MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                       May 06 2019, 10:24 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
Kurt A. Young                                            Curtis T. Hill, Jr.
Nashville, Indiana                                       Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Devonne Mosley,                                          May 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2871
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Helen Marchal,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G15-1803-F6-9400



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019                     Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Devonne Mosley (Mosley), appeals her conviction for

      pointing a firearm, a Class A misdemeanor, Ind. Code § 35-47-4-3(b).


[2]   We dismiss.


                                                   ISSUE
[3]   Mosley presents one issue on appeal, which we restate as: Whether the State

      proved beyond a reasonable doubt that she committed the offense of pointing a

      firearm.


                      FACTS AND PROCEDURAL HISTORY
[4]   Mosley and Walter Parker (Parker) dated for seven years and had a child

      together. Their relationship ended sometime in the fall of 2017. On March 12,

      2018, Parker and his friend K.B. went shopping at the City Gear on Pendleton

      Pike in Indianapolis. Someone associated with Mosley alerted Mosley to their

      presence at the store. When Parker and K.B. exited City Gear to return to

      Parker’s car in the parking lot, Mosley drove up quickly in her SUV and parked

      next to Parker’s car. In the backseat of Mosley’s SUV were Mosley’s child with

      Parker as well as two other children. Mosley exited her SUV and began

      shouting at K.B. Parker told K.B. to get in his car and lock the doors, which

      she did.


[5]   Mosley tried all of the doors of Parker’s car but found them to be locked. She

      then returned to her SUV and retrieved a nine-millimeter handgun. Mosley

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019   Page 2 of 6
      banged on the window of Parker’s car and ordered K.B. to exit. Mosley then

      went to the front of Parker’s car and pointed the handgun at K.B. through the

      windshield, again ordering her to exit the car. Mosley pointed the handgun at

      K.B. intermittently for four-to-five minutes. Eventually, a woman told Mosley

      to return to her SUV. Parker and K.B. fled in his car, and Mosley left the scene

      in her SUV. A citizen who witnessed these events called 911 and provided the

      police with Mosley’s license plate number. Parker went home and reported to

      police that Mosley had pointed a firearm at him and at K.B.


[6]   On March 19, 2018, the State filed an Information, charging Mosley with two

      Counts of pointing a firearm as Level 6 felonies. On October 3, 2018, the trial

      court conducted Mosley’s jury trial. After hearing the testimony of Parker and

      K.B., the jury found Mosley not guilty of pointing a firearm at Parker but guilty

      of pointing a firearm at K.B. On November 1, 2018, the trial court conducted

      Mosley’s sentencing hearing. Evidence was presented that, as a United States

      Postal Service worker, Mosley would lose her employment if convicted of a

      felony. The trial court found that, in light of Mosley’s lack of criminal record, it

      would enter judgment on the jury’s guilty verdict as a Class A misdemeanor.

      The trial court sentenced Mosley to 365 days, all suspended to time-served and

      to probation.


[7]   Mosley now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019   Page 3 of 6
                              DISCUSSION AND DECISION
[8]   Mosley requests that we review the sufficiency of the evidence supporting her

      conviction. The pointing a firearm statute provides that a “person who

      knowingly or intentionally points a firearm at another person commits a Level

      6 felony. However, the offense is a Class A misdemeanor if the firearm was not

      loaded.” I.C. § 35-47-4-3(b). The jury found Mosley guilty of Level 6 felony

      pointing a firearm, but the trial court entered judgment of conviction as a Class

      A misdemeanor. Mosley argues that the fact of whether the gun she pointed at

      K.B. was loaded was at issue and the State did not prove beyond a reasonable

      doubt that the gun was loaded. Mosley contends, therefore, that we must

      reverse and remand her case to the trial court “with instruction that it enter a

      judgment of conviction of the class A misdemeanor.” (Appellant’s Br. p. 10).

      The State counters that we should not address Mosley’s claim of insufficiency

      of the evidence because it is moot, the trial court having already entered

      judgment as a Class A misdemeanor. In her Reply Brief, Mosley contends that

      her claim is not moot because her conviction may be viewed as a felony by a

      federal court in any future federal prosecutions for being a felon in possession of

      a firearm. Thus, we address the threshold issue of whether Mosley’s case is

      moot.


[9]   Generally, a case is deemed moot when no effective relief can be granted to the

      parties before the court. Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). A

      moot case is usually dismissed. Id. Our supreme court has recognized that it

      may issue advisory opinions in some situations. See Mosley v. State, 908 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019   Page 4 of 6
       599, 603 (Ind. 2009) (noting that our state constitution does not limit its

       authority to “cases and controversies” as our federal Constitution limits the

       federal courts). Exceptions to the general rule for mootness are made for

       questions of great public interest which raise important policy concerns and are

       likely to recur. Id.


[10]   Here, the trial court already granted the relief sought by Mosley when it

       entered judgment of conviction as a Class A misdemeanor. Thus, there is no

       further relief which could be granted. Her claim is moot and ordinarily would

       be dismissed by this court. Matter of Lawrance, 579 N.E.2d at 37. Mosley does

       not attempt to argue that her claim of insufficiency of the evidence supporting

       her conviction presents a matter of great public interest, important policy

       concerns, or a matter which is likely to recur. In her effort to circumvent the

       mootness of her case, Mosley does not provide any directly-applicable legal

       authority for her proposition that a federal court may view her conviction as a

       felony for purposes of any future prosecutions for the federal crime of being a

       felon in possession of a firearm under 18 U.S.C. § 922(g).


[11]   Indeed, for purposes of the federal felon in possession of a firearm statute, what

       constitutes a prior felony conviction “shall be determined in accordance with

       the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. §

       921(a)(20); see also U.S. v. Thompson, 117 F.3d 1033, 1034 (7th Cir. 1997), cert.

       denied (noting that state law determines whether there is a predicate state-law

       conviction). At sentencing, an Indiana trial court may enter judgment of

       conviction on a felony as a misdemeanor. I.C. § 35-50-2-7(c). When a trial

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019   Page 5 of 6
       court does so, the misdemeanor constitutes a new and different judgment which

       effectively vacates the prior judgment. State v. Reinhart, 112 N.E.3d 705, 715

       (Ind. 2018). Thus, under Indiana state law, Mosley’s conviction for Level 6

       felony pointing a firearm was extinguished when the trial court entered

       judgment as a Class A misdemeanor. Mosley’s argument based on federal law

       is not well-taken. Because the trial court already granted the relief sought by

       Mosley when it entered judgment as a class A misdemeanor, her case is moot.


                                             CONCLUSION
[12]   Based on the foregoing, we conclude that Mosley’s claim is moot and dismiss

       this appeal.


[13]   Dismissed.


[14]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2871 | May 6, 2019   Page 6 of 6
