a dangerous weapon “can also be an instrumentality which, although not designed to be a dangerous weapon, is used as a weapon and, when so employed, is dangerous.”
How later courts described this case
- a dangerous weapon “can also be an instrumentality which, although not designed to be a dangerous weapon, is used as a weapon and, when so employed, is dangerous.”
- “for video evidence, the same deference is given to the trial court as with other evidence, unless the video evidence at issue indisputably contradicts the trial court’s findings.”
- “The [S]tate was not required to show that Womack possessed the bag of marijuana at the time of Womack’s apprehension, or at the time the officers discovered the bag.”
- “The question of whether a weapon is ‘deadly’ is determined from the description of the weapon, the manner of its use, and the circumstances of the case.”
Written by the judges who cited it.
The opinion
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah K. Smith Curtis T. Hill, Jr.
Thorntown, Indiana Attorney General of Indiana FILED
Tiffany A. McCoy Sep 10 2020, 8:38 am
Deputy Attorney General CLERK
Indiana Supreme Court
Indianapolis, Indiana Court of Appeals
and Tax Court
IN THE
COURT OF APPEALS OF INDIANA
Robert L. McCoy, September 10, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-546
v. Appeal from the Boone Circuit
Court
State of Indiana, The Honorable Lori N. Schein,
Appellee-Plaintiff. Judge
Trial Court Cause No.
06C01-1802-F4-401
Riley, Judge.
Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 1 of 11
STATEMENT OF THE CASE
[1] Appellant-Defendant, Robert L. McCoy (McCoy), appeals his conviction for
unlawful possession of a firearm by a serious violent felon, a Level 4 felony,
Ind. Code § 35-47-4-5(c).
[2] We affirm.
ISSUE
[3] McCoy presents this court with two issues, which we consolidate and restate as:
Whether the State presented sufficient evidence beyond a reasonable doubt to
sustain his conviction for unlawful possession of a firearm by a serious violent
felon.
FACTS AND PROCEDURAL HISTORY
[4] On February 11, 2018, Lebanon Police officers responded to a call about a
suspicious individual at the Kroger grocery store in Lebanon, Indiana. At
approximately the same time, Kroger’s store manager, Bryan Brooks (Brooks),
was called to the front of the store by another employee to address a distressed
male who was being followed by other individuals. When the officers arrived,
Officer Aaron Carlson (Officer Carlson) noticed a black male, later identified as
McCoy, speaking on the phone at the north entrance of the store. After making
eye contact, McCoy briefly entered the store.
[5] When officers caught up with McCoy after he exited the store again, McCoy
provided them with his name and date of birth and asked if they wanted to
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search him. McCoy did not have any warrants, and he was not placed under
arrest or searched. McCoy explained that his vehicle had broken down on the
road next to a local Popeye’s restaurant and he was looking for help. Officer
Carlson became suspicious as he had passed that location on his way to Kroger
and had not noticed a broken-down car. Officer Tyreese Griffin (Officer
Griffin) walked with McCoy to the vehicle at Popeye’s, which was running and
had another individual in the driver seat. Officer Griffin briefly detained
McCoy and the other individual based on the officer’s suspicion of marijuana
being in the vehicle. Finding no marijuana, Officer Griffin released both
persons.
[6] At some point while the officers were accompanying McCoy, a Kroger
customer informed Brooks that there was a firearm in one of the black shopping
baskets near the north entrance of the store. After investigation, Brooks found a
black automatic handgun inside the basket—nothing else was in the basket.
Brooks secured the firearm and asked another employee to notify the officers
who were still on the premises. Brooks—without wearing gloves—carried the
firearm to the parking lot, where the officers properly secured and packaged the
firearm for evidence. The following day, Brooks provided the officers with
surveillance video from the area where the firearm was located.
[7] On February 20, 2018, the State filed an Information, charging McCoy with
unlawful possession of a firearm by a serious violent felon, a Level 4 felony;
and carrying a handgun without a license, a Level 5 felony. On January 29,
2020, following several continuances and withdrawals of counsel, the trial court
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conducted a bench trial where McCoy proceeded pro se. During the trial,
Officer Carlson testified that while watching the surveillance video of the area
where the firearm was located, he noticed McCoy walk up to the shopping
baskets, but was unable to distinguish what the object was in McCoy’s hand.
Officer Griffin informed the trial court that in the video he observed McCoy
remove an object that he “believed to be a firearm” and place it in the Kroger
shopping basket. (Transcript p. 85). During cross-examination of Detective
Bryan Spencer (Detective Spencer), Detective Spencer testified that “based on
the facts gathered during the examination,” he was confident that the object
McCoy “pulled from his waistband and placed in the basket was a firearm.”
(Tr. p. 117). Likewise, Brooks concurred that in “the video” he saw McCoy
place a firearm in the shopping basket. (Tr. p. 70). At the conclusion of the
trial, the State moved to dismiss the charge for carrying a handgun without a
license. On February 2, 2020, the trial court found McCoy guilty of unlawful
possession of a firearm by a serious violent felon. On February 26, 2020, the
trial court sentenced McCoy to ten years executed, with two years suspended.
