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Smith v. State

Court of Appeals of Indiana

November 29, 2018

Pierre A. Smith, Jr., Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court Trial Court Cause No. 49G21-1706-F4-20545 The Honorable Alicia A. Gooden, Judge.

          Attorneys for Appellant Valerie K. Boots Deborah Markisohn Marion County Public Defender Agency Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Chandra K. Hein Ian McLean Deputy Attorneys General Indianapolis, Indiana

          Mathias, Judge.

         [¶1] Pierre Smith ("Smith") was convicted in Marion Superior Court of Level 4 felony unlawful possession of a firearm by a serious violent felon. Smith appeals and argues that the State failed to prove that he constructively possessed the firearm.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] At approximately 8:00 p.m. on May 31, 2017, Indianapolis Metropolitan Police Department Officer William Wogan ("Officer Wogan") was on patrol in his district when he observed Smith driving a silver Chevrolet Monte Carlo. Smith "rolled" a stop sign and then turned right onto East Eleventh Street. Tr. p. 40. The officer followed Smith onto East Eleventh Street and observed that Smith failed to stop at the stop sign at the intersection of East Eleventh and LaSalle Street. Smith then proceeded northbound on LaSalle Street.

         [¶4] As the officer turned northbound onto LaSalle, he saw Smith's vehicle "suddenly slow down [and] pull to the right." Tr. p. 44. The tires on the passenger side of the vehicle hit the curb, and the car jolted. Id. At that point, Officer Wogan activated his lights to initiate a traffic stop. While Smith's vehicle was stopped at the curb, the officer saw Smith moving around in the vehicle and shift from the middle of the front seat back to the driver's seat. Tr. pp. 44-45. The officer could not see the passenger side of Smith's vehicle because a parked car partially blocked the officer's view.

         [¶5] Smith then pulled away from the curb and continued to drive northbound on LaSalle Street with Officer Wogan in pursuit with his lights activated. Officer Wogan radioed for assistance.

         [¶6] Smith turned right onto Thirteenth Street and drove approximately one-half of the block before stopping his vehicle. Because Smith initially fled from him before stopping, the officer considered the traffic stop high risk. The officer instructed Smith to turn his vehicle off, exit the vehicle, and walk back toward Officer Wogan. Smith complied with the officer's commands.

         [¶7] Officer Wogan obtained Smith's name and date of birth and determined that Smith did not have a driver's license, active arrest warrants, or a handgun permit. Because Smith cooperated and Officer Wogan was "not tasked with traffic enforcement," the officer released Smith and instructed him that a licensed driver would need to pick up Smith and the car. Tr. pp. 48-49. Before Smith was allowed to return to the vehicle, Officer Brett Lorah ("Officer Lorah") made a quick sweep of the vehicle to check for weapons. Officer Lorah did not find any weapons but did notice that the front passenger window of the vehicle was in a lowered position.

         [¶8] Because Smith's driving behavior had piqued Officer Wogan's curiosity, after the traffic stop was complete, Officer Wogan and Officer Lorah returned to the area on LaSalle Street where Smith had pulled his vehicle over to the curb just before Officer Wogan initiated the traffic stop. The officers stood on the sidewalk in front of 1213 LaSalle Street, an abandoned property, and saw a black and silver 9mm semi-automatic pistol laying in the grass approximately fifteen feet from the curb. Tr. p. 52. Just after locating the gun, the officers saw Smith driving his vehicle "backwards on Thirteenth Street." Id. Smith then stopped in the intersection, turned south on LaSalle Street, and drove by the officer. Smith and Officer Wogan made eye contact as Smith drove by. As Smith was driving without a license after being directed not to do so, Officer Wogan instructed Officer Lorah to stop Smith, which he did just a few blocks away.

         [¶9] Officer Wogan believed the pistol belonged to Smith and arrested him for carrying a handgun without a license. The officer recovered the pistol and observed scratches on the side of the pistol that had been laying on the freshly mown grass. The officer opined that the scratches looked "relatively fresh." Tr. p. 57. The officer believed that the markings and damage to the pistol "would be consistent with being thrown across concrete and on the ground." Tr. p. 59. And based on its ...

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