D.W., Appellant-Respondent v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] During a traffic stop, police officers found a handgun in a vehicle near where seventeen-year-old D.W. had been sitting. A juvenile court determined D.W. committed the delinquent act of Class A misdemeanor dangerous possession of a firearm by a child. D.W. raises two issues for our review: 1) whether the trial court abused its discretion when it admitted the firearm into evidence, and 2) whether sufficient evidence exists to sustain the court's judgment. Finding no abuse of discretion and the evidence sufficient to sustain the judgment, we affirm.

Facts and Procedural History

[2] On July 15, 2024, Detective Dustin Carmack (Det. Carmack) observed a Dodge Durango entering a gas station parking lot in a high-crime area in Indianapolis. From the distance of about “a car length” or “fifteen or twenty feet[,]” Det. Carmack saw an individual, later identified as D.W., exit the backseat of the Durango. Tr. Vol. II p. 19. Det. Carmack saw D.W. reach back into the vehicle, retrieve a black handgun, and tuck the handgun in the front of his waistband. After walking to a taco stand, D.W. returned to the Durango, and Det. Carmack observed him re-enter the vehicle in the rear driver's side seat. The only other occupants of the vehicle were an individual in the driver's seat and a female in the front passenger seat.

[3] The driver of the Durango exited the parking lot at a high rate of speed without activating the turn signal and without turning into the innermost lane. Det. Carmack followed in his unmarked police vehicle, and Officer Randall Burns (Ofc. Burns) followed the Durango in his marked police vehicle.¹ Ofc. Burns followed the Durango into a White Castle parking lot and activated his emergency lights. Before the vehicle fully parked in a parking space, the driver exited the vehicle and fled. Ofc. Burns observed the driver holding a handgun as he fled. Noting that another officer was better positioned to pursue the driver, Ofc. Burns approached the Durango and saw D.W. attempting to get out of the rear driver's side door. Ofc. Burns drew his service weapon and ordered D.W. to the ground, to which D.W. complied. D.W. was taken into custody.

[4] Detective Didandeh arrived on the scene and verified no one else remained in the vehicle.² Ofc. Burns then searched the rear passenger side of the Durango and observed a handgun, later identified as a black Canik handgun (the Canik). The Canik was underneath the front passenger seat but was “very close” to the backseat, “far back towards where the front passenger couldn't have placed it there.” Id. at 31, 29.

[5] The Canik was retrieved from the Durango and was “taken back to rollcall[.]” Id. at 36. There, someone handed the Canik to Det. Carmack, who took it to the secured property room and signed it into evidence.³ Det. Carmack could not recall who specifically handed the Canik to him.

[6] The State filed a delinquency petition alleging D.W. committed Class A misdemeanor dangerous possession of a firearm. On October 17, 2024, the juvenile court held a fact-finding hearing.

[7] Det. Carmack retrieved the evidence box containing the Canik handgun and brought it to the fact-finding hearing. During his testimony, Det. Carmack identified the box by its markings as the same one that he took to the property room on July 15; he identified the case number and his own signature. He then identified the handgun inside the box as the Canik that he took to the property room. Ofc. Burns also testified that he recognized that Canik handgun “as the gun that was under the seat” of the Durango on July 15. Id. at 33. He confirmed the handgun contained a distinct marking of yellow paint between the “TP9” letters and that it was in the same condition as when he saw it that day. Id.

[8] D.W. objected to the admission of the Canik, arguing the State failed to establish a proper chain of custody because neither Det. Carmack nor Ofc. Burns recovered the handgun from the vehicle and Det. Carmack could not recall who handed him the Canik at rollcall. D.W. also asserted that an admitted photo of the handgun under the seat did not show the handgun's distinctive markings, so there was “no way to know” if the Canik offered as evidence was the same one from the Durango. Id. at 38. The State contended that because a firearm is a non-fungible item, perfect chain of custody was not required and argued that both officers’ testimony about the Canik sufficiently laid foundation for the Canik's admission into evidence. The court admitted the Canik into evidence over D.W.’s objection.

[9] The court entered a true finding as to the dangerous possession of a firearm allegation and adjudged D.W. a delinquent. At a dispositional hearing on November 7, the court ordered D.W. to participate in formal probation, home-based casework, and a gun violence prevention program. The appeal followed.

