dissenting
I respectfully dissent with the views espoused by the majority and would find that there is insufficient evidence to support Conrad's conviction for possession of a firearm by a serious violent felon and that trial counsel rendered ineffective assistance.
In my view, the majority improperly predetermines that the firearms at issue here are contraband and proceeds to apply the constructive possession analysis applicable to contraband in upholding Conrad's conviction. Specifically, the majority be*596gins its analysis of whether there is sufficient evidence to support Conrad's convietion by stating that, "[a)l conviction for possession of contraband may rest upon proof of either actual or constructive possession." Op., at 582 (emphasis added). The majority then analyzes the evidence in accordance with the law applicable to the possession of contraband, such as drugs and firearms that are found in motor vehicles.11
To me, however, the law regarding the possession of contraband is inapplicable to the case at bar because firearms in the home are not, in and of themselves, contraband. Contraband is defined as "any goods which it is unlawful to import, export, or possess." Black's Law Dictionary 317 ed.1999). Here, firearms in the home are not contraband with respect to Erica because she has a constitutional right to keep arms,12 and the firearms are only contraband with respect to Conrad if it is established that he possessed them. By defining the firearms as contraband and then engaging in a constructive possession analysis, the majority "puts the cart before the horse" and engages in improper application of the law. Rather than relying upon the elements of constructive possession applicable to contraband to support Conrad's conviction, I believe that the majority should have examined the sufficiency of the evidence with respect to whether Conrad actually possessed the firearms. From the record, it is apparent to me that there was no actual possession by Conrad.
I would also note that Conrad's trial counsel rendered ineffective assistance in not tendering evidence regarding Erica's ownership of the guns, not objecting to the jury instruction regarding constructive possession, and not objecting to the trial court's reference to the second part of the trifurcated proceedings. Specifically, given the defense's primary argument that Conrad was merely present in the basement where the guns were kept, it was incompetent for Conrad's trial counsel not to have offered into evidence receipts showing that Erica purchased the guns. Such evidence would have bolstered the defense's argument that, while Conrad was found in the room containing the weapons, they were actually purchased and owned by Erica, who was a co-habitant of that room and who testified to being the sole possessor of the firearms. ~
As previously noted, I believe that the jury instruction regarding constructive possession was inappropriate in this instance as the firearms were not contraband. Moreover, trial counsel was ineffective for failing to object to three elements of that instruction, which were clearly irrelevant to the facts and cireumstances of this case and highly prejudicial to his client. In determining whether Conrad was in constructive possession of the firearms, the trial court instructed the jury that it could take into account, among other things, attempted flight or furtive gestures, the location of substances like drugs in settings that suggest manufacturing, *597and the mingling of the firearms with other items owned by the defendant. First, there is no evidence in the record of any attempt to flee or furtive gestures by Conrad. Thus, this element of the instruction was completely irrelevant and highly prejudicial as it raises an inference of bad acts not committed by the defendant. Moreover, our supreme court has repeatedly condemned instructing the jury on the issue of flight. See, eg., Dill v. State, T4l N.E.2d 1230, 1231-38 (Ind.2001). Second, the element of the instruction referencing drugs is highly inappropriate as the manufacture of drugs is not at issue in this case and was likely to invoke anti-drug sentiment in the jury, cause confusion in the minds of the jurors, and result in prejudice towards Conrad. Third, bearing in mind that firearms in the home are not contraband, the trial court's instruction to the jury that it could consider whether Conrad's possessions were mingled with the firearms was improper because the law does not provide that the mingling of personal effects with non-contraband items is evidence of possession of those items.
Finally, I believe that trial counsel was ineffective for failing to object to the trial court's reference in its final instruction number three to the fact that Conrad's trial before the jury would take place in two parts.13 Specifically, the trial court instructed the jury that the trial of this case would be in two stages, and that in the first stage. the jury must determine whether Conrad possessed the firearm, while in the second stage it would be called upon to decide "additional issues that would be presented and explained at that time." R. at 222. The trial court then informed the jury that it "will not be finding the defendant guilty or not guilty of any crime" during the first stage. R. at 222. The purpose of bifurcating parts one and two was presumably to insure that consideration of Conrad's prior felony convictions did not enter into the jury's determination on the predicate issue of possession. However, the trial court's instruction seems to imply that the second stage will inevitably take place, thereby assuming that the jury will find possession. The instruction also suggests that | the second stage, unlike the first, will involve a determination of whether the defendant is guilty of a crime. I believe that the trial court's reference to the see-ond part of the trial improperly injected an aspect of prejudice into the proceedings that the bifurcation was designed to avoid and that trial counsel was ineffective for failing to object to this prejudicial instruction.
In sum, I believe that there is insufficient evidence to support Conrad's convietion for possession of a firearm by a serious violent felon and that trial counsel's performance was objectively unreasonable and resulted in prejudice to his client. Therefore, I vote to reverse the conviction.
. Specifically, the majority cites Goliday v. State, 708 N.E.2d 4 (Ind.1999) (applying the constructive possession analysis in a case involving defendant's possession of cocaine and marijuana); Henderson v. State, 715 NE.2d 833 (Ind.1999) (applying the constructive possession analysis in a case involving whether defendant possessed firearms found in his vehicle); Goodner v. State, 685 N.E.2d 1058 (Ind.1997) (applying the constructive possession analysis in case involving cocaine); and In the Matter of J.L., 599 N.E.2d 208 (Ind.Ct. App.1992) (applying the constructive possession analysis in case involving cocaine).
. Article I, Section 32 of the Indiana Constitution provides: 'The people shall have the right to bear arms, for defense of themselves or the State."
. The proceeding was actually trifurcated. In part one, the trial court required the jury to find whether Conrad possessed the firearms. Then, in part two, the trial court asked the jury to determine whether Conrad was a serious violent felon. Finally, the trial court found Conrad to be a habitual offender.