Guilty or Not Guilty?

[Kirk Freeman]

Not a good day for him

Pffft, you assume the stop is valid when it is not.

Assuming arguendo that the stop and the search are coming in (arguments on both) BB is in a bad way.

Throw sand in the gears until Lucky goes down then see if prosecutor happy with that. If they are, then nolle against your guy. You've got an argument on a Motion to Dismiss but no guarantee and some judges, despite Fettig, refuse to allow a MTD on something like this.

If no MTD or nolle, then at SVF status, BB is likely min man, 6 years, and then you have to try it. You have an argument, maybe jury thinks one person is enough. If not you can argue the MTD on appeal.

Maybe get it to Carrying Handgun without License as a C with min man at 2? Don't think misdemeanor Carrying Handgun would fly with prosecution.

BB will be lucky if feds do not take it. That will go poorly.

 

[HICKMAN]

Ticket for the u-turn, that's it.

 

[cobber]

Pffft, you assume the stop is valid when it is not.

Don't see a problem with the stop, but that depends on the judge. That is probably BB's best chance, to get the evidence suppressed.

Valid question. Let's assume that the u-turn was illegal so there is no issue with probable cause. That was my intent in the scenario.

Guy

BB's denial specifically regarding a 12 ga. when asked about "firearms" probably cooks him.

 

[GuyRelford]

I guess I'm still not clear on the exact facts here, too many prepositions. If out from under means sticking out the back, then Lucky. If sticking out the front, then BB based on what he can see and Lucky based on his statement.

I think you may have missed this in the OP:

He immediately sees the butt of a firearm sticking out from behind the front passenger seat, immediately in front of Lucky.

 

[lrahm]

The U turn ticket might not be a good call. It pretty well has to be on a curve or marked "no U turn". Now if the officer determines it was done in a reckless manner...possible.

 

[GuyRelford]

Like most of my scenarios, this one is based on a real case (actually, two cases): Calvert v. State, 930 N.E.2d 633 (Ind. Ct. App 2010) and Estep v. State, 716 N.E.2d 986 (Ind. Ct. App. 1999). Both appeals were based on a challenge to the sufficiency of the evidence for a conviction - which is always going to be a tough sell for the defense - but these cases answer the questions posed by this scenario.

In Calvert, another person in the vehicle admitted in his own criminal prosecution that he owned the sawed-off shotgun found in the defendant's car - sticking out from behind the passenger seat. Nonetheless, the court held that Calvert (Big Bill in our case) could still constructively possess the firearm as well:

A conviction for possession of a firearm may rest upon either actual or constructive possession. Henderson v. State, 715 N.E.2d 833, 835 (Ind.1999). To establish constructive possession, the State must prove the defendant had both the
capability and the intent to maintain dominion and control over the contraband. Hardister v. State, 849 N.E.2d 563, 573 (Ind.2006). The capability requirement is met when the State shows the defendant was able to reduce the contraband to his personal possession. Goliday v. State, 708 N.E.2d 4, 6 (Ind.1999). To prove the intent requirement, the State must show the defendant had knowledge of the contraband's presence. Id. Knowledge may be inferred from the defendant's exclusive dominion and control over the premises containing the contraband, or from additional circumstances tending to show the defendant's knowledge of the presence of the contraband. Id. Such circumstances include: 1) incriminating statements by the defendant; 2) attempted flight or furtive gestures; 3) location of substances like drugs in settings that suggest manufacturing; 4) proximity of the contraband to the defendant; 5) contraband within the defendant's plain view; and 6) mingling of the contraband with items owned by the defendant. Henderson, 715 N.E.2d at 836.

Here, the evidence supports a reasonable inference Calvert constructively possessed the shotgun. Because Calvert was the Jeep's driver and the shotgun was found inside the passenger compartment, Calvert had the capability to reduce the shotgun to his personal possession. Although Calvert did not have exclusive possession of the Jeep due to there being three passengers, two other circumstances support an inference he knew of the shotgun's presence. First, part of the shotgun was sticking out from underneath the front passenger seat and was plainly visible to Officer Messer when he looked inside the Jeep through the rear passenger door. The jury therefore could have inferred that if Calvert, as the driver, did no more than look behind the front passenger seat, he would have seen the shotgun was there. Second, Calvert made an incriminating statement about the shotgun when interviewed following his arrest. When asked about the guns in the Jeep and who they belonged to, Calvert stated the "12-gauge" belonged to J.F. Tr. at 370. The jury could reasonably have understood this statement to imply Calvert knew the shotgun was in the Jeep, otherwise he would not have attempted to explain its presence by stating J.F. was its owner.

In our scenario, Big Bill similarly said "I don't know nothin' about the 12-guage." The question becomes, how does he know the guage of the shotgun if he didn't even know it was there? This isn't conclusive, and he might be able to explain the comment, but like in Calvert this statement will clearly be used against Big Bill.

