Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 1 of 6

MEMORANDUM DECISION 

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

Timothy J. Burns 

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller 

Attorney General of Indiana 

Richard C. Webster 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

Collin McAllister, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff 

October 27, 2015

Court of Appeals Case No. 

49A04-1502-CR-00081 

Appeal from the Marion Superior 

Court 

The Honorable Rebekah PiersonTreacy, Judge 

Trial Court Cause No. 

49G19-1410-CM-046717 

Vaidik, Chief Judge. 
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 2 of 6

Case Summary 

[1] After a police officer stopped a car in which Collin McAllister was riding as the 

front-seat passenger, McAllister — who was free to leave — voluntarily told the 

officer that he was “probably about to go to jail . . . because there’s a gun 

underneath the front seat.” A gun was indeed found beneath the front seat of 

the car, and McAllister did not have a license to carry a handgun. We find that 

McAllister’s knowledge of and proximity to the gun is sufficient evidence to 

establish his constructive possession, and thus we affirm his conviction for Class 

A misdemeanor carrying a handgun without being licensed. 

Facts and Procedural History 

[2] One afternoon in October 2014, Indianapolis Metropolitan Police Department 

Officer Ethan Forrest was patrolling the area of South Madison Avenue and 

Southport Road when he saw a car with passengers not wearing seatbelts. In 

addition to the driver, there was a front-seat passenger and one back-seat 

passenger. Officer Forrest ran the car’s license plate and learned that the 

driver’s license was suspended. The officer activated his emergency lights, and 

the car came to a stop in a residential driveway on Tulip Drive, where the car’s 

front-seat passenger, Collin McAllister, lived. Officer Forrest allowed 

McAllister to leave the car, and he and his father, who had come outside, began 

walking away from the car, toward their house. 
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[3] Then McAllister stopped and asked Officer Forrest if he could speak with him. 

McAllister said, “Officer Forrest I’m probably about to go to jail.” Tr. p. 12. 

When the officer asked him why, McAllister responded, “I’m going to go to jail 

because there’s a gun underneath the front seat.” Id. Officer Forrest recovered 

a Cobra .380 semi-automatic pistol, with serial number 05822, from beneath the 

front-passenger seat, where McAllister had been sitting. The officer determined 

that McAllister did not have a valid handgun license. Thereafter, Officer 

Fritsche of the IMPD photographed the gun and then gave it to Officer Cook, 

IMPD, who took it to the property room. 

[4] The State charged McAllister with Class A misdemeanor carrying a handgun 

without a license. See Appellant’s App. p. 13. During the bench trial, Defense 

counsel objected to the admission of the gun into evidence, arguing that there 

was a chain-of-custody problem. Specifically, Officer Cook had testified that 

the box in which the gun was kept in the property room was not in the same 

condition as when he submitted it — the red tape had been removed from the 

box and replaced with yellow tape. The trial court overruled the objection, 

allowed the admission of the gun, and found McAllister guilty as charged. 

[5] McAllister now appeals his conviction. 

Discussion and Decision 

[6] On appeal McAllister contends that the evidence is insufficient to sustain his 

conviction for Class A misdemeanor carrying a handgun without being 
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licensed. Our standard of reviewing claims of sufficiency of the evidence is well 

settled. When reviewing the sufficiency of the evidence, we consider only the 

probative evidence and reasonable inferences supporting the verdict. Boggs v. 

State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We do not 

reweigh the evidence or assess witness credibility. Id. We consider conflicting 

evidence most favorably to the trial court’s ruling. Id. We will affirm the 

conviction unless no reasonable fact-finder could find the elements of the crime 

proven beyond a reasonable doubt. Id. It is not necessary that the evidence 

overcome every reasonable hypothesis of innocence. Id. The evidence is 

sufficient if an inference may be reasonably drawn from it to support the 

verdict. Id. A conviction may be based upon circumstantial evidence alone. 

Id. 

[7] In order to convict McAllister of Class A misdemeanor carrying a handgun 

without being licensed, the State was required to prove beyond a reasonable 

doubt that he carried a handgun in a vehicle or on or about his body without 

being licensed to do so. See Ind. Code § 35-47-2-1(a), (e). To prove that the 

defendant had control of the weapon, the State may present evidence of actual 

or constructive possession. Grim v. State, 797 N.E.2d 825, 831 (Ind. Ct. App. 

2003). Actual possession occurs when a person has direct physical control over 

the item. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Constructive 

possession occurs when an individual has the intent and capability to maintain 

dominion and control over the item. Id. Suggesting that knowledge is a key 
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element in proving intent, our Supreme Court has repeatedly enunciated the 

following rule: 

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[s] 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. 

Grim, 797 N.E.2d at 831 (quoting Woods v. State, 471 N.E.2d 691, 694 (Ind. 

1984)). Proof of dominion and control over 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 contraband with other items owned by the defendant. 

Henderson, 715 N.E.2d at 836. 

[8] Here, the gun was found beneath the front passenger seat, where McAllister 

had been sitting. Most significant, however, is McAllister’s unambiguous 

knowledge that the gun was there, and his incriminating statement to Officer 

Forrest that he was “probably about to go to jail . . . because there’s a gun 

underneath the front seat.” Tr. p. 12. This is sufficient to establish McAllister’s 

constructive possession of the gun — that he had the intent and capability to 

maintain control and dominion over it. See Henderson, 715 N.E.2d at 835. 
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McAllister’s other proposed scenarios and interpretations of McAllister’s 

statement to Officer Forrest — “[I]t could have been that [McAllister], being 

concerned for Officer Forrest’s safety, motivated him to inform of the gun to 

Officer Forrest[,]” Appellant’s Br. p. 7 — are simply requests for us to reweigh 

the evidence, which we cannot do. We find the evidence is sufficient to support 

McAllister’s conviction.1

 

[9] Affirmed. 

Robb, J., and Pyle, J., concur. 

 

[1] 1 McAllister in his appellate brief also “mentions the chain of custody issue only because trial counsel made 

the record by objection.” Appellant’s Br. p. 9. He then concedes that Officer Cook “identified the firearm as 

the one he retrieved from the vehicle” and points out that any chain-of-custody argument would go to the 

weight of the evidence and not its admissibility. Id. (citing Gambill v. State, 479 N.E.2d 523 (Ind. 1985)). 

Although he has effectively waived this issue by failing to develop a cogent argument, we note that Officer 

Cook’s testimony as to the make, model, and serial number of the gun – a non-fungible item – coupled with 

his retrieval of the gun from the evidence room, where it was located in a box with a property sheet that 

included the name of the submitting officer, McAllister’s name, and the date of arrest, was sufficient to 

establish that this was the same gun confiscated during the traffic stop.