Matthew James Cole v. State of Indiana ( 2017 )

FILED
Feb 08 2017, 8:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew James Cole, February 8, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1603-CR-542
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff Rothenberg, Judge
Trial Court Cause No.
49G02-1506-F3-22317
Altice, Judge.
Case Summary
[1] Following a jury trial, Matthew Cole was convicted of Level 3 felony resisting
law enforcement, Level 5 felony possession of an altered handgun, Level 5
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felony possession of methamphetamine, Level 5 felony possession of a narcotic
drug, three counts of class A misdemeanor carrying a handgun without license,
and class A infraction possession of paraphernalia. On appeal, Cole argues that
the State presented insufficient evidence to support a number of his convictions.
[2] We affirm.
Facts & Procedural History
[3] While on patrol during the early evening hours of June 23, 2015, Officer
Timothy Elliott of the Indianapolis Police Department parked his marked
police vehicle on an access road in Washington Park in Indianapolis. Officer
Elliott heard a car engine rev and saw pedestrians leaping out of the way of a
car traveling down the access road at a high rate of speed. Officer Elliott
activated his lights and positioned his vehicle to block the car’s path. When it
reached Officer Elliott’s vehicle, the car came to an abrupt stop.
[4] When Officer Elliott approached the vehicle, he observed two male occupants
and saw a knife near the center console. Officer Elliott asked the driver, who
was later identified as Cole, for his license and registration. Cole had very
contracted pupils and appeared to be nervous. Specifically, Cole would not
look Officer Elliott in the eye, repeatedly looked toward his passenger, stuttered
while answering questions, and was evasive and unable to give specific answers
when asked where he had been and where he was going. Cole gave Officer
Elliott a picture identification card that clearly belonged to someone else. Cole
reached toward the glove box, then stopped and stated that the vehicle belonged
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to his friend and that he did not have the registration. Based on this behavior,
Officer Elliott believed that Cole was under the influence of drugs.
[5] Meanwhile, the passenger, Joshua Dyer, opened the glove box and reached
inside and also reached down toward the floorboard. Officer Elliott ordered
Dyer to keep his hands where he could see them. Dyer gave his identification
to Officer Elliott. As Officer Elliott walked toward the back of the car to get the
license plate number, the car sped away. Officer Elliott immediately called for
backup and got back into his vehicle and began pursuing the car with his lights
and sirens activated.
[6] Cole led Officer Elliott and other responding officers on a high-speed chase,
during which Cole repeatedly crossed into the path of oncoming traffic, failed
to stop at several stop signs, endangered pedestrians, went airborne on at least
two occasions, and reached a top speed of approximately ninety miles per hour.
At the end of the pursuit, Cole drove through the parking lot of a fast food
restaurant, into a residential alley, and came to a stop in a residential backyard
after crashing through a fence.
[7] By the time the car came to a stop, IMPD Officer Derrick Harper had joined
the pursuit. Officer Harper parked his police car beside Officer Elliott in the
driveway of the residence. Officers Elliott and Harper both exited their vehicles
and approached the car with their weapons drawn—Officer Elliott on the
driver-side and Officer Harper on the passenger-side—while shouting
commands for Cole and Dyer to exit the vehicle with their hands up.
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[8] Cole opened the driver-side door and put his hands in the air, but then pulled
the door closed. Dyer opened the passenger-side door with his left hand and
then put his left hand out while keeping his right hand hidden. Dyer then
briefly put his right foot on the ground as if he was going to get out of the car,
but then pulled it back inside. Dyer then started rummaging around on the
floorboard and under his seat, continuing to disregard the officers’ commands
to put his hands up. Officer Harper then observed Dyer, who was bent over
and whose hands were not in view, make a motion with his shoulder that
Officer Harper believed was consistent with cocking a firearm. Dyer then sat
up and began to raise his right elbow as if he had something in his hand. At the
same time, Cole put the car in reverse and accelerated. The car fishtailed first
toward Officer Elliott and then toward Officer Harper, who was trapped
between the accelerating car and the fence. In response to the threat of the
oncoming car and believing that Dyer was armed and preparing to fire on him,
Officer Harper shot and fatally wounded Dyer. Officer Harper was unable to
get a clear shot at Cole, so he did not fire again. Cole continued to accelerate
and only surrendered when the car became stuck on a chain-link fence.
