Johnnie Jones-Gunn v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 3, 2018
• Docket: 71A05-1711-CR-2625
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 03 2018, 5:43 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court 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 Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Johnnie Jones-Gunn, May 3, 2018 Appellant-Defendant, Court of Appeals Case No. 71A05-1711-CR-2625 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jeffrey L. Sanford, Appellee-Plaintiff Judge Trial Court Cause No. 71D03-1703-F5-46

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2625 | May 3, 2018 Page 1 of 5 [1] Johnnie Jones-Gunn appeals his conviction for Carrying a Handgun Without a

License, a Level 5 Felony.1 Jones-Gunn argues that the evidence is insufficient

to support his conviction. Finding the evidence sufficient, we affirm.

Facts [2] On March 18, 2017, South Bend police officers responded to a call regarding a

gunshot wound victim at St. Joseph Regional Medical Center. When Officers

Ryan Hiipakka and Blake Paturalski arrived at the hospital, they identified

Jones-Gunn as the victim. Jones-Gunn had a gunshot wound that entered his

right thigh and exited behind his right knee.

[3] Officer Hiipakka inspected the clothes that Jones-Gunn was wearing when he

was shot. The officer noted that there was “one bullet defect behind the back-

right knee area of the pants,” where the bullet would have exited, but that there

was no bullet defect on the front of the pants. Tr. p. 35. Officer Hiipakka also

observed gunshot residue on the inside of Jones-Gunn’s pants, but not on the

outside.

[4] Jones-Gunn initially told the officers that he had been shot by an unknown

person on Brookfield Street, which is in St. Joseph County. Officer Hiipakka

informed Jones-Gunn that the physical evidence did not match that version of

events. Jones-Gunn then admitted that he had accidently shot himself and that

1 Ind. Code § 35-47-2-1.

Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2625 | May 3, 2018 Page 2 of 5 he was not supposed to be in possession of a handgun. The officers asked

Jones-Gunn about the location of the gun, and he told Officer Paturalski that he

had thrown it in the river.

[5] On March 23, 2017, the State charged Jones-Gunn with Class A misdemeanor

carrying a handgun without a license and sought to enhance it to a Level 5

felony. A bifurcated jury trial took place on September 21, 2017. First, the jury

found Jones-Gunn guilty of Class A misdemeanor carrying a handgun without

a license. Second, the jury found that, because Jones-Gunn had a 2012 Class C

felony conviction, his misdemeanor should be enhanced to a Level 5 felony. At

the sentencing hearing on November 8, 2017, the trial court vacated the

misdemeanor conviction and sentenced Jones-Gunn to three years

incarceration for the felony conviction. Jones-Gunn now appeals.

Discussion and Decision [6] Jones-Gunn argues that there is insufficient evidence supporting his conviction.

Specifically, Jones-Gunn contends that the State failed to prove he possessed a

handgun and failed to prove that he was in St. Joseph County when he

possessed it. When reviewing challenges to the sufficiency of the evidence, we

do not reweigh the evidence or judge the credibility of the witnesses. Bond v.

State, 925 N.E.2d 773, 781 (Ind. Ct. App. 2010). Instead we consider only the

evidence most favorable to the verdict and the reasonable inferences drawn

therefrom, and we will affirm if the evidence and those inferences constitute

substantial evidence of probative value to support the verdict. Id. Reversal is

Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2625 | May 3, 2018 Page 3 of 5 appropriate only when a reasonable trier of fact would not be able to form

inferences as to each material element of the offense. Id.

[7] To convict Jones-Gunn of Level 5 felony carrying a handgun without a license,

the State must prove beyond a reasonable doubt that he knowingly or

intentionally carried a handgun on or about his body without being licensed,

and that he had been convicted of a felony within fifteen years before the date

of the offense. I.C. § 35-47-2-1.

[8] There is substantial physical evidence supporting the jury’s conclusion that

Jones-Gunn possessed a handgun. Testimony regarding the location of a bullet

defect near the exit wound, but no defect near the entrance wound, suggests

that Jones-Gunn was carrying a handgun in his waistband when it accidentally

discharged. Additionally, testimony that there was gunshot residue only on the

inside of his pants further suggests that he had been carrying a handgun when

he shot himself. Moreover, both Officers Hiipakka and Paturalski testified that

Jones-Gunn admitted to accidentally shooting himself.

[9] Jones-Gunn contends that the State’s evidence is insufficient because the

testimony of Officers Hiipakka and Paturalski provided “slightly different

versions of . . . how he [Jones-Gunn] suffered the gunshot wound.” Appellant’s

Br. p. 7. This amounts to an invitation to reweigh the evidence and assess the

credibility of the witnesses, which we decline to do. We find the evidence

sufficient to support the jury’s conclusion that Jones-Gunn possessed a

handgun.

Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2625 | May 3, 2018 Page 4 of 5 [10] Jones-Gunn’s second argument is somewhat unclear, but he appears to be

arguing either that venue was improper or that the evidence did not show that

he committed the offense in St. Joseph County. To the extent he makes a claim

of improper venue, we note that Indiana Trial Rule 12(H) provides that the

failure to raise the defense of improper venue is waived if it is not made in the

responsive pleading or by motion prior to the filing of a pleading. Here, there is

no indication in the record that Jones-Gunn ever raised a venue objection in the

trial court, or early in the proceedings. Jones-Gunn cannot raise a venue

objection on appeal, without having objected earlier in the proceedings.

[11] Additionally, to the extent he argues that the evidence does not support a

conclusion that he possessed the weapon in St. Joseph County, we note that he

told officers the shooting occurred on Brookfield Street, which is in St. Joseph

County, and that he told Officer Paturalski that he threw the gun in the river.

Tr. p. 88. A reasonable factfinder could infer that the river was the St. Joseph

River, located in St. Joseph County, given that Jones-Gunn sought treatment at

St. Joseph Regional Medical Center. In either event, therefore, this argument is

unavailing. In sum, we find the evidence sufficient to support Jones-Gunn’s

conviction.

[12] The judgment of the trial court is affirmed.

Kirsch, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2625 | May 3, 2018 Page 5 of 5