ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Jeffrey A. Modisett
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana Rosemary Borek
Deputy Attorney General
SUPREME COURT OF INDIANA
ANTHONY HENDERSON, ) ) Appellant (Defendant Below ), ) ) 49S05-9908-CR-440 v. ) in the Supreme Court ) STATE OF INDIANA, ) 49A05-9806-CR-320 ) in the Court of Appeals Appellee (Plaintiff Below ). )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable W.T. Robinette, Judge Pro Tempore Cause No. 49G03-9707-CF-098498
How close to someone else's licensed handgun can you get
before the law deems you to be "carrying" it without a license?
The evidence in Anthony Henderson's case showed proximity, but no
apparent action to exercise dominion over the gun. This was
insufficient to sustain his conviction. We therefore reverse.
Henderson was charged with carrying a handgun on or about his person without a license. After a bench trial, the court found him guilty of carrying the firearm, a misdemeanor. Henderson then admitted a prior violation, making the offense a class C felony. The Court of Appeals affirmed. Henderson v. State, No. 49A05-9806- CR-320, (Ind. Ct. App. Apr. 8, 1999). We grant transfer.
The relative breadth of this language led us long ago to the conclusion that it encompasses more than moving about with a firearm attached to one's body. See, e.g., Woods v. State, 471 N.E.2d 691 (Ind. 1984) (handgun hidden under dashboard was "carried"). The language chosen by our legislature thus never generated here an energetic textual debate such as that conducted in Muscarello v. United States, 118 S. Ct. 1911 (1998), on the meaning of the words Congress used to enhance drug-trafficking
penalties when the offender "uses or carries a firearm."See footnote
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. Woods,
471 N.E.2d 691. Actual possession occurs when a person has direct
physical control over the item. Walker v. State, 631 N.E.2d 1, 2
(Ind. Ct. App. 1994). Constructive possession occurs when somebody
has "the intent and capability to maintain dominion and control
over the item." Id. We suggested in Woods that knowledge is a key
element in proving intent:
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, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant's knowledge of the presence of the contraband.
an officer approached a vehicle shortly after midnight and saw two
shotguns in plain view
one in the driver's area of the front seat
and one across the laps of two passengers in the back seat. Id. at
1184. He also observed a pistol fall out of the front seat of the
car when the passenger in the front seat exited the vehicle. Id.
As he searched the car, the officer saw the butt of a pistol under
the driver's seat. The police arrested Klopfenstein, the driver of
the car, and he was later convicted of carrying a handgun without
a license, among other things. Id. at 1183.
The court recognized that the mere presence of a passenger in
an automobile is not sufficient to establish his control and
dominion over the contraband. Id. at 1184-85. It concluded that
since Klopfenstein was the driver, however, his dominion and
control over the vehicle supported an inference of his dominion and
control over the gun. Id. at 1185. The court derived this
reasoning in part from an analogous case concerning constructive
possession of drugs rather than weapons. Id. (citing Phillips v.
State, 160 Ind. App. 647, 313 N.E.2d 101 (1974).
This Court used a similar analysis in an exclusive possession setting. In Woods, 471 N.E.2d 691, the defendant owned a car and loaned it to a friend. About twenty-four hours after borrowing the car and while in possession of it, Woods' friend was killed. Id. at 692. Woods retrieved his car. Some four days after the death of his friend, the police stopped Woods in the vehicle and
subsequently searched the car. Id. During the search, the police
found a handgun hidden under the dashboard and live ammunition
compatible with the gun on the front seat. Woods was convicted of
illegal possession of a handgun. We held that Woods' undisputed
control over his own car for four days was sufficient to establish
his exclusive dominion over the gun. Id. at 694. We also noted
that, had we accepted Woods' contention that his friend's
possession of the car four days earlier rendered Woods' possession
non-exclusive, the compatible ammunition on the front seat was
among additional circumstances establishing his constructive
possession. Id.See footnote
In Taylor v. State, 482 N.E.2d 259 (Ind. 1985), a strikingly similar case, we affirmed a conviction involving constructive possession of a firearm. The police stopped a vehicle that had just run through a red light. Two men (one of them Taylor) exited the vehicle as an officer approached. Upon inspecting the car the police found two firearms -- a revolver and a semi-automatic. Both were in plain view with one gun in the middle of the front seat and the other on the floor directly in front of the front passenger seat. Neither man had a permit for either weapon. Taylor testified that he had been in the car for about fifteen minutes and did not know of the presence of either gun in the car. Relying on Woods, we concluded that Taylor had constructive possession.
