808 N.E.2d 139 (Ind.App. 2004), 02A03-0309-CR-346, Causey v. State

Docket Nº02A03-0309-CR-346.
Citation808 N.E.2d 139
Party NameTyrone G. CAUSEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Case DateMay 13, 2004
CourtCourt of Appeals of Indiana

Page 139

808 N.E.2d 139 (Ind.App. 2004)

Tyrone G. CAUSEY, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 02A03-0309-CR-346.

Court of Appeals of Indiana

May 13, 2004.

Page 140

[Copyrighted Material Omitted]

Page 141

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.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

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.

ISSUES

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.

FACTS AND PROCEDURAL HISTORY

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

Page 142

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

Page 143

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.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

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 there from. 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...

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39 practice notes
  • 877 N.E.2d 200 (Ind.App. 2007), 49A02-0704-CR-323, Deshazier v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 d1 Dezembro d1 2007
    ...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) Deshazier's situation is unusual in that the police stop occurred while Deshazier was seated in a vehicle, but not after......
  • 895 N.E.2d 137 (Ind.App. 2008), 18A02-0708-CR-683, Fisher v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 15 d3 Outubro d3 2008
    ...816 N.E.2d 979, 989 (Ind.Ct.App.2004). Actual possession occurs when a person has direct physical control over the item. Causey v. State, 808 N.E.2d 139, 143 (Ind.Ct.App.2004). On the other hand, a person has constructive possession of an item when the person has (1) the intent to maintain ......
  • 990 N.E.2d 68 (Ind.App. 2013), 02A05-1210-CR-518, Walton v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 d5 Junho d5 2013
    ...or judge credibility of witnesses). The evidence permitted the jury to infer Walton knew of the gun's presence. See Causey v. State, 808 N.E.2d 139, 144 (Ind.Ct.App.2004) (finding furtive movements and close proximity to handgun sufficient evidence to support inference of constructive posse......
  • 835 N.E.2d 499 (Ind.App. 2005), 49A05-0502-CR-81, Tate v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 d3 Outubro d3 2005
    ...doubt that he was in possession of a firearm. Id. Possession of a firearm may be either actual or constructive. Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004). A person who has direct and physical control over a firearm has actual possession, whereas a person who has the intent a......
  • Request a trial to view additional results
39 cases
  • 877 N.E.2d 200 (Ind.App. 2007), 49A02-0704-CR-323, Deshazier v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 d1 Dezembro d1 2007
    ...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) Deshazier's situation is unusual in that the police stop occurred while Deshazier was seated in a vehicle, but not after......
  • 895 N.E.2d 137 (Ind.App. 2008), 18A02-0708-CR-683, Fisher v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 15 d3 Outubro d3 2008
    ...816 N.E.2d 979, 989 (Ind.Ct.App.2004). Actual possession occurs when a person has direct physical control over the item. Causey v. State, 808 N.E.2d 139, 143 (Ind.Ct.App.2004). On the other hand, a person has constructive possession of an item when the person has (1) the intent to maintain ......
  • 990 N.E.2d 68 (Ind.App. 2013), 02A05-1210-CR-518, Walton v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 d5 Junho d5 2013
    ...or judge credibility of witnesses). The evidence permitted the jury to infer Walton knew of the gun's presence. See Causey v. State, 808 N.E.2d 139, 144 (Ind.Ct.App.2004) (finding furtive movements and close proximity to handgun sufficient evidence to support inference of constructive posse......
  • 835 N.E.2d 499 (Ind.App. 2005), 49A05-0502-CR-81, Tate v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 d3 Outubro d3 2005
    ...doubt that he was in possession of a firearm. Id. Possession of a firearm may be either actual or constructive. Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004). A person who has direct and physical control over a firearm has actual possession, whereas a person who has the intent a......
  • Request a trial to view additional results

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