Calvert also answers the question as to whether Big Bill and Lucky can both "possess" the shotgun at the same time:

Calvert also points to the fact that, in a separate proceeding, Cole pled guilty to possession of the shotgun. However, Calvert cites no authority, and we are aware of none, for the proposition that a firearm cannot be jointly possessed by two or more people. We therefore affirm Calvert's conviction of possessing a firearm as a serious violent felon.

The outcome in Calvert is also consistent with the "Dealing in a Sawed-Off Shotgun" statute, quoted above, which states that when a sawed-off shotgun is found in a vehicle, an inference arises that the shotgun is in the possession of the "persons" (plural) in the vehicle. If two people can't possess the shotgun at the same time, why would the legislature have used the plural form in the statute?

Next, does the shotgun constitute a "handgun" for purposes of the charge of "carrying a handgun wihtout a license." That question was answered in Estep.

In Estep, the defendant was found in possession of a shotgun with a no stock and a pistol grip. The court held that this firearm, because it was "designed to be fired with one hand," met the definition of a "handgun" in Indiana, regardless of barrel length, and affirmed Estep's conviction for carrying a handgun without a license.

A firearm is considered a handgun under the statute regardless of length if such firearm is designed or adapted to be fired from one hand. Estep argues that the gun he possessed is not designed or adapted to be fired from one hand. We disagree. Although a shotgun with a normal stock is meant to be fired from the shoulder and is not a handgun, the absence of a stock and the addition of the pistol grip is an adaptation of the gun that allows it to be fired from one hand. See IND.CODE § 35-47-1-11 (1998)("shotgun" defined as a weapon intended to be fired from the shoulder). Accordingly, a license is required to carry a pistol-gripped shotgun. The evidence is sufficient to support Estep's conviction.

(Admittedly, I stated in the OP that the shotgun had a pistol grip, but I didn't say specifically that it had no stock (although that was my intent). Based on Estep, the CHWL charge could go either way depending on that fact.)

Lastly, several cases have dealt with the question of whether multiple offenses can be upheld based on one fact: the illegal possession of a firearm. In Calvert, the court upheld the UPFSVF charge, but reversed the conviction for possession of a sawed-off shotgun, based on double jeopardy:

Calvert's conviction of possessing a sawed-off shotgun was based on the very same act-his having the sawed-off shotgun in his vehicle-which formed an essential element of possession of a firearm by a serious violent felon.[A] double jeopardy violation occurred and, therefore, Calvert's conviction of possession of a sawed-off shotgun must be vacated

The same logic would apply to the Carrying a Handgun without a License charge - since it was also based on the exact same act (possessing the shotgun) as the UPFSVF charge.

So, based on these cases, we can conclude that there would be sufficient evidence here to support a conviction for Unlawful Possession of a Firearm by a Serious Violent Felon, Dealing in a Sawed-Off Shotgun and Carrying a Handgun without a License (if the shotgun only had a pistol grip and no stock), but Big Bill could not be prosecuted for all three, based on the rule against double jeopardy.

As always, this is just my opinion based on the cases cited, and not legal advice.

Guy

 

[Denny347]

That's why I hate "what if's". You change a single detail and it changes the entire outcome. There are too many unknown details to give a well informed answer. Valid arrests are made by the details.

 

[TTravis]

Sucks for Big Bill. He may be looking at "three strikes, you're out".

 

[GuyRelford]

That's why I hate "what if's". You change a single detail and it changes the entire outcome. There are too many unknown details to give a well informed answer. Valid arrests are made by the details.

I'm sorry you feel that way. A lot of folks seem to find these scenarios informative and useful.

Guy

 

[Fargo]

Sucks for Big Bill. He may be looking at "three strikes, you're out".

Indiana doesn't have 3 strikes. However, he is probably minimum non-suspendable and so there is mandatory time he is going to have to serve if convicted.

Even though it appears that BB knew the gun was there, I think the state may have some difficulty at trial proving intent to exercise control on Big Bills part. However, as TFT points out, there is some caselaw indicating that he would not win on a sufficiency argument on appeal. Really, it is going to be a factual question and that part is going to come down to credibility and most importantly how Big Bill comes off to the jurors.

I have seen jurors convict unsympathetic defendants on relatively little evidence but acquit sympathetic defendants on fairly strong evidence. SVF's normally fall in the decidedly unsympathetic category.

Also, there has been some caselaw on constructive possession which has tightened the Calvert requirements, but I believe the INSCourt recently just bit a big chunk out of it a couple of weeks ago.

Under Indiana law, if it isn't designed to be fired from the shoulder, then it is NOT a shotgun and is normally a handgun. As such, I agree this would be a handgun conviction, not a sawed off shotgun conviction.

Best regards,

Joe

 

[GuyRelford]

Under Indiana law, if it isn't designed to be fired from the shoulder, then it is NOT a shotgun and is normally a handgun. As such, I agree this would be a handgun conviction, not a sawed off shotgun conviction.

