Thrasher v. State
| Citation | 138 N.E.3d 977 (Table) |
| Decision Date | 15 November 2019 |
| Docket Number | Court of Appeals Case No. 18A-CR-2766 |
| Parties | Ross J. THRASHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Attorney for Appellant: Timothy J. O'Connor, Indianapolis, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana
[1] Ross J. Thrasher appeals his conviction of unlawful possession of a firearm by a serious violent felon, a Level 4 felony.1 He claims the trial court erred while instructing the jury and further erred in the admission of evidence. We affirm.
[2] On the night of June 30, 2017, FBI Special Agents Steven Secor and Len Rothermich were on patrol in Indianapolis. They were working with Indianapolis Metropolitan Police Department (IMPD) officers under a program that targeted neighborhoods with high rates of violent crime. The agents drove an unmarked car. They were in plain clothes, but they both wore tactical vests with the acronym "FBI" in bright yellow letters on the front and back. In addition, the agents affixed their badges to their vests.
[3] At 9:45 p.m., the agents were dispatched to an auto repair business to investigate a report of a suspicious gray vehicle. The owner of the business remotely monitored his property via cameras, and he had called the police after seeing an unfamiliar car parked in his lot. Agents Secor and Rothermich arrived at the business, along with several IMPD officers. Several vehicles, including a gray Hyundai, were parked in the lot. No one was present.
[4] The agents determined the building showed no signs of a break-in. Next, Agent Secor inspected the vehicles. The gray Hyundai stood out from the other vehicles because it was newer and in better shape. He touched the Hyundai's hood and discovered that it was very warm, "as if it had just been parked." Tr. Vol. II, p. 141. Agent Secor looked in the bed of a nearby pickup truck. The bed had walls made of horizontal wooden slats. Agent Secor saw a few pieces of debris in the bed but nothing else of note.
[5] The IMPD officers left, and the agents returned to their car. As the agents prepared to drive away, they saw two men walking toward the parking lot. The men walked past the agents' car and approached the Hyundai. The agents parked their car, got out, and identified themselves as FBI agents. They asked the new arrivals to walk to their location and talk with them.
[6] The two men, one of whom was Thrasher, walked over and identified themselves. Thrasher indicated that he and his companion had been visiting a friend down the street. He further stated that the Hyundai was his vehicle. Thrasher and his companion displayed "obvious anxiety" and "nervousness." Id. at 187. Agent Secor asked Thrasher if he was carrying any weapons, and Thrasher said "no." Id. at 148. Agent Secor next asked Thrasher if he would consent to a pat down, and Thrasher agreed.
[7] As the agent patted down Thrasher, he felt a hard object sticking out of Thrasher's pants pocket. Agent Secor asked Thrasher to identify the object, and Thrasher said it was a "starter pistol." Id. at 149. The agent took the object out of Thrasher's pocket. Subsequent testing revealed that it was a starter pistol as Thrasher claimed, but at the time of the encounter it looked like a genuine pistol to both agents. Agent Secor later testified that he would have had no way to tell whether it was a real pistol or a starter pistol "without test firing it." Id. at 151.
[8] Agent Secor asked Thrasher, "why didn't you tell me about that?" Id. at 152. Thrasher failed to provide a "clear answer." Id. at 189. Next, the agent ordered Thrasher and his companion to turn around and put their hands on the back of the nearby pickup truck. Agent Secor intended to do a more thorough pat down "because I felt that Mr. Thrasher was not being completely truthful with me." Id. at 152.
[9] Thrasher's companion immediately complied with Agent Secor's instructions. By contrast, Thrasher, who became even more anxious, walked over to the truck, but he chose not to put his hands on it. Instead, he kept raising his hands and dropping them to his waist. The agent repeatedly ordered Thrasher to put his hands on the truck, but Thrasher did not comply.
[10] Next, Thrasher moved around to the passenger side of the truck, away from both agents but still in sight. Agent Secor ordered him to stop and show his hands, but Thrasher did not comply. Instead, Thrasher turned his back to the agents, bent over slightly, and "began to fumble with something in his waistband area." Id. at 154. He then raised and lowered his hands three or four times toward the pickup truck, touching the wooden slats.
[11] Agent Secor drew his pistol and continued to order Thrasher to return to the back of the truck. Agent Rothermich approached Thrasher with his pistol drawn and grabbed him by the back of his shirt. The agent looked over Thrasher's shoulder and saw that Thrasher was holding another pistol under his shirt. Agent Rothermich took the pistol from Thrasher and threw it on the ground.
