Russell A. Prosser, Jr. v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Oct 23 2015, 8:45 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
Alexander L. Hoover Gregory F. Zoeller
Law Office of Christopher G. Walter, Attorney General of Indiana
PC
Nappanee, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Russell A. Prosser, Jr., October 23, 2015
Appellant-Defendant, Court of Appeals Case No.
50A05-1502-CR-51
v. Appeal from the Marshall Superior
Court
State of Indiana, The Honorable Michael W. Reed,
Appellee-Plaintiff Special Judge
Trial Court Cause No.
50D02-1312-FB-76
Crone, Judge.
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Case Summary
[1] Russell A. Prosser, Jr., appeals his convictions for eleven criminal counts
following two separate jury trials. 1 He contends that the trial court abused its
discretion in admitting a witness’s in-court identification of him and that the
evidence is insufficient to support his convictions. Finding that Prosser has
waived his challenge to the in-court identification and that the evidence is
sufficient, we affirm.
Facts and Procedural History
[2] A summary of the convoluted factual background of this case is as follows. On
December 8, 2013, Ed Quella returned from work to his Culver home shortly
after 10:00 p.m. Quella noticed that the motion detector light for his garage had
been activated. When Quella looked out his window, he saw a person,
approximately his height and wearing a white hooded coat or hoodie, walk
from his property into a neighbor’s yard. Quella called the Culver Academy
Security Department. He spoke with a security officer who then directed him
to the Culver Police Department (“CPD”). Quella reported what he saw to
CPD Officer Troy Ulch. Officer Ulch responded to the scene.
[3] Quella informed Officer Ulch that he saw the person in the white hoodie travel
north. Officer Ulch began following footprints in the snow which led between
various residences, to several garages, to a business, and to the driver’s side of
1
Prosser was additionally found to be a habitual offender.
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four different cars at one residence and two additional cars parked in the street.
Officer Ulch surmised that the individual leaving the trail of footprints was
checking car doors to see if they were unlocked.
[4] Officer Ulch continued searching and eventually encountered Cole Flora
standing outdoors next to his vehicle. Flora, a resident of Quella’s
neighborhood, reported to Officer Ulch that he had been sitting inside his
vehicle smoking a cigarette, when he observed a man in a white hooded
sweatshirt approach his car. The man, later identified as Prosser, appeared to
be trying to look through the tinted windows to see if anyone or anything was
inside. When Flora opened his car door, Prosser jumped back. Flora spoke to
Prosser and told him that his behavior was “very sketchy.” Tr. Vol. I at 51.
When Flora inquired about what Prosser was doing, Prosser told Flora that he
was just “running from his old lady.” Id. Shortly after Prosser walked away,
Officer Ulch came down Flora’s street with the spotlight on his police vehicle
illuminated. Flora flagged Officer Ulch down, reported his encounter with
Prosser, and pointed Officer Ulch in the direction that Prosser had fled.
[5] Officer Ulch followed more footprints and quickly came upon a man in a white
hoodie who was carrying a bag thrown over his shoulder. When Officer Ulch
asked the man in the white hoodie if he could speak to him, the man took off
running. Officer Ulch chased the man but eventually lost sight of him after the
man climbed and jumped over a fence. Several police officers arrived at the
scene and started going door to door at an apartment complex around the area
where the man was last spotted. One resident reported that a tan pickup truck
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equipped with a ladder rack, that he had never seen before, had been parked
outside all evening and that he observed a person enter the truck and leave the
complex while the officers were searching. The resident reported that the
person in the truck was wearing a hood. Officer Ulch returned to the fence that
the man he was chasing had climbed and found numerous items strewn about
in the snow. Officer Ulch photographed and collected the items.
[6] At approximately 4:30 a.m. on December 9, 2013, Marshall County Police
Officer Nicholas Laffoon observed a tan pickup truck equipped with a ladder
rack in the parking lot of a McDonald’s restaurant in La Paz. The vehicle’s
engine was running and Prosser, who was wearing a white hoodie, was asleep
in the driver’s seat. Believing that this truck was relevant to an investigation
being conducted by the CPD, Officer Laffoon began taking pictures. Among
other things, Officer Laffoon observed a .22 caliber rifle located in the bed of
the truck. Officer Laffoon woke Prosser and quickly asked him whose rifle was
in the truck bed. Prosser, apparently fully aware of the presence of the firearm,
simply stated that the rifle was owned by his roommate. Other officers who
arrived on the scene asked Prosser if they could see the bottom of his boots.
