Court of Appeals of Indiana | Opinion 19A

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A TTORNEY FOR A PPELLANT Suzy St. John Marion County Public Defender Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Tyler G. Banks Supervising Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Ike Campbell , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff , December 21, 2020 Court of Appeals Ca se No. 19A

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- 2414 Appeal from the Marion Superior Court The Honorable Alicia Gooden, Judge The Honorable Richard Hagenmaier, Commissioner Trial Court Cause No. 49G21

- 1803

- F4

- 10187

Robb , Judge
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# Case Summary and Issue s

[1] Following a jury trial, Ike Campbell was convicted of , among other crimes, unlawful possession of a firearm by a serious violent felon, a Level 4 felony, and found to be an habitual offender. The trial court sentenced Campbell to an aggregate sentence of thirty

- three years in the Indiana Department of Correction (“DOC”) . Campbell appeal s and raises two issues for our review: (1) whether the trial court abused its discretion by allowing the State to file a belated habitual offender enhancement ; and (2) whether the evidence is sufficient to support Campbell’s unlawful possession of a fire arm by a serious violent felon conviction

. Concluding the trial court abused its discretion by allowing the State to file the belated enhancement without good cause and the evidence is sufficient to support Campbell’s conviction, we affirm in part, and

re verse and remand in part.



# Facts and Procedural History

[2] On March 23, 2018 , Officer Brandon Brown of the Indianapolis Metropolitan Police Department was patrolling a gas station near 3 8th Street and Sherman Street in Indianapolis. Officer Brown observed a gold C aravan in the gas station’s parking lot with an African American male wearing a knit hat and sitting in the driver’s seat . The driver was later identified as Campbell

. Officer
Br own ran the vehicle’s license plate number and learned the vehicle had been reported stolen and called for backup units

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[3] As Officer Brown waited for back up , the van pull ed away from the gas station. Officer Brown followed the van and activated his light s and siren s to initiate a traffic stop but the van did not stop. Instead, the van “began to pick up dust and accelerate[.]” Transcript, Volume II at 94. With the lights and sirens still activated, Officer Brown followed the van to an apartment complex and observed Campbell get out of the van and take off running with the van still in motion . As Campbell fled, the van rolled forward and struck him , causing him to fall and lose his shoes. The van continued to roll until it crashed into two parked vehicles.

[4] Officer Brown pursued Campbell on foot through the apartment complex. During the pursuit, Officer Brown commanded Campbell to stop

. At some point during the chase, Campbell reached a steep hill and began to tumble down. As he tumbled, Officer Brown saw a “shiny object” fall from Campbell’s
person. Id. at 106. When Campbell reached the bottom of the hill, he was apprehended. Approximately ten to fifteen feet f rom where Campbell had been apprehended, officers located a hat with a revol ver right next to it. Campbell admitted the hat belonged to him but told officer s it was not his gun. The gun was later processed for DNA and fingerprints ; however, no fingerprints were found, and DNA results were inconclusive. See id. at 156 ; Table of Exhibits, Volume I at 36.

[5] On March 27, the State charged Campbell with the following: Count I, unlawful possession of a firearm by a serious violent felon, a Level 4 felony; Count II, auto theft, a Level 6 felony; Count III, resisting law enforcement, aCourt of Appeals of Indiana | Opinion 19A

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Level 6 felony; Count IV, resisting law enforcemen t by flight , a Class A misdemeanor; Count V, possession of marijuana, a Class B misdemeanor 1 ; and Count s VI and V II , leaving the scene of an accident, both Class B misdemeanor s. The State subsequently amended the charging information to add Count VIII, r esisting law enforcement by force , a Class A misdemeanor.

[6] On May 22, the State filed its Notice of Intent to File Habitual Offender Enhancement notifying Campbell that it “intend[ed] to file a [n] habitual offender sentencing enhancement in this cause if go od faith plea negotiations are unsuccessful. Charging information and a motion will follow.” Appellant’s Appendix, Volume II a t 58

. The next day, the State presented Campbell with a plea offer the terms of which are unknown. 2

[7] Months later, on August 1, t he State filed its Notice of Supplemental Discovery Compliance with certified copies of Campbell’s prior convictions

. Around August 14, the State asked if Campbell was interested in a plea agreement, and Campbell stated he would only consider a plea to resisting law enforcement by flight and possession of marijuana. The State declined to make such an offer. A jury trial was scheduled for October 25.

