Possession of a Firearm by a Felon
... firearms. This ruling reinforced a move by Congress to block felon’s applications for gun privileges by cutting off the funds for background investigations by the Bureau of Alcohol, Tobacco and Firearms (ATF). In 1998, Thomas Lamar Bean, a licensed gun dealer in Texas, attended a gun show in Laredo and then crossed the border for dinner. Mexican police found 200 rounds of ammunition in his car, and Bean was convicted in a Mexican court of importing ammunition. Trying to regain his livelihood, Bean applied to the ATF for permission to have guns. The agency refused to act, so Bean turned to a federal court in Texas. The judge concluded that Bean was not a danger to public safety. The U.S. Court of Appeals for the 5th Circuit, which covers Texas, Louisiana and Mississippi, affirmed the judge’s power to make the assessment. The Justice Department appealed. The question was whether the ATF’s inaction on Bean’s request was the same as a “denial” which can be appealed to a U.S. judge. The ruling focused on a federal statute and contained no reference to any constitutional right to own firearms. The United States Supreme Court has only three times commented upon the meaning of the second amendment to our constitution. In Lewis v. United States, it indicated in its footnotes that “these legislative restrictions on the use of firearms” --a ban on possession by felons—were permissible. But since felons may constitutionally be deprived of many of the rights of citizens, including that of voting, this dicta reveals little. In the Court of Appeals of Indiana, Conrad v. State of Indiana, Donald Conrad appealed his conviction for unlawful possession of a firearm by a serious violent felon. Conrad claimed that the criminalization of possession of a firearm by a serious violent felon by Indiana Code Section 35-47-4-5 violated various provisions of the United States and Indiana Constitutions. Since Conrad filed his brief in this matter, the court had addressed and rejected many of the constitutional arguments raised by Conrad. The court reaffirmed those holdings. First, the serious violent felon statute is not an ex post facto law in violation of Article I, Section 10 of the U.S. Constitution and Article I, Section 24 of the Indiana Constitution. Second, Conrad claimed that the serious violent felon statute contravened the principles of reformation required by Article I, Section 18 of the Indiana Constitution failed because he challenged one statute rather than the penal system as a whole. Third, he argued that the classification of the serious violent felon statute as a Class B felony did not constitute cruel and unusual punishment or punishment disproportionate to the severity of the offense in violation of the Eighth Amendment to the United States Constitution and Article I, Section 16 of the Indiana Constitution. Fourth, the serious violent statute did not violate the equal privileges and immunities provision of the Indiana Constitution. This provision imposed two requirements upon statutes granting unequal privileges or immunities to differing classes of people. Fifth, Conrad claimed that serious violent felon statute violated Article I, Section 32 of the Indiana Constitution, our state’s “right to bear arms” provision, and violated substantive due process guarantees. These two arguments are essentially one and the same. Lastly, Conrad claimed the serious violent felon statute punishes a defendant based on his or her “status” as a serious violent felon in contravention of the Eighth Amendment to the United States Constitution. In Klein v State, 698 N.E.2d 296 (Ind. 1998) our Supreme Court held that our state’s criminal gang activity statute did not punish individuals based merely on their status as a criminal gang member because the statute additionally required proof that an individual was aware of the gang’s criminal purpose. Likewise, a person cannot be convicted simply for being a “serious violent felon” because the statute requires additional proof that such a felon intentionally or knowingly possessed a firearm. It cannot be said that the serious violent felon statute punishes individuals based on status alone. Conrad’s multiple claims of unconstitutionality were unavailing. The court concluded that there was sufficient evidence that Conrad constructively possessed eighteen firearms. Conrad’s constitutional claim regarding the serious violent felon statute was rejected. In Spearman v State of Indiana, the Court of Appeals held that a defendant who was tried solely for the crime of unlawful possession of a firearm by a serious violent felon was not entitled to have the proceedings separated in such a way that the jury would not hear of his prior felony conviction before it determined whether he was in possession of a firearm 744N.E.2d 545, 547 (Ind. Ct App 2001), transfer was denied, 761 N.E. 2d 413 (Ind. 2001). This was because the evidence of the prior conviction was