MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                           Jul 15 2019, 6:35 am
regarded as precedent or cited before any
                                                                                    CLERK
court except for the purpose of establishing                                    Indiana Supreme Court
                                                                                   Court of Appeals
the defense of res judicata, collateral                                              and Tax Court

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

                                                          Matthew B. MacKenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Evan Michael Sapp,                                        July 15, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2796
        v.                                                Appeal from the Vigo Superior
                                                          Court
State of Indiana,                                         The Honorable Michael R. Rader,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          84D05-1806-F4-2057



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2796 | July 15, 2019                           Page 1 of 10
                                             Case Summary
[1]   Evan Michael Sapp appeals his conviction, following a jury trial, for Level 4

      felony unlawful possession of a firearm by a serious violent felon. He asserts

      that the State presented insufficient evidence that he possessed a firearm.


[2]   We affirm.


                                   Facts & Procedural History
[3]   On June 13, 2018 at approximately 7:30 a.m., a 911 caller reported that a man

      was asleep or unconscious in the driver’s seat of a running Dodge Ram pickup

      truck parked in an alley behind her house and that she had tried to wake him,

      but he was unresponsive. First to arrive at the scene were three Terre Haute

      firefighters and paramedics, including Matthew Osborne. The driver’s side

      window of the pickup truck was about halfway down, and the driver’s head was

      slumped over and resting on the top of the steering wheel. Osborne approached

      the vehicle, and while about ten feet away, Osborne yelled to the driver, later

      identified as Sapp, asking if he was alright. Osborne wondered if the person

      had suffered a stroke or some other medical emergency. Sapp immediately

      woke up and replied, “yah, yah I’m okay.” Transcript Vol. II at 221. Given that

      initially he had been unresponsive to the homeowner, Osborne asked Sapp if he

      would step out to make sure everything was okay, and Sapp replied that he

      lived a couple blocks away and was going to drive home. During this time,

      Osborne noticed that Sapp was sweating and had “pin-point” pupils, which




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2796 | July 15, 2019   Page 2 of 10
      suggested to Osborne that Sapp might be under a possible narcotics influence.

      Id. at 222.


[4]   While standing about a foot and a half away from the driver’s side window,

      Osborne observed a pistol wedged between the driver’s seat and the center

      console with the handle pointing up. Part of the barrel was tucked down and

      out of sight but the rest was viewable above the seat. According to Osborne,

      the handle was brown and white, and the barrel was black. Osborne believed it

      was a small caliber revolver, between .22 and .38 caliber, that was “hammer

      driven.” Id. at 231.


[5]   Osborne asked Sapp several times to step out of the vehicle so Osborne could

      assess any injuries or medical issues that Sapp may have been experiencing, and

      given the presence of a firearm, Osborne was also concerned for his own safety.

      Sapp “continually stated no, no, I’m okay” and that he was “going to go

      home.” Id. at 224. When another firefighter suggested, “[t]he police ar[e]

      almost here, just step out for a second . . . so we can get you taken care of,”

      Sapp said “no, I’m going home” and reached his right hand toward the

      direction of the gun, causing Osborne and another nearby firefighter to take

      “evasive maneuvers” by moving away. Id. at 225-26, 242. Sapp then drove

      away at a high rate of speed, passing through a stop sign without stopping as he

      continued heading north.


[6]   Using the truck’s license plate and Osborne’s identification of Sapp in a photo

      array, police located the Ram pickup truck in a motel parking lot at around


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2796 | July 15, 2019   Page 3 of 10
      12:30 p.m. that same day. Sapp was arrested as he exited the motel, and the

      truck was searched, but no firearm was found either on Sapp, in the pickup

      truck, or in the motel room registered to Sapp. Police did find a replica or toy

      AR-15-style rifle behind the driver’s seat of the Ram pickup truck. Police never

      found the gun that Osborne had seen in the truck.


[7]   On June 15, 2018, the State charged Sapp with Level 4 felony unlawful

      possession of a firearm, namely a revolver, after having previously been

      convicted of Class B felony burglary in 2010. The State also charged Sapp with

      Class A misdemeanor operating a motor vehicle without ever having received a

      valid driving license, but later dismissed this charge. The trial court granted

      Sapp’s motion to bifurcate the trial, so that the remaining charge would be tried

      first as a “possession of a firearm” only. Appellant’s Appendix Vol. II at 50. On

      September 24, 2018, the trial court granted, over Sapp’s objection, the State’s

      motion to amend the charging information to add a habitual offender

      enhancement.


