De Juna Don Sho Cox v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 24, 2020
• Docket: 20A-CR-560
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 24 2020, 10:13 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick Vaiana Curtis T. Hill, Jr. Voyles Vaiana Lukemeyer Baldwin & Attorney General of Indiana Webb Jodi Kathryn Stein Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

De Juna Don Sho Cox, August 24, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-560 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant Hawkins, Appellee-Plaintiff. Judge The Honorable Peggy Hart, Judge Pro Tempore Trial Court Cause No. 49G05-1910-F4-41132

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-560 | August 24, 2020 Page 1 of 8 Statement of the Case

[1] De Juna Don Sho Cox (“Cox”) was found guilty, following a jury trial, of

Level 4 felony unlawful possession of a firearm by a serious violent felon1 and

Class A misdemeanor resisting law enforcement.2 Cox was also found to be an

habitual offender.3 On appeal, Cox challenges only the unlawful possession of

a firearm conviction, arguing that there was insufficient evidence to support it.

Concluding that the State presented sufficient evidence, we affirm Cox’s

conviction. However, we remand for correction of the sentencing order.

[2] We affirm and remand with instructions.

Issue

Whether sufficient evidence supports Cox’s unlawful possession of a firearm by a serious violent felon conviction.

Facts

[3] On October 21, 2019, Indianapolis Metropolitan Police (“IMPD”) Officer

Michael Stachowicz (“Officer Stachowicz”) observed that the driver of an SUV

failed to stop at a stop sign. Officer Stachowicz, who was driving a fully

marked police vehicle and wearing a police uniform, initiated a traffic stop.

1 IND. CODE § 35-47-4-5. 2 I.C. § 35-44.1-3-1. 3 I.C. § 35-50-2-8.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-560 | August 24, 2020 Page 2 of 8 The driver of the SUV initially pulled over but then abruptly performed a U-

turn. Officer Stachowicz pursued the SUV and notified dispatch that he was in

pursuit.

[4] After a brief pursuit, which was joined by other IMPD officers, the driver of the

SUV stopped in an alley. Three males exited the vehicle and fled on foot.

Officer Stachowicz identified himself as a law enforcement officer and yelled at

the men to stop. Officer Stachowicz took note of what the individuals were

wearing, observing that the driver was wearing a “red hoody[,]” the rear

passenger was wearing a “black hoody[,]” and Cox, the front seat passenger

was wearing a “gray hoody[.]” (Tr. Vol. 2 at 119). Officer Stachowicz pursued

and apprehended the driver while other officers pursued the other men. IMPD

Officer Nicholas Snow (“Officer Snow”) pursued and apprehended Cox.

Officers never located the rear passenger.

[5] Following the foot pursuit, the officers returned to the SUV in the alley. When

the officer looked into the SUV, they observed in plain view an AR-15 rifle on

the floorboard under the front passenger seat where Cox had been sitting and a

handgun on the driver’s seat. Thereafter, Officer Snow, who is also an ATF

gun liaison, began to process the scene by taking photographs, securing the

weapons, and taking DNA swabs from the weapons. Both firearms were

loaded with bullets in the chambers. After Officer Snow had processed the

firearms, he submitted them for forensic testing. The Marion County Forensic

Agency was unable to locate fingerprints on the AR-15 rifle, and there was an

insufficient amount of DNA present on the firearm to perform a test.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-560 | August 24, 2020 Page 3 of 8 [6] The State charged Cox with Level 4 felony unlawful possession of a firearm and

Class A misdemeanor resisting law enforcement, while also alleging that he was

an habitual offender. Thereafter, the trial court conducted Cox’s jury trial.

Officer Stachowicz, Officer Snow, and Alaina Kreger from the Marion County

Forensic Services Agency testified to the facts above. During the trial, Cox and

the State stipulated that if Cox “possessed a firearm,” “it was unlawful for him

to do so.” (State’s Ex. 33). At the conclusion of the evidence, the jury found

Cox guilty of both charges. Cox then waived his right to a jury trial on whether

he was a serious violent felon and an habitual offender. Thereafter, the trial

court found that Cox was both a serious violent felon and an habitual offender.

[7] During the subsequent sentencing hearing, the trial court sentenced Cox to

eight (8) years for the Level 4 felony unlawful possession of a firearm by a

serious violent felon conviction and a concurrent one (1) year sentence for the

Class A misdemeanor resisting law enforcement conviction. The trial court

then ordered Cox to serve a “consecutive[]” nine (9) year-sentence for the

habitual offender enhancement for an aggregate seventeen (17) year executed

sentence in the Department of Correction.4 (Tr. Vol. 3 at 5). Cox now appeals.

4 We note that the trial court imposed this aggregate sentence by improperly treating the habitual offender finding as a separate conviction. The trial court sentenced Cox to nine years for being an habitual offender and ordered the sentence to be served consecutively with his sentence for Level 4 felony unlawful possession of a firearm by a serious violent felon. An habitual offender determination is not a separate crime and should not result in a consecutive sentence. I.C. § 35-50-2-8(j). Instead, the habitual offender determination allows the trial court to impose an enhanced sentence for the underlying felony. See J.L.H. v. State, 642 N.E.2d 1368, 1371 (Ind. 1994). The trial court should have enhanced Cox’s eight-year sentence for unlawful possession of a firearm by a serious violent felon by nine years for being an habitual offender. See Roark v. State, 829

Court of Appeals of Indiana | Memorandum Decision 20A-CR-560 | August 24, 2020 Page 4 of 8 Decision

[8] Cox challenges the sufficiency of the evidence for his unlawful possession of a

firearm by a serious violent felon conviction. Specifically, Cox does not

challenge his status as a serious violent felon; rather, he contends that the State

failed to prove that he constructively possessed the AR-15 rifle found under the

front passenger seat of the SUV.

