Deshazier v. State

Decision Date03 December 2007
Docket NumberNo. 49A02-0704-CR-323.,49A02-0704-CR-323.
PartiesAndre DESHAZIER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issues

After a jury trial, Andre Deshazier was convicted of carrying a handgun without a license, a Class C felony; two counts of resisting law enforcement, one as a Class D felony and one as a Class A misdemeanor; and possession of marijuana, a Class A misdemeanor.1 The trial court sentenced Deshazier to eight years with two years suspended for carrying a handgun, three years for felony resisting arrest, one year for misdemeanor resisting arrest, and one year for possession of marijuana. The trial court ordered all sentences to run consecutively, except for the misdemeanor resisting arrest sentence, which it ordered to run concurrent to the felony resisting arrest sentence. Deshazier now appeals the handgun conviction, one of the resisting arrest convictions, and his sentence, raising the following issues:

1. Whether sufficient evidence supports Deshazier's conviction for carrying a handgun without a license;

2. Whether the prohibition of double jeopardy precludes one of Deshazier's convictions for resisting arrest; and

3. Whether the imposition of consecutive sentences violates Indiana Code section 35-50-1-2(c).

Concluding sufficient evidence exists to support his conviction, double jeopardy does not bar Deshazier's two convictions for resisting arrest, and consecutive sentences are permitted, we affirm.

Facts and Procedural History

On December 31, 2005, Indianapolis Police Department Officers Thomas Figura and Gregory Ressino received a dispatch regarding a complainant who had called the department to report that he had located his previously stolen vehicle and had observed two men sitting in its front seats. The complainant indicated at one point that the driver exited the vehicle and walked up the street while the passenger remained in the vehicle. Officers Figura and Ressino, who were in separate marked police cars and who were both in full police uniform, drove to the indicated location.

The Officers observed the complainant, who directed them to a vehicle. At this point, the vehicle had occupants in both front seats. Officer Ressino approached the driver's side of the vehicle and Officer Figura approached the passenger's side. The Officers instructed the vehicle's occupants to put their hands in plain view. The passenger complied, and Officer Figura placed him in handcuffs after Officer Ressino stated that he smelled marijuana. Deshazier, who was seated in the driver's seat, did not comply with the Officers' requests and repeatedly moved his hands toward the middle of his legs. After the third time that Deshazier made such a movement, Officer Ressino "grabbed Mr. Deshazier by the left arm of the jacket and ... pulled him from the vehicle." Transcript at 85-86. While Officer Ressino had Deshazier placed against the vehicle, Officer Figura observed a handgun on the vehicle's front seat, yelled "[g]un, gun, gun!", and dove into the vehicle to secure the weapon. Id. at 87. At this point, Deshazier turned around and punched Officer Ressino in the face. Officer Ressino then began struggling with Deshazier and told him that he was under arrest. Officer Figura tried to help Officer Ressino gain control of Deshazier. The Officers struggled with Deshazier for a few minutes, but Deshazier managed to escape after Officer Ressino ripped off Deshazier's jacket. As Deshazier ran from the scene, the Officers yelled at Deshazier to stop.

After Deshazier fled, the Officers discovered marijuana in Deshazier's jacket and cocaine on the vehicle's driver's side floorboard. Officer Ressino then radioed for assistance and began to search for Deshazier. Officers eventually found Deshazier hiding underneath a bed in the rear room of a nearby residence. Deshazier refused the Officers' commands to come out from under the bed, and did not surrender until a police dog grabbed his arm.

The State charged Deshazier with carrying a handgun as a Class A misdemeanor, and in part two of this count alleged that he had a prior felony, elevating the offense to a Class C felony; possession of cocaine, a Class C felony; two counts of resisting law enforcement, one count as a Class D felony and one count as a Class A misdemeanor; battery, a Class D felony; and possession of marijuana, a Class D felony. The State later amended the marijuana charge to reduce it to a Class A misdemeanor.