The pattern on the bottom of Prosser’s boots appeared to match the footprints
left earlier all around the Culver neighborhood.
[7] After running a criminal background check on Prosser, officers arrested him for
being in possession of a firearm. Officers then obtained a search warrant for the
truck. Officers found a flintlock pistol under the driver’s seat and additional
items that belonged to a resident of the Culver neighborhood. Later that day,
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CPD took several reports from residents of the Culver neighborhood claiming
that they were missing items from their cars. The State charged Prosser with
sixteen criminal counts which included two counts of class B felony unlawful
possession of a firearm by a serious violent felon, one count of class D felony
receiving stolen property, one count of class A misdemeanor resisting law
enforcement, six counts of class D felony theft, and six counts of class B
misdemeanor unauthorized entry of a vehicle.
[8] On September 3, 2014, the trial court granted Prosser’s motion for severance
requesting separate trials on the firearm possession charges and the other
charges. The first jury trial on was held on October 28-29, 2014. The jury
found Prosser guilty of class D felony receiving stolen property, class A
misdemeanor resisting law enforcement, four counts of class D felony theft, and
four counts of class B misdemeanor unauthorized entry of a vehicle. The
second jury trial was held on February 18, 2015. The jury found Prosser guilty
of unlawful possession of a firearm by a serious violent felon regarding the .22
caliber rifle and not guilty of unlawful possession of a firearm by a serious
violent felon regarding the flintlock pistol. The jury also found Prosser to be a
habitual offender. This appeal followed.
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Discussion and Decision
Section 1 – Prosser’s challenge to the trial court’s admission of
Flora’s in-court identification is waived.
[9] Prosser first asserts that the trial court abused its discretion in admitting Flora’s
in-court identification of Prosser as the individual dressed in a white hoodie
whom he observed and spoke with outside his car on December 8, 2013.
Specifically, Prosser contends that Flora’s in-court identification was tainted
because the procedure employed by the police during a pretrial identification
was unduly suggestive. Our review of the record reveals that Prosser did not
object to Flora’s in-court identification of him. As a result, Prosser’s claim is
waived. 2 See Miles v. State, 764 N.E.2d 237, 239 (Ind. Ct. App. 2002) (holding
that defendant’s claim regarding inadmissibility of in-court identification due to
impermissibly suggestive pretrial identification tactics was waived because
defendant failed to lodge contemporaneous objection to in-court identification),
trans. denied.
2
Waiver notwithstanding, as observed by the State, Flora merely identified Prosser as the same individual in
the white hooded sweatshirt whom he encountered, spoke with, and accused of acting “sketchy” on the night
in question. Tr. Vol. I at 51. Flora did not testify that he saw Prosser commit any crime. Rather, his
testimony simply placed Prosser in the vicinity of the crimes and explained how the police began
investigating Prosser’s possible involvement. In light of the substantial evidence linking Prosser to the
crimes, any error in the admission of Flora’s identification would have been harmless. See Ransnick v. State, 2
N.E.3d 17, 27 (Ind. Ct. App. 2013) (an error in the admission of evidence is disregarded as harmless if there
is substantial independent evidence of guilt satisfying reviewing court that there is no substantial likelihood
that the challenged evidence contributed to the conviction), trans. denied (2014).
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Section 2 – Sufficient evidence supports Prosser conviction for
unlawful possession of a firearm by a serious violent felon.
[10] Prosser next challenges the sufficiency of the evidence to support his conviction
for class B felony unlawful possession of a firearm by a serious violent felon
regarding the .22 caliber rifle. 3 When reviewing the sufficiency of the evidence
to support a conviction, we examine only the probative evidence and
reasonable inferences that support the conviction. Morgan v. State, 22 N.E.3d
570, 573 (Ind. 2014). We do not assess witness credibility or reweigh evidence.
