MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                  Oct 23 2015, 8:45 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                      Gregory F. Zoeller
Law Office of Christopher G. Walter,                     Attorney General of Indiana
PC
Nappanee, Indiana                                        J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Russell A. Prosser, Jr.,                                 October 23, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         50A05-1502-CR-51
        v.                                               Appeal from the Marshall Superior
                                                         Court
State of Indiana,                                        The Honorable Michael W. Reed,
Appellee-Plaintiff                                       Special Judge
                                                         Trial Court Cause No.
                                                         50D02-1312-FB-76



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015    Page 1 of 10
                                                  Case Summary
[1]   Russell A. Prosser, Jr., appeals his convictions for eleven criminal counts

      following two separate jury trials. 1 He contends that the trial court abused its

      discretion in admitting a witness’s in-court identification of him and that the

      evidence is insufficient to support his convictions. Finding that Prosser has

      waived his challenge to the in-court identification and that the evidence is

      sufficient, we affirm.


                                      Facts and Procedural History
[2]   A summary of the convoluted factual background of this case is as follows. On

      December 8, 2013, Ed Quella returned from work to his Culver home shortly

      after 10:00 p.m. Quella noticed that the motion detector light for his garage had

      been activated. When Quella looked out his window, he saw a person,

      approximately his height and wearing a white hooded coat or hoodie, walk

      from his property into a neighbor’s yard. Quella called the Culver Academy

      Security Department. He spoke with a security officer who then directed him

      to the Culver Police Department (“CPD”). Quella reported what he saw to

      CPD Officer Troy Ulch. Officer Ulch responded to the scene.


[3]   Quella informed Officer Ulch that he saw the person in the white hoodie travel

      north. Officer Ulch began following footprints in the snow which led between

      various residences, to several garages, to a business, and to the driver’s side of



      1
          Prosser was additionally found to be a habitual offender.


      Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015   Page 2 of 10
      four different cars at one residence and two additional cars parked in the street.

      Officer Ulch surmised that the individual leaving the trail of footprints was

      checking car doors to see if they were unlocked.


[4]   Officer Ulch continued searching and eventually encountered Cole Flora

      standing outdoors next to his vehicle. Flora, a resident of Quella’s

      neighborhood, reported to Officer Ulch that he had been sitting inside his

      vehicle smoking a cigarette, when he observed a man in a white hooded

      sweatshirt approach his car. The man, later identified as Prosser, appeared to

      be trying to look through the tinted windows to see if anyone or anything was

      inside. When Flora opened his car door, Prosser jumped back. Flora spoke to

      Prosser and told him that his behavior was “very sketchy.” Tr. Vol. I at 51.

      When Flora inquired about what Prosser was doing, Prosser told Flora that he

      was just “running from his old lady.” Id. Shortly after Prosser walked away,

      Officer Ulch came down Flora’s street with the spotlight on his police vehicle

      illuminated. Flora flagged Officer Ulch down, reported his encounter with

      Prosser, and pointed Officer Ulch in the direction that Prosser had fled.


[5]   Officer Ulch followed more footprints and quickly came upon a man in a white

      hoodie who was carrying a bag thrown over his shoulder. When Officer Ulch

      asked the man in the white hoodie if he could speak to him, the man took off

      running. Officer Ulch chased the man but eventually lost sight of him after the

      man climbed and jumped over a fence. Several police officers arrived at the

      scene and started going door to door at an apartment complex around the area

      where the man was last spotted. One resident reported that a tan pickup truck

      Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015   Page 3 of 10
      equipped with a ladder rack, that he had never seen before, had been parked

      outside all evening and that he observed a person enter the truck and leave the

      complex while the officers were searching. The resident reported that the

      person in the truck was wearing a hood. Officer Ulch returned to the fence that

      the man he was chasing had climbed and found numerous items strewn about

      in the snow. Officer Ulch photographed and collected the items.


[6]   At approximately 4:30 a.m. on December 9, 2013, Marshall County Police

      Officer Nicholas Laffoon observed a tan pickup truck equipped with a ladder

      rack in the parking lot of a McDonald’s restaurant in La Paz. The vehicle’s

      engine was running and Prosser, who was wearing a white hoodie, was asleep

      in the driver’s seat. Believing that this truck was relevant to an investigation

      being conducted by the CPD, Officer Laffoon began taking pictures. Among

      other things, Officer Laffoon observed a .22 caliber rifle located in the bed of

      the truck. Officer Laffoon woke Prosser and quickly asked him whose rifle was

      in the truck bed. Prosser, apparently fully aware of the presence of the firearm,

      simply stated that the rifle was owned by his roommate. Other officers who

      arrived on the scene asked Prosser if they could see the bottom of his boots.