At trial, the Officers testified to the facts as stated above. Deshazier testified at trial and explained his presence in the vehicle. He testified that on the night in question he was visiting his sister's house and a close friend of the family arrived. This friend told Deshazier that the friend's nephew, Antonio, was outside in a car. Deshazier then left his sister's house and went to the car, got in on the driver's side, and conversed with Antonio. Within ten minutes the police arrived. Deshazier admitted to having marijuana in his pocket and to fleeing, but denied striking Officer Ressino and stated that he did not know the handgun was in the vehicle until Officer Figura alerted Officer Ressino to its presence.

The jury found Deshazier not guilty of possession of cocaine, was unable to reach a verdict on the battery charge,2 and found Deshazier guilty of the remaining counts. In regard to the handgun charge, the jury found Deshazier guilty of carrying a handgun as a Class A misdemeanor. Deshazier waived his right to a jury trial on Part 2 and admitted the fact of the previous conviction to the trial court, which subsequently entered conviction as a Class C felony.

Following a sentencing hearing, the trial court sentenced Deshazier to eight years with two years suspended for the handgun charge, three years for felony resisting arrest, one year for misdemeanor resisting arrest, and one year for possession of marijuana. The trial court ordered all sentences to run consecutively, except for the misdemeanor resisting arrest sentence, which it ordered to run concurrent to the felony resisting arrest sentence. Therefore, Deshazier's aggregate sentence is twelve years with two years suspended. Deshazier now appeals.

Discussion3
I. Sufficiency of the Evidence
A. Standard of Review

Our supreme court has recently summarized our standard of review when assessing claims of insufficient evidence.

When reviewing the sufficiency of the evidence to support a conviction, 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. To preserve this structure, when 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 doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind.2007) (quotations and citations omitted) (emphasis in original).

B. Evidence of Possession of Handgun

In order to convict Deshazier of carrying a handgun without a permit, the State was required to prove beyond a reasonable doubt that Deshazier "carr[ied] a handgun in any vehicle or on or about the person's body ... without a license." Ind. Code § 35-47-2-1(a).4 To satisfy these elements, the State must prove the defendant had either actual or constructive possession of the handgun. Grim v. State, 797 N.E.2d 825, 831 (Ind.Ct.App.2003). To show actual possession, the State must show that the defendant had "direct physical control over the [handgun]." Bradshaw v. State, 818 N.E.2d 59, 62 (Ind.Ct. App.2004). When proceeding on a theory of constructive possession, the State must show that the defendant had "both the intent and capability to maintain dominion and control over the [handgun]." Id. at 62-63. Such a showing inherently involves showing the defendant had knowledge of the handgun's presence. See Grim, 797 N.E.2d at 831.

In this case, the relevant facts relating to Deshazier's knowledge and possession of the handgun are as follows. Officer Figura saw the handgun "laying on the seat directly where Mr. Deshazier's right thigh was," and stated that Deshazier "was actually sitting on the gun." Tr. at 32. In addition, Deshazier moved his hands towards his lap three times after the Officers instructed him to keep his hands up. Finally, Deshazier resisted Officer Ressino's attempts to arrest him and fled the scene after evading the Officers.

1. Actual Possession

Although the parties' arguments primarily deal with constructive possession, the State also indicates in its brief that sufficient evidence exists to conclude that Deshazier had actual possession.5 Here, Officer Figura testified that Deshazier was sitting on the gun. The State argues that "sitting on top of the gun clearly demonstrated direct physical control over the gun." Appellee's Brief at 8. Research has disclosed no Indiana case indicating that the act of sitting on an object constitutes physical control or actual possession. Cf. State v. Fortes, 110 R.I. 406, 293 A.2d 506, 508-09 (1972) (although defendant was sitting on two pills in automobile, there was insufficient evidence that he actually or constructively possessed these pills).6

However, significant authority indicates...

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