[12] Agent Secor saw Agent Rothermich grab something from Thrasher's hands, and then Agent Rothermich said "something about a gun." Id. at 156. Agent Secor called for backup as Thrasher continued to move his hands from his waist toward the slats on the truck bed. Agent Rothermich holstered his pistol and eventually handcuffed Thrasher. Other officers arrived and placed Thrasher's companion in custody. Next, the officers took control of Thrasher and walked him to a curb, where they ordered him to sit down. Agent Secor heard Thrasher tell the officers "the gun was his girlfriend's." Id. at 157. Thrasher further stated he took the gun with him "because it was a bad neighborhood and he was worried ... about the car getting broken into [sic]." Id.
[13] Meanwhile, Agent Secor searched the area where Thrasher had been standing. He found the pistol that Agent Rothermich had thrown on the ground. Officers later determined it was a genuine semiautomatic pistol. Next, Agent Secor looked in the truck's bed, and he found a baggie containing a white crystalline substance.
[14] The agents approached Thrasher. He said, Id. at 196. Thrasher offered to work for the agents and said he could "go buy right now." Id. at 161.
[15] On July 5, 2017, the State charged Thrasher with dealing in methamphetamine, a Level 2 felony; possession of methamphetamine, a Level 3 felony; unlawful possession of a firearm by a serious violent felon, a Level 4 felony; and resisting law enforcement, a Class A misdemeanor. The State later alleged Thrasher was subject to a sentencing enhancement because he was a habitual offender.
[16] On March 26, 2018, Thrasher filed a motion to suppress evidence, followed by a memorandum of law. The State filed a brief in opposition to Thrasher's motion, and Thrasher filed a reply brief in support of his motion. The trial court denied the motion after a hearing.
[17] On September 11, 2018, Thrasher filed a motion to bifurcate, directed at the charge of unlawful possession of a firearm by a serious violent felon. He asked the court to hold separate trials to determine: (1) whether he possessed a handgun; and, if so, (2) whether he was a serious violent felon. The court granted the motion, determining that he would be first tried on the charge of "Unlawful Possession of a Firearm," Appellant's App. Vol. II, p. 170, along with the methamphetamine-related offenses. Then, if necessary, the jury would be asked to determine whether the State had proved beyond a reasonable doubt that Thrasher was a serious violent felon when he possessed the firearm.
[18] Immediately before trial, the trial court dismissed the charge of resisting law enforcement upon the State's request. A jury determined Thrasher was not guilty of the methamphetamine-related offenses but was guilty of unlawful possession of a firearm. In a second phase of the proceedings, Thrasher waived his right to a jury trial. The trial court heard evidence and determined Thrasher was guilty of unlawful possession of a firearm by a serious violent felon. Next, the State dismissed the habitual offender enhancement. The court imposed a sentence, and this appeal followed.
[19] Thrasher argues the trial court erred while instructing the jury on the issue of whether he unlawfully possessed a handgun. The State responds that the instruction was not erroneous, or in the alternative, did not give rise to reversible error.2
[20] Instructing the jury lies within the sole discretion of the trial court. Carter v. State , 766 N.E.2d 377 (Ind. 2002). Considering the instructions as a whole and in reference to each other, we will not reverse for an abuse of that discretion unless the instructions as a whole mislead the jury as to the law governing the case. Id.
[21] Thrasher challenges Final Instruction 4, claiming that the instruction mandated the jury to reach a specific verdict upon finding certain facts, in violation of article 1, section 19 of the Indiana Constitution.3 Section 19 grants to juries "the right to determine the law and the facts." Id. "A mandatory instruction that binds the minds and consciences of the jury to return a verdict of guilty upon finding certain facts invades the province of the jury under [Section 19]." Higgins v. State , 783 N.E.2d 1180, 1186 (Ind. Ct. App. 2003), trans. denied .
[22] In Pritchard v. State , 248 Ind. 566, 230 N.E.2d 416 (1967), Pritchard appealed her conviction of manslaughter. She claimed the trial court erroneously instructed the jurors that if they found certain facts, they "shall find such defendant guilty of involuntary manslaughter." Id. at 568, 230 N.E.2d at 417. The Indiana Supreme Court, discussing Section 19 and its application in prior cases, concluded: ...
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