1 Later, u pon the State’s motion, Count V was dismissed

. 2 Campbell was initially represented by a public defender ; however , a t the time this plea was offered, Campbell was represented by private counsel who subsequently withdrew from the case

. Later, t he public defender who initially represented Campbell was re appointed.Court of Appeals of Indiana | Opinion 19A

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[8] O n October 15, the trial was rescheduled for January 24, 201 9 to allow the State time to take depositions of Campbell’s witnesses

. At a pre

- trial conference on January 15, the parties confirmed the jury trial but two days later, the State

e - mailed defense counsel stating that it w as willing to honor the plea deal i t had offered Campb ell in May 2018. After conferring with Campbell, defense counsel informed the State that Campbell was still only willing to plead guilty to resisting law enforcement by flight and possession of marijuana. According to defense counsel, “ t he State responded Mr. Campbell must plead to the [ unlawful possession of a firearm by a serious violent felon charge ]. The State said they will file the [ habitual offender sentencing enhancement ]

. ” I d. at 131. Several days later, the State filed a moti on to continue the trial due to witness issues. The trial was res chedule d for February 7

.

[9] On February 1, the prosecuting attorney e

- mailed defense counsel, asking whether Campbell was interested in making a counteroffer. On February 5,

a fter speaking wit h Campbell, defense counsel informed the State that “nothing has changed” and Campbell would only plead guilty to resisting law enforcement and possession of marijuana. Id. At 4:31 p.m. that day, the State filed a motion to amend the charging information by adding the habitual offender enhancement. In support of its motion, the State offered the following grounds: (1) it filed its notice of inten t to add the habitual offender sentencing enhancement on May 22, 2018; and (2) Campbell “had notice of the filing and the discovery documents and there is no substantial prejudice.” Id. at 123.Court of Appeals of Indiana | Opinion 19A

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[10] On February 6, the day before trial, the trial court granted the State’s motion. Around 10:00 p.m. that night , Campbell filed his objection to the State’s motion arguing that the State “had, at minimum, from August 14, 2018 until December 25, 2018 ” to file the enhancement within the statutory period provided by
In diana Code section 35

- 34

- 1

- 5(e). Id. at 132. But , Campbell argued, the State failed to file within that period or show good cause for the late filing . A s a result, he claimed there was actual prejudice to him , namely th at the State’s after hours filing on February 5 was “in essence [filed] one day prior to trial [and w]hile the State is preparing their case for jury trial, [defense c]ounsel i s required to spend hours researching, writing and filing this Objection. That gives a clear and distinct advanta ge to the State and prejudices” him. Id. at 133.

[11] The following morning , the parties appeared for trial

. C ampbell raised his objection to the filing of the habitual offender enhancement. He argued that the State failed to show good cause for the late filing . In filing the late motion, the State relied on ongoing plea negotiation s , but Campbell claimed that “there have not been plea negotiations in this case since at least May.” Supplementa l Transcript of Evidence, Volume II at 38. When trial was set for January 24, the State represented that it was getting ready to file the habitual offender count but failed to. And at the pre

- trial hearing, when the parties confirmed the January
24 jury trial, the State again indicated it was going to file but did not. Campbell argued that the State strategically waited until the d ay before trial to file the motion , when defense counsel was “ d oing

. . . the bulk of our . . . jury preparation.” Id. at 39

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[12] The State responded that the timing of the filing was not a tactic but instead, attributable to ongoing plea negotiations and staff changes in the office. It further argued that , on May 22, 2018, Campbell was given notice of its intent to file the habitual offender enhancement in the event plea negotiations fail ed and on August 1, Campbell received certified copies of his prior convictions via discovery. The State claimed that “multiple prosecutor’s [sic] have been reaching out t o [Campbell] to see if we could find a plea agreement that is something that we can both agree to on a serious violent felon charge without filing the habitual.” Id. at 40

. “We waited until the last minute to give the defendant the opportunity to get a lo wer plea agreement before a six (6) to twenty (20) year sentence enhancement was applied and now we are filing it.” Id. The trial court overruled Campbell’s objection . Campbell moved for a continuance, which the trial court ultimately granted.

