Lamontae J. White v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                             FILED
    regarded as precedent or cited before any                     Jun 23 2017, 9:26 am
    court except for the purpose of establishing                      CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                          Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Randy M. Fisher                                          Curtis T. Hill, Jr.
    Leonard, Hammond, Thoma & Terrill                        Attorney General of Indiana
    Fort Wayne, Indiana
    Jesse R. Drum
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Lamontae J. White,                                       June 23, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    02A05-1702-CR-304
    v.                                               Appeal from the Allen Superior
    Court
    State of Indiana,                                        The Honorable Frances C. Gull,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    02D05-1603-F4-21
    Najam, Judge.
    Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017    Page 1 of 10
    Statement of the Case
    [1]   Lamontae White appeals his conviction for unlawful possession of a firearm by
    a serious violent felon, a Level 4 felony, following a jury trial. White presents
    the following issues for our review:
    1.      Whether the State presented sufficient evidence to support
    his conviction.
    2.      Whether the trial court abused its discretion when it
    sentenced him.
    3.      Whether his sentence is inappropriate in light of the nature
    of the offense and his character.
    We affirm.
    Facts and Procedural History
    [2]   On January 7, 2016, at approximately 9:00 p.m., Timothy Swift was driving his
    grandmother’s car in Fort Wayne, with his brother Timon Swift sitting in the
    front passenger seat and White sitting in the back seat behind Timothy. Fort
    Wayne Police Department (“FWPD”) Detective David Wilkins initiated a
    traffic stop when he saw that the car’s license plate had expired. As Detective
    Wilkins approached the driver’s side of the car, FWPD Officer Matthew Foote
    arrived at the scene and approached the passenger’s side of the car. The
    occupants identified themselves, and Timothy told the officers that his driver’s
    license was suspended. The officers then instructed all three men to exit the
    car, and the officers conducted pat-down searches of the men.
    Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 2 of 10
    [3]   Because Timon’s driver’s license was suspended and the car’s license plate had
    expired, the officers conducted an inventory search of the car in preparation to
    have it towed. During the search, Detective Wilkins found a baggie containing
    what appeared to be marijuana between the front passenger seat and the middle
    console. Detective Wilkins also found a silver Ruger handgun on top of a red
    notebook on the floor under the “rear portion of the front passenger’s seat.” Tr.
    at 32. The slide on the handgun was in the forward position, “covering the
    barrel.” Id. at 33. Officers also found clothing and shoes in the backseat.
    White initially denied that the clothing and shoes belonged to him, but he later
    admitted that they were his. In addition, officers observed that there was a
    drawer underneath the front passenger seat that obstructed access to the rear of
    the floor of the seat. And officers found a large piece of Styrofoam wedged
    behind the driver’s seat area that obstructed the driver from accessing the back
    seat area of the car. The officers placed all three men in handcuffs and
    transported them to the police station. The men denied any knowledge of the
    handgun found in the car.
    [4]   On January 13, Timothy went to the police station and told Officer Foote that
    the handgun belonged to him. However, after a latent fingerprint examiner
    with the FWPD found White’s partial palm print on the barrel of the Luger
    handgun, on March 4, the State charged White with unlawful possession of a
    firearm by a serious violent felon, a Level 4 felony, and carrying a handgun
    without a license, as a Level 5 felony. The State dismissed the Level 5 felony
    charge prior to trial, and a jury found White guilty of the remaining charge.
    Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 3 of 10
    The trial court entered judgment of conviction and sentenced White to twelve
    years executed. This appeal ensued.
    Discussion and Decision
    Issue One: Sufficiency of the Evidence
    [5]   White first contends that the State failed to present sufficient evidence to
    support his conviction. Our standard of review on a claim of insufficient
    evidence is well-established:
    When reviewing a claim that the evidence introduced at trial was
    insufficient to support a conviction, we consider only the
    probative evidence and reasonable inferences that support the
    trial court’s finding of guilt. Drane v. State, 
    867 N.E.2d 144
     (Ind.
    2007). We likewise consider conflicting evidence in the light
    most favorable to the trial court’s finding. Wright v. State, 
    828 N.E.2d 904
     (Ind. 2005). It is therefore not necessary that the
    evidence overcome every reasonable hypothesis of innocence.
    Drane, 867 N.E.2d at 147. Instead, we will affirm the conviction
    unless no reasonable trier of fact could have found the elements
    of the crime beyond a reasonable doubt. Jenkins v. State, 
    726 N.E.2d 268
    , 270 (Ind. 2000).
    Gray v. State, 
    957 N.E.2d 171
