Russell A. Prosser, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 23, 2015
• Docket: 50A05-1502-CR-51
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Oct 23 2015, 8:45 am this Memorandum Decision shall not be regarded as precedent or cited before any 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 Alexander L. Hoover Gregory F. Zoeller Law Office of Christopher G. Walter, Attorney General of Indiana PC Nappanee, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Russell A. Prosser, Jr., October 23, 2015 Appellant-Defendant, Court of Appeals Case No. 50A05-1502-CR-51 v. Appeal from the Marshall Superior Court State of Indiana, The Honorable Michael W. Reed, Appellee-Plaintiff Special Judge Trial Court Cause No. 50D02-1312-FB-76

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015 Page 1 of 10 Case Summary [1] Russell A. Prosser, Jr., appeals his convictions for eleven criminal counts

following two separate jury trials. 1 He contends that the trial court abused its

discretion in admitting a witness’s in-court identification of him and that the

evidence is insufficient to support his convictions. Finding that Prosser has

waived his challenge to the in-court identification and that the evidence is

sufficient, we affirm.

Facts and Procedural History [2] A summary of the convoluted factual background of this case is as follows. On

December 8, 2013, Ed Quella returned from work to his Culver home shortly

after 10:00 p.m. Quella noticed that the motion detector light for his garage had

been activated. When Quella looked out his window, he saw a person,

approximately his height and wearing a white hooded coat or hoodie, walk

from his property into a neighbor’s yard. Quella called the Culver Academy

Security Department. He spoke with a security officer who then directed him

to the Culver Police Department (“CPD”). Quella reported what he saw to

CPD Officer Troy Ulch. Officer Ulch responded to the scene.

[3] Quella informed Officer Ulch that he saw the person in the white hoodie travel

north. Officer Ulch began following footprints in the snow which led between

various residences, to several garages, to a business, and to the driver’s side of

1 Prosser was additionally found to be a habitual offender.

Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015 Page 2 of 10 four different cars at one residence and two additional cars parked in the street.

Officer Ulch surmised that the individual leaving the trail of footprints was

checking car doors to see if they were unlocked.

[4] Officer Ulch continued searching and eventually encountered Cole Flora

standing outdoors next to his vehicle. Flora, a resident of Quella’s

neighborhood, reported to Officer Ulch that he had been sitting inside his

vehicle smoking a cigarette, when he observed a man in a white hooded

sweatshirt approach his car. The man, later identified as Prosser, appeared to

be trying to look through the tinted windows to see if anyone or anything was

inside. When Flora opened his car door, Prosser jumped back. Flora spoke to

Prosser and told him that his behavior was “very sketchy.” Tr. Vol. I at 51.

When Flora inquired about what Prosser was doing, Prosser told Flora that he

was just “running from his old lady.” Id. Shortly after Prosser walked away,

Officer Ulch came down Flora’s street with the spotlight on his police vehicle

illuminated. Flora flagged Officer Ulch down, reported his encounter with

Prosser, and pointed Officer Ulch in the direction that Prosser had fled.

[5] Officer Ulch followed more footprints and quickly came upon a man in a white

hoodie who was carrying a bag thrown over his shoulder. When Officer Ulch

asked the man in the white hoodie if he could speak to him, the man took off

running. Officer Ulch chased the man but eventually lost sight of him after the

man climbed and jumped over a fence. Several police officers arrived at the

scene and started going door to door at an apartment complex around the area

where the man was last spotted. One resident reported that a tan pickup truck

Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015 Page 3 of 10 equipped with a ladder rack, that he had never seen before, had been parked

outside all evening and that he observed a person enter the truck and leave the

complex while the officers were searching. The resident reported that the

person in the truck was wearing a hood. Officer Ulch returned to the fence that

the man he was chasing had climbed and found numerous items strewn about

in the snow. Officer Ulch photographed and collected the items.

[6] At approximately 4:30 a.m. on December 9, 2013, Marshall County Police

Officer Nicholas Laffoon observed a tan pickup truck equipped with a ladder

rack in the parking lot of a McDonald’s restaurant in La Paz. The vehicle’s

engine was running and Prosser, who was wearing a white hoodie, was asleep

in the driver’s seat. Believing that this truck was relevant to an investigation

being conducted by the CPD, Officer Laffoon began taking pictures. Among

other things, Officer Laffoon observed a .22 caliber rifle located in the bed of

the truck. Officer Laffoon woke Prosser and quickly asked him whose rifle was

in the truck bed. Prosser, apparently fully aware of the presence of the firearm,

simply stated that the rifle was owned by his roommate. Other officers who

arrived on the scene asked Prosser if they could see the bottom of his boots.

