Gerry L. Green, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Gerry L. Green (“Green”) appeals, following a jury trial, his conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon ¹ and his habitual offender enhancement.² Green argues that: (1) the trial court abused its discretion when it declined to give his proposed jury instruction; (2) there was insufficient evidence supporting his Level 4 felony unlawful possession of a firearm by a serious violent felon conviction; and (3) the trial court committed fundamental error when it failed to, sua sponte, bifurcate part II of the trial. Concluding that the trial court did not abuse its discretion when it declined to give Green's proposed jury instruction, that there was sufficient evidence supporting his conviction, and that there was no fundamental error, we affirm the trial court's judgment.

[2] We affirm.

Issues

1. Whether the trial court abused its discretion when it declined to give Green's proposed jury instruction.

2. Whether there was sufficient evidence to support Green's Level 4 felony unlawful possession of a firearm by a serious violent felon conviction.

3. Whether the trial court committed fundamental error when it failed to sua sponte bifurcate part II of the trial.

Facts

[3] In April 2023, the Fort Wayne Police Department received a tip regarding drug activity at a house in Allen County (“the house”). Thereafter, Fort Wayne Police Department Officer Spencer Newell (“Officer Newell”) surveilled the house for about ten hours over a month-long period and saw “three (3) to five (5) cars every hour” that stayed at the house for “three (3) to five (5) minutes[.]” (Tr. Vol. 2 at 105). Based on the surveillance, the officers obtained a search warrant to search the house.

[4] In May 2023, officers executed the search warrant on the house. Fort Wayne Police Department Detective Alvin Davis (“Detective Davis”), along with other officers, entered the house and ordered everyone inside to exit the house. Five people exited the house at this time, including Green, who was the last person to exit the house. Green told Fort Wayne Police Department Detective Geoff Norton (“Detective Norton”) that he had been residing at the house “a couple nights a week” and that he had been staying in the back bedroom of the house (“the back bedroom”). (Tr. Vol. 2 at 148). Green also told Detective Norton that he was working on the house.

[5] The officers conducted a sweep of the house and began a search. Detective Davis searched the back bedroom. In the back bedroom, Detective Davis searched a bed and found a loaded “22-caliber revolver style handgun” (“the handgun”) underneath a pillow on the bed. (Tr. Vol. 2 at 119). On a nightstand located to the right of the bed, Detective Davis found medication bottles with Green's name on them as well as multiple pieces of mail addressed to Green. Beneath another nightstand in the bedroom, officers found a pair of women's shoes. Officers also found mail addressed to other individuals in the house.

[6] During the search of the bedroom, officers also found large amounts of cocaine and some methamphetamine, most of which was found in an open safe. Additionally, officers found over three thousand dollars, a backpack containing more drugs, digital scales, baking powder, and a pipe. Detective Norton asked Green about the drugs found in the back bedroom, and Green told Detective Norton that he knew that the drugs were there, but he denied that the drugs were his.

[7] The State charged Green with Level 2 felony dealing in cocaine or a narcotic drug, Level 2 felony dealing in methamphetamine, and Level 4 felony unlawful possession of a firearm by a serious violent felon. In June 2023, the State also alleged that Green was an habitual offender.

[8] In December 2023, the trial court held a two-day jury trial. The parties agreed to trifurcate the trial. Part I focused on the two dealing charges, part II focused on the firearm charge, and part III focused on the habitual offender allegation. During Detective Davis’ testimony, the State moved to admit, as State's Exhibit 1, the handgun found by Detective Davis in the back bedroom. Green did not object to its admission, and the trial court admitted State's Exhibit 1. Detective Norton also testified during the jury trial. Detective Norton testified that he had also seen the multiple medication bottles and pieces of mail with Green's name in the back bedroom.

[9] On cross-examination, Detective Norton testified that “it didn't look like anyone else” was residing at the house. (Tr. Vol. 2 at 165). Green's counsel asked Detective Norton if it was true that no one else had admitted to living at the house, and Detective Norton responded, “[c]orrect.” (Tr. Vol. 2 at 165). Also during cross-examination, Green moved to admit Defendant's Exhibit A, B, and C, which were photos of other pieces of mail addressed to a Louis Jones, Marketa Jones, Kenesha Parker (“Parker”), and Tommie Slayton that had been found in the house.³ The State did not object to the admission of these exhibits, and the trial court admitted Defendant's Exhibits A through C.

