Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JV-828 | June 9, 2015 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

Karen Celestino-Horseman

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

D.B.,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner

June 9, 2015

Court of Appeals Case No.

49A02-1410-JV-757

Appeal from the Marion Superior 

Court.

The Honorable Marilyn Moores, 

Judge.

The Honorable Gary Chavers, 

Magistrate.

Cause No. 49D09-1404-JD-828

Baker, Judge.
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[1] D.B. appeals after he was adjudicated delinquent for committing an offense that 

would have been Carrying a Handgun Without a License,1 a class A 

misdemeanor, had it been committed by an adult. D.B. raises two arguments 

on appeal, one of which we find dispositive: D.B. contends that the evidence is 

insufficient to support the adjudication. We agree, and reverse.

Facts

[2] D.B. was sixteen years old in March 2014. On March 7, 2014, Indianapolis

Metropolitan Police Department Officer Kenneth Kuntz observed a young 

man, later identified as an individual named D.P., begin charging another 

young man “in a fighting manner,” in the parking lot of a fast food restaurant. 

Tr. p. 11. Officer Kuntz exited his vehicle and told D.P. he needed to talk with 

him. The officer then observed a blue vehicle quickly back up in the parking 

lot. D.P. jumped into the backseat of the vehicle behind the passenger seat, and 

the vehicle drove away.

[3] Officer Kuntz began following the vehicle, which was being driven by D.B., 

eventually turning on his lights to signal D.B. to pull over. D.B. pulled over 

within a reasonable amount of time after the officer turned on his lights.

[4] While Officer Kuntz spoke with D.B., Officer Dustin Carmack spoke with D.P. 

D.B. produced an Indiana temporary driver’s permit and D.P. refused to 

 

1

Ind. Code § 35-47-2-1.
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provide any identification. Both officers asked D.P. to step out of the vehicle. 

After the backseat door was opened and as D.P. was stepping out, Officer 

Kuntz noticed a handgun sticking out from under the front passenger seat into 

the rear floorboard of the vehicle, between D.P.’s feet. As Officer Kuntz pulled 

the gun out, a second gun slid out from under the front passenger seat.

[5] After the officers found the guns, Officer Carmack asked D.B. to exit the 

vehicle, and both D.B. and D.P. were seated on a curb and handcuffed. Officer 

Carmack stood behind them and watched as Officer Kuntz completed a search 

of the vehicle. Officer Carmack overheard D.B. ask D.P. “if he was going to 

take the gun . . . , and telling [D.P.] that he had a gun charge.” Id. at 61. 

Although both guns were tested for fingerprint and DNA evidence, no physical 

evidence resulted that linked D.B. to either weapon. Id. at 43.

[6] On April 30, 2014, the State filed a petition alleging D.B. had committed acts 

that would be class A misdemeanor carrying a handgun without a license and 

class A misdemeanor dangerous possession of a firearm had the acts been 

committed by an adult. On September 18, 2014, the juvenile court held a factfinding hearing. At the close of the hearing, the juvenile court adjudicated D.B. 

a delinquent for carrying a handgun without a license and found that the second 

count merged into the first. On September 30, 2014, the juvenile court held a 

dispositional hearing and ordered D.B. committed to the Department of 

Correction until the age of twenty-one, for at least twelve months. D.B. now 

appeals.
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Discussion and Decision

[7] Although D.B. makes two arguments on appeal, we find his argument that the 

evidence is insufficient to sustain his adjudication to be dispositive. When the 

State seeks to have a juvenile adjudicated as a delinquent for committing an act 

that would be a crime if committed by an adult, the State must prove every 

element of the crime beyond a reasonable doubt. M.S. v. State, 889 N.E.2d 900, 

901 (Ind. Ct. App. 2008). In reviewing a juvenile adjudication, we will consider 

only the evidence and reasonable inferences supporting the judgment and will 

neither reweigh evidence nor judge the credibility of the witnesses. Id. If there 

is substantial evidence of probative value from which a reasonable trier of fact

could conclude that the juvenile was guilty beyond a reasonable doubt, we will 

affirm the adjudication. Id.

