James Dewbrew v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Aug 07 2015, 8:17 am
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
Bernice A. N. Corley Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Dewbrew, August 7, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1412-CR-597
v. Appeal from the Marion County
Superior Court
State of Indiana, The Honorable Steven Eichholtz,
Appellee-Plaintiff Judge
Cause No. 49G20-1309-FB-60218
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015 Page 1 of 7
Case Summary
[1] James Dewbrew (“Dewbrew”) appeals his conviction for Unlawful Possession
of a Firearm by a Serious Violent Felon, a Class B felony. 1 Dewbrew presents
the sole issue of whether the State established the corpus delicti, such that
Dewbrew’s confession was properly admitted into evidence. We affirm.
Facts and Procedural History
[2] On September 7, 2013, Indianapolis Metropolitan Police Department
(“IMPD”) Officer Steven Spina (“Officer Spina”) responded to a call of shots
fired at a home on South Collier Street in Marion County. Upon arrival,
Officer Spina discovered outside the home a .40 caliber bullet casing, a live
round, a bullet hole in the siding, and a dog with a fresh gunshot wound to its
mouth. Officer Spina took photographs of the scene and the dog’s mouth. He
also collected the bullet casing.
[3] On September 9, 2013, IMPD Detective Russell O’Connor (“Detective
O’Connor”) was assigned to investigate the shooting. Detective O’Connor
learned that Dewbrew, his girlfriend Jackie Bundy, his minor daughter, and
James Capps were at the scene of the incident. After locating Dewbrew in a
home on South Addison Street, Detective O’Connor obtained a search warrant
1
Ind. Code § 35-47-4-5. Due to substantial revisions to the Indiana Code effective July 1, 2014, this offense
is now a Level 4 felony. In this opinion, we refer to the versions of the statutes in effect at the time of
Dewbrew’s offense.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015 Page 2 of 7
for Dewbrew and any firearms on the property. On September 10, 2013, the
warrant was executed by an IMPD SWAT team and Dewbrew was taken into
custody. Dewbrew initially declined to speak to police officers without an
attorney, but later asked to speak to Detective O’Connor regarding the dog that
was shot.
[4] After Dewbrew waived his Miranda rights, Detective O’Connor interviewed
him about the Collier Street incident and “learned from [Dewbrew] that the gun
was at his father’s house[.]” (Tr. 33.) Detective O’Connor went to Dewbrew’s
father’s house and retrieved a silver Taurus handgun. Dewbrew was then
transported to IMPD’s Southwest District headquarters where, in a videotaped
interview, Dewbrew confessed to possessing a handgun and shooting the dog
during the Collier Street incident. Dewbrew was placed under arrest. Forensic
testing subsequently revealed that the casing found on Collier Street was fired
by the handgun retrieved from Dewbrew’s father’s home.
[5] On September 16, 2013, Dewbrew was charged with: Unlawful Possession of a
Firearm by a Serious Violent Felon, a Class B felony (“Count 1”); Criminal
Recklessness, as a Class C felony 2 (“Count 2”); Pointing a Firearm at Another
Person, as a Class D felony 3 (“Count 3”); and Attempted Killing of a Domestic
Animal, as a Class D felony 4 (“Count 4”). On September 26, 2014, the State
2
I.C. § 35-42-2-2(c)(3).
3
I.C. § 35-47-4-3.
4
I.C. §§ 35-46-3-12(d) & 35-41-5-1.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015 Page 3 of 7
moved to amend the charging information as to Count 1. 5 The State also
moved to add a fifth count, alleging that Dewbrew was a habitual offender. 6
The trial court granted the motions on September 29, 2014.
[6] Dewbrew waived his right to a jury trial. On the State’s motion, the trial court
dismissed Counts 2 through 4. As to Count 1, Dewbrew stipulated to a prior
conviction for criminal confinement, a “serious violent felony” under Indiana
Code section 35-47-4-5. 7 As to the habitual offender count, Dewbrew also
stipulated to having two prior felony convictions for Theft, as Class D felonies.
