Kevin Rand Gavarrete, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Kevin Rand Gavarrete appeals his conviction for unlawful possession of a firearm by a serious violent felon, a Level 4 felony,¹ and his adjudication as a habitual offender.² We affirm.

Issues

[2] Gavarrete raises the following two issues for our review:

1. Whether the State presented sufficient evidence to support his conviction for unlawful possession of a firearm by a serious violent felon.

2. Whether the court committed fundamental error when it allowed the State to file the habitual offender enhancement six days before trial.

Facts and Procedural History

[3] On July 17, 2024, Officer Caleb Freeman with the Greenfield Police Department observed a white Ford F150 pickup truck in the parking lot of a gas station. Officer Freeman noticed that the truck had a “temporary tag and a dark tinted cover[.]” Tr. Vol. 2 at 63. Officer Freeman “conducted a BMV registration check” and “the temporary tag returned to a different vehicle than it was on.” Id. When the truck left the gas station, Officer Freeman initiated a traffic stop.

[4] When Officer Freeman approached the truck, he was able to see that the driver was Gavarrete and that he had a female passenger. He was also able to “observe drugs ․ and drug paraphernalia” on the passenger side of the vehicle. Id. at 64. Officer Freeman asked Gavarrete if there were “any weapons in the vehicle,” and Gavarrete hesitated but “ultimately said ․ that there weren't[.]” Id. at 64-65. Officer Freeman then asked the two individuals to exit the car, and he conducted a search of the vehicle. Officer Freeman located a “firearm holster” in the driver's side door. Id. at 65. He then located a “black handgun” under the driver's seat “up against the rail below the ․ seat belt buckle” by the center console. Id. At that point, Officer Freeman called Detective Ryan Chappell, who is a firearms liaison.

[5] Freeman read Gavarrete his Miranda rights. When Detective Chappell arrived, the two questioned Gavarrete, and the interview was captured on one of the officer's bodycams. During the questioning, Gavarrete stated that he had purchased the truck “like two days ago.” Ex. 6 at 00:46-00:47. One of the officers then asked Gavarrete if the gun was loaded, and Gavarrete replied: “I'm not sure for sure. It's not mine.” Id. at 01:38-01:40. An officer then stated: “Obviously, there's a gun in your vehicle. You're driving ․ It's your gun. Am I right or am I wrong?” Id. at 01:48-01:52. Gavarrete responded: “Yeah, I mean, yes.” Id. at 01:53-01:54. Gavarrete then gave the officers permission to swab the gun for DNA. An officer then stated: “All I'm going to do is take some DNA swab. You've already told me it's yours.” Id. 02:08-02:10. Gavarrete then interjected: “No․ I'm saying by law with me driving the vehicle, yeah.” Id. at 02:11-02:17. Detective Chappell retrieved the firearm from the truck and determined that the firearm was a “Glock Model 48.” Tr. Vol. 2. at 94.

[6] On July 23, the State charged Gavarrete with unlawful possession of a firearm by a serious violent felon, a Level 4 felony.³ Then, on September 20, the State filed a notice of intent to file a habitual offender enhancement. On October 15, Gavarrete filed a motion for a fast and speedy trial, which the court granted. The court scheduled a jury trial for December 17. On December 11, the State filed the habitual offender enhancement. The court held an initial hearing on the enhancement on December 13. Gavarrete did not object to the filing of the enhancement or ask for a continuance.

[7] At the ensuing bifurcated jury trial, Officer Freeman testified about the location of the firearm and that it would be “reasonable for a driver to place something in that area.” Id. at 84. Detective Chappell then testified that he had assisted Officer Freeman with the interview of Gavarrete and that he had started by asking Gavarrete: “I know there's a firearm in the vehicle, is the ․ firearm yours?” Id. at 91. Detective Chappell testified that Gavarrete provided “an affirmative response.” Id. Detective Chappell then testified that Gavarrete subsequently “backtrack[ed]” and denied that the firearm belonged to him. Id. at 92. Detective Chappell then testified that the gun was “a real firearm.” Id. at 96.

