Court of Appeals of Indiana | Opinion 82A05-1605-CR-1153 | January 18, 2017 Page 1 of 12

ATTORNEY FOR APPELLANT

Matthew J. McGovern

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jeremiah Edward Ericksen,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 18, 2017

Court of Appeals Case No.

82A05-1605-CR-1153

Appeal from the Vanderburgh 

Circuit Court

The Honorable Kelli E. Fink, 

Judge

Trial Court Cause No.

82C01-1511-F5-7086

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Defendant, Jeremiah Edward Ericksen (Ericksen), appeals his 

conviction for carrying a handgun without a license, a Class A misdemeanor, 

Ind. Code § 35-47-2-1(e), enhanced to a Level 5 felony based on a prior 

conviction; and resisting law enforcement, a Level 6 felony, I.C. § 35-44.1-3-1.

[2] We affirm.

ISSUES

[3] Ericksen raises two issues on appeal, which we restate as: 

(1) Whether the State presented sufficient evidence beyond a reasonable 

doubt to support Ericksen’s conviction for carrying a handgun without a 

license; and 

(2) Whether the trial court tendered a proper jury instruction on the charge 

of carrying a handgun without a license. 

FACTS AND PROCEDURAL HISTORY

[4] In September 2015, Detective James Budde (Detective Budde) of the 

Vanderburgh County Sheriff’s Department initiated an undercover operation to 

purchase a handgun from Ericksen. During a meeting on October 8, 2015, 

Ericksen showed Detective Budde a black and silver Taurus .45 caliber 
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handgun and referred to it as a “throwaway.”1

 (Transcript p. 169). The 

following month, on November 8, 2015, Detective Budde discussed with 

Ericksen the purchase of the Taurus handgun and Ericksen indicated that if this 

sale went smoothly, they could conduct future firearms transactions. They 

scheduled the purchase for November 11, 2015.

[5] On November 11, 2015, officers conducting surveillance on Ericksen witnessed 

him putting a black bag, a “possible gun case type thing,” inside the trunk of a 

black Jaguar, which was registered to Marilyn Ericksen (Marilyn). (Tr. p. 150). 

Ericksen got into the back seat of the vehicle, directly behind the driver. Shortly 

after the vehicle crossed into Vanderburgh County, Indiana, on the Lloyd 

Expressway, officers conducted a traffic stop. During the stop, the officers held 

the occupants of the vehicle at gunpoint because of the high risk that Ericksen 

might be armed and ordered the occupants to exit the Jaguar. The front 

passenger, believed to be Ericksen’s son, exited and was placed in handcuffs 

and seated in the police car. While the female driver, later identified as 

Marilyn, was complying with the officers’ orders, Ericksen opened his car door 

and started cursing the officers. He jumped out of the car, smashed a full can of 

Coke on the ground, and yelled “to shoot him and kill him.” (Tr. p. 93). He 

started “pumping up, throwing his hands, [and] clinching his fists.” (Tr. p. 44). 

When Ericksen charged the officers, Officer Robert Schmitt (Officer Schmitt) 

 

1 A “throwaway” is a term typically “used by a criminal with a firearm that has no direct ties to that person, 

so if it’s used in the commission of a crime, it cannot be traced back to them.” (Transcript p. 169). 
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deployed his K-9 partner, Boss. Boss bit Ericksen in his stomach and forced 

him to the ground. While officers approached to place Ericksen in custody, 

Officer Schmitt ordered Boss to release Ericksen. Although Ericksen initially 

put his hands out, he continued to resist after Boss withdrew. 

[6] Subsequent to Ericksen’s arrest, the officers obtained a search warrant for the 

Jaguar. During the search of the vehicle, officers discovered two empty firearm 

magazines and one loose round in the black bag in the trunk. Inside the 

vehicle, the officers discovered a Taurus handgun underneath the driver’s seat 

with the barrel of the handgun pointing towards the rear of the vehicle. 

[7] On November 16, 2015, the State filed its Information, charging Ericksen with 

carrying a handgun without a license, a Class A misdemeanor; theft of a 

firearm, a Level 6 felony; and resisting law enforcement, a Level 6 felony. The 

State additionally filed an enhancement of the carrying a handgun without a 

license charge to a Level 5 felony based on a prior conviction. On April 13 and 

14, 2016, the trial court conducted a jury trial. At the onset of the bifurcated 

trial, the State moved to dismiss the theft charge, which was granted by the trial 

court. After the evidence was presented, the jury returned a guilty verdict on 

the remaining two Counts. Ericksen pled guilty to the enhancement later that 

same day. 

[8] On May 10, 2016, the trial court sentenced Ericksen to four years for carrying a 

firearm without a license, as enhanced to a Level 5 felony, and to one year for 
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the offense of resisting law enforcement. The trial court ordered the terms to be 

served concurrently.