The pattern on the bottom of Prosser’s boots appeared to match the footprints

left earlier all around the Culver neighborhood.

[7] After running a criminal background check on Prosser, officers arrested him for

being in possession of a firearm. Officers then obtained a search warrant for the

truck. Officers found a flintlock pistol under the driver’s seat and additional

items that belonged to a resident of the Culver neighborhood. Later that day,

Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015 Page 4 of 10 CPD took several reports from residents of the Culver neighborhood claiming

that they were missing items from their cars. The State charged Prosser with

sixteen criminal counts which included two counts of class B felony unlawful

possession of a firearm by a serious violent felon, one count of class D felony

receiving stolen property, one count of class A misdemeanor resisting law

enforcement, six counts of class D felony theft, and six counts of class B

misdemeanor unauthorized entry of a vehicle.

[8] On September 3, 2014, the trial court granted Prosser’s motion for severance

requesting separate trials on the firearm possession charges and the other

charges. The first jury trial on was held on October 28-29, 2014. The jury

found Prosser guilty of class D felony receiving stolen property, class A

misdemeanor resisting law enforcement, four counts of class D felony theft, and

four counts of class B misdemeanor unauthorized entry of a vehicle. The

second jury trial was held on February 18, 2015. The jury found Prosser guilty

of unlawful possession of a firearm by a serious violent felon regarding the .22

caliber rifle and not guilty of unlawful possession of a firearm by a serious

violent felon regarding the flintlock pistol. The jury also found Prosser to be a

habitual offender. This appeal followed.

Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015 Page 5 of 10 Discussion and Decision

Section 1 – Prosser’s challenge to the trial court’s admission of Flora’s in-court identification is waived. [9] Prosser first asserts that the trial court abused its discretion in admitting Flora’s

in-court identification of Prosser as the individual dressed in a white hoodie

whom he observed and spoke with outside his car on December 8, 2013.

Specifically, Prosser contends that Flora’s in-court identification was tainted

because the procedure employed by the police during a pretrial identification

was unduly suggestive. Our review of the record reveals that Prosser did not

object to Flora’s in-court identification of him. As a result, Prosser’s claim is

waived. 2 See Miles v. State, 764 N.E.2d 237, 239 (Ind. Ct. App. 2002) (holding

that defendant’s claim regarding inadmissibility of in-court identification due to

impermissibly suggestive pretrial identification tactics was waived because

defendant failed to lodge contemporaneous objection to in-court identification),

trans. denied.

2 Waiver notwithstanding, as observed by the State, Flora merely identified Prosser as the same individual in the white hooded sweatshirt whom he encountered, spoke with, and accused of acting “sketchy” on the night in question. Tr. Vol. I at 51. Flora did not testify that he saw Prosser commit any crime. Rather, his testimony simply placed Prosser in the vicinity of the crimes and explained how the police began investigating Prosser’s possible involvement. In light of the substantial evidence linking Prosser to the crimes, any error in the admission of Flora’s identification would have been harmless. See Ransnick v. State, 2 N.E.3d 17, 27 (Ind. Ct. App. 2013) (an error in the admission of evidence is disregarded as harmless if there is substantial independent evidence of guilt satisfying reviewing court that there is no substantial likelihood that the challenged evidence contributed to the conviction), trans. denied (2014).

Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015 Page 6 of 10 Section 2 – Sufficient evidence supports Prosser conviction for unlawful possession of a firearm by a serious violent felon. [10] Prosser next challenges the sufficiency of the evidence to support his conviction

for class B felony unlawful possession of a firearm by a serious violent felon

regarding the .22 caliber rifle. 3 When reviewing the sufficiency of the evidence

to support a conviction, we examine only the probative evidence and

reasonable inferences that support the conviction. Morgan v. State, 22 N.E.3d

570, 573 (Ind. 2014). We do not assess witness credibility or reweigh evidence.

