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Date: 05-15-2021

Case Style:

KEITH D. JACKSON v. State of Indiana

Case Number: 20A-CR-02196

Judge: Nancy H. Vaidik

Court: COURT OF APPEALS OF INDIANA

Plaintiff's Attorney: Theodore E. Rokita
Attorney General
Megan M. Smith
Deputy Attorney General

Defendant's Attorney:


Criminal Defense Lawyer Directory


Description:

Indianapolis, IN - Criminal defense attorney represented Keith D. Jackson with false
informing, driving while suspended, and unlawful possession of a firearm by a serious violent felon charges



On August 17, 2018, Detective Casey Claeys of the Elkhart Police Department
noticed a red 2006 Dodge Stratus, being driven by Jackson, fail to signal 200
feet before a turn. Detective Claeys pulled behind Jackson and initiated a traffic
stop. Jackson continued driving, passing several parking lots and making at
least one turn before stopping the car. When Detective Claeys approached the
car, he saw Jackson was the sole occupant. Detective Claeys also smelled raw
marijuana. He requested Jackson’s driver’s license and registration. Jackson
provided a driver’s license with the name “Aaron Horton” but did not provide
the registration. Tr. Vol. II p. 131. Detective Claeys noticed Jackson was not Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 3 of 21
the person on the license he provided. He took Jackson into “custody based on
the false informing and the odor of marijuana coming from the car[.]” Id. at
132.
[3] Detective Claeys then radioed for backup. While waiting, he ran a check on the
car’s temporary license plate, which showed it was registered to a green 2005
BMW and had expired. The car also was not registered to Jackson or “Aaron
Horton.” Detective Claeys determined the car would need to be impounded
based “on the false and fictitious license plate on the vehicle.” Id. at 134.
Corporal James Wrathell arrived with a K-9 dog, which performed a sniff test
of the car. The dog showed interest in a few areas but did not alert. The officers
then searched the car, finding plastic baggies, a microwave, condoms, and hair
clips in the passenger compartment of the car. In the trunk, they found a black
duffle bag containing a handgun rolled in a pair of men’s jeans and
ammunition. The bag also contained an Indiana identification card for “Keith
Jackson.” Id. at 138. Several pieces of mail with Jackson’s name were also
found in the trunk. Detective Claeys ran a driver’s license check on “Keith
Jackson,” which provided a picture allowing officers to identify him as the
driver and showed his license was suspended.
[4] On August 21, the State charged Jackson with Class A misdemeanor false
informing, Class A misdemeanor driving while suspended, and Level 4 felony
unlawful possession of a firearm by a serious violent felon based on Jackson’s
2005 conviction for robbery. Jackson, acting pro se, moved to suppress the
evidence obtained during the search of the car, arguing it violated his rights Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 4 of 21
under the Fourth Amendment to the United States Constitution and Article 1,
Section 11 of the Indiana Constitution. A hearing was held on the motion in
November 2019. Detective Claeys testified that besides the issues with the car’s
license plate and lack of registration, it was parked “partially in the road” where
it “could obscure traffic.” Id. at 145. He further stated that after deciding to
impound the car, he conducted an inventory search “based on [the
department’s] towing procedure at that time[.]” Id. at 139. The State introduced
into evidence a document titled “Inventory of Impounded Vehicles.” Ex. 1.
Detective Claeys testified this was the “inventory impound vehicle sheet that
tell[s] us when . . . the inventory of the vehicle needs to be done.” Tr. Vol. II p.
140. He further testified this was “the policy that [he] was operating under” at
the time of the search. Id. He also described how he conducted the search—that
he and Corporal Wrathell searched the entire car, including the trunk and
containers within it, and documented any important or valuable items on the
inventory form. See Ex. 2. In February 2020, the trial court denied Jackson’s
motion to suppress, finding the warrantless search was valid under the searchincident-to-arrest and inventory-search exceptions.
[5] The first phase of the bifurcated trial began on October 5. The jury was asked to
decide the two misdemeanor charges and whether Jackson committed Class A
misdemeanor carrying a handgun without a license. Even though Jackson was
not charged with that offense, and although the record is not clear on why this
instruction was given, presumably it was used as a means to have the jury
decide the possession element of the serious-violent-felon charge in the first Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 5 of 21
phase without being informed of Jackson’s criminal history.
1 See Russell v. State,
997 N.E.2d 351, 352 (Ind. 2013); see also Williams v. State, 834 N.E.2d 225, 228
(Ind. Ct. App. 2005) (upholding instruction in first phase of a bifurcated trial for
