Marces Riley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Aug 14 2019, 8:39 am
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
John Kindley Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marces Riley, August 14, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-384
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff. Miller, Judge
Trial Court Cause No.
71D01-1709-F6-855
Riley, Judge
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Marces Riley (Riley), appeals his convictions for resisting
law enforcement, a Level 6 felony, Ind. Code § 35-44.1-3-1(b); carrying a
handgun without a license, a Class A misdemeanor, I.C. § 35-47-2-1(e);
possession of a narcotic drug, a Level 5 felony, I.C. § 35-48-4-6(b); two Counts
of resisting law enforcement, Class A misdemeanors, I.C. §35-44.1-3-1(a)(1); a
firearm enhancement charge, I.C. § 35-50-2-11(e)(h); possession of cocaine
while armed with a firearm, a Level 3 felony, I.C. § 35-48-4-6(d)(1); and his
vacated conviction for pointing a firearm at another, a Level 6 felony, I.C. § 35-
47-4-3(b).
[2] We affirm.
ISSUES
[3] Riley presents one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to sustain his
conviction for pointing a firearm at another, a Level 6 felony. 1
FACTS AND PROCEDURAL HISTORY
[4] On September 7, 2017, South Bend Police Officer, Kyle Drury (Officer Drury),
was conducting a patrol. Officer Drury observed a vehicle driving in the
opposite direction that did not have a front bumper. Officer Drury made eye
1
Due to double jeopardy concerns, the trial court did not enter a judgment of conviction on this charge.
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contact with the driver, later identified as Riley, “whose eyes got really big,”
and who “immediately, ah, turned off of the main street.” (Transcript Vol. I, p.
146). Because that “seemed odd,” Officer Drury “went around the block to try
to find that car.” (Tr. Vol. I, p. 165). Officer Drury located Riley’s vehicle at a
gas station parking lot, and he began to follow Riley. Shortly thereafter, Officer
Drury initiated a traffic stop since the “license plate was tinted so dark that he
couldn’t read the lettering on the license plate.” (Tr. Vol. I, p. 140). As Officer
Drury approached Riley’s vehicle, Riley sank down in his seat and then sped
off.
[5] Officer Drury ran back to his vehicle and chased Riley’s vehicle. Riley
eventually pulled into an alley and fled on foot. While running after Riley,
Officer Drury repeatedly yelled, “Stop! Police!” (Tr. Vol. I, p. 174). As Riley
ran up an embankment, he reached into his waistband and pulled out “a black
semi-automatic handgun” and pointed it toward Officer Drury. (Tr. Vol. I, p.
176). By that time, other officers had joined the chase. Officer Brittany Bayles
(Officer Bayles), who was running behind Officer Drury, yelled “Gun! Gun!
Gun!” (Tr. Vol. I, p. 177). At that point, Officer Drury reached for his firearm,
but it was not in his holster. Officer Drury’s only option was to tackle Riley to
the ground. After a brief struggle, Officer Drury handcuffed Riley.
[6] After Riley was lifted from the ground, “a black semi-automatic handgun” was
located on the ground. (Tr. Vol. I, p. 147). The officers discovered a plastic
baggie containing a white powdery substance, which was later identified to be
0.58 grams of heroin. The officers also located a plastic baggie containing a
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white substance lying underneath an adjacent fence. That baggie contained
11.75 grams of cocaine. While there were four DNA profiles obtained from the
black semi-automatic handgun’s trigger, the “analysis provided strong support
for the proposition that [] Riley” was the largest contributor to the DNA profile.
(Tr. Vol. I, p. 129).
[7]
[8] On September 11, 2017, the State filed an Information, charging Riley with
Count I, resisting law enforcement, a Level 6 felony; Count II, carrying a
handgun without a license, a Class A misdemeanor; Count III, pointing a
firearm at another, a Level 6 felony; and Count IV, possession of a narcotic
drug, a Level 6 felony. On October 23, 2017, the State amended the charging
Information to include Count V, possession of a narcotic drug, a Level 5 felony;
and Counts VI and VII, resisting law enforcement, Class A misdemeanors. On
October 23, 2017, the State once more amended the charging Information to
include Count VIII, a firearm enhancement charge. The State’s last
amendment to the charging Information was on November 14, 2017, when it
added Count IX, possession of cocaine while armed with a firearm, a Level 3
felony.
[9] A bifurcated jury trial was held on December 17 through December 19, 2018.
During the first phase, the jury heard evidence on all Counts except for the
firearm enhancement charge. At trial, the charges were re-numbered as
follows: Count V, Class A misdemeanor resisting law enforcement (formerly
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Count VI); Count VI, Class A misdemeanor resisting law enforcement
(formerly Count VII); and Count VII, Level 3 felony possession of cocaine
while armed with a firearm (formerly Count IX).
