Causey v. State
| Decision Date | 13 May 2004 |
| Docket Number | No. 02A03-0309-CR-346.,02A03-0309-CR-346. |
| Citation | 808 N.E.2d 139 |
| Parties | Tyrone G. CAUSEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Michael G. Moore, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant, Tyrone G. Causey (Causey), appeals his conviction for unlawful possession of a firearm by a serious violent felon, a Class B felony, Ind.Code § 35-47-4-5.
We affirm.
Causey raises three issues on appeal, which we restate as follows:
1. Whether the evidence is sufficient to support his conviction for unlawful possession of a firearm by a serious violent felon;
2. Whether the jury verdicts of not guilty for Count I, robbery, a Class B felony, and guilty for Count II, unlawful possession of a firearm by a serious violent felon, are inconsistent; and
3. Whether the severed trials of Counts I and II to the same jury on the same day violated Causey's Sixth Amendment right to a fair and impartial jury and his Fourteenth Amendment right to due process.
Around 10:00 p.m. on April 21, 2003, Brady Butler (Brady) and his brother, Nicholas Butler (Nicholas), drove to the Showgirls I Club in Fort Wayne, Indiana, and parked in the club's parking lot. As Nicholas exited the driver side of the car, a man standing near the passenger side of the car asked him for a cigarette. When Nicholas reached for his cigarettes, he noticed a person wearing a ski mask over his face and holding a pistol standing behind the man who requested the cigarette. Realizing something was wrong, Nicholas turned away from the two men and was immediately struck in the face by a third man of whose presence he had not been aware.
As the man continued to hit Nicholas, Brady attempted to exit the passenger side of the car where he was sitting, but one of the men ordered him back in the car where Brady remained through the ordeal. Nicholas eventually fell to the ground and heard one of the men say, "what do you got, give me what you got, what do you have, where is it at." (Transcript p. 110). As Nicholas reached for his wallet, the man hit him two more times in the face. The man then knelt over Nicholas and took his wallet.
After the attack, all three suspects involved in the robbery fled the scene in a dark colored, Chevrolet Yukon sport utility vehicle (SUV). Nicholas and Brady went into the Showgirls I Club to call the police. Nicholas reported to the police that his stolen wallet contained seventy-seven dollars consisting of three $20 bills, three $5 bills, and two $1 bills, his Kentucky State identification card, a social security card, and a photograph of his teenaged niece. This information was immediately dispatched to on-duty Fort Wayne Police Department (FWPD) officers.
Upon hearing the dispatch, FWPD Officers Mark Gerardot (Officer Gerardot) and Sean Eaken (Officer Eaken) noticed a dark colored SUV with three occupants traveling at a high rate of speed in oncoming traffic. The officers turned around to pursue the vehicle and to effect a traffic stop. As the officers pulled up behind the SUV, Officer Gerardot saw the person in the front passenger seat, later identified as Causey, make furtive movements by leaning across his body and seemingly push something down in between the seats or into the center console. Based on the fact that the SUV and its occupants matched the description given in the dispatch regarding the armed robbery of Nicholas, the officers called for backup. Once other officers arrived at the scene, the occupants of the SUV were removed from the vehicle. Along with Causey, the driver of the vehicle was identified as a woman named Melinda Sok, and the backseat passenger was identified as Marvin Bennett (Bennett).
Prior to approaching the SUV, the officers noticed something stuck to the outside rubber seal of the rear window of the SUV. Upon closer inspection, the officers discovered that the item on the outside rear window was the photograph of Nicholas' niece that was inside his wallet when it was stolen.
Another FWPD officer, Dan Hutson searched the vehicle and discovered a handgun directly under the front passenger seat. In the backseat where Bennett had been sitting, officers found a black knit, winter stocking cap with two holes cut in it. The officers subsequently recovered seventy-seven dollars, consisting of three $20 bills, three $5 bills and two $1 bills, in Bennett's front pant pocket.
