MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            May 16 2018, 10:06 am

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
James A. Edgar                                          Curtis T. Hill, Jr.
J. Edgar Law Offices, Prof. Corp.                       Attorney General of Indiana
Indianapolis, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Theodore Briscoe,                                       May 16, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1709-CR-2327
        v.                                              Appeal from the Marion Superior
                                                        Court
                                                        The Honorable Alicia Gooden,
State of Indiana,                                       Judge
                                                        The Honorable Richard
Appellee-Plaintiff
                                                        Hagenmaier, Commissioner
                                                        Trial Court Cause No.
                                                        49G21-1602-F5-4552



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018           Page 1 of 11
[1]   Theodore Briscoe appeals his convictions of Level 6 felony resisting law

      enforcement by operation of a vehicle 1 and Level 5 felony carrying a handgun

      without a license after having been convicted of a felony within the previous

      fifteen years. 2 He argues the State did not present sufficient evidence to prove

      he committed these crimes. 3 We affirm.



                                Facts and Procedural History
[2]   In the evening of February 1, 2016, Officer Matthew Minnis observed a vehicle

      turn without signaling. He checked the license plate of the vehicle and

      discovered it was stolen. After calling for backup, Officer Minnis activated his

      emergency lights and air horn. Instead of stopping, the vehicle accelerated and

      a high-speed chase ensued through residential areas of northwest Indianapolis.


[3]   The chase ended when the vehicle struck a house. Officer Minnis and Officer

      Craig Solomon helped pull Briscoe out of the car. The officers placed Briscoe

      on his stomach on the ground. Officer Minnis testified there was nothing on

      the ground when they placed Briscoe on the ground. Officer Minnis testified

      Briscoe initially refused to put his hands behind his back, kept his hand

      “directly under the center of his body towards his belt line[,]” (Tr. Vol. II at 18),




      1
          Ind. Code § 35-44.1-3-1(b)(1) (2014).
      2
          Ind. Code § 35-47-2-1(e)(2)(B) (2014).
      3
        Briscoe was also convicted of Class A misdemeanor resisting law enforcement, but he does not challenge
      that conviction.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018            Page 2 of 11
      and “approximately in 10 or 15 seconds of pulling out his hands we were able

      to get his hands behind his back, handcuffed him and at that time we rolled him

      over to search his person and that’s where we located the small black

      handgun[.]” (Id. at 17.)


[4]   On February 4, 2016, the State charged Briscoe with Class A misdemeanor

      carrying a handgun without a license, 4 Class A misdemeanor resisting law

      enforcement, 5 and Level 6 felony resisting law enforcement by using a vehicle.

      The handgun charge was later enhanced to a Level 5 felony by virtue of

      Briscoe’s 2009 felony conviction. Briscoe’s jury trial commenced August 17,

      2017, and the jury returned guilty verdicts as to all charges. On September 19,

      2017, the trial court entered convictions accordingly and sentenced Briscoe to

      six years incarcerated for the Level 5 felony handgun conviction to run

      consecutive to two years incarcerated for Level 6 felony resisting law

      enforcement. Those sentences were to run concurrent to one year incarcerated

      for Class A misdemeanor resisting law enforcement, for an aggregate sentence

      of eight years incarcerated.



                                     Discussion and Decision




      4
          Ind. Code § 35-47-2-1(e) (2014).
      5
          Ind. Code § 35-44.1-3-1(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018   Page 3 of 11
[5]   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. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id.


[6]   We do not assess the credibility of the witnesses or reweigh the evidence in

      determining whether the evidence is sufficient. Drane v. State, 867 N.E.2d 144,

      146 (Ind. 2007). Reversal is appropriate only when no reasonable fact-finder

      could find the elements of the crime proven beyond a reasonable doubt. Id.

      Thus, the evidence is not required to overcome every reasonable hypothesis of

      innocence and is sufficient if an inference reasonably may be drawn from it to

      support the verdict. Id. at 147.


                     Level 6 Felony Resisting Law Enforcement
[7]   To prove Briscoe committed Level 6 felony resisting law enforcement by

      operation of a vehicle, the State had to present evidence Briscoe (1) forcibly

      resisted, obstructed, or interfered with Officer Minnis while Officer Minnis was

      lawfully engaged in his duties as a law enforcement officer; (2) used a vehicle to

      commit the offense; and (3) operated the vehicle in such a way to create a

      substantial risk of bodily injury to another person. Ind. Code § 35-44.1-3-

      1(b)(1) (2014). Briscoe argues the State did not prove: (1) Briscoe forcibly

      resisted Officer Minnis, or (2) Briscoe was the driver of the vehicle.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018   Page 4 of 11
                                                   “Forcibly”

[8]    Briscoe relies primarily on our Indiana Supreme Court’s decision in Spangler v.

