Theodore Briscoe v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 16 2018, 10:06 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James A. Edgar Curtis T. Hill, Jr.
J. Edgar Law Offices, Prof. Corp. Attorney General of Indiana
Indianapolis, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Theodore Briscoe, May 16, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1709-CR-2327
v. Appeal from the Marion Superior
Court
The Honorable Alicia Gooden,
State of Indiana, Judge
The Honorable Richard
Appellee-Plaintiff
Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1602-F5-4552
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 1 of 11
[1] Theodore Briscoe appeals his convictions of Level 6 felony resisting law
enforcement by operation of a vehicle 1 and Level 5 felony carrying a handgun
without a license after having been convicted of a felony within the previous
fifteen years. 2 He argues the State did not present sufficient evidence to prove
he committed these crimes. 3 We affirm.
Facts and Procedural History
[2] In the evening of February 1, 2016, Officer Matthew Minnis observed a vehicle
turn without signaling. He checked the license plate of the vehicle and
discovered it was stolen. After calling for backup, Officer Minnis activated his
emergency lights and air horn. Instead of stopping, the vehicle accelerated and
a high-speed chase ensued through residential areas of northwest Indianapolis.
[3] The chase ended when the vehicle struck a house. Officer Minnis and Officer
Craig Solomon helped pull Briscoe out of the car. The officers placed Briscoe
on his stomach on the ground. Officer Minnis testified there was nothing on
the ground when they placed Briscoe on the ground. Officer Minnis testified
Briscoe initially refused to put his hands behind his back, kept his hand
“directly under the center of his body towards his belt line[,]” (Tr. Vol. II at 18),
1
Ind. Code § 35-44.1-3-1(b)(1) (2014).
2
Ind. Code § 35-47-2-1(e)(2)(B) (2014).
3
Briscoe was also convicted of Class A misdemeanor resisting law enforcement, but he does not challenge
that conviction.
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and “approximately in 10 or 15 seconds of pulling out his hands we were able
to get his hands behind his back, handcuffed him and at that time we rolled him
over to search his person and that’s where we located the small black
handgun[.]” (Id. at 17.)
[4] On February 4, 2016, the State charged Briscoe with Class A misdemeanor
carrying a handgun without a license, 4 Class A misdemeanor resisting law
enforcement, 5 and Level 6 felony resisting law enforcement by using a vehicle.
The handgun charge was later enhanced to a Level 5 felony by virtue of
Briscoe’s 2009 felony conviction. Briscoe’s jury trial commenced August 17,
2017, and the jury returned guilty verdicts as to all charges. On September 19,
2017, the trial court entered convictions accordingly and sentenced Briscoe to
six years incarcerated for the Level 5 felony handgun conviction to run
consecutive to two years incarcerated for Level 6 felony resisting law
enforcement. Those sentences were to run concurrent to one year incarcerated
for Class A misdemeanor resisting law enforcement, for an aggregate sentence
of eight years incarcerated.
Discussion and Decision
4
Ind. Code § 35-47-2-1(e) (2014).
5
Ind. Code § 35-44.1-3-1(a) (2014).
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[5] When reviewing sufficiency of the evidence in support of a conviction, we will
consider only probative evidence in the light most favorable to the trial court’s
judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The
decision comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the fact-finder. Id.
[6] We do not assess the credibility of the witnesses or reweigh the evidence in
determining whether the evidence is sufficient. Drane v. State, 867 N.E.2d 144,
146 (Ind. 2007). Reversal is appropriate only when no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt. Id.
Thus, the evidence is not required to overcome every reasonable hypothesis of
innocence and is sufficient if an inference reasonably may be drawn from it to
support the verdict. Id. at 147.
Level 6 Felony Resisting Law Enforcement
[7] To prove Briscoe committed Level 6 felony resisting law enforcement by
operation of a vehicle, the State had to present evidence Briscoe (1) forcibly
resisted, obstructed, or interfered with Officer Minnis while Officer Minnis was
lawfully engaged in his duties as a law enforcement officer; (2) used a vehicle to
commit the offense; and (3) operated the vehicle in such a way to create a
substantial risk of bodily injury to another person. Ind. Code § 35-44.1-3-
1(b)(1) (2014). Briscoe argues the State did not prove: (1) Briscoe forcibly
resisted Officer Minnis, or (2) Briscoe was the driver of the vehicle.
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“Forcibly”
[8] Briscoe relies primarily on our Indiana Supreme Court’s decision in Spangler v.