unlawful possession of a firearm by a serious violent felon that instructed the
jury the defendant was charged with the non-existent offense of “unlawful
possession of a firearm”).
[6] Jackson, now represented by counsel, focused his defense on whether he
“knowingly possessed and carried a handgun.” Tr. Vol. IV p. 23. At closing,
defense counsel argued Jackson “didn’t even know about this gun” and that the
State provided insufficient evidence to tie him to it. Id. at 24. After all the
evidence was presented, the court asked both parties if they reviewed the final
instructions. Both the State and defense counsel indicated they had and there
were no objections. Instruction 2 provided, in part,
ISSUES FOR TRIAL
In this case, the State of Indiana has charged the Defendant,
Keith D. Jackson with:
COUNT I - CARRYING A HANDGUN WITHOUT A
LICENSE, A CLASS A MISDEMEANOR:
The charge reads as follows:
1
Jackson does not challenge this procedure on appeal. Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 6 of 21
The undersigned affiant swears that on or about the 17th day of
August, 2018, at the County of Elkhart, State of Indiana, one
KEITH D. JACKSON, knowingly possessed and carried a
handgun, in a vehicle or about his person away from his
dwelling, property or fixed place of business without a license in
his possession; all of which is contrary to the form of I.C. §35-47-
2-1; contrary to the form of the statute in such cases made and
provided; and, against the peace and dignity of the State of
Indiana.
Appellant’s App. Vol. II p. 216 (emphasis added). Instruction 3, provided in
part,
The crime of Carrying a Handgun Without a License is defined
by law as follows: a person who carries 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, commits carrying a handgun
without a license, a Class A Misdemeanor. Before you may
convict the Defendant, the State must have proved each of the
following elements beyond a reasonable doubt: 1. The
Defendant; 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.
Id. at 217. Notably, Instruction 3 does not include the element of “knowingly.”
Another instruction defining “knowingly” was also included. Id. at 221.
[7] During deliberations, the jury sent a question to the court, asking “Are we to
factor in ‘knowingly’ when considering the handgun charge? The charge has
‘knowingly,’ but the elements on the law do not state it.” Tr. Vol. IV p. 37.
Because the State and defense counsel could not agree on how to answer the Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 7 of 21
question, the court did not provide the jury an answer. The jury found Jackson
guilty of the two misdemeanors and carrying a handgun without a license.
[8] The court then moved to the second phase of the trial on the charge of unlawful
possession of a firearm by a serious violent felon. During opening statements,
the State told the jury,
So the first part [of the trial] is whether or not the defendant was
in possession of that firearm. And the second part, which is what
we’re doing today, is whether or not the defendant has that prior
conviction for robbery. So you’ve already done most of the heavy
lifting, which is the first part. You’ve already decided that the
defendant was in possession of that gun, so we’re not here to
rehash that; you’ve made that decision. We’re moving on to
what we call Phase II. So now the State needs to prove beyond a
reasonable doubt that the defendant has that prior conviction for
robbery.
Id. at 53. The State introduced court-certified documents showing Jackson pled
guilty in 2005 to robbery with a deadly weapon. Jackson then testified he did
not dispute he had a robbery conviction but the car belonged to his brother and
he didn’t know the gun was there. The State, in its closing, stated “today’s trial
is not exactly the same as yesterday” and noted the jury had “already convicted
[Jackson] of that handgun.” Id. at 107, 109. In his closing, Jackson again
emphasized he “didn’t know that there was a gun in the vehicle” and therefore
the State failed to meet its burden of proving he is guilty of knowingly
possessing a firearm. Id. at 111. Neither party objected to the jury instructions in Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 8 of 21
phase two. The instruction regarding possession of a firearm by a serious
violent felon provided in part,
The crime of Possession of a Firearm in Violation of I.C. 35-47-4-
5 is defined by law as follows: A person who knowingly or
intentionally possesses a firearm after having been convicted and
sentenced for an offense enumerated under I.C. 35-47-4-5
commits possession of a firearm in violation of I.C. 35-47-4-5, a
Level 4 Felony. Before you may convict the Defendant, the State
must have proved each of the following elements beyond a
reasonable doubt: 1. The Defendant; 2. knowingly; 3. possessed
a firearm; 4. after the Defendant had been convicted of Robbery,
which the Court instructs you is an offense enumerated under
I.C. 35-47-4-5.
Appellant’s App. Vol. III p. 23 (emphasis added).
[9] The jury found Jackson guilty of unlawful possession of a firearm by a serious
