Jimmy Lee Bush v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Nov 17 2016, 8:23 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Kelly A. Loy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jimmy Lee Bush, November 17, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1603-CR-470
v. Appeal from the Marion Superior
Court, Criminal Division 5
State of Indiana, The Honorable Grant W.
Appellee-Plaintiff. Hawkins, Judge
Trial Court Cause No.
49G05-1412-F3-55063
Mathias, Judge.
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[1] Jimmy Lee Bush (“Bush”) was convicted in Marion Superior Court of two
counts of Level 3 felony criminal confinement. Bush appeals and argues that
the State presented insufficient evidence to support his convictions.
[2] We affirm.
Facts and Procedural History
[3] At the time relevant to this appeal, Bush was renting a home from Tanya
Wagner (“Wagner”). Bush occupied the front of the home, but someone else
lived in a smaller apartment in the rear of the home. Bush, as the tenant in the
greater portion of the home, was responsible for the utilities. Bush believed that
the other tenants were running up his utility bill, so he turned off the heat and
used electric space heaters to warm his portion of the home. Bush had also
modified some of the electrical outlets, apparently to allow him to use the space
heaters.
[4] On the evening of December 13, 2014, Wagner and her friend Danielle
Matthews (“Matthews”) went to the home Bush was renting to discuss some
issues regarding the property. They were unable to enter the front door because
it was blocked by a table and a Christmas tree. They therefore entered the home
through the back door. Wagner and Matthews conducted a walk-through
inspection of the home, and Matthews noticed a shotgun hanging in a bedroom
closet.
[5] After conducting the walk-through inspection, Wagner and Matthews went to
the living room and began to talk about the home with Bush, including the non-
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authorized changes to the electrical outlets. Also, Bush asked that the security
deposit of the former tenant be transferred to him. When Wagner explained to
him that she could or would not do that, Bush became incensed. At some point
during the discussion, Bush said, “I got something for you bitches,” then
entered the bedroom. Tr. p. 34. Matthews believed that she saw a gun in Bush’s
pocket. After Bush entered the bedroom, Wagner heard a “ch-ch” sound, which
she recognized as being a pump-action shotgun being pumped to load it with a
shell. Tr. p. 31.
[6] Although neither woman explicitly asked if they could leave, they both feared
that Bush might shoot them if they attempted to leave because he could see
them leave from his location in the bedroom. Wagner told Bush that they could
“work it out” and continued to talk with Bush in the living room. Tr. p. 34.
After further discussion, Bush became angry again. This time, he told Wagner
and Matthews to sit down and not go anywhere. Matthews would not comply,
so Bush told her to “shut the f*ck up and sit [her] ass down.” Tr. p. 84-86. At
some point thereafter, another man came to the house, whom Wagner and
Matthews believed to be a drug dealer. While Bush spoke with this man,
Wagner and Matthews used their mobile phones to text for help.
[7] At approximately 9:00 p.m., officers from the Indianapolis Metropolitan Police
Department (“IMPD”) were dispatched to the scene on a report of two women
being held against their will. One of the officers peered into the front window
and saw Wagner and Matthews sitting next to each other. Another officer
knocked on the front door and announced that he was a police officer. When
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the officer knocked again, Wagner told the officer to enter through the back
door. Bush then ran to the bedroom. Wagner ran out the back as one of the
officers was entering through the back door and yelled that Bush had a shotgun.
Matthews remained seated in the living room. Bush walked into the kitchen
and met the oncoming officers, who arrested him and placed him in handcuffs.
[8] The police then conducted a quick protective sweep of the residence and saw a
shotgun in the master bedroom that was accessible only from Bush’s bedroom.
The police then obtained a warrant to search the home. During the subsequent
search, the police found a loaded Remington shotgun in the master bedroom, a
loaded Winchester shotgun in Bush’s bedroom closet, and a .22 caliber rifle in
the kitchen. No handgun was found.
[9] On December 15, 2014, the State charged Bush with two counts of Level 3
felony criminal confinement and one count of Level 4 felony possession of a
firearm by a serious violent felon. The State filed an amended information on
January 21, 2015, alleging that Bush was a habitual offender. A bench trial was
held on September 21, 2015. At the conclusion of the trial, the court stated:
I agree with [defense counsel] that as you look at the spectrum of
armed confinements, you go from the most aggressive down to
perhaps this one. The fact remains that Ms. Matthews going to
the home as an accommodation to Ms. Wagner, checking it out,
making sure there were no space heaters, making sure there were
no weapons. She sees nothing. Later, and this is one of those odd
situations where Ms. Matthews and Ms. Wagner are there for a
specific purpose, as is Mr. Bush. They are trying to work out a
lease agreement. And things get loud, things get quiet, things get
hot, things get cold. But some time during that continuum,
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perhaps between too hot, who knows, the defendant is heard to
go into the master bedroom and the familiar sound of a shotgun
racking is heard. And later when the police arrive, there is a
shotgun found in the master bedroom or bathroom. The shotgun
had not been seen when Ms. Matthews did her walkthrough. Is
[this] a perfect case, no. Is it an adequate case to show me we have a
reasonable doubt [sic], Mr. Bush confined the ladies, it is. So I’ll find
him guilty as charged on Counts 1 and 2.
