Jeremiah Edward Ericksen v. State of Indiana , 68 N.E.3d 597 ( 2017 )

FILED
Jan 18 2017, 8:24 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill
Anderson, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremiah Edward Ericksen, January 18, 2017
Appellant-Defendant, Court of Appeals Case No.
82A05-1605-CR-1153
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Kelli E. Fink,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82C01-1511-F5-7086
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Jeremiah Edward Ericksen (Ericksen), appeals his
conviction for carrying a handgun without a license, a Class A misdemeanor,
Ind. Code § 35-47-2-1(e), enhanced to a Level 5 felony based on a prior
conviction; and resisting law enforcement, a Level 6 felony, I.C. § 35-44.1-3-1.
[2] We affirm.
ISSUES
[3] Ericksen raises two issues on appeal, which we restate as:
(1) Whether the State presented sufficient evidence beyond a reasonable
doubt to support Ericksen’s conviction for carrying a handgun without a
license; and
(2) Whether the trial court tendered a proper jury instruction on the charge
of carrying a handgun without a license.
FACTS AND PROCEDURAL HISTORY
[4] In September 2015, Detective James Budde (Detective Budde) of the
Vanderburgh County Sheriff’s Department initiated an undercover operation to
purchase a handgun from Ericksen. During a meeting on October 8, 2015,
Ericksen showed Detective Budde a black and silver Taurus .45 caliber
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handgun and referred to it as a “throwaway.” 1 (Transcript p. 169). The
following month, on November 8, 2015, Detective Budde discussed with
Ericksen the purchase of the Taurus handgun and Ericksen indicated that if this
sale went smoothly, they could conduct future firearms transactions. They
scheduled the purchase for November 11, 2015.
[5] On November 11, 2015, officers conducting surveillance on Ericksen witnessed
him putting a black bag, a “possible gun case type thing,” inside the trunk of a
black Jaguar, which was registered to Marilyn Ericksen (Marilyn). (Tr. p. 150).
Ericksen got into the back seat of the vehicle, directly behind the driver. Shortly
after the vehicle crossed into Vanderburgh County, Indiana, on the Lloyd
Expressway, officers conducted a traffic stop. During the stop, the officers held
the occupants of the vehicle at gunpoint because of the high risk that Ericksen
might be armed and ordered the occupants to exit the Jaguar. The front
passenger, believed to be Ericksen’s son, exited and was placed in handcuffs
and seated in the police car. While the female driver, later identified as
Marilyn, was complying with the officers’ orders, Ericksen opened his car door
and started cursing the officers. He jumped out of the car, smashed a full can of
Coke on the ground, and yelled “to shoot him and kill him.” (Tr. p. 93). He
started “pumping up, throwing his hands, [and] clinching his fists.” (Tr. p. 44).
When Ericksen charged the officers, Officer Robert Schmitt (Officer Schmitt)
1
A “throwaway” is a term typically “used by a criminal with a firearm that has no direct ties to that person,
so if it’s used in the commission of a crime, it cannot be traced back to them.” (Transcript p. 169).
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deployed his K-9 partner, Boss. Boss bit Ericksen in his stomach and forced
him to the ground. While officers approached to place Ericksen in custody,
Officer Schmitt ordered Boss to release Ericksen. Although Ericksen initially
put his hands out, he continued to resist after Boss withdrew.
[6] Subsequent to Ericksen’s arrest, the officers obtained a search warrant for the
Jaguar. During the search of the vehicle, officers discovered two empty firearm
magazines and one loose round in the black bag in the trunk. Inside the
vehicle, the officers discovered a Taurus handgun underneath the driver’s seat
with the barrel of the handgun pointing towards the rear of the vehicle.
[7] On November 16, 2015, the State filed its Information, charging Ericksen with
carrying a handgun without a license, a Class A misdemeanor; theft of a
firearm, a Level 6 felony; and resisting law enforcement, a Level 6 felony. The
State additionally filed an enhancement of the carrying a handgun without a
license charge to a Level 5 felony based on a prior conviction. On April 13 and
14, 2016, the trial court conducted a jury trial. At the onset of the bifurcated
trial, the State moved to dismiss the theft charge, which was granted by the trial
court. After the evidence was presented, the jury returned a guilty verdict on
the remaining two Counts. Ericksen pled guilty to the enhancement later that
same day.
[8] On May 10, 2016, the trial court sentenced Ericksen to four years for carrying a
firearm without a license, as enhanced to a Level 5 felony, and to one year for
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the offense of resisting law enforcement. The trial court ordered the terms to be
served concurrently.