[8] McCoy now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[9] McCoy contends that the State failed to present sufficient evidence beyond a
reasonable doubt to support his conviction for unlawful possession of a firearm
by a serious violent felon. Our standard of review with regards to sufficiency
claims is well-settled. In reviewing a sufficiency of the evidence claim, this
court does not reweigh the evidence or judge the credibility of the witnesses.
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Clemons v. State, 987 N.E.2d 92, 95 (Ind. Ct. App. 2013). We consider only the
evidence most favorable to the judgment and the reasonable inferences drawn
therefrom and will affirm if the evidence and those inferences constitute
substantial evidence of probative value to support the judgment. Id.
Circumstantial evidence alone is sufficient to support a conviction. Sallee v.
State, 51 N.E.3d 130, 133 (Ind. 2016). Circumstantial evidence need not
overcome every reasonable hypothesis of innocence. See Clemons, 987 N.E.2d
at 95. Reversal is appropriate only when reasonable persons would not be able
to form inferences as to each material element of the offense. Id.
[10] To convict McCoy of unlawful possession of a firearm by a serious violent
felon, the State was required to establish that McCoy had been convicted of a
serious violent felony in Indiana or in “any other jurisdiction in which the
elements of the crime for which the conviction was entered are substantially
similar to the elements of a serious violent felony” in Indiana, and that McCoy
knowingly or intentionally possessed a firearm. I.C. §§ 35-47-4-5(a)(1);-(c).
The statute enumerates several offenses that qualify as a serious violent felony,
including robbery, in I.C. §§ 35-47-4-5(b)(13); 35-42-5-1. On appeal, McCoy
challenges the State’s evidence as to both his possession of the firearm and
whether his out-of-state conviction had elements sufficiently similar to an
Indiana serious felony charge. We analyze each of his claims in turn.
I. Sufficiency of the Evidence
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[11] McCoy contends that the State failed to present sufficient evidence that he
possessed the firearm. A conviction for unlawful possession of a firearm “may
rest upon proof of actual or constructive possession.” Smith v. State, 113 N.E.3d
1266, 1269 (Ind. Ct. App. 2018). Actual possession is “the direct physical
control of the gun,” whereas constructive possession occurs when the defendant
“has (1) the capability to maintain dominion and control over the item, and (2)
the intent to maintain dominion and control over it.” Id. Although McCoy
argued that the State could not establish that he constructively possessed the
firearm, it should be noted that “it is well-settled that [a] conviction for
possessory offenses does not depend on the accused being caught red-handed in
the act by the police.” Id. Moreover, it is “not necessary that the evidence
overcome every reasonable hypothesis of innocence. The evidence is sufficient
if an inference may reasonably be drawn from it to support the” judgment.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007).
[12] A review of the evidence reflects that sufficient evidence exists to support that
McCoy had actual possession of the firearm which he abandoned in a shopping
basket after the officers arrived at Kroger. At trial, Officer Carlson testified that
after he made eye-contact with McCoy at Kroger, McCoy walked inside Kroger
and shortly thereafter came back outside. When the officers confronted McCoy
outside Kroger, he volunteered to be searched, an invitation which was
declined by the officers. However, the surveillance video confirms that after
McCoy walked inside Kroger, he placed a firearm in the black shopping basket.
Brooks testified that the firearm was the only item in the basket when he
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retrieved it to take it to the officers. Two other officers testified that the video
clearly depicted McCoy removing the firearm from his waistband and placing it
in the basket. McCoy’s arguments that there is no DNA or fingerprint evidence
linking him to the firearm and that “the video footage is the only evidence to
support or not support the allegation that McCoy possessed a firearm and the
witnesses . . . were divided in their observations” are improper requests for this
court to reweigh the evidence and judge the credibility of the witnesses.
(Appellant’s Br. p. 27); Smith v. State, 8 N.E.3d 668, 679 (Ind. 2014); see also
Love v. State, 73 N.E.3d 693, 700 (Ind. 2017) (“for video evidence, the same
deference is given to the trial court as with other evidence, unless the video
evidence at issue indisputably contradicts the trial court’s findings.”)
[13] Based on the evidence before us, we conclude that the State presented sufficient
evidence which permitted a reasonable inference that McCoy exercised direct
physical control over the firearm before he discarded it into the shopping basket
to establish his actual possession. See Womack v. State, 738 N.E.2d 320, 324
(Ind. Ct. App. 2000) (“The [S]tate was not required to show that Womack
possessed the bag of marijuana at the time of Womack’s apprehension, or at the
time the officers discovered the bag.”), trans. denied.
II. Out-of-State Conviction
[14] McCoy also contends that the underlying conviction for armed robbery
incurred in Michigan is not substantially similar to the serious violent felony of
robbery in Indiana and therefore cannot be relied upon to support his serious
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violent felon conviction. The determination of whether an out-of-state statute is
substantially similar to an Indiana statute is a question for the trial court, not
the jury, to decide. I.C. § 34-38-4-3. This court reviews the trial court’s legal
determination de novo. Hollingsworth v. State, 907 N.E.2d 1026, 1030 (Ind. Ct.
App. 2009).
