Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-428 | December 16, 2016 Page 1 of 7

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. O’Connor

O’Connor & Auersch

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Paula J. Beller

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Marquis Lewins,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 16, 2016

Court of Appeals Case No.

49A02-1603-CR-428

Appeal from the Marion Superior 

Court

The Honorable Peggy Hart, Master 

Commissioner

Trial Court Cause No.

49G20-1410-F4-47928

Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-428 | December 16, 2016 Page 2 of 7

Case Summary

[1] Marquis Lewins appeals his conviction for Level 4 felony unlawful possession 

of a firearm by a serious violent felon. We affirm.

Issue

[2] Lewins raises one issue, which we restate as whether the evidence is sufficient 

to prove that he possessed a firearm.

Facts

[3] On October 10, 2015, officers with the Indianapolis Metropolitan Police 

Department were executing a no knock search warrant at a residence on King 

Avenue in Indianapolis. Officer Kenneth Kunz was part of the SWAT team 

executing the warrant. As other officers were entering the front door, Officer 

Kunz was standing next to a bedroom window. The bedroom window was 

open six to eight inches, and he saw Lewins in the bedroom. Officer Kunz 

yelled into the bedroom, “Police. Search Warrant. Show your hands. Stop. 

Show your hands.” Tr. p. 44. However, Lewins looked at Officer Kunz and 

“went about what he was doing.” Id. at 45. Lewins removed a grate from a 

floor heat register and placed cocaine in the register. He then retrieved a bag of 

marijuana off of an aquarium and placed it in the register too. Lewins also 

opened a built-in cupboard in the bedroom, retrieved an item, and placed it in 

his waistband. Lewins then left the bedroom and locked himself in a bathroom. 

The officers eventually kicked in the bathroom door, deployed a flash bang 
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device, and apprehended Lewins. Two other people were also apprehended in 

the house.

[4] The officers found marijuana on Lewins. They also found marijuana and 

cocaine in the register. In the bedroom where Lewins was seen, officers found 

a handgun under the mattress and another handgun in the cupboard. In the 

cupboard, officers also found marijuana, a box of syringes with Lewins’s name 

on it, paperwork bearing Lewins’s name and the address of the King Avenue 

house, a box of Accu-Chek Softclix with Lewins’s name on the box, and 

prescription medications in Lewins’s name. A third handgun was found in a

kitchen cabinet along with marijuana and digital scales. In a kitchen drawer, 

officers found an electric bill for the house addressed to Lewins.

[5] DNA testing on the handgun found under the mattress revealed a mixture of 

DNA profiles of Lewins and an unidentified person. DNA testing on the 

handgun found in the cupboard also revealed a mixture of DNA profiles of 

Lewins and another individual with Lewins being the major contributor. 

[6] The State charged Lewins with: Count I, Level 4 felony unlawful possession of 

a firearm by a serious violent felon; Count II, Level 6 felony possession of 

cocaine, enhanced to a Level 5 felony based on a prior conviction; and Count 

III, Class B misdemeanor possession of marijuana, enhanced to a Level 6 

felony based on a prior conviction. The State also alleged that Lewins was an 

habitual offender. In a bifurcated trial, the jury found that Lewins had 

unlawfully possessed a firearm, and Lewins stipulated that he was a serious 
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violent felon. The jury also found that Lewins had possessed cocaine and 

marijuana, and Lewins stipulated to his prior convictions and his status as an 

habitual offender. The trial court entered judgments of conviction on Count I, 

on the unenhanced convictions for Counts II and III, and on Lewins’s status as 

an habitual offender. The trial court sentenced Lewins to eighteen years in the 

Department of Correction. Lewins now appeals.

Analysis

[7] Lewins argues that the evidence was insufficient to show that he possessed a 

handgun. Lewins does not challenge his other convictions or his status as an 

habitual offender. In reviewing the sufficiency of the evidence, we neither 

reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 

N.E.3d 1065, 1066 (Ind. 2015). We only consider “the evidence supporting the 

judgment and any reasonable inferences that can be drawn from such 

evidence.” Id. A conviction will be affirmed if there is substantial evidence of 

probative value supporting each element of the offense such that a reasonable 

trier of fact could have found the defendant guilty beyond a reasonable doubt. 

Id. “‘It is the job of the fact-finder to determine whether the evidence in a 

particular case sufficiently proves each element of an offense, and we consider 

conflicting evidence most favorably to the trial court’s ruling.’” Id. at 1066-67 

(quoting Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)). 

[8] Indiana Code Section 35-47-4-5(c) provides: “A serious violent felon who 

knowingly or intentionally possesses a firearm commits unlawful possession of 
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a firearm by a serious violent felon, a Level 4 felony.” A conviction for 

possession of contraband may rest upon proof of either actual or constructive 

possession. Houston v. State, 997 N.E.2d 407, 409-10 (Ind. Ct. App. 2013). 

Actual possession occurs when a person has direct physical control over the 

item. Id. at 410. A person constructively possesses contraband when the 

person has: (1) the capability to maintain dominion and control over the item; 

and (2) the intent to maintain dominion and control over it. Gray v. State, 957 

N.E.2d 171, 174 (Ind. 2011). Although the State argues that Lewins had actual 

possession of the weapons, Lewins argues that he did not have actual or

constructive possession. We need only address whether Lewins had 

constructive possession.

[9] “The capability prong [of constructive possession] may be satisfied by ‘proof of 

a possessory interest in the premises in which [contraband is] found.’” Houston, 

997 N.E.2d at 410 (quoting Monroe v. State, 899 N.E.2d 688, 692 (Ind. Ct. App. 

2009)). “This is so regardless of whether the possession of the premises is 

exclusive or not.” Id. The State presented evidence that Lewins was seen in the 

bedroom where two of the guns were located immediately before they were 

found. He was also seen taking an item out of the cupboard where one of the 

guns was found. The officers also found an electric bill for the house bearing 

Lewins’s name. The State presented sufficient evidence to prove that Lewins

had the capability to maintain dominion and control over the handguns.

[10] With regard to the intent prong of the test, where a defendant’s possession of 

the premises upon which contraband is found is not exclusive, the inference of 
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intent to maintain dominion and control over the drugs must be supported by 

additional circumstances pointing to the defendant’s knowledge of the nature of 

the controlled substances and their presence. Id. Those additional 

circumstances include: (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 v. State, 715 N.E.2d 833, 836 (Ind. 1999). 

[11] The State presented evidence that Lewins ignored Officer Kunz’s commands 

and locked himself in the bathroom during the execution of the search warrant. 

Officer Kunz saw Lewins in close proximity to the handgun under the mattress 

and the handgun in the cupboard. Further, items belonging to Lewins were 

found in the cupboard with the handgun. Finally, Lewins’s DNA was found on 

both weapons. The State presented sufficient evidence to show that Lewins had 

the intent to maintain dominion and control over the weapons found in the 

bedroom.1 

[12] Because we conclude that Lewins had constructive possession of the weapons, 

we need not address whether he had actual possession. We conclude that the 

 

1 The State also argues that Lewins had constructive possession of the handgun found in the kitchen. As we 

have found Lewins had constructive possession of the handguns found in the bedroom, we need not address 

this argument.
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evidence is sufficient to sustain Lewins’s conviction for Level 4 felony unlawful 

possession of a firearm by a serious violent felon.

Conclusion

[13] The evidence is sufficient to sustain Lewins’s conviction for Level 4 felony 

unlawful possession of a firearm by a serious violent felon. We affirm.

[14] Affirmed.

Bailey, J., and Riley, J., concur.