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

MEMORANDUM DECISION

Statement of the Case

[1] M.S., a juvenile, was involved with two other juveniles who allegedly stole alcohol from a convenience store. Police responding to a theft by M.S.’s companions found M.S. hiding in the back seat of the juveniles’ vehicle. Officers discovered both alcoholic beverages and a firearm in the driver's seat back pocket directly next to where M.S. was sitting. M.S. appeals, raising one issue for our review: Whether the State presented sufficient evidence at the evidentiary hearing to support his juvenile adjudication for dangerous possession of a firearm.

[2] We affirm.

Facts and Procedural History

[3] On July 29, 2024, Officer Hughes of the Indianapolis Metropolitan Police Department (“IMPD”) was dispatched to a theft in progress where he detained two juvenile males at an Indianapolis gas station. While searching the juveniles’ vehicle, he discovered alcoholic beverages in the front of the car and M.S. behind the driver's seat, appearing “hunched over” and “trying to make himself look small.” Tr. Vol II at 15. After asking M.S. to exit the vehicle and patting him down, Officer Hughes concluded that M.S. was not involved in the actual theft and told him he was free to leave. M.S. remained at the scene.

[4] IMPD Officer Webb arrived and decided to tow the vehicle involved due to evidence of criminal activity inside. During an inventory search of the vehicle, another officer observed “what appeared to be a handgun” through the fabric of the driver's seat back pocket. Tr. Vol II at 33. Officer Webb confirmed that the bulge was consistent with the outline of a handgun, searched the pocket, and found a handgun. M.S. was then handcuffed and transported to the juvenile center.

[5] The State filed a delinquency petition alleging M.S. committed dangerous possession of a firearm as a Class A misdemeanor if committed by an adult, theft as a Class A misdemeanor if committed by an adult, and minor in possession of alcohol as a Class C misdemeanor if committed by an adult. At the evidentiary hearing, the State dismissed the theft charge, and the juvenile court adjudicated M.S. a delinquent for the remaining two offenses. This appeal ensued.

Discussion and Decision

The State Presented Sufficient Evidence to Support M.S.’s Juvenile Adjudication for Dangerous Possession of a Firearm

[6] M.S. claims that the State presented insufficient evidence at the evidentiary hearing to support his adjudication for dangerous possession of a firearm. In reviewing the sufficiency of evidence in a juvenile adjudication, we show substantial deference to the juvenile court's decision:

When reviewing sufficiency claims in the special context of a juvenile adjudication, such as here, “we do not reweigh the evidence or judge witness credibility,” but appraise “only the evidence favorable to the judgment and the reasonable inferences supporting it.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018) (citing K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006)). We will affirm a juvenile adjudication “if a reasonable trier of fact could conclude that the [respondent] was guilty beyond a reasonable doubt.” Id. (citing Moran v. State, 622 N.E.2d 157, 159 (Ind. 1993)).

A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024). To adjudicate M.S. as a delinquent for dangerous possession of a firearm under Indiana Code section 35-47-10-5(a), the State had to prove beyond a reasonable doubt that M.S. “knowingly, intentionally, or recklessly possess[ed] a firearm for any purpose other than a purpose described in [Indiana Code Section 35-47-10-1].” Specifically, M.S. claims the State failed to provide sufficient evidence to show that he possessed a firearm.

[7] There are two types of possession: (1) actual and (2) constructive. Sargent v. State, 27 N.E.3d 729, 732–733 (Ind. 2015). “Actual possession occurs when a person has direct physical control over the item.” Id. at 733 (citing Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004)). “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.” Id. (alteration in original) (citing Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011)). The juvenile court found that M.S. had constructive possession of the firearm. M.S. claims only that the State presented insufficient evidence to prove he had intent to maintain dominion and control over the firearm. Since M.S.’s possession of the premises was not exclusive, the State must support the inference of intent “with additional circumstances pointing to the defendant's knowledge of the presence and the nature of the item.” Gray, 957 N.E.2d at 175. (citing Gee, 810 N.E.2d at 341). Intent to maintain dominion and control can be proved through a variety of means:

(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.

Id. (citing Gee, 810 N.E.2d at 341). Additionally, on its own, the defendant's “proximity to contraband in plain view ․ will support an inference of intent to maintain dominion or control.” Id. (internal quotation marks omitted) (quoting Lampkins v. State, 682 N.E.2d 1268, 1276 (Ind. 1997)).

[8] The evidence establishes that M.S. made furtive movements while in close proximity to a firearm in plain view. Officer Hughes testified that when he encountered M.S., the juvenile “appeared to be hunched over” and “it looked like [M.S.] was trying to make himself look small.” Tr. Vol II at 15. Furtive gestures are additional circumstance indicators of knowledge and intent for constructive possession. Gray, 957 N.E.2d at 175. The trial judge found M.S.’s conduct amounted to a furtive gesture. In the judge's summation of evidence, he said,

The handgun was positioned um, in the seat back pocket in a way that was easily accessible and grasp or able for him to grasp with the butt up for him to grasp. Um, the Court finds him trying to conceal himself in the back seat, hiding down hiding in the back seat trying to make himself look small. The Court does deem that as a furtive gesture.

Tr. Vol II at 47.

[9] Even if M.S.’s hunching over was not a furtive gesture, M.S. was the only person in the back seat near the firearm, which was visibly outlined in the driver's seat back pocket and identified by two officers during the vehicle search. Two officers testified regarding their ready ability to identify the handgun by the shape of its outline in the fabric of the backseat pocket. This proximity to contraband in plain view supports an inference of intent to maintain dominion or control. M.S. contends that his actions were “nothing more than understandable nervousness of a child in a stressful situation.” Appellant's Br. at 10–11. The juvenile court was in the optimal position to evaluate Officer Hughes's testimony, the exhibits admitted, the ease of knowing of the handgun's presence, and whether M.S.’s conduct demonstrated furtive behavior indicative of knowledge and concealment rather than nervousness. See A.W., 229 N.E.3d at 1064 (quoting B.T.E., 108 N.E.3d at 326). M.S.’s challenge to the juvenile court's interpretation of his behavior as furtive rather than nervousness constitutes a request for us to reweigh the evidence, which we cannot do. Id.

[10] We conclude that M.S.’s furtive behavior constitutes sufficient evidence supporting the finding that M.S. had the requisite knowledge and intent to maintain dominion and control over the firearm, thus establishing constructive possession. We affirm the juvenile court's decision.

[11] Affirmed.

Felix, Judge.

Judges Vaidik and Tavitas concur. Vaidik, J., and Tavitas, J., concur.