The opinion
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of Feb 04 2014, 10:19 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STANLEY L. CAMPBELL GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JERRY COOPER, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1309-CR-366
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Judge
Cause No. 02D06-1304-FB-69
February 4, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Jerry Cooper appeals his conviction for unlawful possession of a firearm by a
serious violent felon, a Class B felony, following a jury trial. Cooper raises a single issue
for our review, namely, whether the State presented sufficient evidence to support his
conviction. We affirm Cooper’s conviction and remand with instructions that the trial court
correct a sentencing error.
FACTS AND PROCEDURAL HISTORY
Sometime between 3:00 and 4:00 a.m. on March 29, 2013, Fort Wayne Police
Department Officer Nicholas Lichtsinn initiated a traffic stop of a vehicle driven by
Shannon Cooper, with Cooper in the front passenger seat and Samantha Buchanan in the
backseat behind Cooper. Upon being stopped by the officer, Cooper twice asked Buchanan
to take a handgun from his possession, and she refused. Cooper then threw the gun into
Buchanan’s lap, and she threw the gun under her car seat.
Officer Jason Fuhrman assisted Officer Lichtsinn in the traffic stop and approached
the vehicle’s passenger side. He noticed that the passenger’s side window was down, and
he observed a folded dollar bill under the open window. Officer Fuhrman suspected the
dollar bill contained narcotics. He picked it up, unfolded it, and observed a white powdery
substance. Officer Lichtsinn then observed Cooper chewing on something and a green
leafy residue on his shirt. The officers ordered the parties out of the vehicle and ordered
Cooper to spit out what was in his mouth, which he did. Officer Douglas Weaver had since
arrived at the scene and, with everyone out of the vehicle, he observed the handgun “laying
[sic] underneath the seat” in the back. Transcript at 79.
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On April 4, the State charged Cooper with unlawful possession of a firearm by a
serious violent felon, a Class B felony, and with being an habitual offender.1 On May 23,
Buchanan failed to appear at a deposition for which she had been subpoenaed, and the State
filed a motion to show cause to have Buchanan explain her failure to appear. Buchanan
then appeared at a subsequent deposition, and she testified that she could not recall the
events of March 29. The State filed a motion to hold Buchanan in contempt of court, and
the court appointed counsel for Buchanan. She then failed to appear at the ensuing hearing
and the court issued a warrant for her arrest. Thereafter, she appeared before the court and,
on the advice of counsel, she pleaded the Fifth Amendment. The State then offered her
immunity for her testimony, and she stated that the handgun found in the vehicle on March
29 belonged to Cooper.
At Cooper’s ensuing jury trial, the State called Buchanan to testify. Buchanan
testified that, when Officer Lichtsinn initiated the traffic stop, Cooper “panicked and the
gun was tossed in my lap.” Transcript at 85. She further testified that she then “tossed it
underneath the seat.” Id. at 86. And when asked about her original deposition testimony,
Buchanan explained:
Q Now, when I [the prosecutor] took your deposition a month or so ago,
do you recall telling us then you did not remember what happened that
night?
A Yes.
Q Do you remember a little bit more today?
1
The State also charged Cooper with possession of marijuana, as a Class A misdemeanor, but the State
eventually dismissed that allegation.
3
A Yeah.
Q And why is that?
A Because my attorney has been talking to me about it.
Q Okay. And do you remember, is there a reason why you couldn’t
remember when we took your deposition?
A No.
Q Okay. So you honestly didn’t remember?
A I honestly didn’t remember.
Id.
On cross-examination, Cooper’s attorney attacked Buchanan’s credibility. In
particular, on cross-examination Buchanan admitted that she thought that she could “could
be in trouble” for possession of the firearm, id. at 91; that Shannon was her friend and she
thought that Cooper was “creepy,” id. at 92; and that, “when you had to explain why the
gun was under your seat, you pointed the finger at [Cooper],” id. Regarding Buchanan’s
prior deposition, Cooper’s attorney engaged her in the following colloquy:
Q You went to the Prosecutors office and you were asked
questions . . . correct?
A Yes.
Q You didn’t remember anything did you.
A No.
Q Every time he asked you what happened, you didn’t remember, did
you.
A No.
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Q I mean, I can ask, I can go over them, but you didn’t remember a thing,
correct?
A Yes.
Q Was that a lie?
A No.
Q You’re telling us you didn’t remember but you wouldn’t tell them?
A I couldn’t remember until I went over the paperwork.
***
Q [Y]ou told us today that Jerry Cooper tossed the gun to you, correct?
A Yes.
Q And [the prosecutor] asked you the same question in the deposition.
Remember that?
A Yeah.
Q And you told him you didn’t remember. Right?
A Yes.
Q Which is the truth? Today or when you said you didn’t remember?
A Today.
***
Q The State offered you immunity that you wouldn’t be punished for
testifying, correct?
A Yes.
Q But you hadn’t done anything wrong, right?
A Yes.
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Q So would it be a fair statement that whatever you say today, as long
as it’s the same as what the State wants to hear, you’re not going to
get punished for it?
A Yes.
Q So it doesn’t make any difference whether it’s the truth or not the
truth. As long as you give them what they want, you’re not going to
get in trouble, are you.
A Yes.
Q That’s true, isn’t it?
A Um-hum (indicating affirmative response).
Q That’s a pretty good deal, isn’t it.
