Opinion
23A-CR-2087
06-21-2024
James L. Atwood, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Amanda O. Blackketter Shelbyville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising Deputy Attorney General Kelly A. Loy Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Shelby Superior Court The Honorable Steven David, Senior Judge Trial Court Cause No. 73D02-2306-F5-40
ATTORNEY FOR APPELLANT Amanda O. Blackketter Shelbyville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising Deputy Attorney General Kelly A. Loy Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Altice, Chief Judge.
Case Summary
[¶1] Following a jury trial, James Lee Atwood was convicted of Level 5 felony operating a vehicle after forfeiture of license for life, Level 6 felony obstruction of justice, Level 6 felony resisting law enforcement, Class A misdemeanor resisting law enforcement, Class C misdemeanor reckless driving, and Level 5 felony unlawful carrying of a handgun. He was also adjudicated as a habitual offender. The trial court subsequently sentenced Atwood to an aggregate term of nine years on the underlying offenses enhanced by three years for being a habitual offender. On appeal, Atwood presents two issues for review:
1. Whether the evidence is sufficient to sustain Atwood's conviction for unlawful carrying of a handgun.
2. Whether the trial court properly sentenced Atwood.
[¶2] We affirm Atwood's conviction, but remand to the trial court for resentencing.
Facts &Procedural History
[¶3] On June 4, 2023, Atwood was driving in Shelbyville after forfeiting his license for life. That same day, Shelbyville Police Department Officer Brooke Mohler recognized Atwood at the Valero gas station and believed there was an outstanding warrant for his arrest. Officer Mohler was off duty, so she contacted Officer Josh Kieffer and provided a description of Atwood. Officer Kiefer contacted dispatch and confirmed a warrant existed for Atwood's arrest.
[¶4] Shortly thereafter, Officer Kieffer located a white sedan driven by an individual who matched the description provided by Officer Mohler. Officer Kieffer motioned the man to pull over and the driver stopped. Officer Kieffer asked the man if his name was James Atwood. The driver "stuck his head of out the window and said no," and provided the officer with a different name. Transcript Vol. I at 233. Officer Kieffer then told the driver, who was later identified as Atwood, that he was free to go.
[¶5] As Atwood drove away, Officer Kieffer noticed that the vehicle's license plate had expired, so he initiated a traffic stop. Atwood initially pulled over, but sped away when Officer Kieffer exited his patrol car. Officer Kieffer returned to his patrol car and pursued Atwood. Officer Thomas Short joined the pursuit directly behind Atwood. Both officers had their emergency lights and sirens activated. Atwood disregarded multiple stop signs and exceeded the speed limit, ultimately losing control of the vehicle and hitting a telephone pole. Atwood and the front-seat passenger then ran from the vehicle, ignoring commands to stop. The officers continued the pursuit on foot, and Officer Short eventually caught up with Atwood and arrested him. The front-seat passenger was not caught.
[¶6] Officer Short then returned to the white sedan and conducted an inventory search. Underneath the driver's seat, he found a red knapsack that contained a handgun and five shells of ammunition. He also noted that the handgun had one round in its chamber. Atwood, who was not the owner of the white sedan, denied knowledge of the handgun's presence.
[¶7] Following his apprehension, Atwood denied that he had been driving the vehicle. He told officers that two other men were present in the vehicle and that he was lying in the backseat during the pursuit. However, both Officer Short and Officer Kieffer saw only two men in the white sedan, and they were seated in the driver and front passenger seats.
[¶8] The State charged Atwood with various offenses, that, after several amendments and dismissals were: Level 5 felony operating a vehicle after forfeiture of license for life (Count I); Level 6 felony obstruction of justice (Count II); Level 6 felony resisting law enforcement vehicle (Count III); Class A misdemeanor resisting law enforcement (Count IV); Class C misdemeanor reckless driving (Count V); and Level 5 felony unlawful carrying of a handgun (Count XIV). He was also charged with being a habitual offender. On July 12, 2023, a jury found Atwood guilty of all charges and found him to be a habitual offender.
[¶9] On August 11, 2023, the trial court sentenced Atwood to the Indiana Department of Correction for four years on Count I, one year on Count II, one year on Count III, one year on Count IV, sixty days on Count V, and three years on Count XIV, to be served consecutively. The trial court then enhanced Count I by three years due to Atwood being a habitual offender, making his aggregate sentence thirteen years.
