Maurice Knight, Sr. v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 19 2016, 6:05 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Craig Persinger Gregory F. Zoeller
Marion, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Maurice Knight, Sr., April 19, 2016
Appellant-Defendant, Court of Appeals Case No.
27A02-1506-CR-517
v. Appeal from the
Grant Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Jeffrey D. Todd, Judge
Trial Court Cause No.
27D01-1301-FB-7
Kirsch, Judge.
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[1] Maurice Knight, Sr. (“Knight”) was convicted after a jury trial of unlawful
possession of a firearm by a serious violent felon (“SVF”),1 a Class B felony,
and was sentenced to eighteen years executed. He appeals and raises the
following restated issues for our review:
I. Whether the State presented sufficient evidence to support his
conviction; and
II. Whether his sentence was inappropriate in light of the nature
of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] In January 2013, Morgan Creech (“Creech”) was living with her father at a
residence located on East 27th Street in Marion, Indiana. On January 9, at
approximately 7:00 p.m., Creech was outside in the yard with her boyfriend
when Knight, who lived next door, came to the fence between the properties.
Knight angrily accused Creech of stealing his dog, and his demeanor scared
Creech. Knight placed his hands on the fence and threatened to jump over it
and go into Creech’s house to look for the dog. Creech did not have Knight’s
dog, but offered to allow Knight to come inside the house to look for the dog.
1
See Ind. Code § 35-47-4-5(c). We note that, effective July 1, 2014, a new version of this criminal statute was
enacted. Because Knight committed his crime prior to July 1, 2014, we will apply the statute in effect at that
time.
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Knight declined the offer. Creech called her father, who was not at home at the
time, and informed him of what occurred. He told Creech to call the police, but
she did not as she feared retaliation from Knight. Knight left his home at that
time in a grey cargo van. He was wearing a white stocking hat and was seated
in the passenger seat of the van.
[4] In the meantime, Creech’s father had called the police to report what had
transpired. Marion Police Department Officer Steve Pyle (“Officer Pyle”) and
Sergeant Kenneth Allen (“Sergeant Allen”) arrived at Creech’s residence a few
minutes after Knight left his residence. Creech told the officers about her
encounter with Knight and gave a description of Knight and the grey van.
While Creech was speaking with the officers, a grey van pulled up to the corner
of 27th and Terrace Streets. Officer Pyle asked Creech if the van resembled the
one in which Knight had left, and Sergeant Allen shone his flashlight over the
van. Creech stated that the van was the actual van in which she saw Knight
leave.
[5] The officers got into their marked patrol car and pursued the van in order to
speak with Knight about the incident with Creech. The officers caught up to
the van, and Sergeant Allen activated the car’s lights to initiate a traffic stop.
Before the van stopped, Sergeant Allen twice saw the passenger door of the van
open slightly and then close. The van pulled over to the side of the road and
stopped. As Officer Pyle exited the passenger side of the patrol car, he observed
the passenger door of the van open about twelve to eighteen inches and stay
open for just about a second. Sergeant Allen also saw the passenger door open
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and informed Officer Pyle, who confirmed to Sergeant Allen that he was aware
of it. Officer Pyle walked to the passenger side of the van and yelled several
times for the passenger to open the door and show his hands. Knight
eventually complied and opened the door to exit the van. Officer Pyle ordered
Knight, who was wearing a white stocking hat, to put his hands on the side of
the van, which Knight did. Officer Pyle began to conduct a pat-down search.
[6] As he was patting Knight down, Officer Pyle observed a handgun in the snow
just outside the passenger door and told Sergeant Allen about its presence.
Officer Pyle began to handcuff Knight, who struggled and had to be taken to
the ground. Officer Pyle later retrieved the handgun, which was sticking barrel
first in the snow, with the butt of the gun visible. When the handgun was
recovered from the snow, it did not have any snow on it. The handgun was
determined to be a black, .22 caliber revolver.
[7] The State charged Knight with one count of unlawful possession of a firearm by
a SVF, a Class B felony. A jury trial was held, and Knight was found guilty as
charged. At sentencing, the trial court found Knight’s extensive and “very
significant” criminal history, which included crimes of intimidation and
aggression and multiple probation violations, as an aggravating circumstance.
Tr. at 283. The trial court found no mitigating circumstances and sentenced
Knight to eighteen years executed. Knight now appeals.
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Discussion and Decision
I. Sufficient Evidence
[8] The deferential standard of review for sufficiency claims is well settled. When
we review the sufficiency of evidence to support a conviction, we do not
reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,
928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the
evidence most favorable to the verdict and the reasonable inferences that can be
drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.
2014), trans. denied. We will not disturb the jury’s verdict if there is substantial
evidence of probative value to support it. Id. A conviction may be based upon
circumstantial evidence alone. Boggs, 928 N.E.2d at 864. We will affirm unless
no reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Tooley v. State, 911 N.E.2d 721, 724-25 (Ind. Ct. App. 2009),
trans. denied. As the reviewing court, we respect “the jury’s exclusive province
to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005).
[9] Knight contends that the evidence presented at trial was insufficient to support
his conviction for unlawful possession of a firearm by a SVF. He does not
claim that the State failed to prove that he was a SVF; he only argues that there
was not sufficient evidence to prove that he possessed the handgun discovered
in the snow next to the passenger door of the van. Knight asserts that he did
not have actual possession of the handgun, and there was insufficient evidence
to establish that he had constructive possession of the firearm. He specifically
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alleges that the State did not prove any of the additional circumstances
indicating his knowledge of the presence of the handgun and his ability to
control it.
