Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-619 | February 19, 2016 Page 1 of 9

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

Jerry T. Drook

Marion, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Courtney Johnson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 19, 2016

Court of Appeals Case No.

27A05-1506-CR-619

Appeal from the Grant Circuit 

Court

The Honorable Mark E. Spitzer, 

Judge

Trial Court Cause No.

27C01-1402-FB-9

Altice, Judge.

Case Summary
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[1] Courtney Johnson appeals his conviction following a jury trial for Unlawful 

Possession of a Firearm by a Serious Violent Felon,1 a Class B felony.2 He 

presents two issues for review. First, he contends the conviction was not 

supported by sufficient evidence that he possessed the firearm in question. 

Second, he argues that the trial court abused its discretion by denying his 

request for a bifurcated proceeding with respect to this charge.

[2] We affirm.

Facts & Procedural History

[3] On February 23, 2014, Marion Police Officer Kyle Griffith observed Johnson

driving erratically and committing multiple traffic infractions. Officer Griffith 

ran the vehicle’s plate number and learned that the license of the registered 

owner, Ricky Booker, was suspended. As Officer Griffith attempted to catch 

up to initiate a stop, Johnson quickly changed lanes and turned into an empty 

parking lot. Officer Griffith followed with his lights and siren activated.

[4] Officer Griffith approached Johnson, who was the driver and sole occupant of 

the vehicle. The officer immediately smelled the odor of raw marijuana 

emanating from the vehicle. He asked Johnson for his license, registration, and 

 

1

Subsequent references to serious violent felon will be shortened to SVF.

2

Ind. Code § 35-47-4-5. Effective July 1, 2014, this offense was reclassified as a Level 4 felony. Because 

Johnson committed the offense prior to that date, it retains its prior classification as a class B felony
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proof of insurance. Johnson provided his name but no documents and argued 

with the officer about the basis of the stop. 

[5] Officer Griffith returned to his police vehicle and radioed in Johnson’s name 

and a request for backup due to Johnson’s demeanor and the odor of 

marijuana. Once informed that Johnson’s license was suspended, the officer 

initiated an arrest for driving while suspended by asking Johnson to step out of 

the vehicle. Johnson refused and tried to put the key back in the ignition. 

Officer Griffith grabbed Johnson’s hand, and the keys fell. Johnson then 

shoved Officer Griffith, forcing the officer to take several steps backward.

[6] Officer Griffith drew his taser and ordered Johnson to exit the vehicle and put 

his hands behind his back. Johnson stepped out and continued arguing. 

Despite repeated commands, Johnson refused to turn around and place his 

hands behind his back. When Johnson stepped aggressively forward, the officer 

fired his taser. After a bit of thrashing around and refusing orders to go to the 

ground, Johnson pulled the taser’s probes from his chest and charged at the 

officer. Johnson forcefully shoved Officer Griffith and then took off running. 

Johnson was eventually brought down by the officer’s canine. Johnson, 

however, continued to struggle and refuse orders. Officer Griffith struck 

Johnson, who finally surrendered and was placed under arrest.

[7] A search of the vehicle resulted in the discovery of a loaded handgun directly 

beneath the driver’s seat. Several plastic baggies containing approximately 
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sixty-eight grams of marijuana, a baggie containing a small amount of cocaine, 

a digital scale, and cash were also recovered from Johnson’s person.

[8] Booker, the registered owner of the vehicle, had sold the vehicle in question to 

Johnson on February 14, 2014 for about $800 cash. Booker left the license plate 

on the car and, aside from giving Johnson the title to the vehicle within a week 

of the purchase, he took no steps to legally transfer title. Booker testified at trial 

that he cleaned out his car before the sale and removed all of his personal 

property. Booker testified further that he did not own the firearm found at the 

time of Johnson’s arrest.

[9] Following a two-day, bifurcated jury trial, Johnson was convicted of Class B 

felony unlawful possession of a firearm by an SVF, Class D felony possession of 

marijuana, and Class D felony possession of cocaine, as well as driving while 

suspended, battery, and two counts of resisting law enforcement, all as Class A 

misdemeanors. The first phase of trial involved all charges except the SVF

charge. Johnson requested that the second phase of the trial—the portion 

involving the SVF charge—be split into two parts. Specifically, he wanted the 

jury to decide whether he possessed the handgun before receiving evidence 

regarding whether he had a prior conviction qualifying him as a serious violent 

felon. The trial court denied this request. Johnson was sentenced to an 

aggregate term of twenty years in prison. On appeal, Johnson challenges only 

his conviction for unlawful possession of a firearm by an SVF.

Discussion & Decision
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Sufficiency of the Evidence

[10] Johnson challenges the sufficiency of the evidence regarding his possession of 

the firearm. When reviewing a challenge to the sufficiency of the evidence, we 

do not reweigh evidence or judge the credibility of witnesses. Duncan v. State, 

23 N.E.3d 805, 812 (Ind. Ct. App. 2014), trans. denied. Instead, we consider 

only the evidence and the reasonable inferences supporting the verdict. Id. If 

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

fact could have found the defendant guilty of the crime charged beyond a 

reasonable doubt, then the judgment will not be disturbed. Id. Further, a 

conviction may be based on circumstantial evidence, and it is not necessary that 

the evidence overcome every reasonable hypothesis of innocence. Boggs v. State, 

928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. 

[11] In order to convict Johnson of unlawful possession of a firearm by an SVF, the 

State was required to establish that Johnson was an SVF who knowingly or 

intentionally possessed a firearm. See I.C. § 35-47-4-5. He does not challenge 

the sufficiency of the evidence with respect to the SVF determination. His sole 

contention is that the State failed to establish that he knowingly or intentionally 

possessed the firearm in question.