[¶10] Atwood now appeals, challenging his handgun conviction and his sentence. Additional information will be provided below as needed.
Discussion &Decision
I. Sufficiency of the Evidence
[¶11] On appeal, Atwood argues that the evidence is insufficient to support his conviction for Count XIV, unlawful carrying of a handgun. Specifically, Atwood asserts that the State failed to prove beyond a reasonable doubt that he knew the handgun was hidden under the driver's seat.
[¶12] Our Supreme Court has stated our standard of review for assessing claims of insufficient evidence:
Appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction [W]hen appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact finder could find the elements of the crime proven beyond a reasonable doubts. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.Deshazier v. State, 877 N.E.2d 200, 204 (Ind.Ct.App. 2007) (quotations and citations omitted) (emphases in original), trans. denied.
[¶13] To convict Atwood of unlawful carrying of a handgun, the State was required to show that he knowingly or intentionally possessed the firearm found under the driver's seat. See Ind. Code § 35-47-4-5. Possession of a firearm may either be actual or constructive. Conrad v. State, 747 N.E.2d 575, 582 (Ind.Ct.App. 2003). A person who has direct physical control over a firearm has actual possession. Causey v. State, 808 N.E.2d 139, 143 (Ind.Ct.App. 2007). Constructive possession, which is at issue here, occurs when the person has both the intent and capability to maintain dominion and control over the firearm. Id. Here, it is evident that Atwood did not have actual possession of the firearm at issue. Therefore, our analysis will focus on whether the State presented sufficient evidence to establish constructive possession. Because Atwood does not dispute his capability to exercise control over the firearm, we need only review the evidence as it pertains to the intent element of constructive possession.
[¶14] To prove the intent element of constructive possession, the State must demonstrate the defendant's knowledge of the presence of the firearm. Grim v. State, 797 N.E.2d 825, 831 (Ind.Ct.App. 2003). Knowledge may be inferred from either exclusive dominion and control over the premises or from evidence of additional circumstances indicating the defendant's knowledge of the presence of a firearm. Id. Such additional circumstances may 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. Id.
[¶15] Here, because Atwood did not have exclusive dominion and control of the white sedan in which the handgun was found, we consider the evidence in light of additional circumstances indicating Atwood's knowledge of the presence of the weapon. See Causey, 808 N.E.2d at 143.
[¶16] Atwood argues that the additional circumstances show the evidence is insufficient to prove he intended to maintain dominion and control over the handgun. Atwood points out that he did not own the vehicle, made no incriminating statements or furtive gestures, none of his personal possessions were found near the gun, the proximity of the weapon to him and his passenger was similar, and that the handgun was not in plain view.
[¶17] We acknowledge that Atwood did not make incriminating statements or furtive gestures, the firearm was not within his plain view, and none of his personal items were found near the firearm. However, Atwood fled from the officers by both car and then on foot. After being detained, Atwood lied to officers when he said he was not the driver. The handgun was also very close to Atwood, as it rested directly beneath him under the driver's seat. See Bradshaw v. State, 818 N.E.2d 59, 63 (Ind.Ct.App. 2004) (holding that knowledge of the presence of a firearm "can be inferred from the fact that the item was found in a place under his dominion and control."). Although Atwood suggests the reason for his flight was due to driving without a license, this is a request to reweigh evidence, which we cannot do. See Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).
[¶18] From the evidence presented, a jury could reasonably find that Atwood had the intent and capability to maintain dominion and control over the firearm, and therefore, constructively possessed the handgun. Accordingly, Atwood's conviction is supported by sufficient evidence.
II. Sentencing
[¶19] Atwood also challenges his consecutive sentences on Counts I, II, IV, and XIV, totaling nine years. Atwood argues his aggregate sentence could not exceed seven years under the consecutive sentencing cap set out in Ind. Code § 35-50-1-2(d). The State concedes that Atwood was improperly sentenced, and we agree.
[¶20] Aside from exceptions not applicable here, I.C. § 35-50-1-2(d) provides that when "the most serious crime for which the defendant is sentenced is a Level 5 felony, the total consecutive terms of imprisonment may not exceed seven years." Here, the trial court improperly imposed an aggregate sentence of nine years for these four offenses. Thus, we remand with instructions for the trial court to resentence Atwood in accordance with I.C. § 35-50-1-2(d).
[¶21] Judgment affirmed in part and remanded for resentencing.
Bradford, J. and Felix, J., concur.