    , 174 (Ind. 2011) (footnote omitted).
    [6]   To convict White of unlawful possession of a firearm by a serious violent felon,
    a Level 4 felony, the State was required to show that he, a serious violent felon,
    knowingly or intentionally possessed a firearm. 
    Ind. Code § 35-47-4-5
     (2015).
    White’s sole contention on appeal is that the evidence is insufficient to prove
    that he possessed a firearm. We cannot agree.
    Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 4 of 10
    [7]   Possession can be actual or constructive. 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. 
    Id.
     There is no question that White had the capability to maintain dominion
    and control over the firearm inside the car, as it was within his reach. Holmes v.
    State, 
    785 N.E.2d 658
    , 661 (Ind. Ct. App. 2003). Thus, we turn to whether a
    reasonable fact-finder could conclude on these facts that White had the intent to
    possess that contraband.
    [8]   For such issues, our ultimate question is “whether a reasonable fact-finder
    could conclude from the evidence that the defendant knew of the nature and
    presence of the contraband.” Johnson v. State, 
    59 N.E.3d 1071
    , 1074 (Ind. Ct.
    App. 2016). We have previously enumerated several nonexhaustive facts that
    the fact-finder might consider where, as here, a defendant’s possession of the
    premises in which the contraband is found is not exclusive:
    (1) incriminating statements made 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.
    Wilkerson v. State, 
    918 N.E.2d 458
    , 462 (Ind. Ct. App. 2009).
    [9]   We agree with the State that a reasonable fact-finder could have concluded that
    White knew of the nature and presence of the firearm under the front passenger
    seat of the car. First, White’s partial palm print was found on the barrel of the
    Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 5 of 10
    gun, which was covered by the slide when officers found the gun under the seat.
    Second, the front seat passenger could not readily access the location where the
    gun was found because there was a fixed drawer under the seat between the
    front and back of the floor underneath the seat. Third, the driver could not
    readily access the location where the gun was found because there was a large
    piece of Styrofoam blocking the driver’s access to the back seat area of the car.
    Fourth, White was sitting in the back seat and had easy access to the area
    underneath the front passenger seat. Fifth, White’s clothing and shoes were
    found in the back seat near the gun. Sixth, White made an incriminating
    statement when he initially denied that the clothing and shoes were his but later
    admitted that they belonged to him. And seventh, while Timothy testified that
    he had thrown the gun into the back seat after he saw the officers following the
    car,1 the officers testified that they did not see anyone throw anything into the
    back seat. We conclude that the State presented sufficient evidence from which
    a reasonable fact-finder could conclude that White constructively possessed the
    handgun.
    Issue Two: Abuse of Discretion in Sentencing
    [10]   White also contends that the trial court abused its discretion when it sentenced
    him. Generally, sentencing decisions are left to the sound discretion of the trial
    court, and we review its decision only for an abuse of that discretion. Singh v.
    1
    The officers found the gun neatly placed on top of the red notebook, which indicates that it had not been
    thrown there but had been placed there.
    Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017              Page 6 of 10
    State, 
    40 N.E.3d 981
    , 987 (Ind. Ct. App. 2015), trans. denied. “An abuse of
    discretion occurs if the decision is clearly against the logic and effect of the facts
    and circumstances before the trial court.” 
    Id.
    One way in which a trial court may abuse its discretion is failing
    to enter a sentencing statement at all. Other examples include
    entering a sentencing statement that explains reasons for
    imposing a sentence—including a finding of aggravating and
    mitigating factors if any—but the record does not support the
    reasons, or the sentencing statement omits reasons that are
    clearly supported by the record and advanced for consideration,
    or the reasons given are improper as a matter of law. Under
    those circumstances, remand for resentencing may be the
    appropriate remedy if we cannot say with confidence that the
    trial court would have imposed the same sentence had it properly
    considered reasons that enjoy support in the record.
    Anglemyer v. State, 
    868 N.E.2d 482
    , 490-91 (Ind. 2007) (“Anglemyer I”) (internal
    quotation marks and citations omitted), clarified on reh’g, 
    875 N.E.2d 218
    (“Anglemyer II”).
    [11]   White maintains that the trial court abused its discretion when it did not
    consider his bad childhood and current family support as mitigators. An
    allegation that the trial court failed to identify or find a mitigating factor
    requires the defendant to establish that the mitigating evidence is both
    significant and clearly supported by the record. Anglemyer I, 868 N.E.2d at 493.
    Further, “‘[i]f the trial court does not find the existence of a mitigating factor
    after it has been argued by counsel, the trial court is not obligated to explain
    Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 7 of 10
    why it has found that the factor does not exist.’” Id. (quoting Fugate v. State,
    