[13] Campbell’ s jury trial was held on June 27. In the first phase of trial, the jury found Campbell guilty of all counts . In the second phase , the jury found Campbell to be a serious violent felon. And in the final phase, the jury found Campbell to be an habitual of fender. At sentencing, the trial court vacated Count IV, resisting law enforcement by flight, and Count VII, leaving the scene of an accident. The trial court sentenced Campbell to an aggregate sentence ofCourt of Appeals of Indiana | Opinion 19A

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thirty

- three years in the DOC

. 3 Campbell now a ppeals. Additional facts will be supplied as necessary.



# Discussion and Decision
I. Addition of Habitual Offender Count

[14] Campbell argues that the trial court abused its discretion by allowing “ the belated filing of an habitual offender enhancement one business day before trial without requiring a showing or making any finding of good cause for the tardiness.” Brief of Appellant at 14. We agree.

[15] The legislature has given the trial court discretion to allow or disallow a belated habitual offender charge upon a showing of good cause. Falls v. State, 797 N.E.2d 316, 317 (Ind. Ct. App. 200 3 ), trans. denied. Therefore, we review a trial court’s determination that the State has show n good cause for its belated filing for a n abuse of discretion. Id. An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances. Jackson v. State , 938 N.E.2d 29, 39 (Ind. Ct. App. 2010), trans. denied

.

3 The trial court issued a sentencing order on September 18, 2019 showing a sentence for Count II , auto theft, that was in excess of that allowed by statute. See Appealed Order at 1. The trial court issued a subsequent sentencing order sua sponte on September 19 correcting the error. See Appellant’s App., Vol. II at 22.Court of Appeals of Indiana | Opinion 19A

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[16] The time frame durin g which the State may amend a charging information to add an habitual offender count is governed by statute:
An amendment of an indictment or information to include a[n] habitual offender charge under IC 35

- 50

- 2

- 8 must be made at least thirty (30) days bef ore the commencement of trial. However, upon a showing of good cause , the court may permit the filing of a[n] habitual offender charge at any time before the commencement of the trial if the amendment does not prejudice the substantial rights of the defen dant. If the court permits the filing of a[n] habitual offender charge less than thirty (30) days before the commencement of trial, the court shall grant a continuance at the request of the:
(1) state, for good cause shown; or
(2) defendant, for any reaso n.

Indiana Code 35

- 34

- 1

- 5(e) (emphasis added).

[17] Our legislature has made it clear that the State must affirmatively show “good cause” for the belated addition before an habitual offender charge may be filed late. Attebury v. State , 703 N.E.2d 175, 179 (Ind. Ct. App. 1998), overruled on other gr ou nds by Williams v. State , 735 N.E.2d 785, 790 (Ind. 2000). “ ‘Good cause’ is not defined in the statute, but it must require something different, and

. . . something more than lack of prej udice. ” Id.

[18] The State advanced the following grounds in support of its motion to amend the information by adding the habitual offender enhancement : (1) it filed a notice of intent to file the h abitual offender charge on May 22, 2018; and (2)Court of Appeals of Indiana | Opinion 19A

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Campbell “ has had notice of the filing and the discovery documents [ pertinent to the enhancement ] an d there is no substantial prejudice. ” Appellant’s App., Vol. II at 123. Before Campbell filed his objection or sought a continuance, t he trial court grant ed the State’s motion . When the parties appeared for trial, Campbell again objected to the filing , arguing the State failed to show good

cause
. In response, the State claimed it s notice of intent was clear that it would file the charge if “good faith ple a negotiations are not successful” meaning “[i]f we go to trial, we will be filling [sic] the habitual.” Supp. Tr., Vol. II at 39. And the State’s position was that they h ad been engaged in ongoing plea negotiations with Campbell because multiple prosecu tors “ reach[ed] out to him to see if we could find a plea agreement that . . . we can both agree to on a serious violent felon charge without filing the habitual . When he said no, we are going to jury trial

– that is when we filed it. [T]hat is good caus e shown. ” Id. at 40. In fact, the State claimed it waited “until the last minute to give [Campbell] the opportunity to get a lower plea agreement [.]” Id.

