Grim v. State, 33A01-0212-CR-479.

CourtCourt of Appeals of Indiana
Citation797 N.E.2d 825
Docket NumberNo. 33A01-0212-CR-479.,33A01-0212-CR-479.
PartiesMichael A. GRIM, Appellant-Defendant, v. STATE of Indiana, Appellee.
Decision Date23 October 2003

Amy K. Noe, Arnold & Noe, LLP, Richmond, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Nandita G. Shepherd, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Following a jury trial, Appellant, Michael Grim, was convicted of Carrying a Handgun Without a License, a Class C felony,1 Possession of a Narcotic Drug, a Class C felony,2 Possession of Two or More Chemical Reagents or Precursors With Intent to Manufacture, a Class D felony,3 Possession of Paraphernalia, a Class A misdemeanor,4 and Unlawful Use of a Police Radio, a Class B misdemeanor.5 He challenges the sufficiency of the evidence to support the convictions.

We affirm in part and reverse in part.

On May 29, 2002, Detective Trent Brewster of the Henry County Sheriff's Department was contacted by Randy Ratliff of the Greenfield Police Department, who advised him that at around 5:00 a.m. that morning, two individuals, one of whom was later identified from surveillance tapes as Grim, had each purchased three boxes of ninety-six count Equate brand pseudoephedrine at a Wal-Mart store located in Greenfield and that they were seen leaving together in a white, four-door vehicle.6 The license plate number identified the car as being registered to Tammy and Howard Stover of New Castle, Indiana, which is located in Henry County.

That evening, Detective Brewster, along with Detective Aaron Strong of the New Castle Police Department, began surveillance of the house at the address where the car was registered. At approximately 9:40 p.m., the detectives observed a white, four-door vehicle, with the same license plate number as that identified leaving the Wal-Mart in Greenfield, arrive at the home. The detectives watched as several people were seen entering and exiting the vehicle. A short time later, several people left the residence in the car and Detectives Brewster and Strong followed the vehicle to a place referred to as Point Pantry. The detectives were able to identify Grim as a passenger in the vehicle. The detectives then followed the vehicle to another residence, where after several hours, they ended their surveillance.

On May 30, 2002, Detective Brewster learned that there was an active warrant for Grim's arrest. The following day, May 31, 2002, an anonymous informant advised the police that Grim was to arrive at a Kroger parking lot in five to ten minutes. Detectives Brewster and Strong, along with two other detectives, went to the Kroger store where they observed the same white, four-door vehicle pull into the parking lot. Detective Strong advised uniformed officers of the New Castle Police Department to stand by in the area because they were trying to locate an individual with an active warrant. The detectives watched as an unknown individual approached the car and after a brief conversation, the unknown individual and the driver of the car went inside the Kroger. The detectives could see Grim sitting in the passenger seat of the car and observed him for approximately twenty to thirty minutes. After the driver returned to the car, she and Grim proceeded to leave, but were stopped behind the Kroger by Sgt. James Nicholson and Officer David Pierce of the New Castle Police Department. Grim and the driver were ordered out the vehicle, placed under arrest, and then transported to the Henry County jail.

Prior to the car being towed, Detective Strong performed an inventory search as Detective Brewster filled out the inventory report. During the inventory search, the detectives found a Uniden Bearcat scanner on the dashboard and a moneybag containing an unknown person's identification card along with a card listing several different police frequencies under the driver's seat. The detectives further found .22 caliber bullets and shell casings, two boxes of ammunition, and a baggie containing ammunition in plain view in the middle console between the driver and passenger seats. With the passenger door open, the detectives observed a handgun, which was partially sticking out from under the passenger seat between the passenger seat and the doorjamb. A second handgun was found sticking out from under the left side of the passenger seat. Detective Strong also saw a strap sticking out from under the passenger seat which he thought could be a shoulder holster. When he pulled it out, he discovered that it was a waistband carrying case. Inside the case he found a clear plastic baggie containing "a whitish yellow substance," which was later determined to be 1.98 grams of methamphetamine and pseudoephedrine. The detectives also found in the console area of the vehicle a glass pipe with residue, which they identified as an instrument primarily used to consume narcotics. Also in the console area were a torch and butane fuel, which the detectives testified can be used to heat and help consume controlled substances. A shortened, green drinking straw with residue was found under the driver's seat. The residue on the straw was later determined to be methamphetamine and pseudoephedrine. On the floorboard in front of the passenger seat, Detective Strong found a bottle of seventy percent isopropyl alcohol.

