ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

Mark Small					Jeffrey A. Modisett

Marion County Public Defender		Attorney General of Indiana

   Agency

Indianapolis, Indiana			Rosemary Borek

							Deputy Attorney General

							Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

ANTHONY HENDERSON,				)

							)

	Appellant (Defendant Below),	)

							)  49S05-9908-CR-440

		v.					)  in the Supreme Court

							)

STATE OF INDIANA,				)  49A05-9806-CR-320

							)  in the Court of Appeals

	Appellee (Plaintiff Below).	)

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable W.T. Robinette, Judge Pro Tempore

Cause No. 49G03-9707-CF-098498

September 1, 1999

SHEPARD, Chief Justice.

	How close to someone else's licensed handgun can you get before the law deems you to be "carrying" it without a license? 

The evidence in Anthony Henderson's case showed proximity, but no 

apparent action to exercise dominion over the gun.  This was insufficient to sustain his conviction.  We therefore reverse.  

Facts and Procedural History

	On July 5, 1997, Anthony Henderson was riding home from a barbeque in a car driven by his friend Jamal Finch.  About fifteen

minutes after leaving the party, Officer Robert Neeley of the

Indianapolis Police Department stopped the car.  The car's

"hydraulics" had been in operation and had apparently caused the

rear bumper of the car to fall below the required height of twenty-

four inches.1  Neeley approached the vehicle.  As Neeley shone his flashlight into the car, Finch told him that there were guns in the

vehicle.  The officer could see a semi-automatic pistol on the

transmission hump in the middle of the car and the handle of a

revolver under the front passenger seat.  Finch owned both guns and

had a permit for each.  

	Henderson was charged with carrying a handgun on or about his

person without a license.  After a bench trial, the court found him

guilty of carrying the firearm, a misdemeanor.  Henderson then

admitted a prior violation, making the offense a class C felony. 

The Court of Appeals affirmed.  Henderson v. State, No. 49A05-9806- CR-320, (Ind. Ct. App. Apr. 8, 1999).  We grant transfer.

I.  Indiana's Handgun Statute

	The Indiana Code section under which Henderson was charged is

relatively broad.  It provides that "a person shall not carry a

handgun in any vehicle or on or about his person, except in his

dwelling, on his property or fixed place of business, without a

license issued under this chapter being in his possession."  Ind.

Code Ann. § 35-47-2-1 (West 1998) (emphasis added).2

	The relative breadth of this language led us long ago to the conclusion that it encompasses more than moving about with a

firearm attached to one's body.  See, e.g., Woods v. State, 471 N.E.2d 691 (Ind. 1984) (handgun hidden under dashboard was

"carried").  The language chosen by our legislature thus never

generated here an energetic textual debate such as that conducted

in Muscarello v. United States, 118 S. Ct. 1911 (1998), on the meaning of the words Congress used to enhance drug-trafficking penalties when the offender "uses or carries a firearm."3

	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.  Woods, 471 N.E.2d 691.  Actual possession occurs when a person has direct

physical control over the item.  Walker v. State, 631 N.E.2d 1, 2 (Ind. Ct. App. 1994).  Constructive possession occurs when somebody

has "the intent and capability to maintain dominion and control

over the item."  Id.  We suggested in Woods that knowledge is a key element in proving intent:

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, if the control is non-exclusive, evidence

of additional circumstances pointing to the defendant's

knowledge of the presence of the contraband.

Woods, 471 N.E.2d at 694 (citations omitted).  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.  Carnes v. State, 480 N.E.2d 581, 586 (Ind. Ct. App. 1985).  Henderson was convicted of non-exclusive constructive possession upon proof of,

at most, two of the above circumstances:  proximity and plain view. 

	The circumstances surrounding this case suggest a question of

first impression:  whether one can have constructive possession of

a firearm when someone else has legal, actual, and simultaneous

possession of the same weapon.  We rarely encounter possession

cases in which anybody on the scene actually has a lawful permit. 

It leads us to examine whether knowledge and proximity are always

enough in instances of constructive, non-exclusive possession.

II.  Other Cases Like This One

	The opinion in Klopfenstein v. State, 439 N.E.2d 1181 (Ind. Ct. App. 1982), is informative for today's purposes.  In that case, an officer approached a vehicle shortly after midnight and saw two

shotguns in plain view—--one in the driver's area of the front seat and one across the laps of two passengers in the back seat.  Id. at 1184.  He also observed a pistol fall out of the front seat of the

car when the passenger in the front seat exited the vehicle.  Id.  As he searched the car, the officer saw the butt of a pistol under

the driver's seat.  The police arrested Klopfenstein, the driver of

the car, and he was later convicted of carrying a handgun without

a license, among other things.  Id. at 1183.  

	The court recognized that the mere presence of a passenger in

an automobile is not sufficient to establish his control and

dominion over the contraband.  Id. at 1184-85.  It concluded that since Klopfenstein was the driver, however, his dominion and

control over the vehicle supported an inference of his dominion and

control over the gun.  Id. at 1185.  The court derived this reasoning in part from an analogous case concerning constructive

possession of drugs rather than weapons.  Id. (citing Phillips v. State, 160 Ind. App. 647, 313 N.E.2d 101 (1974).

