Dakota G. Aikins v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                         Oct 23 2020, 9:27 am
court except for the purpose of establishing
                                                                                      CLERK
the defense of res judicata, collateral                                           Indiana Supreme Court
                                                                                     Court of Appeals
estoppel, or the law of the case.                                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John M. Haecker                                          Curtis T. Hill, Jr.
Squiller & Hamilton, LLP                                 Attorney General of Indiana
Auburn, Indiana                                          Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dakota G. Aikins,                                        October 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-782
        v.                                               Appeal from the
                                                         Dekalb Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Monte L. Brown, Judge
                                                         Trial Court Cause No.
                                                         17D02-1809-F4-16



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020            Page 1 of 16
[1]   Dakota G. Aikins (“Aikins”) appeals his conviction for unlawful possession of

      firearm by serious violent felon.1 He raises two issues on appeal, which we

      restate as follows:

                 I. Whether the trial court abused its discretion in admitting
                 evidence of previous instances when Aikins possessed a
                 handgun; and


                 II. Whether Aikins’s conviction was supported by sufficient
                 evidence.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On September 1, 2018, several officers from the Garrett, Indiana police

      department were surveilling the home of Deborah Aikins (“Deborah”), Aikins’s

      mother, before executing a search warrant at the home. Tr. Vol. 2 at 51-52, 61-

      62, 102, 113. Officers believed Aikins lived at the residence.

Id. at 99, 105-06.

      At 9:00 a.m., Officer Michael Shutt (“Officer Shutt”) observed Aikins leave the

      home and walk to a nearby gas station while wearing a gray hat that had a

      black flat bill and a Chicago Bulls symbol on the front.

Id. at 99-100.

Several

      officers familiar with Aikins had often seen him wear such a hat.

Id. at 64, 68- 69, 79-80, 99-100, 116. 1

          See Ind. Code § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 2 of 16
[4]   Later that day while Officer Shutt met with the SWAT team to discuss

      executing the search warrant, Officer Nathan Cox (“Officer Cox”) was assigned

      to watch the home.

Id. at 52, 100-01.

Officer Cox observed three individuals,

      including Aikins, enter the home.

Id. at 52, 56-57.

A short time later, Officer

      Cox saw Aikins leave the home.

Id. at 53, 57.

The SWAT team entered the

      home about thirty minutes after Aikins had departed.

Id. at 54.

Three

      individuals were found in the home: Deborah, Aikins’s stepbrother Clifford

      Grim (“Grim”), and Grim’s girlfriend, Tiffiany Detar (“Detar”).

Id. at 102, 114, 129, 136, 162.

Aikins was not at the residence at the time of the search.

Id. at 102-03. [5]

  Officer Shutt and other officers searched the home.

Id. at 62.

The home

      contained three bedrooms or sleeping areas, one downstairs and two upstairs.

Id. at 63, 73, 131-32.

Detar and Grim used the bedroom downstairs. Deborah

      used one of the upstairs bedrooms, and Aikins and his wife Rhonda Moore

      (“Dee Dee”) used the other upstairs bedroom.

Id. at 63, 73, 77, 129-32.

In

      Aikins’s bedroom officers observed on the bed a SCCY nine-millimeter

      handgun with a green frame and a silver side.

Id. at 57, 64, 73, 119;

Ex. Vol. at

      8. Next to the handgun was Aikins’s gray Chicago Bulls hat that Officer Shutt

      observed Aikins wearing earlier that day. Tr. Vol. 2 at 64, 73-74, 103-04.

      Officers also found Aikins and Dee Dee’s marriage license in a desk drawer in

      Aikins’s bedroom.

Id. at 65;

Ex. Vol. at 9. In another part of the home, officers

      found a piece of mail addressed to Aikins that was written by Dee Dee while



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 3 of 16
      she was incarcerated at the DeKalb County Jail. Tr. Vol. 2 at 77-78, 83, 87, 104-

      05, 142; Ex. Vol. at 10.


[6]   On September 10, 2018, Aikins was charged with unlawful possession of a

      firearm by a serious violent felon, a Level 4 felony. Appellant's App. Vol. 2 at 15.

      The case was tried to a jury on December 16 and 17, 2019.

Id. at 136-37.