[10] Indiana State Police Forensic Biologist Lori Healey (“Biologist Healey”) testified that there was “an insufficient quantity of DNA” on the samples collected from the handgun. (Tr. Vol. 2 at 186). Forensic Biologist Healey also testified that it was “not uncommon” to be unable to develop a DNA profile on a submitted sample. (Tr. Vol. 2 at 184). A Fort Wayne Police Department fingerprint examiner testified that there were no “latent prints of value” on the handgun and that “firearms do not typically have” any latent prints of value. (Tr. Vol. 2 at 198).

[11] After both the State and Green had presented evidence, the parties discussed, outside of the presence of the jury, their proposed jury instructions. The trial court proposed using the pattern jury instruction for constructive possession, which reads as follows:

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 alone has actual or constructive possession of a thing, then the 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.

(App. Vol. 2 at 83). Green objected to the trial court's use of the pattern instruction and tendered a “constructive possession instruction in lieu of the [trial] [c]ourt's.” (Tr. Vol. 2 at 225). Green's proposed instruction read as follows:

A conviction for possession of an item may rest upon proof of either actual or constructive possession. An individual has actual possession of an item when he or she has direct physical control over the item.

To prove constructive possession, the State is required to show that the Defendant had (1) the intent to maintain dominion and control over the item and (2) the capability to maintain dominion and control over the item. Knowledge is a key element in proving intent. Knowledge may be inferred from the exclusive dominion and control over the premises containing the item, or, if the control is nonexclusive, evidence of additional circumstances pointing to the defendant's knowledge of the presence of the item.

These additional circumstances have been found to include: (1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3) proximity of the defendant to the item; (4) the item in plain view; and, (5) location of the item in close proximity to items owned by the defendant. Mere presence at the location where contraband is found is not alone sufficient to establish constructive possession.

(App. Vol. 2 at 61).

[12] Green argued that his proposed instruction contained “additional information” that “would be helpful for the [j]ury” on the constructive possession issue. (Tr. Vol. 2 at 225). Green also argued for the inclusion of mere presence language and contended that his proposed instruction was “upheld as ․ the law in the [s]tate of Indiana.” (Tr. Vol. 2 at 225). On the other hand, the State argued that “including this language in a[n] ․ instruction would have the tendency to give the [j]ury reason to believe that there are additional elements that the State has to prove, which are not actually required by the statute.” (Tr. Vol. 2 at 225-26). The State, however, acknowledged that the proposed instruction reflected the current caselaw on constructive possession. The trial court declined to give Green's proposed instruction. The trial court explained that the pattern instruction “cover[ed] what [Green's] instruction was asking for.” (Tr. Vol. 2 at 227).

[13] After deliberating, the jury found Green not guilty of Level 2 felony dealing in cocaine or a narcotic drug and Level 2 felony dealing in methamphetamine. The parties then moved to part II of the trial, which focused on Green's Level 4 felony unlawful possession of a firearm by a serious violent felon charge. Throughout the trial, neither party referred to the charged crime as unlawful possession of a firearm by a serious violent felon. The jury instruction also refrained from using this language, and instead, referred to the crime as “possession of a firearm in violation of I.C. [§] 35-47-4-5[.]” (App. Vol. 2 at 97). The trial court asked Green's counsel if he had “any objection to the tendered instructions on [p]art II[.]” (Tr. Vol. 3 at 10). Green's counsel responded, “No, Your Honor.” (Tr. Vol. 3 at 10).

[14] During Green's opening statement of part II of the trial, he highlighted the fact that he was “not contesting the fact in 2011 he was convicted of a felony” and told the jury that “[t]he issue before [the jury]” was if “there [was] any proof that he [had] possessed that firearm.” (Tr. Vol. 3 at 13). During its presentation of evidence, the State moved to incorporate all of the evidence that it had introduced in part I of the trial. Additionally, the State read a stipulation agreed to by the parties. The stipulation provided that Green had a 2011 conviction “for an offense enumerated under Indiana Code [§] 35-47-4-5[.]” (Tr. Vol. 3 at 15). The stipulation did not specifically state what Green's prior conviction was. After both parties rested, the jury found Green guilty of “[p]ossession of a [f]irearm in [v]iolation of Indiana Code [§] 35-47-4-5, a Level 4 [f]elony.” (Tr. Vol. 3 at 20). Green made no objection or request for further bifurcation during part II of the trial.