       State, 607 N.E.2d 720 (Ind. 1993). In that case, an officer attempted to perfect

       service on Spangler, and Spangler walked away from the officer. The officer

       followed Spangler, who continued to walk away. Based on that encounter, a

       jury found Spangler guilty of Class A misdemeanor resisting law enforcement.

       Id. at 722. Our Indiana Supreme Court was called upon to interpret the word

       “forcibly” as used in the statute governing resisting law enforcement.


[9]    Our Indiana Supreme Court held, “one ‘forcibly resists’ law enforcement when

       strong, powerful, violent means are used to evade a law enforcement official’s

       rightful exercise of his or her duties.” Id. at 723. Based thereon, the Court

       concluded:


               There was no strength, power, or violence directed towards the
               law enforcement official. There was no movement or threatening
               gesture made in the direction of the official. Spangler repeatedly
               and firmly refused to accept service of process, then walked
               away. Looking at the evidence favorable to the verdict, there is
               no evidence of any “forcible” actions that the charged crime
               prohibits.


       Id. at 724-5. Briscoe contends while the State presented evidence he fled in a

       vehicle, it did not present evidence he took any action “directed toward” Officer

       Minnis.


[10]   However, our Indiana Supreme Court later held:



       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018   Page 5 of 11
               [N]ot every passive - or even active - response to a police officer
               constitutes the offense of resisting law enforcement, even when
               that response compels the officer to use force. Instead, a person
               “forcibly” resists, obstructs, or interferes with a police officer
               when he or she uses strong, powerful, violent means to impede
               an officer in the lawful execution of his or her duties. But this
               should not be understood as requiring an overwhelming or
               extreme level of force. The element may be satisfied with even a
               modest exertion of strength, power, or violence. Moreover, the
               statute does not require commission of a battery on the officer or
               actual physical contact - whether initiated by the officer or the
               defendant. It also contemplates punishment for the active threat
               of such strength, power, or violence when that threat impedes the
               officer’s ability to lawfully execute his or her duties.


       Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013).


[11]   Here, Briscoe used an SUV to flee from Officer Minnis at a high rate of speed.

       He drove in a residential area, leaving the street and going into “grassy areas[,]”

       (Tr. Vol. II at 9), where Officer Minnis could not follow him. The pursuit

       ended only when Briscoe struck a house. Briscoe’s actions far exceeded those

       he contends are comparable in Spangler. Briscoe used a large vehicle at a high

       rate of speed to resist, obstruct, and interfere with Officer Minnis’ exercise of his

       duties. See Mason v. State, 944 N.E.2d 68, 71 (Ind. Ct. App. 2011) (conviction of

       resisting law enforcement using a vehicle affirmed based on evidence police

       asked Mason to stop, but Mason drove away from officers at a high rate of

       speed and crashed into multiple vehicles before being tased by officers), trans.

       denied. Briscoe’s argument to the contrary is an invitation for us to reweigh the




       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018   Page 6 of 11
       evidence, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court

       cannot reweigh evidence).


                                               Driver of Vehicle

[12]   Briscoe also argues the State did not present sufficient evidence he was the

       driver and sole occupant of the vehicle. Briscoe points to testimony he asserts

       proves “Briscoe’s position in the vehicle is not consistent with the claim that he

       was the driver.” (Br. of Appellant 14.) Officer Minnis testified Briscoe was

       “laying [sic] across the front seats, his hip area just about centered in the front

       seat area, his legs were in the passenger side -- his upper body was in the driver

       side area with [sic] his hands were slightly outside the window.” (Tr. Vol. II at

       15.)


[13]   Briscoe contends there was another person in the vehicle, but that person left

       the scene prior to Officer Minnis and Officer Solomon’s arrival at the location

       where the vehicle came to rest. Briscoe argues Officer Minnis did not see this

       person because the nature of the chase, in that Briscoe was able to cross grassy

       areas in an SUV and Officer Minnis was unable to do so in his patrol car,

       meant there were moments when Officer Minnis could not see the car.

       However, Officer Minnis testified he observed “a silhouette of a single occupant

       in the vehicle,” (id. at 5), when he first attempted to pull over Briscoe. When

       Officer Minnis arrived at the crash scene, he did not see footprints leading away

       or “clues or inclination of there being anybody else in the vehicle.” (Id. at 16.)




       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018   Page 7 of 11
[14]   Briscoe’s alternate version of the incident is an invitation for us to reweigh the

       evidence and judge the credibility of witnesses, which we cannot do. See Drane,

       867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the

       credibility of witnesses). We therefore conclude the State presented sufficient

       evidence Briscoe committed Level 6 felony resisting law enforcement using a

       vehicle. See Mason, 944 N.E.2d at 71 (conviction of resisting law enforcement

       using a vehicle affirmed based on evidence police asked Mason to stop, but

       Mason drove away from officers at a high rate of speed and crashed into

       multiple vehicles before being tased by officers).


