MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Aug 14 2019, 8:39 am

regarded as precedent or cited before any                                        CLERK
                                                                           Indiana Supreme Court
court except for the purpose of establishing                                  Court of Appeals
                                                                                and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John Kindley                                             Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marces Riley,                                            August 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-384
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1709-F6-855



Riley, Judge




Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019                     Page 1 of 8
                                    STATEMENT OF THE CASE
[1]   Appellant-Defendant, Marces Riley (Riley), appeals his convictions for resisting

      law enforcement, a Level 6 felony, Ind. Code § 35-44.1-3-1(b); carrying a

      handgun without a license, a Class A misdemeanor, I.C. § 35-47-2-1(e);

      possession of a narcotic drug, a Level 5 felony, I.C. § 35-48-4-6(b); two Counts

      of resisting law enforcement, Class A misdemeanors, I.C. §35-44.1-3-1(a)(1); a

      firearm enhancement charge, I.C. § 35-50-2-11(e)(h); possession of cocaine

      while armed with a firearm, a Level 3 felony, I.C. § 35-48-4-6(d)(1); and his

      vacated conviction for pointing a firearm at another, a Level 6 felony, I.C. § 35-

      47-4-3(b).


[2]   We affirm.


                                                        ISSUES
[3]   Riley presents one issue on appeal, which we restate as: Whether the State

      presented sufficient evidence beyond a reasonable doubt to sustain his

      conviction for pointing a firearm at another, a Level 6 felony. 1


                          FACTS AND PROCEDURAL HISTORY
[4]   On September 7, 2017, South Bend Police Officer, Kyle Drury (Officer Drury),

      was conducting a patrol. Officer Drury observed a vehicle driving in the

      opposite direction that did not have a front bumper. Officer Drury made eye




      1
          Due to double jeopardy concerns, the trial court did not enter a judgment of conviction on this charge.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019                       Page 2 of 8
      contact with the driver, later identified as Riley, “whose eyes got really big,”

      and who “immediately, ah, turned off of the main street.” (Transcript Vol. I, p.

      146). Because that “seemed odd,” Officer Drury “went around the block to try

      to find that car.” (Tr. Vol. I, p. 165). Officer Drury located Riley’s vehicle at a

      gas station parking lot, and he began to follow Riley. Shortly thereafter, Officer

      Drury initiated a traffic stop since the “license plate was tinted so dark that he

      couldn’t read the lettering on the license plate.” (Tr. Vol. I, p. 140). As Officer

      Drury approached Riley’s vehicle, Riley sank down in his seat and then sped

      off.


[5]   Officer Drury ran back to his vehicle and chased Riley’s vehicle. Riley

      eventually pulled into an alley and fled on foot. While running after Riley,

      Officer Drury repeatedly yelled, “Stop! Police!” (Tr. Vol. I, p. 174). As Riley

      ran up an embankment, he reached into his waistband and pulled out “a black

      semi-automatic handgun” and pointed it toward Officer Drury. (Tr. Vol. I, p.

      176). By that time, other officers had joined the chase. Officer Brittany Bayles

      (Officer Bayles), who was running behind Officer Drury, yelled “Gun! Gun!

      Gun!” (Tr. Vol. I, p. 177). At that point, Officer Drury reached for his firearm,

      but it was not in his holster. Officer Drury’s only option was to tackle Riley to

      the ground. After a brief struggle, Officer Drury handcuffed Riley.


[6]   After Riley was lifted from the ground, “a black semi-automatic handgun” was

      located on the ground. (Tr. Vol. I, p. 147). The officers discovered a plastic

      baggie containing a white powdery substance, which was later identified to be

      0.58 grams of heroin. The officers also located a plastic baggie containing a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019   Page 3 of 8
      white substance lying underneath an adjacent fence. That baggie contained

      11.75 grams of cocaine. While there were four DNA profiles obtained from the

      black semi-automatic handgun’s trigger, the “analysis provided strong support

      for the proposition that [] Riley” was the largest contributor to the DNA profile.

      (Tr. Vol. I, p. 129).


[7]


[8]   On September 11, 2017, the State filed an Information, charging Riley with

      Count I, resisting law enforcement, a Level 6 felony; Count II, carrying a

      handgun without a license, a Class A misdemeanor; Count III, pointing a

      firearm at another, a Level 6 felony; and Count IV, possession of a narcotic

      drug, a Level 6 felony. On October 23, 2017, the State amended the charging

      Information to include Count V, possession of a narcotic drug, a Level 5 felony;

      and Counts VI and VII, resisting law enforcement, Class A misdemeanors. On

      October 23, 2017, the State once more amended the charging Information to

      include Count VIII, a firearm enhancement charge. The State’s last

      amendment to the charging Information was on November 14, 2017, when it

      added Count IX, possession of cocaine while armed with a firearm, a Level 3

      felony.


[9]   A bifurcated jury trial was held on December 17 through December 19, 2018.

      During the first phase, the jury heard evidence on all Counts except for the

      firearm enhancement charge. At trial, the charges were re-numbered as

      follows: Count V, Class A misdemeanor resisting law enforcement (formerly


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019   Page 4 of 8
       Count VI); Count VI, Class A misdemeanor resisting law enforcement

       (formerly Count VII); and Count VII, Level 3 felony possession of cocaine

       while armed with a firearm (formerly Count IX).