[15] Finally, the parties moved to part III of the trial, which focused on the habitual offender enhancement allegation. Specifically, the State alleged that Green was an habitual offender due to 1999 and 2003 convictions for Class B felony dealing in cocaine or a narcotic drug. In support of this allegation, the State read to the jury a stipulation of facts agreed upon by the parties stating the same. At the conclusion of Part III of the trial, the jury found Green to be an habitual offender.

[16] At Green's sentencing hearing, the trial court sentenced Green to eight (8) years for his Level 4 felony unlawful possession of a firearm by a serious violent felon conviction and enhanced his sentence by ten (10) years for his habitual offender adjudication. The trial court ordered Green to serve his aggregate eighteen (18) year sentence at the Indiana Department of Correction.

[17] Green now appeals.

Decision

[18] Green argues that: (1) the trial court abused its discretion when it declined to give his proposed jury instruction; (2) there was insufficient evidence to support his Level 4 felony unlawful possession of a firearm by a serious violent felon conviction; and (3) the trial court fundamentally erred when it failed to, sua sponte, bifurcate part II of the trial. We address each of his arguments in turn.

1. Jury Instruction

[19] Green first argues that the trial court abused its discretion when it declined to give his proposed jury instruction. Instructing a jury is left to the sound discretion of the trial court and is reviewed only for an abuse of discretion. Patterson v. State, 11 N.E.3d 1036, 1040 (Ind. Ct. App. 2014). “When reviewing the propriety of the trial court's decision to refuse a tendered jury instruction, we consider the following factors: (1) whether the instruction was supported by evidence in the record; (2) whether the instruction correctly states the law; and (3) whether other instructions adequately cover the substance of the denied instruction.” Washington v. State, 840 N.E.2d 873, 888 (Ind. Ct. App. 2006), trans. denied. The purpose of jury instructions “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.” Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (cleaned up). We will reverse based upon an instructional error only if the defendant affirmatively demonstrates that the error prejudiced his substantial rights. Washington, 840 N.E.2d at 888.

[20] Green argues that the trial court abused its discretion when it declined to give his proposed constructive possession instruction. Green specifically challenges the trial court's refusal of his proposed language regarding mere presence and evidence of additional circumstances and argues that this language was not adequately covered by the pattern instruction. We disagree.

[21] Green's theory of defense was that, at the time the officers executed the search warrant, someone else at the house was the owner of the handgun found in the back bedroom. However, the trial court's instruction, as set forth above in the facts, adequately instructed the jury on both actual and constructive possession as well as sole and joint possession. Further, it is clear from the record that Green's proposed instruction is drawn from our case law regarding the sufficiency of the evidence for constructive possession. “[W]e have long held that certain language or expression used by an appellate court to reach its final conclusion is not necessarily proper language for instructions to a jury.” Batchelor v. State, 119 N.E.3d 550, 563 (Ind. 2019) (cleaned up). “This is especially true when, as here, the instruction is rooted in reasoning found in a sufficiency-of-the-evidence case, not an appellate opinion approving a jury instruction[.]” Id. (internal citations removed). Green's proposed instruction, which contained language drawn from sufficiency of the evidence caselaw on constructive possession, would have the potential to confuse and mislead the jury. See id. at 562 (expressly disapproving of an instruction that contained additional language found in a sufficiency-of-the-evidence case due to its potential to confuse and mislead the jury).

[22] We hold that the trial court's tendered pattern instruction on constructive possession adequately covered the substance of Green's proposed instruction and that Green's proposed instruction had the potential to confuse and mislead the jury. Therefore, the trial court did not abuse its discretion when it refused his proposed instruction.⁴

2. Sufficiency

[23] Green next argues that there was insufficient evidence to support his Level 4 felony unlawful possession of a firearm by a serious violent felon conviction. Green argues that the guilty verdict was the “product of jury irrationality, error,” or due to the jury's forbidden inference related to Green's prior conviction. (Green's Br. 20). In support of this argument, Green contends that because the jury had found him not guilty of the two dealing charges, the jury could not have found him guilty of possessing the handgun. We decline to review Green's challenge of his conviction under the theory of jury irrationality or error. See Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010) (“Jury verdicts in criminal cases are not subject to appellate review on grounds that they are inconsistent, contradictory, or irreconcilable.”). But, “[t]he evaluation of whether a conviction is supported by the evidence is independent from—and irrelevant to—the assessment of whether verdicts are contradictory and irreconcilable.” Myers v. State, 221 N.E.3d 694, 698 (Ind. Ct. App. 2023), trans. denied. Therefore, we now turn to our review of Green's challenge to the sufficiency of the evidence for his Level 4 felony unlawful possession of a firearm by a serious violent felon conviction.

