Robert L. McCoy v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 10, 2020
• Docket: 20A-CR-546
• Status: Published

Opinion

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah K. Smith Curtis T. Hill, Jr. Thorntown, Indiana Attorney General of Indiana FILED Tiffany A. McCoy Sep 10 2020, 8:38 am

Deputy Attorney General CLERK Indiana Supreme Court Indianapolis, Indiana Court of Appeals and Tax Court

IN THE COURT OF APPEALS OF INDIANA

Robert L. McCoy, September 10, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-546 v. Appeal from the Boone Circuit Court State of Indiana, The Honorable Lori N. Schein, Appellee-Plaintiff. Judge Trial Court Cause No. 06C01-1802-F4-401

Riley, Judge.

Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 1 of 11 STATEMENT OF THE CASE [1] Appellant-Defendant, Robert L. McCoy (McCoy), appeals his conviction for

unlawful possession of a firearm by a serious violent felon, a Level 4 felony,

Ind. Code § 35-47-4-5(c).

[2] We affirm.

ISSUE [3] McCoy presents this court with two issues, which we consolidate and restate as:

Whether the State presented sufficient evidence beyond a reasonable doubt to

sustain his conviction for unlawful possession of a firearm by a serious violent

felon.

FACTS AND PROCEDURAL HISTORY [4] On February 11, 2018, Lebanon Police officers responded to a call about a

suspicious individual at the Kroger grocery store in Lebanon, Indiana. At

approximately the same time, Kroger’s store manager, Bryan Brooks (Brooks),

was called to the front of the store by another employee to address a distressed

male who was being followed by other individuals. When the officers arrived,

Officer Aaron Carlson (Officer Carlson) noticed a black male, later identified as

McCoy, speaking on the phone at the north entrance of the store. After making

eye contact, McCoy briefly entered the store.

[5] When officers caught up with McCoy after he exited the store again, McCoy

provided them with his name and date of birth and asked if they wanted to

Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 2 of 11 search him. McCoy did not have any warrants, and he was not placed under

arrest or searched. McCoy explained that his vehicle had broken down on the

road next to a local Popeye’s restaurant and he was looking for help. Officer

Carlson became suspicious as he had passed that location on his way to Kroger

and had not noticed a broken-down car. Officer Tyreese Griffin (Officer

Griffin) walked with McCoy to the vehicle at Popeye’s, which was running and

had another individual in the driver seat. Officer Griffin briefly detained

McCoy and the other individual based on the officer’s suspicion of marijuana

being in the vehicle. Finding no marijuana, Officer Griffin released both

persons.

[6] At some point while the officers were accompanying McCoy, a Kroger

customer informed Brooks that there was a firearm in one of the black shopping

baskets near the north entrance of the store. After investigation, Brooks found a

black automatic handgun inside the basket—nothing else was in the basket.

Brooks secured the firearm and asked another employee to notify the officers

who were still on the premises. Brooks—without wearing gloves—carried the

firearm to the parking lot, where the officers properly secured and packaged the

firearm for evidence. The following day, Brooks provided the officers with

surveillance video from the area where the firearm was located.

[7] On February 20, 2018, the State filed an Information, charging McCoy with

unlawful possession of a firearm by a serious violent felon, a Level 4 felony;

and carrying a handgun without a license, a Level 5 felony. On January 29,

2020, following several continuances and withdrawals of counsel, the trial court

Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 3 of 11 conducted a bench trial where McCoy proceeded pro se. During the trial,

Officer Carlson testified that while watching the surveillance video of the area

where the firearm was located, he noticed McCoy walk up to the shopping

baskets, but was unable to distinguish what the object was in McCoy’s hand.

Officer Griffin informed the trial court that in the video he observed McCoy

remove an object that he “believed to be a firearm” and place it in the Kroger

shopping basket. (Transcript p. 85). During cross-examination of Detective

Bryan Spencer (Detective Spencer), Detective Spencer testified that “based on

the facts gathered during the examination,” he was confident that the object

McCoy “pulled from his waistband and placed in the basket was a firearm.”

(Tr. p. 117). Likewise, Brooks concurred that in “the video” he saw McCoy

place a firearm in the shopping basket. (Tr. p. 70). At the conclusion of the

trial, the State moved to dismiss the charge for carrying a handgun without a

license. On February 2, 2020, the trial court found McCoy guilty of unlawful

possession of a firearm by a serious violent felon. On February 26, 2020, the

trial court sentenced McCoy to ten years executed, with two years suspended.

[8] McCoy now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION [9] McCoy contends that the State failed to present sufficient evidence beyond a

reasonable doubt to support his conviction for unlawful possession of a firearm

by a serious violent felon. Our standard of review with regards to sufficiency

claims is well-settled. In reviewing a sufficiency of the evidence claim, this

court does not reweigh the evidence or judge the credibility of the witnesses. Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 4 of 11 Clemons v. State, 987 N.E.2d 92, 95 (Ind. Ct. App. 2013). We consider only the

evidence most favorable to the judgment and the reasonable inferences drawn

therefrom and will affirm if the evidence and those inferences constitute

substantial evidence of probative value to support the judgment. Id.

