Payne v. State
| Decision Date | 28 February 2018 |
| Docket Number | Court of Appeals Case No. 79A02–1707–CR–1606 |
| Citation | 96 N.E.3d 606 |
| Parties | Khalil Jalon PAYNE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant : Brian A. Karle, Ball Eggleston, PC, Lafayette, Indiana
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana
[1] Kahlil Jalon Payne ("Payne") appeals his conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon ("SVF")1 and the trial court's merger of his convictions. He argues that there was insufficient evidence to prove that he committed unlawful possession of a firearm by an SVF and that the trial court's merger of two of his convictions violated the constitutional prohibition against double jeopardy. We agree that there was insufficient evidence to support Payne's unlawful possession of a firearm by an SVF conviction and reverse it, but we do not find merit in his double jeopardy argument. We also note that the trial court merged Payne's conviction for Class A misdemeanor carrying a handgun without a license with his unlawful possession of a firearm by an SVF conviction. Because Payne's carrying a handgun without a license conviction remains valid after our reversal of his unlawful possession conviction, we instruct the trial court to enter judgment of conviction on that count on remand and to re-sentence Payne accordingly.
[2] We affirm in part, reverse in part, and remand with instructions.
[3] On September 27, 2016, Katelynn Risner ("Risner") and Stephanie Miller ("Miller") picked up Payne to go to Miller's house and "[get] high." (Tr. Vol. 2 at 10). Payne planned to stay the night at Miller's apartment, and Risner saw him bring a duffel bag full of clothes with him. At Miller's apartment, which was one unit inside of a four-unit building, Miller, Miller's boyfriend, Risner, and Payne smoked spice. Miller "passed out," and Risner and Payne took her van to go to another friend's house. (Tr. Vol. 2 at 19). When Miller woke, she thought that her van had been stolen and called the police.
[4] Police officers from the Lafayette Police Department responded to the scene. Miller told them that she did not want to report the vehicle as stolen any longer because she knew that Risner and Payne were wanted on active arrest warrants, but she said that she still wanted her van back. While the officers were questioning Miller, Risner and Payne returned to her apartment. When they opened the door and saw the police officers inside, they "became scared," "retrieved [sic] back [to] the hallway" outside of the apartment, and tried to exit the building. (Tr. Vol. 2 at 25). Officer Nathan Stoneking ("Officer Stoneking") followed them and detained Risner in the common hallway. Officer Alex Dare ("Officer Dare") also followed Risner and Payne and saw Payne in the common hallway by a stairwell that led to the second floor of the building. (Tr. Vol. 2 at 38). He detained Payne, searched him, and found a bag of spice in Payne's right front pocket.
[5] After arresting Risner and Payne, the officers discovered two black duffle bags near the stairwell in the common hallway. One officer searched the bags and located a firearm in one of them. The bag also contained male clothing that was "consistent both in style and size" with the clothing that Payne was wearing. (Tr. Vol. 2 at 55).
[6] On September 29, 2016, the State charged Payne with Count 1, Level 4 felony unlawful possession of a firearm by an SVF; Count 2, Class A misdemeanor carrying a handgun without a license; Count 3, Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike substance; Count 4, Level 5 felony carrying a handgun without a license; and Count 5, Level 6 felony possession of a synthetic drug or synthetic drug lookalike substance.
[7] The trial court held a bench trial on May 24, 2017. At the conclusion of the first phase of the trial, the court found that Payne had possessed the firearm the police had found in the duffel bag in the hallway.2 The court reasoned that the "only reasonable inference" from the evidence was that Payne had "had the bags in his possession," "noticed that the police were there," and "tried to find a place to escape or to hide them" before he had been detained. (Tr. Vol. 2 at 72). The court clarified that it did not "put a lot of weight" on the evidence that the clothing found in the duffle bags along with the firearm was the same "style" as Payne's clothes because it was essentially the "kind of clothing that many people wear." (Tr. Vol. 2 at 70). However, the court noted that "the fact that it was the defendant's size [was] prohibitive [sic]." (Tr. Vol. 2 at 71).
