Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                              Apr 10 2014, 9:21 am
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:

RUTH JOHNSON                                        GREGORY F. ZOELLER
DARREN BEDWELL                                      Attorney General of Indiana
Marion County Public Defender Agency
Appellate Division                                  LARRY D. ALLEN
Indianapolis, Indiana                               Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

DAWAYNE J. THOMAS,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A05-1309-CR-452
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Mark D. Stoner, Judge
                            Cause No. 49G06-1210-FB-69821



                                          April 10, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
        Dawayne J. Thomas appeals his conviction following a jury trial for unlawful

possession of a firearm by a serious violent felon (“SVF”)1 as a Class B felony, contending

that his request for bifurcated proceedings should have been granted.

        We affirm.

                            FACTS AND PROCEDURAL HISTORY2

        On the evening of October 8, 2012, at about 9:30 p.m., Officers Michael Kavanaugh

and Kevin Larussa, of the Indianapolis Metropolitan Police Department, responded to a

call from a resident reporting an incident involving a potentially armed man sitting in a

white Chevrolet Tahoe. When the officers arrived on the scene, they approached the

Tahoe. A man, who was later identified as Thomas, was sitting in the passenger seat of the

vehicle.

        Officer Kavanaugh approached the Tahoe from behind, while Officer Larussa

shined his spotlight on Thomas and walked toward the Tahoe from the front. As Officer

Larussa approached, he saw Thomas reach down into the vehicle. Thomas then cracked

open the passenger side door and dropped something on the ground. The officers heard

something like a heavy, metal object hit the ground. Officer Larussa drew his service

weapon and ordered Thomas out of the vehicle. Thomas promptly exited the Tahoe and



        1
            See Ind. Code § 35-47-4-5.
        2
          The record on appeal in this case was prepared pursuant to the Indiana Supreme Court’s “Order
Establishing the Indiana Court Reporting Pilot Project for Exploring the Use of an Audio/Visual Record on
Appeal[,]” issued on September 18, 2012, and effective on July 1, 2012. See In Re Pilot Project for
Audio/Visual Recordings In Lieu of Paper Transcripts In the Preparation of the Record and Briefing on
Appeal, 976 N.E.2d 1218 (Ind. 2012). We are grateful for the ongoing cooperation of the Honorable Mark
D. Stoner of Marion Superior Court, the Marion County Public Defender Agency, and the Office of the
Indiana Attorney General in the execution of this pilot project.

                                                   2
complied with Officer Larussa’s orders to lie down on the ground.

       While handcuffing Thomas, Officer Kavanaugh saw a Ruger 9mm caliber handgun

on the ground directly under the Tahoe passenger door from which Thomas had exited.

The handgun was loaded, with a round in the chamber. There was nothing else on the

ground. The officers then searched Thomas’s person and found a box of 9mm caliber

ammunition in his coat pocket. (A/V Rec. No. 1; 07/22/13; 3:28:07-15). The officers also

recovered an unloaded, black, AR-15 style rifle in the Tahoe, as well as a box of

ammunition for the rifle.

       Thomas was arrested and subsequently charged with robbery, pointing a firearm,

carrying a handgun without a license, and unlawful possession of a firearm by an SVF.

The State, citing the inability to locate an essential witness, moved to dismiss three of the

counts. Appellant’s App. at 51. The trial court granted the State’s motion and tried Thomas

only on the SVF charge.

       Prior to trial, Thomas filed a motion in limine asking the trial court to bifurcate the

proceedings “to prevent prejudice to Defendant that is likely to result from the jury hearing

that the Defendant is a ‘Serious Violent Felon’ with a Class A felony Cocaine Dealing

conviction.” Appellant’s App. at 65. At the commencement of trial, the trial court heard

the parties’ arguments regarding Thomas’s motion and then denied it. Recognizing the

validity of Thomas’s concern about potential unfair prejudice, however, the trial court

ordered that the term “serious violent felon” not be used in the charging information

presented to the jury, in any instructions, or in the State’s argument. (A/V Rec. No. 1;

07/22/13; 9:33:18-9:34:01).

                                              3
       During trial, the officers testified regarding the circumstances of Thomas’s

possession of the gun. The State also introduced, and the jury heard, the recording of a

telephone call that Thomas made from prison to an “unknown female.” State’s Ex. 8. In

that conversation, Thomas is heard to say, “I mean everything [is] a little bit beatable except

carrying a hand gun [sic] without a license and all that.” State’s Ex. 8. During the

proceedings, the jury never heard the phrase “serious violent felon.” Following trial, the

jury found Thomas guilty of unlawful possession of a firearm by an SVF, and the trial court

sentenced him to ten years executed. Thomas now appeals.