      The pattern on the bottom of Prosser’s boots appeared to match the footprints

      left earlier all around the Culver neighborhood.


[7]   After running a criminal background check on Prosser, officers arrested him for

      being in possession of a firearm. Officers then obtained a search warrant for the

      truck. Officers found a flintlock pistol under the driver’s seat and additional

      items that belonged to a resident of the Culver neighborhood. Later that day,

      Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015   Page 4 of 10
      CPD took several reports from residents of the Culver neighborhood claiming

      that they were missing items from their cars. The State charged Prosser with

      sixteen criminal counts which included two counts of class B felony unlawful

      possession of a firearm by a serious violent felon, one count of class D felony

      receiving stolen property, one count of class A misdemeanor resisting law

      enforcement, six counts of class D felony theft, and six counts of class B

      misdemeanor unauthorized entry of a vehicle.


[8]   On September 3, 2014, the trial court granted Prosser’s motion for severance

      requesting separate trials on the firearm possession charges and the other

      charges. The first jury trial on was held on October 28-29, 2014. The jury

      found Prosser guilty of class D felony receiving stolen property, class A

      misdemeanor resisting law enforcement, four counts of class D felony theft, and

      four counts of class B misdemeanor unauthorized entry of a vehicle. The

      second jury trial was held on February 18, 2015. The jury found Prosser guilty

      of unlawful possession of a firearm by a serious violent felon regarding the .22

      caliber rifle and not guilty of unlawful possession of a firearm by a serious

      violent felon regarding the flintlock pistol. The jury also found Prosser to be a

      habitual offender. This appeal followed.




      Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015   Page 5 of 10
                                       Discussion and Decision

      Section 1 – Prosser’s challenge to the trial court’s admission of
                 Flora’s in-court identification is waived.
[9]   Prosser first asserts that the trial court abused its discretion in admitting Flora’s

      in-court identification of Prosser as the individual dressed in a white hoodie

      whom he observed and spoke with outside his car on December 8, 2013.

      Specifically, Prosser contends that Flora’s in-court identification was tainted

      because the procedure employed by the police during a pretrial identification

      was unduly suggestive. Our review of the record reveals that Prosser did not

      object to Flora’s in-court identification of him. As a result, Prosser’s claim is

      waived. 2 See Miles v. State, 764 N.E.2d 237, 239 (Ind. Ct. App. 2002) (holding

      that defendant’s claim regarding inadmissibility of in-court identification due to

      impermissibly suggestive pretrial identification tactics was waived because

      defendant failed to lodge contemporaneous objection to in-court identification),

      trans. denied.




      2
        Waiver notwithstanding, as observed by the State, Flora merely identified Prosser as the same individual in
      the white hooded sweatshirt whom he encountered, spoke with, and accused of acting “sketchy” on the night
      in question. Tr. Vol. I at 51. Flora did not testify that he saw Prosser commit any crime. Rather, his
      testimony simply placed Prosser in the vicinity of the crimes and explained how the police began
      investigating Prosser’s possible involvement. In light of the substantial evidence linking Prosser to the
      crimes, any error in the admission of Flora’s identification would have been harmless. See Ransnick v. State, 2
      N.E.3d 17, 27 (Ind. Ct. App. 2013) (an error in the admission of evidence is disregarded as harmless if there
      is substantial independent evidence of guilt satisfying reviewing court that there is no substantial likelihood
      that the challenged evidence contributed to the conviction), trans. denied (2014).

      Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015             Page 6 of 10
       Section 2 – Sufficient evidence supports Prosser conviction for
        unlawful possession of a firearm by a serious violent felon.
[10]   Prosser next challenges the sufficiency of the evidence to support his conviction

       for class B felony unlawful possession of a firearm by a serious violent felon

       regarding the .22 caliber rifle. 3 When reviewing the sufficiency of the evidence

       to support a conviction, we examine only the probative evidence and

       reasonable inferences that support the conviction. Morgan v. State, 22 N.E.3d

       570, 573 (Ind. 2014). We do not assess witness credibility or reweigh evidence.