Circumstantial evidence alone is sufficient to support a conviction. Sallee v.

State, 51 N.E.3d 130, 133 (Ind. 2016). Circumstantial evidence need not

overcome every reasonable hypothesis of innocence. See Clemons, 987 N.E.2d

at 95. Reversal is appropriate only when reasonable persons would not be able

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

[10] To convict McCoy of unlawful possession of a firearm by a serious violent

felon, the State was required to establish that McCoy had been convicted of a

serious violent felony in Indiana or in “any other jurisdiction in which the

elements of the crime for which the conviction was entered are substantially

similar to the elements of a serious violent felony” in Indiana, and that McCoy

knowingly or intentionally possessed a firearm. I.C. §§ 35-47-4-5(a)(1);-(c).

The statute enumerates several offenses that qualify as a serious violent felony,

including robbery, in I.C. §§ 35-47-4-5(b)(13); 35-42-5-1. On appeal, McCoy

challenges the State’s evidence as to both his possession of the firearm and

whether his out-of-state conviction had elements sufficiently similar to an

Indiana serious felony charge. We analyze each of his claims in turn.

I. Sufficiency of the Evidence

Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 5 of 11 [11] McCoy contends that the State failed to present sufficient evidence that he

possessed the firearm. A conviction for unlawful possession of a firearm “may

rest upon proof of actual or constructive possession.” Smith v. State, 113 N.E.3d

1266, 1269 (Ind. Ct. App. 2018). Actual possession is “the direct physical

control of the gun,” whereas constructive possession occurs when the defendant

“has (1) the capability to maintain dominion and control over the item, and (2)

the intent to maintain dominion and control over it.” Id. Although McCoy

argued that the State could not establish that he constructively possessed the

firearm, it should be noted that “it is well-settled that [a] conviction for

possessory offenses does not depend on the accused being caught red-handed in

the act by the police.” Id. Moreover, it is “not necessary that the evidence

overcome every reasonable hypothesis of innocence. The evidence is sufficient

if an inference may reasonably be drawn from it to support the” judgment.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007).

[12] A review of the evidence reflects that sufficient evidence exists to support that

McCoy had actual possession of the firearm which he abandoned in a shopping

basket after the officers arrived at Kroger. At trial, Officer Carlson testified that

after he made eye-contact with McCoy at Kroger, McCoy walked inside Kroger

and shortly thereafter came back outside. When the officers confronted McCoy

outside Kroger, he volunteered to be searched, an invitation which was

declined by the officers. However, the surveillance video confirms that after

McCoy walked inside Kroger, he placed a firearm in the black shopping basket.

Brooks testified that the firearm was the only item in the basket when he

Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 6 of 11 retrieved it to take it to the officers. Two other officers testified that the video

clearly depicted McCoy removing the firearm from his waistband and placing it

in the basket. McCoy’s arguments that there is no DNA or fingerprint evidence

linking him to the firearm and that “the video footage is the only evidence to

support or not support the allegation that McCoy possessed a firearm and the

witnesses . . . were divided in their observations” are improper requests for this

court to reweigh the evidence and judge the credibility of the witnesses.

(Appellant’s Br. p. 27); Smith v. State, 8 N.E.3d 668, 679 (Ind. 2014); see also

Love v. State, 73 N.E.3d 693, 700 (Ind. 2017) (“for video evidence, the same

deference is given to the trial court as with other evidence, unless the video

evidence at issue indisputably contradicts the trial court’s findings.”)

[13] Based on the evidence before us, we conclude that the State presented sufficient

evidence which permitted a reasonable inference that McCoy exercised direct

physical control over the firearm before he discarded it into the shopping basket

to establish his actual possession. See Womack v. State, 738 N.E.2d 320, 324

(Ind. Ct. App. 2000) (“The [S]tate was not required to show that Womack

possessed the bag of marijuana at the time of Womack’s apprehension, or at the

time the officers discovered the bag.”), trans. denied.

II. Out-of-State Conviction

[14] McCoy also contends that the underlying conviction for armed robbery

incurred in Michigan is not substantially similar to the serious violent felony of

robbery in Indiana and therefore cannot be relied upon to support his serious

Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 7 of 11 violent felon conviction. The determination of whether an out-of-state statute is

substantially similar to an Indiana statute is a question for the trial court, not

the jury, to decide. I.C. § 34-38-4-3. This court reviews the trial court’s legal

determination de novo. Hollingsworth v. State, 907 N.E.2d 1026, 1030 (Ind. Ct.

App. 2009).