[24] “Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (cleaned up). “A conviction is supported by sufficient evidence if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. (cleaned up). “In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it.” Id.

[25] The crux of Green's argument is that there was insufficient evidence that he had possessed the firearm. We disagree.

[26] Indiana Code § 35-47-4-5(c) provides that “[a] serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Level 4 felony.”

[27] A conviction for possession of a firearm may rest upon proof of either actual or constructive possession. Houston v. State, 997 N.E.2d 407, 409-10 (Ind. Ct. App. 2013). “Actual possession occurs when a person has direct physical control over an item.” Cruz v. State, 218 N.E.3d 632, 639 (Ind. Ct. App. 2023) (cleaned up), trans. denied. Constructive possession requires a showing that the defendant had “both the intent and capability to maintain dominion and control over the [handgun].” Bradshaw v. State, 818 N.E.2d 59, 62-63 (Ind. Ct. App. 2004). “The proof of a possessory interest in the premises on which illegal [items] are found is adequate to show the capability to maintain dominion and control over the items in question.” Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). See also Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App. 2018) (a house or apartment used as a residence is controlled by the person who lives in it and that person may be found in control of any drugs discovered therein, whether he is the owner, tenant, or merely an invitee), trans. denied. This applies whether possession of the premises is exclusive or not. Id.

[28] Here, the record is clear that Green had told Detective Norton that he was living at the house a couple of nights a week, that he was working on the house, and that he stayed in the back bedroom. Therefore, the capability prong of constructive possession is supported by the evidence.

[29] However, if control of the premises is nonexclusive, the inference of intent to maintain dominion and control over the item must be supported by evidence of additional circumstances indicating the accused's knowledge of the nature of the item and its presence. Gee, 810 N.E.2d at 340-41. When the item is a firearm, these additional circumstances have been found to include: (1) incriminating statements by the accused; (2) attempted flight or furtive gestures; (3) proximity of the firearm to the accused; (4) location of the firearm within the accused's plain view; and (5) mingling of the firearm with other items owned by the accused. Deshazier v. State, 877 N.E.2d 200, 206 (Ind. Ct. App. 2007), trans. denied. These listed circumstances are not exhaustive. Cannon, 99 N.E.3d at 280.

[30] Here, our review of the record reveals that Green told Detective Norton that he had been staying in the back bedroom of the house a couple of nights a week. Officers found the handgun beneath the pillow of the bed in the back bedroom that Green had been staying in. Additionally, on the nightstand next to the bed, officers found multiple bottles of prescription medicine with Green's name on them. Further, the officers also located next to the bed multiple pieces of mail with Green's name on them. Thus, there were multiple items belonging to Green mingled in the area where the handgun had been discovered. This evidence supports the intent prong of constructive possession.

[31] Green cites to the testimony that there had been insufficient amounts of DNA and a lack of latent prints on the handgun to connect him to the handgun. However, Green's argument is merely an invitation to reweigh the evidence and reassess the credibility of the witnesses, which we will not do. See Hancz-Barron, 235 N.E.3d at 1244.

[32] Based on our review of the evidence presented at the trial, we conclude that there was sufficient evidence from which a reasonable factfinder could have found Green guilty of Level 4 felony unlawful possession of a firearm by a serious violent felon.

3. Fundamental Error

[33] Lastly, Green argues that the trial court committed fundamental error when it “failed to bifurcate, sua sponte,” the presentation of evidence during part II of his trial. (Green's Br. 21). Typically, our review of the trial court's decision on the issue of bifurcation is for an abuse of discretion. Pickett v. State, 83 N.E.3d 717, 719 (Ind. Ct. App. 2017), reh'g denied. An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Id.