    608 N.E.2d 1370
    , 1374 (Ind. 1993)).
    [12]   Here, White has not demonstrated either that the proffered mitigators are
    significant or that they are clearly supported by the record. With regard to his
    bad childhood, White directs us to his mother’s statement at sentencing where
    she briefly mentioned that White’s father was verbally and physically abusive
    and that she raised White and his siblings in “house-to-house situations” that
    “tarnished [White] a lot.” Tr. at 156. With regard to his current family
    support, White directs us to his defense counsel’s statement to the trial court at
    sentencing that there were “a number of friends and family members” in the
    courtroom. 
    Id. at 155
    . White does not cite to any evidence that he has support
    from friends and family outside of the courtroom. White has not demonstrated
    that the trial court abused its discretion when it did not find his bad childhood
    and family support to be mitigating circumstances.
    Issue Three: Appellate Rule 7(B)
    [13]   Finally, White contends that his sentence is inappropriate in light of the nature
    of the offense and his character. As we have explained:
    Indiana Appellate Rule 7(B) permits an Indiana appellate court
    to “revise a sentence authorized by statute if, after due
    consideration of the trial court’s decision, the Court finds that the
    sentence is inappropriate in light of the nature of the offense and
    the character of the offender.” We assess the trial court’s
    recognition or nonrecognition of aggravators and mitigators as an
    initial guide to determining whether the sentence imposed was
    inappropriate. Gibson v. State, 
    856 N.E.2d 142
    , 147 (Ind. Ct.
    Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 8 of 
    10 App. 2006
    ). The principal role of appellate review is to “leaven
    the outliers.” Cardwell v. State, 
    895 N.E.2d 1219
    , 1225 (Ind.
    2008). A defendant must persuade the appellate court that his or
    her sentence has met the inappropriateness standard of review.
    Roush v. State, 
    875 N.E.2d 801
    , 812 (Ind. Ct. App. 2007).
    Robinson v. State, 
    61 N.E.3d 1226
    , 1228 (Ind. Ct. App. 2016).
    [14]   White asserts that the nature of the offense “is certainly not the most egregious
    seen by this Court.” Appellant’s Br. at 22. He maintains that he was arrested
    after a “simple traffic stop” and he had not attempted to use the handgun “in
    any sort of violent manner” at the time. Id. at 22-23. But the State points out
    that White possessed the fully loaded handgun while he was “still on supervised
    release” for a federal conviction for unlawfully possessing a firearm. Appellee’s
    Br. at 14. We cannot say that White’s twelve-year sentence is inappropriate in
    light of the nature of the offense.
    [15]   White also maintains that his sentence is inappropriate in light of his character.
    White acknowledges that his juvenile and adult criminal histories are
    “significant.” Appellant’s Br. at 23. Still, he asserts that most of his juvenile
    adjudications and two of his six adult convictions were for non-violent offenses.
    And White contends that his “character can be gleaned from his
    correspondence to the trial court, as well as the two character witnesses [who]
    testified on his behalf at the sentencing hearing.” Id. However, not only is
    White’s criminal history significant, but this is his third conviction related to the
    illegal possession of a firearm. Again, he was on supervised release for a federal
    Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 9 of 10
    firearm possession conviction at the time of the instant offense. We cannot say
    that Smith’s sentence is inappropriate in light of his character.
    [16]   Affirmed.
    Riley, J., and Bradford, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 02A05-1702-CR-304 | June 23, 2017   Page 10 of 10
    

Document Info

Docket Number: 02A05-1702-CR-304

Filed Date: 6/23/2017

Precedential Status: Precedential

Modified Date: 6/23/2017