Id. Rather, we consider only the evidence most favorable to the verdict and will

affirm the conviction unless no reasonable factfinder could find the elements of

the crime proven beyond a reasonable doubt. Id. The evidence will be deemed

sufficient if an inference may reasonably be drawn from it to support the

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

[11] Indiana Code Section 35-47-4-5(c) provides that a serious violent felon who

knowingly or intentionally possesses a firearm commits class B felony unlawful

possession of a firearm by a serious violent felon. Prosser concedes that he is a

serious violent felon as defined by Indiana Code Section 35-47-4-5(a), and

challenges only the sufficiency of the evidence regarding the element of

possession.

3 As noted earlier, Prosser was found not guilty of class B felony unlawful possession of a firearm by a serious violent felon regarding the flintlock pistol found in the truck.

Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015 Page 7 of 10 [12] Possession of a firearm can be actual or constructive. Tate v. State, 835 N.E.2d

499, 511 (Ind. Ct. App. 2005), trans. denied. Actual possession occurs when a

person has direct and physical control over the firearm, and constructive

possession occurs when a person has the intent and capability to maintain

control over the firearm. Id. When the State cannot show actual possession, a

conviction may rest on proof of constructive possession. Gray v. State, 957

N.E.2d 171, 174 (Ind. 2011).

[13] To prove the intent element of constructive possession, the State must

demonstrate the defendant’s knowledge of the presence of the contraband.

Perry v. State, 956 N.E.2d 41, 61 (Ind. Ct. App. 2011). Knowledge may be

inferred from the exclusive dominion and control over the premises containing

the contraband. Id. The capability requirement is met when the State shows

that the defendant is able to reduce the contraband to the defendant’s personal

possession. Id. As acknowledged by Prosser, this Court has previously noted

five types of evidence that the State may use to demonstrate constructive

possession of a firearm, namely, (1) incriminating statements by the defendant;

(2) attempted flight or furtive gestures; (3) proximity of the firearm to the

defendant; (4) location of the firearm within the defendant’s plain view; and (5)

the mingling of a firearm with other items owned by the defendant. Deshazier v.

State, 877 N.E.2d 200, 206 (Ind. Ct. App. 2007), trans. denied (2008).

[14] Here, Prosser’s exclusive dominion and control of the vehicle in which the rifle

was found is undisputed. He was the sole occupant of the truck, and he was

found asleep in the driver’s seat while the truck’s engine was still running.

Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015 Page 8 of 10 Although some items were piled above the rifle in the truck bed, the firearm

was located just a few feet behind Prosser and was clearly visible and accessible

from outside the truck. When awakened and questioned by police officers,

Prosser immediately admitted that he was fully aware of the presence of the

rifle but simply claimed that it belonged to his roommate. Finally, two

witnesses testified regarding incriminating statements that Prosser made to

them in which he bragged that he had brought the rifle with him in the truck for

use during a drug deal but that he did not believe that the State could prove his

possession of the rifle.

[15] From this evidence and the reasonable inferences arising therefrom, a

reasonable trier of fact could conclude both that Prosser had knowledge of the

presence of the rifle and that the rifle could readily be reduced to his personal

possession. Accordingly, a reasonable factfinder could find beyond a

reasonable doubt that Prosser constructively possessed the rifle. The State

presented sufficient evidence to support his conviction for class B felony

unlawful possession of a firearm by a serious violent felon.

Section 3 – Sufficient evidence supports Prosser’s remaining convictions. [16] In an extremely cursory manner, Prosser challenges the sufficiency of the

evidence to support his remaining ten convictions. Indiana Appellate Rule

46(A)8)(a) requires the argument section of a brief to contain the contentions of

the appellant on the issues presented supported by cogent reasoning and

citations to the authorities, statutes, and the appendix or parts of the record on

Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015 Page 9 of 10 appeal relied on. Indeed, an appellate brief should not only present issues to be

decided on appeal, but it should also be of material assistance to the court in

deciding those issues. Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App.

2012), trans. denied. Prosser has failed in this regard. His arguments are neither

crime-specific nor especially cogent, which is troubling here because he is

challenging ten different convictions involving different crimes and victims.

Nevertheless, we can summarize his bald assertions as an overall request for

this Court to reweigh the evidence in his favor which we will not do. See

Morgan, 22 N.E.3d at 573. Therefore, we affirm his convictions.

[17] Affirmed.

May, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015 Page 10 of 10