MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Mar 10 2017, 9:43 am
this Memorandum Decision shall not be
                                                                                 CLERK
regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                Court of Appeals
court except for the purpose of establishing                                      and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks,
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gerald Donaldson,                                        March 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1608-CR-1834
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese M.
Appellee-Plaintiff.                                      Flowers, Judge
                                                         The Honorable James Snyder,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1604-F4-12741



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1834 | March 10, 2017                Page 1 of 7
                                       Statement of the Case
[1]   Gerald Donaldson (“Donaldson”) appeals his conviction for Level 4 felony

      unlawful possession of a firearm by a serious violent felon (“SVF”).1 He argues

      that there was not sufficient evidence to prove that he possessed the firearm that

      the police found near his car. Because we conclude that there was sufficient

      evidence that he possessed the firearm, we affirm. However, we also remand

      with instructions for the trial court to correct an error in Donaldson’s abstract of

      judgment.


[2]   We affirm and remand.


                                                     Issue
                 Whether there was sufficient evidence to prove that Donaldson
                 possessed a firearm.

                                                     Facts
[3]   Around 2 a.m. on March 31, 2016, Indianapolis Metropolitan Police

      Department Officer Marc Klonne (“Officer Klonne”) was patrolling 38th Street

      in Indianapolis when he spotted a red vehicle with inoperable tail lights and a

      loud muffler. He determined that the vehicle’s license plate was expired and,

      after following the vehicle for a while, turned on his lights and siren to conduct

      a traffic stop. However, the vehicle did not stop and led Officer Klonne on a

      pursuit through residential areas near 38th Street. Officer Klonne alerted




      1
          IND. CODE § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1834 | March 10, 2017   Page 2 of 7
      dispatch of the pursuit and then followed the vehicle until it finally stopped in a

      grassy area off of Birchwood Avenue.


[4]   When Officer Klonne came to a stop a car length behind the red vehicle, he

      positioned his police car so that its spotlight shone into the red vehicle’s

      interior. At that point, the driver of the vehicle, who was later identified as

      Donaldson, opened his door and ran in front of his car to flee from Officer

      Klonne. Officer Klonne saw a black item with a “distinct shine to it” and a

      “distinct rectangular or squared off shape” protruding from Donaldson’s hand.

      (Tr. 17). He believed that the item was a firearm and conveyed this information

      to dispatch.


[5]   In the meantime, Officer Klonne pursued Donaldson on foot. A second police

      vehicle with two officers arrived as backup and caught up to Donaldson. The

      officers then exited their car to pursue Donaldson on foot. One of the officers,

      who had been told that Donaldson might have a gun, noted that he did not see

      Donaldson holding a gun at that point in the chase. Instead, he observed

      Donaldson “running holding his pants” and then “switch[] hands holding his

      pants.” (Tr. 60).


[6]   Eventually, the officers caught up to Donaldson behind a house and took him

      into custody. They searched his pockets and found a marijuana blunt, heroin,

      and cocaine residue. They also found a toy gun on the sidewalk in front of the

      house where they had apprehended Donaldson. Another officer who was

      investigating the scene of the stopped cars discovered a real firearm on the grass


      Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1834 | March 10, 2017   Page 3 of 7
      “about five feet from the front end of [Donaldson’s] car.” (Tr. 39). The officers

      did a firearms check and determined that Donaldson did not have a handgun

      license.


[7]   When the officers booked Donaldson into the arrestee processing center,

      Donaldson used the center’s telephones to make two phone calls—one to the

      mother of his children and one to his sister. (Tr. 80). In his conversation with

      the mother of his children, Donaldson said “[t]hey find the heat and everything

      and stuff” and “I said I had to throw the heat and everything.” (State’s Ex.

      12a). He also said “[t]hey tryin’ to say the heat was mine. The heat they found

      they tryin’ to say it was mine.” (State’s Ex. 12a). During his second phone call

      with his sister, his sister asked, “But you had the gun too?” and he responded,

      “I had the gun, too.” (State’s Ex. 12a). Later in the conversation, though, he

      denied that he had possessed a gun that night.


[8]   On April 5, 2016, the State charged Donaldson with Count 1, Level 4 felony

      unlawful possession of a firearm by a serious violent felon; Count 2, Level 5

      felony possession of cocaine; Count 3, Level 5 felony possession of a narcotic

      drug; Count 4, Level 6 felony resisting law enforcement; Count 5, Class A

      misdemeanor resisting law enforcement; and Count 6, Class B misdemeanor

      possession of marijuana. The State also alleged that Donaldson was an

      habitual offender because he had two prior unrelated felony convictions.


