Devonne Mosley v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 6, 2019
• Docket: 18A-CR-2871
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 06 2019, 10:24 am regarded as precedent or cited before any 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 Kurt A. Young Curtis T. Hill, Jr. Nashville, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Devonne Mosley, May 6, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2871 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Helen Marchal, Appellee-Plaintiff. Judge Trial Court Cause No. 49G15-1803-F6-9400

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Devonne Mosley (Mosley), appeals her conviction for

pointing a firearm, a Class A misdemeanor, Ind. Code § 35-47-4-3(b).

[2] We dismiss.

ISSUE [3] Mosley presents one issue on appeal, which we restate as: Whether the State

proved beyond a reasonable doubt that she committed the offense of pointing a

firearm.

FACTS AND PROCEDURAL HISTORY [4] Mosley and Walter Parker (Parker) dated for seven years and had a child

together. Their relationship ended sometime in the fall of 2017. On March 12,

2018, Parker and his friend K.B. went shopping at the City Gear on Pendleton

Pike in Indianapolis. Someone associated with Mosley alerted Mosley to their

presence at the store. When Parker and K.B. exited City Gear to return to

Parker’s car in the parking lot, Mosley drove up quickly in her SUV and parked

next to Parker’s car. In the backseat of Mosley’s SUV were Mosley’s child with

Parker as well as two other children. Mosley exited her SUV and began

shouting at K.B. Parker told K.B. to get in his car and lock the doors, which

she did.

[5] Mosley tried all of the doors of Parker’s car but found them to be locked. She

then returned to her SUV and retrieved a nine-millimeter handgun. Mosley

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019 Page 2 of 6 banged on the window of Parker’s car and ordered K.B. to exit. Mosley then

went to the front of Parker’s car and pointed the handgun at K.B. through the

windshield, again ordering her to exit the car. Mosley pointed the handgun at

K.B. intermittently for four-to-five minutes. Eventually, a woman told Mosley

to return to her SUV. Parker and K.B. fled in his car, and Mosley left the scene

in her SUV. A citizen who witnessed these events called 911 and provided the

police with Mosley’s license plate number. Parker went home and reported to

police that Mosley had pointed a firearm at him and at K.B.

[6] On March 19, 2018, the State filed an Information, charging Mosley with two

Counts of pointing a firearm as Level 6 felonies. On October 3, 2018, the trial

court conducted Mosley’s jury trial. After hearing the testimony of Parker and

K.B., the jury found Mosley not guilty of pointing a firearm at Parker but guilty

of pointing a firearm at K.B. On November 1, 2018, the trial court conducted

Mosley’s sentencing hearing. Evidence was presented that, as a United States

Postal Service worker, Mosley would lose her employment if convicted of a

felony. The trial court found that, in light of Mosley’s lack of criminal record, it

would enter judgment on the jury’s guilty verdict as a Class A misdemeanor.

The trial court sentenced Mosley to 365 days, all suspended to time-served and

to probation.

[7] Mosley now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019 Page 3 of 6 DISCUSSION AND DECISION [8] Mosley requests that we review the sufficiency of the evidence supporting her

conviction. The pointing a firearm statute provides that 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.” I.C. § 35-47-4-3(b). The jury found Mosley guilty of Level 6 felony

pointing a firearm, but the trial court entered judgment of conviction as a Class

A misdemeanor. Mosley argues that the fact of whether the gun she pointed at

K.B. was loaded was at issue and the State did not prove beyond a reasonable

doubt that the gun was loaded. Mosley contends, therefore, that we must

reverse and remand her case to the trial court “with instruction that it enter a

judgment of conviction of the class A misdemeanor.” (Appellant’s Br. p. 10).

The State counters that we should not address Mosley’s claim of insufficiency

of the evidence because it is moot, the trial court having already entered

judgment as a Class A misdemeanor. In her Reply Brief, Mosley contends that

her claim is not moot because her conviction may be viewed as a felony by a

federal court in any future federal prosecutions for being a felon in possession of

a firearm. Thus, we address the threshold issue of whether Mosley’s case is

moot.

[9] Generally, a case is deemed moot when no effective relief can be granted to the

parties before the court. Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). A

moot case is usually dismissed. Id. Our supreme court has recognized that it

may issue advisory opinions in some situations. See Mosley v. State, 908 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019 Page 4 of 6 599, 603 (Ind. 2009) (noting that our state constitution does not limit its

authority to “cases and controversies” as our federal Constitution limits the

federal courts). Exceptions to the general rule for mootness are made for

questions of great public interest which raise important policy concerns and are

likely to recur. Id.

[10] Here, the trial court already granted the relief sought by Mosley when it

entered judgment of conviction as a Class A misdemeanor. Thus, there is no

further relief which could be granted. Her claim is moot and ordinarily would

be dismissed by this court. Matter of Lawrance, 579 N.E.2d at 37. Mosley does

not attempt to argue that her claim of insufficiency of the evidence supporting

her conviction presents a matter of great public interest, important policy

concerns, or a matter which is likely to recur. In her effort to circumvent the

mootness of her case, Mosley does not provide any directly-applicable legal

authority for her proposition that a federal court may view her conviction as a

felony for purposes of any future prosecutions for the federal crime of being a

felon in possession of a firearm under 18 U.S.C. § 922(g).

[11] Indeed, for purposes of the federal felon in possession of a firearm statute, what

constitutes a prior felony conviction “shall be determined in accordance with

the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. §

921(a)(20); see also U.S. v. Thompson, 117 F.3d 1033, 1034 (7th Cir. 1997), cert.

denied (noting that state law determines whether there is a predicate state-law

conviction). At sentencing, an Indiana trial court may enter judgment of

conviction on a felony as a misdemeanor. I.C. § 35-50-2-7(c). When a trial

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019 Page 5 of 6 court does so, the misdemeanor constitutes a new and different judgment which

effectively vacates the prior judgment. State v. Reinhart, 112 N.E.3d 705, 715

(Ind. 2018). Thus, under Indiana state law, Mosley’s conviction for Level 6

felony pointing a firearm was extinguished when the trial court entered

judgment as a Class A misdemeanor. Mosley’s argument based on federal law

is not well-taken. Because the trial court already granted the relief sought by

Mosley when it entered judgment as a class A misdemeanor, her case is moot.

CONCLUSION [12] Based on the foregoing, we conclude that Mosley’s claim is moot and dismiss

this appeal.

[13] Dismissed.

[14] Bailey, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019 Page 6 of 6