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