Court of Appeals of Indiana | Memorandum Decision 71A03

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### 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 

### Ernest P. Galos South Bend, Indiana A TTORNEY S FOR 

### A PPELLEE 

### Curtis T. Hill, Jr. Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Brilan Keith Williams , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff August 16, 2017 Court of Appeals Ca se No. 71A03

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- 680 Ap peal from the St. Joseph Superior Court The Honorable Steven L. Hostetler, Judge The Honorable Keith Doi, Magistrate Trial Co urt Cause No. 71D07

- 1506

- CM

- 2233



### A ltice , Judge
.Court of Appeals of Indiana | Memorandum Decision 71A03

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### Case Summary

[1] 

### Following a bench trial, Brilan K. Williams was convicted of Class A misdemeanor carrying a handgun without a license and Class B misdemeanor possession of marijuana. On appeal, Williams argues that the State presented insufficient evidence to support his conviction for carrying a handgun without a license.

[2] 

### We affirm.
Facts & Procedural History

[3] 

### On June 22, 2015, Officer David Johnson of the South Bend Police Department was conducting traffic enforcement when he saw a blue Jeep Liberty with no front bumper make a right turn without signaling. Officer Johnson activated his vehicle’s lights to init iate a traffic stop, and the Jeep sped up and made another quick turn without signaling. The Jeep ultimately came to a stop in an alley behind a church, and Officer Johnson parked behind it and waited for backup to arrive. While he waited, Officer Johnso n saw three people inside the Jeep and observed the driver of the vehicle and the front

- seat passenger, who was later identified as Williams, moving around as though they were attempting to hide something.

[4] 

### Within two minutes, Officer Daniel Lawecki arriv ed to assist Officer Johnson. The two officers approached the Jeep, with Officer Lawecki approaching the passenger side and Officer Johnson approaching driver side. As the officersCourt of Appeals of Indiana | Memorandum Decision 71A03

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### approached, they smelled a strong odor of marijuana coming from inside th e Jeep. The officers asked Williams and the driver to exit the vehicle. During a pat

- down search, Officer Johnson felt an object in Williams’s pocket. Officer Johnson asked Williams what it was, and Williams responded, “I don’t know, go ahead and look.” Transcript at 16. Officer Johnson removed the item, which turned out to be a bag of marijuana.

[5] 

### Meanwhile, Officer Lawecki also saw the barrel of a hand gun sticking out from under the passenger seat where Williams had been sitting. The gun was a loaded .40 caliber Smith and Wesson. A subsequent search of the vehicle resulted in the discovery of another hand gun, a silver revolver, in the p ocket on the back of the driver’s seat. Officer Johnson determined that Williams did not have a license to carry a h andgun, and Williams was arrested and advised of his Miranda rights.

[6] 

### Officer Neil Graber then arrived to transport Williams to the county jail. Williams asked Officer Graber what he was being charged with, and Off icer Graber informed him of the charges. At that point, Williams told Officer Graber that “the Smith and Wesson .40 is mine, I will take it, I’m not a convicted felon.” Id. at 57.

[7] 

### Williams was charged with Class A misdemeanor carrying a handgun without a license and Class B misdemeanor possess ion of marijuana. A bench trial was held on October 25, 2016, and Williams was found guilty as charged. Williams now appeals.Court of Appeals of Indiana | Memorandum Decision 71A03

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### Discussion & Decision

[8] 

### Williams argues that the State presented insufficient evidence to support his conviction for carrying a ha ndgun without a license. In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State , 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the evi dence supporting the conviction and the reasonable inferences flowing therefrom. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime char ged beyond a reasonable doubt, the judgment will not be disturbed. Baumgartner v. State , 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficie nt if an inference may reasonably be drawn from it to support the conviction. Drane v. State , 867 N.E.2d 144, 147 (Ind. 2007).

[9] 

### Ind. Code § 35

- 47

- 2

- 1(a) provides in relevant part that “a person shall not carry a handgun in any ve hicle or on or about the person’ s body without being licensed under this chapter to carry a handgun.” In order to satisfy these elements, the State is required to prove that the defendant had either actual or constructive possession of a handgun. Deshazier v. State , 877 N.E.2d 2 00, 204 (Ind. Ct App. 2007), trans. denied . It is undisputed that Williams did not have actual possession of a handgun. On appeal, Williams argues that the State failed to establish his constructive possession of the .40 caliber Smith and
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[10] 

### When pr oceeding on a theory of constructive possession, the State must establish that the defendant had both the intent and the capability to maintain dominion and control over the handgun. Id. at 205. “ We have previously noted five types of evidence the State may use to demonstrate constru ctive possession of a handgun: ‘ (1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3) proximity of the firearm to the defendant; (4) location of t he firearm within the defendant’ s plain v iew; and (5) the mingling of a firearm with other items owned by the defendant. ’ ” Id. at 206 (quoting Causey v. State , 808 N.E.2d 139, 143 (Ind. Ct. App. 2004)).

[11] 

### The Smith and Wesson was located under the passenger seat where Williams was sitt ing, easily within his reach. Additionally , Officer Johnson observed Williams and the driver of the ve hicle making furtive movements, and according to Officer Johnson, it appeared that the men were trying to hide something. Perhaps most importantly , Williams told Of ficer Graber that the Smith and Wesson belonged to him. On appeal, Williams claims he falsely claimed ownership of the gun in order to protect the other occupants of the vehicle, who were convicted felons and consequently prohibited from possessing handgu ns. This argument is simply a request to reweigh the evidence, which we will not do on appeal. Moreover, we note that Williams claimed ownership of only one of the two handguns found in the car, and he made specific reference to a “.40 caliber Smith and Wesson” , clearly indicating his familiarity with the weapon

. Transcript at 56. This evidence was sufficient to support Williams’s conviction for carrying a handgun without a license

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[12] 

### Judgment affirmed.

[13] 

### Baker, J. and Bailey, J., concur.