Samichael Bradshaw v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 25 2018, 10:25 am
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
Karen Celestino-Horseman Curtis T. Hill, Jr.
Austin & Jones, P.C. Attorney General of Indiana
Indianapolis, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Samichael Bradshaw, June 25, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-39
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Helen W. Marchal,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G15-1706-F6-21747
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 1 of 11
Case Summary
[1] Samichael Bradshaw (“Bradshaw”) appeals his convictions for Pointing a
Firearm, as a Level 6 felony,1 and Resisting Law Enforcement, as a Class A
misdemeanor.2 We affirm the felony conviction and reverse the misdemeanor
conviction.
Issues
[2] Bradshaw presents three issues for review:
I. Whether the trial court abused its discretion in finding a
child witness competent to testify;
II. Whether sufficient evidence supports the conviction for
Pointing a Firearm; and
III. Whether sufficient evidence supports the conviction for
Resisting Law Enforcement.
Facts and Procedural History
[3] On June 7, 2017, six-year-old M.H. went out into his Indianapolis
neighborhood to ride his bike. A neighbor, who M.H. knew as “Michael,”
came outside also. (Tr. at 53.) After M.H. had been outside for about an hour,
1
Ind. Code § 35-47-4-3(b).
2
I.C. § 35-44.1-3-1(a)(3).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 2 of 11
he ran into his house crying. M.H. exclaimed to his mother, Kendra Scott
(“Scott”), that “Michael was just pointing a gun at me.” (Tr. at 78.)
[4] Scott went outside and confronted Bradshaw, who was standing on the
sidewalk in front of his house. Scott demanded “why the f--- did [Bradshaw]
keep on f-----g with her son.” (Tr. at 80.) Scott pointed to her holstered gun and
asked if Bradshaw “wanted to meet her friend,” to which Bradshaw responded
“no, do you want to meet my friend.” (Tr. at 80.) Bradshaw retreated to his
porch and he and Scott yelled to each other to “come down the street.” (Tr. at
81.) Scott advised Bradshaw that she would call the police and Bradshaw then
left the porch and ran into his residence.
[5] After some time passed, Scott called 9-1-1 to report that her neighbor – across
the street and four houses down – had purposely set his porch on fire and had
earlier pointed a gun at her son. Scott reported her suspicions that Bradshaw
suffered from mental health problems.
[6] Just before 8:00 p.m., Indianapolis Metropolitan Police Department officers
responded to a report of a fire and “trouble with a person.” (Tr. at 128.) As
Officer Craig Solomon (“Officer Solomon”) approached the scene and observed
Bradshaw standing on his porch, Indianapolis firefighters were arriving; they
remained outside pending police clearance of the scene. Officer Solomon stood
near a vacant lot, about 50 feet from Bradshaw, and called out to Bradshaw that
“he needed to come outside, that [they] needed to talk to him; that his house
was on fire.” (Tr. at 131, 138.) Bradshaw yelled out something not audible to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 3 of 11
Officer Solomon and began to run into his house. Officer Solomon yelled
“Stop” to Bradshaw, who continued into and remained within the house. (Tr.
at 131.)
[7] Officer Solomon began yelling commands that anyone inside the house must
come outside. He and other officers, some using a public-address system,
repeatedly urged Bradshaw to come outside, assuring him that he was “not in
trouble” and the officers “wanted to make sure he was alright.” (Tr. at 146.)
Bradshaw remained inside his home until a SWAT team deployed tear gas and
extricated him. Bradshaw was taken by ambulance to a nearby hospital. As
Officer Solomon and Bradshaw walked to the ambulance, Bradshaw
apologized: “sorry man, I was just putting on a show for the neighborhood.”
(Tr. at 136.)
[8] On the following day, police officers executed a search warrant at Bradshaw’s
residence to search for firearms and ammunition. They found no gun,
ammunition, or shell casings. Bradshaw was charged with two counts of
Pointing a Firearm (one related to M.H. and one related to Scott) and one
count of Resisting Law Enforcement.
[9] On November 15, 2017, Bradshaw was brought to trial before a jury. After a
hearing on M.H.’s competency to testify, the trial court ruled that M.H. was a
competent witness, and the State attempted to elicit testimony from him.
However, M.H. answered only a few questions before he dissolved into tears
and was carried from the courtroom. After the State verified that M.H. would
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 4 of 11
not be recalled as a witness, Bradshaw asked that M.H. be declared an
incompetent witness and moved to strike Scott’s testimony as hearsay. The
trial court denied the motions together with Bradshaw’s request for an
admonishment to the jury.
