Opinion
22A-CR-14
07-18-2022
Billy R. Barker, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT RONALD K. SMITH MUNCIE, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA ELLEN H. MEILAENDER DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), 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.
Appeal from the Delaware Circuit Court The Honorable Kimberly S. Dowling, Judge Trial Court Cause No. 18C02-2009-F4-35
ATTORNEY FOR APPELLANT RONALD K. SMITH MUNCIE, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA ELLEN H. MEILAENDER DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Billy Barker (Barker), appeals his conviction and sentence for unlawful possession of a firearm by a serious violent felon (SVF), a Level 4 felony, Ind. Code § 35-47-4-5(c); criminal recklessness, a Level 5 felony, I.C. § 35-42-2-2(a), -2(B); and criminal mischief, a Class B misdemeanor, I.C. § 35-43-1-2(a).
[¶2] We affirm. ISSUES
[¶3] Barker presents two issues on appeal, which we restate as the following:
(1) Whether the State presented sufficient evidence to support his conviction for unlawful possession of a firearm by a SVF; and
(2) Whether the trial court imposed an erroneous sentence.
FACTS AND PROCEDURAL HISTORY
[¶4] On the afternoon of August 18, 2020, Brooke Skinner (Skinner), Skinner's boyfriend George Shaner (Shaner), and their two minor children aged two and five were driving to their home in Delaware County, Indiana. Skinner was driving, Shaner was seated in the passenger seat, and the children were seated in the back. While on Memorial Street in Muncie, a blue Chevy S-10 pickup truck (Chevy pickup) with a silver toolbox attached to the bed of the truck was traveling in the left lane. At some point, the Chevy pickup driver turned into the right lane, Skinner slammed on her brakes to avoid hitting the driver and she honked her horn at the driver. The driver of the Chevy pickup then returned to the left lane and began arguing between the vehicles with Skinner and Shaner for a couple of blocks. Thereafter, the driver of the Chevy pickup got behind Skinner's vehicle and sped up as if he was going to hit her bumper. When the two reached the intersection of Memorial and Madison, the Chevy pickup driver returned to the left lane and stopped alongside Skinner's vehicle because the light turned red. Skinner and Shaner yelled at the Chevy pickup driver. Shaner also informed the Chevy pickup driver that there were children in the car. When the light turned green and cars began to move, the Chevy pickup driver extended his arm, while holding a black firearm, and fired two shots at the driver's side of the vehicle in which Skinner, Shaner, and the children were seated. As the driver of the Chevy pickup drove away, Shaner instructed Skinner to turn into an Advanced Auto parking lot. After ensuring that nobody had been injured from the shooting, Shaner called 911 and gave a description of the shooter and his vehicle.
[¶5] Officer Lucas Harder (Officer Harder) of the Muncie Police Department (MPD), who was a few blocks from the shooting, was first to respond. While driving toward the location of the origin of the 911 call, Officer Harder passed a Chevy pickup being driven by a bald Black male going in the opposite direction. When Officer Harder looked through at his rearview mirror, he saw that the driver failed to stop when the light turned red on Macedonia Street. Officer Harder turned his vehicle around, pursued the driver, but lost sight of the driver on Mock Street.
[¶6] On August 23, 2020, in a matter unrelated to the shooting, Officer Joshua Carrington (Officer Carrington) and other MPD officers encountered an individual who identified himself as Barker. Barker was removing some items from a residence on Kirby Avenue and loading them in the bed of a blue Chevy pickup. One of the items that was being moved from the residence and loaded on the bed of the truck was a silver toolbox that was later identified from the officers' body cameras.
[¶7] During his investigation, Officer Harder obtained Barker's name through the interaction Officer Carrington had with Barker. On August 25, 2020, Officer Harder prepared a photo array which included a photo of Barker and presented it to Shaner and Skinner. Shaner stated that he was "90% [] sure, almost one hundred percent [] sure" that Barker was the one who fired shots at their vehicle. (Tr. Vol. II, p. 67). Skinner hesitated between two photographs, one of whom was Barker, but ultimately identified another person as the shooter. On August 26, 2020, Barker was arrested without a warrant for the shooting while visiting his parole officer. He was in the presence of his girlfriend, and his aunt, Rebecca Copley (Copley). Following Barker's arrest, MPD officers went to Copley's residence where Barker resided. The police towed the Chevy pickup pursuant to a search warrant and then, after obtaining consent from Copley and Copley's brother, the police searched the house. The police recovered a Smith and Wesson .40 caliber handgun inside the house. A few days later, after she saw a color picture of Barker's arrest log, Skinner recognized Barker and realized that she had identified the wrong person as the shooter.