[9] After Cole was taken into custody, police searched the car and discovered three
handguns—a .22 revolver and a 9mm Taurus were found in the glove box and a
Ruger .380 with an obliterated serial number was found on the rear passenger
floorboard. Additionally, a large amount of ammunition and numerous
syringes were found throughout the car. In the center console, police found two
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digital scales, a glass pipe with methamphetamine residue, and a manicure kit
containing a spoon with heroin residue, a razor blade, and .35 grams of heroin.
[10] As a result of these events, Cole was charged as follows: Count I, Resisting
Law Enforcement as a Level 3 felony; Count II, Possession of an Altered
Handgun, a Level 5 felony; Count III, Possession of Methamphetamine as a
Level 5 felony; Count IV, Possession of a Narcotic Drug as a Level 5 felony,
Counts V-VII, Carrying a Handgun Without a License as a class A
misdemeanor; and Count VIII, Possession of Paraphernalia as a class A
infraction.1 A two-day jury trial commenced on November 10, 2016, at the
conclusion of which Cole was found guilty as charged. The trial court
sentenced Cole to an aggregate term of eighteen years, with ten years executed
and eight years suspended to probation. Cole now appeals.
Discussion & Decision
[11] On appeal, Cole argues that the State presented insufficient evidence to support
his convictions. In reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.
State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the
evidence supporting the conviction and the reasonable inferences flowing
therefrom. Id. If there is substantial evidence of probative value from which a
1
Effective July 1, 2015, this offense has been reclassified as a Class C misdemeanor. See Ind. Code § 35-48-4-
8.3.
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reasonable trier of fact could have drawn the conclusion that the defendant was
guilty of the crime charged beyond a reasonable doubt, the judgment will not be
disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It
is not necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007).
1. Resisting Law Enforcement
[12] Cole first challenges his conviction for resisting law enforcement as a Level 3
felony. A person commits resisting law enforcement as a class A misdemeanor
if he or she knowingly or intentionally “forcibly resists, obstructs, or interferes
with a law enforcement officer or a person assisting the officer while the officer
is lawfully engaged in the execution of the officer’s duties[.]” Ind. Code § 35-
44.1-3-1(a)(1). The offense is elevated to a Level 3 felony if, while committing
the offense, “the person operates a vehicle in a manner that causes the death of
another person[.]” I.C. § 35-44.1-3-1(b)(3). On appeal, Cole argues that the
evidence was insufficient to support the elevation of his conviction to a Level 3
felony because the State failed to prove that it was Cole’s operation of the car
that caused Dyer’s death. Instead, he argues that Dyer’s death was caused by
Officer Harper, who shot Dyer in response to Dyer’s own actions in making
furtive movements and refusing to show his hands.
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[13] This court recently discussed causation in the context of the resisting law
enforcement statute in Moore v. State, 49 N.E.3d 1095 (Ind. Ct. App. 2016),
trans. denied. In that case, the court was asked to consider whether the evidence
was sufficient to establish that the defendant had caused the injury sustained by
the arresting officer when he fell down while chasing the fleeing defendant. Id.
at 1106; see also I.C. § 35-44.1-3-1(b)(1)(B) (elevating resisting law enforcement
to a Level 6 felony when the defendant “inflicts bodily injury on or otherwise
causes bodily injury to another person”). The court held that the defendant’s
acts of resistance must be a proximate cause of the injury, and not merely a
contributing cause. Id. at 1107-08. As the court noted, a contributing cause is
“a factor that—though not the primary cause—plays a part in producing a
result.” Id. at 1107 (quoting Abney v. State, 766 N.E.2d 1175, 1178 (Ind. 2002)).
