Devonne Mosley v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
May 06 2019, 10:24 am
regarded as precedent or cited before any
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
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Devonne Mosley, May 6, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2871
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Helen Marchal,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G15-1803-F6-9400
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Devonne Mosley (Mosley), appeals her conviction for
pointing a firearm, a Class A misdemeanor, Ind. Code § 35-47-4-3(b).
[2] We dismiss.
ISSUE
[3] Mosley presents one issue on appeal, which we restate as: Whether the State
proved beyond a reasonable doubt that she committed the offense of pointing a
firearm.
FACTS AND PROCEDURAL HISTORY
[4] Mosley and Walter Parker (Parker) dated for seven years and had a child
together. Their relationship ended sometime in the fall of 2017. On March 12,
2018, Parker and his friend K.B. went shopping at the City Gear on Pendleton
Pike in Indianapolis. Someone associated with Mosley alerted Mosley to their
presence at the store. When Parker and K.B. exited City Gear to return to
Parker’s car in the parking lot, Mosley drove up quickly in her SUV and parked
next to Parker’s car. In the backseat of Mosley’s SUV were Mosley’s child with
Parker as well as two other children. Mosley exited her SUV and began
shouting at K.B. Parker told K.B. to get in his car and lock the doors, which
she did.
[5] Mosley tried all of the doors of Parker’s car but found them to be locked. She
then returned to her SUV and retrieved a nine-millimeter handgun. Mosley
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banged on the window of Parker’s car and ordered K.B. to exit. Mosley then
went to the front of Parker’s car and pointed the handgun at K.B. through the
windshield, again ordering her to exit the car. Mosley pointed the handgun at
K.B. intermittently for four-to-five minutes. Eventually, a woman told Mosley
to return to her SUV. Parker and K.B. fled in his car, and Mosley left the scene
in her SUV. A citizen who witnessed these events called 911 and provided the
police with Mosley’s license plate number. Parker went home and reported to
police that Mosley had pointed a firearm at him and at K.B.
[6] On March 19, 2018, the State filed an Information, charging Mosley with two
Counts of pointing a firearm as Level 6 felonies. On October 3, 2018, the trial
court conducted Mosley’s jury trial. After hearing the testimony of Parker and
K.B., the jury found Mosley not guilty of pointing a firearm at Parker but guilty
of pointing a firearm at K.B. On November 1, 2018, the trial court conducted
Mosley’s sentencing hearing. Evidence was presented that, as a United States
Postal Service worker, Mosley would lose her employment if convicted of a
felony. The trial court found that, in light of Mosley’s lack of criminal record, it
would enter judgment on the jury’s guilty verdict as a Class A misdemeanor.
The trial court sentenced Mosley to 365 days, all suspended to time-served and
to probation.
[7] Mosley now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
[8] Mosley requests that we review the sufficiency of the evidence supporting her
conviction. The pointing a firearm statute provides that a “person who
knowingly or intentionally points a firearm at another person commits a Level
6 felony. However, the offense is a Class A misdemeanor if the firearm was not
loaded.” I.C. § 35-47-4-3(b). The jury found Mosley guilty of Level 6 felony
pointing a firearm, but the trial court entered judgment of conviction as a Class
A misdemeanor. Mosley argues that the fact of whether the gun she pointed at
K.B. was loaded was at issue and the State did not prove beyond a reasonable
doubt that the gun was loaded. Mosley contends, therefore, that we must
reverse and remand her case to the trial court “with instruction that it enter a
judgment of conviction of the class A misdemeanor.” (Appellant’s Br. p. 10).
The State counters that we should not address Mosley’s claim of insufficiency
of the evidence because it is moot, the trial court having already entered
judgment as a Class A misdemeanor. In her Reply Brief, Mosley contends that
her claim is not moot because her conviction may be viewed as a felony by a
federal court in any future federal prosecutions for being a felon in possession of
a firearm. Thus, we address the threshold issue of whether Mosley’s case is
moot.
[9] Generally, a case is deemed moot when no effective relief can be granted to the
parties before the court. Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). A
moot case is usually dismissed. Id. Our supreme court has recognized that it
may issue advisory opinions in some situations. See Mosley v. State, 908 N.E.2d
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599, 603 (Ind. 2009) (noting that our state constitution does not limit its
authority to “cases and controversies” as our federal Constitution limits the
federal courts). Exceptions to the general rule for mootness are made for
questions of great public interest which raise important policy concerns and are
likely to recur. Id.[10] Here, the trial court already granted the relief sought by Mosley when it
entered judgment of conviction as a Class A misdemeanor. Thus, there is no
further relief which could be granted. Her claim is moot and ordinarily would
be dismissed by this court. Matter of Lawrance, 579 N.E.2d at 37. Mosley does
not attempt to argue that her claim of insufficiency of the evidence supporting
her conviction presents a matter of great public interest, important policy
concerns, or a matter which is likely to recur. In her effort to circumvent the
mootness of her case, Mosley does not provide any directly-applicable legal
authority for her proposition that a federal court may view her conviction as a
felony for purposes of any future prosecutions for the federal crime of being a
felon in possession of a firearm under 18 U.S.C. § 922(g).
[11] Indeed, for purposes of the federal felon in possession of a firearm statute, what
constitutes a prior felony conviction “shall be determined in accordance with
the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. §
921(a)(20); see also U.S. v. Thompson, 117 F.3d 1033, 1034 (7th Cir. 1997), cert.
denied (noting that state law determines whether there is a predicate state-law
conviction). At sentencing, an Indiana trial court may enter judgment of
conviction on a felony as a misdemeanor. I.C. § 35-50-2-7(c). When a trial
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court does so, the misdemeanor constitutes a new and different judgment which
effectively vacates the prior judgment. State v. Reinhart, 112 N.E.3d 705, 715
(Ind. 2018). Thus, under Indiana state law, Mosley’s conviction for Level 6
felony pointing a firearm was extinguished when the trial court entered
judgment as a Class A misdemeanor. Mosley’s argument based on federal law
is not well-taken. Because the trial court already granted the relief sought by
Mosley when it entered judgment as a class A misdemeanor, her case is moot.
CONCLUSION
[12] Based on the foregoing, we conclude that Mosley’s claim is moot and dismiss
this appeal.
[13] Dismissed.
[14] Bailey, J. and Pyle, J. concur
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