Lonnie Garner v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this May 14 2018, 10:28 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L Bailey Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Lee M. Stoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lonnie Garner, May 14, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1711-CR-2543
v. Appeal from the Marion Superior
Court.
The Honorable Elizabeth Christ,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
49G24-1509-F6-34661
Darden, Senior Judge
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Statement of the Case
[1] Lonnie Garner appeals his conviction by jury of criminal mischief, a Class B
1
misdemeanor. We affirm.
Issue
[2] Garner raises one issue, which we restate as: whether there is sufficient
evidence to sustain his conviction.
Facts and Procedural History
[3] On the night of September 27, 2015, Officer Michael Deskins of the
Indianapolis Metropolitan Police Department (IMPCL) was sitting in his
marked patrol car in a parking lot, writing a report. He saw a van drive through
a red light while speeding. Deskins followed the van and activated his red and
blue emergency lights.
[4] The driver of the van, who was later identified as Garner, stopped the van, but
he did not put the transmission in park or turn off the engine. From his car,
Deskins activated a spotlight and saw Garner’s face as Garner looked into a
rearview mirror. There was another person in the van as well.
[5] Officer Deskins thought that Garner might be preparing to flee and radioed
other officers to place them on alert. Next, Deskins got out of his car, but as he
1
Ind. Code § 35-43-1-2(a) (2014).
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approached the van, Garner slowly drove away. Deskins returned to his car
and gave chase as Garner accelerated. Deskins also activated his siren and
requested assistance from other officers.
[6] Garner made several sudden turns in an attempt to throw off pursuit.
Eventually, Officer Deskins’ supervisor ordered Deskins to stop chasing Garner
because Garner was driving toward an area where many pedestrians might be
present. Deskins turned off his emergency lights and siren but continued to
follow Garner as he drove through an alley. After several seconds Deskins saw
a large flash, followed by the sound of a loud crash. The top of a utility pole
was on fire, and a power line had fallen to the ground.
[7] As Officer Deskins arrived at the scene, he saw that “an IPL light pole” had
fallen to the ground, pulling down power lines with it. Tr. Vol. II, p. 44. In
addition, a service line that had connected the pole to a nearby house had been
pulled away from the house, tearing off a portion of the house’s exterior wall.
The van had collided with a parked vehicle, a white SUV, after hitting the pole.
The van was empty. Residents of nearby houses came outside, but Deskins
warned them to stay back because the downed power lines were still live.
[8] Next, one of Deskins’ fellow officers notified him by radio that the officers had
detained two suspects. He walked to the officers’ location and saw Garner in
handcuffs. Later, an “IPL utility truck” arrived at the alley and deactivated the
downed power lines. Id. at 46.
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[9] The State charged Garner with resisting law enforcement as a Level 6 felony,
two counts of criminal mischief (one for the damaged utility pole and power
lines, another for the damaged house), both as Class A misdemeanors, and one
count of leaving the scene of an accident as a Class B misdemeanor. The case
was tried to a jury.
[10] After the State rested its case, Garner moved for a directed verdict. The trial
court reduced the criminal mischief counts to Class B misdemeanors. In
addition, the trial court dismissed the charge of leaving the scene of an accident.
The jury determined Garner was guilty of resisting law enforcement and the
two counts of criminal mischief. The trial court imposed a sentence, and
Garner now appeals his conviction of Count II, criminal mischief, for damaging
the utility pole and power lines.
Discussion and Decision
[11] Garner challenges the sufficiency of the evidence to support one of his
convictions of criminal mischief. When an appellate court reviews the
sufficiency of the evidence needed to support a criminal conviction, it neither
reweighs evidence nor judges the credibility of witnesses. Tin Thang v. State, 10
N.E.3d 1256, 1258 (Ind. 2014). It is the fact-finder’s role, not that of appellate
courts, to assess witness credibility and weigh the evidence. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). Thus, appellate courts consider only the probative
evidence, and reasonable inferences drawn from the evidence, that support the
judgment. Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). We will uphold
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a conviction if there is substantial evidence of probative value from which a
fact-finder could have found the defendant guilty beyond a reasonable doubt.
Murray v. State, 761 N.E.2d 406, 408 (Ind. 2002). A conviction may be
sustained based on circumstantial evidence alone. Lindhorst v. State, 90 N.E.3d
695, 701 (Ind. Ct. App. 2017).
[12] To obtain a conviction for criminal mischief as a Class B misdemeanor as
charged, the State was required to prove beyond a reasonable doubt that: (1)
Garner (2) recklessly, knowingly, or intentionally (3) damaged or defaced
power lines and a utility pole belonging to Indianapolis Power and Light (IPL)
(4) without the consent of IPL. Ind. Code § 35-43-1-2.
[13] Garner does not dispute striking the utility pole, thereby damaging it and the
attached power lines. He instead claims the State failed to present direct
evidence to prove the pole and lines belonged to IPL. Garner did not raise the
issue of ownership of the utility pole during trial or in his closing argument to
the trial court and jury. Further, there is no evidence in the record that Garner
specifically moved the trial court, pursuant to Trial Rule 50, for judgment on
the evidence or directed verdict regarding the State’s alleged lack of proof of
ownership of the pole. To the contrary, during closing arguments he described
the utility pole and power lines as “IPL property.” Tr. Vol. II, p. 136.
[14] The three primary indicia of ownership of personal property are title,
possession, and control. Womack v. State, 738 N.E.2d 320, 324 (Ind. Ct. App.
2000), trans. denied. Officer Deskins, without objection, testified at trial and
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identified the utility pole as belonging to IPL. Garner now argues on appeal
that the State failed to establish a basis for the officer to know who owned the
pole. We disagree. Deskins had been an IMPD officer for several years and
had ample opportunity to learn who owned utility poles and power lines in his
patrol area. In addition, it is undisputed that Deskins was at the scene of the
incident and observed an IPL truck arrive at the alley to turn off the power to
the downed lines. The jury, consisting of citizens from Marion County, could
reasonably infer IPL’s ownership of the pole and the power lines from IPL’s
attempt to mitigate the harm caused by the downed power lines. The State
provided sufficient circumstantial evidence of IPL’s ownership of the utility
pole and power lines, and Garner’s claim must fail.
Conclusion
[15] For the reasons stated above, we affirm the judgment of the trial court.
[16] Affirmed.
Mathias, J., and Brown, J., concur.
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