K.S., Appellant-Respondent v. State of Indiana, Appellee-Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] K.S., a juvenile, appeals his delinquency adjudication for committing dangerous possession of a firearm. K.S. argues that insufficient evidence supports a finding that he constructively possessed the firearm found under his seat in a vehicle and that, therefore, insufficient evidence supports his delinquency adjudication. We disagree and, accordingly, affirm.

Issue

[2] K.S. raises one issue, which we restate as whether sufficient evidence supports his delinquency adjudication for dangerous possession of a firearm.

Facts

[3] On the night of September 9, 2024, automatic license plate reading cameras in Indianapolis alerted to a white Jeep connected to a firearms investigation. Sixteen-year-old K.S. was seated on the passenger's side of the back seat. Law enforcement officers with the Indianapolis Metropolitan Police Department initiated a “high risk stop” and ordered K.S. and the vehicle's three other occupants, all adults, to step outside the vehicle, where they were detained. Tr. Vol. II p. 17. An officer looked through the back seat driver's-side window and saw marijuana and firearms inside the vehicle.

[4] Detective Jonathan Willey arrived on the scene and applied for a search warrant to search the vehicle. Although he smelled marijuana emanating from the vehicle, he applied for the search warrant to be “more safe than sorry.”¹ Id. at 23. By this time, other officers had already looked inside the vehicle—though they had not conducted a thorough search—and had identified several guns, including “[K.S.’s] gun.”² Respondent's Ex. A at 0:35, 3:05.

[5] The search warrant was granted, and on the rear passenger's side seat, Detective Willey located a cellphone belonging to K.S. and a high-capacity magazine. He also located a .22 caliber Taurus pistol “just on the rear floorboard, like where the feet would be of the rear seat passenger.” Tr. Vol. II p. 24. Three other firearms were found in the vehicle: one in the “front seat” and two others in the back of the vehicle behind the driver's seat. Id. at 35; Respondent's Ex. A at 1:10.

[6] On September 10, 2024, the State filed a petition alleging that K.S. was delinquent for committing dangerous possession of a firearm. The juvenile court held a fact-finding hearing on November 13, 2024. The law enforcement officers testified regarding the search of the vehicle. Detective Willey's bodycam footage capturing the search was admitted into evidence. The State argued that K.S. committed the offense because he was “knowingly in possession of th[e] Taurus 22 handgun” found under his seat. Tr. Vol. II p. 39. K.S. argued that insufficient evidence demonstrated that he possessed the gun.

[7] The juvenile court found that K.S. committed the offense and adjudicated him to be a delinquent child. In particular, the juvenile court noted “the number of passengers, the number of handguns, [and] the positioning of them in [the] photographs and video[.]” Id. at 41. The juvenile court ordered that K.S. be placed on probation with home-based case work, that he participate in a gun violence prevention program, and that he have no contact with one of the vehicle's occupants. K.S. now appeals.

Discussion and Decision

[8] K.S. argues that insufficient evidence supports his delinquency adjudication.³ We find the evidence sufficient.

I. Standard of Review

“In juvenile delinquency adjudication proceedings, the State must prove every element of the offense beyond a reasonable doubt.’ ” A.B. v. State, 885 N.E.2d 1223, 1226 (Ind. 2008) (citing C.D.H. v. State, 860 N.E.2d 608, 610 (Ind. Ct. App. 2007), trans. denied). “When reviewing the sufficiency of the evidence in a juvenile adjudication, we do not reweigh the evidence or judge witness credibility.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). “We consider only the evidence favorable to the judgment and the reasonable inferences supporting it.” Id. (citing K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006)). “We will affirm a juvenile-delinquency adjudication if a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt.” Id. (citing Moran v. State, 622 N.E.2d 157, 159 (Ind. 1993)).

B.R. v. State, 162 N.E.3d 1173, 1176 (Ind. Ct. App. 2021).

