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Constructive Possession Felon Gun

Can a Convicted Felon Be Around a Gun and Be Guilty of Possession and Convicted?

Maybe. The Constitution’s Second Amendment1 right to bear arms is a right enjoyed by most, but one that is not absolute. Perhaps most notable is a person that has a felony conviction—knows just how many consequences come with it. In Indiana (and under federal law), an individual does not have Second Amendment rights with a felony conviction.2 This means he or she cannot purchase firearms.3 Another limitation is the inability to possess a firearm.4 The question or consideration for felons is to know how far constructive possession extends? Does one have to have the firearm on their person with a felony conviction to commit the crime of being a felon in possession? No. The Indiana Court of Appeals just recently addressed these questions in Pierre A. Smith, Jr. v. State of Indiana.5 Constructive possession, which generally means ready access to a firearm, is the topic of this blog so you are able to educate yourself and avoid committing a criminal act.

In Smith v. State, the Court of Appeals affirmed a conviction of unlawful possession of a firearm by a felon. The Defendant appealed his conviction for unlawful possession, arguing that the State failed to prove he “constructively possessed” a firearm. Here are the facts underlying the charge: In 2017, the Defendant was pulled over after he rolled through a stop sign and hit the curb with his tire. The Defendant initially pulled over, and after sitting in front of an abandoned house for a short time, pulled away. The police officers continued their pursuit, with the Defendant subsequently pulling over. The officers soon learned that the Defendant was a convicted felon, and had his license suspended. The officers told the Defendant to have someone with a valid driver’s license to take the car home. After, the officers went back to the house where the Defendant had originally been pulled over they found a firearm in the front yard. Shortly after, the officers saw the Defendant drive past the house where he made eye contact with them.

The Defendant was charged and convicted of “constructive possession” of a firearm. On appeal, the Court began its analysis by noting that constructive possession “occurs when somebody has the intent and capability to maintain dominion and control over the item.” The Court went on to discuss that “additional circumstances” must also be present to support a conviction for constructive possession. In its decision, the Court found several additional circumstances, to support “constructive possession” including: the fact the gun was found right outside the house that Defendant was originally at; the fact that Defendant fled; the fact the gun had fresh scratch marks; and the fact the officers saw the Defendant drive back by the house. The Court, in affirming the conviction, found enough “additional circumstances” that a reasonable jury could find the Defendant constructively possessed the firearm. Thus, if you are a felon, possession of a firearm consists of far more than just holding it or having it on your person.

This case should provide you with key information to be a lawful citizen if you have a firearm and or are a felon. Knowing the status of developments in the law is the key to avoiding criminal liability, as well as being an engaged citizen in our participatory system of government. This blog post on a key new case was written by attorneys at Ciyou & Dixon, P.C. who handle criminal defense cases and appeals of criminal convictions throughout the state, including many firearms cases. This blog is written for educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.

  1. Article I, Section 32 (Indiana Constitution).
  2. Ind. Code 35-47-1-7 (the limitation is also found in the federal Gun Control Act)
  3. Ind. Code 35-47-2-7
  4. Ind. Code 35-47-4-5
  5. Pierre A. Smith, Jr. v. State of Indiana, 18A-CR-478 (2018).

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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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