      Melissa Chisholm (“Chisholm”), who said that Aikins was like a son to her,

      testified that she saw Aikins possess a handgun while he was at her home on

      August 10, 2018. Tr. Vol. 2 at 92-94. Chisholm described that handgun as a

      semi-automatic handgun with green trim on the handle.

Id. at 94-95.

She

      testified that when she saw the gun, she yelled, “get that the fuck out of my

      house,” and Aikins then “grabbed it, took it out the back door, came back in a

      couple, few minutes later without it.”

Id. at 95.

Chisholm was unable to say

      for certain whether State’s Exhibit 3, a picture of the handgun recovered from

      Aikins’s bedroom, showed the same handgun she observed Aikins possessing

      on August 10, 2018. She testified that the handgun was the same type of

      handgun as in State’s Exhibit 3, but that she remembered the gun that Aikins

      possessed on August 10, 2018, had more of an army green colored trim on the

      handle.

Id. at 93-96;

Ex. Vol. at 8.


[7]   Detar testified that she had previously seen Aikins with State’s Exhibit 8 -- the

      actual handgun recovered from the search -- more than once. Tr. Vol. 2 at 133-

      35; Ex. Vol. at 13. Detar said she previously observed Aikins with the handgun

      at Deborah’s home. Tr. Vol. 2 at 134-35. Detar also identified the gray Chicago

      Bulls hat that was located next to the handgun in Aikins’s bedroom as
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 4 of 16
      belonging to Aikins.

Id. at 132-33.

While she acknowledged that both Aikins

      and Grim would wear Aikins’s hat, she testified that Aikins would wear the hat

      more often than Grim did.

Id. at 133.

Detar stated that she thought she saw

      Aikins wearing the Chicago Bulls hat on the date the search warrant was

      executed.

Id. at 137. [8]

  The jury found Aikins guilty of unlawful possession of a firearm by a serious

      violent felon, a Level 4 felony.

Id. at 219.

On March 6, 2020, the trial court

      sentenced Aikins to eight years in Indiana Department of Correction.

Id. at 232;

Appellant’s App. Vol. 2 at 237-40. Aikins now appeals.


                                       Discussion and Decision

                                      I. Admission of Evidence
[9]   Aikins argues that the trial court abused its discretion when it admitted the

      testimony of Chisholm and Detar about Aikins possessing a gun at an earlier

      date. More specifically, Aikins contends the probative value of Chisholm’s and

      Detar’s testimony was low or even non-existent and argues that the danger of

      unfair prejudice outweighed the probative value of their testimonies.2




      2
        To the extent that Aikins argues that the admission of Chisholm’s testimony and Detar’s testimony was
      improper under Indiana Rule of Evidence 404(b), he has waived that issue. Aikins recites propositions of law
      applicable to that rule but then makes only a one-sentence argument: “The admission of Aikins’s possession
      of a firearm on an occasion other than September 1, 2018 suggests that he committed another uncharged
      crime and permitted the jury to speculate that he possessed the firearm as charged on September 1, 2018.”
      Appellant’s Br. at 12. Thus, Aikins has waived this issue for lack of cogent argument. See Ind. Appellate Rule
      46(A)(8)(a); Jarman v. State, 

114 N.E.3d 911

, 915 n.2 (Ind. Ct. App. 2018), trans. denied.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020                  Page 5 of 16
[10]   Evidentiary rulings rest within the discretion of the trial court, and we review

       such rulings only for an abuse of discretion. Griffith v. State, 

31 N.E.3d 965

, 969

       (Ind. 2015). “An abuse of discretion occurs when the trial court's decision is

       clearly against the logic and effect of the facts and circumstances before it or the

       trial court has misapplied the law.” Jimerson v. State, 

56 N.E.3d 117

, 120 (Ind.

       Ct. App. 2016), trans. denied. We may affirm an evidentiary ruling on any basis

       apparent in the record. Craun v. State, 

762 N.E.2d 230

, 236 (Ind. Ct. App.

       2002), trans. denied.


[11]   Indiana Rule of Evidence 403 provides, “The court may exclude relevant

       evidence if its probative value is substantially outweighed by a danger of . . .

       unfair prejudice . . . .” “Probative evidence” is evidence that is sufficient to

       establish a given fact and which, if uncontradicted, will remain sufficient.

       Wigwam Holdings LLC v. Madison Cty. Assessor, 

125 N.E.3d 7

, 12 (Ind. Tax Ct.