State, 607 N.E.2d 720 (Ind. 1993). In that case, an officer attempted to perfect
service on Spangler, and Spangler walked away from the officer. The officer
followed Spangler, who continued to walk away. Based on that encounter, a
jury found Spangler guilty of Class A misdemeanor resisting law enforcement.
Id. at 722. Our Indiana Supreme Court was called upon to interpret the word
“forcibly” as used in the statute governing resisting law enforcement.
[9] Our Indiana Supreme Court held, “one ‘forcibly resists’ law enforcement when
strong, powerful, violent means are used to evade a law enforcement official’s
rightful exercise of his or her duties.” Id. at 723. Based thereon, the Court
concluded:
There was no strength, power, or violence directed towards the
law enforcement official. There was no movement or threatening
gesture made in the direction of the official. Spangler repeatedly
and firmly refused to accept service of process, then walked
away. Looking at the evidence favorable to the verdict, there is
no evidence of any “forcible” actions that the charged crime
prohibits.
Id. at 724-5. Briscoe contends while the State presented evidence he fled in a
vehicle, it did not present evidence he took any action “directed toward” Officer
Minnis.
[10] However, our Indiana Supreme Court later held:
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[N]ot every passive - or even active - response to a police officer
constitutes the offense of resisting law enforcement, even when
that response compels the officer to use force. Instead, a person
“forcibly” resists, obstructs, or interferes with a police officer
when he or she uses strong, powerful, violent means to impede
an officer in the lawful execution of his or her duties. But this
should not be understood as requiring an overwhelming or
extreme level of force. The element may be satisfied with even a
modest exertion of strength, power, or violence. Moreover, the
statute does not require commission of a battery on the officer or
actual physical contact - whether initiated by the officer or the
defendant. It also contemplates punishment for the active threat
of such strength, power, or violence when that threat impedes the
officer’s ability to lawfully execute his or her duties.
Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013).
[11] Here, Briscoe used an SUV to flee from Officer Minnis at a high rate of speed.
He drove in a residential area, leaving the street and going into “grassy areas[,]”
(Tr. Vol. II at 9), where Officer Minnis could not follow him. The pursuit
ended only when Briscoe struck a house. Briscoe’s actions far exceeded those
he contends are comparable in Spangler. Briscoe used a large vehicle at a high
rate of speed to resist, obstruct, and interfere with Officer Minnis’ exercise of his
duties. See Mason v. State, 944 N.E.2d 68, 71 (Ind. Ct. App. 2011) (conviction of
resisting law enforcement using a vehicle affirmed based on evidence police
asked Mason to stop, but Mason drove away from officers at a high rate of
speed and crashed into multiple vehicles before being tased by officers), trans.
denied. Briscoe’s argument to the contrary is an invitation for us to reweigh the
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evidence, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court
cannot reweigh evidence).
Driver of Vehicle
[12] Briscoe also argues the State did not present sufficient evidence he was the
driver and sole occupant of the vehicle. Briscoe points to testimony he asserts
proves “Briscoe’s position in the vehicle is not consistent with the claim that he
was the driver.” (Br. of Appellant 14.) Officer Minnis testified Briscoe was
“laying [sic] across the front seats, his hip area just about centered in the front
seat area, his legs were in the passenger side -- his upper body was in the driver
side area with [sic] his hands were slightly outside the window.” (Tr. Vol. II at
15.)
[13] Briscoe contends there was another person in the vehicle, but that person left
the scene prior to Officer Minnis and Officer Solomon’s arrival at the location
where the vehicle came to rest. Briscoe argues Officer Minnis did not see this
person because the nature of the chase, in that Briscoe was able to cross grassy
areas in an SUV and Officer Minnis was unable to do so in his patrol car,
meant there were moments when Officer Minnis could not see the car.
However, Officer Minnis testified he observed “a silhouette of a single occupant
in the vehicle,” (id. at 5), when he first attempted to pull over Briscoe. When
Officer Minnis arrived at the crash scene, he did not see footprints leading away
or “clues or inclination of there being anybody else in the vehicle.” (Id. at 16.)
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[14] Briscoe’s alternate version of the incident is an invitation for us to reweigh the
evidence and judge the credibility of witnesses, which we cannot do. See Drane,
867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the
credibility of witnesses). We therefore conclude the State presented sufficient
evidence Briscoe committed Level 6 felony resisting law enforcement using a
vehicle. See Mason, 944 N.E.2d at 71 (conviction of resisting law enforcement
using a vehicle affirmed based on evidence police asked Mason to stop, but
Mason drove away from officers at a high rate of speed and crashed into
multiple vehicles before being tased by officers).
