UNDERWOOD v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Jerrell Underwood appeals his conviction for Level 5 felony unlawful carrying of a handgun, arguing the evidence is insufficient to support the conviction. We affirm.

Facts and Procedural History

[2] On May 19, 2024, Adly Sultan was driving a gray Ford Escape with Ahmed Guhat seated in the front passenger seat, and Underwood seated in the rear driver-side seat. Fort Wayne Police Department (FWPD) Detective Geoff Norton watched the driver-side front and back tires of the Ford Escape “cross completely over the double-yellow line.” Tr. Vol. II p. 129. Detective Norton radioed FWPD Detective Alvin Davis about the vehicle. Detective Davis activated his emergency lights and siren, attempting to initiate a traffic stop. Sultan sped away, and a police chase ensued. Sultan ran a stop sign and crashed into another vehicle, bringing the Ford Escape to a stop.

[3] Sultan and Underwood both exited the vehicle and ran in opposite directions. Guhat remained in the vehicle and put his hands in the air. All three occupants of the Ford Escape were eventually detained. Law enforcement discovered a Remington handgun and a baggie containing a white powdered substance on the floorboard in front of the driver seat. They also discovered a Glock 17 nine-millimeter handgun underneath the back side of the driver seat, in front of the rear driver-side seat. Detective Davis observed the driver seat was manufactured in a way that “wiring for the controls” made it “nearly impossible for that handgun to be placed there from the front.” Id. at 141.

[4] The State charged Underwood with Level 5 felony unlawful carrying of a handgun and Class A misdemeanor resisting law enforcement. A jury trial was held in January 2025. The State presented evidence that Underwood was previously convicted of Level 5 felony carrying a handgun without a license in 2021. Photographs of the handguns in the vehicle and dashcam footage depicting the chase were also admitted. The jury found Underwood guilty as charged. The trial court sentenced Underwood to an aggregate sentence of seven years executed in the Indiana Department of Correction. Underwood now appeals.

Discussion and Decision

[5] Underwood challenges whether the State presented sufficient evidence to support his conviction for Level 5 felony unlawful carrying of a handgun.¹ Our standard of review is well-settled:

For sufficiency of the evidence challenges, we consider only probative evidence and reasonable inferences that support the judgment of the trier of fact. On sufficiency challenges, we will neither reweigh evidence nor judge witness credibility. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021) (citations omitted).

[6] To convict Underwood of Level 5 felony unlawful carrying of a handgun, the State had to prove Underwood knowingly or intentionally carried a handgun, had been convicted of a federal or state offense punishable by a term of imprisonment exceeding one year, and that he was convicted of a felony within fifteen years before the date of the offense. Ind. Code § 35-47-2-1.5(b)(1), (e)(2)(B) (2022). “A conviction for possession of a firearm may rest upon proof of either actual or constructive possession.” Smith v. State, 113 N.E.3d 1266, 1269 (Ind. Ct. App. 2018) (citing Houston v. State, 997 N.E.2d 407, 409-10 (Ind. Ct. App. 2013)), trans. denied.

[7] “Actual possession is the direct physical control of the gun.” Id. (citing Bradshaw v. State, 818 N.E.2d 59, 62 (Ind. Ct. App. 2004)). Here, there is no evidence showing the gun in Underwood's direct physical control.² “Constructive possession occurs when somebody has ‘the intent and capability to maintain dominion and control over the item.’ ” Henderson v. State, 715 N.E.2d 833, 855 (Ind. 1999) (quoting Woods v. State, 471 N.E.2d 691 (Ind. 1984)). Underwood's argument focuses on intent.

[8] “To prove intent, the State must establish the defendant's knowledge of the presence of the contraband.” Smith, 113 N.E.3d at 1270 (citing K.F. v. State, 961 N.E.2d 501, 510 (Ind. Ct. App. 2012), trans. denied). “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.

[9] Underwood argues the State presented insufficient evidence because the Glock 17 was not in plain view, he only fled because he panicked, and the Glock 17 could have moved to its location underneath the driver seat during the car crash. Underwood's arguments are an invitation to reweigh the evidence, which we cannot do. Hall v. State, 177 N.E.3d at 1191. The State presented evidence that the Glock 17 was in plain view and in close proximity to Underwood's feet underneath the rear-end of the driver seat. Not only that, Underwood was the only occupant of the back seat and the handgun's position rendered it inaccessible to Sultan and Guhat.³ Additionally, when the vehicle crashed and came to a stop, Underwood attempted to flee. The totality of these circumstances is sufficient for the jury to determine Underwood constructively possessed a firearm.

[10] Affirmed.

FOOTNOTES

1.   Underwood does not challenge his conviction for Class A misdemeanor resisting law enforcement.

2.   The State argues that Underwood had actual possession of the Glock 17 because it was located underneath the back part of the driver seat, which was manufactured in such a way that it was “nearly impossible for that handgun to be placed there from the front.” Tr. Vol. II p. 141. This fact still does not place the handgun in Underwood's direct physical control.

3.   Citing to State's Exhibit 6, Underwood argues the Glock 17 was not in his plain view. State's Exhibit 6 is a photograph taken from outside the vehicle in which the handgun is obscured underneath the driver seat. Underwood's contention is not supported by the record: the State introduced another photograph of the backseat—State's Exhibit 7—that clearly shows the Glock 17 in plain view underneath the rear-end of the driver seat.

Scheele, Judge.

Foley, J., and Kenworthy, J., concur.