       2019). “Probative value” refers to the degree that evidence carries a quality of

       proof to induce certainty. Williamson Co. v. Review Bd. of Ind. Employment Sec.

       Div., 

145 Ind. App. 266

, 275, 

250 N.E.2d 612

, 617 (1969). Determining

       whether the probative value of evidence is substantially outweighed by the

       danger of unfair prejudice is a task best performed by the trial court. Ward v.

       State, 

138 N.E.3d 268

, 273 (Ind. Ct. App. 2019). “Trial courts are given wide

       latitude in weighing the probative value of evidence against the prejudice




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 6 of 16
       caused by its admission.” Wilcoxson v. State, 

132 N.E.3d 27

, 31-32 (Ind. Ct.

       App. 2019), trans. denied. “While all relevant evidence is prejudicial in some

       sense, the question is not whether the evidence is prejudicial, but whether the

       evidence is unfairly prejudicial.” 

Ward, 138 N.E.3d at 273

.


[12]   Aikins was charged under Indiana Code section 35-47-4-5(c), which provides:

       “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.” The charging information alleged, in part, that Aikins “knowingly or

       intentionally possessed a firearm, which was a SCCY CPX-1, 9mm semi-

       automatic handgun (serial #270689).” Appellant’s App. Vol. 2 at 15.

       Furthermore, because the State’s theory of the case was that Aikins had

       constructively possessed the handgun found in his bedroom, the State was also

       required to provide additional evidence of Aikins’s intent and capability to

       maintain dominion and control over the handgun along with evidence that

       established Aikins’s knowledge of the presence of the handgun in his bedroom.

       Gray v. State, 

957 N.E.2d 171

, 174-75 (Ind. 2011). Thus, the testimonies of

       Chisholm and Detar had probative value if their testimonies showed that Aikins

       had the capability to maintain exclusive dominion or control over the gun and

       intended to maintain control of the gun. See Bradshaw v. State, 

818 N.E.2d 59

,

       62-63 (Ind. Ct. App. 2004).


[13]   Before we address Aikins’s claim on the merits, we observe that because he

       frames his argument within the context of Indiana Rule of Evidence 403, he

       must do more than contend and show that each woman’s testimony was of little

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 7 of 16
       or no probative value; he must contend and demonstrate that the “probative

       value [was] substantially outweighed by a danger of . . . unfair prejudice . . . .”

       Evid. R. 403. Other than self-serving statements that the testimonies created

       the danger of unfair prejudice, Aikins does not demonstrate such unfair

       prejudice and has waived this issue for lack of cogent argument. See Ind.

       Appellate Rule 46(A)(8)(a); Jarman v. State, 

114 N.E.3d 911

, 915 n.2 (Ind. Ct.

       App. 2018), trans. denied. Nonetheless, waiver notwithstanding, we proceed to

       the merits of Aikins’s argument.

[14]   Aikins contends there was little or no probative value to either Chisholm’s

       testimony or Detar’s testimony that Aikins had previously possessed a gun

       because a person’s “possession [of] the same instrumentality as that used in a

       crime has only the slightest tendency to support an inference that the person

       committed the crime. That is especially so where possession of the

       instrumentality is remote in time from the date the crime occurred.” Appellant’s

       Br. at 13 (quoting Wilson v. State, 

770 N.E.2d 799

, 802 (Ind. 2002) and Pope v.

       State, 

737 N.E.2d 374

, 378 (Ind. 2000)). As to Chisholm’s testimony, Aikins

       correctly observes that when she saw Aikins possess a gun at her home, it was

       somewhat remote in time, approximately twenty days before police seized the

       handgun from Aikins’s bedroom. Tr. Vol. 2 at 96. Aikins is also correct that

       Chisholm was unsure if the photograph of the gun recovered from Aikins’s

       bedroom which she was shown at trial was the same gun Aikins had possessed

       at her house twenty days earlier.

Id. at 95.

Aikins fails, however, to

       acknowledge that Chisholm testified that the guns were similar and that it was

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 8 of 16
       possible that the gun she saw at her house and the photograph of the gun

       introduced as evidence at trial were the same gun.

Id. at 94-96.

Ex. Vol. at 8.

