Randy Byrd, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Randy Byrd appeals his conviction for unlawful possession of a firearm by a serious violent felon (“SVF”) as a level 4 felony. He claims the trial court erred in denying his motions pursuant to Ind. Trial Rule 50. We affirm.

Facts and Procedural History

[2] On May 11, 2024, Owen County Sheriff's Deputy Stephen DeWitt initiated a traffic stop of a white Nissan Altima for speeding. The Altima was a rental vehicle, and Byrd was the driver and sole occupant. Deputy DeWitt asked Byrd for his driver's license, and Byrd gave him an Indiana identification card. Byrd stated that “he did not have his driver's license card” and “that he did have a driver's license, but he had not been to the BMV to pick up his card.” Transcript Volume II at 137. Deputy DeWitt learned through dispatch that Byrd's driver's license was suspended.

[3] At some point, Deputy Jacob Williamson arrived at the scene. Deputy DeWitt asked Byrd to exit the vehicle, informed Byrd that his license was suspended, and asked Byrd “if another person could take the car in lieu of towing it.” Id. at 140. Byrd made several phone calls and told Deputy Dewitt that he had “his girl on the phone.” Id. at 141. Deputy DeWitt spoke with Byrd's girlfriend on the phone and explained that he would have the vehicle towed if she could not retrieve it, he learned that she was in Terre Haute, and he told her that “was too far for [the officers] to wait on the side of the highway.” Id. at 158. Deputy DeWitt also told Byrd's girlfriend “what type of vehicle it was,” and “she said she just didn't know that he was driving that vehicle.” Id. at 159. After speaking with Byrd's girlfriend, Deputy DeWitt told Byrd that his girlfriend “told [him] she had no idea what this car is,” and Byrd stated “something along the lines of that was my girl and he ․ had a girl and a baby momma” and “the baby momma is the one that rented the car.” Id. at 160. Deputy DeWitt placed Byrd under arrest, found two small bags of marijuana in his pocket, and transported him to jail.

[4] Deputy Williamson searched the Altima and observed, on top of the center console, “what appeared to be like a[n] operator's manual or owner's manual that would have belonged to the vehicle.” Id. at 169. Deputy Williamson opened the console and observed a semi-automatic handgun. The gun was not covered by anything inside the console. A “magazine [was] in the gun,” and “[t]here were bullets in the magazine but not chambered.” Id. at 166. Deputy Williamson radioed dispatch to report finding the firearm. Deputy DeWitt told Byrd there was a gun in the vehicle, and Byrd said, “No way.” Id. at 154. Deputy DeWitt spoke to Byrd about the gun “possibly” belonging to either Byrd's girlfriend or his child's mother. Id. at 156. DNA test results did not produce a strong profile with respect to samples taken from the grip and slide of the gun, but the DNA profile of a sample taken from the top and bottom edges of the magazine was interpreted as a mixture of three individuals and the profile “is 1.6 billion times more likely if it originated from [Byrd] and two unknown individuals than if it originated from three unknown, unrelated individuals.” Exhibits Volume IV at 26.

[5] The State alleged that Byrd committed Count I, unlawful possession of a firearm by a SVF as a level 4 felony; Count II, possession of marijuana as a class B misdemeanor; and Count III, driving while suspended as a class A misdemeanor. The court held a jury trial. The State presented the testimony of Deputy Dewitt and Deputy Williamson and the DNA test results. Deputy Dewitt testified that Byrd's girlfriend “was in Terre Haute when [he] spoke with her” and “that was too much time for the car to be sitting on the side of the road.” Transcript Volume II at 141. He indicated that “the person [he] spoke with on the phone at the traffic stop” sounded female, that Byrd represented that the person “was his girl,” and that he “took that to mean” the person was “[h]is girlfriend.” Id. at 158. When asked, “[d]id you talk to her about the car and why you were trying to have it towed,” he testified, “I did. Yes, I spoke with her and told her that I was going to be towing the vehicle if she couldn't come get it and I found out she was in Terre Haute and that was like I said it was too far for us to wait on the side of the highway so, and she said, okay.” Id.

[6] Following the State's presentation of its case-in-chief, Byrd's counsel requested a directed verdict on Counts I and III. She argued there was no evidence that Byrd “knew or intentionally had that weapon,” “you could not see that gun unless you opened the console,” “there is no DNA ․ on the gun itself,” “there is perhaps DNA on the ․ [m]agazine,” and “the magazine is not the firearm.” Id. at 230-231. She also argued “Byrd provided several reasons why he thought he had his license and there hasn't been anything really to counter that.” Id. at 231. The court denied the motion.

