Tavitas, J.
Juvenile B.R. appeals his juvenile adjudication for acts which, if committed by an adult, would constitute carrying a handgun without a license, a Class A misdemeanor. After being stopped for traffic violations, a vehicle driven, but not owned, by B.R. was searched by a police officer who detected the odor of marijuana. During the search, the officer removed a panel to the left of the steering wheel, revealing a handgun in a hidden space inside the dashboard. After a fact-finding hearing, the juvenile court concluded that the evidence was sufficient to find that B.R. constructively possessed the handgun. Finding that such a conclusion was in error, we reverse.
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“[O]ur jurisprudence on the issue of ‘possession’ is rather straightforward: it can be either actual or constructive.” Sargent v. State, 27 N.E.3d 729, 732-33 (Ind. 2015). “Actual” possession of contraband, whether a handgun or an illegal substance, occurs when a person has direct physical control over the item. See, e.g., Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). If the State cannot prove actual possession, it may nonetheless prevail on proof of “constructive” possession. See, e.g., Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “‘A person constructively possesses [an item] when the person has (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it.’” Sargent, 27 N.E.3d at 732-33 (quoting Gray, 957 N.E.2d at 174).
The question here is whether a reasonable trier of fact, when considering the circumstances, could determine beyond a reasonable doubt that B.R. had constructive possession of the handgun in the hidden compartment. We first consider whether the evidence demonstrated that B.R. had the capability to maintain dominion and control over the handgun… B.R. was seated close to the hidden compartment and would have been able to reduce the handgun to his personal possession. Accordingly, the State presented evidence of B.R.’s capability to maintain dominion and control over the handgun.
We next consider whether the evidence demonstrated that B.R. had the intent to maintain dominion and control over the handgun…. The State points to three “additional circumstances” that supposedly establish knowledge beyond a reasonable doubt: (1) B.R.’s alleged “furtive movements”; (2) B.R.’s “incriminating” comment; and (3) the handgun’s proximity to B.R.
The testimony regarding B.R.’s “furtive movements” is questionable. Neither shaking nor being visibly nervous is “furtive.” To establish that a suspect has engaged in furtive movements, the act must connote evasion or concealment… The evidence does not indicate that B.R. attempted to conceal anything or that he was being secretive or evasive. It is reasonable to conclude that B.R. was nervous because he was driving a car without a license; moreover, Officer Snow lied to B.R. and informed him that the car—which B.R. did not own— was pertinent to an investigation into domestic violence, and B.R.’s passenger was underage and intoxicated. The descriptions of B.R.’s demeanor fail to establish that B.R. had knowledge of the existence of the firearm.
Next, we address B.R.’s allegedly “incriminating” comment that he “just likes guns.” The State argues that “the factfinder could reasonably conclude that there was no other reason for B.R. to volunteer that he ‘just liked guns’ other than to explain why he had a gun with him.” The State asserts that the statement was volunteered, but our reading of the record shows that conflicting accounts of the statement actually seem to suggest that it was in response to improper questioning from Officer Shinn, a fact recognized by the juvenile court. Moreover, we find no testimony in the record establishing B.R.’s awareness that Officer Snow had discovered a handgun when the alleged statement was made. We find that, in the absence of additional context, the alleged comment does not rise to the level of an “additional circumstance” proving B.R.’s knowledge of the existence of the concealed handgun beyond a reasonable doubt.
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The circumstances here, however, do not demonstrate that B.R. was aware of the handgun despite his proximity. B.R. merely offered to drive his intoxicated friend home and, in the friend’s car, a handgun was hidden in a compartment not readily noticeable. Accordingly, we find that the proximity of the handgun to B.R., standing alone, does not establish that B.R. knew of the handgun’s existence.
The State has identified no other factors to demonstrate B.R.’s knowledge of the handgun. The State failed to provide “additional circumstances” to determine beyond a reasonable doubt that B.R. knew of the concealed handgun. Although the State did prove that B.R. had the capability to exercise “dominion and control” over the concealed handgun, it failed to prove that B.R. possessed the intent to do so. Sargent, 27 N.E.3d at 732-33 (quoting Gray, 957 N.E.2d at 174). Accordingly, the State failed to prove that B.R. constructively possessed the handgun, and, therefore, the evidence is insufficient to sustain B.R.’s adjudication for carrying a handgun without a license. We reverse the adjudication.
Because the evidence is insufficient, we reverse B.R.’s adjudication for carrying a handgun without a license.
Reversed.
Bailey, J., and Robb, J., concur.