[15] “The elements of two statutes are substantially similar if they have common

core characteristics that are largely, but not identically, alike in degree or

extent.” State v. Hancock, 65 N.E.3d 585, 587 (Ind. 2016). In evaluating these

common core characteristics, “elements may be considered substantially similar

with response to specific characteristics such as the underlying conduct sought

to be regulated.” Id. However, “an out-of-state statute is not substantially

similar to an Indiana statute where the out-of-state statute is broader than the

Indiana statute.” Id.

[16] When McCoy was convicted of armed robbery in Michigan in 2007, the

Michigan statute read as follows:

A person who engages in conduct proscribed under [Mich. Comp. Laws § 750.530] and who in the course of engaging in that conduct, possesses a dangerous weapon or an article used or fashioned in a manner to lead any person present to reasonably believe the article is a dangerous weapon, or who represents orally or otherwise that he or she is in possession of a dangerous weapon, is guilty of a felony punishable by imprisonment for life or for any term of years.

Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 8 of 11 Mich. Comp. Laws § 750.529. The conduct proscribed under section 750.530

states:

(1) A person who, in the course of committing a larceny of money or other property that may be the subject of larceny, uses force or violence against any person who is present, or who assaults or puts the person in fear, is guilty of a felony punishable by imprisonment for not more than 15 years.

[17] The relevant Indiana robbery statute reads as follows:

(a) Except as provided in subsection (b), a person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) By using or threatening the use of force on any person; or

(2) By putting any person in fear;

commits robbery, a Level 5 felony. However, the offense is a Level 3 felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than a defendant, and a Level 2 felony if it results in serious bodily injury to any person other than a defendant.

I.C. § 35-42-5-1.

[18] McCoy focuses the challenge to his conviction on the statutory definition of a

weapon. However, to define McCoy as a serious violent felon in Indiana, it is

sufficient that he committed robbery—without the requirement of a weapon to

be used. Furthermore, a robbery conviction in Michigan includes unarmed

Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 9 of 11 robbery as a necessarily lesser-included offense of armed robbery. See People v.

Reese, 619 N.W.2d 708, 710 (Mich. Ct. App. 2000). Therefore, the more

appropriate inquiry is to address the broader issue as to whether the Michigan

and Indiana robbery statutes are substantially similar.

[19] Comparing both statutes, we note that both criminalize the act of intentionally

taking property from another person or the presence of another person by force

or fear. Under the Michigan statute, robbery is a specific intent crime which

requires the defendant to act intentionally, whereas the Indiana statute requires

the defendant to act intentionally or knowingly. See People v. Harverson, 804

N.W.2d 757, 761 (Mich. Ct. App. 2010). Both statutes require the taking from

another person or from the presence of another person. Michigan’s robbery

statute requires a defendant to commit a larceny or a felonious taking of the

property of another. Id. Indiana’s statute is nearly identical as it mandates a

defendant to “take[] property from another person or from the presence of

another person.” I.C. § 35-42-5-1(a). Finally, both statutes require the element

of force or fear to be instilled in the victim by the defendant. Michigan’s statute

requires the State to establish that the defendant, in the course of committing

larceny, “uses force or violence against any person who is present, or who

assaults or puts the person in fear.” Mich. Comp. Laws § 750.530. Similarly,

Indiana mandates the State to prove that the property is taken “by using or

threatening the use of force on any person; or by putting any person in fear.”

I.C. § 35-42-5-1(a). As the serious violent felon statute requires that the

elements of the underlying crime be substantially similar, but not perfectly

Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 10 of 11 congruent, we find the Michigan statute and Indiana statute satisfy this

requirement with respect to robbery in the two jurisdictions.

[20] Even if we address McCoy’s argument and analyze the definition of weapon,

his claim—that the two statues are not substantially similar—is without merit.

With respect to the definition of a weapon, both statutes focus less on the

original purpose of an object used as a weapon, but more on the manner in

which the defendant actually used the object. Compare I.C. § 35-31.5-2-86 and

Gleason v. State, 965 N.E.2d 702, 708 (Ind. Ct. App. 2012) (“The question of

whether a weapon is ‘deadly’ is determined from the description of the weapon,

the manner of its use, and the circumstances of the case.”), with People v. Bosca,

871 N.W.2d 307, 325 (Mich. Ct. App. 2015) (a dangerous weapon “can also be

an instrumentality which, although not designed to be a dangerous weapon, is

used as a weapon and, when so employed, is dangerous.”) As such, the

elements of the two statutes have core characteristics which are substantially

similar and are alike in degree and extent. Accordingly, we affirm McCoy’s

conviction for unlawful possession of a handgun by a serious violent felon.

CONCLUSION [21] Based on the foregoing, we hold that the State presented sufficient evidence

beyond a reasonable doubt to support McCoy’s conviction for unlawful

possession of a handgun by a serious violent felon.

[22] Affirmed.

[23] May, J. and Altice, J. concur Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 11 of 11