The court described proximate cause as follows:
A finding of proximate cause embodies a value judgment as to
the extent of the physical consequences of an action for which the
actor should be held responsible. Accordingly, “proximate cause
questions are often couched in terms of ‘foreseeability;’ an actor
is not held responsible for consequences which are
unforeseeable.” It follows that, where an intervening cause is
claimed as superseding the defendant’s actions, the intervening
cause must be unforeseeable to relieve the defendant of criminal
liability.
Id. at 1107-08 (quoting Gibbs v. State, 677 N.E.2d 1106, 1109 (Ind. Ct. App.
1997)).
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[14] Applying the proximate cause standard, the majority in Moore found the
evidence insufficient to prove that the defendant’s actions caused the arresting
officer’s injuries. The court noted that the officer would not have been injured
if he had not pursued the defendant, but reasoned that “that fact is only
sufficient to prove that Moore was a contributing cause of the injury” and that
“[t]he actual cause of [the officer's] fall [was] not clear from the record.” Id. at
1108. Judge Bradford dissented, reasoning that the evidence was sufficient to
support a finding of proximate cause because “it is not unreasonable to
anticipate that a consequence of fleeing from the police would be that an officer
could fall and be injured during the ensuing chase.” Id. at 1109 (Bradford, J.,
dissenting).
[15] Cole directs our attention to two additional cases, both of which predate Moore
and neither of which employed the proximate-cause standard. In Whaley v.
State, 843 N.E.2d 1, 10-11 (Ind. Ct. App. 2006), trans. denied, this court held that
the defendant had caused injuries to the arresting officers so as to support the
elevation of his resisting law enforcement charges to class D felonies. In that
case, Whaley was lying on the ground and put his arms underneath his body to
prevent the officers from handcuffing him. The officers had to hit Whaley’s
forearms in order to bring his arms behind his back, and both officers sustained
injuries in the process of doing so. This court held that the convictions were
properly elevated because the officers’ injuries “were directly related to and
caused by Whaley’s resisting arrest.” Id. at 11.
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[16] In Smith v. State, 21 N.E.3d 121, 125-26 (Ind. Ct. App. 2014), however, another
panel of this court found the evidence insufficient to support a finding that the
defendant had inflicted or otherwise caused bodily injury to the arresting officer
as necessary to support the elevation of the crime to a class D felony. In that
case, Smith refused to put her hands behind her back to be handcuffed even
after receiving a “knee strike” from the officer, so the officer pulled her arm
“possibly as hard as [he] could” and they both ended up on the ground. Id. at
123. During this process, the officer sustained injuries to his knuckles and
fingers. In reversing the elevation of Smith’s conviction, the Smith court
reasoned that “we do not believe a person who is thrown to the ground
necessarily ‘inflicts’ or ‘causes’ an injury suffered by the person who throws her
to the ground[.]” Id. at 125. The court went on to distinguish Whaley, noting
that “[u]nlike Whaley, Smith did not create a scenario in which Officer
Jones’[s] only option in handcuffing her was to remove her hands from a
location in which he could not reach.” Id. at 126.
[17] Although Smith and Whaley did not use the language of proximate cause, in
Moore, 49 N.E.3d at 1108, this court noted that those cases may be interpreted
in a manner consistent with that standard.
[I]n Whaley, Whaley was the direct cause of the officers’ injuries
because he left the officers no other choice but to hit his arms. In
terms of proximate cause, this meant that the officers’ injuries
were a highly foreseeable result of Whaley’s actions. In contrast,
in Smith, the officer had other options, and his decision to take
Smith “to the ground” and injure himself was not as foreseeable.
