MEMORANDUM DECISION
Jun 09 2015, 5:42 am
Pursuant to Ind. Appellate Rule 65(D), 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
Karen Celestino-Horseman Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.B., June 9, 2015
Appellant-Respondent, Court of Appeals Case No.
49A02-1410-JV-757
v. Appeal from the Marion Superior
Court.
The Honorable Marilyn Moores,
State of Indiana, Judge.
Appellee-Petitioner The Honorable Gary Chavers,
Magistrate.
Cause No. 49D09-1404-JD-828
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JV-828 | June 9, 2015 Page 1 of 7
[1] D.B. appeals after he was adjudicated delinquent for committing an offense that
would have been Carrying a Handgun Without a License, 1 a class A
misdemeanor, had it been committed by an adult. D.B. raises two arguments
on appeal, one of which we find dispositive: D.B. contends that the evidence is
insufficient to support the adjudication. We agree, and reverse.
Facts
[2] D.B. was sixteen years old in March 2014. On March 7, 2014, Indianapolis
Metropolitan Police Department Officer Kenneth Kuntz observed a young
man, later identified as an individual named D.P., begin charging another
young man “in a fighting manner,” in the parking lot of a fast food restaurant.
Tr. p. 11. Officer Kuntz exited his vehicle and told D.P. he needed to talk with
him. The officer then observed a blue vehicle quickly back up in the parking
lot. D.P. jumped into the backseat of the vehicle behind the passenger seat, and
the vehicle drove away.
[3] Officer Kuntz began following the vehicle, which was being driven by D.B.,
eventually turning on his lights to signal D.B. to pull over. D.B. pulled over
within a reasonable amount of time after the officer turned on his lights.
[4] While Officer Kuntz spoke with D.B., Officer Dustin Carmack spoke with D.P.
D.B. produced an Indiana temporary driver’s permit and D.P. refused to
1
Ind. Code § 35-47-2-1.
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provide any identification. Both officers asked D.P. to step out of the vehicle.
After the backseat door was opened and as D.P. was stepping out, Officer
Kuntz noticed a handgun sticking out from under the front passenger seat into
the rear floorboard of the vehicle, between D.P.’s feet. As Officer Kuntz pulled
the gun out, a second gun slid out from under the front passenger seat.
[5] After the officers found the guns, Officer Carmack asked D.B. to exit the
vehicle, and both D.B. and D.P. were seated on a curb and handcuffed. Officer
Carmack stood behind them and watched as Officer Kuntz completed a search
of the vehicle. Officer Carmack overheard D.B. ask D.P. “if he was going to
take the gun . . . , and telling [D.P.] that he had a gun charge.” Id. at 61.
Although both guns were tested for fingerprint and DNA evidence, no physical
evidence resulted that linked D.B. to either weapon. Id. at 43.
[6] On April 30, 2014, the State filed a petition alleging D.B. had committed acts
that would be class A misdemeanor carrying a handgun without a license and
class A misdemeanor dangerous possession of a firearm had the acts been
committed by an adult. On September 18, 2014, the juvenile court held a fact-
finding hearing. At the close of the hearing, the juvenile court adjudicated D.B.
a delinquent for carrying a handgun without a license and found that the second
count merged into the first. On September 30, 2014, the juvenile court held a
dispositional hearing and ordered D.B. committed to the Department of
Correction until the age of twenty-one, for at least twelve months. D.B. now
appeals.
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Discussion and Decision
[7] Although D.B. makes two arguments on appeal, we find his argument that the
evidence is insufficient to sustain his adjudication to be dispositive. When the
State seeks to have a juvenile adjudicated as a delinquent for committing an act
that would be a crime if committed by an adult, the State must prove every
element of the crime beyond a reasonable doubt. M.S. v. State, 889 N.E.2d 900,
901 (Ind. Ct. App. 2008). In reviewing a juvenile adjudication, we will consider
only the evidence and reasonable inferences supporting the judgment and will
neither reweigh evidence nor judge the credibility of the witnesses. Id. If there
is substantial evidence of probative value from which a reasonable trier of fact
could conclude that the juvenile was guilty beyond a reasonable doubt, we will
affirm the adjudication. Id.