Level 5 Felony Possession of a Handgun without a License
[15] To prove Briscoe committed Level 5 felony possession of a handgun without a
license after having been convicted of a felony within the previous fifteen years,
the State had to present evidence Briscoe (1) possessed a handgun; (2) without a
license; (3) after having been convicted of a felony within the last fifteen years.
Ind. Code § 35-47-2-1(e)(2)(B) (2014). Briscoe argues the State did not prove he
knowingly exercised control over the handgun, in part because a fingerprint on
the magazine of the weapon did not match Briscoe’s fingerprint.
[16] Possession of an item may be either actual or constructive. Henderson v. State,
715 N.E.2d 833, 835 (Ind. 1999). “Actual possession occurs when a person has
direct physical control over the item.” Id. Constructive possession occurs when
someone has “the intent and capability to maintain dominion and control over
the item.” Id. The parties do not argue Briscoe had actual possession of the
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handgun. Instead, Briscoe argues the State did not present sufficient evidence
he constructively possessed the handgun at issue.
[17] As we have explained:
In order to prove constructive possession, the State must show
that the defendant has both (1) the intent to maintain dominion
and control and (2) the capability to maintain dominion and
control over the contraband. To prove the intent element, the
State must demonstrate the defendant’s knowledge of the
presence of the contraband, which may be inferred from either
the exclusive dominion and control over the premises containing
the contraband or, if the control is non-exclusive, evidence of
additional circumstances pointing to the defendant’s knowledge
of the presence of the contraband. The capability requirement is
met when the State shows that the defendant is able to reduce the
contraband to the defendant’s personal possession. Proof of a
possessory interest in the premises in which contraband is found
is adequate to show the capability to maintain control and
dominion over the items in question.
Iddings v. State, 772 N.E.2d 1006, 1015 (Ind. Ct. App. 2002), trans. denied.
Additional circumstances that support finding a defendant had the intent and
capability to maintain dominion and control over contraband kept in non-
exclusive premises include: “(1) incriminating statements by the defendant; (2)
attempted flight or furtive gestures; (3) proximity of the firearm to the
defendant; (4) location of the firearm within the defendant’s plain view; and (5)
the mingling of a firearm with other items owned by the defendant.” Causey v.
State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004).
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[18] Here, Officer Minnis testified he and Officer Solomon looked around the
vehicle prior to placing Briscoe on the ground after extracting him from the
vehicle because “[w]e [did] not want to injure either the suspect ourselves and
put them on the [sic] something that that [sic] could cause either one was [sic]
harm.” (Tr. Vol. II at 16.) He stated there was nothing on the ground and
nothing on the grass when he and Officer Solomon placed Briscoe on the
ground. Officer Minnis did not see the handgun until after he rolled Briscoe
onto his back once Briscoe was handcuffed. Additionally, the State presented
evidence that after the officers extricated him from the vehicle, Briscoe “turned
his hand toward the center of his body about the belt line and held them [sic]
there forcibly for about 15 to 20 seconds . . . Officer Minnis and [Officer
Solomon] had to apply a considerable amount of force to force his hands out
from under his body[.]” (Id. at 70-1.)
[19] Briscoe’s alternate version of the incident, in which the gun was present in the
front yard of the home he happened to crash into at the end of a high speed
chase prior to his arrest is an invitation for us to reweigh the evidence, which
we cannot do. See Drane, 867 N.E.2d at 146 (appellate court cannot reweigh
evidence or judge the credibility of witnesses). The State presented evidence the
handgun was found under Briscoe when there was nothing on the ground prior
to his occupancy of that space and evidence Briscoe refused to remove his
hands from under his body and had to be forced to do so. We conclude the
State presented sufficient evidence Briscoe constructively possessed the
handgun. See Deshazier v. State, 877 N.E.2d 200, 208 (Ind. Ct. App. 2007)
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(constructive possession of a handgun proven based on Deshazier’s furtive
gestures, flight from officers, and sitting on the gun), trans. denied.
Conclusion
[20] The State presented sufficient evidence Briscoe committed Level 6 felony
resisting law enforcement using a vehicle and Level 5 felony possession of a
handgun without a license after having been convicted of a felony within the
last fifteen years. Accordingly, we affirm.
[21] Affirmed.
Riley, J., and Mathias, J., concur.
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