MEMORANDUM DECISION
Aug 24 2015, 9:26 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
David W. Stone, IV Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donnis K. Wilkerson, August 24, 2015
Appellant-Defendant, Court of Appeals Cause No.
48A05-1410-CR-481
v. Appeal from the Madison Superior
Court
Cause No. 48C03-1311-FB-2164
State of Indiana,
Appellee-Plaintiff. The Honorable Thomas Newman,
Jr., Judge
Barnes, Judge.
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Case Summary
[1] Donnis Wilkerson appeals his conviction for Class B Felony unlawful
possession of a firearm by a serious violent felon. We affirm.
Issues
[2] The issues before us are:
I. whether there is sufficient evidence to support
Wilkerson’s conviction; and
II. whether the prosecutor committed
prosecutorial misconduct and fundamental
error in closing argument.
Facts
[3] The evidence most favorable to the conviction is that, on November 6, 2013,
Lieutenant John Branson of the Anderson Police Department inspected a high
crime business known as the VIP Lounge, which is a strip club. On that
evening, around midnight, Lieutenant Branson observed a new Cadillac
Escalade parked in an unusual spot against a fence in the back of the parking
lot. Lieutenant Branson noticed that the vehicle was running with a person
sitting in the driver’s seat whose head began to “slink down further and further”
as Lieutenant Branson got closer “[l]ike he was trying to avoid detection . . . .”
Tr. p. 314.
[4] Lieutenant Branson parked his marked police car and walked over to the driver
side of the Escalade. Lieutenant Branson detected “a very strong odor of
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marijuana coming from in the vehicle.” Id. at 315. Lieutenant Branson then
had the driver, Tremayne McPhaul, step out of the vehicle. While Lieutenant
Branson was speaking to McPhaul, Roger Randolph, whose mother owned the
Escalade, arrived on the scene requesting the keys to the vehicle. Lieutenant
Branson called in additional officers for help before inspecting the vehicle.
[5] A few minutes later, Officer Michael Lee arrived on the scene and began
inspecting the vehicle. Officer Lee had to use his flashlight to see into the
vehicle. As Officer Lee was looking through the windows next to the third row
seat, he spotted a gun in plain view lying in the middle of the seat. The weapon
was a Glock forty-caliber hand pistol that was fully loaded. Wilkerson was
discovered hiding on the floor of the vehicle “scrunched down between the
seats” next to the third row seat. Id. at 323. Wilkerson was so close to the
weapon that “his head and his hands would have been right by where the gun
was.” Id.
[6] An additional handgun was discovered by officers in the front seat of the
vehicle. McPhaul admitted to placing the handgun in the passenger seat before
he got out of the vehicle. McPhaul also admitted that marijuana found in the
Escalade driver’s door belonged to him. At trial, Randolph testified that he did
not carry guns or place the guns or marijuana in the vehicle. No other
individuals were in the vehicle that night other than McPhaul, Randolph, and
Wilkerson.
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[7] On November 7, 2013, Wilkerson was charged with Count I, Class D felony
receiving stolen property, and Count II, Class B felony unlawful possession of a
firearm by a serious violent felon. The State filed a motion to dismiss Count I,
which the trial court granted. Wilkerson stipulated that he qualified as a serious
violent felon under Indiana law but challenged whether he possessed a firearm.
He was subsequently found guilty of Count II. Wilkerson was sentenced to
twenty years and now appeals.
Analysis
I. Sufficiency of Evidence
[8] Wilkerson challenges the sufficiency of the evidence supporting his conviction
for unlawful possession of a firearm by a serious violent felon. When reviewing
the sufficiency of evidence, we examine only the probative evidence and
reasonable inferences which support a guilty verdict. Lock v. State, 971 N.E.2d
71, 74 (Ind. 2012). We do not assess witness credibility, nor do we reweigh
evidence to determine the sufficiency to support a conviction. Id. Under our
appellate system, those roles are not reserved for the appellate court, but
exclusively for the finder of fact. Id. Our role is to consider only the evidence
most favorable to the conviction and to affirm the conviction unless no
reasonable fact-finder could conclude the elements of the crime were proven
beyond a reasonable doubt. Id. Evidence is sufficient provided that an
inference may reasonably be drawn from it to support the verdict. Id.
Circumstantial evidence alone is sufficient for a conviction. Naas v. State, 993
N.E.2d 1151, 1152 (Ind. Ct. App. 2013). “Reversal is appropriate only when
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reasonable persons would not be able to form inferences as to each material
element of the offense.” Id.
[9] Wilkerson argues that he did not possess the firearm. Constructive possession
is at issue here. It is well-settled in Indiana that when constructive possession is
asserted, the State must show the defendant had knowledge of the contraband.
Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). This knowledge may be
inferred from the defendant’s exclusive dominion and control over the premises
containing the contraband or, if the control is non-exclusive, evidence of
additional circumstances showing the defendant had knowledge of the presence
of the contraband. Henderson, 715 N.E.2d at 835-36. The various factors that
can lead to constructive possession are:
(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 836.