II. Constructive Possession

[9] K.S. was adjudicated to be a delinquent child for committing dangerous possession of a firearm by possessing the Taurus handgun. This offense is governed by Indiana Code Section 35-47-10-5(a), which provides, in relevant part: “A child who knowingly, intentionally, or recklessly possesses a firearm for any purpose other than a purpose described in section 1[⁴ ] of this chapter commits dangerous possession of a firearm, a Class A misdemeanor.”

[10] K.S. argues that insufficient evidence supports a finding that he possessed the Taurus handgun.

“[O]ur jurisprudence on the issue of ‘possession’ is rather straightforward: it can be either actual or constructive.” Sargent v. State, 27 N.E.3d 729, 732-33 (Ind. 2015). “Actual” possession of contraband, whether a handgun or an illegal substance, occurs when a person has direct physical control over the item. See, e.g., Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). If the State cannot prove actual possession, it may nonetheless prevail on proof of “constructive” possession. See, e.g., Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “ ‘A person constructively possesses [an item] when the person has (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it.’ ” Sargent, 27 N.E.3d at 732-33 (quoting Gray, 957 N.E.2d at 174).

B.R., 162 N.E.3d at 1176-77.

[11] Actual possession is not at issue here; the gun was not found on K.S.’s person, and the State makes no argument that K.S. actually possessed the gun. See Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997) (finding no actual possession when drugs were found, not on defendant's “person,” but rather “underneath the seat in which defendant had been sitting”). Thus, this case turns on constructive possession. The evidence must demonstrate that K.S. had (1) the capability to maintain dominion and control over the gun; and (2) the intent to maintain dominion and control over it. As K.S. does not contest the capability requirement,⁵ the sole issue is whether sufficient evidence demonstrates that K.S. had the intent to maintain dominion and control over the Taurus handgun.

[12] Discussing the intent requirement, our Supreme Court has explained that, when a defendant's possession of the premises on which contraband is found “is not exclusive,” then the inference of intent to maintain dominion and control over the contraband “ ‘must be supported by additional circumstances pointing to the defendant's knowledge of the nature of the [contraband] and [its] presence.’ ” Gee, 810 N.E.2d at 341 (quoting Lampkins, 682 N.E.2d at 1275). Such “additional 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 [when possession of drugs is alleged]; (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.”

B.R., 162 N.E.3d at 1177 (quoting Gray, 957 N.E.2d at 175).

[13] Although helpful, the “additional circumstances” listed above “are not exclusive.” Gee, 810 N.E.2d at 344. The point is that “the State is required to show that whatever factor or set of factors it relies upon in support of the intent prong of constructive possession, those factors or set of factors must demonstrate the probability that the defendant was aware of the presence of the contraband and its illegal character.” Id. The combination of potential factors has spawned a diverse body of caselaw highlighting the importance of a fact-specific inquiry in each case where the intent requirement of constructive possession is at issue. See, e.g., Henderson v. State, 715 N.E.2d 833, 836-837 (Ind. 1999) (collecting cases).

III. Sufficient evidence supports K.S.’s delinquency adjudication under the theory of constructive possession.

[14] We conclude that sufficient evidence supports a finding that K.S. had the intent to maintain dominion and control over the Taurus handgun and, thus, had constructive possession of it.

A. Proximity

[15] First, there is no dispute that the Taurus handgun was found in close proximity to K.S. The gun was found beneath his seat in the vehicle. K.S. argues that this is the sole factor that supports the intent requirement and, standing alone, is insufficient because it does not establish that K.S. knew of the gun's existence. See B.R., 162 N.E.3d at 1178 (“[T]he proximity of the handgun to B.R., standing alone, does not establish that B.R. knew of the handgun's existence.”); Holmes v. State, 785 N.E.2d 658, 661-62 (Ind. Ct. App. 2003) (finding that defendant's “proximity to marijuana that was not in plain view, standing alone, does not support an inference that he intended to maintain dominion and control over it”) (italics in original). We, however, find that at least two other additional circumstances, in addition to proximity, support a finding that K.S. had knowledge of the gun and had the intent to maintain dominion and control over it.