                               DISCUSSION AND DECISION

       On appeal, Thomas touches on two issues. First, he argues that the trial court denied

him a fair trial when it refused his motion to bifurcate the trial. Appellant’s Br. at 5, 6.

Second, Thomas maintains that the trial court abused its discretion when it denied his

motion to bifurcate the proceedings.3 Id. at 6. We address these issues in turn.

       Thomas’s claim that he was denied a fair trial, mirrors the issue raised by the

defendant in Spearman v. State, 744 N.E.2d 545 (Ind. Ct. App. 2001), trans. denied.

Spearman was convicted following a jury trial of one count of possession of a firearm by

an SVF. On appeal, he claimed that his trial, which allowed the jury to hear about his prior

felony conviction, violated his due process rights under the Fourteenth Amendment to the

United States Constitution. Id. at 547. Our court disagreed. As we noted in Spearman,

Indiana Code section 35-47-4-5 prohibits those convicted of a serious violent felony from


       3
          Thomas does not contest the evidence from which the jury determined that he was in possession
of the handgun or rifle.

                                                  4
knowingly or intentionally possessing a firearm. “[T]he legal status of the offender is an

essential element of the crime, and the act—the possession—is illegal only if performed

by one occupying that status.” Id. at 548.

        Agreeing with our decision in Spearman, our Supreme Court has recognized that

where a defendant is tried solely on the charge of unlawful possession of a firearm by an

SVF, such defendant is “not entitled to have the proceedings bifurcated . . . because the

evidence of the prior conviction is an essential element of the crime. Hines v. State, 801

N.E.2d 634, 635 (Ind. 2004) (citing Spearman, 744 N.E.2d at 548). Thomas, nevertheless,

urges this court to “exercise [its] supervisory power over trial courts to ensure that future

jury trials for SVF charges are bifurcated” to ensure fair trials. Appellant’s Br. at 5. It is

not, however, this court’s role to reconsider or declare that decisions of our Supreme Court

are invalid. Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005). As we

explained in Horn:

        We are bound by the decisions of our [S]upreme [C]ourt. Supreme [C]ourt
        precedent is binding upon us until it is changed either by that [C]ourt or by
        legislative enactment. While Indiana Appellate Rule 65(A) authorizes this
        [c]ourt to criticize existing law, it is not this court’s role to “reconsider”
        [S]upreme [C]ourt decisions.

Id. (quoting Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002), trans. denied).

The trial court’s denial of Thomas’s motion to bifurcate was not a per se violation of his

right to a fair trial.

        Thomas also contends that the trial court abused its discretion when it denied his

motion to bifurcate. Generally, a motion to bifurcate is reviewed for an abuse of discretion.

Dugan v. State, 860 N.E.2d 1288, 1290 (Ind. Ct. App. 2007), trans. denied. An abuse of

                                              5
discretion occurs where the decision is clearly against the logic and effect of the facts and

circumstances. Id.

       Several Indiana cases have discussed the problematic nature of trying SVF charges

to a jury. Specifically, these cases have wrestled with the question of how to balance a

defendant’s right to a fair trial against the requirement that each element of a crime must

be proven beyond a reasonable doubt. To prove unlawful possession of a firearm by a

serious violent felon, the State has to prove that defendant 1) was in possession of a firearm,

and 2) was a serious violent felon, i.e., that he had been convicted of one of the crimes

designated under Indiana Code section 35-47-4-5.4 Thomas was designated an SVF for

due to his prior conviction of dealing in cocaine. Ind. Code § 35-47-4-5(b)(23).

       Thomas focuses on language in Spearman, where we said it was “not practical, or

even possible, to bifurcate the proceedings” where the defendant is only charged with

unlawful possession of a firearm by an SVF. Appellant’s Br. at 7. Thomas recognizes that

the majority opinion in Spearman has not been overruled; yet, he contends that more recent

appellate decisions show that it is practical to bifurcate the proceedings of an SVF count.

