Michael Shaw v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 19, 2019
• Docket: 18A-CR-2934
• 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 Jun 19 2019, 9:06 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Shaw, June 19, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2934 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa Borges, Judge Appellee-Plaintiff Trial Court Cause No. 49G04-1710-F4-41262

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2934 | June 19, 2019 Page 1 of 4 [1] Michael Shaw appeals his conviction for Level 4 Felony Unlawful Possession

of a Firearm by a Serious Violent Felon,1 arguing that the evidence is

insufficient. Finding that the evidence is sufficient, we affirm.

Facts [2] From 2014 to 2017, Shaw and Staci Cash had an on again, off again

relationship. On October 19, 2017, Cash ended the relationship. On the night

of October 22, 2017, Cash was at home with her family and her friend, Anton

Eldridge. Around 2:00 a.m., Cash woke up and saw Shaw’s vehicle parked in

front of the house and Shaw standing beside the front door. Cash opened the

window and asked why he was there; he responded that he just wanted to talk.

She closed the window and walked outside, at which point Shaw’s demeanor

changed. He became angry and belligerent, yelling at and threatening Cash.

She asked him to leave but he refused. He then “smacked” her head into the

side of the brick house, leaving her dazed and in pain. Tr. Vol. II p. 22.

[3] Cash heard Shaw say, “b*tch, now I am going to get my gun” and saw him

walk away from the house towards his vehicle. Id. She ran inside the house,

screamed for help, and called 911. She looked out the window and saw Shaw

retrieve an AK-47-style gun from his vehicle and walk to the sidewalk in front

of the house, where he held the gun with two hands and continued to yell.

1 Ind. Code § 35-47-4-5(c).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2934 | June 19, 2019 Page 2 of 4 [4] Cash’s father and Eldridge came into the living room and started to go outside

to confront Shaw. Cash stopped them, telling them that Shaw had a gun so

they needed to stay inside. Eldridge looked outside and saw Shaw holding a

black AK-47 gun with two hands. Cash’s father did not see Shaw until Shaw

had turned around to walk back to his vehicle; therefore, he did not see the gun.

[5] On October 24, 2017, the State charged Shaw with multiple offenses and later

added an habitual offender allegation. Shaw’s jury trial took place on October

29-30, 2018. The jury found Shaw guilty of domestic battery, battery resulting

in bodily injury, criminal trespass, and unlawful possession of a firearm by a

serious violent felon; it found him not guilty of intimidation and the trial court

entered a directed verdict in Shaw’s favor on interference with the reporting of a

crime. Shaw admitted to being an habitual offender. On November 14, 2018,

the trial court vacated the conviction for battery resulting in bodily injury based

on double jeopardy concerns and sentenced Shaw to an aggregate nineteen-year

term, with five years suspended and three years on probation. Shaw now

appeals.

Discussion and Decision [6] Shaw’s sole argument on appeal is that the evidence is insufficient to support

his conviction for Level 4 felony possession of a firearm by a serious violent

felon. When reviewing the sufficiency of the evidence to support a conviction,

we must consider only the probative evidence and reasonable inferences

supporting the conviction and will neither assess witness credibility nor reweigh

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2934 | June 19, 2019 Page 3 of 4 the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm

unless no reasonable factfinder could find the elements of the crime proved

beyond a reasonable doubt. Id. To convict Shaw of possession of a firearm by

a serious violent felon, the State was required to prove beyond a reasonable

doubt that he is a serious violent felon who knowingly or intentionally

possessed a firearm. I.C. § 35-47-4-5(c).

[7] Shaw admits that he is a serious violent felon, arguing only that the evidence is

insufficient to support a conclusion that he possessed a firearm on the night in

question. We disagree. Cash testified that he told her he was going to get his

gun. She retreated inside her house and looked out to see him holding a gun,

which she recognized because she had seen him clean it and load it with bullets

in the past. When her father and Eldridge attempted to leave the house to

confront him, she stopped them, telling them that he was holding a gun.

Eldridge confirmed that fact, looking out to see that Shaw was, indeed, holding

a gun. This evidence readily supports a conclusion that Shaw possessed a gun.

His arguments to the contrary, including the facts that Shaw’s father did not see

the gun and that the police never found the gun, merely amount to a request to

reweigh the evidence, which we may not do. The evidence is sufficient.

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

Najam, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2934 | June 19, 2019 Page 4 of 4