MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           Sep 23 2015, 9:28 am
this Memorandum Decision shall not be
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
Ellen M. O’Connor                                        Gregory F. Zoeller
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

Charles Arnold,                                          September 23, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1503-CR-110
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese M.
Appellee-Plaintiff                                       Flowers, Judge
                                                         The Honorable Peggy Hart,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1408-F4-38278



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-110 | September 23, 2015   Page 1 of 10
                                          Case Summary
[1]   Appellant-Defendant Charles Arnold engaged in an argument with Cynthia

      Bell during the early morning hours of August 4, 2014. Arnold interfered when

      Bell approached Eddie Williams and asked for assistance. Despite Arnold’s

      threatening demeanor, Williams helped Bell get away from Arnold. A few

      hours later, Arnold spotted Williams, who had fallen asleep in his vehicle.

      Arnold, in an aggressive and threatening manner, demanded that Williams tell

      him where he had taken Bell. As Williams attempted to flee from Arnold,

      Williams heard two gunshots. Immediately after Williams heard the gunshots,

      he noticed that something had shattered the back window of his vehicle and

      punctured his left rear tire.


[2]   Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged

      Arnold with a number of crimes, including unlawful possession of a firearm by

      a serious violent felon, a Level 4 felony, and attempted battery by means of a

      deadly weapon, a Level 5 felony. Following a jury trial, Arnold was found

      guilty as charged. On appeal, Arnold challenges the sufficiency of the evidence

      sustaining his convictions for unlawful possession of a firearm by a serious

      violent felon and attempted battery by means of a deadly weapon. We affirm.



                            Facts and Procedural History
[3]   On the morning of August 4, 2014, Arnold and Cynthia Bell engaged in an

      argument. During the course of the argument, Bell “slashed” Arnold’s tires and


      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-110 | September 23, 2015   Page 2 of 10
      Arnold called the police. State’s Ex. 35-A, 5:44-5:50. At some point, Bell left

      the scene and approached a white SUV which was being driven by Eddie

      Williams. Williams observed that Bell appeared to be “distressed” and

      appeared to be “trying to get away from [ ] Arnold.” Tr. p. 49.


[4]   After Williams agreed to give Bell a ride, Arnold “jumped” in front of

      Williams’s vehicle to try to block the vehicle’s exit route. Tr. p. 50. Williams

      then “gunned [his] vehicle[,]” causing Arnold to move from the vehicle’s path.

      Tr. p. 51. As Williams drove away, he observed Arnold “thr[o]w his hand

      behind his back like [he was] going to draw a weapon.” Tr. p. 51. Williams,

      however, did not actually see a weapon at this time. Williams gave Bell a ride

      to the intersection of 18th Street and Meridian Street.


[5]   After dropping Bell off, Williams drove to Graceland Avenue between 36th and

      37th Streets, where he feel asleep in his vehicle. Williams was subsequently

      awakened by Arnold yelling at him from the passenger seat of a burgundy

      Buick that was being driven by Cory Mills. At Arnold’s request, Mills had

      stopped the Buick to the left of Williams’s vehicle. Arnold exhibited a

      “threatening” demeanor as he questioned Williams about Bell. Tr. p. 54.

      Arnold was acting “real aggressive, wanting to know what [Williams] had did

      [sic] with [Bell].” Tr. p. 54. Believing that Arnold might be armed, Williams

      attempted to flee the encounter by pulling away from Mills’s Buick. As he

      pulled away, Williams heard two gunshots. Immediately after Williams heard

      the gunshots, he noticed that something had shattered the back window of his

      vehicle and punctured his left rear tire. The bullet that shattered Williams’s

      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-110 | September 23, 2015   Page 3 of 10
      back window came to rest in “the second seat headrest right behind

      [Williams’s] head.” Tr. p. 57. Williams proceeded to a nearby restaurant and

      reported the incident to the Indianapolis Metropolitan Police Department.


[6]   Detective Stephen Fippen responded to Williams’s call. After conducting an

      initial conversation with Williams, Detective Fippen transported Williams to

      Arnold’s home which was located just north of the intersection of 36th Street

      and Kenwood Avenue. Once at Arnold’s home, Williams identified Arnold as

      the individual whom he had encountered both when initially approached by

      Bell and when he was awakened in his vehicle and shot at. Based on the facts

      known to Detective Fippen coupled with Williams’s identification of Arnold,

      Detective Fippen obtained a search warrant for Arnold’s home.