violent felon. The court entered judgment of conviction for unlawful possession
of a firearm by a serious violent felon, driving while suspended, and false
informing.
[10] Jackson now appeals.
Discussion and Decision
I. Admission of Evidence
[11] Jackson contends the handgun recovered from the car should not have been
admitted into evidence because it was discovered in violation of his rights under
the Fourth Amendment to the United States Constitution and Article 1, Section Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 9 of 21
11 of the Indiana Constitution. “The constitutionality of a search or seizure is a
question of law, and we review it de novo.” Kelly v. State, 997 N.E.2d 1045,
1050 (Ind. 2013).
A. Fourth Amendment
[12] The Fourth Amendment to the United States Constitution, made applicable to
the states through the Fourteenth Amendment, protects persons from
unreasonable searches and seizures. Taylor v. State, 842 N.E.2d 327, 330 (Ind.
2006). The purpose of the Fourth Amendment is to protect the legitimate
expectations of privacy citizens possess in their persons, homes, and belongings.
Id. Subject to certain well-established exceptions, a warrant is required to
demonstrate that a search is reasonable. Whitley v. State, 47 N.E.3d 640, 645
(Ind. Ct. App. 2015), trans. denied. The State must prove that an exception to the
warrant requirement existed at the time of the search. Id.
[13] One such exception is a valid inventory search, which permits police to conduct
a warrantless search of a lawfully impounded vehicle if the search is designed to
produce an inventory of the vehicle’s contents. Id. The rationale for an
inventory search is three-fold: (1) protection of private property in police
custody; (2) protection of police against claims of lost or stolen property; and (3)
protection of police from possible danger. Taylor, 842 N.E.2d at 330-31. The
test of constitutionality in inventory cases is reasonableness. Fair v. State, 627
N.E.2d 427, 431 (Ind. 1993). In determining the reasonableness of an inventory
search, courts look to the facts and circumstances of the case. Id. We consider Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 10 of 21
both the propriety of the impoundment giving rise to the search and the scope
of the search itself. Id.
[14] Jackson first challenges the propriety of the impoundment. Impounding a
vehicle is proper when authorized by statute or performed under the
community-caretaking function of the police. Whitley, 47 N.E.3d at 645. The
State argues the impoundment here was authorized by statute, and we agree.
[15] Indiana Code section 9-18.1-2-3(2) states a car may not be operated on the
highway unless it “displays proof of registration in accordance with this
article.” Proof of registration includes a license plate, a registration decal or
sticker issued by the BMV, a certificate of registration, or other indication of
registration issued by the BMV. Ind. Code § 9-18.1-1-5. Here, the car being
driven by Jackson not only had an expired license plate, but the plate itself
belonged to another vehicle. Nor could Jackson provide the car’s registration,
and the car was not registered to him. As such, the impoundment was
authorized by statute. See Ind. Code § 9-18.1-2-10(a) (a law-enforcement officer
who discovers a vehicle being operated in violation of this chapter may take the
vehicle into custody).
[16] But “[e]ven if there is a lawful custodial impoundment of the vehicle, the
constitutional requirement of reasonableness requires that the inventory search
itself must be conducted pursuant to standard police procedures.” Jackson v.
State, 890 N.E.2d 11, 18 (Ind. Ct. App. 2008). This is “to ensure that the
inventory is not pretext ‘for a general rummaging in order to discover Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 11 of 21
incriminating evidence.’” Fair, 627 N.E.2d at 435 (quoting Florida v. Wells, 495
U.S. 1, 4 (1990)). “[T]o defeat a charge of pretext the State must establish the
existence of sufficient regulations and that the search at issue was conducted in
conformity with them.” Fair, 627 N.E.2d at 435. While evidence of written
inventory procedures is not required, the State must present more than
conclusory testimony from officers. Wilford v. State, 50 N.E.3d 371, 376 (Ind.
2016).
[17] Here, Jackson argues the State failed to present sufficient evidence of the police
department’s inventory-search procedure. We disagree. Detective Claeys
testified he performed an inventory search because it is “department policy
when you’re impounding a vehicle.” Tr. Vol. II p. 140. The State then
introduced into evidence a document titled “Inventory of Impounded
Vehicles,” which Detective Claeys stated was the “policy that [he was]
operating under” at the time of the search and that this policy tells officers
“when the inventory of the vehicle needs to be done.” Ex. 1, Tr. Vol. II p. 140.
The policy provided the following:
Inventory of Impounded Vehicles
1. The Elkhart Police Department requires officers to inventory
any lawfully impounded vehicle, or a vehicle removed from the