Id. We concede that our appellate courts found that the trial courts in Russell and Williams

did not abuse their discretion by bifurcating the SVF proceedings. See Russell v. State, 997

N.E.2d 351 (Ind. 2013) (in first stage of trial, jury heard evidence of murder and unlawful

possession of gun, and second stage, jury heard evidence of whether defendant was SVF);

see also Williams v. State, 834 N.E.2d 225, 228 (Ind. Ct. App. 2005) (approving of trial


       4
         There are twenty-seven crimes listed in Indiana Code section 35-47-4-5, the conviction of which
may result in a person being designated as a “serious violent felon”; among that list are crimes such as
murder, battery, kidnapping, and dealing in cocaine, methamphetamine, or other controlled substances.

                                                   6
court having bifurcated trial to avoid labeling defendant as SVF until after the jury had

decided possession element). However, finding no abuse of discretion in a bifurcated trial

court proceeding has no direct bearing on whether it is an abuse of discretion to proceed

without bifurcated proceedings. That question still must be decided on the facts of this

case.

        In the instant case, before he denied the motion, the trial court heard extensive

argument from both parties regarding Thomas’s motion to bifurcate. Contrary to Thomas’s

assertion, we conclude for the following reasons that the trial court did not abuse its

discretion in denying Thomas’s motion to bifurcate the elements of the SVF charge.

        Notwithstanding his decision to deny the motion, the trial court recognized the

validity of Thomas’s concern about prejudice. To diminish prejudice to Thomas, the trial

court ordered the term “serious violent felon” not be used in the charging information

presented to the jury, in any instructions, or in the State’s argument. (A/V Rec. No. 1;

07/22/13; 9:33:18-9:34:01). The trial court gave several preliminary instructions, none of

which referred to Thomas as an SVF. Appellant’s App. at 69-93. In Preliminary Jury

Instruction Number 6, the jury was informed that Thomas was charged with unlawful

possession of a firearm by a person having been convicted of a prior felony. Appellant’s

App. at 76. This preliminary instruction also included the language of the charging

information which, again, made no mention of Thomas being an SVF.              Id. at 77.

Preliminary Jury Instruction Number 14 informed the jury:

        As the Court has instructed you, each element of the offense must be
        considered separately by the jury. Each element must be proven
        independently beyond a reasonable doubt.

                                            7
       Sometimes evidence is admitted for a limited purpose. You may hear
       testimony that the Defendant had a prior conviction. That information is an
       element of the offense which is separate and distinct from whether the
       Defendant possessed a firearm.

       You may not consider any testimony about the Defendant’s prior conviction
       for any other purpose. Specifically, you may not consider the evidence as
       proof of the Defendant’s character. You may not draw any inference that,
       because the defendant had a prior conviction on one occasion, he must have
       knowingly possessed a gun on this incident. Each element must be
       considered on its own individual facts.

Id. at 86. This preliminary instruction advised the jury as to the limited use of the prior

felony conviction.

       Here, allowing evidence of the prior conviction and the possession to be heard

during the same proceeding would have had little if any influence on the jury’s

determination that Thomas possessed the firearm or the rifle. During trial, the jury heard

the recording of a telephone call that Thomas made from prison to an “unknown female.”

State’s Ex. 8. In that conversation, Thomas is heard to say, “I mean everything [is] a little

beatable except carrying a hand gun without a license and all that.” State’s Ex. 8. This

admission by Thomas would have been enough for the jurors to conclude that he possessed

the handgun.

       Likewise, prejudice, if any, caused by the jury learning of the prior conviction was

diminished when, during voir dire, defense counsel conceded that his client had a

qualifying prior offense: “One of the things that you’re going to hear is that Mr. Thomas

has a prior conviction from 2003.” (A/V Rec. No. 1; 7/22/13; 11:37:00). Defense counsel

told the jury that the conviction was for drug dealing. (A/V Rec. No. 1; 7/22/13; 11:37:23).


                                             8
He then asked the jurors whether any of them would be unable to be fair and impartial

because he had a criminal history. (A/V Rec. No. 1; 7/22/13; 11:37:34-39). One potential

juror admitted that she could not. (A/V Rec. No. 1; 7/22/13; 11:37:40). By informing the

potential jurors of Thomas’s prior conviction, defense counsel was able to address, prior to

trial, the issue of juror bias.

       Thomas was not denied a fair trial, nor did the trial court abuse its discretion in

denying Thomas’s motion to bifurcate the proceedings on his sole charge of unlawful

possession of a firearm by an SVF.

       Affirmed.

MAY, J., and BRADFORD, J., concur.




                                             9