[10] Here, it was not possible for Wilkerson to flee the scene because he would have
been instantly detected by Lieutenant Branson while trying to escape. It is
evident by Wilkerson’s actions that he was making an attempt to avoid being
detected by officers. Wilkerson was buried down between the seats of a vehicle
that had windows so darkly tinted that officers were unable to see inside
without their flashlights. Not only was there no indication that someone else
remained inside the vehicle, but Wilkerson made no attempt to make his
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presence known. While Lieutenant Branson was speaking with McPhaul,
Wilkerson did not open any doors to the vehicle or “volunteer to let [the
officers] know he was there[.]” Tr. p. 322. Instead Wilkerson was physically
removed from the car by Lieutenant Branson. We cannot agree with Wilkerson
that his being hunched down between the seats had no logical connection with
the gun that was found. Wilkerson argued he “wasn’t hiding based on the fact
that he had a weapon that day. He had a warrant.” Id. at 362. Although we
do not dispute there was a warrant for Wilkerson’s arrest, to assert that he was
hiding solely for this reason is pure speculation. It is reasonable to assume that
the weapon found near his head was related to his attempt to avoid detection.
[11] Along with the obvious furtive nature of his actions to imply his knowledge of
possessing the handgun, the weapon was not only closest in proximity to
Wilkerson, but it was also in plain sight. It is undisputed that the gun was in
plain sight “laying right in the middle of the seat.” Id. at 290. Not only was the
gun in plain sight, but the particular placement was on the third row of seats
where Wilkerson was attempting to hide from police. “His head and his hands
would have been right by where the gun was.” Id. at 323. The gun was so close
to Wilkerson’s hands that officers testified within “a moments notice he could
have grabbed it.” Id. at 335. The gun was not close in proximity to anyone
other than Wilkerson. Furthermore, McPhaul admitted possessing the
marijuana and another handgun discovered in the vehicle and Randolph,
whose mother owned the car, denied ever possessing guns or placing any in the
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vehicle. The evidence most logically points to Wilkerson possessing the
handgun.
[12] This case is distinguishable from Henderson, upon which Wilkerson relies. In
Henderson, the driver of the car owned the guns, had permits for both guns, and
notified the officer that guns were in the vehicle. The guns were also found in
the middle of the car near the defendant and driver. Due to the fact that the
driver owned the gun and had a gun permit and the location of the gun was
equally close to both men, there was insufficient evidence to suggest the
defendant exercised dominion. Henderson, 715 N.E.2d at 838. Here, by
contrast, no one had a permit for the gun and the gun was mere inches away
from Wilkerson and nowhere close to the driver. There is sufficient evidence to
support Wilkerson’s conviction.
II. Prosecutorial Misconduct
[13] We now assess whether the prosecutor committed prosecutorial misconduct
and fundamental error in closing argument. Wilkerson asserts that he was
denied a fair trial by the prosecutor’s improper closing argument. He further
asserts that the prosecutor made improper statements unsupported by evidence
such as the cost of Glock pistols, the deadly injuries associated with different
types of ammunition, and asking the jurors to speculate why Wilkerson would
have the pistol, in order to play on the emotional fears of jurors.
[14] The standard of review for a claim of improper closing argument was stated by
our supreme court in Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014):
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In reviewing a claim of prosecutorial misconduct properly raised in the
trial court, we determine (1) whether misconduct occurred, and if so,
(2) “whether the misconduct, under all of the circumstances, placed
the defendant in a position of grave peril to which he or she would not
have been subjected” otherwise.
The gravity of peril is determined by the probable persuasive effect of the
misconduct on the jury’s decision, not on the amount of impropriety of the
conduct. Carter v. State, 956 N.E.2d 167, 169 (Ind. Ct. App. 2011).
[15] Wilkerson’s trial counsel did not object to the prosecutor’s closing argument.
When presented on appeal, a claim of prosecutorial misconduct without a
contemporaneous trial objection cannot succeed unless the defendant
establishes both prosecutorial misconduct and additional grounds for
fundamental error. Id. at 170. For prosecutorial misconduct to be
fundamental error, it must make a fair trial impossible or amount to obvious
blatant violations of basic and elementary principles of due process and present
an undeniable and substantial potential for harm. Id. Misconduct occurs when
a prosecutor requests the jury to convict a defendant for any reason other than
his or her guilt. Id.
[16] Wilkerson points to several statements made by the prosecutor during closing
argument. Specifically, the prosecutor said:
So two (2) different purposes, but you know what they both will kill
you. Now what’s he doing out there with this glock . . . . [H]ave you
ever shopped for a weapon. Have you ever priced them? This is no
Saturday night special. This will run you five hundred ($500.00)
dollars any where you want to buy it.
*****
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You don’t have to worry about thing [sic] until the guns, until the
money and drugs come together. When the money and the drugs
come together carry a pistol, and we got two (2) of them.
*****
Cause guys like McPhaul and this make it dangerous.
Tr. pp. 348-49, 350, 367.
[17] These statements were not based on any actual evidence and were used purely
to inflame the jury. Although we agree that these statements were
inappropriate, give their context, the overwhelming evidence of Wilkerson’s
guilt, and that the fact that they constituted a relatively brief part of the entire
closing argument, we decline to find that these statements amounted to
fundamental error. The prosecutor’s additional statements regarding the
doctrine of constructive possession and other arguments were entirely proper
based on fair comments on the law and evidence presented.
Conclusion
[18] Wilkerson has not established that there is insufficient evidence to support his
conviction or that the prosecutor committed fundamental error during closing
argument. We affirm.
[19] Affirmed.
Riley, J., and Bailey, J., concur.
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Donnis K. Wilkerson v. State of Indiana (mem. dec.)
Combined Opinion