[9] Ericksen now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
[10] Ericksen contends that the State failed to present sufficient evidence beyond a
reasonable doubt to support his conviction for carrying a firearm without a
license. 2 When reviewing a claim of insufficient evidence, the appellate court
will neither reweigh the evidence nor judge the credibility of the witnesses.
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the
probative evidence and reasonable inferences supporting the verdict. Id. And
we must affirm “if the probative evidence and reasonable inferences drawn
from the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt.” Id.
[11] To convict Ericksen of carrying a handgun without a license as a Level 5
felony, the State was required to establish beyond a reasonable doubt that
Ericksen did knowingly or intentionally carry a handgun in or upon his vehicle
or person without a license in his possession after he had already been
previously convicted for carrying a handgun without a license. See I.C. § 35-47-
2
Ericksen does not contest his conviction for resisting law enforcement.
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2-1. Focusing on the “carry” element of the offense, Ericksen argues that “there
is no evidence that [Ericksen] ‘carried’ the handgun.” (Appellant’s Br. p. 13).
In essence, Ericksen claims that because the statute requires a person to be
carrying, rather than possessing a handgun, constructive possession is not an
appropriate analysis to find a defendant guilty of carrying a handgun without a
license.
[12] In support of his argument, Ericksen points to Walker v. State, 631 N.E.2d 1, 2
(Ind. Ct. App. 1994), where we rejected the State’s argument that constructive
possession of a handgun is sufficient to sustain a conviction for carrying a
handgun without a license because the statute “speaks in terms of carrying a
handgun” and “does not speak in terms of possessing a handgun.” However, in
Henderson v. State, 715 N.E.2d 833 (Ind. 1999), our supreme court concluded
otherwise. Focusing on Indiana’s handgun statute, the court explained:
The relative breadth of [the statute’s] language led us long ago to
the conclusion that it encompasses more than moving about with
a firearm attached to one’s body. . . . The liberality of the
Indiana text has nevertheless obliged us to examine the sort of
evidence adequate to demonstrate that a defendant “carried” the
weapon. We have approached this task, and the similar question
of “possessing” drugs, by characterizing the possession of
contraband as either actual or constructive. Actual possession
occurs when a person had direct physical control over the item.
Constructive possession occurs when somebody had “the intent
and capability to maintain dominion and control over the item.”
Id. at 835 (internal references omitted). See also Woods v. State, 471 N.E.2d 691
(Ind. 1984) (handgun hidden under dashboard was “carried”).
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[13] Here, Ericksen had no “direct physical control over the [handgun];”
accordingly, at trial, the State proceeded on a theory of constructive possession.
See Bradshaw v. State, 818 N.E.2d 59, 62 (Ind. Ct. App. 2004). 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,
where as here, the control is non-exclusive, with evidence of additional
circumstances pointing to the defendant’s knowledge of the presence of the
contraband. Woods, 471 N.E.2d at 694. 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. Henderson, 715 N.E.2d at 836.
[14] The record reflects that Detective Budde had arranged to purchase a Taurus
handgun from Ericksen on the evening of the traffic stop. The handgun
recovered from the vehicle was “the same handgun that was shown to [him] by
[Ericksen] on October 8, [2015]” when Detective Budde met with Ericksen
during the undercover operation. (Tr. p. 167). Before stopping the vehicle, an
officer had observed that Ericksen placed a black bag in the trunk, that later was
discovered to contain empty firearm magazines. During the stop and prior to
Ericksen exiting the vehicle, Ericksen was seated in the backseat and appeared
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“agitated, you could see his head bobbing back and forth[.]” (Tr. pp. 92-93).
After Ericksen was arrested and a search warrant had been obtained, the
officers located the Taurus handgun under the driver’s seat, immediately in
front of where Ericksen had been sitting. The handgun was discovered in a
holster with the barrel pointing towards the rear of the vehicle.
[15] Accordingly, the evidence indicates that the handgun was found within easy
reach of where Ericksen had been sitting, he had displayed the handgun during
his meeting with Detective Budde, he made furtive movements during the
traffic stop and charged the officers resulting in resisting arrest charges. Based
on the totality of the circumstances, we conclude that sufficient evidence exists
establishing that Ericksen constructively possessed the handgun while seated in
the vehicle.
II. Jury Instruction
[16] Next, Ericksen contends that the trial court’s final jury instruction erroneously
broadened the factual allegations sustaining his charge of carrying a handgun
without a license. Because instructing the jury is a matter within the sound
discretion of the trial court, we will reverse a trial court’s decision to tender or
reject a jury instruction only if there is an abuse of that discretion. Pattison v.
State, 54 N.E.3d 361, 365 (Ind. 2016). We determine whether the instruction
states the law correctly, whether it is supported by record evidence, and whether
its substance is covered by other instructions. Id. Jury instructions are to be
considered as a whole and in reference to each other; error in a particular
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instruction will not result in reversal unless the entire jury charge misleads the
jury as to the law in the case. Id.