Discussion and Decision

I. Admission of the Canik

[10] D.W. contends the juvenile court erred in admitting the Canik into evidence. We review a trial court's ruling on the admission of evidence for an abuse of discretion. K.W. v. State, 216 N.E. 3d 505, 511 (Ind. Ct. App. 2023) (citing Mack v. State, 23 N.E.3d 742, 750 (Ind. Ct. App. 2014), trans. denied), trans. denied. “A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court or if the court misapplies the law.” Id. (quoting Mack, 23 N.E.3d at 750). “The trial court's ruling will be sustained on any reasonable basis apparent in the record, whether or not relied on by the parties or the trial court.” Bush v. State, 243 N.E.3d 405, 413 (Ind. Ct. App. 2024) (quoting Washburn v. State, 121 N.E.3d 657, 661 (Ind. Ct. App. 2019), trans. denied), trans. denied.

[11] D.W. argues the Canik's chain of custody was insufficient because the officer who recovered the handgun at the scene did not testify and the State failed to reliably connect the gun at the scene to the Canik admitted into evidence “through witness identification, unique markings, photographs, or other documentation.” Appellant's Br. p. 10. Our standard of review of chain of custody claims is clear:

To establish a proper chain of custody, the State must give reasonable assurances that the evidence remained in an undisturbed condition. However, the State need not establish a perfect chain of custody, and once the State strongly suggests the exact whereabouts of the evidence, any gaps go to the weight of the evidence and not to admissibility. Moreover, there is a presumption of regularity in the handling of evidence by officers, and there is a presumption that officers exercise due care in handling their duties. To mount a successful challenge to the chain of custody, one must present evidence that does more than raise a mere possibility that the evidence may have been tampered with.

The extent of foundation the State must lay depends on whether the item to be admitted is fungible or nonfungible․ [F]or nonfungible items like guns and vehicles, the State need only show that the item is what it is purported to be and that it is in a substantially unchanged state from when it was initially collected by police.

K.W., 216 N.E. 3d at 515-16 (internal citations and quotations omitted).

[12] Here, the State laid sufficient foundation to show that the Canik admitted at trial is what it was purported to be—the handgun found underneath the seat of the Durango—and that it was in a substantially unchanged state. When he searched the Durango on the scene, Ofc. Burns saw the handgun that was underneath and near the back of the front passenger seat. At trial, Ofc. Burns confirmed that he recognized the Canik the State sought to admit as “the gun that was under the seat” and that it was in the same condition as when he saw it in the Durango. Tr. Vol. II p. 33. Additionally, Det. Carmack testified that the Canik he took to the property room after it was handed to him at rollcall was the same Canik that the State sought to admit at trial.

[13] Collectively, the officers’ testimony “strongly suggests” that the Canik was in police possession from its collection to its admission at trial: Ofc. Burns saw the Canik on scene; Det. Carmack saw it at rollcall, delivered it to the property room, later retrieved it from the property room, and took it to trial; Ofc. Burns confirmed it was the same Canik he saw underneath and near the back of the front passenger seat of the Durango. K.W., 216 N.E. 3d at 515. Coupled with our presumption in the regularity of police handling of evidence, the officers’ testimony gave “reasonable assurances” that the Canik remained in an undisturbed condition from its collection to its admission at trial. Id. Any gaps in the Canik's chain of custody from the Durango to rollcall go to weight, not to admissibility. Id.

[14] Although D.W. correctly asserts that other courts found an adequate chain of custody by relying upon testimony from the officer who retrieved a firearm, testimony from the retrieving officer specifically is not required. As here, testimony from a witness—in this case, Ofc. Burns—that recognized the firearm as being in the same condition as when the witness first saw it is sufficient. See Price v. State, 619 N.E.2d 582, 583 (Ind. 1993) (“[W]here an exhibit such as a weapon, which is readily identifiable, is in question, it may be admitted based on the testimony of a witness that it is recognized and in the same state that it had been at the time it was first seen by the witness.”), reh'g. denied. Moreover, D.W.’s claim that Ofc. Burns’ in-court identification of the Canik was “undermined by his admission that he had seen many similar Canik guns but ‘not this exact one[ ]’ ” misconstrues Ofc. Burns’ testimony and ask us to reweigh the evidence, which we will not do. Appellant's Br. p. 12; Hines v. State, 981 N.E.2d 150, 153 (Ind. Ct. App. 2013) (When reviewing admissibility of evidence, we do not reweigh the evidence and view conflicting evidence most favorably to the ruling.).

II. Sufficiency of the Evidence

[15] D.W. also argues that he had “no direct physical control over the Canik” and “constructive possession cannot be shown by proximity alone.” Appellant's Br. p. 14. Therefore, he contends the State's evidence is insufficient to support the juvenile court's judgment. We cannot agree.