That's a great point, Joe. If the firearm only has a pistol grip and no stock, it can't be a sawed-off shotgun under Indiana law because it's not a shotgun! I haven't seen a case where the State tried to have it both ways, but the two charges appear to be mutually exclusive - at least at the State level.

Guy

 

[jmiller676]

A person may legally transport or possess a firearm wherever he is legally to transport or possess. BB is not legal to possess or transport a firearm because he is a convicted felon. He may not even transport parts of a firearm (I believe I read it right) under Federal Law. Lucky is a "child" and therefore illegally is possession of a firearm. Then you have the Shotgun being under the Federal barrel length.

 

[lrahm]

Indiana doesn't have 3 strikes. However, he is probably minimum non-suspendable and so there is mandatory time he is going to have to serve if convicted.

Even though it appears that BB knew the gun was there, I think the state may have some difficulty at trial proving intent to exercise control on Big Bills part. However, as TFT points out, there is some caselaw indicating that he would not win on a sufficiency argument on appeal. Really, it is going to be a factual question and that part is going to come down to credibility and most importantly how Big Bill comes off to the jurors.

I have seen jurors convict unsympathetic defendants on relatively little evidence but acquit sympathetic defendants on fairly strong evidence. SVF's normally fall in the decidedly unsympathetic category.

Also, there has been some caselaw on constructive possession which has tightened the Calvert requirements, but I believe the INSCourt recently just bit a big chunk out of it a couple of weeks ago.

Under Indiana law, if it isn't designed to be fired from the shoulder, then it is NOT a shotgun and is normally a handgun. As such, I agree this would be a handgun conviction, not a sawed off shotgun conviction.

Best regards,

Joe

Isn't there still a habitual offender charge, 35-50-2-8

 

[Kirk Freeman]

Isn't there still a habitual offender charge, 35-50-2-8

Yes, three times the presumptive.

So, for BB, 3X10 (presumptive on the B)=30 years.

 

[SMHurt]

Taking the three elements of a crime (knowing, willingly, and intentionally) into facts, I'm not sure there would be a conviction.

 

[Benny]

Excise cop did a traffic stop? Was he in a marked police vehicle (no) or in uniform (no). Can't do a Title 9 stop. If he wanted to do a Title 7 (alcohol) stop, needed to do it right at the parking lot.

BB can be in constructive possession of the 12 ga. He knew it was in the vehicle. He did not tell his little pal to get out of the car. I'm not seeing the double jeopardy here? Is the State gonna bother with a handgun charge when they can file the Serious Violent Felon count?

He was uniformed and in a marked car.

Does anyone know who I'm talking about? Someone has to know about the cop that can barely speak.

 

[Fargo]

Isn't there still a habitual offender charge, 35-50-2-8

Yeah, but I believe that TFT specified that he was only charged with the 3 counts. As I understand it in the scenario, the HO count was not filed. HSO, HO and many other enhancements are charged or not at the prosecutor's discretion. Minimum non-suspendable time is automatic with the conviction.

Also, there may or may not be an issue with a HO on some of the counts in this case as you are already using at least one of his prior convictions to enhance the hgun without a license charge to a C felony. I'm not certain off the top of my head how it would work in this case, but in Indiana you often may not use the same conviction to get two enhancements of the same count.

Best,

Joe

 

[lrahm]

Yeah, but I believe that TFT specified that he was only charged with the 3 counts. As I understand it in the scenario, the HO count was not filed. HSO, HO and many other enhancements are charged or not at the prosecutor's discretion. Minimum non-suspendable time is automatic with the conviction.

Also, there may or may not be an issue with a HO on some of the counts in this case as you are already using at least one of his prior convictions to enhance the hgun without a license charge to a C felony. I'm not certain off the top of my head how it would work in this case, but in Indiana you often may not use the same conviction to get two enhancements of the same count.

Best,

Joe

Quite true, my mistake. I was assuming that he already had one serious felony as stated. With the new one I would be looking (if I was the prosecutor to see if there was another). Since he was such a bad person I assumed that there was already another. We have numerous people down her that can be charged with that but it usually doesn't come into play. I have seen several "RICO" charges before but not as many as the "bitc*".

 

[hopper68]

If BB stopped and picked Lucky up, HOW did he not see the weapon? It could be real hard to conceal depending on what Lucky was wearing and/or carrying. Maybe BB just thought Lucky was happy to see him. Jeep Wrangler (2dr) or Cherokee (4dr) is also another factor on slipping it in.

 

[cobber]

Taking the three elements of a crime (knowing, willingly, and intentionally) into facts, I'm not sure there would be a conviction.

Disjunctive, not conjunctive. Please!

And it's only knowingly or intentionally. Willing's got nothing to do with it.

Sometimes the legislature throws in recklessly for a laugh.