MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                         Oct 04 2018, 10:19 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Carter,                                      October 4, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-765
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff                                       Menges, Judge
                                                         Trial Court Cause No.
                                                         34D01-1610-F3-1072



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-765 | October 4, 2018                    Page 1 of 5
[1]   Christopher Carter appeals his conviction for Level 4 Felony Unlawful

      Possession of a Firearm by a Serious Violent Felon,1 arguing that the evidence

      was insufficient. He also appeals the denial of his motion for a directed verdict

      on another charge. We find that the evidence is sufficient and that the denial of

      the motion for a directed verdict is not yet ripe for appeal. Therefore, we affirm

      and remand for further proceedings.


                                                     Facts
[2]   On October 14, 2016, the State charged Carter with Level 3 felony conspiracy

      to commit dealing in a narcotic drug, Level 3 felony conspiracy to commit

      dealing in cocaine, Level 4 felony unlawful possession of a firearm by a serious

      violent felon, Level 6 felony possession of a narcotic drug, Level 6 felony

      maintaining a common nuisance, and Class B misdemeanor possession of

      marijuana.


[3]   Carter’s jury trial began on January 26, 2018. Following the State’s

      presentation of evidence, Carter moved for a directed verdict on the two Level 3

      felonies and the possession of a narcotic drug charge; the trial court denied the

      motion. The jury found Carter guilty of unlawful possession of a firearm by a

      serious violent felon, maintaining a common nuisance, and possession of

      marijuana. The jurors were unable to reach a unanimous verdict on the other

      three charges. On March 2, 2018, the trial court sentenced Carter to an




      1
          Ind. Code § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-765 | October 4, 2018   Page 2 of 5
      aggregate term of fourteen years imprisonment and set the remaining

      unresolved counts for a new jury trial. Carter now appeals.


                                   Discussion and Decision
                                              I. Sufficiency
[4]   Carter first argues that the evidence does not support his conviction for Level 4

      felony unlawful possession of a firearm by a serious violent felon. To convict

      Carter of this crime, the State had to prove beyond a reasonable doubt that he is

      a serious violent felon who knowingly or intentionally possessed a firearm. I.C.

      § 35-47-4-5(c). A serious violent felon is a person who has been convicted of a

      serious violent felony in Indiana “or any other jurisdiction in which the

      elements of the crime for which the conviction was entered are substantially

      similar to the elements of a serious violent felony[.]” I.C. § 35-47-4-5(a)(1). A

      serious violent felony includes, in relevant part, “dealing in or manufacturing

      cocaine or a narcotic drug (IC 35-48-4-1)” and “dealing in a schedule I, II, or III

      controlled substance (IC 35-48-4-2)[.]” I.C. §§ 35-47-4-5(b)(24), -5(b)(26).


[5]   Carter’s sole challenge to the sufficiency of the evidence is that the State did not

      prove that he is a serious violent felon. Specifically, he argues that the State

      failed to present evidence to show that his prior out-of-state conviction, which

      forms the basis of his alleged status as a serious violent felon, had elements

      substantially similar to an Indiana serious violent felony.


[6]   This issue, however, is a question of law for the trial court to determine rather

      than an issue of fact for the jury to consider. E.g., Ind. Code § 34-38-4-3

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-765 | October 4, 2018   Page 3 of 5
      (providing that the determination of foreign law is a question for the court); see

      also, e.g., Hollingsworth v. State, 907 N.E.2d 1026, 1030 (Ind. Ct. App. 2001)

      (holding that whether a prior Arkansas conviction was substantially similar to

      an Indiana serious violent felony was a matter of law to be determined by the

      trial court rather than the jury). In other words, the jury in this case need only

      have determined whether Carter was, indeed, convicted of the prior out-of-state

      felony, which he has not challenged.


[7]   Carter did not argue to the trial court, nor does he argue on appeal, that the

      elements of his out-of-state offense are not substantially similar to that of a

      serious violent felony in Indiana. Consequently, he has waived this argument.

      Waiver notwithstanding, we note briefly that the prior conviction on which

      Carter’s status as a serious violent felon is based is a Wisconsin conviction for

      felony possession of cocaine with intent to manufacture, distribute, or deliver.

      Wis. Stat. §§ 961.41(1), 961.41(1)(cm). The elements of that statute are nearly

      identical to Indiana’s dealing in cocaine and dealing in controlled substances

      statutes. If anything, Indiana’s statutes are broader, meaning that there is no

      conduct that the Wisconsin statute would capture that the Indiana statute

      would not.


[8]   The better practice would have been for the prosecutor in this case to have

      presented the Wisconsin statute to the trial court so that the trial court could

      have made an explicit determination that the elements are substantially similar

      to the relevant Indiana statutes. Had the prosecutor’s failure to address the

      issue been brought to the trial court’s attention by Carter’s counsel, the trial

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-765 | October 4, 2018   Page 4 of 5
       court could have made such a ruling. But the failure to raise the issue by either

       the State or Carter does not require a reversal, as it is an issue of law that would

       have been decided in the State’s favor had it been raised. Consequently, we

       decline to reverse on this basis.


                                        II. Directed Verdict
[9]    Carter also argues that the trial court should have granted his motion for a

       directed verdict on the possession of a narcotic drug charge. Our Supreme

       Court has held that when there was a denial of a motion for a directed verdict

       on a charge on which the jury ultimately deadlocked, the denial is not final

       because it allows for and contemplates a retrial on the unresolved charges.

       Conn v. State, 535 N.E.2d 1176, 1179-80 (Ind. 1989). Here, the jury was unable

       to reach a verdict on the possession of a narcotic drug charge. Therefore, the

       trial court’s earlier denial of Carter’s motion for a directed verdict on that

       charge is not final and appealable. We affirm and remand for further

       proceedings.


[10]   The judgment of the trial court is affirmed and remanded for further

       proceedings.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-765 | October 4, 2018   Page 5 of 5