          Level 5 Felony Possession of a Handgun without a License
[15]   To prove Briscoe committed Level 5 felony possession of a handgun without a

       license after having been convicted of a felony within the previous fifteen years,

       the State had to present evidence Briscoe (1) possessed a handgun; (2) without a

       license; (3) after having been convicted of a felony within the last fifteen years.

       Ind. Code § 35-47-2-1(e)(2)(B) (2014). Briscoe argues the State did not prove he

       knowingly exercised control over the handgun, in part because a fingerprint on

       the magazine of the weapon did not match Briscoe’s fingerprint.


[16]   Possession of an item may be either actual or constructive. Henderson v. State,

       715 N.E.2d 833, 835 (Ind. 1999). “Actual possession occurs when a person has

       direct physical control over the item.” Id. Constructive possession occurs when

       someone has “the intent and capability to maintain dominion and control over

       the item.” Id. The parties do not argue Briscoe had actual possession of the


       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018   Page 8 of 11
       handgun. Instead, Briscoe argues the State did not present sufficient evidence

       he constructively possessed the handgun at issue.


[17]   As we have explained:


               In order to prove constructive possession, the State must show
               that the defendant has both (1) the intent to maintain dominion
               and control and (2) the capability to maintain dominion and
               control over the contraband. To prove the intent element, the
               State must demonstrate the defendant’s knowledge of the
               presence of the contraband, which may be inferred from either
               the exclusive dominion and control over the premises containing
               the contraband or, if the control is non-exclusive, evidence of
               additional circumstances pointing to the defendant’s knowledge
               of the presence of the contraband. The capability requirement is
               met when the State shows that the defendant is able to reduce the
               contraband to the defendant’s personal possession. Proof of a
               possessory interest in the premises in which contraband is found
               is adequate to show the capability to maintain control and
               dominion over the items in question.


       Iddings v. State, 772 N.E.2d 1006, 1015 (Ind. Ct. App. 2002), trans. denied.

       Additional circumstances that support finding a defendant had the intent and

       capability to maintain dominion and control over contraband kept in non-

       exclusive premises include: “(1) incriminating statements by the defendant; (2)

       attempted flight or furtive gestures; (3) proximity of the firearm to the

       defendant; (4) location of the firearm within the defendant’s plain view; and (5)

       the mingling of a firearm with other items owned by the defendant.” Causey v.

       State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004).




       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018   Page 9 of 11
[18]   Here, Officer Minnis testified he and Officer Solomon looked around the

       vehicle prior to placing Briscoe on the ground after extracting him from the

       vehicle because “[w]e [did] not want to injure either the suspect ourselves and

       put them on the [sic] something that that [sic] could cause either one was [sic]

       harm.” (Tr. Vol. II at 16.) He stated there was nothing on the ground and

       nothing on the grass when he and Officer Solomon placed Briscoe on the

       ground. Officer Minnis did not see the handgun until after he rolled Briscoe

       onto his back once Briscoe was handcuffed. Additionally, the State presented

       evidence that after the officers extricated him from the vehicle, Briscoe “turned

       his hand toward the center of his body about the belt line and held them [sic]

       there forcibly for about 15 to 20 seconds . . . Officer Minnis and [Officer

       Solomon] had to apply a considerable amount of force to force his hands out

       from under his body[.]” (Id. at 70-1.)


[19]   Briscoe’s alternate version of the incident, in which the gun was present in the

       front yard of the home he happened to crash into at the end of a high speed

       chase prior to his arrest is an invitation for us to reweigh the evidence, which

       we cannot do. See Drane, 867 N.E.2d at 146 (appellate court cannot reweigh

       evidence or judge the credibility of witnesses). The State presented evidence the

       handgun was found under Briscoe when there was nothing on the ground prior

       to his occupancy of that space and evidence Briscoe refused to remove his

       hands from under his body and had to be forced to do so. We conclude the

       State presented sufficient evidence Briscoe constructively possessed the

       handgun. See Deshazier v. State, 877 N.E.2d 200, 208 (Ind. Ct. App. 2007)


       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018   Page 10 of 11
       (constructive possession of a handgun proven based on Deshazier’s furtive

       gestures, flight from officers, and sitting on the gun), trans. denied.



                                               Conclusion
[20]   The State presented sufficient evidence Briscoe committed Level 6 felony

       resisting law enforcement using a vehicle and Level 5 felony possession of a

       handgun without a license after having been convicted of a felony within the

       last fifteen years. Accordingly, we affirm.


[21]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018   Page 11 of 11