       Id. Rather, we consider only the evidence most favorable to the verdict and will

       affirm the conviction unless no reasonable factfinder could find the elements of

       the crime proven beyond a reasonable doubt. Id. The evidence will be deemed

       sufficient if an inference may reasonably be drawn from it to support the

       conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).


[11]   Indiana Code Section 35-47-4-5(c) provides that a serious violent felon who

       knowingly or intentionally possesses a firearm commits class B felony unlawful

       possession of a firearm by a serious violent felon. Prosser concedes that he is a

       serious violent felon as defined by Indiana Code Section 35-47-4-5(a), and

       challenges only the sufficiency of the evidence regarding the element of

       possession.




       3
        As noted earlier, Prosser was found not guilty of class B felony unlawful possession of a firearm by a serious
       violent felon regarding the flintlock pistol found in the truck.

       Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015             Page 7 of 10
[12]   Possession of a firearm can be actual or constructive. Tate v. State, 835 N.E.2d

       499, 511 (Ind. Ct. App. 2005), trans. denied. Actual possession occurs when a

       person has direct and physical control over the firearm, and constructive

       possession occurs when a person has the intent and capability to maintain

       control over the firearm. Id. When the State cannot show actual possession, a

       conviction may rest on proof of constructive possession. Gray v. State, 957

       N.E.2d 171, 174 (Ind. 2011).


[13]   To prove the intent element of constructive possession, the State must

       demonstrate the defendant’s knowledge of the presence of the contraband.

       Perry v. State, 956 N.E.2d 41, 61 (Ind. Ct. App. 2011). Knowledge may be

       inferred from the exclusive dominion and control over the premises containing

       the contraband. Id. The capability requirement is met when the State shows

       that the defendant is able to reduce the contraband to the defendant’s personal

       possession. Id. As acknowledged by Prosser, this Court has previously noted

       five types of evidence that the State may use to demonstrate constructive

       possession of a firearm, namely, (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. Deshazier v.

       State, 877 N.E.2d 200, 206 (Ind. Ct. App. 2007), trans. denied (2008).


[14]   Here, Prosser’s exclusive dominion and control of the vehicle in which the rifle

       was found is undisputed. He was the sole occupant of the truck, and he was

       found asleep in the driver’s seat while the truck’s engine was still running.

       Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015   Page 8 of 10
       Although some items were piled above the rifle in the truck bed, the firearm

       was located just a few feet behind Prosser and was clearly visible and accessible

       from outside the truck. When awakened and questioned by police officers,

       Prosser immediately admitted that he was fully aware of the presence of the

       rifle but simply claimed that it belonged to his roommate. Finally, two

       witnesses testified regarding incriminating statements that Prosser made to

       them in which he bragged that he had brought the rifle with him in the truck for

       use during a drug deal but that he did not believe that the State could prove his

       possession of the rifle.


[15]   From this evidence and the reasonable inferences arising therefrom, a

       reasonable trier of fact could conclude both that Prosser had knowledge of the

       presence of the rifle and that the rifle could readily be reduced to his personal

       possession. Accordingly, a reasonable factfinder could find beyond a

       reasonable doubt that Prosser constructively possessed the rifle. The State

       presented sufficient evidence to support his conviction for class B felony

       unlawful possession of a firearm by a serious violent felon.


         Section 3 – Sufficient evidence supports Prosser’s remaining
                                  convictions.
[16]   In an extremely cursory manner, Prosser challenges the sufficiency of the

       evidence to support his remaining ten convictions. Indiana Appellate Rule

       46(A)8)(a) requires the argument section of a brief to contain the contentions of

       the appellant on the issues presented supported by cogent reasoning and

       citations to the authorities, statutes, and the appendix or parts of the record on

       Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015   Page 9 of 10
       appeal relied on. Indeed, an appellate brief should not only present issues to be

       decided on appeal, but it should also be of material assistance to the court in

       deciding those issues. Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App.

       2012), trans. denied. Prosser has failed in this regard. His arguments are neither

       crime-specific nor especially cogent, which is troubling here because he is

       challenging ten different convictions involving different crimes and victims.

       Nevertheless, we can summarize his bald assertions as an overall request for

       this Court to reweigh the evidence in his favor which we will not do. See

       Morgan, 22 N.E.3d at 573. Therefore, we affirm his convictions.


[17]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 50A05-1502-CR-51 | October 23, 2015   Page 10 of 10
