Brilan Keith Williams v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 16 2017, 9:45 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ernest P. Galos Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brilan Keith Williams, August 16, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1703-CR-680
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Steven L.
Appellee-Plaintiff Hostetler, Judge
The Honorable Keith Doi,
Magistrate
Trial Court Cause No.
71D07-1506-CM-2233
Altice, Judge.
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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 initiate 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 Johnson 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 arrived 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 officers
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approached, they smelled a strong odor of marijuana coming from inside the
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 handgun 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 handgun, a silver revolver, in the pocket on
the back of the driver’s seat. Officer Johnson determined that Williams did not
have a license to carry a handgun, 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 Officer
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 possession of marijuana. A bench trial was
held on October 25, 2016, and Williams was found guilty as charged. Williams
now appeals.
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Discussion & Decision
[8] Williams argues that the State presented insufficient evidence to support his
conviction for carrying a handgun 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 evidence 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 charged 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
sufficient 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 vehicle 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 200, 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
Wesson.
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[10] When proceeding 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 constructive
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 the firearm within the defendant’s plain view; 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 sitting, easily within his reach. Additionally, Officer Johnson observed
Williams and the driver of the vehicle making furtive movements, and
according to Officer Johnson, it appeared that the men were trying to hide
something. Perhaps most importantly, Williams told Officer 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 handguns. 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.
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