A Yeah.
Q You can say anything and you get a pass. Right?
A Yeah.
Q Is Shannon Cooper still your friend?
A Yeah.
***
Q You care about her as a person, as a family friend.
A Oh yes.
Q Jerry Cooper, he’s still a stranger to you?
A Yeah.
Q Still a creep?
A Yes.
Q You don’t want Shannon getting in any trouble, do you?
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A I don’t have anything to do with her, we [are] two different people.
Q Okay. And you don’t want to get in trouble, do you?
A No.
Id. at 95-96, 100-02. And on redirect, Buchanan testified as follows:
Q On March 29th when the police stopped you, did Shannon Cooper toss
the gun in your lap?
A I don’t remember. I don’t know.
Q You don’t know. Who tossed the gun in your lap?
A Jerry Cooper.
Q Okay. You didn’t see Shannon with the gun.
A No.
***
Q Are you afraid?
A A little bit.
Q Why?
A Because I’ve never been . . .
Q Has anybody threatened you?
A Yes.
Q About testifying?
A Yes.
Id. at 103-05.
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The jury found Cooper guilty as charged. The trial court then entered its judgment
of conviction and sentence. This appeal ensued.
DISCUSSION AND DECISION
Cooper asserts that the State failed to present sufficient evidence to support his
conviction for unlawful possession of a firearm by a serious violent felon. When reviewing
a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the
credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look
only to the probative evidence supporting the verdict and the reasonable inferences that
may be drawn from that evidence to determine whether a reasonable trier of fact could
conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial
evidence of probative value to support the conviction, it will not be set aside. Id.
Cooper’s only argument on appeal is that Buchanan’s testimony is incredibly
dubious. As our Supreme Court has explained:
Appellate courts may . . . apply the “incredible dubiosity” rule to impinge
upon a fact finder’s function to assess the credibility of a witness.
Application of this rule is very narrow and permitted only “where a sole
witness presents inherently contradictory testimony that is equivocal or
coerced and there is a lack of circumstantial evidence of guilt.”
Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011) (quoting Whedon v. State, 765 N.E.2d
1276, 1277 (Ind. 2002)). “Application of this rule is rare and the standard to be applied is
whether the testimony is so incredibly dubious or inherently improbable that no reasonable
person could believe it.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). Cooper’s
argument fails to satisfy the requirements for the incredible dubiosity rule for a number of
reasons.
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First, Cooper acknowledges that the inconsistencies with Buchanan’s statements are
between her pre-trial statements and her statements during trial and that her statements
during trial are not inherently contradictory. See Appellant’s Br. at 7. Our Supreme Court
has repeatedly refused to apply the incredible dubiosity rule between pre-trial statements
and statements made during trial when the statements made during trial are consistent. See,
e.g., Turner, 953 N.E.2d at 1059; Corbett v. State, 764 N.E.2d 622, 626 (Ind. 2002); Murray
v. State, 761 N.E.2d 406, 409 (Ind. 2002). We will not deviate from that precedent here.
Insofar as Buchanan’s pre-trial statements were inconsistent with her statements at trial,
her pre-trial statements opened the door for her impeachment, and Cooper’s trial counsel
thoroughly utilized that opportunity.
Second, while Buchanan occasionally waffled in her testimony, her testimony as a
whole was not so “inherently improbable that no reasonable person could believe it.” See
Love, 761 N.E.2d at 810. She clearly and repeatedly stated that Cooper threw the gun in
her lap after he panicked when Officer Lichtsinn initiated the traffic stop. She also
explained the purported inconsistency with her deposition testimony by stating that she
genuinely could not remember the incidents at the time she gave that testimony. Cooper’s
argument notwithstanding, Buchanan’s trial testimony is not inherently improbable.
Finally, while Buchanan’s testimony was critical to Cooper’s conviction, the State
did present other evidence. In particular, Officer Weaver testified that he found the firearm
under the back seat where Buchanan had been sitting. Officer Weaver’s testimony
corroborated Buchanan’s testimony. Moreover, because Buchanan had been granted
immunity for her testimony there is no basis to support Cooper’s assertion that her
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testimony must have been coerced. See Turner, 953 N.E.2d at 1059. We affirm Cooper’s
conviction.
Although we affirm Cooper’s conviction, in a footnote the State asserts that we must
remand to the trial court to correct a sentencing error. In particular, the State notes that, in
imposing Cooper’s sentence for being an habitual offender, the trial court described the
habitual offender portion of Cooper’s sentence as both an “enhance[ment]” and “a
consecutive term.” Sentencing Transcript at 10. The chronological case summary and the
trial court’s written sentencing order repeat that the habitual offender portion of Cooper’s
sentence is to be consecutive to his sentence for unlawful possession of a firearm by a
serious violent felon. Appellant’s App. at 8, 29. “It is well settled that a habitual offender
finding does not constitute a separate crime, nor does it result in a separate sentence.
Rather, a habitual offender finding results in a sentence enhancement imposed upon the
conviction of a subsequent felony.” Harris v. State, 964 N.E.2d 920, 927 (Ind. Ct. App.
2012) (citations omitted), trans. denied. Accordingly, we remand for correction of the
sentencing order so that it reflects that the habitual offender portion of Cooper’s sentence
is an enhancement of the underlying felony conviction.
Affirmed and remanded with instructions.
BAKER, J., and CRONE, J., concur.
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