In the middle of the back seat of the vehicle, Detective Strong found a small yellow box which contained two lithium batteries and coffee filters, which the detectives knew to be commonly used in manufacturing methamphetamine. In the "trunk area" of the vehicle, which was accessible from the back seat, Detective Strong found two Wal-Mart bags and a total of seventeen boxes of Equate brand pseudoephedrine, of which fifteen were ninety-six count packages and two were twenty-four count packages. Near the pseudoephedrine, Detective Strong found four containers of table salt, which he was aware could be used in manufacturing methamphetamine.

The State charged Grim with Count I, possession of a narcotic drug, Count II, possession of two or more chemical reagents or precursors with intent to manufacture, Count III, carrying a handgun without a license, Count IV, possession of paraphernalia, and Count V, unlawful use of a police radio. On June 12, 2002, the State filed a petition to have the charge of carrying a handgun without a license enhanced to a Class C felony based upon the fact that Grim had two prior felony convictions within fifteen years of the date of the present offense. See I.C. § 35-47-2-23(c)(2)(B). Following a jury trial on September 23 and 24, 2002, Grim was convicted upon all counts. Grim then admitted to having two prior felony convictions which served to enhance the carrying charge to a Class C felony. Upon appeal, Grim argues that there was insufficient evidence to support each of his convictions.

When reviewing a claim of insufficient evidence, we neither reweigh evidence nor judge the credibility of witnesses. Lycan v. State, 671 N.E.2d 447, 456 (Ind.Ct.App.1996). We consider only the evidence which is favorable to the judgment along with the reasonable inferences to be drawn therefrom to determine whether there was sufficient evidence of probative value to support a conviction. Id. We will affirm the conviction 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. VanMatre v. State, 714 N.E.2d 655, 658 (Ind.Ct.App. 1999).

Carrying a Handgun Without a License

We first consider Grim's claim that the evidence was insufficient to support his conviction for carrying a handgun without a license. Indiana Code § 35-47-2-1 provides that "a person shall not carry a handgun in any vehicle or on or about his person, except in his dwelling, on his property or fixed place of business, without a license issued under this chapter being in his possession." Here, the State alleged that, "on or about May 31, 2002, in Henry County, State of Indiana, Michael A. Grim did carry a handgun in a vehicle, without a license issued under I.C. 35-47-2 in Michael A. Grim's possession. . . ." Appendix at 102 (emphasis supplied). Relying upon Walker v. State, 631 N.E.2d 1 (Ind.Ct.App. 1994), Grim argues 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.

In D.C.C. v. State, 695 N.E.2d 1015, 1016 n. 1 (Ind.Ct.App.1998), a panel of this court recognized that there has been disagreement among panels of this court concerning whether constructive possession may serve as a basis for finding that a defendant was "carrying" a handgun. Compare Klopfenstein v. State, 439 N.E.2d 1181 (Ind.Ct.App.1982) (constructive possession sufficient), with Walker, 631 N.E.2d 1 (constructive possession is insufficient because the crime is not possessing an unlicensed handgun, but having the unlicensed handgun on one's person). Be that as it may, our Supreme Court has made clear that constructive possession is applicable to handgun cases. See Henderson v. State, 715 N.E.2d 833 (Ind. 1999); Hoffman v. State, 520 N.E.2d 436 (Ind.1988); Taylor v. State, 482 N.E.2d 259 (Ind.1985); Woods v. State, 471 N.E.2d 691 (Ind.1984). See also State v. Hill, 688 N.E.2d 1280 (Ind.Ct.App.1997), trans. denied.

It is accurate to say that the mere presence of a passenger in a car in which a handgun is being transported is insufficient to find the passenger guilty of carrying a handgun in a vehicle or on or about his person. Henderson, 715 N.E.2d at 836; Klopfenstein, 439 N.E.2d at 1185. However, this does not mean that a passenger in a car is precluded from being prosecuted for the handgun offense. To convict a defendant of carrying a handgun in a vehicle, the State must present evidence that a...

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