[8] D.B. was found delinquent for committing an act that would be class A
misdemeanor carrying a handgun without a license. Indiana Code section 35-
47-2-1(a) provides that subject to certain exceptions not at issue in this case, “a
person shall not carry a handgun in any vehicle . . . without being licensed
under this chapter to carry a handgun.” Indiana Code section 35-47-2-23
provides that a person who violates section 1 of the chapter commits a class A
misdemeanor.2
2
These statutes were modified with an effective date of July 1, 2014; in relevant part, Indiana Code section
35-47-2-23 was repealed and relocated to be subsection (e) of section 35-47-2-1. As D.B. committed the
alleged offenses herein prior to July 1, 2014, we will apply and cite to the earlier versions of the statutes.
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[9] Our Supreme Court has explained that to convict a defendant of carrying a
handgun in a vehicle, the State must prove that the defendant either actually or
constructively possessed the handgun. Henderson v. State, 715 N.E.2d 833, 835-
36 (Ind. 1999). It is undisputed that in the instant case, D.B. did not have
actual possession of the handguns. We turn, therefore, to the concept of
constructive possession. The Henderson Court has described this concept as
follows:
Constructive possession occurs when somebody has “the intent and
capability to maintain dominion and control over the item.” Id. We
suggested in Woods v. State, 471 N.E.2d 691 (Ind. 1984),] that
knowledge is a key element in proving intent:
When constructive possession is asserted, the State must
demonstrate the defendant’s knowledge of the
contraband. This knowledge may be inferred from
either the exclusive dominion and control over the
premise containing the contraband or, if the control is
non-exclusive, evidence of additional circumstances
pointing to the defendant’s knowledge of the presence of
the contraband.
Woods, 471 N.E.2d at 694 (citations omitted). Proof of dominion and
control of contraband has been found through a variety of means:
(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.
Id. at 835-36. Turning to the instant case, we consider each of these factors in
turn.
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[10] 1. Incriminating statements by the defendant. The State argues that D.B.’s
questioning of D.P. as to whether he was going to take responsibility for the
gun is an incriminating statement. We cannot agree. This statement was made
after the guns were found by the officers, so it establishes no prior knowledge of
the weapons’ presence in the car. And a mere question to a car passenger as to
whether he intended to accept responsibility for a gun, with an accompanied
explanation that the speaker has a prior gun charge, does not tend to
incriminate the speaker in the possession of the gun.
[11] 2. Attempted flight or furtive gestures. As soon as Officer Kuntz activated his
police lights, D.B. pulled over the vehicle. He made no furtive gestures, and
Officer Kuntz testified that D.B. did not seem to be attempting to evade him
when he drove away from the parking lot.
[12] 3. Location of contraband in settings that suggest manufacturing. This factor is not
relevant to this case.
[13] 4. Proximity of the contraband to the defendant. The handguns were underneath
the passenger’s seat, with the handle of one sticking out into the backseat area.
There is no evidence regarding the proximity of the weapons to D.B., who was
in the driver’s seat. There is no evidence regarding D.B.’s ability to reach back
for the weapons.
[14] 5. Location of the contraband within the defendant’s plain view. The handle of one of
the handguns was sticking out slightly into the backseat area. The officers were
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unable to see the handgun until the door was opened. There is no evidence
establishing that D.B. was able to see either handgun.
[15] 6. The mingling of the contraband with other items owned by the defendant. There
was no mingling of the weapons with items owned by D.B.
[16] In addition to all of these factors, we note that it is undisputed that D.B. did not
own the vehicle being driven. There is no evidence establishing how long he
had been driving it, to what extent the vehicle was actually under his control, or
what knowledge he had or should have had of the contents of the vehicle.
[17] It is readily apparent that this record does not support a reasonable inference
that D.B. had knowledge of the presence of the handguns in the vehicle. None
of the circumstances set forth by our Supreme Court tend to support a claim
that D.B. had dominion and control of the handguns. Therefore, we cannot
conclude that the evidence supports a conclusion that D.B. carried a handgun
in the vehicle. Given this record, we are compelled to conclude that there is
insufficient evidence supporting the adjudication.
[18] The judgment of the juvenile court is reversed and remanded with instructions
to vacate the adjudication.
Najam, J., and Friedlander, J., concur.
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D.B. v. State of Indiana (mem. dec.)
Combined Opinion