B. Plain View

[16] The Taurus handgun was in plain view of K.S. In the context of constructive possession, plain view does not refer to the plain view doctrine under the Fourth Amendment, but rather plain view “in a more generic sense.” Gee, 810 N.E.2d 341. Contraband is in plain view when “it is in a location where it can be ‘plainly viewed’ and ‘the incriminating character of the evidence is immediately apparent.’ ” Id. (quoting Houser v. State, 678 N.E.2d 95, 101 (Ind. 1997)).

[17] Here, when Detective Willey arrived on the scene, he noted that officers had already observed a gun present under K.S.’s seat in “plain view.” Respondent's Ex. A at 0:35, 3:05. Detective Willey proceeded immediately to the rear passenger's side seat where K.S. had been sitting to seize the gun. As K.S. points out, Detective Willey initially stated, “I just can't see where the gun is” while searching for the gun. Id. at 1:30. But at that moment, Detective Willey was positioned outside the vehicle behind the back seat; he was not in the position K.S. would have been seated inside the vehicle. And once another officer shined a flashlight into the vehicle, Detective Willey immediately located the Taurus handgun.

[18] Detective Willey testified that the gun was located “just on the rear floorboard, like where the feet would be of the rear seat passenger.” Tr. Vol. II p. 24. In the bodycam footage, he shows exactly where the gun was found, and it was not “positioned so far under the seat that it could not be seen by a passenger in that seat.” Cf. D.C.C. v. State, 695 N.E.2d 1015, 1016 (Ind. Ct. App. 1998).

[19] K.S. argues that, during closing statements, the State argued that the handgun was “tucked under the passenger floorboard.” Tr. Vol. II p. 38. This statement does not precisely reflect the location of the gun shown in the bodycam footage nor Detective Willey's testimony. Moreover, arguments by counsel “are, by definition, not evidence.” Ind. State Police v. Estate of Damore, 194 N.E.3d 1147, 1164 (Ind. Ct. App. 2022) (citing Krampen v. Krampen, 997 N.E.2d 73, 81 (Ind. Ct. App. 2013), trans. denied), trans. denied). And we will not reweigh the evidence before the juvenile court.

C. Multiple firearms

[20] Another factor further supports a finding that K.S. possessed the Taurus handgun: four firearms were found in the vehicle, which corresponded with the number of occupants, and the firearms were found roughly in the locations where each occupant was seated. One was found in the “front seat,” two others were found behind the driver's seat, and the Taurus handgun was found under K.S.’s seat. Tr. Vol. II p. 35; Respondent's Ex. A at 1:10; see Hoffman v. State, 520 N.E.2d 436, 438 (Ind. 1988) (finding sufficient evidence to support conviction for carrying a handgun without a license when guns were found under each seat the defendant and other occupants had occupied “just prior to being required to exit the vehicle,” and “[t]his was evidence from which the jury could conclude that each man was armed and that each discarded the weapon under the seat at the time officers required them to leave the vehicle”). Although the number of firearms corresponding to the number and locations of a vehicle's occupants is not one of the “additional circumstances” listed by our Supreme Court in Gee, the Court made clear that those factors “are not exclusive.” Gee, 810 N.E.2d at 341.

[21] K.S. argues that the Taurus handgun could have legally belonged to one of the vehicle's adult occupants. He relies on Henderson, 715 N.E.2d 833, which we find distinguishable. In that case, a law enforcement officer stopped a vehicle; Jamal Finch was the driver, and the defendant was the front seat passenger. Finch told the officer that there were guns in the vehicle, and two guns were discovered, including one under the front passenger seat where the defendant was seated. It was undisputed that “Finch owned both guns and had a permit for each.”⁶ Id. at 835. Nonetheless, the defendant was convicted of carrying a handgun without a license based on the gun found under his seat.

[22] Our Supreme Court phrased the issue as “whether one can have constructive possession of a firearm when someone else has legal, actual, and simultaneous possession of the same weapon.” Id. at 836. The Court held that insufficient evidence supported a finding that the defendant constructively possessed the gun, stating:

To be sure, he knew it was at his feet and could have picked it up. On the other hand, driver Jamal Finch owned the gun, had a permit for it, and was likewise within reach of the gun. Without evidence of any movement or action to suggest [the defendant] exercised dominion, we conclude the evidence was insufficient to sustain his conviction.