[8]   At the two-day September 2018 jury trial, the State called various witnesses,

      including Osborne. As stated above, he described the gun that he saw in the

      pickup. He also testified that he was very familiar with firearms and had two

      decades of experience owning and shooting various guns, including pistols. He

      testified, “I own a pistol that is very similar to what I observed” in Sapp’s truck,

      specifically, a .22 caliber Heritage Roughrider pistol with a six-inch barrel and a

      similar handle shape. Transcript Vol. II at 233. When asked, “Could it have

      been a toy gun?” he replied that he did not believe so, noting that upon seeing it

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2796 | July 15, 2019   Page 4 of 10
       he was concerned for his safety. Id. at 234. Osborne explained that what he

       saw was “a heavy metal gun” and that “typically air soft pistols are of a plastic

       nature,” and are usually shaped like a semi-automatic handgun with a slide on

       the top, whereas the gun he observed was what some people would characterize

       as “a cowboy revolver.” Id. at 232, 234. Osborne said that he was standing and

       communicating with Sapp at the truck for a period of thirty to forty seconds

       during which he was in a position that allowed him to view the gun.


[9]    At the conclusion of the State’s evidence, Sapp moved for an Ind. Trial Rule 50

       judgment on the evidence, which the trial court denied. Sapp rested without

       calling witnesses. The jury returned a verdict that Sapp did possess a firearm,

       and Sapp thereafter admitted the facts establishing that he was, by virtue of a

       prior burglary conviction, a serious violent felon.


[10]   The trial court subsequently sentenced Sapp to the Indiana Department of

       Correction for six years for the Level 4 felony, enhanced by six years on the

       habitual offender finding, for a total sentence of twelve years, with six years

       executed followed by six months of work release, then six months of in-home

       detention, and thereafter five years of formal probation. Sapp now appeals.


                                        Discussion & Decision
[11]   Sapp contends that the State presented insufficient evidence to convict him.

       When reviewing sufficiency of the evidence in support of a conviction, we will

       consider only probative evidence in the light most favorable to the trial court’s

       judgment. Burns v. State, 91 N.E.3d 635, 640 (Ind. Ct. App. 2018). The

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2796 | July 15, 2019   Page 5 of 10
       decision comes before us with a presumption of legitimacy, and we will not

       substitute our judgment for that of the factfinder. Id. We do not assess the

       credibility of the witnesses or reweigh the evidence in determining whether the

       evidence is sufficient. Id. at 640-41. Reversal is appropriate only when no

       reasonable factfinder could find the elements of the crime proven beyond a

       reasonable doubt. Id. at 641. Thus, the evidence is not required to overcome

       every reasonable hypothesis of innocence and is sufficient if an inference may

       reasonably be drawn from it to support the verdict. Id.


[12]   In his bifurcated trial, the State was required to show that Sapp knowingly or

       intentionally possessed a firearm as charged, and Sapp’s contention on appeal is

       that the State failed to prove that what he possessed was indeed a firearm.

       Relying in part on the incredible dubiosity rule, Sapp submits that “the detail

       and specificity of Osborne’s testimony is very hard to believe, given his location

       relative to the supposed firearm, the short time he had to observe it, the fact that

       . . . it was largely concealed, and the circumstances under which he had the

       opportunity to observe it.” Reply Brief at 3.


[13]   Our courts have recognized that, for testimony to be disregarded based on a

       finding of incredible dubiosity, it must be inherently contradictory, wholly

       equivocal, or the result of coercion. Gray v. State, 871 N.E.2d 408, 416 (Ind. Ct.

       App. 2007), trans. denied. Moreover, there must be a complete lack of

       circumstantial evidence of the defendant’s guilt. Id. at 417. The rule is rarely

       applicable. Id.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2796 | July 15, 2019   Page 6 of 10
[14]   In arguing that Osborne’s detailed testimony about the gun was incredibly

       dubious, Sapp particularly challenges what the State maintains on appeal was

       testimony that Osborne saw a “trap door” on the revolver. The contested

       testimony is as follows:


               Q: Okay and you said you believed it to be a small caliber uh,
               why did you believe that?


               A: Yes sir. I have owned weapons like that in the past. Uhm,
               typically when a small caliber revolver will have a trap door on
               the back that you can then spin the cylinder to unload and re-
               load your, your rounds. Because small caliber pistols have less
               recoil, they can be enclosed like that and the cylinder doesn’t
               have to be removed every time to eject all the shells.