[10] At the close of the evidence, the jury found Riley guilty on all Counts except
Count IV, possession of a narcotic drug, a Level 6 felony. The trial court then
dismissed the jury. During the second phase pertaining to the firearm
enhancement charge in Count VIII, Riley admitted to the charge but reserved
his right to appeal. The trial court accepted Riley’s admission and stated
Well, I’m going to accept, um, your statement here and I’m
going to find that under Count VIII[,] that you knowingly
pointed a firearm at a person that you knew or should have
known was a police officer and you did that in the course of the
commission of another offense.
(Tr. Vol. II, p. 64).
[11] On January 16, 2019, the trial court conducted a sentencing hearing. The trial
court merged Count II (Class A misdemeanor carrying a handgun without a
license) with Count VII (Level 3 felony possession of cocaine and firearm). The
trial court also merged Count VI (Class A misdemeanor resisting law
enforcement) with Count I (Level 6 felony resisting law enforcement). Due to
double jeopardy concerns, the trial court did not enter a judgment of conviction
as to Count III, Level 6 felony pointing a firearm at another. The trial court
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then attached the firearm enhancement to the Level 3 felony possession of
cocaine while armed with a firearm. 2
[12] The trial court subsequently ordered Riley to serve concurrent terms of one year
on Count I, Level 6 felony resisting law enforcement; one year on Count V,
Class A misdemeanor resisting law enforcement; and three years on Count VII,
Level 3 felony possession of cocaine while armed with a firearm. Due to
Riley’s admission to the firearm enhancement charge, the trial court enhanced
Riley’s sentence for the Level 3 felony possession of cocaine while armed with a
firearm by nine years, suspending two years, for an aggregate sentence of twelve
years.
[13] Riley now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[14] When reviewing a claim of insufficient evidence, it is well-established that our
court does not reweigh evidence or assess the credibility of witnesses. Walker v.
State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all the evidence,
and any reasonable inferences that may be drawn therefrom, in a light most
favorable to the verdict. Id. We will uphold the conviction “‘if there is
2
The trial court noted that pursuant to the holding in Nicoson v. State, 938 N.E.2d 660, 661 (Ind. 2010), it
was permitted to attach the “enhancement appropriately” to Riley’s Level 3 felony possession of cocaine
while armed with a firearm. (Tr. Vol. II, p. 72). In Nicoson, the defendant was charged with, and convicted
of criminal confinement with a deadly weapon, a Class B felony, because he was armed with a deadly
weapon. Id. The trial court enhanced the sentence for that offense pursuant Indiana Code section 35-50-2-11
because the defendant “used” a firearm while committing the offense. Id.Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019 Page 6 of 8
substantial evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178
(Ind. 2004)). Indiana Code section 35-47-4-3(b) provides that “a person who
knowingly and intentionally points a firearm at another person commits a Level
6 felony.”
[15] Riley argues that the State did not present sufficient evidence beyond a
reasonable doubt to sustain his conviction for Count III, pointing a firearm at
another, a Level 6 felony. We initially note that while the jury found Riley
guilty of this charge, due to double jeopardy concerns, the trial court did not
enter a judgment of conviction. The State correctly argues that therefore Riley’s
challenge on appeal is moot.
[16] “Mootness arises when the primary issue within the case ‘has been ended or
settled, or in some manner disposed of, so as to render it unnecessary to decide
the question involved.’” C.J. v. State, 74 N.E.3d 572, 575 (Ind. Ct. App. 2017).
In other words, when a court is not able to render effective relief to a party, the
case is deemed moot and subject to dismissal. Id.[17] At sentencing, the parties discussed whether certain convictions were barred by
double-jeopardy. The trial court found that Count III, pointing a firearm at
another, which is the sufficiency claim Riley discusses, should be vacated based
on double-jeopardy grounds. Following the parties’ arguments, the trial court
did not enter a judgment of conviction as to that Count. Thus, we find Riley’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019 Page 7 of 8
sufficiency claim for his Level 6 felony pointing a firearm at another conviction
is moot.
[18] Notwithstanding the mootness of his argument, to the extent he argues the
evidence is insufficient to his Level 6 felony pointing a firearm at another,
during the foot chase, we note that the evidence reflects that Riley reached into
his waistband and pulled out a semi-automatic handgun and pointed it toward
Officer Drury. Officer Bayles who was running behind Officer Drury also saw
Riley holding the gun and repeatedly yelled to warn Officer Drury that Riley
had a gun. This was sufficient evidence to establish beyond a reasonable doubt
that Riley pointed a firearm at Officer Drury.
CONCLUSION
[19] Based on the foregoing, we hold that Riley’s sufficiency claim as to his Level 6
felony pointing a firearm at another is moot since the trial court did not enter a
judgment of conviction as to that charge. Moreover, to the extent that he
challenges his sufficiency of the evidence to that Count, we conclude that there
was sufficient evidence beyond a reasonable doubt that Riley pointed a firearm
at Officer Drury.
[20] Affirmed.
[21] Vaidik, C. J. and Bradford, J. concur
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