Id. Rather, we consider only the evidence most favorable to the verdict and will
affirm the conviction unless no reasonable factfinder could find the elements of
the crime proven beyond a reasonable doubt. Id. The evidence will be deemed
sufficient if an inference may reasonably be drawn from it to support the
conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).
[11] Indiana Code Section 35-47-4-5(c) provides that a serious violent felon who
knowingly or intentionally possesses a firearm commits class B felony unlawful
possession of a firearm by a serious violent felon. Prosser concedes that he is a
serious violent felon as defined by Indiana Code Section 35-47-4-5(a), and
challenges only the sufficiency of the evidence regarding the element of
possession.
3
As noted earlier, Prosser was found not guilty of class B felony unlawful possession of a firearm by a serious
violent felon regarding the flintlock pistol found in the truck.
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[12] Possession of a firearm can be actual or constructive. Tate v. State, 835 N.E.2d
499, 511 (Ind. Ct. App. 2005), trans. denied. Actual possession occurs when a
person has direct and physical control over the firearm, and constructive
possession occurs when a person has the intent and capability to maintain
control over the firearm. Id. When the State cannot show actual possession, a
conviction may rest on proof of constructive possession. Gray v. State, 957
N.E.2d 171, 174 (Ind. 2011).
[13] To prove the intent element of constructive possession, the State must
demonstrate the defendant’s knowledge of the presence of the contraband.
Perry v. State, 956 N.E.2d 41, 61 (Ind. Ct. App. 2011). Knowledge may be
inferred from the exclusive dominion and control over the premises containing
the contraband. Id. The capability requirement is met when the State shows
that the defendant is able to reduce the contraband to the defendant’s personal
possession. Id. As acknowledged by Prosser, this Court has previously noted
five types of evidence that the State may use to demonstrate constructive
possession of a firearm, namely, (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. Deshazier v.
State, 877 N.E.2d 200, 206 (Ind. Ct. App. 2007), trans. denied (2008).
[14] Here, Prosser’s exclusive dominion and control of the vehicle in which the rifle
was found is undisputed. He was the sole occupant of the truck, and he was
found asleep in the driver’s seat while the truck’s engine was still running.
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Although some items were piled above the rifle in the truck bed, the firearm
was located just a few feet behind Prosser and was clearly visible and accessible
from outside the truck. When awakened and questioned by police officers,
Prosser immediately admitted that he was fully aware of the presence of the
rifle but simply claimed that it belonged to his roommate. Finally, two
witnesses testified regarding incriminating statements that Prosser made to
them in which he bragged that he had brought the rifle with him in the truck for
use during a drug deal but that he did not believe that the State could prove his
possession of the rifle.
[15] From this evidence and the reasonable inferences arising therefrom, a
reasonable trier of fact could conclude both that Prosser had knowledge of the
presence of the rifle and that the rifle could readily be reduced to his personal
possession. Accordingly, a reasonable factfinder could find beyond a
reasonable doubt that Prosser constructively possessed the rifle. The State
presented sufficient evidence to support his conviction for class B felony
unlawful possession of a firearm by a serious violent felon.
Section 3 – Sufficient evidence supports Prosser’s remaining
convictions.
[16] In an extremely cursory manner, Prosser challenges the sufficiency of the
evidence to support his remaining ten convictions. Indiana Appellate Rule
46(A)8)(a) requires the argument section of a brief to contain the contentions of
the appellant on the issues presented supported by cogent reasoning and
citations to the authorities, statutes, and the appendix or parts of the record on
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appeal relied on. Indeed, an appellate brief should not only present issues to be
decided on appeal, but it should also be of material assistance to the court in
deciding those issues. Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App.
2012), trans. denied. Prosser has failed in this regard. His arguments are neither
crime-specific nor especially cogent, which is troubling here because he is
challenging ten different convictions involving different crimes and victims.
Nevertheless, we can summarize his bald assertions as an overall request for
this Court to reweigh the evidence in his favor which we will not do. See
Morgan, 22 N.E.3d at 573. Therefore, we affirm his convictions.
[17] Affirmed.
May, J., and Bradford, J., concur.
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