[19] However, Campbell claimed there were no “plea negotiations

. ” Id. Instead, it appears that the State initially offered Campbell a plea in May 2018

– the terms of which are not in the record

– and he declined to take the deal. Several months later, in August, the State asked if Campbell was interested in a plea agreement but the parties could no t agree to terms

. In January 2019, the State reached out to defense counsel via e

- mail stating it was willing to honor the prior plea offer. Again, Campbell communicated that he was only willing to plead guilty to resisting law enforcement and possession of marijuana , but theCourt of Appeals of Indiana | Opinion 19A

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State responded that he must plead guilty to the unlawful possession of a firearm by a serious violent felon as part of any plea

. On February 1, another prosecutor e

- mailed defense counsel asking if Campbell was interested in making a counteroffer . After speaking with Campbell, defense counsel replied that Campbell’s position had not changed. The State subsequently filed its motion to amend the information by adding the habitual offender charge.

[20] T his court has upheld the finding of good cause for the belated filing of an habitual offender charge due to ongoing plea negotiations. See Johnican v. State , 804 N.E.2d 211, 215 (Ind. Ct. App. 2004). However, th at is not the situation before us. Here, t he State tendered the sa me plea offer several times and then asked if Campbell wanted to make a counteroffer. There is no evidence Campbell’s counsel ever attempt ed to solicit a plea offer from the State , that the State agreed not to file the enhancement if Campbell accepted its plea offer, or that the parties were engaged in bona fide and ongoing plea negotiations up until the State’s filing

. Cf. Land v. State , 802 N.E.2d 45, 53 (Ind. Ct. App. 2004 ) ( holding the trial court did not abuse its discretion by finding good cause to allow the State to amend the information to add a late habitual offender charge where the State extended a plea offer and the defendant rejected it but continued to negotiate and periodically attempt ed to solicit an offer to convey to the defendant) , trans. denied ; c f. Falls , 797 N.E.2d at 318

- 19 (concluding the State demonstrated good cause for its belated filing of the habitual offender charge when it agreed not to file the enhancement if the defendant accepted its offer, the defendant wa s aware of the possibility of the enhancement being filed,Court of Appeals of Indiana | Opinion 19A

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and plea negotiations continued beyond the omnibus date)

. Ultimately, w e are not persuaded that the State’s periodic tendering of the same plea offer that ha d been repeatedly rejected by a defenda nt , whose position remained constant, constitutes ongoing plea negotiations.

[21] The State filed its notice of intent to file the habitual offender charge in May
2018 but then wait ed until the day before trial to actually do so

. The State had ample opportunity within the statutory time frame to file a timely habitual offender enhancement and, i n fact, eve n represented that it planned to do so several time s
. Although t he trial had been scheduled and subsequently rescheduled several times , t here were no pending or outstanding issues that would have prevented the State from filing the enhancement nor was there any indication that the matter would not proceed to trial

. The State offers no reason, and we are unaware of any, as to why it could n ot have filed the habitual offender charge and continued with plea negotiations. Instead, the State ’s after hours filing of the late addition on February 5 was essentially a filing on the day before the schedule d trial without good cause

. Good cause requi res more than lack of prejudice and the State has failed to meet this burden. See Attebury , 703 N.E.2d at 179. Therefore, we conclude that the trialCourt of Appeals of Indiana | Opinion 19A

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court abused its discretion by allowing the State to file a belated habitual offender charge without good cause. 4



## II. Sufficiency of the Evidence

[22] Campbell also argues that there is insufficient evidence supporting his unlawful possession of a firearm b y a serious violent felon conviction.