[8] During the second phase of Payne's bench trial, the State offered certified records from a 2010 robbery conviction and claimed that the records proved that Payne was the defendant in that cause who had previously been convicted of robbery. The records included the charging information, probable cause affidavit, supplemental probable cause affidavit, plea agreement, the trial court's order on plea hearing, and the trial court's sentencing order, which were all labeled with the same cause number. The charging information included the robbery defendant's name and birth date, which matched Payne's name and birth date as listed in the instant cause, as well as the robbery defendant's driver's license number, which did not match the information in the instant cause. The plea agreement included the robbery defendant's name, birth date, and signature. The trial court's order on plea agreement and sentencing order contained only the robbery defendant's name. The State rested its case without further testimony.
[9] Based on this evidence, the trial court concluded that the State had proved that Payne had a prior robbery conviction. The trial court found Payne guilty of Count 1, unlawful possession of a firearm by an SVF; Count 2, Class A misdemeanor carrying a handgun without a license; Count 3, Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike substance; and Count 5, Level 6 felony possession of a synthetic drug or a synthetic drug lookalike substance. The court concluded that Count 3 merged into Count 5, that Payne was not guilty of Count 4, and that Count 2 merged into Count 1. The trial court then sentenced Payne to nine (9) years on Count 1 and one (1) year on Count 5, and ordered him to serve the sentences consecutively, for an aggregate sentence of ten (10) years. The court further ordered Payne to serve seven and one half (7½) years of his aggregate sentence in the Department of Correction, one and one half (1½) years in Community Corrections, and one (1) year suspended. Payne now appeals.
[10] On appeal, Payne argues that: (1) there was insufficient evidence to support his conviction for unlawfully possessing a firearm as an SVF; and (2) the trial court's merger of his convictions in Count 3 into Count 5 violated the constitutional prohibition against double jeopardy. We will address each of these arguments in turn.
[11] Our standard of review for sufficiency of the evidence claims is well-settled. We consider only the probative evidence and reasonable inferences supporting the judgment. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or judge witness credibility. Id. We will affirm the conviction unless no reasonable fact finder could find the elements of the crime proven beyond a reasonable doubt. Id. The evidence is sufficient if an inference may be reasonably drawn from it to support the judgment. Id. at 147.
[12] In order to convict Payne of unlawful possession of a firearm as an SVF, the State had to prove that he "knowingly or intentionally possess[ed] a firearm" after having been convicted of a qualifying felony, specifically robbery. I.C. § 35–47–4–5(c). Payne challenges the sufficiency of the evidence supporting both the possession and SVF elements of his offense.
[13] With respect to the possession element, Payne asserts that there was insufficient evidence that he possessed the firearm because there was no evidence that the bag where the firearm was found belonged to him. In support of this argument, he notes that the bag was found in a common hallway of a four-unit apartment building and that he did not live in the building.
[14] To prove that a defendant possessed an item, the State may prove either actual or constructive possession. Eckrich v. State , 73 N.E.3d 744 (Ind. Ct. App. 2017), trans. denied . Actual possession occurs "when a person has direct physical control over [an] item." Sargent v. State , 27 N.E.3d 729, 733 (Ind. 2015). When a person does not have direct physical control over an item, as was the case here, the person may still have constructive possession of the item if he " ‘has (1) the capability to maintain dominion and control over [it]; and (2) the intent to maintain dominion and control over it.’ " Id. (quoting Gray v. State , 957 N.E.2d 171, 174 (Ind. 2011) ). In cases where the accused has exclusive possession of the premises on which the contraband is found, an inference is permitted that he knew of the presence of the contraband and was capable of controlling it. Harrison v. State , 32 N.E.3d 240, 248 (Ind. Ct. App. 2015), trans. denied . "[W]hen possession of the premises is non-exclusive, this inference is permitted only if some additional circumstances indicate the defendant's knowledge of the presence of the contraband and the ability to control it." Id. Some of these recognized additional...
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