[10]   At the close of the evidence, the jury found Riley guilty on all Counts except

       Count IV, possession of a narcotic drug, a Level 6 felony. The trial court then

       dismissed the jury. During the second phase pertaining to the firearm

       enhancement charge in Count VIII, Riley admitted to the charge but reserved

       his right to appeal. The trial court accepted Riley’s admission and stated


               Well, I’m going to accept, um, your statement here and I’m
               going to find that under Count VIII[,] that you knowingly
               pointed a firearm at a person that you knew or should have
               known was a police officer and you did that in the course of the
               commission of another offense.


       (Tr. Vol. II, p. 64).


[11]   On January 16, 2019, the trial court conducted a sentencing hearing. The trial

       court merged Count II (Class A misdemeanor carrying a handgun without a

       license) with Count VII (Level 3 felony possession of cocaine and firearm). The

       trial court also merged Count VI (Class A misdemeanor resisting law

       enforcement) with Count I (Level 6 felony resisting law enforcement). Due to

       double jeopardy concerns, the trial court did not enter a judgment of conviction

       as to Count III, Level 6 felony pointing a firearm at another. The trial court




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019   Page 5 of 8
       then attached the firearm enhancement to the Level 3 felony possession of

       cocaine while armed with a firearm. 2


[12]   The trial court subsequently ordered Riley to serve concurrent terms of one year

       on Count I, Level 6 felony resisting law enforcement; one year on Count V,

       Class A misdemeanor resisting law enforcement; and three years on Count VII,

       Level 3 felony possession of cocaine while armed with a firearm. Due to

       Riley’s admission to the firearm enhancement charge, the trial court enhanced

       Riley’s sentence for the Level 3 felony possession of cocaine while armed with a

       firearm by nine years, suspending two years, for an aggregate sentence of twelve

       years.


[13]   Riley now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
[14]   When reviewing a claim of insufficient evidence, it is well-established that our

       court does not reweigh evidence or assess the credibility of witnesses. Walker v.

       State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all the evidence,

       and any reasonable inferences that may be drawn therefrom, in a light most

       favorable to the verdict. Id. We will uphold the conviction “‘if there is




       2
         The trial court noted that pursuant to the holding in Nicoson v. State, 938 N.E.2d 660, 661 (Ind. 2010), it
       was permitted to attach the “enhancement appropriately” to Riley’s Level 3 felony possession of cocaine
       while armed with a firearm. (Tr. Vol. II, p. 72). In Nicoson, the defendant was charged with, and convicted
       of criminal confinement with a deadly weapon, a Class B felony, because he was armed with a deadly
       weapon. Id. The trial court enhanced the sentence for that offense pursuant Indiana Code section 35-50-2-11
       because the defendant “used” a firearm while committing the offense. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019                    Page 6 of 8
       substantial evidence of probative value supporting each element of the crime

       from which a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178

       (Ind. 2004)). Indiana Code section 35-47-4-3(b) provides that “a person who

       knowingly and intentionally points a firearm at another person commits a Level

       6 felony.”


[15]   Riley argues that the State did not present sufficient evidence beyond a

       reasonable doubt to sustain his conviction for Count III, pointing a firearm at

       another, a Level 6 felony. We initially note that while the jury found Riley

       guilty of this charge, due to double jeopardy concerns, the trial court did not

       enter a judgment of conviction. The State correctly argues that therefore Riley’s

       challenge on appeal is moot.


[16]   “Mootness arises when the primary issue within the case ‘has been ended or

       settled, or in some manner disposed of, so as to render it unnecessary to decide

       the question involved.’” C.J. v. State, 74 N.E.3d 572, 575 (Ind. Ct. App. 2017).

       In other words, when a court is not able to render effective relief to a party, the

       case is deemed moot and subject to dismissal. Id.


[17]   At sentencing, the parties discussed whether certain convictions were barred by

       double-jeopardy. The trial court found that Count III, pointing a firearm at

       another, which is the sufficiency claim Riley discusses, should be vacated based

       on double-jeopardy grounds. Following the parties’ arguments, the trial court

       did not enter a judgment of conviction as to that Count. Thus, we find Riley’s


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019   Page 7 of 8
       sufficiency claim for his Level 6 felony pointing a firearm at another conviction

       is moot.


[18]   Notwithstanding the mootness of his argument, to the extent he argues the

       evidence is insufficient to his Level 6 felony pointing a firearm at another,

       during the foot chase, we note that the evidence reflects that Riley reached into

       his waistband and pulled out a semi-automatic handgun and pointed it toward

       Officer Drury. Officer Bayles who was running behind Officer Drury also saw

       Riley holding the gun and repeatedly yelled to warn Officer Drury that Riley

       had a gun. This was sufficient evidence to establish beyond a reasonable doubt

       that Riley pointed a firearm at Officer Drury.


                                             CONCLUSION
[19]   Based on the foregoing, we hold that Riley’s sufficiency claim as to his Level 6

       felony pointing a firearm at another is moot since the trial court did not enter a

       judgment of conviction as to that charge. Moreover, to the extent that he

       challenges his sufficiency of the evidence to that Count, we conclude that there

       was sufficient evidence beyond a reasonable doubt that Riley pointed a firearm

       at Officer Drury.


[20]   Affirmed.


[21]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019   Page 8 of 8
