Maurice Knight, Sr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 19, 2016
• Docket: 27A02-1506-CR-517
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 19 2016, 6:05 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Craig Persinger Gregory F. Zoeller Marion, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Maurice Knight, Sr., April 19, 2016 Appellant-Defendant, Court of Appeals Case No. 27A02-1506-CR-517 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Jeffrey D. Todd, Judge Trial Court Cause No. 27D01-1301-FB-7

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016 Page 1 of 10 [1] Maurice Knight, Sr. (“Knight”) was convicted after a jury trial of unlawful

possession of a firearm by a serious violent felon (“SVF”),1 a Class B felony,

and was sentenced to eighteen years executed. He appeals and raises the

following restated issues for our review:

I. Whether the State presented sufficient evidence to support his conviction; and

II. Whether his sentence was inappropriate in light of the nature of the offense and the character of the offender.

[2] We affirm.

Facts and Procedural History [3] In January 2013, Morgan Creech (“Creech”) was living with her father at a

residence located on East 27th Street in Marion, Indiana. On January 9, at

approximately 7:00 p.m., Creech was outside in the yard with her boyfriend

when Knight, who lived next door, came to the fence between the properties.

Knight angrily accused Creech of stealing his dog, and his demeanor scared

Creech. Knight placed his hands on the fence and threatened to jump over it

and go into Creech’s house to look for the dog. Creech did not have Knight’s

dog, but offered to allow Knight to come inside the house to look for the dog.

1 See Ind. Code § 35-47-4-5(c). We note that, effective July 1, 2014, a new version of this criminal statute was enacted. Because Knight committed his crime prior to July 1, 2014, we will apply the statute in effect at that time.

Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016 Page 2 of 10 Knight declined the offer. Creech called her father, who was not at home at the

time, and informed him of what occurred. He told Creech to call the police, but

she did not as she feared retaliation from Knight. Knight left his home at that

time in a grey cargo van. He was wearing a white stocking hat and was seated

in the passenger seat of the van.

[4] In the meantime, Creech’s father had called the police to report what had

transpired. Marion Police Department Officer Steve Pyle (“Officer Pyle”) and

Sergeant Kenneth Allen (“Sergeant Allen”) arrived at Creech’s residence a few

minutes after Knight left his residence. Creech told the officers about her

encounter with Knight and gave a description of Knight and the grey van.

While Creech was speaking with the officers, a grey van pulled up to the corner

of 27th and Terrace Streets. Officer Pyle asked Creech if the van resembled the

one in which Knight had left, and Sergeant Allen shone his flashlight over the

van. Creech stated that the van was the actual van in which she saw Knight

leave.

[5] The officers got into their marked patrol car and pursued the van in order to

speak with Knight about the incident with Creech. The officers caught up to

the van, and Sergeant Allen activated the car’s lights to initiate a traffic stop.

Before the van stopped, Sergeant Allen twice saw the passenger door of the van

open slightly and then close. The van pulled over to the side of the road and

stopped. As Officer Pyle exited the passenger side of the patrol car, he observed

the passenger door of the van open about twelve to eighteen inches and stay

open for just about a second. Sergeant Allen also saw the passenger door open

Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016 Page 3 of 10 and informed Officer Pyle, who confirmed to Sergeant Allen that he was aware

of it. Officer Pyle walked to the passenger side of the van and yelled several

times for the passenger to open the door and show his hands. Knight

eventually complied and opened the door to exit the van. Officer Pyle ordered

Knight, who was wearing a white stocking hat, to put his hands on the side of

the van, which Knight did. Officer Pyle began to conduct a pat-down search.

[6] As he was patting Knight down, Officer Pyle observed a handgun in the snow

just outside the passenger door and told Sergeant Allen about its presence.

Officer Pyle began to handcuff Knight, who struggled and had to be taken to

the ground. Officer Pyle later retrieved the handgun, which was sticking barrel

first in the snow, with the butt of the gun visible. When the handgun was

recovered from the snow, it did not have any snow on it. The handgun was

determined to be a black, .22 caliber revolver.