On April 24, 2003, the State filed an information charging Causey with one count of robbery, a Class B felony, I.C. § 35-42-5-1. On June 9, 2003, the State charged Causey with Count II, unlawful possession of a firearm by a serious violent felon, I.C. § 35-47-4-5. On June 17, 2003, the trial court conducted a jury trial. However, prior to the selection of the jury, Causey moved to sever Count II, unlawful possession of a firearm by a serious violent felon, from Count I, robbery, and the trial court conducted a hearing on his motion. During the hearing on the motion to sever, Causey agreed that he was willing to try each count to the same jury on that same day, as long as the proceedings were severed. As a result, the trial court agreed to sever Count I, robbery, from Count II, unlawful possession of a firearm by a serious violent felon. Accordingly, Count I was tried to the jury first, and, after deliberation, the jury returned a verdict of not guilty.
Immediately thereafter, the parties agreed and the trial court ordered that all evidence and testimony presented during the trial of Count I should be incorporated into the subsequent trial of Count II. The State then elicited testimony regarding the location of the handgun inside the SUV and presented evidence of Causey's conviction in a prior cause of action for robbery, as a Class B felony. Following deliberation, the jury found Causey guilty of possession of a firearm by a serious violent felon. On July 14, 2003, the trial court sentenced Causey to ten years in the Indiana Department of Correction on Count II.
Causey now appeals. Additional facts will be supplied as necessary.
Causey first argues that the evidence was insufficient to support his conviction for unlawful possession of a firearm by a serious violent felon. Specifically, he asserts that the State failed to prove he constructively possessed the handgun that was recovered from the SUV.
In reviewing sufficiency of the evidence claims, this court does not reweigh the evidence or assess the credibility of witnesses. Cox v. State, 774 N.E.2d 1025, 1028-29 (Ind.Ct.App.2002). We consider only the evidence most favorable to the verdict, together with all reasonable and logical inferences to be drawn therefrom. Alspach v. State, 755 N.E.2d 209, 210 (Ind.Ct.App.2001), trans. denied. The conviction will be affirmed if there is substantial evidence of probative value to support the conclusion of the trier-of-fact. Cox, 774 N.E.2d at 1028-29.
Pursuant to I.C. § 35-47-4-5(c), "[a] serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Class B felony." The statute defines "serious violent felon," in pertinent part, as "a person who has been convicted of committing a serious violent felony in Indiana." I.C. § 35-47-4-5(a)(1)(A). As used in the statute, a "serious violent felony" includes the crime of robbery. I.C. § 35-47-4-5(b)(12). Thus, to convict Causey of unlawful possession of a firearm by a serious violent felon, the State had to prove that Causey had been convicted of robbery and, thereafter, knowingly or intentionally possessed a firearm. See I.C. § 35-47-4-5.
Possession of a firearm may be either actual or constructive. See Conrad v. State, 747 N.E.2d 575, 582 (Ind.Ct.App. 2001),
trans. denied. For instance, a person, who has direct physical control over the firearm, has actual possession. See Grim v. State, 797 N.E.2d 825, 831 (Ind.Ct. App.2003). However, constructive possession occurs when the person has the intent and capability to maintain dominion and control over the firearm. Id. To prove the element of intent, the State must demonstrate the defendant's knowledge of the presence of the firearm. Id. Knowledge may be inferred from either exclusive dominion and control over the premises containing the firearm, or from evidence of additional circumstances indicating the defendant's knowledge of the presence of the firearm. See Grim, 797 N.E.2d at 831.
The following types of evidence are among those utilized by the State to show proof of the defendant's dominion and control over a firearm: (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. The State must also present evidence demonstrating the defendant's capability to exercise control over the firearm, which includes the ability to reduce the firearm to his personal possession or to otherwise direct its disposition or use. See Conrad, 747 N.E.2d at 582-3
.
Here, Causey did not have exclusive dominion and control of the SUV in which the handgun was found; therefore, we consider the evidence in light of additional circumstances indicating Causey's knowledge of the presence of the weapon and his ability to exercise control over it. See Conrad, 747 N.E.2d at 582
. Our review of the evidence in the instant case reflects that the police stopped the dark colored SUV because it was speeding and it matched the description of an SUV involved earlier that evening in the armed robbery of Nicholas. The officers who stopped the SUV observed three pe...
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