Taylor, 482 N.E.2d at 262. We noted that Taylor "had primary
control over the .45 lying between his feet and was in the best
position to gain actual control of the weapon[,] . . . but it would
be difficult, if not impossible, for the driver to reach." Id. at
In Hoffman v, State, 520 N.E.2d 436 (Ind. 1988), this Court
sustained a conviction for carrying a handgun without a license.
In that case, the police stopped three suspected burglars (one of
them Hoffman) and found three weapons in their car. None of the
men had permits for the weapons. We thought it persuasive that
each of the weapons were found under a respective passenger's seat.
The Court held that the jury could have reasonably inferred that
each passenger had discarded his weapon under his respective seat
once the police stopped the vehicle and asked the occupants to
exit. Id. at 437.
In Person v. State, 661 N.E.2d 587 (Ind. Ct. App. 1996), an officer stopped a vehicle for running a stop sign. As he approached the car, he noticed a passenger in the left rear seat. He saw the passenger reach behind his back for no apparent reason. Id. Fearful of his safety, the officer ordered the passenger, Person, out of the car. Id. at 589. As Person alighted, the officer noticed a semi-automatic weapon on the rear seat. Id. Person was convicted of unlicensed possession of a handgun. The Court of Appeals agreed that the facts presented a number of
circumstances supporting constructive possession. Id. at 590.
Person was in close proximity to the weapon and had made a furtive
gesture that suggested he was trying to hide the firearm. Id. It
In Cole v. State, 588 N.E.2d 1316 (Ind. Ct. App. 1992), an officer stopped a vehicle driving erratically. During his investigation, he received a radio dispatch describing a "get-away" car in a recent robbery. The car he had stopped matched the description. Id. at 1317. He discovered a revolver on the floorboard behind the driver side seat. Cole, a passenger in the front seat, was convicted of robbery, criminal confinement, and carrying a handgun without a license. The Court of Appeals reversed in part, agreeing with Cole's assertion that the evidence was insufficient to sustain his handgun conviction. The fact that Cole was a passenger in the front seat of a car in which a firearm was found on the driver's side back floorboard was held insufficient to support the inference that Cole had possessed the firearm. Id. at 1319.
The rationale behind Cole was reiterated in Walker, 631 N.E.2d 1. In Walker, an officer found a handgun in the trunk of a car he had just pulled over. The Court of Appeals reversed, emphasizing that a conviction for "carrying" required proof "that the defendant had an unlicensed handgun on his or her person." Id. at 2. The court held the evidence that Walker was a passenger in the front
seat of a car with a handgun in its trunk insufficient to support
the inference that Walker had at one time carried the weapon on his
III. How Does the Case Law Fit Henderson?
While mere presence in a vehicle with multiple riders and
multiple weapons is not sufficient, a driver who has a gun at his
feet in plain view may be convicted of carrying the gun.
Klopfenstein, 439 N.E.2d 1184.
For reasons that seem easier to grasp, a driver who had access
to and control of the car for several days may be deemed to carry
the weapons in the car, even though the car had earlier been used
by a friend. Woods, 471 N.E.2d 691.
When a car has multiple passengers, each with a gun at his feet, and no one has a license for any of them, a jury can find them all guilty of carrying. Hoffman, 520 N.E.2d 436. Just a step away analytically, when a car has multiple passengers, a gun near
a backseat passenger and no permit, the jury can infer possession
by that passenger, especially when the testimony indicates that the
passenger tried to hide the weapon. Person, 297 N.E.2d 870.
A passenger in the front seat, without more, is not deemed to possess a gun located on the floor behind the driver. Cole, 558 N.E.2d 1313. And a passenger is not deemed to carry a gun located in the trunk. Walker, 631 N.E.2d 1.
Accordingly, we reverse.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
Any list of great textualist moments would necessarily include Judge Frank Easterbrook's disquisition exploring whether--and ultimately concluding that-- the term "mower" used in Wisconsin's statute exempting certain farm implements from execution, adopted in 1935 when many such instruments were simple horsedrawn cutters, covers the substantial mechanized piece of equipment sold in the 1980's as a "haybine." Matter of Erickson, 815 F.2d 1090 (7th Cir. 1987).
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