[9] Ericksen now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

I. Sufficiency of the Evidence 

[10] Ericksen contends that the State failed to present sufficient evidence beyond a 

reasonable doubt to support his conviction for carrying a firearm without a 

license.2

 When reviewing a claim of insufficient evidence, the appellate court 

will neither reweigh the evidence nor judge the credibility of the witnesses. 

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the 

probative evidence and reasonable inferences supporting the verdict. Id. And 

we must affirm “if the probative evidence and reasonable inferences drawn 

from the evidence could have allowed a reasonable trier of fact to find the 

defendant guilty beyond a reasonable doubt.” Id. 

[11] To convict Ericksen of carrying a handgun without a license as a Level 5 

felony, the State was required to establish beyond a reasonable doubt that 

Ericksen did knowingly or intentionally carry a handgun in or upon his vehicle

or person without a license in his possession after he had already been 

previously convicted for carrying a handgun without a license. See I.C. § 35-47-

 

2 Ericksen does not contest his conviction for resisting law enforcement.
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2-1. Focusing on the “carry” element of the offense, Ericksen argues that “there 

is no evidence that [Ericksen] ‘carried’ the handgun.” (Appellant’s Br. p. 13). 

In essence, Ericksen claims that because the statute requires a person to be 

carrying, rather than possessing a handgun, constructive possession is not an 

appropriate analysis to find a defendant guilty of carrying a handgun without a 

license.

[12] In support of his argument, Ericksen points to Walker v. State, 631 N.E.2d 1, 2 

(Ind. Ct. App. 1994), where we rejected the State’s argument that constructive 

possession of a handgun is sufficient to sustain a conviction for carrying a 

handgun without a license because the statute “speaks in terms of carrying a 

handgun” and “does not speak in terms of possessing a handgun.” However, in 

Henderson v. State, 715 N.E.2d 833 (Ind. 1999), our supreme court concluded 

otherwise. Focusing on Indiana’s handgun statute, the court explained:

The relative breadth of [the statute’s] language led us long ago to 

the conclusion that it encompasses more than moving about with 

a firearm attached to one’s body. . . . The liberality of the 

Indiana text has nevertheless obliged us to examine the sort of 

evidence adequate to demonstrate that a defendant “carried” the 

weapon. We have approached this task, and the similar question 

of “possessing” drugs, by characterizing the possession of 

contraband as either actual or constructive. Actual possession 

occurs when a person had direct physical control over the item. 

Constructive possession occurs when somebody had “the intent 

and capability to maintain dominion and control over the item.”

Id. at 835 (internal references omitted). See also Woods v. State, 471 N.E.2d 691 

(Ind. 1984) (handgun hidden under dashboard was “carried”). 
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[13] Here, Ericksen had no “direct physical control over the [handgun];”

accordingly, at trial, the State proceeded on a theory of constructive possession. 

See Bradshaw v. State, 818 N.E.2d 59, 62 (Ind. Ct. App. 2004). 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, 

where as here, the control is non-exclusive, with evidence of additional 

circumstances pointing to the defendant’s knowledge of the presence of the 

contraband. Woods, 471 N.E.2d at 694. 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. Henderson, 715 N.E.2d at 836. 

[14] The record reflects that Detective Budde had arranged to purchase a Taurus 

handgun from Ericksen on the evening of the traffic stop. The handgun 

recovered from the vehicle was “the same handgun that was shown to [him] by 

[Ericksen] on October 8, [2015]” when Detective Budde met with Ericksen 

during the undercover operation. (Tr. p. 167). Before stopping the vehicle, an 

officer had observed that Ericksen placed a black bag in the trunk, that later was 

discovered to contain empty firearm magazines. During the stop and prior to 

Ericksen exiting the vehicle, Ericksen was seated in the backseat and appeared 
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“agitated, you could see his head bobbing back and forth[.]” (Tr. pp. 92-93). 

After Ericksen was arrested and a search warrant had been obtained, the 

officers located the Taurus handgun under the driver’s seat, immediately in 

front of where Ericksen had been sitting. The handgun was discovered in a 

holster with the barrel pointing towards the rear of the vehicle. 

[15] Accordingly, the evidence indicates that the handgun was found within easy 

reach of where Ericksen had been sitting, he had displayed the handgun during 

his meeting with Detective Budde, he made furtive movements during the 

traffic stop and charged the officers resulting in resisting arrest charges. Based 

on the totality of the circumstances, we conclude that sufficient evidence exists 

establishing that Ericksen constructively possessed the handgun while seated in 

the vehicle. 

II. Jury Instruction

[16] Next, Ericksen contends that the trial court’s final jury instruction erroneously 

broadened the factual allegations sustaining his charge of carrying a handgun 

without a license. Because instructing the jury is a matter within the sound 

discretion of the trial court, we will reverse a trial court’s decision to tender or 

reject a jury instruction only if there is an abuse of that discretion. Pattison v. 