[7] The State charged Knight with one count of unlawful possession of a firearm by

a SVF, a Class B felony. A jury trial was held, and Knight was found guilty as

charged. At sentencing, the trial court found Knight’s extensive and “very

significant” criminal history, which included crimes of intimidation and

aggression and multiple probation violations, as an aggravating circumstance.

Tr. at 283. The trial court found no mitigating circumstances and sentenced

Knight to eighteen years executed. Knight now appeals.

Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016 Page 4 of 10 Discussion and Decision

I. Sufficient Evidence [8] The deferential standard of review for sufficiency claims is well settled. When

we review the sufficiency of evidence to support a conviction, we do not

reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

evidence most favorable to the verdict and the reasonable inferences that can be

drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

2014), trans. denied. We will not disturb the jury’s verdict if there is substantial

evidence of probative value to support it. Id. A conviction may be based upon

circumstantial evidence alone. Boggs, 928 N.E.2d at 864. We will affirm unless

no reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt. Tooley v. State, 911 N.E.2d 721, 724-25 (Ind. Ct. App. 2009),

trans. denied. As the reviewing court, we respect “the jury’s exclusive province

to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind.

2005).

[9] Knight contends that the evidence presented at trial was insufficient to support

his conviction for unlawful possession of a firearm by a SVF. He does not

claim that the State failed to prove that he was a SVF; he only argues that there

was not sufficient evidence to prove that he possessed the handgun discovered

in the snow next to the passenger door of the van. Knight asserts that he did

not have actual possession of the handgun, and there was insufficient evidence

to establish that he had constructive possession of the firearm. He specifically Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016 Page 5 of 10 alleges that the State did not prove any of the additional circumstances

indicating his knowledge of the presence of the handgun and his ability to

control it.

[10] In order to convict Knight of unlawful possession of a firearm by a SVF, the

State was required to prove beyond a reasonable doubt that he was a SVF who

knowingly or intentionally possessed a firearm. Ind. Code § 35-47-4-5(c).

Knight only contends insufficient evidence was presented to prove that he

possessed the handgun found by Officer Pyle. Possession of contraband need

not be actual but, rather, can be constructive. Mack v. State, 23 N.E.3d 742, 759

(Ind. Ct. App. 2014), trans. denied. In order to establish constructive possession,

the State must show that the defendant had both the intent and capability to

maintain dominion and control over the handgun. Id. When possession of the

premises where the contraband is found is non-exclusive, knowledge of

presence of the contraband may not be inferred absent some additional

circumstances indicating knowledge of the presence of the contraband and the

ability to control it. Gaynor v. State, 914 N.E.2d 815, 819 (Ind. Ct. App. 2009),

trans. denied. Among the recognized “additional circumstances” are: (1)

incriminating statements by the defendant; (2) attempted flight or furtive

gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the

contraband; (5) contraband is in plain view; and (6) location of the contraband

is in close proximity to items owned by the defendant. Id. at 819-20.

[11] Here, the evidence presented showed that Knight was the passenger in the grey

van pursued by the police. Before the van stopped, Officer Pyle observed the

Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016 Page 6 of 10 passenger door open twice, and an inference could be made that Knight was

attempting to discard contraband, such as the handgun at that time. At the

time the van was pulled over on the side of the road, Knight opened the

passenger door approximately twelve to eighteen inches, and the door remained

open for just about a second, which was enough time for Knight to drop the

unlawfully possessed handgun into the snow next to the van. After Office Pyle

was able to get Knight to exit the van, he began to pat him down and

immediately saw the handgun in the snow. The handgun was located just

outside of the passenger door of the van, which was in close proximity to

Knight. Officer Pyle testified that the handgun was in a location that Knight

could have easily reached down, grabbed it, and used it against the officers. Tr.

at 105.