[7]   During a subsequent search of Arnold’s home, Detective Fippen discovered a

      holster that would fit a “large model frame Smith and Wesson [.]40 caliber

      handgun.” Tr. p. 202. In addition, investigating officers recovered two spent

      shell casings from the site of the shooting. These shell casings were in “pristine

      condition” when recovered, enabling the investigating officers to identify the

      casings from .40 caliber Smith and Wesson cartridges. Tr. p. 119. It was later

      determined that the only possible weapon that could have fired the shells was a

      Smith and Wesson firearm.


[8]   On August 5, 2014, the State charged Arnold with Count I – unlawful

      possession of a firearm by a serious violent felon, a Level 4 felony; Count II –

      attempted battery by means of a deadly weapon, a Level 5 felony; Count III –


      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-110 | September 23, 2015   Page 4 of 10
      criminal recklessness, a Level 5 felony; and Count IV – possession of

      paraphernalia, a Class A misdemeanor. The trial court conducted a two-day

      jury trial on December 9-10, 2014. Following the conclusion of trial, the jury

      found Arnold guilty as charged. At sentencing, the trial court merged Counts II

      and III and sentenced Arnold to an aggregate twelve-year sentence. This

      appeal follows.



                                 Discussion and Decision
[9]   Arnold contends that the evidence is insufficient to sustain his convictions for

      unlawful possession of a firearm by a serious violent felon and attempted

      battery by means of a deadly weapon.1

              When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. It is
              the fact-finder’s role, not that of appellate courts, to assess
              witness credibility and weigh the evidence to determine whether
              it is sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The




      1
       Arnold does not challenge the sufficiency of the evidence to sustain his conviction for Class A
      misdemeanor possession of paraphernalia.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-110 | September 23, 2015   Page 5 of 10
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses, Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002),

       as the jury, acting as the trier-of-fact, is “‘free to believe whomever they wish.’”

       Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008) (quoting McClendon v.

       State, 671 N.E.2d 486, 488 (Ind. Ct. App. 1996)).


[10]   “[A] conviction may be based purely on circumstantial evidence.” Hayes v.

       State, 876 N.E.2d 373, 375 (Ind. Ct. App. 2007) (citing Moore v. State, 652

       N.E.2d 53, 55 (Ind. 1995)), trans. denied. “‘On appeal, the circumstantial

       evidence need not overcome every reasonable hypothesis of innocence.’” Id.

       (quoting Moore, 652 N.E.2d at 55). “It is enough if an inference reasonably

       tending to support the conviction can be drawn from the circumstantial

       evidence.” Id. (citing Moore, 652 N.E.2d at 55). Thus, where circumstantial

       evidence is used to establish guilt, “‘the question for the reviewing court is

       whether reasonable minds could reach the inferences drawn by the jury; if so,

       there is sufficient evidence.’” Klaff, 884 N.E.2d at 274-75 (quoting Maxwell v.

       State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000)).



       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-110 | September 23, 2015   Page 6 of 10
[11]   Furthermore, “[e]ven though one’s mere presence at the crime scene with the

       opportunity to commit a crime is not a sufficient basis on which to support a

       conviction, one’s presence at the scene in connection with other circumstances

       tending to show one’s participation may raise a reasonable inference of guilt.”

       Id. at 275 (citing Brink v. State, 837 N.E.2d 192, 194 (Ind. Ct. App. 2005), trans.

       denied). For instance, a defendant’s course of conduct before, during, and after

       the offense, may raise a reasonable inference of guilt. Willis v. State, 27 N.E.3d

       1065, 1068 (Ind. 2015) (citing Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000)).


             I. Unlawful Possession of a Handgun by a Serious
                              Violent Felon
[12]   Indiana Code section 35-47-4-5(c) provides that “[a] serious violent felon who

       knowingly or intentionally possesses a firearm commits unlawful possession of

       a firearm by a serious violent felon, a Level 4 felony.” Arnold admitted below

       that he qualified as a serious violent felon. As such, he does not challenge the

       sufficiency of the evidence proving that he was a serious violent felon on

       appeal. Arnold merely challenges the sufficiency of the evidence to prove that

       he knowingly or intentionally possessed a firearm.