       Aikins also contends the probative value of Detar’s testimony is low or

       nonexistent, even though Detar testified that she had seen the gun which was

       introduced at trial in Aikins’s bedroom in Deborah’s house and that she had

       actually seen Aikins possess that gun several times before. Tr. Vol. 2 at 133-35.

       Aikins reasons that because Detar also testified that the gun was often “laying

       around,” that either Aikins or Grim would have the gun, and because Grim

       was present at Deborah’s home at the time of the search while Aikins was not,

       Detar’s testimony about Aikins’s prior possession of the gun had little or no

       probative value.

Id. at 133-34, 137. [15]

  Aikins contends that the link between the testimonies of Chisholm and Detar to

       Aikins’s constructive possession of the handgun is weak in ways similar to the

       situations in Pope and Wilson, where the Indiana Supreme Court ruled that

       testimony regarding prior possession of an instrumentality of a crime was not

       even marginally relevant under Indiana Rule of Evidence 401, let alone

       probative under Indiana Rule of Evidence 403, because under the

       circumstances of those cases, there was no ability to compare the

       instrumentalities of the crimes admitted as evidence at trial with the potential

       instrumentalities of the crimes witnessed earlier. 

Pope, 737 N.E.2d at 378

;

       

Wilson, 770 N.E.2d at 802

. For instance, in Pope, Pope’s mother testified that

       ten days before the crime Aaron Thomas (“Thomas”) was a passenger in her

       car and when Thomas exited her car, she noticed bullets where Thomas had


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 9 of 16
       been sitting. 

Pope, 737 N.E.2d at 378

. She retrieved the bullets but later threw

       them away.

Id. During his mother’s

testimony, Pope tendered, as illustrative

       exhibits, bullets that allegedly looked like the bullets that Pope’s mother had

       viewed in her car.

Id. Pope’s theory was

that the bullets at the crime scene

       matched the bullets in his mother’s car, and this proved that Thomas, not Pope,

       was the shooter.

Id. The Indiana Supreme

Court ruled that the bullets tendered

       as illustrative exhibits were not relevant and were inadmissible because there

       was no evidence that anyone had actually compared the bullets found at the

       crime scene with the bullets that Pope had tendered as illustrative exhibits, and

       there was no evidence that the bullets were the same or even similar.

Id. Thus, there was

no link between the bullets tendered at trial as illustrative exhibits and

       the actual bullets found at the crime scene.

Id. at 379. [16]

  In Wilson, Wilson was charged with 

murder. 770 N.E.2d at 800

. During the

       State’s case in chief, the trial court admitted into evidence a photograph of

       Wilson brandishing a gun which was taken two months before the crime.

Id. at 801-02.

The State argued the photograph was relevant because the shell casings

       found at the crime scene were fired from a nine-millimeter gun similar to the

       kind of gun that Wilson was displaying in the photograph.

Id. at 801.

The

       State argued this made the photograph relevant because it tended to show that

       Wilson possessed the murder weapon at the time of the shooting.

Id. at 801-02.

       On appeal, the Supreme Court ruled that the photograph was irrelevant and

       inadmissible because there was no weapon introduced into evidence at trial and

       there was no ability to compare the shell casings found at the scene with the

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 10 of 16
       gun depicted in the photograph.

Id. at 802.

Thus, the Indiana Supreme Court

       ruled that the State had failed to establish a link between the gun in the photo

       and the shell casings at the scene.

Id. [17]

  Here, we reject Aikins’s arguments that the testimonies of Chisholm and Detar

       lacked probative value and that the holdings of Pope and Wilson compel us to

       conclude that the trial court abused its discretion in allowing each woman to

       testify about Aikins’s prior possession of a handgun. Chisholm testified that the

       gun which Aikins possessed at her house could have been the gun the State

       seized from Aikins’s bedroom. Tr. Vol. 2 at 92-96. Chisholm testified that the

       gun was on the arm of the love seat on which Aikins was sitting and that Aikins

       removed the gun from Chisholm’s home upon her command. Thus,

       Chisholm’s testimony was probative to Aikins’s intent and capability to

       maintain control of the gun found in his bedroom.

Id. Detar’s testimony was

       probative for the same reasons; the fact that she saw Aikins possesses the same

       gun several times before the gun was found in Aikins’s bedroom was probative

       of the State’s assertion that Aikins had both the intent and capability to

       maintain control over the gun that was found in his bedroom.

Id. at 133-35.