[9] Our standard of review for sufficiency of evidence claims is well-settled. We do

not assess the credibility of the witnesses or reweigh the evidence in

determining whether the evidence is sufficient. Drane v. State, 867 N.E.2d 144,

146 (Ind. 2007). We consider the probative evidence and reasonable inferences

supporting the verdict. Id. Reversal is appropriate only when no reasonable

fact-finder could find the elements of the crime proven beyond a reasonable

doubt. Id. Thus, the evidence is not required to overcome every reasonable

hypothesis of innocence and is sufficient if an inference may reasonably be

drawn from it to support the verdict. Id. at 147.

[10] In order to convict Cox of unlawful possession of a firearm by a serious violent

felon, the State was required to prove that he knowingly or intentionally

possessed a firearm after having been convicted of a qualifying felony. See I.C.

§ 35-47-4-5(c). To prove that a defendant possessed an item, the State may

N.E.2d 1078, 1080 n.5 (Ind. Ct. App. 2005) (trial court improperly sentenced the habitual offender status as a separate crime), trans. denied. We remand for the trial court to correct the sentence.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-560 | August 24, 2020 Page 5 of 8 prove either actual or constructive possession. Payne v. State, 96 N.E.3d 606,

610 (Ind. Ct. App. 2018), trans. denied. Actual possession occurs “when a

person has direct physical control over [an] item.” Sargent v. State, 27 N.E.3d

729, 733 (Ind. 2015). When, as in this case, the State proceeds on a theory of

constructive possession, it must show that the defendant had “both the intent

and capability to maintain dominion and control over the [handgun].”

Bradshaw v. State, 818 N.E.2d 59, 62-63 (Ind. Ct. App. 2004).

[11] To prove intent to maintain dominion and control, the State must demonstrate

the defendant’s knowledge of the presence of the firearm. Griffin v. State, 945

N.E.2d 781, 784 (Ind. Ct. App. 2011). In cases where the accused has exclusive

possession of the premises in which the contraband is found, an inference is

permitted that he knew of the presence of the contraband and was capable of

controlling the contraband. Id. Where, as here, the control is non-exclusive,

knowledge may be inferred from evidence of additional circumstances pointing

to the defendant’s knowledge of the presence of the firearm. Causey v. State, 808

N.E.2d 139, 143 (Ind. Ct. App. 2004). These additional circumstances may

include, but are not limited to: (1) incriminating statements made by the

defendant; (2) attempted flight or furtive gestures; (3) proximity of the firearm

to the defendant; (4) location of the firearm within the defendant’s plain view;

or (5) the mingling of a firearm with other items owned by the defendant. Id.

From these additional circumstances, a reasonable fact-finder must determine

beyond a reasonable doubt whether the defendant knew of the nature and

presence of the contraband. Johnson v. State, 59 N.E.3d 1071, 1074 (Ind. Ct.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-560 | August 24, 2020 Page 6 of 8 App. 2016). The capability prong of constructive possession requires that the

State demonstrate that the defendant had the ability to maintain dominion and

control over the handgun; in other words, to reduce the handgun to his personal

possession. Griffin, 945 N.E.2d at 783.

[12] Beginning with the capability element, Officer Stachowicz and Officer Snow

both testified that the AR-15 rifle was in plain view under the front passenger

seat that Cox had previously occupied. Furthermore, the State introduced

photographic evidence of the front passenger seat showing the AR-15 on the

floorboard. Because the AR-15 rifle was in such close proximity to Cox, it was

reasonable to infer that he had the capability to reduce the firearm to his

personal possession. Thus, the State presented sufficient evidence to show that

Cox had the ability to maintain dominion and control over the handgun.

[13] There was also sufficient evidence to satisfy the intent element of constructive

possession. Here, the evidence revealed that Cox was the front passenger in a

vehicle where an AR-15 rifle was found in plain view under the front passenger

seat. When Officer Stachowicz attempted to conduct a traffic stop, the SUV

fled, and a vehicle pursuit ensued. Once the SUV stopped, Cox fled the scene

on foot. Thus, it was reasonable for the jury to infer that Cox had knowledge of

the nature and presence of the AR-15 rifle due to his flight, close proximity to

the rifle, and the rifle’s location in plain sight. See Deshazier v. State, 877 N.E.2d

200, 208 (Ind. Ct. App. 2007) (explaining that our courts are more likely to find

sufficient evidence of constructive possession “where evidence suggests that a

vehicle’s passenger could see the handgun, was in the best position to access the

Court of Appeals of Indiana | Memorandum Decision 20A-CR-560 | August 24, 2020 Page 7 of 8 gun, and no evidence clearly indicates the gun belonged to or was under the

control of another occupant in the vehicle.”), trans. denied.

[14] Cox’s arguments to the contrary merely amount to a request to reweigh the

evidence, which we cannot do. See Drane, 867 N.E.2d at 146. Based on the

evidence presented at trial, the jury, as the trier of fact, could have reasonably

determined that Cox had the intent and capability to maintain dominion and

control over the AR-15 rifle and that he constructively possessed it.

Accordingly, we affirm Cox’s Level 4 felony unlawful possession of a firearm

by a serious violent felon conviction.

[15] Affirmed and remanded with instructions.

Kirsch, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-560 | August 24, 2020 Page 8 of 8