Theodore Briscoe v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 16, 2018
• Docket: 49A04-1709-CR-2327
• 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 May 16 2018, 10:06 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Edgar Curtis T. Hill, Jr. J. Edgar Law Offices, Prof. Corp. Attorney General of Indiana Indianapolis, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Theodore Briscoe, May 16, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1709-CR-2327 v. Appeal from the Marion Superior Court The Honorable Alicia Gooden, State of Indiana, Judge The Honorable Richard Appellee-Plaintiff Hagenmaier, Commissioner Trial Court Cause No. 49G21-1602-F5-4552

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 1 of 11 [1] Theodore Briscoe appeals his convictions of Level 6 felony resisting law

enforcement by operation of a vehicle 1 and Level 5 felony carrying a handgun

without a license after having been convicted of a felony within the previous

fifteen years. 2 He argues the State did not present sufficient evidence to prove

he committed these crimes. 3 We affirm.

Facts and Procedural History [2] In the evening of February 1, 2016, Officer Matthew Minnis observed a vehicle

turn without signaling. He checked the license plate of the vehicle and

discovered it was stolen. After calling for backup, Officer Minnis activated his

emergency lights and air horn. Instead of stopping, the vehicle accelerated and

a high-speed chase ensued through residential areas of northwest Indianapolis.

[3] The chase ended when the vehicle struck a house. Officer Minnis and Officer

Craig Solomon helped pull Briscoe out of the car. The officers placed Briscoe

on his stomach on the ground. Officer Minnis testified there was nothing on

the ground when they placed Briscoe on the ground. Officer Minnis testified

Briscoe initially refused to put his hands behind his back, kept his hand

“directly under the center of his body towards his belt line[,]” (Tr. Vol. II at 18),

1 Ind. Code § 35-44.1-3-1(b)(1) (2014). 2 Ind. Code § 35-47-2-1(e)(2)(B) (2014). 3 Briscoe was also convicted of Class A misdemeanor resisting law enforcement, but he does not challenge that conviction.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 2 of 11 and “approximately in 10 or 15 seconds of pulling out his hands we were able

to get his hands behind his back, handcuffed him and at that time we rolled him

over to search his person and that’s where we located the small black

handgun[.]” (Id. at 17.)

[4] On February 4, 2016, the State charged Briscoe with Class A misdemeanor

carrying a handgun without a license, 4 Class A misdemeanor resisting law

enforcement, 5 and Level 6 felony resisting law enforcement by using a vehicle.

The handgun charge was later enhanced to a Level 5 felony by virtue of

Briscoe’s 2009 felony conviction. Briscoe’s jury trial commenced August 17,

2017, and the jury returned guilty verdicts as to all charges. On September 19,

2017, the trial court entered convictions accordingly and sentenced Briscoe to

six years incarcerated for the Level 5 felony handgun conviction to run

consecutive to two years incarcerated for Level 6 felony resisting law

enforcement. Those sentences were to run concurrent to one year incarcerated

for Class A misdemeanor resisting law enforcement, for an aggregate sentence

of eight years incarcerated.

Discussion and Decision

4 Ind. Code § 35-47-2-1(e) (2014). 5 Ind. Code § 35-44.1-3-1(a) (2014).

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 3 of 11 [5] When reviewing sufficiency of the evidence in support of a conviction, we will

consider only probative evidence in the light most favorable to the trial court’s

judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

decision comes before us with a presumption of legitimacy, and we will not

substitute our judgment for that of the fact-finder. Id.

[6] We do not assess the credibility of the witnesses or reweigh the evidence in

determining whether the evidence is sufficient. Drane v. State, 867 N.E.2d 144,

146 (Ind. 2007). Reversal is appropriate only when no reasonable fact-finder

could find the elements of the crime proven beyond a reasonable doubt. Id.

Thus, the evidence is not required to overcome every reasonable hypothesis of

innocence and is sufficient if an inference reasonably may be drawn from it to

support the verdict. Id. at 147.

Level 6 Felony Resisting Law Enforcement [7] To prove Briscoe committed Level 6 felony resisting law enforcement by

operation of a vehicle, the State had to present evidence Briscoe (1) forcibly

resisted, obstructed, or interfered with Officer Minnis while Officer Minnis was

lawfully engaged in his duties as a law enforcement officer; (2) used a vehicle to

commit the offense; and (3) operated the vehicle in such a way to create a

substantial risk of bodily injury to another person. Ind. Code § 35-44.1-3-

1(b)(1) (2014). Briscoe argues the State did not prove: (1) Briscoe forcibly

resisted Officer Minnis, or (2) Briscoe was the driver of the vehicle.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 4 of 11 “Forcibly”

[8] Briscoe relies primarily on our Indiana Supreme Court’s decision in Spangler v.