street and placed into police custody. The purpose of the
inventory is to ensure safekeeping of private property and to
protect the Police Department from questions of what property
was in a vehicle.Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 12 of 21
2. Vehicles shall be inventoried in accordance with departmental
procedure that requires an inventory of the entire contents:
including closed containers (provided they can be opened
without breakage).
3. ln order to justify the inventory of a vehicle Officers must have
lawful custody of it.
4. The inventory shall be conducted according to department
policy;
a. The scope of the inventory shall be limited to those parts
of a vehicle likely to conceal important or valuable items;
b. Closed containers may be examined if they are likely to
contain valuable property.
c. Officers must make a list of all items observed during
the inventory.
5. The vehicle and its closed containers shall not be damaged.
Ex. 1.
[18] Detective Claeys’s testimony about the inventory search done here conforms
with this policy. As noted above, the car was being lawfully impounded, and
thus Detective Claeys was required under the policy to perform an inventory
search. He searched the entire car, including the trunk, a part likely to conceal
important or valuable property. He also searched a bag within the trunk, which
is permitted under the policy if the bag is “likely to contain valuable property” Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 13 of 21
and searching it will not cause damage. Detective Claeys also filled out a
“standard impound form” describing the car and listing items in it. Tr. Vol. II p.
142; see also Ex. 2. This testimony and the documentation entered into evidence
by the State are sufficient to show the search conformed with departmental
policies and was therefore reasonable.
[19] Finally, Jackson argues the inventory search was pretextual because, as
evidenced by the K-9 sniff, Detective Claeys was looking for contraband within
the car. However, as noted above, the impoundment of the car was proper, and
the search was reasonable. As such, “we will not fault it because a searching
officer wanted or expected to find evidence of a crime as he searched.” Sams v.
State, 71 N.E.3d 372, 377 (Ind. Ct. App. 2017).
[20] Because the handgun was found during a proper impoundment and inventory
of a car, its admission into evidence did not violate Jackson’s Fourth
Amendment rights.
2
B. Article 1, Section 11
[21] Jackson also contends the inventory search was unreasonable under Article 1,
Section 11 of the Indiana Constitution, which provides, “The right of the
people to be secure in their persons, houses, papers, and effects, against
2 Because we have found the inventory-search exception to the warrant requirement applies here, we need
not address Jackson’s arguments regarding the applicability of the search-incident-to-arrest exception or the
automobile exception.Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 14 of 21
unreasonable search or seizure, shall not be violated[.]” Although this language
is virtually identical to its Fourth Amendment counterpart, our Supreme Court
has independently interpreted and applied Section 11. Whitley, 47 N.E.3d at
648. Under Section 11, the State must show the inventory search was
reasonable in light of the totality of the circumstances. Lewis v. State, 755
N.E.2d 1116, 1127 (Ind. Ct. App. 2001). The validity of a search turns on an
evaluation of the reasonableness of the officers’ conduct under the totality of the
circumstances. Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). The
reasonableness of a search depends on a balance of “1) the degree of concern,
suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion
the method of the search or seizure imposes on the citizen’s ordinary activities,
and 3) the extent of law enforcement needs.” Id. Notwithstanding the
independent analytical framework of Section 11, our Supreme Court has found
that the factors that speak to the reasonableness of an inventory search under
the Fourth Amendment are also relevant to the reasonableness of an inventory
search under Section 11. Whitley, 47 N.E.3d at 649.
[22] Under the circumstances of this case, the officers’ decision to impound and
search the car was reasonable. Jackson was being arrested for false reporting, so
officers were aware a violation had occurred. Furthermore, the car was parked
“partially in the road” where it could obstruct traffic. The car did not have a
valid license plate or registration, and even if it could be legally operated
Jackson could not move it because he did not have a license. Therefore,
pursuant to Elkhart Police Department policy, the officers were permitted to Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 15 of 21
perform an inventory search. In conducting the inventory search, they searched
the entire car. However, they did not damage the car or open any locked
containers. The contents of the car were inventoried, including many contents
that were not incriminating, such as a microwave. Additionally, Jackson was