[8] At the conclusion of the first phase of the trial, the jury found Gavarrete guilty of unlawful possession of a firearm. Gavarrete then waived his right to a jury trial on the second phase, and the State presented evidence of prior convictions. The court found that Gavarrete was a serious violent felon, and it adjudicated him a habitual offender. Following a sentencing hearing, the court sentenced Gavarrete to six years for the felony conviction, with four years executed and two years on home detention, enhanced by eight years for the habitual offender adjudication. This appeal ensued.

Discussion and Decision

Issue One: Sufficiency of the Evidence

[9] Gavarrete first contends that the State failed to present sufficient evidence to support his conviction for unlawful possession of a firearm by a serious violent felon. Our standard of review on a claim of insufficient evidence is well settled:

For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).

[10] To convict Gavarrete as charged, the State was required to prove that he is a serious violent felon and that he knowingly or intentionally possessed a firearm. See Ind. Code § 35-47-4-5(c). On appeal, Gavarrete concedes that he is a serious violent felon. However, he contends that the State failed to prove that he knowingly or intentionally possessed the item found in the car and that the item was a firearm. We address each argument in turn.

Possession

[11] Gavarrete first asserts that the State failed to prove that he knowingly or intentionally possessed the item found in his car. Indiana law on the question 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 occurs when a person has direct physical control over the item.” Id. at 733. And a person constructively possesses an item when the person has both (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it. Id.

[12] On appeal, Gavarrete contends that the State failed to prove that he constructively possessed the item found in his truck because he “did not have exclusive possession of the truck” and because there “was no evidence of attempt of flight or furtive gestur[es].” Appellant's Br. at 15. And he maintains that “[n]either officer testified that the alleged firearm was in plain view” and that “there were no fingerprints on the alleged firearm.” Id. at 16.

[13] However, the evidence most favorable to the verdict supports a reasonable inference that Gavarrete possessed the firearm. The officers found the firearm in Gavarrete's truck under the driver's seat, which is where Gavarrete was sitting. And Officer Freeman testified that it would be “reasonable” for a driver to place an object in the area where the item was found. Tr. Vol. 2 at 84. In addition, officers found a gun holster in the driver's side door next to Gavarrete. Further, and importantly, when officers asked Gavarrete if the gun was his, Gavarrete provided an “affirmative response.” Id. at 91. While Gavarrete “backtrack[ed]” and ultimately denied that the gun was his, the jury was not required to believe his revised, self-serving statement. Id. at 92.

[14] Stated differently, Gavarrete admitted that the gun was his, and the gun was located in a place in his truck that would be a reasonable place for the driver of the vehicle to place something. That evidence supports a reasonable conclusion that he had both the capability to maintain dominion and control over the item and the intent to do so. Gavarrete's argument on appeal is simply a request for this Court to reweigh the evidence, which we cannot do.

Firearm

[15] Gavarrete next contends that the State failed to prove that the item found in his truck was a firearm. A “firearm” is any weapon that is “capable of expelling,” “designed to expel,” or “that may readily be converted to expel” a “projectile by means of an explosion.” I.C. § 35-47-1-5. Gavarrete contends that the State “relied on photographs and Detective Chappell's testimony to describe the alleged firearm” while offering “no testimony regarding whether any ballistics testing was done” or whether “the parts together equaled a ‘weapon’ that was capable, designed[,] or could be readily converted to expel a projecti[le.]” Appellant's Br. at 17. However, Detective Chappell, who received training to be a firearms liaison, testified that the item retrieved from Gavarrete's truck was a “Glock Model 48” and that it was a “real firearm.” Tr. Vol. 2 at 94, 96. That is sufficient evidence from which a reasonable jury could conclude that the item was a firearm. The State presented sufficient evidence to show that Gavarrete knowingly or intentionally possessed a firearm. We therefore affirm his conviction.

