JOHNSON v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Andre Johnson appeals his conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon.¹ He argues the State failed to prove he constructively possessed a firearm. We affirm.

Facts and Procedural History

[2] In February 2023, Johnson lived with his fiancée, Deayra Whitworth, in Indianapolis. The Marion County Probation Department and Indianapolis Metropolitan Police Department (“IMPD”) field team conducted a probation compliance check at the couple's home. Johnson works in transport, making deliveries and towing vehicles. On the day of the compliance check, Whitworth was the only one home; Johnson was out of state, making a delivery from St. Louis to Detroit. The field team searched the house and three vehicles: a box truck in the backyard and two Dodge Chargers—one white and one green—parked in front of the house.

[3] No contraband was found in the house or in the box truck. But a firearm was found in each of the Chargers. A Taurus G2S .40 caliber semi-automatic handgun was found in the center console of the white Charger. A silver and purple SCCY CPX-1 9mm semi-automatic handgun was found in the center console of the green Charger. Whitworth has a lifetime Indiana firearm concealed carry license and is legally permitted to carry a firearm in Indiana. She owns two firearms: a black Taurus G2S .40 caliber semi-automatic handgun and a silver and purple SCCY CPX-1 9mm semi-automatic handgun.

[4] With respect to the white Charger, BMV records showed it was owned by Johnson and the vehicle's registration—found in the glove box—had Johnson's name on it and an expiration date of June 2023. Officers took pictures of other items found in the white Charger, including an item that looked “like a hat a male would wear” on the driver's side dash, candy, water, phone cords, gum, glasses, tape, and feminine products. Tr. Vol. 2 at 192. An invoice from a mechanic shop for work done on the white Charger in June 2022 was found in the house. It had Johnson's name and contact information on it.

[5] IMPD Officer Frank Gunn, who is certified to fingerprint and collect DNA from firearms, collected the two handguns and processed them for evidence. Chelsea Miller, who conducts DNA analysis at the Indianapolis Marion County Forensic Services Agency, tested six swabs from the two handguns against a buccal cell standard from Johnson. She developed a DNA profile from a swab of the grip, trigger, slide, slide lock, and trigger guard of the Taurus handgun. The profile included a mixture of DNA from three individuals, and comparing the DNA to the standard, “statistical analysis provide[d] very strong support for the inclusion” of Johnson as one of those individuals. Id. at 162; see also Ex. Vol. 1 at 78 (report stating the DNA profile “is at least 1 trillion times more likely if it originated from Andre Johnson ․ and two unknown individuals than if it had originated from three unknown, unrelated individuals”). Analysis of DNA recovered from the SCCY handgun excluded Johnson as a contributor. No positive identification of usable fingerprints from the Taurus handgun was made.

[6] The State charged Johnson with Level 4 felony unlawful possession of a firearm by a serious violent felon. The State also alleged Johnson was a habitual offender.

[7] At Johnson's jury trial, Miller testified about the DNA findings. She acknowledged using a single swab to swab multiple areas of the Taurus could have transferred DNA from area to area. See Tr. Vol. 2 at 167–68 (Miller testifying DNA from the first area “could have transferred to the second part that [was] swabbed, and the second [to the] third”). She also agreed “a person's DNA can be on an object even if they've never touched that object[.]” Id. at 169. Officer Gunn testified the grip, trigger, slide, slide lock, and trigger guard—the areas on which DNA was found—are areas “that would have been touched by someone holding the firearm[.]” Id. at 220–21. He also stated it is standard practice to use one swab on multiple areas of a weapon and acknowledged this could possibly transfer DNA from one part of the weapon to another.

[8] Johnson also testified and admitted he had a prior conviction that prevented him from possessing a firearm. Johnson said he bought the white Charger for Whitworth in 2021 but had never driven it. He primarily drove his work truck so he was always prepared when a call came in. He said he knew Whitworth had guns but had never seen or touched the Taurus and had no explanation for why his DNA was on the gun. He did not place the gun in the vehicle and did not know it was there. He thought the handguns were kept at Whitworth's mother's home on the other side of town.

[9] A jury found Johnson guilty, specifically finding Johnson knowingly or intentionally possessed a black Taurus G2S .40 caliber handgun. The State and Johnson then stipulated to his prior convictions and the trial court found Johnson had accumulated at least two prior unrelated felony convictions and was a habitual offender. The trial court sentenced Johnson to a total of fifteen years in the Indiana Department of Correction, with the last two years to be served in community corrections.

Sufficient evidence supports Johnson's conviction of unlawful possession of a firearm by a serious violent felon.

[10] A sufficiency-of-the-evidence claim warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

[11] To convict Johnson of unlawful possession by a serious violent felon, the State was required to prove Johnson knowingly or intentionally possessed a firearm after being convicted of an offense enumerated in Indiana Code Section 35-47-4-5(b). Here, the only element Johnson claims the State failed to prove was his possession of the handgun found in the white Charger.²

[12] “[C]onviction for possessory offenses does not depend on the accused being ‘caught red-handed’ in the act by the police.” Wilburn v. State, 442 N.E.2d 1098, 1101 (Ind. 1982). Possession can be either actual or constructive. Sargent v. State, 27 N.E.3d 729, 732–33 (Ind. 2015). When a person has direct physical control over an item, he is in actual possession. Id. When a person does not have direct physical control but has both the capability and the intent to maintain dominion and control over the item, he constructively possesses the item. Id.