[8] D.B. was found delinquent for committing an act that would be class A 

misdemeanor carrying a handgun without a license. Indiana Code section 35-

47-2-1(a) provides that subject to certain exceptions not at issue in this case, “a 

person shall not carry a handgun in any vehicle . . . without being licensed 

under this chapter to carry a handgun.” Indiana Code section 35-47-2-23 

provides that a person who violates section 1 of the chapter commits a class A 

misdemeanor.2

 

2 These statutes were modified with an effective date of July 1, 2014; in relevant part, Indiana Code section 

35-47-2-23 was repealed and relocated to be subsection (e) of section 35-47-2-1. As D.B. committed the 

alleged offenses herein prior to July 1, 2014, we will apply and cite to the earlier versions of the statutes.
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[9] Our Supreme Court has explained that to convict a defendant of carrying a 

handgun in a vehicle, the State must prove that the defendant either actually or 

constructively possessed the handgun. Henderson v. State, 715 N.E.2d 833, 835-

36 (Ind. 1999). It is undisputed that in the instant case, D.B. did not have 

actual possession of the handguns. We turn, therefore, to the concept of 

constructive possession. The Henderson Court has described this concept as 

follows:

Constructive possession occurs when somebody has “the intent and 

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

suggested in Woods v. State, 471 N.E.2d 691 (Ind. 1984),] 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.

Id. at 835-36. Turning to the instant case, we consider each of these factors in 

turn.
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[10] 1. Incriminating statements by the defendant. The State argues that D.B.’s 

questioning of D.P. as to whether he was going to take responsibility for the 

gun is an incriminating statement. We cannot agree. This statement was made 

after the guns were found by the officers, so it establishes no prior knowledge of 

the weapons’ presence in the car. And a mere question to a car passenger as to 

whether he intended to accept responsibility for a gun, with an accompanied 

explanation that the speaker has a prior gun charge, does not tend to 

incriminate the speaker in the possession of the gun.

[11] 2. Attempted flight or furtive gestures. As soon as Officer Kuntz activated his 

police lights, D.B. pulled over the vehicle. He made no furtive gestures, and 

Officer Kuntz testified that D.B. did not seem to be attempting to evade him 

when he drove away from the parking lot.

[12] 3. Location of contraband in settings that suggest manufacturing. This factor is not 

relevant to this case.

[13] 4. Proximity of the contraband to the defendant. The handguns were underneath 

the passenger’s seat, with the handle of one sticking out into the backseat area. 

There is no evidence regarding the proximity of the weapons to D.B., who was 

in the driver’s seat. There is no evidence regarding D.B.’s ability to reach back 

for the weapons. 

[14] 5. Location of the contraband within the defendant’s plain view. The handle of one of 

the handguns was sticking out slightly into the backseat area. The officers were 
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unable to see the handgun until the door was opened. There is no evidence 

establishing that D.B. was able to see either handgun.

[15] 6. The mingling of the contraband with other items owned by the defendant. There 

was no mingling of the weapons with items owned by D.B.

[16] In addition to all of these factors, we note that it is undisputed that D.B. did not 

own the vehicle being driven. There is no evidence establishing how long he 

had been driving it, to what extent the vehicle was actually under his control, or 

what knowledge he had or should have had of the contents of the vehicle.

[17] It is readily apparent that this record does not support a reasonable inference 

that D.B. had knowledge of the presence of the handguns in the vehicle. None 

of the circumstances set forth by our Supreme Court tend to support a claim 

that D.B. had dominion and control of the handguns. Therefore, we cannot 

conclude that the evidence supports a conclusion that D.B. carried a handgun 

in the vehicle. Given this record, we are compelled to conclude that there is 

insufficient evidence supporting the adjudication.

[18] The judgment of the juvenile court is reversed and remanded with instructions 

to vacate the adjudication.

Najam, J., and Friedlander, J., concur.