[10] In order to convict Knight of unlawful possession of a firearm by a SVF, the
State was required to prove beyond a reasonable doubt that he was a SVF who
knowingly or intentionally possessed a firearm. Ind. Code § 35-47-4-5(c).
Knight only contends insufficient evidence was presented to prove that he
possessed the handgun found by Officer Pyle. Possession of contraband need
not be actual but, rather, can be constructive. Mack v. State, 23 N.E.3d 742, 759
(Ind. Ct. App. 2014), trans. denied. In order to establish constructive possession,
the State must show that the defendant had both the intent and capability to
maintain dominion and control over the handgun. Id. When possession of the
premises where the contraband is found is non-exclusive, knowledge of
presence of the contraband may not be inferred absent some additional
circumstances indicating knowledge of the presence of the contraband and the
ability to control it. Gaynor v. State, 914 N.E.2d 815, 819 (Ind. Ct. App. 2009),
trans. denied. Among the recognized “additional circumstances” are: (1)
incriminating statements by the defendant; (2) attempted flight or furtive
gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the
contraband; (5) contraband is in plain view; and (6) location of the contraband
is in close proximity to items owned by the defendant. Id. at 819-20.
[11] Here, the evidence presented showed that Knight was the passenger in the grey
van pursued by the police. Before the van stopped, Officer Pyle observed the
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passenger door open twice, and an inference could be made that Knight was
attempting to discard contraband, such as the handgun at that time. At the
time the van was pulled over on the side of the road, Knight opened the
passenger door approximately twelve to eighteen inches, and the door remained
open for just about a second, which was enough time for Knight to drop the
unlawfully possessed handgun into the snow next to the van. After Office Pyle
was able to get Knight to exit the van, he began to pat him down and
immediately saw the handgun in the snow. The handgun was located just
outside of the passenger door of the van, which was in close proximity to
Knight. Officer Pyle testified that the handgun was in a location that Knight
could have easily reached down, grabbed it, and used it against the officers. Tr.
at 105.
[12] The evidence, therefore, established that the handgun was in close proximity to
Knight, in plain view as Officer Pyle noticed it immediately, and easily
accessible to Knight. Additionally, the handgun had not been in the snow for
any length of time as it was not covered in snow. Further, there were no
footprints in the area where the handgun was discovered. Based on the
evidence presented, the jury could have reasonably inferred that Knight had
both the intent and capability to maintain dominion and control over the
handgun and, thus, had constructive possession of the handgun. We conclude
that the evidence was sufficient to support Knight’s conviction for unlawful
possession of a firearm by a SVF.
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II. Inappropriate Sentence
[13] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by
statute if we deem it to be inappropriate in light of the nature of the offense and
the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.
App. 2014). The question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). It is the defendant’s burden on appeal to persuade the reviewing court
that the sentence imposed by the trial court is inappropriate. Chappell v. State,
966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
[14] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Id. at 1224.
[15] Knight argues that his eighteen-year sentence is inappropriate in light of the
nature of the offense and the character of the offender. Knight concedes that
the trial court properly took his extensive criminal history into consideration
when it sentenced him and that this court may “rightfully conclude that [his]
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criminal history reflects poorly on his character.” Appellant’s Br. at 9. However,
he contends that the nature of his crime involved nothing that “would shock the
conscience of the average person or which could fairly be characterized as
representing the mindset of a hardened criminal.” Id. Knight asserts that the
circumstances of the present case do not lend themselves to an eighteen-year
sentence because no threats of physical harm were made, no weapons were
displayed or used, and his neighbor’s property was never invaded.
[16] Knight was convicted of Class B felony unlawful possession of a firearm by a
SVF. A person who commits a Class B felony shall be imprisoned for a fixed
term of between six and twenty years, with the advisory sentence being ten
years. Ind. Code § 35-50-2-5. Here, the trial court sentenced Knight to eighteen
years executed.
[17] Looking to the nature of the offense, this case began when Knight aggressively
confronted his neighbor, Creech, about his missing dog. After the police were
called and were able to stop Knight, they observed that he was in constructive
possession of a handgun that he had discarded from the passenger door of the
van. Although Knight was not in actual possession of the handgun when the
police approached him, Officer Pyle testified that the handgun was located in
close proximity to Knight and that Knight could have easily reached down,
grabbed it, and used it against the officers. Tr. at 105. It was also proven at
trial that Knight was a SVF as he had a prior conviction for attempted robbery,
the commission of which made him a SVF. Ind. Code § 35-47-4-5(a)(2),
(b)(12).
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[18] Considering Knight’s character, he has an extensive criminal history that
includes crimes of aggression, violence, and intimidation. As a juvenile, Knight
had seven adjudications for offenses such as incorrigibility, battery, and
possession of a handgun. As an adult, Knight has been convicted of eleven
felonies, twenty-six misdemeanors, and nine probation violations. Many of
Knight’s convictions are for domestic battery, invasion of privacy, intimidation,
or battery. As evidenced by this lengthy history of criminal convictions, Knight
has been committing crimes the majority of his adult life. His criminal history
demonstrates his unwillingness and inability to lead a law-abiding life and his
contempt for the law and the authority of the court. Knight’s past convictions
have not caused him to change his behavior, and he continued to commit
criminal offenses even after being arrested for the present offense. Knight’s
character does not support a determination that his sentence is inappropriate.
We, therefore, conclude that Knight’s sentence is not inappropriate in light of
the nature of the offense and the character of the offender.
[19] Affirmed.
[20] Mathias, J., and Brown, J., concur.
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