[17] Ericksen’s charging information for carrying a handgun without a license read
as follows:
[O]n or about November 11, 2015, [Ericksen] did knowlingly or
intentionally carry a handgun in or upon the defendant’s vehicle or
in person without a license in the defendant’s possession.
(Appellant’s App. Vol II, p. 11) (emphasis added). Ericksen now asserts that
the trial court expanded these factual circumstances when it instructed the jury
by tendering:
In Count I, the statute defining the offense of [c]arrying a
[h]andgun without a [l]icense, a Class A misdemeanor, which
was in force at the time of the offense charged, reads in part as
follows: A person who carries a handgun in any vehicle or on or
about a person’s body, except in his dwelling, on his property, or
fixed place of business, without a license being in possession,
commits [c]arrying a [h]andgun without a [l]icense, a Class A
misdemeanor.
Before you may convict the Defendant in Count I, the State must
have proved each of the following beyond a reasonable doubt:
1. The Defendant [Ericksen],
2. Carried a handgun in a vehicle or on or about his person
3. Away from Defendant’s dwelling, property, or fixed place of
business.
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If the State failed to prove each of these elements beyond a
reasonable doubt, you must find the Defendant not guilty of
[c]arrying a [h]andgun without a [l]icense, a Class A
misdemeanor, as charged in Count 1.
(Tr. Vol. V, Final Instruction No. 2) (emphasis added).
[18] Essentially, Ericksen now alleges that “under the charging information [he]
could not be convicted for carrying a handgun in someone else’s vehicle,
however, Final Jury Instruction No. 2 allows just such a conviction.”
(Appellant’s Br. p. 22). He claims that this change left him unprepared to
defend on the allegation because he prepared his defense based on the State’s
inability to show he owned the Jaguar. As such, the instruction improperly
expanded the charge and Ericksen’s “liability exposure.” (Appellant’s Br. p.
22).
[19] Ericksen relies on Kelly v. State, 535 N.E.2d 140 (Ind. 1989), to support his
argument. In Kelly, the defendant was charged by information with non-
consensual criminal confinement, but the trial court instructed the jury on the
statutory definition of criminal confinement, which includes both non-
consensual criminal confinement and criminal confinement by removal. Id. at
141. The jury convicted the defendant on a general verdict. Id. at 142. Our
supreme court reversed, holding that the jury instruction constituted prejudicial
error because it was impossible to tell on which charge the jury had convicted
the defendant. Id. at 143. We find Kelly to be inapposite to the case at hand as
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the statute under which Ericksen was charged does not provide alternate factual
bases for conviction such as the criminal confinement statute at issue in Kelly.
[20] Here, the jury instruction followed the handgun statute verbatim and referred to
the mandate that “a person shall not carry a handgun in any vehicle[.]” I.C. §
35-47-2-1 (emphasis added). The language of the charging information was
simply indicative of the fact that there was only one vehicle involved.
Moreover, the recitation of the statutory elements in the instruction did not
serve as a basis to mislead the jury under the facts and circumstances of this
case, nor does Ericksen explain how he was misled to his detriment by the
charging information. As noted by the trial court:
I did take a look at this and it does, the charging document does
say that it alleged that the handgun was in or upon the
defendant’s vehicle . . . I think that while they did not have to
allege that they did, however, it seems to me if there were two
vehicles involved in this case and I was allowing the State to
present evidence as to a vehicle that was not factually known to
the parties or a vehicle other than that charged in the charging
document I think that would be a problem, but in this case
there’s clearly, as far as I could tell, only one vehicle involved, it
just has been delineated in the charging document as the
defendant’s vehicle and I think if I make that change to the
elements all I’m really doing is making the State prove an
additional element that the vehicle belongs to the defendant and I
don’t think that that is, that is not an element of carrying a
handgun without a license, so for that reason I’m going to
overrule that objection to [c]ourt’s instruction number 2.
(Tr. pp. 224-25). A finding of prejudicial error requires more than an overly
broad jury instruction. Potter v. State, 684 N.E.2d 1127, 1132 (Ind. 1997).
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Accordingly, we conclude that the trial court properly instructed the jury on the
elements of the charge of carrying a handgun without a license.
CONCLUSION
[21] Based on the foregoing, we hold that the State presented sufficient evidence
beyond a reasonable doubt to support Ericksen’s conviction for carrying a
handgun without a license; and the trial court tendered a proper jury instruction
on the charge of carrying a handgun without a license
[22] Affirmed.
[23] Crone, J. and Altice, J. concur
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