[7] Byrd's counsel then presented the testimony of Tashsa Scrivener. Scrivener testified that she was Byrd's girlfriend, that she, one of her friends, and Byrd were planning to go to a casino in Terre Haute, that her car was in the shop, and that the mother of Byrd's children obtained the rental vehicle. Scrivener testified that she placed her firearm in the center console of the vehicle. She testified that she stopped at a gas station and realized that she did not have her identification, her friend drove her back to her house, and she called Byrd who told her that he had been pulled over for speeding. When asked “do you ever let [Byrd] use your firearm,” she replied “No,” and when asked “does [Byrd] ever touch or use your firearm,” she answered “No.” Id. at 238. When asked, “[d]id you ever tell the officer you were in Terre Haute,” she replied “No ․ I was going to Terre Haute.” Id. at 240. She testified that she obtained the firearm from a private seller years earlier and before her relationship with Byrd. She indicated that, unless she was leaving or going out, she kept the gun in a lockbox at home and only she had a key to the lockbox. Following Scrivener's testimony, Byrd's counsel stated “we rest” and “I would just renew my [d]irected [v]erdict at the close of all evidence and state the things that I said before.” Transcript Volume III at 5. The court stated that it “already made a ruling on that.” Id. The jury found Byrd guilty as charged. Byrd stipulated that he was a SVF.

[8] Byrd filed a motion to set aside the verdict and for judgment on the evidence, arguing that no reasonable jury could convict him of unlawful possession of a firearm by a SVF, and the court denied the motion.

Discussion

[9] Byrd argues the trial court erred in denying his motions for a directed verdict following the State's case-in-chief and at the close of all the evidence and his motion to vacate the jury verdict. He contends the State did not prove that he had actual or constructive possession of the firearm. He asserts “the only DNA evidence adduced at trial was on the magazine, which is not the firearm.” Appellant's Brief at 15. He argues that his conviction for unlawful possession of a firearm by a SVF must be overturned.

[10] Ind. Trial Rule 50, titled “Judgment on the Evidence (Directed Verdict),” provides, “[w]here all or some of the issues in a case tried before a jury ․ are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict.” “Our review of the denial of a motion for directed verdict or judgment on the evidence is essentially the same as review of a claim of insufficient evidence to support a conviction.” Fry v. State, 25 N.E.3d 237, 248 (Ind. Ct. App. 2015), trans. denied. We do not reweigh the evidence or judge the credibility of the witnesses. Id. We consider only the probative evidence and reasonable inferences supporting the verdict. Id. We affirm if the probative evidence and reasonable inferences could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id. Generally, “[i]nconsistencies in testimony go to its weight and credibility, the resolution of which is the jury's province.” Taylor v. State, 681 N.E.2d 1105, 1111 (Ind. 1997).

[11] Ind. Code § 35-47-4-5(c) provided at the time of the offense that “[a] serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Level 4 felony.” (Subsequently amended by Pub. Law No. 1-2025, § 231 (eff. Jul. 1, 2025)).

[12] It is well-established that possession of an item may be either actual or constructive. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh'g, 685 N.E.2d 698 (Ind. 1997). Constructive possession occurs when a person has the capability and intent to maintain control over the contraband. Id. The capability element is met when the State shows the defendant is able to reduce the contraband to his personal possession. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). To show the intent element, the State must demonstrate the defendant's knowledge of the presence of the contraband. Id. This knowledge may be inferred from either the exclusive control over the premises containing the contraband or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant's knowledge of the contraband's presence. Id. Some possible examples of such circumstances include (1) incriminating statements; (2) 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. Gray v. State, 957 N.E.2d 171, 175 (Ind. 2011). The State is not required to prove all additional circumstances when showing that a defendant had the intent to maintain dominion and control over contraband. Canfield v. State, 128 N.E.3d 563, 573 (Ind. Ct. App. 2019) (citing Gee v. State, 810 N.E.2d 338, 344 (Ind. 2004)), trans. denied. The issue is not ownership but possession. See Goliday, 708 N.E.2d at 6.

[13] The record reveals that Deputy DeWitt and Deputy Williamson testified in detail regarding their observations on May 11, 2024. Byrd was the sole occupant of the Altima stopped by Deputy DeWitt. The firearm was located in the center console, the vehicle's operator's manual was on top of the console's lid, and the console was immediately next to the driver's seat. Inside the console, nothing covered the gun. Although Scrivener testified that she placed the gun in the console, the record reveals the communication between Deputy DeWitt and Scrivener on the phone and Scrivener's lack of knowledge regarding the vehicle which Byrd was driving when he was stopped. In addition, the State presented evidence that Byrd's DNA was found on the magazine attached to the gun. Also, while Scrivener testified that the gun belonged to her, the issue is possession, not ownership. See Goliday, 708 N.E.2d at 6. The witnesses were thoroughly examined and cross-examined regarding their recollections and observations. The jury was able to consider the testimony of the witnesses and assess their credibility. The court instructed the jury on actual and constructive possession. Byrd's knowledge of the presence of contraband may be inferred from his exclusive control over the premises. See Goliday, 708 N.E.2d at 6. In light of the record, including the proximity of the firearm to Byrd and his DNA on the magazine, the evidence most favorable to the judgment shows that Byrd had the capability to maintain control of the firearm and knew of its presence. The State presented evidence of a probative nature from which a trier of fact could find that Byrd knowingly or intentionally possessed a firearm.

[14] For the foregoing reasons, we affirm the trial court's denial of Byrd's motions under Ind. Trial Rule 50 during and after trial and affirm his conviction for unlawful possession of a firearm by a SVF.

[15] Affirmed.

Brown, Judge.

Altice, J., and DeBoer, J., concur.