	This Court used a similar analysis in an exclusive possession

setting.  In Woods, 471 N.E.2d 691, the defendant owned a car and loaned it to a friend.   About twenty-four hours after borrowing

the car and while in possession of it, Woods' friend was killed.  Id. at 692.  Woods retrieved his car.  Some four days after the death of his friend, the police stopped Woods in the vehicle and subsequently searched the car.  Id.  During the search, the police found a handgun hidden under the dashboard and live ammunition

compatible with the gun on the front seat.  Woods was convicted of

illegal possession of a handgun.  We held that Woods' undisputed

control over his own car for four days was sufficient to establish

his exclusive dominion over the gun.  Id. at 694.  We also noted that, had we accepted Woods' contention that his friend's

possession of the car four days earlier rendered Woods' possession

non-exclusive, the compatible ammunition on the front seat was

among additional circumstances establishing his constructive

possession.  Id.4

	In Taylor v. State, 482 N.E.2d 259 (Ind. 1985), a strikingly similar case, we affirmed a conviction involving constructive

possession of a firearm.  The police stopped a vehicle that had

just run through a red light.  Two men (one of them Taylor) exited

the vehicle as an officer approached.  Upon inspecting the car the

police found two firearms—--a revolver and a semi-automatic.  Both were in plain view with one gun in the middle of the front seat and

the other on the floor directly in front of the front passenger

seat.  Neither man had a permit for either weapon.  Taylor

testified that he had been in the car for about fifteen minutes and

did not know of the presence of either gun in the car.  Relying on Woods, we concluded that Taylor had constructive possession.   Taylor, 482 N.E.2d at 262.  We noted that Taylor "had primary control over the .45 lying between his feet and was in the best

position to gain actual control of the weapon[,] . . . but it would

be difficult, if not impossible, for the driver to reach."  Id. at 261.  

	In Hoffman v, State, 520 N.E.2d 436 (Ind. 1988), this Court sustained a conviction for carrying a handgun without a license. 

In that case, the police stopped three suspected burglars (one of

them Hoffman) and found three weapons in their car.  None of the

men had permits for the weapons.  We thought it persuasive that

each of the weapons were found under a respective passenger's seat. 

The Court held that the jury could have reasonably inferred that

each passenger had discarded his weapon under his respective seat

once the police stopped the vehicle and asked the occupants to

exit.  Id. at 437.

	In Person v. State, 661 N.E.2d 587 (Ind. Ct. App. 1996), an officer stopped a vehicle for running a stop sign.  As he

approached the car, he noticed a passenger in the left rear seat. 

He saw the passenger reach behind his back for no apparent reason. 

Id.  Fearful of his safety, the officer ordered the passenger, Person, out of the car.  Id. at 589.  As Person alighted, the officer noticed a semi-automatic weapon on the rear seat.  Id.  Person was convicted of unlicensed possession of a handgun.  The

Court of Appeals agreed that the facts  presented a number of circumstances supporting constructive possession.  Id. at 590.  Person was in close proximity to the weapon and had made a furtive

gesture whichthat suggested he was trying to hide the firearm.  Id.   It affirmed.

	In Cole v. State, 588 N.E.2d 1316 (Ind. Ct. App. 1992), an officer stopped a vehicle driving erratically.  During his

investigation, he received a radio dispatch describing a "get-away"

car in a recent robbery.  The car he had stopped matched the

description.  Id. at 1317.  He discovered a revolver on the floorboard behind the driver side seat.  Cole, a passenger in the

front seat, was convicted of robbery, criminal confinement, and

carrying a handgun without a license.  The Court of Appeals

reversed in part, agreeing with Cole's assertion that the evidence

was insufficient to sustain his handgun conviction.  The fact that

Cole was a passenger in the front seat of a car in which a firearm

was found on the driver's side back floorboard was held

insufficient to support the inference that Cole had possessed the

firearm.  Id. at 1319.         

	The rationale behind Cole was reiterated in Walker,  631 N.E.2d 1.  In Walker, an officer found a  handgun in the trunk of a car he had just pulled over.  The Court of Appeals reversed, emphasizing

that a conviction for "carrying" required proof "that the defendant

had an unlicensed handgun on his or her person."  Id. at 2.  The court held the evidence that Walker was a passenger in the front seat of a car with a handgun in its trunk insufficient to support

the inference that Walker hasd at one time carried the weapon on his

person.  Id.

III. How Does the Case Law Fit Henderson?

	From this abundance of case law that involves constructive 

possession in a vehicle in which other people are present or have

been present, we derive a few general conclusions applicable to

today's task.

	While mere presence in a vehicle with multiple riders and

multiple weapons is not sufficient, a driver who has a gun at his

feet in plain view may be convicted of carrying the gun. 

Klopfenstein, 439 N.E.2d 1184. 

	For reasons that seem easier to grasp, a driver who had access

to and control of the car for several days may be deemed to carry

the weapons in the car, even though the car had earlier been used

by a friend.  Woods, 471 N.E.2d 691.

	When a car has multiple passengers, each with a gun at his

feet, and no one has a license for any of them, a jury can find

them all guilty of carrying.  Hoffman, 520 N.E.2d 436.  Just a step away analytically, when a car has multiple passengers, a gun near a backseat passenger and no permit, the jury can infer possession

by that passenger, especially when the testimony indicates that the

passenger tried to hide the weapon.  Person, 297 N.E.2d 870.   

	A passenger in the front seat, without more, is not deemed to

possess a gun located on the floor behind the driver.  Cole, 558 N.E.2d 1313.  And a passenger is not deemed to carry a gun located

in the trunk.  Walker, 631 N.E.2d 1.

Conclusion

	The ultimate question is whether there is substantial evidence

to prove beyond a reasonable doubt that passenger Henderson

"carried" the handgun.  To be sure, he knew it was at his feet and

could have picked it up.  On the other hand, driver Jamal Finch

owned the gun, had a permit for it, and was likewise within reach

of the gun.  Without evidence of any movement or action to suggest

Henderson exercised dominion, we conclude the evidence was

insufficient to sustain his conviction.

	Accordingly, we reverse.  

Dickson, Sullivan, Selby, and Boehm, JJ., concur.