PAYNE v. STATE (2025)

MEMORANDUM DECISION

[1] Dakota Payne appeals his conviction for Level 5 felony unlawful carrying of a handgun following a bifurcated trial.¹ Payne raises a single issue for our review, which we restate as whether the trial court committed fundamental error when it instructed the jury in the first phase of his trial.

[2] We affirm.

Facts and Procedural History

[3] On June 17, 2023, Evansville Police Department Officer Jaylen Blair initiated a traffic stop of a vehicle operated by Payne. Upon approaching Payne, Officer Blair smelled marijuana emanating from the vehicle, and he asked Payne to step out of the vehicle. Payne complied. Officer Blair then did a pat-down of Payne and discovered about fifteen grams of marijuana in a bag inside Payne's left front pocket.

[4] Officer Blair read Payne his Miranda rights and asked Payne if there was anything else in the car. Payne responded that “his girlfriend's gun” was in the car on the driver's side. Tr. Vol. 2, p. 109. A passenger in the car stated that he also had a firearm. Another officer then searched the vehicle and found one handgun, a .40-caliber Smith and Wesson, under the front passenger seat and another handgun, a .45-caliber Springfield, inside a backpack on the front passenger floorboard. The officers seized both firearms and placed Payne under arrest.

[5] The State later had both firearms tested for DNA. The results for both firearms showed a mixture of four different DNA profiles, although the DNA profile on the Smith and Wesson was “6,100 times more likely to have ․ originated from Dakota Payne and three unknown individuals than ․ from four unknown[,] unrelated individuals.” Id. at 199. Similarly, the DNA profile on the Springfield was more likely to have been a mixture of the passenger's DNA with three unknown individuals rather than four unknown and unrelated individuals.

[6] The State charged Payne in relevant part with Level 4 felony unlawful possession of a firearm by a serious violent felon. In April 2024, the trial court held a bifurcated jury trial. In the first phase, the parties asked the jury to determine whether Payne had possessed a firearm. In its closing argument on that issue, the State made clear that its argument “is that he possessed both of them because he knew both of them were” inside the vehicle as he was operating it. Id. at 228. Thus, the State argued that Payne had constructively possessed both firearms. Payne, in contrast, argued that the State had failed to show that he possessed either of the two firearms because the State had been “sloppy” in its handling of them and had possibly transferred DNA onto them. Id. at 237.

[7] The court then provided the jury with the following instruction:

The word “possess” means to own or to exert control over. The word “possession” can take on several different, but related, meanings.

There are two kinds of “possession”—actual possession and constructive possession. A person who knowingly has direct physical control of a thing at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it.

Possession may be sole or joint. If one person also has actual or constructive possession of a thing, then possession is sole. If two or more persons share actual or constructive possession of a thing, then possession is joint.

Possession may be actual or constructive[ ] and either alone or jointly with others.

Appellant's App. Vol. 2, p. 54. The court also instructed the jurors that “[e]ach of you must refuse to vote for conviction unless you are convinced beyond a reasonable doubt of the Defendant's guilt,” and the court likewise instructed the jury that “[y]our verdict must be unanimous.” Id. at 63-64. The court further instructed the jury that it must “consider all of [the] preliminary and final instructions together.” Id. at 60.

[8] During deliberations, the jury submitted the following question to the court: “Are we taking both guns into possession[?] Because [the passenger] claimed his gun [and] is taking ownership and possession. Or are we just taking the gun that was in the bag/his girlfriend[’s?]” Id. at 19. Without objection, the court responded to the jury as follows: “You have received all of the evidence and [the] Court[’]s instructions in this case.” Id. The jury then found that Payne had possessed a firearm.

[9] Thereafter, the State agreed to amend the Level 4 felony charge to Level 5 felony unlawful carrying of a handgun under Indiana Code section 35-47-2-1.5, and Payne agreed to “plead guilty” to the requisite prior conviction for the Level 5 felony offense.² Tr. Vol. 3, p. 9. The court accepted the parties’ agreement. The court then entered its judgment of conviction and sentenced Payne accordingly.