       Furthermore, because Detar testified that she had also seen Grim possess the

       gun –

id. at 133

– the testimony of each woman that Aikins had previously

       possessed the gun was especially relevant and probative to the jury’s

       determination of whether Aikins did, in fact, constructively possess the gun, or

       whether only Grim had possessed or constructively possessed the gun. Thus,

       the testimony of each woman was probative. The trial court did not abuse its

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 11 of 16
       discretion in allowing each woman to testify that they had previously seen

       Aikins possess the gun.

[18]   Furthermore, neither Pope nor Wilson sway our determination that the

       testimony of each woman was probative. The common thread running through

       both decisions is that there was no ability to compare the actual instrumentality

       of the crime and the possible instrumentality of the crime previously observed

       by witnesses. In Pope, no witness at trial even attempted to compare the bullets

       found at the crime scene with the bullets tendered at trial as illustrative exhibits,

       so there was no evidence the bullets were the same. 

Pope, 737 N.E.2d at 378

-

       79. Likewise, in Wilson, because no murder weapon was entered into evidence,

       there was no ability to compare the shell casings found at the crime scene with

       the gun depicted in the photograph of Wilson. 

Wilson, 770 N.E.2d at 802

.


[19]   Here, because the gun the police seized from Aikins’s bedroom was admitted as

       evidence at trial, both Chisholm and Detar were able to compare that gun to the

       gun that each had previously observed Aikins possess. Tr. Vol. 2 at 94-96, 133-

       35. As a result, the testimony of each woman was probative and highly

       relevant to the State’s constructive possession theory assertion that Aikins had

       both the intent and capability to maintain control over the gun. Accordingly,




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 12 of 16
       the trial court did not abuse its discretion when it allowed Chisholm and Detar

       to each testify about a gun that they had previously seen Aikins possess. 3


                                       II. Sufficiency of Evidence
[20]   Aikins also claims the evidence submitted at trial was insufficient to support his

       conviction for unlawful possession of firearm by a serious violent felon.

       Specifically, he argues the State failed to present sufficient evidence that he

       constructively possessed the gun seized from his bedroom.

[21]   When we review the sufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of the witnesses. McHenry v. State, 

820 N.E.2d 124

, 126 (Ind. 2005). Rather, we will affirm a conviction if we find that any

       reasonable factfinder could find a defendant guilty beyond a reasonable doubt

       when considering all the facts and inferences that favor the conviction. Bailey v.

       State, 

907 N.E.2d 1003

, 1005 (Ind. 2009). The evidence need not exclude every




       3
         We acknowledge that in 2018, another panel of this court addressed whether testimony that a victim had
       previously observed the defendant with a gun was relevant, and, if it was, whether the probative value of that
       testimony was outweighed by the danger of unfair prejudice. See Smith v. State, 

116 N.E.3d 1107

(Ind. Ct.
       App. 2018), trans. denied, cert. denied, 

140 S. Ct. 940

(2020). In Smith, the defendant was convicted of, inter
       alia, carrying a handgun without a license.

Id. at 1110.

At trial, the victim was allowed to testify that he had
       previously observed the defendant possess a pink handgun.

Id. at 1115.

The gun that was seized and formed
       the basis of the defendant’s charge was black.

Id. at 1116.

Analyzing the issue under Indiana Rule of
       Evidence Rule 403, the panel held that testimony about the defendant’s possession of the pink handgun was
       impermissible testimony about a prior bad act.

Id. However, as noted

above, Aikins presents no cogent
       argument that the probative value of the testimony of Chisholm and the testimony of Detar was outweighed
       by the danger of unfair prejudice. He merely argues that the testimony of each woman had little or no
       probative value. Finally, while the two guns in Smith were markedly different in appearance – one was pink
       and the other one was black – in this case the descriptions of the guns previously observed were either similar
       (Chisholm) or identical (Detar) to the gun actually admitted as evidence at trial. See Tr. Vol. 2 at 93-96, 133-
       35. Thus, the probative of the testimony here was much greater than the probative value of the testimony in
       Smith.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020                   Page 13 of 16
       reasonable hypothesis of innocence, but it must support a reasonable inference

       of guilt to support the verdict. Drane v. State, 

867 N.E.2d 144

, 147 (Ind. 2007).