[¶8] On September 1, 2020, the State filed an Information, charging Barker with Level 4 felony unlawful possession of a firearm by a SVF, Level 5 felony criminal recklessness, and Class B misdemeanor criminal mischief. A bifurcated jury trial was held on November 8 and 9, 2021. At the close of the evidence, the jury returned guilty verdicts on all Counts. In the second phase, the jury found Barker guilty of unlawful possession of a firearm by a SVF. On December 6, 2021, the trial court conducted a sentencing hearing and sentenced Barker to consecutive sentences of ten years for the unlawful possession of a firearm by a SVF conviction, five years for the criminal recklessness conviction, and a concurrent term of 180 days for the criminal mischief conviction. Barker's aggregate sentence is fifteen years.
[¶9] Barker now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
[¶10] When reviewing a claim of insufficient evidence, it is well-established that our court does not reweigh evidence or assess the credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all the evidence, and any reasonable inferences that may be drawn therefrom, in a light most favorable to the verdict. Id. We will uphold the conviction "'if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.'" Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).
[¶11] Barker appears to only challenge his conviction for unlawful possession of a firearm by a SVF. Indiana Code Section 35-47-4-5 states, in relevant part:
(a) As used in this section, "serious violent felon" means a person who has been convicted of committing a serious violent felony.
(b) As used in this section, "serious violent felony" means:
(2) voluntary manslaughter (IC 35-42-1-3)
(c) A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Level 4 felony.
[¶12] Regarding the possession element of his offense, Barker contends that the State failed to present sufficient evidence beyond a reasonable doubt that it was he who possessed the firearm. Specifically, he argues that the State's evidence consisted mainly of Shaner's and Skinner's identification of him. Shaner was unsure since he stated that "he was 90% certain of his identification of Barker, but could be wrong", and "Skinner admitted that she had originally picked the wrong person from the photo lineup that she was shown. She only determined that Barker was the shooter several days later, after she saw the arrest log and his picture." (Appellant's Br. p. 10) (internal citations omitted).
[¶13] "Elements of offenses and identity may be established entirely by circumstantial evidence and the logical inferences drawn therefrom." Holloway v. State, 983 N.E.2d 1175, 1178 (Ind.Ct.App. 2013) (internal citation omitted). The unequivocal identification of the defendant by a witness in court, despite discrepancies between his description of the perpetrator and the appearance of the defendant, is sufficient to support a conviction. Emerson v. State, 724 N.E.2d 605, 610 (Ind. 2000). Inconsistencies in identification testimony impact only the weight of that testimony, because it is the jury's task to weigh the evidence and determine the credibility of the witnesses. Gleaves v. State, 859 N.E.2d 766, 770 (Ind.Ct.App. 2007).
[¶14] During the first phase of Barker's trial, despite being uncertain, Shaner testified in court that he was "100%" certain that Barker was the shooter. (Tr. Vol. II, p. 67). Skinner, who had selected a different person from the black and white photo array, stated that she realized her mistake a couple of days later. She stated that after seeing a color photograph of Barker from the arrest log, she changed her prior out-of-court identification and identified Barker in-court as the person who shot at her and/or her vehicle. The jury was able to assess the credibility of the victims' testimonies, and to the extent that there was discrepancy between their out-of-court and in-court identification of Barker as the shooter, it was the jury's function to resolve any such conflicting testimony and discrepancies. See Emerson, 724 N.E.2d at 610 (observing that it is the jury's function to resolve conflicting testimony and discrepancies between the witnesses' original out-of-court identifications).
[¶15] Moreover, there was other circumstantial evidence presented to corroborate Shaner's and Skinner's testimony identifying Barker as the shooter. When Shaner called 911, he described the Chevy pickup and indicated that the truck had a silver toolbox, and reported that the driver was a bald Black male. Officer Hunter was the first to respond to the shooting, and he observed a bald Black male driving a blue Chevy pickup in the opposite direction that Officer Hunter was driving. Officer Hunter pursued the driver, but lost visual contact with the Chevy pickup on Mock Street. Additionally, the evidence showed that the police recovered a silver toolbox from Barker's girlfriend's house on Mock Street, which was where Officer Harder lost sight of the Chevy pickup. Further, the MPD also retrieved a black handgun from the residence where Barker was residing, which was evidence that Barker had access to a firearm. Barker's arguments on appeal constitute a request for this court to reweigh the evidence, which we cannot do. See Walker, 998 N.E.2d at 726.
[¶16] As for the elements pertaining to Barker's prior conviction for voluntary manslaughter qualifying him as a SVF, Barker argues that while "certified documents of judgments or commitment proceedings contain the same or similar name" as him, the State failed to introduce other evidence to identify him as "the same person named in the documents." (Appellant's Br. pp. 10-11).