       Transcript Vol. II at 232.


[15]   Sapp argues that, contrary to the State’s assertion, Osborne did not actually

       state that he observed a trap door on the gun he saw in the pickup; rather, he

       merely stated that some small caliber revolvers have a trap door. We are

       unpersuaded by this technical argument and find that Osborne’s testimony was

       his explanation as to why he believed that what he saw was a small caliber

       revolver, and from it we find that a jury could infer that the weapon he saw had

       the “trap door” feature. But assuming for the sake of argument that his

       statement did not sufficiently imply that premise, we find that other portions of

       Osborne’s testimony on the issue was more explicit on the subject. Specifically,

       on re-direct examination, Osborne read from his statement that he had given to



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2796 | July 15, 2019   Page 7 of 10
       police a few hours after the incident, where Osborne described the gun that he

       had seen as follows:


               It was a black revolver approximately six inch barrel, looked to
               be small caliber. Had a brown and white handle on it and it, it
               had one of the trap doors for just to re-load it. So that’s kinda how I
               saw that it was a small caliber handgun. It’s from my experience,
               what I’ve seen on some of those smaller ones.


       Id. at 245 (emphasis added). We find that Osborne’s testimony about what he

       saw, including having seen a trap door mechanism on the gun, was not

       inherently contradictory, wholly equivocal, or the result of coercion and does

       not fall within the narrow limits of the incredible dubiosity rule.


[16]   Sapp also argues that, even if Osborne’s testimony was not incredibly dubious,

       the evidence was insufficient, because “[n]o reasonable trier of fact could have

       found beyond a reasonable doubt that whatever Osborne saw through the

       window of Sapp’s truck . . . was not a toy, replica, BB gun or pellet gun, as was

       the AR-15 style toy or replica found by the police in Sapp’s truck just a few

       hours later[.]” Appellant’s Brief at 6. Sapp acknowledges that our courts have

       sustained a conviction in circumstances when the firearm was not located after

       the defendant’s arrest, 1 but urges that, unlike where a defendant displayed or




       1
        See e.g., Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009) (sustaining an armed robbery conviction where
       defendant, with his hand in jacket pocket, instructed restaurant employees to “stay calm and no one would
       get hurt” and witnesses saw “what looked like could have been a weapon” and something with a black
       handle in his defendant’s jacket pocket, although an actual firearm was never recovered).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2796 | July 15, 2019                  Page 8 of 10
       used a weapon, he did nothing “to signify or imply that the item [in his truck]

       was a ‘firearm.’” Id. at 5. We disagree.


[17]   As to his conduct, Sapp was asked multiple times to exit his vehicle so that the

       first responders could make sure he was okay and check his vitals before having

       him sign paperwork and sending him home, but Sapp refused to exit. Then,

       when Sapp heard that the police were almost there, Sapp reached toward the

       console, where Osborne had seen the pistol, and sped away, passing through a

       stop sign without stopping. We thus reject Sapp’s argument that his conduct

       could not support an inference that the gun observed by Osborne was an actual

       firearm.


[18]   We likewise reject Sapp’s broader argument that no reasonable trier of fact

       could have found from the evidence presented that what Osborne saw was a

       firearm (i.e., not a toy). Osborne, who had decades of experience with guns,

       testified in considerable detail about the gun that he saw, including its color,

       that it was a revolver, similar to one he owned, and had a “trap door” feature

       consistent with small caliber pistols. Transcript Vol. II at 232, 235. He also said

       that, when he saw it, he did not think it was a toy and, in fact, was afraid for his

       safety when Sapp appeared to be reaching for it. We agree with the State that

       “[t]he heart of [Sapp’s] argument is . . . a request that this Court ignore the

       substantial evidence provided to the jury and credit Defendant’s . . . claim that

       the firearm may have been a toy instead.” Appellee’s Brief at 7. Based on the

       evidence presented, we cannot say that no reasonable trier of fact could have

       found that Sapp possessed a firearm. See Burns, 91 N.E.3d at 641 (finding that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2796 | July 15, 2019   Page 9 of 10
       witnesses’ testimony of intruders pointing guns and another’s description of

       “black handguns” that “looked real” was sufficient to uphold conviction for

       burglary while armed with deadly weapon, despite that firearms were never

       recovered, and rejecting defendant’s argument that State failed to prove that he

       used a real handgun and not an airsoft or squirt gun).


[19]   Judgment affirmed.


       Kirsch, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2796 | July 15, 2019   Page 10 of 10