[13] A trier of fact may infer capability to maintain dominion and control from the fact the defendant had a possessory interest in the premises on which the item is found, even when the possessory interest is not exclusive. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). To prove intent, the State must establish the defendant's knowledge of the presence and nature of the contraband. Bailey v. State, 202 N.E.3d 485, 491 (Ind. Ct. App. 2023), trans. denied. If control over the premises containing the contraband is exclusive, knowledge may be inferred. Id. If control is non-exclusive, however, the trier of fact may infer knowledge only if there is evidence of additional circumstances pointing to defendant's knowledge. Id. Such circumstances may include:

(1) a defendant's incriminating statements; (2) a defendant's attempting to leave or making furtive gestures; (3) the location of contraband like drugs in settings suggesting manufacturing; (4) the item's proximity to the defendant; (5) the location of contraband within the defendant's plain view; and (6) the mingling of contraband with other items the defendant owns.

Gray, 957 N.E.2d at 175.³

[14] “[F]inding contraband hidden from plain view on premises in which a defendant has a nonexclusive possessory interest when the defendant was not even present will not, without more, support a conviction on a theory of constructive possession.” Id. (citing Gee, 810 N.E.2d at 343). Johnson contends the State failed to show any of the common additional constructive possession factors. See Appellant's Br. at 12. But the Supreme Court has called the commonly recited factors “possible examples” of additional circumstances showing knowledge. Id. And this Court has stated the list is not exhaustive. See Young v. State, 244 N.E.3d 950, 964 (Ind. Ct. App. 2024) (noting “other factors beyond the six listed [in Gray] may support a finding that the defendant had constructive possession”), trans. denied. “Rather, the State is required to show that whatever factor or set of factors it relies upon in support of the intent prong of construction possession ․ demonstrate[s] the probability that the defendant was aware of the presence of the contraband and its illegal character.” Gee v. State, 810 N.E.2d 338, 344 (Ind. 2004).

[15] Here, the State presented evidence of factors from which Johnson's knowledge of the presence of the Taurus could be inferred. Johnson was the registered owner of the white Charger parked outside his home. Even though he testified he bought the car for Whitmore in 2021 and never drove it, it was still registered to him when the car was searched in 2023. A photograph of what was described as a hat a man would wear on the driver's side dash was shown to the jury. And most tellingly, Johnson's DNA was found on the Taurus in areas that would be touched by someone holding the firearm—the grip, trigger, trigger lock, slide, and slide lock. Miller, the DNA analyst, testified it is “at least one trillion times more likely” the DNA profile on the Taurus originated from Andre Johnson and two unknown individuals than if it originated from three unknown individuals. Tr. Vol. 2 at 162. She also testified “one trillion is a cap” the lab imposes because it “is a number that's easily understood by mostly everyone,” but the actual statistic in this case is that it is “7.5 sextillion times more likely”—a number with “21 zeros after the 7.5.” Id.

[16] In Williams v. State, a panel of this Court held for the first time in Indiana that the presence of a defendant's DNA on an item could be considered a circumstance pointing to the defendant's knowledge of the presence of the item. 240 N.E.3d 1285, 1291–92 (Ind. Ct. App. 2024).⁴ We agree. From Johnson's ownership and control of the white Charger, the presence of items likely to be his in the car, and the fact Johnson's DNA was found on the handgun, a reasonable jury could conclude he knew the firearm was in the car and had the capability and intent to maintain dominion and control over it.

[17] Johnson's argument highlighting his own testimony and testimony that his DNA could have transferred to the weapon by other means is simply a request to reweigh the evidence, which we will not do. “When there are conflicts in the evidence, the jury must resolve them.” Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022). Moreover, the State need not rule out every reasonable hypothesis that could have explained why or how Johnson's DNA was on the handgun. See Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007) (stating it is “not necessary that the evidence overcome every reasonable hypothesis of innocence. [T]he evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.”) (internal quotation marks and citations omitted).

Conclusion

[18] The State presented sufficient evidence from which the jury could reasonably conclude Johnson constructively possessed the firearm at issue.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-4-5(c) (2020).

2.   The State and Johnson stipulated at trial that he was convicted of a felony that prohibits him from possessing a firearm and further stipulated the Taurus was a firearm as defined by statute. See Ex. Vol. 1 at 5, 69.

3.   Johnson does not challenge the capability prong, focusing his argument on whether the State proved any additional circumstances from which his knowledge of the Taurus could be inferred.

4.   Williams also held the “overwhelming evidence” of the presence of the defendant's DNA on the handgun could support a conclusion the defendant was in actual possession of the firearm. Id. at 1289. The State in this case does not argue the evidence was sufficient to show Johnson was in actual possession of the Taurus and we therefore do not consider it.

Kenworthy, Judge.

Mathias, J., and Brown, J., concur.