[12] It is well established that possession of an item may be either actual or 

constructive. See Massey v. State, 816 N.E.2d 979, 989 (Ind. Ct. App. 2004). 

Constructive possession, applicable in this case, occurs when a person does not 

have direct physical control over the item but has “the intent and capability to 
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maintain dominion and control over the item.” Id. (quoting Henderson v. State, 

715 N.E.2d 833, 835 (Ind. 1999)). 

[13] To prove the intent element, the State must demonstrate the defendant’s 

knowledge of the presence of the contraband. Massey, 816 N.E.2d at 989. This 

may be inferred from either the exclusive dominion and control over the 

premises containing the contraband or, if the control is non-exclusive, evidence 

of additional circumstances pointing to the defendant’s knowledge.3 Massey,

816 N.E.2d at 989. The capability requirement is met when the State shows 

that the defendant is able to reduce the contraband to the defendant’s personal 

possession. Id. 

[14] Johnson does not argue that he did not have the capability to maintain 

dominion and control over the firearm. Rather, his argument focuses only on 

the intent element. 

[15] The evidence viewed in the light most favorable to the State establishes that this 

is a case of exclusive dominion and control. Johnson was the driver, owner, 

and sole occupant of the vehicle at the time of his arrest. See Woods v. State, 471 

N.E.2d 691, 694 (Ind. 1984) (“Appellant’s undisputed control over his own 

vehicle for four days is sufficient to establish exclusive dominion and control”); 

 

3 These additional circumstances may include: 1) incriminating statements by the defendant; 2) attempted 

flight or furtive gestures; 3) proximity of the contraband to the defendant; 4) location of the contraband 

within the defendant’s plain view; and 5) the mingling of contraband with other items owned by the 

defendant. Deshazier v. State, 877 N.E.2d 200, 206 (Ind. Ct. App. 2007), trans. denied.
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Parson v. State, 431 N.E.2d 870, 872 (Ind. Ct. App. 1982) (defendant was the 

lessee, driver, and sole occupant of the motor home, so despite testimony that 

another person had access to the vehicle earlier, “the jury could reasonably 

conclude that the motor home had been reduced to [his] exclusive possession 

for longer than a brief period of time before the search, thereby supporting the 

inference that [defendant] had the requisite intent to maintain control and 

dominion over the handgun”). Further, Booker testified that the firearm did 

not belong to him and that he had removed all of his personal belongings from 

the vehicle before he sold it to Johnson nine days earlier. The jury had ample 

evidence to conclude that Johnson possessed the firearm found directly beneath 

the driver’s seat of the car he owned and was driving in alone.

Bifurcation

[16] Johnson contends that the trial court abused its discretion when it denied his 

motion to bifurcate the proceedings regarding the SVF charge. See Russell v. 

State, 997 N.E.2d 351, 354 (Ind. 2013) (a trial court’s discretion regarding 

bifurcation of trial is subject to an abuse of discretion standard on appeal). He 

argues the jury should have been tasked first with determining whether he had 

committed the (non-existent) offense of unlawful possession of a firearm by 

knowingly possessing the firearm. According to Johnson, not until the jury had 

decided this question in the affirmative should it have been presented with 

evidence regarding whether he was an SVF.
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[17] This argument has been soundly rejected by our appellate courts, which have 

held that a defendant tried solely for an SVF charge is “not entitled to have the 

proceedings bifurcated in such a way that the jury would not hear of his prior 

felony conviction before it determined whether he was in possession of a 

firearm.” Hines v. State, 801 N.E.2d 634, 635 (Ind. 2004). See also Spearman v. 

State, 744 N.E.2d 545, 547-48 (Ind. Ct. App. 2001), trans. denied. This is 

because the evidence of the prior conviction—establishing the legal status of the 

offender as an SVF—is an essential element of the crime. See Spearman, 744 

N.E.2d at 547-48 (“the rationale for inadmissibility of prior convictions breaks 

down when the evidence of the prior conviction not only has the ‘tendency’ to 

establish guilt or innocence but also is essential to such determination”). The 

act—possession of a firearm—is illegal only if performed by one with this 

status. I.C. § 35-47-4-5 (making it unlawful for a person convicted of one of 

several enumerated felony offenses to knowingly or intentionally possess a 

firearm); Spearman, 744 N.E.2d at 548.

[18] Here, the trial court properly bifurcated the proceedings in such a way that the 

jury decided Johnson’s guilt on all the charges except the SVF charge in the first 

phase of trial. In the second phase, the jury decided his guilt on the SVF 

charge. This protected Johnson from unfair prejudice by insulating the jury, 

during the first phase, from any evidence of his prior felony conviction. See 

Hines, 801 N.E.2d at 635. Johnson’s claim that the trial court abused its 

discretion by refusing to further split the trial for the SVF charge is without 

merit. Johnson was not exposed to unfair prejudice by the jury hearing all of 
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the evidence necessary to determine his guilt on the SVF charge in the second 

phase of trial. See, e.g., Spearman, 744 N.E.2d at 547-48. Cf. Russell, 997 N.E.2d 

at 354 (“Had the trial court fully bifurcated the trial on the SVF charge from the 

trial on the murder charge, the trial court would have avoided instructing the 

jury on the non-existing offense of ‘unlawfully’ possessing a firearm.”). 

Accordingly, we find no abuse of discretion.

[19] Judgment affirmed.

Robb, J. and Barnes, J., concur.