Id. at 838.

[23] Here, unlike in Henderson, there is no evidence that another occupant of the vehicle claimed ownership and had simultaneous possession of the Taurus handgun. The situation faced by the Court in Henderson is simply not present here.

[24] The number and locations of the guns in the vehicle, in addition to the Taurus handgun's proximity to K.S. and it being in his plain view, support a finding that K.S. had the intent to maintain dominion and control over the Taurus handgun and had constructive possession of this gun. Sufficient evidence supports K.S.’s delinquency adjudication.

Conclusion

[25] Sufficient evidence supports a finding that K.S. constructively possessed the Taurus handgun and, thus, sufficient evidence supports his delinquency adjudication for dangerous possession of a firearm. Accordingly, we affirm the judgment of the juvenile court.

[26] Affirmed.

FOOTNOTES

1.   Under the automobile exception, a search warrant is ordinarily not required to search a vehicle found in a public place when there is “probable cause to believe evidence of a crime will be found in the vehicle.” State v. Hobbs, 933 N.E.2d 1281, 1285 (Ind. 2010) (citing Brinegar v. United States, 338 U.S. 160, 164 (1949); Carroll v. United States, 267 U.S. 132, 153-54 (1925)).

2.   Detective Willey testified, “To my knowledge, the car had not been actually [ ] searched before my warrant. It might have been cleared, but as far as a search, not to my knowledge.” Tr. Vol. II p. 29.

3.   K.S. points out that, according to the bodycam footage, after conducting the search, Detective Willey stated that the vehicle should not have been in the license plate reader system. See Respondent's Ex. A at 3:30. K.S., however, does not argue that either the stop or search of the vehicle was illegal or that any evidence should not have been admitted.

4.   Indiana Code Section 35-47-10-1(b) lists such purposes as:(1) A child who is attending a hunters safety course or a firearms safety course or an adult who is supervising the child during the course.(2) A child engaging in practice in using a firearm for target shooting at an established range or in an area where the discharge of a firearm is not prohibited or supervised by:(A) a qualified firearms instructor; or(B) an adult who is supervising the child while the child is at the range.(3) A child engaging in an organized competition involving the use of a firearm or participating in or practicing for a performance by an organized group under Section 501(c)(3) of the Internal Revenue Code that uses firearms as a part of a performance or an adult who is involved in the competition or performance.(4) A child who is hunting or trapping under a valid license issued to the child under IC 14-22.(5) A child who is traveling with an unloaded firearm to or from an activity described in this section.(6) A child who:(A) is on real property that is under the control of the child's parent, an adult family member of the child, or the child's legal guardian; and(B) has permission from the child's parent or legal guardian to possess a firearm.(7) A child who:(A) is at the child's residence; and(B) has the permission of the child's parent, an adult family member of the child, or the child's legal guardian to possess a firearm.

5.   Indeed, sufficient evidence does demonstrate that K.S. had the capability to maintain dominion and control over the gun. “The capability requirement is met when the state shows that the defendant is able to reduce the [item] to the defendant's personal possession.” Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Here, the gun was located beneath the seat where K.S. was seated in the vehicle, and this is sufficient. See B.R., 162 N.E.3d at 1177 (capability requirement was met when juvenile “was seated close to the hidden compartment” where the gun was found in the vehicle, and defendant “would have been able to reduce the handgun to his personal possession”); Lampkins, 682 N.E.2d at 1275 (capability requirement was met when drugs in vehicle were found “under defendant's seat and easily within his reach”).

6.   Today, subject to several statutory exceptions, an adult in Indiana is generally “not required to obtain or possess a license or permit from the state to carry a handgun in Indiana.” Ind. Code § 35-47-2-3; see generally Ind. Code ch. 35-47-2.

Tavitas, Judge.

Chief Judge Altice and Judge Brown concur. Altice, C.J., and Brown, J., concur.