[16] Our standard of review is well-settled:

When reviewing a juvenile delinquency adjudication, we will consider only the evidence and reasonable inferences supporting the judgment. We neither reweigh the evidence nor judge witness credibility. If there is substantial evidence of probative value from which a reasonable trier of fact could conclude beyond a reasonable doubt that the juvenile committed the delinquent act, we will affirm the adjudication.

B.R. v. State, 823 N.E.2d 301, 306 (Ind. Ct. App. 2005) (citations omitted). To prevail on its delinquency petition alleging D.W. dangerously possessed a firearm, the State had to prove beyond a reasonable doubt that: 1) a child, D.W.; 2) knowingly, intentionally, or recklessly; 3) possessed a firearm; 4) for any purpose other than those described in Indiana Code section 35-47-10-1 (2014). Ind. Code § 35-47-10-5 (2024). The State was required to establish that D.W. had “either actual or constructive possession of the handgun.” K.F. v. State, 961 N.E.2d 501, 509 (Ind. Ct. App. 2012), trans denied.

[17] D.W. initially alleges the State failed to prove actual possession. Actual possession is “the direct physical control of the gun.” Id. Det. Carmack testified that he saw D.W. exit the Durango, reach back in the vehicle to retrieve a handgun, then tuck the firearm into his waistband. His testimony identifying D.W. in physical possession of a handgun is sufficient to show actual possession and sustain D.W.’s adjudication. See Badelle v. State, 754 N.E.2d 510, 543 (Ind. Ct. App. 2001) (“A single eyewitness's testimony is sufficient to sustain a conviction.”), trans. denied.

[18] The State also sufficiently proved D.W. constructively possessed a firearm. “Constructive possession occurs when somebody has the intent and capability to maintain dominion and control over the item.” Smith v. State, 113 N.E.3d 1266, 1270 (Ind. Ct. App. 2018) (quoting Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999)), trans. denied. D.W.’s argument focuses on intent.

[19] “To prove intent, the State must establish the defendant's knowledge of the presence of the contraband.” Id. “Knowledge may be inferred from either exclusive dominion and control over the premises containing the firearm, or from evidence of additional circumstances indicating the defendant's knowledge of the presence of the firearm.” Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004). A non-exhaustive list of such additional circumstances includes: “(1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3) proximity of the firearm to the defendant; (4) location of the firearm within the defendant's plain view; and (5) the mingling of a firearm with other items owned by the defendant.” Id.

[20] Because D.W. did not have exclusive dominion over the Durango, we must consider whether the facts and circumstances, viewed in the light most favorable to the judgment, indicated D.W. was aware of the presence of the firearm. D.W. does not dispute that he was in close proximity to the Canik, which was underneath the front passenger seat. Instead, he claims that the State relied upon D.W.’s proximity to the Canik alone to prove his intent to possess a firearm. The evidence, however, extends beyond D.W.’s mere proximity to the handgun. D.W. was the only occupant of the backseat. The Canik was very close to the backseat so that “the front passenger couldn't have placed it there.” Tr. Vol. II p. 29. And Det. Carmack saw D.W. in possession of a firearm just before D.W. occupied the backseat of the Durango. The totality of these circumstances was sufficient to prove D.W. constructively possessed a firearm.

[21] D.W. argues his actual proximity on the opposite side of the SUV is insufficient to support the judgment. And he asserts the handgun was neither in plain view nor mingled with his other possessions and that he made no incriminating statements, furtive gestures, or attempt at flight. However, the enumerated additional circumstances noted above is a non-exhaustive list among what a court may consider in inferring a defendant's intent to possess a firearm. And these arguments are an invitation to reweigh the evidence which our standard of review forbids. See B.R. v. State, 823 N.E.2d at 306.

[22] Affirmed.

FOOTNOTES

1.   In their briefs and at trial, parties refer to Randall Burns as both Detective Burns and Officer Burns. The trial court identified him as Officer Burns without correction; we do the same.

2.   Detective Didandeh's first name is absent from the record.It is unclear from the record whether the female who was in the front passenger seat fled before being detained or was removed from the vehicle by another officer; either way, it appears she was not in the vehicle during Detective Didandeh's search to verify the vehicle was unoccupied.

3.   Two handguns were handed to Det. Carmack at rollcall: a black Canik handgun and a “Sig[.]” Tr. Vol. II p. 36. Subsequently, Det. Carmack explained that he saw the driver's gun on scene, but that he did not see the Canik on scene. Still, Det. Carmack identified the handgun the State sought to admit as the Canik he took from rollcall to the property room. See id. at 36-38.

Scheele, Judge.

May, J., and Weissmann, J., concur.