[10] This appeal ensued.

Discussion and Decision

[11] On appeal, Payne argues that the trial court committed fundamental error when it did not instruct the jury, in response to the jury's question during deliberations, that it must unanimously agree on which firearm Payne possessed before the jury could conclude that he had possessed a firearm. As Payne did not object to the trial court's decision to not so respond to the jury's question, on appeal he must demonstrate fundamental error.

[12] As we have explained:

Fundamental error is an essential safety-valve doctrine that permits appellate courts to order relief due to an undeniable and substantial error that unfortunately slipped past the trial court; it is not a doctrine that exists to simply give appellants a chance to argue that some unpreserved error should nonetheless be reviewable on direct appeal. As our Supreme Court has made clear, “[a]n error is fundamental, and thus reviewable on appeal, if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). Thus, fundamental error

is extremely narrow and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation. At the same time, if the judge could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to constitute fundamental error.

Id.

Willoughby v. State, 244 N.E.3d 473, 476 (Ind. Ct. App. 2024) (cleaned up), trans. denied.

[13] No fundamental error occurred here. The State affirmatively argued to the jury that the State's theory was that Payne had constructively “possessed both” of the firearms. Tr. Vol. 2, p. 228. The trial court then instructed the jury on constructive possession; the court instructed the jury that its “verdict must be unanimous”; the court instructed the jury to “refuse to vote for conviction unless you are convinced beyond a reasonable doubt of the Defendant's guilt”; and the court instructed the jury to “consider all of [the] preliminary and final instructions together.” Appellant's App. Vol. 2, pp. 60, 63-64. And, in response to the jury's question during deliberations, the court informed the jury that it had “received all of the evidence and ․ instructions in this case.” Id. at 19.

[14] Thus, the State asked the jury to find that Payne had constructively possessed both firearms and it was instructed by the court to reach a unanimous decision. Payne's argument that the court committed fundamental error by not again instructing the jury, in response to the jury's question, that it needed to unanimously agree on which firearm Payne possessed therefore does not demonstrate that a fair trial was impossible as the jury had already been informed of both the State's theory and the need for unanimity.

[15] For all of these reasons, we affirm Payne's conviction for Level 5 felony carrying of a handgun.

[16] Affirmed.

FOOTNOTES

1.   Payne does not appeal his convictions for Class A misdemeanor false identity statement or Class B misdemeanor possession of marijuana.

2.   The State argues that we should dismiss this appeal because Payne pleaded guilty to a “different offense[ ]” following the jury's verdict, thereby nullifying the jury's finding on possession and negating Payne's right to a direct appeal. Appellee's Br. at 8-11. We do not agree with the State's reading of the record. Rather, as Payne correctly notes in his Reply Brief, the parties at trial proceeded as if the amendment from the Level 4 felony offense to the Level 5 felony offense was, in effect, an amendment down to a lesser-included offense, and Payne only “plead[ed] guilty” to the requisite prior offense for the Level 5 felony charge. Tr. Vol. 3, pp. 9-15. At no point did Payne accept the jury's finding on possession. Indeed, Payne further correctly notes that, if the State's theory of dismissal were correct, we would be required to vacate his Level 5 felony conviction as the State did not establish a factual basis for him “carrying” a handgun. See Reply Br. at 9. And, although we appreciate Payne's response on that point, because we agree with his reading of the record that the possession finding was adopted by the parties as the factual basis for the carrying component of Payne's Level 5 felony conviction, vacating his Level 5 felony conviction due to a purported lack of a factual basis is not appropriate here. Cf. Henderson v. State, 715 N.E.2d 833, 837-38 (Ind. 1999) (recognizing that evidence that the defendant “carried” a handgun can be demonstrated through constructive possession).

Mathias, Judge.

Brown, J., and Kenworthy, J., concur.