Therefore, although the Smith Court did not frame its decision in
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terms of proximate cause, we interpret the Smith Court’s holding
to imply that Smith’s actions were not a proximate cause of the
officer's injuries.
Id.
[18] Thus, we are brought back to the touchstone of our proximate cause analysis—
foreseeability. Although Cole cites Moore and acknowledges that the proximate
cause standard is controlling, in his analysis, he does not discuss the
foreseeability of the shooting that led to Dyer’s death. Instead, he simply
argues that while his operation of the car might have been a contributing factor,
“[t]he proximate cause of Dyer’s death was the shooting of Dyer by Officer
Harper and Officer Harper pulled that trigger because he thought Dyer was
going to try and shoot him.” Appellant’s Brief at 17. We interpret this as an
argument that an intervening cause—whether it be Officer Harper’s decision to
fire his weapon or Dyer’s furtive gestures and refusal to show his hands—
superseded Cole’s actions. But as we noted above, this court has explained that
an intervening cause must itself be unforeseeable if it is to relieve the defendant
of criminal liability. See Moore, 49 N.E.3d at 1107-08.
[19] The foreseeability of an intervening cause presents a question of fact for the
jury. Marlow v. Better Bars, Inc., 45 N.E.3d 1266, 1275 (Ind. Ct. App. 2015),
trans. denied. Under the circumstances of this case, we conclude that all of the
events Cole claims to be superseding causes were foreseeable. Cole and Dyer
were attempting to evade police in a car containing multiple firearms and a
large amount of ammunition. In fleeing from police, Cole drove very
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recklessly, crossing into the path of oncoming traffic, disregarding traffic
signals, nearly striking pedestrians, and reaching a top speed of approximately
ninety miles per hour before crashing through a fence and coming to a stop in a
residential backyard. When police approached the car, Cole accelerated toward
them, and Officer Harper was trapped between a fence and the oncoming car.
Simultaneously, Dyer was reaching down, and although Officer Harper could
not see what he was doing, it appeared that Dyer was cocking a gun. In light of
these facts, it was reasonable for the jury to conclude that Cole and Dyer were
acting in concert to evade the police by any means necessary, including the use
of deadly force against the officers, and Dyer’s furtive movements and refusal to
show his hands were therefore easily foreseeable. It was equally foreseeable
that a police officer would respond by firing on the occupants of the vehicle.
Contrary to Cole’s arguments, it makes little difference that Officer Harper shot
Dyer rather than Cole. Officer Harper testified as follows:
This is a very, very small amount of time. I assessed that the first
threat was the person with the gun and the second threat is the
car moving. You can’t really decipher which one is more
important. It’s just you go with what you see and have a picture
of. I know I can’t shoot a car. So I shot the person with the gun.
Transcript at 167. Officer Harper testified further that if he had been able to get
a clear shot, he would have shot Cole as well.
[20] In sum, Cole created a situation in which Officer Harper’s only option to
protect himself was to discharge his weapon. The fact that Officer Harper was
able to get a clear shot at Dyer and not Cole does nothing to relieve Cole of
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responsibility for the foreseeable results of his actions. For all of these reasons,
we conclude that the State presented sufficient evidence to prove that Cole’s
operation of the car was a proximate cause of Dyer’s death. Accordingly, his
resisting law enforcement conviction was properly elevated to a Level 3 felony.
2. Possession of an Altered Handgun
[21] Next, Cole argues that the evidence was insufficient to support his conviction
for possession of an altered handgun, a Level 5 felony. In order to support this
conviction, the State was required to prove that Cole “possess[ed] any handgun
on which the name of the maker, model, manufacturer's serial number, or other
mark of identification has been changed, altered, removed, or obliterated[.]”
Ind. Code § 35-47-2-18. This court has interpreted this statute to also require
the State to prove that the defendant knew that the handgun had been altered.