State, 607 N.E.2d 720 (Ind. 1993). In that case, an officer attempted to perfect

service on Spangler, and Spangler walked away from the officer. The officer

followed Spangler, who continued to walk away. Based on that encounter, a

jury found Spangler guilty of Class A misdemeanor resisting law enforcement.

Id. at 722. Our Indiana Supreme Court was called upon to interpret the word

“forcibly” as used in the statute governing resisting law enforcement.

[9] Our Indiana Supreme Court held, “one ‘forcibly resists’ law enforcement when

strong, powerful, violent means are used to evade a law enforcement official’s

rightful exercise of his or her duties.” Id. at 723. Based thereon, the Court

concluded:

There was no strength, power, or violence directed towards the law enforcement official. There was no movement or threatening gesture made in the direction of the official. Spangler repeatedly and firmly refused to accept service of process, then walked away. Looking at the evidence favorable to the verdict, there is no evidence of any “forcible” actions that the charged crime prohibits.

Id. at 724-5. Briscoe contends while the State presented evidence he fled in a

vehicle, it did not present evidence he took any action “directed toward” Officer

Minnis.

[10] However, our Indiana Supreme Court later held:

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 5 of 11 [N]ot every passive - or even active - response to a police officer constitutes the offense of resisting law enforcement, even when that response compels the officer to use force. Instead, a person “forcibly” resists, obstructs, or interferes with a police officer when he or she uses strong, powerful, violent means to impede an officer in the lawful execution of his or her duties. But this should not be understood as requiring an overwhelming or extreme level of force. The element may be satisfied with even a modest exertion of strength, power, or violence. Moreover, the statute does not require commission of a battery on the officer or actual physical contact - whether initiated by the officer or the defendant. It also contemplates punishment for the active threat of such strength, power, or violence when that threat impedes the officer’s ability to lawfully execute his or her duties.

Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013).

[11] Here, Briscoe used an SUV to flee from Officer Minnis at a high rate of speed.

He drove in a residential area, leaving the street and going into “grassy areas[,]”

(Tr. Vol. II at 9), where Officer Minnis could not follow him. The pursuit

ended only when Briscoe struck a house. Briscoe’s actions far exceeded those

he contends are comparable in Spangler. Briscoe used a large vehicle at a high

rate of speed to resist, obstruct, and interfere with Officer Minnis’ exercise of his

duties. See Mason v. State, 944 N.E.2d 68, 71 (Ind. Ct. App. 2011) (conviction of

resisting law enforcement using a vehicle affirmed based on evidence police

asked Mason to stop, but Mason drove away from officers at a high rate of

speed and crashed into multiple vehicles before being tased by officers), trans.

denied. Briscoe’s argument to the contrary is an invitation for us to reweigh the

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 6 of 11 evidence, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court

cannot reweigh evidence).

Driver of Vehicle

[12] Briscoe also argues the State did not present sufficient evidence he was the

driver and sole occupant of the vehicle. Briscoe points to testimony he asserts

proves “Briscoe’s position in the vehicle is not consistent with the claim that he

was the driver.” (Br. of Appellant 14.) Officer Minnis testified Briscoe was

“laying [sic] across the front seats, his hip area just about centered in the front

seat area, his legs were in the passenger side -- his upper body was in the driver

side area with [sic] his hands were slightly outside the window.” (Tr. Vol. II at

15.)

[13] Briscoe contends there was another person in the vehicle, but that person left

the scene prior to Officer Minnis and Officer Solomon’s arrival at the location

where the vehicle came to rest. Briscoe argues Officer Minnis did not see this

person because the nature of the chase, in that Briscoe was able to cross grassy

areas in an SUV and Officer Minnis was unable to do so in his patrol car,

meant there were moments when Officer Minnis could not see the car.

However, Officer Minnis testified he observed “a silhouette of a single occupant

in the vehicle,” (id. at 5), when he first attempted to pull over Briscoe. When

Officer Minnis arrived at the crash scene, he did not see footprints leading away

or “clues or inclination of there being anybody else in the vehicle.” (Id. at 16.)

