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.

A TTORNEY FOR A PPELLANT Timothy J. Burns Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Collin McAllister, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff October 27, 2015 Court of Appeals Case No. 49A04-1502-CR-00081 Appeal from the Marion Superior CourtThe 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 wh ich Collin McAllister was riding as the front-seat passenger, McAllister — who wa s 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 in deed found beneath the front seat of the car, and McAllister did not have a lice nse to carry a handgun. We find that McAllister’s knowledge of and proximity to the gun is suffi cient evidence to establish his constructive possession, and thus we affirm his conviction for Class A misdemeanor carrying a handg un without being licensed. 

# Facts and Procedural History

[2] One afternoon in October 2014, Indianap olis 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 fr ont-seat passenger and one back-seat passenger. Officer Forrest ran the car’ s license plate and learned that the driver’s license was suspen ded. The officer activate d his emergency lights, and the car came to a stop in a residential driveway on Tulip Drive, where the car’s front-seat passenger, Colli n 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.Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 3 of 6 [3] Then McAllister stopped and asked Officer Forrest if he could speak with him. McAllister said, “Officer Forrest I’m probabl y 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 under neath 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 ha d 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 Cl ass A misdemeanor ca rrying a handgun without a license. See Appellant’s App. p. 13. During the bench trial, Defense counsel objected to the admission of th e gun into evidence, arguing that there was a chain-of-custody problem. Specific ally, Officer Cook had testified that the box in which the gun was kept in th e property room was not in the same condition as when he submitted it — th e 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 fo und 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 beingCourt of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 4 of 6 licensed. Our standard of reviewing claims of sufficien cy of the evidence is well settled. When reviewing the sufficiency of the evidence, we consider only the probative evidence and reasonable in ferences 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 asse ss 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-finde r could find the elements of the crime proven beyond a r easonable doubt. Id . It is not necessar y that the evidence overcome every reasonable hy pothesis of innocence. Id . The evidence is sufficient if an inference may be reas onably 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 re quired to prove be yond a reasonable doubt that he carried a handgun in a ve hicle 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 ev idence of actual or constructive possession. Grim v. State , 797 N.E.2d 825, 831 (Ind. Ct. App. 2003). Actual possession occurs when a pe rson has direct physical control over the item. Henderson v. State , 715 N.E.2d 833, 835 (Ind. 1999). Constructive possession occurs wh en an individual has the intent and capability to maintain dominion and control over the item. Id . Suggesting that knowledge is a keyCourt of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 5 of 6 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] co ntaining the contraband or, if the control is non-exclusive, evid ence of additional circumstances pointing to the defendant’s know ledge 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 cont rol over contraband has been found through a variety of means: (1) incrimin ating 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 fr ont passenger seat, where McAllister had been sitting. Most significant, however, is McAllister’s unambiguous knowledge that the gun was there, and his incriminat ing 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. Th is is sufficient to es tablish 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.Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-000081 | October 27, 2015 Page 6 of 6 McAllister’s other propos ed scenarios and interpre tations of McAllister’s statement to Officer Forrest — “[I]t coul d have been that [McAllister], being concerned for Officer Forrest’s safety, mo tivated 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 ch ain 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 vehicl e” 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 argume nt, we note that Officer Cook’s testimony as to the make, mode l, 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 co nfiscated during th e traffic stop.