already in police custody at the time, so the degree of intrusion was minimal.
[23] Under these facts and circumstances, we cannot conclude Jackson’s rights
under Article 1, Section 11 of the Indiana Constitution were violated.
II. Jury Instructions
[24] Jackson also argues the trial court erred “in providing the jury with an incorrect
jury instruction” for the charge of carrying a handgun without a license.
Appellant’s Br. p. 27. “The purpose of a jury instruction is to inform the jury of
the law applicable to the facts without misleading the jury and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct verdict.”
Batchelor v. State, 119 N.E.3d 550, 553 (Ind. 2019) (quotation omitted). We
review a trial court’s decision to give or refuse a jury instruction for an abuse of
discretion. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). We must
consider: “(1) whether the instruction correctly states the law; (2) whether there
is evidence in the record to support the giving of the instruction; and (3)
whether the substance of the tendered instruction is covered by other
instructions which are given.” Id. (quotation omitted). Before a conviction may
be reversed based on instructional error, the defendant must affirmatively show Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 16 of 21
that the error prejudiced his substantial rights. Vaughn v. State, 13 N.E.3d 873,
886 (Ind. Ct. App. 2014), trans. denied.
[25] Because Jackson did not object to the instruction at trial, his claim is waived;
therefore, he must demonstrate fundamental error before we may reverse. See
Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). “Error is fundamental if it is a
substantial blatant violation of basic principles and where, if not corrected, it
would deny a defendant fundamental due process.” Id. (quotation omitted).
[26] Jackson contends Instruction 3 constitutes fundamental error because it omitted
the requisite mens rea. Error in the instruction as to mens rea can rise to the
level of fundamental error. Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct. App.
2010). However, such an error is not fundamental “where either the
instructions as a whole sufficiently inform the jury of the required mens rea or
the defendant’s mens rea was not a central issue at trial.” Id.
[27] Instruction 3 omits the critical element of “knowingly or intentionally” from the
crime of Class A misdemeanor carrying a handgun without a license. See Ind.
Code § 35-47-2-1(e) (“A person who knowingly or intentionally violates this
section commits a Class A misdemeanor.”). The other instructions as a whole
did not sufficiently inform the jury of the mens rea. Instruction 2 states the
“charge reads as follows” and provides Jackson “knowingly” possessed and
carried a handgun, and Instruction 7 defines the term “knowingly.” But neither
instruction informs the jury that to convict Jackson the State must prove he
knowingly possessed the handgun without a license. See Hall, 937 N.E.2d 911 Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 17 of 21
(finding an instruction giving the incorrect mens rea was not cured by
instructions repeating the charging information, which included the correct
mens rea, and defining the terms “knowingly” and “intentionally”). That these
instructions did not cure the error is further shown by the jury’s confusion
during deliberation, when the jury asked if it should consider the element of
“knowingly.” Moreover, mens rea was a central issue during phase one of trial.
Jackson did not dispute that a gun was found in the trunk of the car he was
driving; rather, he argued he didn’t know it was there.
[28] The State acknowledges Instruction 3’s omission of “knowingly” was an error
but argues “any error in the omission of an element of carrying a handgun
without a license was remedied by the proper instructions provided in the
second phase of the trial.” Appellee’s Br. p. 19. It is true the jury instruction
given in phase two for the charge of unlawful possession of a firearm by a
serious violent felon correctly provided the State must prove the “knowingly”
element. However, the State’s argument ignores that during the phase one
deliberations the jury asked the court whether “knowingly” was an element of
the offense which had to be proven by the State. The court did not answer the
question, leaving the jurors in the dark. Because of this, we cannot know if the
jury reached the issue of “knowing possession” in phase one.
[29] Then during phase two, although the court instructed the jury on the proper
mens rea, the State argued in both its opening and closing arguments that the
jury’s only consideration was whether Jackson was a serious violent felon. In its
opening statement, the State advised the jury it had “already decided that the Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 18 of 21
defendant was in possession of that gun” so now the State must prove “the
defendant has that prior conviction for robbery.” Tr. Vol. IV p. 53. At closing,
the State again notified the jury it had already decided all the other elements of