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 7 of 11 [14] Briscoe’s alternate version of the incident is an invitation for us to reweigh the

evidence and judge the credibility of witnesses, which we cannot do. See Drane,

867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the

credibility of witnesses). We therefore conclude the State presented sufficient

evidence Briscoe committed Level 6 felony resisting law enforcement using a

vehicle. See Mason, 944 N.E.2d at 71 (conviction of resisting law enforcement

using a vehicle affirmed based on evidence police asked Mason to stop, but

Mason drove away from officers at a high rate of speed and crashed into

multiple vehicles before being tased by officers).

Level 5 Felony Possession of a Handgun without a License [15] To prove Briscoe committed Level 5 felony possession of a handgun without a

license after having been convicted of a felony within the previous fifteen years,

the State had to present evidence Briscoe (1) possessed a handgun; (2) without a

license; (3) after having been convicted of a felony within the last fifteen years.

Ind. Code § 35-47-2-1(e)(2)(B) (2014). Briscoe argues the State did not prove he

knowingly exercised control over the handgun, in part because a fingerprint on

the magazine of the weapon did not match Briscoe’s fingerprint.

[16] Possession of an item may be either actual or constructive. Henderson v. State,

715 N.E.2d 833, 835 (Ind. 1999). “Actual possession occurs when a person has

direct physical control over the item.” Id. Constructive possession occurs when

someone has “the intent and capability to maintain dominion and control over

the item.” Id. The parties do not argue Briscoe had actual possession of the

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 8 of 11 handgun. Instead, Briscoe argues the State did not present sufficient evidence

he constructively possessed the handgun at issue.

[17] As we have explained:

In order to prove constructive possession, the State must show that the defendant has both (1) the intent to maintain dominion and control and (2) the capability to maintain dominion and control over the contraband. To prove the intent element, the State must demonstrate the defendant’s knowledge of the presence of the contraband, which may be inferred from either the exclusive dominion and control over the premises containing the contraband or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant’s knowledge of the presence of the contraband. The capability requirement is met when the State shows that the defendant is able to reduce the contraband to the defendant’s personal possession. Proof of a possessory interest in the premises in which contraband is found is adequate to show the capability to maintain control and dominion over the items in question.

Iddings v. State, 772 N.E.2d 1006, 1015 (Ind. Ct. App. 2002), trans. denied.

Additional circumstances that support finding a defendant had the intent and

capability to maintain dominion and control over contraband kept in non-

exclusive premises include: “(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.” Causey v.

State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004).

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 9 of 11 [18] Here, Officer Minnis testified he and Officer Solomon looked around the

vehicle prior to placing Briscoe on the ground after extracting him from the

vehicle because “[w]e [did] not want to injure either the suspect ourselves and

put them on the [sic] something that that [sic] could cause either one was [sic]

harm.” (Tr. Vol. II at 16.) He stated there was nothing on the ground and

nothing on the grass when he and Officer Solomon placed Briscoe on the

ground. Officer Minnis did not see the handgun until after he rolled Briscoe

onto his back once Briscoe was handcuffed. Additionally, the State presented

evidence that after the officers extricated him from the vehicle, Briscoe “turned

his hand toward the center of his body about the belt line and held them [sic]

there forcibly for about 15 to 20 seconds . . . Officer Minnis and [Officer

Solomon] had to apply a considerable amount of force to force his hands out

from under his body[.]” (Id. at 70-1.)

[19] Briscoe’s alternate version of the incident, in which the gun was present in the

front yard of the home he happened to crash into at the end of a high speed

chase prior to his arrest is an invitation for us to reweigh the evidence, which

we cannot do. See Drane, 867 N.E.2d at 146 (appellate court cannot reweigh

evidence or judge the credibility of witnesses). The State presented evidence the

handgun was found under Briscoe when there was nothing on the ground prior

to his occupancy of that space and evidence Briscoe refused to remove his

hands from under his body and had to be forced to do so. We conclude the

State presented sufficient evidence Briscoe constructively possessed the

handgun. See Deshazier v. State, 877 N.E.2d 200, 208 (Ind. Ct. App. 2007)

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 10 of 11 (constructive possession of a handgun proven based on Deshazier’s furtive

gestures, flight from officers, and sitting on the gun), trans. denied.

Conclusion [20] The State presented sufficient evidence Briscoe committed Level 6 felony

resisting law enforcement using a vehicle and Level 5 felony possession of a

handgun without a license after having been convicted of a felony within the

last fifteen years. Accordingly, we affirm.

[21] Affirmed.

Riley, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 11 of 11