an essential element of the crime. Id at 548. In Hines v. State, the defendant Antwain James Hines was convicted in a single trial of (1) Robbery and (2) Unlawful Possession of a Firearm by a Serious Violent Felon. The Indiana Court of Appeals reversed the convictions on grounds that defendant’s pre-trial request for a separate trial should have been granted. The Court of Appeals agreed that the prejudice arising from evidence necessary to sustain the unlawful possession conviction – evidence of a prior conviction – substantially outweighed its probative value for the robbery charge. In this case, the Court of Appeals correctly distinguished Spearman: [Defendant]’s status as a serious violent felon is not an essential element of the Robbery offense. Indeed, such status is not even probative of whether [Defendant] committed the Robbery while armed with a deadly weapon. Thus, unlike the situation presented in Spearman, where separation was impractical, if not impossible, because the defendant was tried solely for the offense of Unlawful Possession of a Firearm by a Serious Violent Felon. In the present case, it would have been feasible for the trial to divide the Robbery charge and the Unlawful Possession of a Firearm by a Serious Violent Felon charge. Another case in Indiana, United States of America v. Leon Thomas, Thomas challenged the court’s use of his prior convictions to enhance his sentence for the unlawful possession of a firearm by a serious violent felon to a minimum of fifteen years under 18 U.S.C. sec. 924 (e) (1). Thomas argued that the court erred in finding that he committed three violent felonies on different occasions. (The questions of the law regarding sec. 924 (e) de novo.) United States v. White, 997 F. 2d 1213, 1215 (7th Cir. 1993). Because Thomas committed at least three violent felonies on occasions different from one another, the court found that the prerequisites of sec. 924 (e) were satisfied. In the case of Causey v. State of Indiana. Causey appealed his conviction for unlawful possession of a firearm by a serious violent felon. Causey raised three issues on his appeal. First, it was argued as to whether the evidence was sufficient to support a conviction for unlawful possession of a firearm by a serious violent felon. Specifically, he asserted that the State failed to prove he constructively possessed the handgun that was recovered from his SUV. In reviewing sufficiency of the evidence claimed, the court did not reweigh the evidence or assess the credibility of witness. Cox v. State, 774 N.E. 2d 1025, 1028-29 (Ind. Ct. App. 2002). The court considered only the evidence most favorable to the verdict, together with all reasonable and logical inferences to be drawn there from. Alspach v. State, 755 N.E. 2d 209, 210 (Ind. Ct. App. 2001), trans. denied. It was concluded there must be substantial evidence of probative value to support the conclusion of the trier-of-fact to affirm the conviction. Cox, 774 N.E. 2d at 1028-29. Thus to convict Causey of unlawful possession of a firearm by a serious violent felon, the State had to prove that Causey had been convicted of robbery and thereafter, knowingly or intentionally possessed a firearm. See I.C. 35-47-4-5 as already mentioned in Conrad v. State of Indiana. For instance, a person, who has direct physical control over the firearm, has actual possession, Grim v. State of Indiana 797 N.E. 2d 825, 831 (Ind. Ct. App. 2003). However, constructive possession occurs when the person has the intent and capability to maintain dominion and control over the firearm. Id. To prove the element of intent, the State must demonstrate the defendant’s knowledge of the presence of the firearm. Id. Knowledge may be inferred from either exclusive dominion or control over the premises containing the firearm, or from evidence of additional circumstances indicating the defendant’s knowledge of the presence of the firearm. Grim v. State of Indiana. Here, Causey did not have exclusive dominion and control of the SUV in which the handgun was found; therefore, the court considered the evidence in light of additional circumstances indicating Causey’s knowledge of the presence of the weapon and his ability to exercise control over it. Conrad v. State. The court’s review of the evidence in this case reflected that the police stopped the dark colored SUV because it was speeding and it matched the description of an SUV involved earlier that evening in the armed robbery of Nicholas. The officers who stopped the SUV observed three people in the vehicle: the driver, a front seat passenger and a backseat passenger. As the officers awaited backup, they saw Causey, who was the front seat passenger, make furtive movements by leaning across his body and seemingly push something down between the seats or into the center console. After Causey was removed from the vehicle, the officers found a handgun under the front passenger seat where he was sitting. Based on the fact that...