Robles v. State, 758 N.E.2d 581, 583 (Ind. Ct. App. 2001), trans. denied. Cole
does not dispute that he possessed the Ruger or that its serial number was
obliterated. Instead, he argues that the State presented insufficient evidence to
prove that he was aware that the Ruger had been altered.
[22] “A person engages in conduct ‘knowingly’ if, when he engages in the conduct,
he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b);
see also Robles, 758 N.E.2d at 583. Knowledge may be proven by circumstantial
evidence and inferred from the facts and circumstances presented in a particular
case. Robles, 758 N.E.2d at 583. In Robles, our Supreme Court concluded that
the evidence was sufficient to permit a reasonable inference that the defendant
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was aware that the handgun he possessed was altered because “the spot where
the serial number had been filed off was ‘shiny’” and the defendant had
“possessed the gun for over a week and had ample opportunity to discover that
the serial number had been removed.” Id. at 584. In Wagerman v. State, on the
other hand, this court found that the evidence was insufficient to establish
knowledge where the weapons at issue were “thrust upon” the defendant by his
companions mere seconds before he was searched. 597 N.E.2d 13, 14 (Ind. Ct.
App. 1992), trans. denied. Under those circumstances, this court held that the
defendant had no opportunity to apprise himself of the facts and avoid the
prohibited conduct. Id. at 16.
[23] The evidence in this case was sufficient to support a reasonable inference that
Cole had the opportunity to apprise himself of the fact that the Ruger had been
altered. When police searched the car, they found the Ruger within Cole’s
reach on the rear passenger floor board. Moreover, the holster Cole was
wearing on his belt at the time of his arrest was sized to fit the Ruger and its
curvature and wear patterns matched the Ruger. This evidence supports an
inference that Cole not only possessed the Ruger, but had been carrying it on
his person for some length of time. Under these circumstances, it was
reasonable for the jury to infer that Cole knew that the Ruger had been altered.
3. Possession of a Narcotic Drug
[24] Cole next argues that the State presented insufficient evidence to support his
conviction for Level 5 felony possession of a narcotic drug, i.e., heroin. His
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argument, however, is premised on a misunderstanding of the evidence
presented at trial and relied upon by the State. Specifically, Cole asserts that he
was convicted of possessing heroin found in Dyer’s groin area during an
autopsy. A review of the record reveals that this is not the case. As an initial
matter, the substance found on Dyer’s body during his autopsy was
methamphetamine, not heroin.2 Second, the record reveals that Cole’s
conviction for possession of a narcotic drug was based on the heroin residue on
the spoon and the baggie of heroin found in the manicure kit in the car’s center
console. Indeed, during closing argument, the State referred to the baggie and
the residue and made no mention of the substance found on Dyer’s body. See
Transcript at 422 (prosecutor noting in closing argument “[t]he heroin, the
residue on the spoon. The spoon that's in that manicure kit. Additionally,
there was a baggie, an actual baggie of heroin in that kit.”). Cole makes no
argument that he did not possess the heroin found in the manicure kit.
Accordingly, we cannot conclude that the evidence was insufficient to support
his conviction for possession of a narcotic drug.
4. Carrying a Handgun without a License
2
To the extent that Cole intended to use his argument that he did not possess the substance found on Dyer’s
body to challenge his conviction for possession of methamphetamine as a Level 5 felony, we note that his
conviction on that charge was based on methamphetamine residue found on two glass pipes found in the
center console, not the substance found on Dyer’s body. Indeed, the prosecutor made the following
statement in closing argument: “Methamphetamine. We saw that—the residue on the two glass pipes. You
heard Matthew Whitt from the Crime Lab testify that there were two glass pipes. You saw them in the
center console. You saw the manicure kit.” Transcript at 421-22. The State did not ask the jury to convict
Cole of possessing the methamphetamine discovered on Dyer’s body.