Tr. pp. 194-95 (emphasis added). The State then dismissed the charge of
possession of a firearm by a serious violent felon. Bush did not contest his
previous criminal history, and the trial court then found him to be a habitual
offender.
[10] At a sentencing hearing held on October 30, 2015, the trial court sentenced
Bush to two concurrent terms of four years on the criminal confinement
convictions and imposed a seven-year habitual offender enhancement, for an
aggregate term of eleven years. Bush now appeals.
Standard of Review
[11] Upon a challenge to the sufficiency of the evidence to support a conviction, we
neither reweigh the evidence nor judge the credibility of the witnesses; instead,
we respect the exclusive province of the trier of fact to weigh any conflicting
evidence. Toney v. State, 961 N.E.2d 57, 58 (Ind. Ct. App. 2012) (citing McHenry
v. State, 820 N.E.2d 124, 126 (Ind. 2005)). We consider only the probative
evidence and reasonable inferences supporting the judgment, and we will affirm
if the probative evidence and reasonable inferences drawn from the evidence
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could have allowed a reasonable trier of fact to find the defendant guilty beyond
a reasonable doubt. Id.
Sufficiency of the Evidence
[12] We first address Bush’s claim that the trial court explicitly found that there was
a reasonable doubt concerning his guilt. Bush notes that the transcript indicates
that the trial court stated, “Is [this] a perfect case, no. Is it an adequate case to
show me we have a reasonable doubt, Mr. Bush confined the ladies, it is.” Tr. p.
195 (emphasis added). However, immediately after this, the trial court found
Bush guilty.
[13] We presume that trial courts know the applicable law. Crider v. State, 984
N.E.2d 618, 624 (Ind. 2013) (citing Dumas v. State, 803 N.E.2d 1113, 1121 (Ind.
2004)); see also Moran v. State, 622 N.E.2d 157, 159 (Ind. 1993) (noting the
strong presumption that the trial court has acted correctly and properly
followed the applicable law). Few principles of American law are more basic
than the requirement that guilt be proved beyond a reasonable doubt. As noted
by the United States Supreme Court:
The requirement that guilt of a criminal charge be established by
proof beyond a reasonable doubt dates at least from our early
years as a Nation. The demand for a higher degree of persuasion
in criminal cases was recurrently expressed from ancient times,
though its crystallization into the formula beyond a reasonable
doubt seems to have occurred as late as 1798. It is now accepted
in common law jurisdictions as the measure of persuasion by
which the prosecution must convince the trier of all the essential
elements of guilt.
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In re Winship, 397 U.S. 358, 361 (1970) (citations and internal quotations
omitted). We therefore conclude that it is much more likely that the trial court
judge misspoke, or that there was a transcription error, than it is that the trial
court found that there was a reasonable doubt regarding Bush’s guilt but still
found him guilty.
[14] Bush also claims that the evidence presented by the State was insufficient to
support his conviction for Level 3 felony criminal confinement. To convict
Bush of Level 3 felony criminal confinement, the State had to prove that Bush,
while armed with a deadly weapon, knowingly confined another person
without the other person’s consent. See Ind. Code § 35-42-3-3(a), (b)(2)(A). “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). And
“confine” is defined as “to substantially interfere with the liberty of a person.”
Ind. Code § 35-42-3-1. The statute does not require the State to prove that a
deadly weapon was actually used during the confinement, only that the
defendant was armed with such a weapon. Mallard v. State, 816 N.E.2d 53, 57
(Ind. Ct. App. 2004).
[15] Here, considering only the evidence and reasonable inferences supporting the
trial court’s judgment, we conclude that there is sufficient evidence to support
Bush’s conviction. After engaging in a heated conversation with Wagner and
Matthews, Bush went into his bedroom, audibly loaded a shotgun, and told
them he “had something” for them. Tr. p. 34. This caused both victims to be in
fear for their lives. After Wagner attempted to calm Bush down, he again
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became agitated and told Matthews to sit down and “shut the f*ck up.” Tr. p.
86. Indeed, Wagner testified that Bush told them “don’t go anywhere.” Tr. p.
36. And although a handgun was never found, we are not at liberty to ignore
Matthew’s testimony that she saw the butt of a gun in Bush’s pocket. It is true
that Bush never directly pointed a gun at Wagner and Matthews, but he did tell
the women to sit down and shut up while going into his bedroom and audibly
loading a shotgun. Both women were afraid to leave for fear that Bush might
shoot them. The police found two shotguns and one rifle in the home after their
search.
[16] From this evidence the trier of fact could reasonably conclude that Bush, while
armed with the shotgun, was aware of a high probability that his actions
substantially interfered with the liberty of Wagner and Matthews against their
will. See Ransom v. State, 850 N.E.2d 491, 498 (Ind. Ct. App. 2006) (evidence
sufficient to support conviction for criminal confinement despite fact that victim
never asked nor tried to leave the room, where defendant walked toward victim
until she was up against a closed, likely locked, door, defendant had a gun, and
victim did not feel free to leave).
[17] Accordingly, the evidence is sufficient to support Bush’s convictions for
criminal confinement as Level 3 felonies.
[18] Affirmed.
Robb, J., and Brown, J., concur.
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