[12] The evidence, therefore, established that the handgun was in close proximity to

Knight, in plain view as Officer Pyle noticed it immediately, and easily

accessible to Knight. Additionally, the handgun had not been in the snow for

any length of time as it was not covered in snow. Further, there were no

footprints in the area where the handgun was discovered. Based on the

evidence presented, the jury could have reasonably inferred that Knight had

both the intent and capability to maintain dominion and control over the

handgun and, thus, had constructive possession of the handgun. We conclude

that the evidence was sufficient to support Knight’s conviction for unlawful

possession of a firearm by a SVF.

Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016 Page 7 of 10 II. Inappropriate Sentence [13] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by

statute if we deem it to be inappropriate in light of the nature of the offense and

the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.

App. 2014). The question under Appellate Rule 7(B) is not whether another

sentence is more appropriate; rather, the question is whether the sentence

imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.

2008). It is the defendant’s burden on appeal to persuade the reviewing court

that the sentence imposed by the trial court is inappropriate. Chappell v. State,

966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.

[14] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

2008). The principal role of appellate review is to attempt to “leaven the

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

end of the day turns on “our sense of the culpability of the defendant, the

severity of the crime, the damage done to others, and myriad other facts that

come to light in a given case.” Id. at 1224.

[15] Knight argues that his eighteen-year sentence is inappropriate in light of the

nature of the offense and the character of the offender. Knight concedes that

the trial court properly took his extensive criminal history into consideration

when it sentenced him and that this court may “rightfully conclude that [his]

Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016 Page 8 of 10 criminal history reflects poorly on his character.” Appellant’s Br. at 9. However,

he contends that the nature of his crime involved nothing that “would shock the

conscience of the average person or which could fairly be characterized as

representing the mindset of a hardened criminal.” Id. Knight asserts that the

circumstances of the present case do not lend themselves to an eighteen-year

sentence because no threats of physical harm were made, no weapons were

displayed or used, and his neighbor’s property was never invaded.

[16] Knight was convicted of Class B felony unlawful possession of a firearm by a

SVF. A person who commits a Class B felony shall be imprisoned for a fixed

term of between six and twenty years, with the advisory sentence being ten

years. Ind. Code § 35-50-2-5. Here, the trial court sentenced Knight to eighteen

years executed.

[17] Looking to the nature of the offense, this case began when Knight aggressively

confronted his neighbor, Creech, about his missing dog. After the police were

called and were able to stop Knight, they observed that he was in constructive

possession of a handgun that he had discarded from the passenger door of the

van. Although Knight was not in actual possession of the handgun when the

police approached him, Officer Pyle testified that the handgun was located in

close proximity to Knight and that Knight could have easily reached down,

grabbed it, and used it against the officers. Tr. at 105. It was also proven at

trial that Knight was a SVF as he had a prior conviction for attempted robbery,

the commission of which made him a SVF. Ind. Code § 35-47-4-5(a)(2),

(b)(12).

Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016 Page 9 of 10 [18] Considering Knight’s character, he has an extensive criminal history that

includes crimes of aggression, violence, and intimidation. As a juvenile, Knight

had seven adjudications for offenses such as incorrigibility, battery, and

possession of a handgun. As an adult, Knight has been convicted of eleven

felonies, twenty-six misdemeanors, and nine probation violations. Many of

Knight’s convictions are for domestic battery, invasion of privacy, intimidation,

or battery. As evidenced by this lengthy history of criminal convictions, Knight

has been committing crimes the majority of his adult life. His criminal history

demonstrates his unwillingness and inability to lead a law-abiding life and his

contempt for the law and the authority of the court. Knight’s past convictions

have not caused him to change his behavior, and he continued to commit

criminal offenses even after being arrested for the present offense. Knight’s

character does not support a determination that his sentence is inappropriate.

We, therefore, conclude that Knight’s sentence is not inappropriate in light of

the nature of the offense and the character of the offender.

[19] Affirmed.

[20] Mathias, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A02-1506-CR-517 | April 19, 2016 Page 10 of 10