[22]   To convict Aikins of unlawful possession of a firearm by a serious violent felon,

       the State was required to prove that Aikins had been convicted of a serious

       violent felony in Indiana and that he knowingly or intentionally possessed a

       firearm. Ind. Code § 35-47-4-5. On appeal, Aikins’s sole contention is that the

       State failed to prove that he constructively possessed the handgun found in his

       bedroom. “[A] conviction for a possessory offense does not depend on catching

       a defendant red-handed.” 

Gray, 957 N.E.2d at 174

. A conviction for unlawful

       possession of a firearm “may rest upon proof of either actual or constructive

       possession.” Smith v. State, 

113 N.E.3d 1266

, 1269 (Ind. Ct. App. 2018), trans.

       denied. Actual possession is “the direct physical control of the gun.”

Id. at 1270.

       Constructive possession occurs when the defendant has both “(1) the capability

       to maintain dominion and control over the item, and (2) the intent to maintain

       dominion and control over it.”

Id. To prove constructive

possession, the State

       must support a defendant’s intent to maintain dominion and control over the

       contraband with additional evidence pointing to the defendant’s knowledge of

       the presence of the contraband and its nature. 

Gray, 957 N.E.2d at 174

-75. We

       traditionally look to several additional items of evidence to assess a defendant’s

       knowledge and intent, including (1) incriminating statements by the defendant;

       (2) a defendant’s furtive gestures or attempts to flee; (3) the location of the

       contraband in settings suggesting manufacturing; (4) the contraband’s proximity

       to the defendant; (5) the location of the contraband within the defendant’s plain


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 14 of 16
       view; and (6) the mingling of the contraband with other items the defendant

       owns.

Id. at 175.

This list, however, is not exhaustive. Johnson, v. State, 

59 N.E.3d 1071

, 1074 (Ind. Ct. App. 2016). “Rather, the State is required to show

       that whatever factor or set of factors it relies upon in support of the intent prong

       of constructive possession, those factors or set of factors must demonstrate the

       probability that the defendant was aware of the presence of the contraband and

       its illegal character.” Gee v. State, 

810 N.E.2d 338

, 344 (Ind. 2004).


[23]   Here, the State presented sufficient evidence of Aikins’s intent to maintain

       dominion and control over the handgun based on the evidence showing his

       knowledge of the nature and presence of the handgun. First, the evidence

       established that Aikins resided at Deborah’s home and that the handgun was

       found in Aikins’s bedroom. Tr. Vol. 2 at 129-32. Officers located a letter at

       Deborah’s home that was addressed to Aikins and sent to him by Dee Dee

       while she was incarcerated in the DeKalb County Jail.

Id. at 78, 83, 87, 142;

       Ex. Vol. at 10. Contrary to Aikins’s argument, the fact that several people lived

       in Deborah’s home and that Grim may have also possessed the handgun at

       some point does not negate the sufficiency of the State’s proof that Aikins

       constructively possessed the handgun. These were evidentiary matters for the

       jury to weigh.

[24]   The State presented evidence of other additional circumstances that supported

       the finding that Aikins had the intent and capability to maintain dominion and

       control over the gun. First, Chisholm testified that she saw Aikins previously

       possess a gun that could have been the same gun admitted into evidence at trial,

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 15 of 16
       and Detar testified that she had previously observed Aikins carrying the same

       handgun several times. Tr. Vol. 2 at 92-96, 133-35; Ex. Vol. at 13. Second, the

       specific location of the handgun was additional evidence pointing to Aikins’s

       knowledge of the presence of the handgun in his bedroom. The handgun was

       located in plain view on Aikins’s bed. Tr. Vol. 2 at 64, 73, 119; Ex. Vol. at 7-8.

       In that same room, police also found Aikins’s marriage license and gray

       Chicago Bulls hat, which officers had observed Aikins wear that same day. Tr.

       Vol. 2 at 64-65, 73-76, 103-04; Ex. Vol. at 8-9. Accordingly, the State presented

       sufficient evidence that Aikins constructively possessed the gun and thus

       presented sufficient evidence to support Aikins’s conviction for unlawful

       possession of firearm by a serious violent felon.

[25]   Affirmed.


       Pyle, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-782 | October 23, 2020   Page 16 of 16
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Dakota G. Aikins v. State of Indiana (mem. dec.) is rated 1 out of 5 based on the reviews submitted by our users and is marked as POOR.
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