[¶17] Our supreme court has previously explained that "'[c]ertified copies of judgments or commitments containing a defendant's name or a similar name may be introduced to prove the commission of prior felonies.'" Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002) (quoting Hernandez v. State, 716 N.E.2d 948, 953 (Ind. 1999)). However, "'there must be supporting evidence to identify the defendant as the person named in the documents.'" Id. (quoting Hernandez, 716 N.E.2d at 953). This proof of identity "'may be in the form of circumstantial evidence.'" Walker v. State, 988 N.E.2d 1181, 1187 (Ind.Ct.App. 2013) (quoting Baxter v. State, 522 N.E.2d 362, 365 (Ind. 1988), trans. denied. "'If the evidence yields logical and reasonable inferences from which the finder of fact may determine beyond a reasonable doubt that it was [the] defendant who was convicted of the prior felony, then a sufficient connection has been shown.'" Tyson, 766 N.E.2d at 718 (quoting Hernandez, 716 N.E.2d at 953).
[¶18] While the State presented certified court documents showing that Barker was convicted and sentenced for Class A felony voluntary manslaughter in 1993, it also presented testimony from Barker's parole officer to prove his identity. Specifically, the parole officer identified Barker as the Billy Ray Barker named in the certified court documents as the same person who committed the 1993 voluntary manslaughter offense. He affirmed that he was Barker's parole officer after Barker was released for that offense, and he then identified him in open court. See Walker, 988 N.E.2d at 1187 (finding sufficient evidence connecting the defendant to the prior conviction based on testimony from the investigating officer and probation officer in the prior case identifying Walker). Here, we find that the State presented sufficient evidence showing Barker was the same person who was convicted of a prior serious violent felony in 1993. Based on the foregoing, we conclude that the State presented sufficient evidence from which the trier of fact could have found Barker guilty of unlawful possession of a firearm by a SVF, and we affirm his conviction.
II. Sentencing Challenges
[¶19] Barker raises two issues relating to his sentence. He relies on our double jeopardy doctrine to challenge his sentence. He also argues that his sentence was unconstitutional under Article 1, Section 16 of the Indiana Constitution.
Barker also challenges his sentence, arguing that his sentence is inappropriate in light of the nature of the offense and his character. However, he does not develop an argument to support an inappropriate sentence claim, and therefore we conclude that he has waived any such claim. See Sandleben v. State, 29 N.E.3d 126, 136 (Ind.Ct.App. 2015) (concluding that the defendant waived an inappropriate sentence argument by failing to advance cogent argument on that issue), trans. denied; see also Gentry v. State, 835 N.E.2d 569, 575-76 (Ind.Ct.App. 2005) (holding that the defendant's failure to offer more than a mere conclusory statement that his sentence should be reduced waives his opportunity for appellate review).
A. Double Jeopardy
[¶20] Barker argues that his unlawful possession of a firearm by a SVF and criminal recklessness offenses were so compressed in terms of time, place, singleness of purpose and continuity of action as to constitute a single transaction. He therefore claims that the trial court erroneously "imposed consecutive sentences for a single incident." (Appellant's Br. p. 11). In support, he relies on Wadle v. State, 151 N.E.3d 227 (Ind. 2020). The State argues that Wadle is a "double jeopardy case[] addressing the validity of multiple convictions, not [a] case[] addressing the propriety of consecutive sentences." (Appellee's Br. p. 16).
[¶21] In Wadle, the supreme court recognized that "[s]ubstantive double jeopardy claims come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims." Wadle, 151 N.E.3d at 247. "When multiple convictions for a single act or transaction implicate two or more statutes, we first look to the statutory language itself." Id. at 248. "If the language of either statute clearly permits multiple punishments, either expressly or by unmistakable implication, the court's inquiry comes to an end and there is no violation of substantive double jeopardy." Id. "If, however, the statutory language is not clear, a court must then apply our included-offense statutes to determine statutory intent." Id.
[¶22] Under Indiana Code section 35-38-1-6, a trial court may not enter judgment of conviction and impose a sentence for both an offense and an "included offense." One type of included offense is an offense that differs from the greater offense "only in the respect that a less serious harm or risk of harm to the same person, property, or public interest . . . ." Ind. Code § 35-31.5-2-168(3). An offense is "factually included" in another offense when "the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense." Wadle, 151 N.E.3d at 251 n.30. "If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy." Id. at 248. If the underlying facts of the two offenses, as set forth in the charging information and as adduced at trial, show two separate and distinct crimes, there is no violation of substantive double jeopardy, even if one offense is included in the other. Id. at 235, 249.
[¶23] Applying the Wadle test, we first observe that neither the unlawful possession of a firearm by a SVF statute nor the criminal recklessness statute permits multiple convictions, either expressly or by unmistakable implication. See I.C. §§ 35-47-4-5(c); 35-42-2-2(a). Therefore, we must determine whether unlawful possession of a firearm by a SVF is a lesser included offense of criminal recklessness, either inherently or as charged.
