COA affirms possession of tossed firearm by felon

A man convicted of unlawful possession of a firearm by a serious violent felon after he allegedly tossed a pistol from his car during a police stop failed to convince the Indiana Court of Appeals that the evidence against him was insufficient.

An appellate panel affirmed Pierre Smith Jr.’s Level 4 felony conviction in Pierre A. Smith, Jr. v. State of Indiana, 18A-CR-478. A Marion Superior Court jury convicted Smith in January after finding him to be a serious violent felon, and a month later he was sentenced to eight years executed in the Department of Correction.

Police trailed Smith after he “rolled” a stop sign at 11^th and LaSalle streets in Indianapolis. Turning north on LaSalle, his vehicle’s tires on the passenger side hit the curb, causing the car to jolt and police to flip on their siren. An officer noticed Smith moving between the middle seat and the driver’s seat, and Smith then drove off, but his car was stopped again a few blocks away.

Police then found Smith didn’t have a valid driver’s license or a handgun permit, but they had found no weapons in a sweep of the car. They released him and told him a licensed driver would need to take the vehicle. But his driving having piqued officers’ interest, and after also noting the passenger-side window was down, officers returned to the address where the traffic stop had initiated. There they found a 9-mm semi-automatic pistol laying in the grass about 15 feet from the curb.

As officers made the discovery, they noticed Smith once again driving by in his car, and they made eye contact with him. Smith again was stopped a few blocks away. A jury in Marion Superior Court later convicted Smith, who argued unsuccessfully to the Indiana Court of Appeals that police had not proven he constructively possessed the gun.

“…Smith fled from the officer, there were no other individuals in the area, and the gun was found in front of an abandoned house,” Judge Paul Mathias wrote for the panel. “…(I)n this case the officer did not believe that the gun had been exposed to the elements for any significant length of time. The officer also observed that the grass in the yard where the gun was found had been freshly cut.

“Moreover, the gun bore scratch marks that were likely received when it clattered across the concrete,” Mathias continued. “Importantly, shortly after the traffic stop concluded, Smith drove his vehicle without a license, in order to return to the area where the gun was located after he was instructed to have a licensed driver pick up his car.

“From these facts, a reasonable jury could find that Smith had intent to maintain dominion and control over the contraband, and therefore, that he constructively possessed the handgun at issue. For this reason, we affirm his conviction,” the panel concluded.