the charge aside from the serious-violent-felon element. While Jackson did
attempt to argue about the “knowingly” element during phase two, given the
court’s failure to properly instruct the jury in phase one and the State’s
arguments in phase two, we are not convinced the jury was aware it needed to
deliberate on the “knowingly” element. Instruction 3’s omission was a
misstatement of law and the proceedings in phase two, rather than curing this
error, merely added another layer of confusion.
[30] As a result, Jackson was denied a fair trial and the process due to him, and his
conviction for unlawful possession of a firearm as a serious violent felon must
be reversed.
III. Sufficiency of Evidence
[31] Jackson also contends the evidence is not sufficient to support his conviction for
unlawful possession of a firearm by a serious violent felon.
3 “When, as here,
reversal is required because of trial error, and a defendant presents a claim of
insufficient evidence, an acquittal instead of a new trial is required if the proof
of guilt is insufficient in light of the evidence presented at trial.” Villaruel v.
State, 52 N.E.3d 834, 838 (Ind. Ct. App. 2016) (citation omitted). In
3
Jackson does not challenge the sufficiency of the evidence with regard to his misdemeanor convictions. Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 19 of 21
determining whether there is sufficient evidence to support Jackson’s
conviction, we consider the evidence most favorable to the verdict and the
reasonable inferences that can be drawn therefrom, without reweighing the
evidence or assessing witness credibility. Sapen v. State, 869 N.E.2d 1273, 1279
(Ind. Ct. App. 2007), trans. denied.
[32] To convict Jackson of unlawful possession of a firearm by a serious violent
felon, the State had to prove Jackson, a serious violent felon, knowingly or
intentionally possessed a firearm. See Ind. Code § 35-47-4-5. Jackson argues the
evidence is not sufficient to prove he knowingly or intentionally possessed the
handgun. To satisfy these elements, the State may prove he had actual or
constructive possession of the handgun. Griffin v. State, 945 N.E.2d 781, 783
(Ind. Ct. App. 2011). Actual possession occurs when a defendant has direct
physical control over an item. Id. Absent actual possession, constructive
possession may support a conviction. Id. Constructive possession “occurs when
a person has the intent and capability to maintain dominion and control over
the item.” Id. Here, Jackson did not have direct physical control over the
handgun found in the trunk. The question then is whether he constructively
possessed it.
[33] Constructive possession requires proof that “the defendant has both (1) the
intent to maintain dominion and control and (2) the capability to maintain
dominion and control over the contraband.” Goliday v. State, 708 N.E.2d 4, 6
(Ind. 1999). Here, it is uncontested Jackson had the capability to maintain
dominion and control over the handgun because he was the only person in the Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 20 of 21
car. At issue is whether the intent element of constructive possession is satisfied.
To show the intent element, the State must demonstrate the defendant had
knowledge of the contraband. Erickson v. State, 68 N.E.3d 597, 601 (Ind. Ct.
App. 2017), trans. denied. This knowledge may be inferred from either the
exclusive dominion and control over the premise containing the contraband, or,
if the control is non-exclusive, with evidence of additional circumstances
pointing to the defendant’s knowledge of the presence of the contraband. Id.
Evidence of additional circumstances includes: (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. Id.
[34] Although Jackson claims he borrowed the car, and thus its contents including
the handgun were not in his exclusive possession, he was the sole occupant of
the car when police stopped him. Exclusive possession of a vehicle is sufficient
to raise a reasonable inference of intent. Goliday, 708 N.E.2d at 6; see also Crocker
v. State, 989 N.E.2d 812, 822 (Ind. Ct. App. 2013) (“[Defendant’s] exclusive
control over the vehicle he was driving is sufficient to establish constructive
possession.”), trans. denied. Even if it were not, the presence of “additional
circumstances” support the inference Jackson had knowledge of the handgun,
as the firearm was found in a bag that also contained his identification card and
the trunk contained mail addressed to him. See Shorter v. State, 144 N.E.3d 829, Court of Appeals of Indiana | Memorandum Decision 20A-CR-2196 | May 13, 2021 Page 21 of 21
840 (Ind. Ct. App. 2020) (evidence sufficient to find defendant constructively
possessed firearm in part because it was found in the same bag as “legal
documents and mail” belonging to him), trans. denied.
[35] There is sufficient evidence to support the conviction for unlawful possession of
a firearm as a serious violent felon, so the State is not barred from retrying
Jackson on that charge.

Outcome: Reversed and remanded.

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