[15] “The elements of two statutes are substantially similar if they have common
core characteristics that are largely, but not identically, alike in degree or
extent.” State v. Hancock, 65 N.E.3d 585, 587 (Ind. 2016). In evaluating these
common core characteristics, “elements may be considered substantially similar
with response to specific characteristics such as the underlying conduct sought
to be regulated.” Id. However, “an out-of-state statute is not substantially
similar to an Indiana statute where the out-of-state statute is broader than the
Indiana statute.” Id.
[16] When McCoy was convicted of armed robbery in Michigan in 2007, the
Michigan statute read as follows:
A person who engages in conduct proscribed under [Mich.
Comp. Laws § 750.530] and who in the course of engaging in
that conduct, possesses a dangerous weapon or an article used or
fashioned in a manner to lead any person present to reasonably
believe the article is a dangerous weapon, or who represents
orally or otherwise that he or she is in possession of a dangerous
weapon, is guilty of a felony punishable by imprisonment for life
or for any term of years.
Court of Appeals of Indiana | Opinion 20A-CR-546 | September 10, 2020 Page 8 of 11
Mich. Comp. Laws § 750.529. The conduct proscribed under section 750.530
states:
(1) A person who, in the course of committing a larceny of
money or other property that may be the subject of larceny,
uses force or violence against any person who is present, or
who assaults or puts the person in fear, is guilty of a felony
punishable by imprisonment for not more than 15 years.
[17] The relevant Indiana robbery statute reads as follows:
(a) Except as provided in subsection (b), a person who knowingly
or intentionally takes property from another person or from
the presence of another person:
(1) By using or threatening the use of force on any person; or
(2) By putting any person in fear;
commits robbery, a Level 5 felony. However, the offense is a
Level 3 felony if it is committed while armed with a deadly
weapon or results in bodily injury to any person other than a
defendant, and a Level 2 felony if it results in serious bodily
injury to any person other than a defendant.
I.C. § 35-42-5-1.
[18] McCoy focuses the challenge to his conviction on the statutory definition of a
weapon. However, to define McCoy as a serious violent felon in Indiana, it is
sufficient that he committed robbery—without the requirement of a weapon to
be used. Furthermore, a robbery conviction in Michigan includes unarmed
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robbery as a necessarily lesser-included offense of armed robbery. See People v.
Reese, 619 N.W.2d 708, 710 (Mich. Ct. App. 2000). Therefore, the more
appropriate inquiry is to address the broader issue as to whether the Michigan
and Indiana robbery statutes are substantially similar.
[19] Comparing both statutes, we note that both criminalize the act of intentionally
taking property from another person or the presence of another person by force
or fear. Under the Michigan statute, robbery is a specific intent crime which
requires the defendant to act intentionally, whereas the Indiana statute requires
the defendant to act intentionally or knowingly. See People v. Harverson, 804
N.W.2d 757, 761 (Mich. Ct. App. 2010). Both statutes require the taking from
another person or from the presence of another person. Michigan’s robbery
statute requires a defendant to commit a larceny or a felonious taking of the
property of another. Id. Indiana’s statute is nearly identical as it mandates a
defendant to “take[] property from another person or from the presence of
another person.” I.C. § 35-42-5-1(a). Finally, both statutes require the element
of force or fear to be instilled in the victim by the defendant. Michigan’s statute
requires the State to establish that the defendant, in the course of committing
larceny, “uses force or violence against any person who is present, or who
assaults or puts the person in fear.” Mich. Comp. Laws § 750.530. Similarly,
Indiana mandates the State to prove that the property is taken “by using or
threatening the use of force on any person; or by putting any person in fear.”
I.C. § 35-42-5-1(a). As the serious violent felon statute requires that the
elements of the underlying crime be substantially similar, but not perfectly
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congruent, we find the Michigan statute and Indiana statute satisfy this
requirement with respect to robbery in the two jurisdictions.
[20] Even if we address McCoy’s argument and analyze the definition of weapon,
his claim—that the two statues are not substantially similar—is without merit.
With respect to the definition of a weapon, both statutes focus less on the
original purpose of an object used as a weapon, but more on the manner in
which the defendant actually used the object. Compare I.C. § 35-31.5-2-86 and
Gleason v. State, 965 N.E.2d 702, 708 (Ind. Ct. App. 2012) (“The question of
whether a weapon is ‘deadly’ is determined from the description of the weapon,
the manner of its use, and the circumstances of the case.”), with People v. Bosca,
871 N.W.2d 307, 325 (Mich. Ct. App. 2015) (a dangerous weapon “can also be
an instrumentality which, although not designed to be a dangerous weapon, is
used as a weapon and, when so employed, is dangerous.”) As such, the
elements of the two statutes have core characteristics which are substantially
similar and are alike in degree and extent. Accordingly, we affirm McCoy’s
conviction for unlawful possession of a handgun by a serious violent felon.
CONCLUSION
[21] Based on the foregoing, we hold that the State presented sufficient evidence
beyond a reasonable doubt to support McCoy’s conviction for unlawful
possession of a handgun by a serious violent felon.
[22] Affirmed.
[23] May, J. and Altice, J. concur
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