990 N.E.2d 68 (Ind.App. 2013), 02A05-1210-CR-518, Walton v. State

Docket Nº02A05-1210-CR-518.
Citation990 N.E.2d 68
Opinion JudgeMAY, Judge.
Party NameTerrance L. WALTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyRandy M. Fisher, Deputy Public Defender, Fort Wayne, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelBAKER, J., and MATHIAS, J., concur.
Case DateJune 28, 2013
CourtCourt of Appeals of Indiana

Page 68

990 N.E.2d 68 (Ind.App. 2013)

Terrance L. WALTON, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 02A05-1210-CR-518.

Court of Appeals of Indiana.

June 28, 2013

Appeal from the Allen Superior Court; The Honorable Frances C. Gull, Judge; Cause No. 02D06-1203-FC-98.

Randy M. Fisher, Deputy Public Defender, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION— NOT FOR PUBLICATION

MAY, Judge.

Terrance Walton appeals his convictions of Class C felony carrying a handgun without a license 1 and Class A misdemeanor operating while intoxicated endangering a person.2 He presents three issues for review:

1. Whether the State presented sufficient evidence he carried a handgun without a license;

2. Whether the trial court abused its discretion in sentencing Walton by not finding certain mitigating circumstances; and

3. Whether Walton's sentence for carrying a handgun without a license is inappropriate in light of his character and offense.

We affirm.

FACTS AND PROCEDURAL HISTORY

On March 18, 2012, Indiana State Trooper Caleb Anderson stopped Walton for speeding. Walton was the driver and sole occupant of the vehicle. As Trooper Anderson approached Walton's vehicle he noticed Walton lean to the right and look down. Walton had red blood-shot eyes and smelled of alcohol. When questioned, Walton acknowledged having a couple of beers, and a portable breath test indicated he was over the legal limit. Trooper Anderson arrested Walton, and during an inventory search of the vehicle found a handgun in the closed center console. Walton denied any knowledge of the gun's presence and said the gun belonged to his friend Mario White.

At trial, White testified he borrowed Walton's car to drive to the scene of a domestic dispute between White's mother and her husband. White testified he took his gun with him, but then he left it in the center console because tensions between his mother and her husband had subsided. He testified he forgot his gun was in the center console until the next morning after Walton's arrest.

Walton was convicted of Class C felony carrying a handgun without a license and Class A misdemeanor operating a vehicle while intoxicated. The court imposed an aggregate sentence of seven years.

DISCUSSION AND DECISION

1. Sufficiency of Evidence

When reviewing sufficiency of evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We do not assess witness credibility or reweigh evidence. Id. Conflicting evidence is construed in favor of the trial court's ruling. Id. We affirm " unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. The evidence need not overcome every inference of innocence. Id. at 147. Where the evidence is circumstantial, the question on review is whether reasonable minds could reach the inferences drawn by the jury; if so, there is sufficient evidence. Whitney v. State, 726 N.E.2d 823, 825 (Ind.Ct.App.2000).

Walton argues there was insufficient evidence he carried a handgun without a license. " [A] person shall not carry a handgun in any vehicle ... without being licensed under this chapter to carry a handgun." Ind.Code § 35-47-2-1(a). To sustain a conviction, the State must show the defendant had control over the vehicle and knowledge of the gun's presence. See E.D. v. State, 905 N.E.2d 505, 507 (Ind.Ct.App.2009). If a defendant is the driver and sole occupant of a vehicle where a firearm is found, a jury may reasonably infer his knowledge of the gun's presence and his capability of controlling it. See Whitney, 726 N.E.2d at 826 (exclusive possession found notwithstanding assertion of another's prior access). As Walton was the driver and sole occupant of the vehicle, the jury could infer his knowledge of the handgun's presence; notwithstanding White's testimony that he had placed the handgun in the center console without Walton's knowledge. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.2004) (jury is not required to believe uncontradicted witness testimony).

If, instead, the jury had accepted White's testimony, then an inference that Walton knew of the gun's presence based solely on Walton's exclusive possession would be impermissible, because the gun was in a hidden compartment, id. (secret compartment), and Walton had not had exclusive possession of the vehicle for a long period of time before the firearm was located. See Jones v. State, 924 N.E.2d 672, 675 (Ind.Ct.App.2010) (short duration). If the jury believed White, the State then was required to show additional circumstances demonstrating Walton's knowledge of and control over the gun. See Whitney, 726 N.E.2d at 826. These additional circumstances could include: (1) defendant's incriminating statements; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting; (4) defendant's proximity to the contraband; (5) the contraband being in plain view; and (6) the contraband's close proximity to defendant's possessions. Jones, 924 N.E.2d at 675.

The State met this additional burden when it presented evidence of Walton's furtive gestures and incriminating statements. Walton argues his furtive gestures could be viewed as attempts to locate his license and registration, and his incriminating statements came only after officers had located and advised him of the gun's presence. However, Walton's arguments amount to an invitation to reweigh evidence and assess witness credibility, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge credibility of witnesses). The evidence permitted the jury to infer Walton knew of the gun's presence. See Causey v. State, 808 N.E.2d 139, 144 (Ind.Ct.App.2004) (finding furtive...

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