[10] The jury convicted Bradshaw of pointing a gun at M.H. and resisting law
enforcement; the jury acquitted Bradshaw of pointing a gun at Scott. Bradshaw
was sentenced to concurrent terms of 730 days, with 354 days suspended to
probation for the Level 6 felony, and to 365 days for the Class A misdemeanor.
He now appeals.
Discussion and Decision
Competence of M.H.
[11] Bradshaw contends that M.H. was incompetent to testify and his brief
appearance on the witness stand allowed the jury to speculate regarding the
cause of M.H.’s tears.
[12] Indiana Evidence Rule 601 provides, “Every person is competent to be a
witness except as otherwise provided in these rules or by statute.” In
interpreting and applying Evidence Rule 601, we have observed that the rule’s
failure to presumptively exclude children does not prohibit special inquiry into
their competency prior to testifying, when the defendant has raised the issue.
Burrell v. State, 701 N.E.2d 582, 585 (Ind. Ct. App. 1998).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 5 of 11
[13] A determination of witness competency lies within the sound discretion of the
trial court, and we review its decision only for a manifest abuse of that
discretion. Aldridge v. State, 779 N.E.2d 607, 609 (Ind. Ct. App. 2002), trans.
denied. “A child’s competency to testify at trial is established by demonstrating
that he or she (1) understands the difference between telling a lie and telling the
truth, (2) knows he or she is under a compulsion to tell the truth, and (3) knows
what a true statement actually is.” Kien v. State, 866 N.E.2d 377, 385 (Ind. Ct.
App. 2007), trans. denied.
[14] M.H. provided two examples of a lie:
If you didn’t tell the truth, if somebody hit you, then that is
telling a lie – if somebody really hits you and then you go to
court and then if the people ask you then they, that is a lie. If
someone hits you and you say no, they did not [hit] me.”
(Tr. at 28-29.)
If you told somebody that my house is right there and it is not
then someone can be like you tricked me. You told me – you
told a lie to me. And then you really bring them to your house
and then and then they tell your mom.
(Tr. at 34.) M.H. was able to identify true statements made about clothing and
carpet colors. When the trial court asked M.H. “why do we want to tell the
truth,” M.H. responded that “people might not trust you” if you lied. (Tr. at
27.) M.H. affirmed that he “could get in trouble” if he promised to tell the truth
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 6 of 11
but did not do so and he clarified that “trouble” would be “punishment.” (Tr.
at 31-32.)
The trial court’s determination of competency is supported by evidence that
M.H. knew the difference between a lie and the truth, knew he was under a
compulsion to tell the truth, and knew what a true statement was. We decline
to find that the trial court abused its discretion due to developments after the
competency hearing, that is, M.H. dissolved into tears and was removed from
the courtroom. The competency determination was consistent with evidence as
to the requisite factors and will not be disturbed.
Sufficiency of the Evidence – Pointing a Firearm
[15] To convict Bradshaw of Pointing a Firearm, as charged, the State was required
to prove beyond a reasonable doubt that Bradshaw knowingly or intentionally
pointed a handgun at M.H.3 See I.C. § 35-47-4-3; App. Vol. II, pg. 18.
3
Indiana Code Section 35-47-4-3(b) provides: “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.”
Here, a search of Bradshaw’s residence yielded no firearm or ammunition and there was no evidence at trial
directed to whether Bradshaw pointed a loaded or unloaded handgun. The State was under no obligation to
charge Bradshaw with a misdemeanor as opposed to a felony. In Adkins v. State, 887 N.E.2d 934, 937 (Ind.
2008), our Indiana Supreme Court observed: “The elements of Class D [now Level 6] Felony Pointing a
Firearm simply do not include a requirement that the gun be loaded.” A defendant who claims that his or
her firearm was unloaded is attempting “to prove a mitigating factor that reduces, but not wholly excuses, his
culpability.” Id. at 938. If a defendant charged with felony Pointing a Firearm “seeks instead to be convicted
of Class A Misdemeanor Pointing a Firearm, the defendant must place the fact of the gun having been
unloaded at issue if the State’s evidence has not done so.” Id. Once at issue, the State is required to prove
beyond a reasonable doubt that the firearm was loaded.
As such, a defendant may maintain that he did not possess or point a handgun at all, but he does so at his
peril. The jury is invited to return a verdict on the felony offense only. But if a defendant admits to pointing
an unloaded firearm, he could request an instruction upon, and potentially be convicted of, a lesser offense.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 7 of 11
Bradshaw asserts that the State failed to prove he was the person who pointed a
handgun at M.H.