[7] A bench trial was held on October 15, 2014. On October 17, 2014, Dewbrew
was found guilty of Unlawful Possession of a Firearm by a Serious Violent
Felon. The court also adjudicated him a habitual offender. On November 3,
2014, Dewbrew was sentenced to twenty years in the Indiana Department of
Correction, enhanced by five years for being a habitual offender. In this belated
appeal, Dewbrew challenges only his conviction for Unlawful Possession of a
Firearm by a Serious Violent Felon.
Discussion and Decision
5
The State sought to amend the offense date from “on or about September 7, 2013” to “on or about
September 7, 2013 to September 10, 2013.” (App. 72.)
6
I.C. § 35-50-2-8.
7
I.C. § 35-47-4-5(b)(7).
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015 Page 4 of 7
[8] Although Dewbrew frames his argument as one challenging the sufficiency of
the evidence to support his conviction, the substance of his argument is that his
confession to Unlawful Possession of a Firearm should not have been admitted
because the State failed to establish the corpus delicti, that is, the body of the
crime.
[9] To establish the corpus delicti, the State must present evidence – independent of
the defendant’s statement – that shows a criminal act actually occurred. Hurt v.
State, 570 N.E.2d 16, 20 (Ind. 1991). As our supreme court has explained:
The corpus delicti rule arose from judicial hesitancy to accept without
adequate corroboration a defendant’s out-of-court confession of
criminal activity. The primary function of the rule is to reduce the risk
of convicting a defendant based on his confession for a crime that did
not occur.
Willoughby v. State, 552 N.E.2d 462, 466 (Ind. 1990) (citations omitted).
Independent evidence of the crime need not be shown beyond a reasonable
doubt nor demonstrate prima facie proof as to each element of the charged
offense, but must support an inference that the crime was committed. Id. at
467. Circumstantial evidence alone may establish the corpus delicti. Evans v.
State, 460 N.E.2d 500, 502 (Ind. 1984). The order in which evidence is
introduced is not vital; thus, it is not error to admit a confession if the
supporting evidence is introduced after the confession’s admission. Hurt, 570
N.E.2d at 20. If the totality of the evidence presented at trial establishes the
crime charged in the information or indictment was committed, a defendant’s
extrajudicial statements are admissible. Evans, 460 N.E.2d at 502.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015 Page 5 of 7
[10] Under Indiana Code section 35-47-4-5(c), a serious violent felon who
knowingly or intentionally possesses a firearm commits unlawful possession of
a firearm by a serious violent felon, a Class B felony. The State charged that
“Dewbrew, being a serious violent felon, that is: having been convicted of
criminal confinement . . . on November 15, 2011, did on or about September 7,
2013 to September 10, 2013, knowingly or intentionally possess a firearm, that
is: a handgun[.]” (App. 73.) Because Dewbrew stipulated to a prior conviction
for a serious violent felony, the only issue for trial was whether he knowingly or
intentionally possessed a firearm within the alleged timeframe. In his
videotaped interview, Dewbrew confessed to possessing a handgun and
shooting a dog during the Collier Street incident on September 7, 2013.
[11] At trial, the State introduced evidence that on September 7, 2013, in response to
a call of shots fired at a home on Collier Street, Officer Spina collected evidence
from the home including a .40 caliber bullet casing and photographs of a live
round on the ground, bullet hole in the home, and fresh gunshot wound to a
dog’s mouth. This evidence permits the inference that someone possessed a
gun on Collier Street on or about September 7, 2013. There was therefore
sufficient independent evidence that possession of a firearm occurred to support
the admission of Dewbrew’s confession.
Conclusion
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015 Page 6 of 7
[12] The State presented sufficient independent evidence of the crime to support
Dewbrew’s confession to Unlawful Possession of a Firearm by a Serious
Violent Felon.
[13] Affirmed.
Riley, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015 Page 7 of 7