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[25] Finally, Cole challenges two of his three convictions for carrying a handgun
without a license. Although he does not challenge the conviction relating to the
Ruger, he argues that the State presented insufficient evidence to support his
convictions with respect to the .22 revolver and the 9mm Taurus, both of which
were found in the glove box. Cole concedes that he was not licensed to carry a
handgun, but he argues that these convictions must be reversed because the
State failed to prove that he knew the guns were in the glove box.
[26] Ind. Code § 35-47-2-1(a) provides in relevant part that “a person shall not carry
a handgun in any vehicle or on or about the person's body without being
licensed under this chapter to carry a handgun.” To support a conviction for
carrying a handgun in a vehicle, the State is required to prove that: “(1) the
defendant had control over the vehicle, (2) the unlicensed handgun was found
in a vehicle, and (3) the defendant had knowledge of the weapons’ presence.”
Henderson v. State, 715 N.E.2d 833, 835 n.2 (Ind. 1999).
As held by this court in Klopfenstein v. State, 439 N.E.2d 1181,
1184 (Ind. Ct. App. 1982), to establish this offense, the State
must prove that a handgun was found in a vehicle and that the
defendant had control of either the weapon or of the vehicle with
knowledge of the weapon's presence. In addition, it must be
established that there was an intention to convey or transport the
weapon. Id. See also D.C.C. v. State, 695 N.E.2d 1015, 1016 (Ind.
Ct. App. 1998); Ferrell v. State, 656 N.E.2d 839, 842 (Ind. Ct.
App. 1995). Although the presence of a passenger in a car in
which a handgun is being transported is insufficient to find that
passenger guilty of carrying a handgun in a vehicle, the driver of
a vehicle is in violation of the statute if he conveys a handgun in
the vehicle regardless of whether it is on or about his person.
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Klopfenstein, 439 N.E.2d at 1185. Knowledge of the presence of
the handgun is all that is required. Id.[3]
Thurman v. State, 793 N.E.2d 318, 320 (Ind. Ct. App. 2003) (emphasis in
original).
[27] In this case, there is ample evidence from which the jury could reasonably infer
Cole’s knowledge and intent. When Officer Elliot asked for the car’s
registration during the initial stop, Cole started to reach for the glove box, but
then stopped and told the officer that he did not have the registration. It is
reasonable to infer from this that Cole knew that there was contraband in the
glove box and did not want Officer Elliot to see it. Moreover, there was a large
amount of ammunition of various calibers found throughout the car.
Specifically, there were thirty-two unfired cartridges found scattered among
loose change, unwrapped candy, and miscellaneous debris in the driver-side
door pocket. Four of the cartridges were 9mm, one was .380 caliber, and the
remaining twenty-seven cartridges bore a “C” headstamp. Four more
cartridges were found in a backpack in the backseat, two of which were .380
caliber and two of which bore the “C” headstamp. A gun box found behind the
driver’s seat contained firearm pieces and forty-three unfired cartridges, and a
separate ammunition box also found on the rear driver-side floorboard
3
For this reason, Cole’s reliance on Henderson, 715 N.E.2d at 838, is misplaced because the defendant in that
case was a passenger, not a driver in control of the vehicle. See Thurman v. State, 793 N.E.2d 318, 320 n.2
(noting “that the defendant in Henderson was charged with carrying the handgun on or about his person, not
in a vehicle”).
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contained an additional nine unfired cartridges, five of which were .45 caliber
and four of which were .410 caliber. Additionally, a loaded 9mm magazine
was found in the center console, a holster was wedged between the driver’s seat
and the center console, and a gun box for a Smith & Wesson was found in the
trunk. The sheer ubiquity of ammunition and firearm accessories throughout
the entire car was more than sufficient to support an inference that Cole had
control of the car with knowledge of the guns’ presence, as well as the intent to
convey or transport those weapons. Accordingly, Cole’s convictions for
carrying a handgun without a license are supported by sufficient evidence.
[28] Judgment affirmed.
[29] Bradford, J., and Pyle, J., concur.
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