[9]   On June 13, 2016, the trial court held a jury trial. At trial, Officer Klonne and

      the other officers who had been involved in Donaldson’s pursuit testified to the


      Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1834 | March 10, 2017   Page 4 of 7
       above facts. Officer Klonne also testified that “heater” and “hot box” were

       “street names” for firearms. (Tr. 29, 30). Donaldson testified that he never had

       a toy gun on him or a “weapon period.” (Tr. 79). He explained that when he

       said he “threw heat,” he meant that he “threw the crack pipe that [he] had on

       [himself].” (Tr. 79). At the conclusion of the trial, the jury found Donaldson

       guilty as charged. The trial court then held a bench trial on the State’s SVF and

       habitual offender allegations and determined that he was a SVF and habitual

       offender. The trial court sentenced him to eight (8) years on Count 1; two (2)

       years each on Counts 2, 3, and 4; and 180 days on Count 6, with all of the

       sentences to be served concurrently.2 The court also enhanced Donaldson’s

       sentence by nine (9) years, with six (6) years executed on community

       corrections and three (3) years suspended.3 Donaldson now appeals.


                                                        Decision
[10]   On appeal, Donaldson argues that there was insufficient evidence to prove that

       he possessed the firearm that the officers found in front of his car. Our standard

       of review for a sufficiency of the evidence claim is well-settled. We consider

       only the probative evidence and reasonable inferences supporting the verdict.




       2
           The trial court vacated Donaldson’s conviction for Count 5 to avoid violating double jeopardy prohibitions.
       3
         The trial court clarified in its sentencing order that the nine (9) year habitual offender enhancement
       enhanced Donaldson’s sentence for Count I. However, its abstract of judgment provided that the “total
       sentence listed above”—which included all of the Counts—was enhanced by the nine (9) years. Our habitual
       offender statute specifies that a “[t]he court shall attach the habitual offender enhancement to the felony
       conviction with the highest sentence imposed and specify which felony count is being enhanced.” I.C. § 35-
       50-2-8(j). Accordingly, we remand with instructions for the trial court to correct the abstract of judgment to
       clarify that Donaldson’s habitual offender enhancement is attached to Count 1.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1834 | March 10, 2017               Page 5 of 7
       Champion v. State, 65 N.E.3d 607, 610 (Ind. Ct. App. 2016). We do not reweigh

       the evidence or judge the credibility of witnesses. 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 verdict. Id.


[11]   In order to convict Donaldson for unlawful possession of a firearm by an SVF,

       the State had to prove that he was an SVF and: “knowingly or intentionally

       possesse[d] a firearm.” I.C. § 35-47-4-5. A person possesses an item when that

       person has “direct physical control over the item.” Henderson v. State, 715

       N.E.2d 833, 835 (Ind. 1999).4


[12]   Here, Donaldson’s arguments are essentially requests that we reweigh the

       evidence, which we will not do. See Champion, 65 N.E.3d at 610. Without

       reweighing the evidence, we conclude that there was sufficient evidence that

       Donaldson possessed the firearm. Specifically, Officer Klonne saw a black item

       with a “distinct shine to it” and a “distinct rectangular or squared off shape” in

       Donaldson’s hand and believed that item was a gun. (Tr. 17).

       Correspondingly, officers found a firearm five feet in front of Donaldson’s car

       along the path that he took to flee the police. Donaldson also admitted to




       4
         Possession of contraband may be either actual or constructive. Henderson v. State, 715 N.E.2d 833, 835 (Ind.
       1999. Actual possession occurs when a person has direct physical control over an item. Id. Constructive
       possession occurs when a person has the “‘intent and capability to maintain dominion and control over the
       item.’” Id. (quoting Walker v. State, 631 N.E.2d 1, 2 (Ind. Ct. App. 1994). Donaldson argues that he did not
       have constructive possession of the firearm, but we need not address that argument as we conclude that he
       had actual possession of the firearm.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1834 | March 10, 2017              Page 6 of 7
       possessing a firearm when he talked to the mother of his children and his sister

       from jail. He told the mother of his children that the police had found the

       “heat” and that he had thrown “the heat.” (State’s Ex. 12a). Officer Klonne

       testified that “heater” is a street name for a firearm. (Tr. 29). Donaldson also

       told his sister that he had a gun. Based on this evidence, we conclude that there

       was sufficient evidence to prove that Donaldson possessed the firearm.

       Accordingly, we affirm the trial court.


[13]   Affirmed and remanded.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1834 | March 10, 2017   Page 7 of 7