[16] The standard of review for a sufficiency of the evidence claim is well settled:
[T]his Court should only reverse a conviction when reasonable
persons would not be able to form inferences as to each material
element of the offense. Perez v. State, 872 N.E.2d 208, 212-13
(Ind. Ct. App. 2007), trans. denied. We do not reweigh evidence
or judge the credibility of witnesses. Id. at 213. In addition, we
only consider the evidence most favorable to the judgment and
the reasonable inferences stemming from that evidence.
Moore v. State, 49 N.E.3d 1095, 1106 (Ind. 2016).
[17] Scott testified that M.H. ran into the house crying and said, “mommy,
mommy, Michael was just pointing a gun at me.” (Tr. at 78.) Scott had then
gone outside and encountered Bradshaw on the sidewalk. M.H. testified that
he remembered the day that firetrucks came to his neighborhood and that a
neighbor he knew as Michael had been outside.
[18] Bradshaw observes that M.H. did not identify Bradshaw as the same “Michael”
who pointed a gun at him and Scott admitted she did not see anyone point a
gun at her son. Nonetheless, the State presented circumstantial evidence of
Bradshaw’s identity as the person who pointed a gun at M.H., that is, he was
present before and after M.H. tearfully reported the handgun encounter.
“Elements of offenses and identity may be established entirely by circumstantial
evidence and logical inferences drawn therefrom.” Bustamante v. State, 557
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 8 of 11
N.E.2d 1313, 1317 (Ind. 1990). Circumstantial evidence is no different than
other evidence for the purpose of supporting a conviction, and standing alone
may be sufficient. R.L.H. v. State, 738 N.E.2d 312, 315 (Ind. Ct. App. 2000).
The State presented sufficient evidence to establish beyond a reasonable doubt
that Bradshaw knowingly or intentionally pointed a handgun at M.H.
Sufficiency of the Evidence – Resisting
[19] To convict Bradshaw of Resisting Law Enforcement, as charged, the State was
required to prove beyond a reasonable doubt that Bradshaw knowingly or
intentionally fled from Officer Solomon, a law enforcement officer, after the
officer had, by visible or audible means, identified himself, and ordered
Bradshaw to stop. See I.C. § 35-44.1-3-1(a)(3); App. Vol. II, pg. 18. Bradshaw
argues that the State failed to show that he knowingly or intentionally fled.
[20] In the context of the resisting statute, “flight” is “a knowing attempt to escape
law enforcement when the defendant is aware that a law enforcement officer
has ordered him to stop or remain in place once there.” Cowans v. State, 53
N.E.3d 540, 545 (Ind. Ct. App. 2016). According to Bradshaw, there is no
evidence that he heard Officer Solomon’s command to stop but he stopped
anyway; he remained inside his residence surrounded by police.
[21] Officer Solomon testified that he approached Bradshaw’s residence and “got
approximately even with the vacant lot that is just to the north of [the
residence]” such that he was “in the ballpark” of 50 feet from Bradshaw’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 9 of 11
porch, where Bradshaw stood. (Tr. at 131.) Officer Solomon testified
regarding his interaction with Bradshaw:
Question: And what did you do when you saw this male?
Officer: I yelled out to him that he needed to come outside, that
we needed to talk to him; that his house was on fire.
Question: And what did the man do?
Officer: He yelled something back that I couldn’t understand and
then turned and ran into his house at which point I yelled at him
to stop.
Question: Okay so you yelled at him to stop?
Officer: Yes.
Question: Did he stop?
Officer: No he ran headlong into his house.
(Tr. at 131.) From this concise testimony, it appears that Bradshaw was already
advancing from his porch further into his residence when the order to stop
emanated. We need not question the propriety of ordering a person to stop
inside a burning structure or speculate upon whether a retreating person could
hear a command given 50 feet away amid an emergency response scene. One
circumstance is evident: Bradshaw came to a stop. His non-compliant
behavior was that of refusing to come outside despite multiple officers’ repeated
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 10 of 11
(and sometimes publicly broadcast) entreaties. Nonetheless, Bradshaw was not
charged with a crime concerning his response to the fire emergency. And
directing a person to exit a home is not the same as ordering a person to stop.
West v. State, 85 N.E.3d 608, 611 (Ind. Ct. App. 2017). The State did not
present sufficient evidence from which a jury could find beyond a reasonable
doubt that Bradshaw fled from Officer Solomon. As such, this conviction must
be reversed.
Conclusion
[22] The trial court did not abuse its discretion in finding M.H. competent to testify.
Sufficient evidence supports Bradshaw’s conviction for Pointing a Firearm.
Insufficient evidence supports Bradshaw’s conviction for Resisting Law
Enforcement.
[23] Affirmed in part, reversed in part.
Crone, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-39 | June 25, 2018 Page 11 of 11