Issue Two: Habitual Offender Information

[16] Gavarrete next contends that the trial court erred when it allowed the State to belatedly file the habitual offender charge. To preserve a challenge to a belated habitual offender filing, a defendant must object to the filing and, if the court overrules the objection and allows the filing, request a continuance. See White v. State, 963 N.E.2d 511, 518 (Ind. 2012) (stating precedent has consistently held that, to preserve this issue for appeal, a defendant must request a continuance after the court permits a belated habitual offender filing and noting that the rule has no exceptions). Gavarrete did not object to the State's belated filing, nor did he request a continuance; consequently, he has waived this issue for appeal.

[17] Acknowledging that the issue was not properly preserved, Gavarrete claims fundamental error. As our Supreme Court has explained:

A claim that has been waived by a defendant's failure to raise a contemporaneous objection can be reviewed on appeal if the reviewing court determines that a fundamental error occurred. The fundamental error exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process. This exception is availabl only in egregious circumstances.

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quotation marks and citations omitted).

[18] Indiana Code Section 35-34-1-5(e) provides that an amendment of an information to include a habitual offender charge “must be made at least thirty days before the commencement of trial.” However, “upon a showing of good cause, the court may permit the filing of a habitual offender charge at any time before the commencement of the trial if the amendment does not prejudice the substantial rights of the defendant.” Ind. Code § 35-34-1-5(e). If the court permits the filing of a habitual offender charge less than thirty days before trial begins, the court shall grant a continuance at the request of the defendant, for any reason, or the State, for good cause shown. Id. “ ‘The purpose of Section 35-34-1-5(e) is to allow a defendant sufficient time to prepare a defense for the habitual offender charge.’ ” Jackson v. State, 938 N.E.2d 29, 39 (Ind. Ct. App. 2010) (quoting Land v. State, 802 N.E.2d 45, 53 (Ind. Ct. App. 2004), trans. denied), trans. denied.

[19] Gavarrete contends that it was fundamental error for the court to allow the State to file the habitual offender count six days before trial because the State did not “show ‘good cause’ for [the] belated” amendment. Appellant's Br. at 19. He further contends that his counsel was “left with very short time to incorporate preparation for the newly filed habitual enhancement while also preparing for jury trial on Count 1.” Id. at 22. As such, he maintains that the belated amendment “impacted [his] fundamental right to effective counsel[.]” Id.

[20] Here, we acknowledge that the court allowed the State to file the habitual offender charge only six days prior to trial. Even if we assume for the sake of argument that that was in error, “the mere fact that error occurred and that it was prejudicial will not satisfy the fundamental error rule.” Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007). Further, to invoke this doctrine, it is not enough to argue that a constitutional right is implicated. See id. Rather, as outlined above, the question is whether the error was so prejudicial that it made a fair trial impossible and constituted a blatant violation of the elementary principles of due process. See Brown, 929 N.E.2d at 207.

[21] Despite the fact that the State filed the charge six days prior to trial, the State had filed its intent to file the habitual offender enhancement in September 2024, one month prior to Gavarrete's motion for a fast and speedy trial and three months prior to the scheduled trial date. Thus, Gavarrete was on notice that the State could file that charge well in advance of the trial date. In addition, the fact that the State ultimately filed the habitual offender count based on different convictions than it had used in its notice of intent to file did not make a fair trial impossible. Gavarrete was present and represented by counsel throughout the proceedings, and he was given every opportunity to present evidence in his defense, cross-examine any of the State's witnesses, or call witnesses of his own. As such, Gavarrete has not met the high burden to show that the error, if any, in the belated filing of the habitual offender charge constituted fundamental error.

Conclusion

[22] The State presented sufficient evidence to support Gavarrete's conviction for unlawful possession of a firearm by a serious violent felon. And the court did not commit fundamental error when it allowed the State to file the habitual offender enhancement six days prior to trial. We therefore affirm Gavarrete's conviction and adjudication as a habitual offender.

[23] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-4-5(c).

2.   I.C. § 35-50-2-8(b).

3.   The State also charged him with auto theft, as a Level 5 felony, and driving with a suspended license, a Class A misdemeanor. However, the court dismissed those charges prior to trial on the State's motion.

Bailey, Judge.

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.