[13]   In the instant matter, the evidence most favorable to the jury’s finding of guilty

       demonstrates that Arnold exhibited threatening behavior toward Williams

       during two separate encounters. During Williams’s first encounter with

       Arnold, Williams did not actually see a weapon, but saw Arnold “thr[o]w his

       hand behind his back like [he was] going to draw a weapon.” Tr. p. 51. During

       the second encounter, Williams, who had fallen asleep in his vehicle, was
       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-110 | September 23, 2015   Page 7 of 10
       awakened by Arnold yelling at him. Arnold exhibited a “threatening”

       demeanor as he questioned Williams about Bell. Tr. p. 54. Arnold was acting

       “real aggressive, wanting to know what [Williams] had did [sic] with [Bell].”

       Tr. p. 54. Because he believed from their earlier encounter that Arnold might

       be armed, Williams attempted to flee the encounter by pulling away from

       Arnold. As he pulled away, Williams heard two gunshots. Immediately after

       Williams heard the gunshots, he noticed that something had shattered the back

       window of his vehicle and punctured his left rear tire. The bullet that shattered

       Williams’s back window came to rest in “the second seat headrest right behind

       [Williams’s] head.” Tr. p. 57.


[14]   Further, while Mills testified at trial that he did not see Arnold with a gun on

       the day in question, the State attempted to impeach Mills by casting Mills’s

       credibility into doubt. In impeaching Mills, the State questioned him about his

       prior statement to Detective Fippen that he watched as Arnold “came out of his

       back pocket with a gun and started shooting.” Tr. p. 73. The jury, acting as the

       trier of fact, was in the best position to judge Mills’s credibility and to decide

       whether to believe Mills’s trial testimony. See Stewart, 768 N.E.2d 435; Klaff,

       884 N.E.2d at 274.


[15]   We conclude that the evidence is sufficient to allow the jury to reasonably infer

       Arnold’s guilt. Arnold’s claim to the contrary is effectively an invitation to

       reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-110 | September 23, 2015   Page 8 of 10
          II. Attempted Battery by Means of a Deadly Weapon
[16]   Indiana Code sections 35-42-2-1(b)(1) provides that a person who knowingly or

       intentionally touches another person in a rude, insolent, or angry manner

       commits battery, a Class B misdemeanor. However, the offense is a Level 5

       felony if it is committed with a deadly weapon. Ind. Code § 35-42-2-1(f)(2).

       Furthermore, “[a] person attempts to commit a crime when, acting with the

       culpability required for commission of the crime, the person engages in conduct

       that constitutes a substantial step toward commission of the crime.” Ind. Code

       § 35-41-5-1(a). “An attempt to commit a crime is a felony or misdemeanor of

       the same level or class as the crime attempted.” Ind. Code § 35-41-5-1(a).


[17]   As is discussed above, the evidence most favorable to the jury’s finding of guilt

       demonstrates that Williams was awakened by Arnold yelling at him. Arnold

       exhibited a “threatening” demeanor as he questioned Williams about Bell. Tr.

       p. 54. Arnold was acting “real aggressive, wanting to know what [Williams]

       had did [sic] with [Bell].” Tr. p. 54. When Williams attempted to flee the

       encounter, Williams heard two gunshots. Immediately after Williams heard

       the gunshots, he noticed that something had shattered the back window of his

       vehicle and punctured his left rear tire. The bullet that shattered Williams’s

       back window came to rest in “the second seat headrest right behind

       [Williams’s] head.” Tr. p. 57. The evidence demonstrates that the trajectory of

       the cartridges recovered form Williams’s vehicle was consistent with the gun

       being fired by Arnold and the record is devoid of any indication that there was



       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-110 | September 23, 2015   Page 9 of 10
       some other individual present at the scene that could have shot the gun in the

       direction of Williams’s vehicle.


[18]   We conclude that the evidence is sufficient to allow the jury to reasonably infer

       Arnold’s guilt. Arnold’s claim to the contrary is effectively an invitation to

       reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.


[19]   The judgment of the trial court is affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-110 | September 23, 2015   Page 10 of 10