State, 54 N.E.3d 361, 365 (Ind. 2016). We determine whether the instruction 

states the law correctly, whether it is supported by record evidence, and whether 

its substance is covered by other instructions. Id. Jury instructions are to be 

considered as a whole and in reference to each other; error in a particular 
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instruction will not result in reversal unless the entire jury charge misleads the 

jury as to the law in the case. Id. 

[17] Ericksen’s charging information for carrying a handgun without a license read 

as follows: 

[O]n or about November 11, 2015, [Ericksen] did knowlingly or 

intentionally carry a handgun in or upon the defendant’s vehicle or 

in person without a license in the defendant’s possession.

(Appellant’s App. Vol II, p. 11) (emphasis added). Ericksen now asserts that 

the trial court expanded these factual circumstances when it instructed the jury

by tendering:

In Count I, the statute defining the offense of [c]arrying a 

[h]andgun without a [l]icense, a Class A misdemeanor, which 

was in force at the time of the offense charged, reads in part as 

follows: A person who carries a handgun in any vehicle or on or 

about a person’s body, except in his dwelling, on his property, or 

fixed place of business, without a license being in possession, 

commits [c]arrying a [h]andgun without a [l]icense, a Class A 

misdemeanor. 

Before you may convict the Defendant in Count I, the State must 

have proved each of the following beyond a reasonable doubt:

1. The Defendant [Ericksen],

2. Carried a handgun in a vehicle or on or about his person

3. Away from Defendant’s dwelling, property, or fixed place of 

business.
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If the State failed to prove each of these elements beyond a 

reasonable doubt, you must find the Defendant not guilty of 

[c]arrying a [h]andgun without a [l]icense, a Class A 

misdemeanor, as charged in Count 1. 

(Tr. Vol. V, Final Instruction No. 2) (emphasis added).

[18] Essentially, Ericksen now alleges that “under the charging information [he]

could not be convicted for carrying a handgun in someone else’s vehicle, 

however, Final Jury Instruction No. 2 allows just such a conviction.” 

(Appellant’s Br. p. 22). He claims that this change left him unprepared to 

defend on the allegation because he prepared his defense based on the State’s 

inability to show he owned the Jaguar. As such, the instruction improperly 

expanded the charge and Ericksen’s “liability exposure.” (Appellant’s Br. p. 

22). 

[19] Ericksen relies on Kelly v. State, 535 N.E.2d 140 (Ind. 1989), to support his 

argument. In Kelly, the defendant was charged by information with nonconsensual criminal confinement, but the trial court instructed the jury on the 

statutory definition of criminal confinement, which includes both nonconsensual criminal confinement and criminal confinement by removal. Id. at 

141. The jury convicted the defendant on a general verdict. Id. at 142. Our 

supreme court reversed, holding that the jury instruction constituted prejudicial 

error because it was impossible to tell on which charge the jury had convicted 

the defendant. Id. at 143. We find Kelly to be inapposite to the case at hand as 
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the statute under which Ericksen was charged does not provide alternate factual 

bases for conviction such as the criminal confinement statute at issue in Kelly. 

[20] Here, the jury instruction followed the handgun statute verbatim and referred to 

the mandate that “a person shall not carry a handgun in any vehicle[.]” I.C. § 

35-47-2-1 (emphasis added). The language of the charging information was 

simply indicative of the fact that there was only one vehicle involved. 

Moreover, the recitation of the statutory elements in the instruction did not 

serve as a basis to mislead the jury under the facts and circumstances of this 

case, nor does Ericksen explain how he was misled to his detriment by the 

charging information. As noted by the trial court:

I did take a look at this and it does, the charging document does 

say that it alleged that the handgun was in or upon the 

defendant’s vehicle . . . I think that while they did not have to 

allege that they did, however, it seems to me if there were two 

vehicles involved in this case and I was allowing the State to 

present evidence as to a vehicle that was not factually known to 

the parties or a vehicle other than that charged in the charging 

document I think that would be a problem, but in this case 

there’s clearly, as far as I could tell, only one vehicle involved, it 

just has been delineated in the charging document as the 

defendant’s vehicle and I think if I make that change to the 

elements all I’m really doing is making the State prove an 

additional element that the vehicle belongs to the defendant and I 

don’t think that that is, that is not an element of carrying a 

handgun without a license, so for that reason I’m going to 

overrule that objection to [c]ourt’s instruction number 2.

(Tr. pp. 224-25). A finding of prejudicial error requires more than an overly 

broad jury instruction. Potter v. State, 684 N.E.2d 1127, 1132 (Ind. 1997). 
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Accordingly, we conclude that the trial court properly instructed the jury on the 

elements of the charge of carrying a handgun without a license. 

CONCLUSION

[21] Based on the foregoing, we hold that the State presented sufficient evidence 

beyond a reasonable doubt to support Ericksen’s conviction for carrying a 

handgun without a license; and the trial court tendered a proper jury instruction 

on the charge of carrying a handgun without a license

[22] Affirmed.

[23] Crone, J. and Altice, J. concur