[¶24] A Level 4 felony unlawful possession of a firearm as a SVF is established by proof that a person, after having been convicted of a qualifying felony, specifically voluntary manslaughter, knowingly or intentionally possessed a firearm. I.C. § 35-47-4-5(c). The relevant portions of the criminal recklessness statute provide that a person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person, commits criminal recklessness. I.C. § 35-42-2-2. The offense is a Level 5 felony if "[i]t is committed by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather." I.C. § 35-42-2-2(b)(2)(A). Based on the statutory requirements for each offense, we find no overlap between the elements. Additionally, we note that the facts alleged in the charging information and the evidence presented at Barker's trial demonstrate that neither offense is an included offense of the other. As noted in the first section, the State presented evidence that Barker, having been convicted as a SVF, unlawfully possessed a firearm. As for the criminal recklessness charge, the State presented evidence that Barker fired two shots into a vehicle that was occupied by people during a road rage incident. Because neither offense is included in the other, there is no double jeopardy violation. Wadle, 151 N.E.3d at 248.
Garcia v. State, 979 N.E.2d 156, 158 (Ind.Ct.App. 2012) (reasoning that "place" is a broad term and holding that a vehicle is a place where people are likely to gather).
B. Proportionality Clause
[¶25] Barker contends that his aggregate fifteen-year sentence violated the Indiana Constitution. Article 1, Section 16 of the Indiana Constitution provides that all penalties "shall be proportioned to the nature of the offense." This does not mean we are at liberty to set aside a legislatively sanctioned penalty merely because it seems too severe. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997). Moreover, "[t]he constitutional requirement that a sentence be proportionate to the offense does not require us to compare [Barker's] sentence to the sentence of others convicted of the same crime." Farris v. State, 753 N.E.2d 641, 648 (Ind.2001) (citing Gambill v. State, 675 N.E.2d 668, 678 (Ind. 1996)). Rather, a criminal penalty violates the proportionality clause "'only when a criminal penalty is not graduated and proportioned to the nature of the offense.'" Conner v. State, 626 N.E.2d 803, 806 (Ind. 1993) (quoting Hollars v. State, 259 Ind. 229, 236, 286 N.E.2d 166, 170 (1972)). Stated more precisely, a sentence violates the proportionality clause where it is so severe and entirely out of proportion to the gravity of offense committed as "'to shock public sentiment and violate the judgment of a reasonable people.'" Pritscher v. State, 675 N.E.2d 727, 731 (Ind.Ct.App. 1996) (quoting Cox v. State, 203 Ind. 544, 549, 181 N.E. 469, 472 (1932)). In performing a proportionality analysis under the Indiana Constitution, we consider both the nature and gravity of the present offense as well as the nature of the prior offenses. See Moore v. State, 515 N.E.2d 1099, 1105 (Ind. 1987).
[¶26] Barker argues that the "imposition of consecutive sentences herein for a single offense is in violation" of Article 1 section 16 of the Indiana Constitution. (Appellant's Br. p. 11). Barker misunderstands the proportionality clause of Article 1, section 16. That section addresses whether the sentence a defendant receives is proportional to the nature of a particular offense.
[¶27] Prior to issuing its sentencing decision, the trial court stated that it had considered Barker's presentencing report which included violent offenses, Class A felony voluntary manslaughter and Class C felony battery convictions. The court then stated that, Barker, who was determined to be a SVF, fired shots "into a car occupied by adults and children." (Tr. Vol. III, p. 32). In its sentencing order, again, the trial court noted Barker's criminal history as an aggravating factor, and it stated that the "facts of the instant offense are particularly disturbing and heinous." (Appellant's App. Conf. Vol. II, p. 227). It also noted that the "emotional distress" placed on the victim's family by Barker's crimes was "particularly devastating." (Appellant's App. Conf. Vol. II, p. 227). Looking at the nature and gravity of the present felonies in the instant case, we cannot say that Barker's aggregate fifteen-year sentence was so severe and entirely out of proportion to the gravity of offenses committed as to shock public sentiment and violate the judgement of reasonable people. See Moore, 515 N.E.2d at 1105. Accordingly, we find no violation here of Article 1, section 16 of the Indiana Constitution.
CONCLUSION
[¶28] Based on the foregoing, we conclude that the State presented sufficient evidence beyond a reasonable doubt to support Barker's conviction for unlawful possession of a firearm by a SVF. We also conclude that there was no violation of the double jeopardy principles or of Article 1, section 16 of the Indiana Constitution.
[¶29] Affirmed.
[¶30] May, J. and Tavitas, J. concur