Kelly J. Cowger, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Kelly J. Cowger, Jr., was convicted of Level 4 felony unlawful possession of a firearm by a serious violent felon ¹ and Class C misdemeanor operating a vehicle with a Schedule I or II controlled substance or its metabolite in his blood,² after police officers stopped the vehicle he was driving and found a loaded handgun behind his seat. The sole issue Cowger raises for our review is whether the State presented sufficient evidence that he constructively possessed the handgun found behind the driver's seat of the vehicle he was driving. We affirm.

Facts and Procedural History 3

[2] In the early morning hours of January 23, 2025, Cowger was driving an SUV with a broken taillight. His wife, Ashton Gaines, was seated in the front passenger seat. The SUV was registered to Gaines's mother.

[3] Plymouth Police Department Corporal Travis Schieber saw the SUV traveling on the road and initiated a traffic stop because of the broken taillight. When the corporal approached the SUV, he immediately smelled the odor of marijuana coming from the vehicle, and he “knew that [Cowger's] driver's license was expired[.]” (Tr. Vol. 2 at 146.)

[4] The SUV was “[e]xtremely messy[,]” and contained a spare tire, a propane tank, a laundry bag, and “a lot of trash.” (Id. at 186.) Corporal Schieber directed Cowger to step out of the vehicle, conducted a pat-down search, and discovered ten rounds of ammunition in Cowger's pocket. Corporal Schieber also observed that Cowger exhibited involuntary muscle and eyelid twitching and dilated pupils.

[5] Plymouth Police Department Officer Zachary Wallace, who had arrived to assist with the traffic stop, searched the SUV and found “a couple different THC products[.]” (Id.) He also found a loaded nine-millimeter (“9-mm”) handgun directly behind the driver's seat. The handgun lay on top of a pile of items with nothing covering it – positioned as though someone had reached a hand behind the seat and dropped the weapon there. Officer Wallace had to move the propane tank and the laundry bag to have a clear line of sight to the handgun, but he did not have to lift any items from on top of the handgun for it to be revealed.

[6] The handgun's magazine held ten rounds of ammunition and was fully loaded, with one additional round in the chamber. The ten rounds of ammunition that Corporal Schieber found in Cowger's pocket were the same caliber, appeared to be from the same manufacturer, and bore the same markings as the ammunition loaded in the handgun. Corporal Schieber Mirandized ⁴ Cowger, questioned him about the gun, arrested Cowger, and transported Cowger to the hospital for a field sobriety test and a blood draw.

[7] The State charged Cowger with Level 4 felony unlawful possession of a firearm by a serious violent felon. Later, the State amended the information to identify conspiracy to commit dealing in methamphetamine as the predicate serious violent felony and to add a count of Class C misdemeanor operating a vehicle with a Schedule I or II controlled substance or its metabolite in the blood.

[8] During the first phase of Cowger's bifurcated trial, held on February 4, 2026, Corporal Schieber testified that when he asked Cowger about the handgun that was found in the vehicle, Cowger responded that the weapon and the other items in the vehicle were his and not his wife's. Corporal Schieber further testified that Cowger had accepted responsibility for and ownership of the handgun, and that ownership of the gun was “never questioned[.]” (Tr. Vol. 2 at 177.)

[9] Cowger testified in his own defense and told the jury that, the night he was arrested, he drove to his brother's residence and to another location to retrieve a salamander heater and a propane tank to thaw frozen pipes at his mother-in-law's house, and that he had cleaned out the SUV to make room for the equipment. He testified that he found unspent bullets in the cupholder while cleaning the vehicle and had put them in his pocket. He also testified that when Corporal Schieber questioned him about whether there were illegal drugs in the vehicle – and he responded that “whatever you find in the vehicle is mine” – he was “referencing the drugs” he knew were in the vehicle. (Id. at 211.) He claimed he did not know the handgun was in the vehicle, did not recall being asked about the gun, and did not recall telling Corporal Schieber that the gun was his. Corporal Schieber provided rebuttal testimony that, during the traffic stop, Cowger had offered a different explanation regarding the ammunition, having told Corporal Schieber that the ammunition “had been recovered from a friend's vehicle that [Cowger] was cleaning out.” (Id. at 235.)

[10] The jury found that Cowger knowingly or intentionally possessed the firearm and found him guilty of the Class C misdemeanor operating offense. In the second phase of the trial, Cowger waived his right to a jury and admitted that he had a prior conviction of conspiracy to commit dealing in methamphetamine. The trial court found him to be a serious violent felon and entered judgment of conviction on that count and the Class C misdemeanor operating count. The court sentenced Cowger to eleven and one-half years for the firearm conviction and sixty days for the operating conviction, to be served concurrently.

Discussion and Decision

[11] Cowger contends the State did not present sufficient evidence to support his conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon. Our standard of review for sufficiency-of-the-evidence challenges is well-settled:

A conviction is supported by sufficient evidence if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court reviews only the evidence most favorable to the verdict and the reasonable inferences therefrom, and will reverse only where it is shown that no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Konkle v. State, 253 N.E.3d 1068, 1090-91 (Ind. 2025) (internal quotations and citations omitted). “[T]he reviewing court does not reweigh the evidence or judge the credibility of the witnesses[.]” Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024).

[12] Indiana Code section 35-47-4-5(c) provides 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.” Cowger does not dispute that he qualified as a serious violent felon. Instead, he asserts that the State failed to establish that he possessed the 9-mm handgun found behind the driver's seat of the vehicle he was driving.

