it
suspicious that the vehicle’s headlights were turned off while its brake lights were on,
shone a light on the vehicle. When they did so, the individuals outside the vehicle moved
closer to it in order to conceal their movements. At the same time, Miller immediately
opened the rear passenger door, as if ready to run from the vehicle or throw something
out the door.
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Ind. Code § 35-47-2-1.
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The police removed Miller from the vehicle. Miller was uncooperative and
nervous while being patted down and handcuffed. The officers searched the vehicle and
discovered a loaded Hi-Point 9mm handgun hidden under a pair of jeans on the floor.
The vehicle was compact, and the handgun was found directly under the passenger seat
that Miller had occupied. When the police ran Miller’s information, they discovered he
did not have a permit to carry the handgun. The officers arrested Miller, and he was
charged and subsequently convicted of carrying a handgun without a license. The trial
court subsequently sentenced Miller, and he now appeals.
DISCUSSION AND DECISION
Miller argues that there was insufficient evidence to convict him, claiming that the
evidence did not show that he possessed the handgun. When reviewing the sufficiency of
the evidence claims, an appellate court weighs “only the probative evidence and
reasonable inferences supporting the verdict.” Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007) (emphasis in original). This Court does not judge the credibility of witnesses or
reweigh the evidence. We will affirm the trial court’s verdict unless “no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable doubt.” Jenkins
v. State, 726 N.E.2d 268, 270 (Ind. 2000).
To establish that Miller carried a handgun without a license, the State must prove
that Miller had actual or constructive possession of the handgun. Goliday v. State, 708
N.E.2d 4, 6 (Ind. 1999). Generally, constructive possession is shown by the intent and
capability to maintain dominion and control over a handgun. Id. at 6. Where, as here,
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a person’s control over the premises where the contraband is found is nonexclusive,
additional factors may be used to infer intent to establish dominion and control. See
Hardister v. State, 849 N.E.2d 563, 574 (Ind. 2006) (listing both “attempted flight and
furtive gestures” and “proximity to the drugs or weapon” as possible additional factors).
Miller threw open the passenger door when the police shone a light on the vehicle,
as if to dispose of an object or run. Appellant’s App. p. 12. He was uncooperative and
nervous while being patted down by the police. Id. The handgun was found on the floor
of the seat of the vehicle that Miller had just occupied, and it would have been directly
beneath his feet or legs. Id. Miller’s actions and proximity to the handgun provide
additional factors supporting the conclusion that he was in constructive possession.
Therefore, a reasonable fact-finder could find that the State proved the elements of
carrying a handgun without a license beyond a reasonable doubt.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and VAIDIK, J., concur.
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