[34] Green specifically argues that the trial court should have, sua sponte, bifurcated the presentation of evidence during part II of the trial by having the jury first determine whether he had possessed the firearm before the State presented evidence of a prior felony conviction. However, Green makes this argument for the first time on appeal. He argues that, despite his failure to object at trial, the trial court's failure to further bifurcate Part II of the trial constitutes fundamental error.

[35] The doctrine of fundamental error permits an appellate court to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied. “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.” Willoughby v. State, 244 N.E.3d 473, 476 (Ind. Ct. App. 2024), trans. denied. “An 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).

[36] We find the facts before us to be similar to Spearman v. State, 744 N.E.2d 545 (Ind. Ct. App. 2001), reh'g denied, trans. denied, where our Court addressed the issue of bifurcation. In Spearman, the sole charge brought by the State was unlawful possession of a firearm by a serious violent felon under Indiana Code § 35-47-4-5. Id. at 546. The defendant moved for bifurcation “so that the jury would not be told of his [prior] conviction before it determined whether he was in possession of a firearm.” Id. The trial court denied his motion. Id. During trial, the defendant stipulated to the fact that he had a prior conviction, and the jury found him guilty. Id.

[37] On appeal, our Court determined that “the rationale for inadmissibility of prior convictions breaks down when the evidence of the prior conviction not only has the tendency to establish guilt or innocence but also is essential to such determination.” Id. at 547 (internal quotation marks omitted). Our Court further stated:

The legal status of the offender is an essential element of the crime, and the act—the possession—is illegal only if performed by one occupying that status. This is a very different situation from one in which the act itself is illegal without regard to the status of the offender, from one where the level of the illegal act is elevated based upon the offender's status, and from one where the punishment for the illegal act is enhanced based upon the offender's status. In each of these other instances, it is possible to bifurcate the trial because the jury can reasonably perform its function of determining whether the defendant committed an illegal act without hearing evidence of the defendant's legal status or prior crimes. Here, such bifurcation is not possible because the jury cannot determine if the defendant committed an illegal act without hearing such evidence. It is not practical, or even possible, to bifurcate the proceedings in this case.

Id. at 548.

[38] The Spearman Court recognized that while prejudice may arise due to the admission of the prior conviction, “the focus cannot be placed solely on the question of the prejudicial effect of such evidence.” Id. at 549. Rather, the focus “should be on whether the prejudice arising from evidence of prior crimes outweighs the probative value of such evidence.” Id. And any prejudicial effect can be mitigated “by excluding evidence regarding the underlying facts of the prior felony and limiting prosecutorial references thereto.” Id. at 550. Ultimately, our Court held that “the element of the prior felony cannot be bifurcated from the possession element” in a prosecution under Indiana Code § 35-47-4-5. Id.

[39] Turning back to the case before us, part II of Green's trial dealt solely with his Level 4 felony unlawful possession of a firearm by a serious violent felon charge. In this instance, bifurcation was not required. Id. Further, any prejudice from his prior conviction was mitigated in multiple ways. First, the term serious violent felon was never said to the jury or written in the jury instructions. Further, the stipulation admitted during this part of the trial only stated that Green had a prior conviction in 2011, but did not include any other details. See id. See also Dugan v. State, 860 N.E.2d 1288, 1291-92 (Ind. Ct. App. 2007) (affirming trial court's decision not to bifurcate serious violent felon proceedings where unlawful possession of firearm was the sole charge and where prejudice was avoided by removing direct references to serious violent felon and the facts of underlying offense and rephrasing the stipulation regarding defendant's serious violent felon status to read that it was “in violation of Ind. Code § 35-47-4-5”), trans. denied. Under these circumstances, we conclude that Green has failed to meet his burden of showing fundamental error. Accordingly, we affirm the trial court's judgment.

[40] Affirmed.

FOOTNOTES

1.   Indiana Code § 35-47-4-5.

2.   I.C. § 35-50-2-8.

3.   Parker was one of the five people who had been at the house at the time of the search warrant, but Parker had denied living at the house.

4.   Green also argues that he was denied a fair trial due to the trial court's refusal to tender his proposed instruction or to modify its pattern instruction with his mere presence language. However, Green provides no cogent argument pointing to any relevant cases or authorities that support this claim. Thus, he has waived the argument on appeal. See Ind. Appellate Rule 46(A)(8).

Pyle, Judge.

Judges May and Brown concur. May, J., and Brown, J., concur.