[13] Possession may be actual – where a person has direct physical control over the contraband – or constructive – where a person has “(1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). As Cowger did not have actual possession of the contraband in question, we must determine whether the State proved he constructively possessed it. Cowger's argument focuses on the sufficiency of the evidence to prove he had the intent to maintain dominion and control over the firearm.

[14] The intent element of constructive possession is shown if the State demonstrates the defendant's knowledge of the contraband's presence. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Where, as here, possession is not exclusive, the inference of intent must be supported by additional circumstances pointing to the defendant's knowledge of the contraband's presence. Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004); Gray, 957 N.E.2d at 174-75. These additional circumstances may include:

(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.

Gray, 957 N.E.2d at 175.

[15] Cowger argues that “[n]ot one of these” additional circumstances is present in his case, thus “no reasonable factfinder could infer [he] had the knowledge that constructive possession requires.” (Appellant's Br. at 16.) He maintains he made no incriminating statements; he did not attempt to flee or make any furtive gestures; there was no indication the gun was part of a “larger criminal enterprise” (id. at 17); he was “no closer to the gun than his wife” (id. at 21); he did not own the vehicle; the gun was hidden and not in plain view; and “nothing connected” the other items in the vehicle to Cowger. (Id. at 22.) We disagree.

[16] Regarding incriminating statements, Cowger told officers that the weapon in the vehicle was his, not his wife's. As for the location of the 9-mm handgun – behind the driver's seat – Cowger's position as the driver of the vehicle indicated he could easily reach the gun. Also, the gun was in plain view. Officer Wallace testified that the handgun lay on top of a pile of items with nothing covering it and that the gun was positioned as though someone had reached a hand behind the seat and dropped it there. Officer Wallace had a clear line of sight to the gun after he moved the propane tank and the laundry bag. He did not have to remove any items from atop the handgun to see it.

[17] The officers found ten rounds of ammunition in Cowger's pocket that were the same caliber, appeared to be from the same manufacturer, and bore the same markings as the rounds that were loaded in the 9-mm handgun's magazine. The number of rounds in Cowger's pocket also matched the magazine's capacity. In addition, Cowger provided inconsistent statements regarding how he had obtained the ammunition – telling Corporal Schieber that he had taken the ammunition from a friend's vehicle but testifying at trial that he had found the ammunition while cleaning out the SUV. Cowger's personal property was mingled with the firearm. Corporal Schieber's body camera footage showed that Cowger's wallet was found near the handgun.

[18] Cowger offers alternate explanations regarding the factors of constructive possession. For example, he argues that his incriminating statements referred to his “personal drug possession,” not the firearm. (Id. at 22.) He also contends the firearm was concealed and not in plain view until Officer Wallace moved certain items in the SUV, and therefore, he did not see the firearm until Officer Wallace discovered it. However, these arguments are invitations for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See Teising, 226 N.E.3d at 783.

[19] Finally, Cowger cites several decisions to support his sufficiency argument. He principally relies upon Henderson v. State, 715 N.E.2d 833 (Ind. 1999), Jones v. State, 881 N.E.2d 1095 (Ind. Ct. App. 2008), and Cole v. State, 588 N.E.2d 1316 (Ind. Ct. App. 1992), which are decisions generally holding that a defendant's proximity to a firearm, without more, cannot sustain a conviction for constructive possession.

[20] In Henderson, our Indiana Supreme Court reversed the conviction where the defendant was not the driver, and although the handgun lay at Henderson's feet in plain view, the record showed no statement, gesture, or other act connecting him to the weapon. 715 N.E.2d at 838. In Jones, this Court reached the same result where the defendant was a front-seat passenger, the handgun rested on a pile of clothes in the middle of the back seat that bore no connection to her, and she made no incriminating statement or furtive gestures. 881 N.E.2d at 1099-1100. In Cole, we reversed a conviction where a revolver was found on the back-seat floorboard behind an empty driver's seat, the defendant was the front- seat passenger who did not control the vehicle, and the charge was carrying the handgun on his person. 588 N.E.2d 1316, 1318-19. Each case, however, is distinguishable from the facts and circumstances of the case before us and does not compel a different result in Cowger's case.

[21] In Henderson, Jones, and Cole, the defendants’ convictions rested upon proximity to the firearm alone, and each defendant was a passenger of the vehicle in which the contraband was found, not the driver. Here, Cowger was the driver of the vehicle, not the passenger, and the handgun was found directly behind the driver's seat, within his reach. Beyond proximity, additional circumstances existed – that were lacking in the cases upon which Cowger relies – from which the jury could infer Cowger's knowledge of the presence of the firearm and his intent to maintain dominion and control over it. For example, Cowger told Corporal Schieber that the items in the vehicle were his; Cowger carried in his pocket ammunition matching the caliber, markings, and magazine capacity of the loaded firearm; and his wallet was found near the firearm.

[22] Based upon the foregoing, we hold the State presented sufficient evidence that Cowger had the ability and intent to possess the firearm. Thus, the State proved Cowger constructively possessed it. See, e.g., Deshazier v. State, 877 N.E.2d 200, 208 (Ind. Ct. App. 2007) (holding that totality of circumstances supported conviction based on theory that Deshazier constructively possessed handgun while seated in vehicle), trans. denied.

Conclusion

[23] The State presented sufficient evidence from which the jury could find that Cowger had both the capability and the intent to maintain dominion and control over the firearm. We therefore affirm his conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon.

[24] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-4-5(c).

2.   Ind. Code § 9-30-5-1(c).

4.   Miranda v. Arizona, 384 U.S. 436 (1966).

May, Judge.

Pyle, J., and Scheele, J., concur.