### A. Standard of Review

[23] When reviewing the sufficiency of the evidence required to support a criminal conviction, we do not reweigh the evidence or judge the credibility of the witnesses. Bailey v. State , 907 N.E.2d 1003, 1005 (Ind. 2009). Instead, we consider only the evidence supporting the verdict and any reasonable inferences that can be drawn therefrom. Morris v. State , 114 N.E.3d 531, 535 (Ind. Ct. App. 2018), trans. denied . And we consider conflicting eviden ce most favorably to the verdict. Silvers v. State , 114 N.E.3d 931, 936 (Ind. Ct. App. 2018). “We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt.” Bailey , 907 N.E.2d at 1005. It is not necessary for the evidence to overcome every reasonable hypothesis of innocence; it is sufficient

4 Campbell claims that there “is a split among authorities ” in this court as to whether the trial court is required to make an expli cit finding of good cause before allowing the State to file an untimely habitual offender enhancement or whether the trial court , by allowing such filing, impliedly finds good cause. Br. of Appellant at 20. Because we conclude the State failed to show go od cause for its belated finding, we need not determine whether the trial court is required to make an explicit finding of good cause.Court of Appeals of Indiana | Opinion 19A

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if an inference may reasonably be drawn from the evidence to support the verdict. Silvers , 114 N.E .3d at 936.



### B. Unlawful Possession of a Firearm

[24] Campbell does not challenge his status as a serious violent felon or that he knowingly or intentionally possessed a firearm. Instead, he c laims that the State had to prove Campbell “both . . . knowingly p ossessed the firearm and that he knew of his [serious violent felon] status when he possessed it.” Br

. of Appellant at 21. We disagree.

[25] Indiana Code section 35

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- 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.” A “serious violent felon” is defined as a person who has been convicted of committing a serious violent felony , the list of which includes the crime of robbery . Ind. Code § 35

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- 5(a), (b)(13) (2017). Therefore, to convict Campbell of unlawful possession of a firearm by a serious violent felon, the State had to prove that Campbell had been convicted of robbery and, thereafter, knowingly or intentionally poss essed a firearm. Causey v. State , 808 N.E.2d 139, 143 (Ind. Ct. App. 2004). In Rhone
v. State , this court held that t he statute “does not require proof that [a defendant] knew he was a serious violent felon. Instead, [it] merely requires that a person knowingly or intentionally possess a firearm after having been convicted of a serious violent felony.” 825 N.E.2d 1277, 1286

- 87 (Ind. Ct. App. 2005) , trans. denied

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[26] Campbel l recognizes this case law but argues that the recent United States Supreme Court’s decision in Rehaif v. United State s , 139 S.Ct. 2191 (2019), “calls into question the analysis in R hone .” Br. of Appellant at 25. He urges us to reevaluate the previous in terpretation of the statute in light of this decision and the fact we are not bound by this court’s prior decisions.

[27] In Rehaif

, the Supreme Court examined t wo federal statute s, 18 U.S.C. §§ 922(g) and 924(a)(2), prohibiting certain individuals from posse ssing firearms and imposing penalties for a violation . U ltimately , the Court held that the government had to prove the defendant knew he belonged to a category that barr ed him from possessing a f irearm and knew he possessed a firearm. Rehaif , 139 S.Ct. at 2195

- 97. S ection 922(g)(1) provides that “ [i] t shall be unlawful ” for certain individuals to possess a firearm or ammunition. And a separate statute, 18 U.S.C. § 924(a)(2), states that “ [w] hoever knowingly violates ” section 922(g) shall be fine d or imprisoned for up to ten years, or both. The Court held that because “‘knowingly’ in § 924(a)(2) modifies the verb ‘violates’ and its direct object, which in this case is §922(g) [,] ” Congress intended to require the government to prove that a defendant knew he violated the material elements of section 922(g)

– that he was a person prohibited from possessing a firearm. Rehaif , 139 S.Ct. at 2195

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. 5

5 The Court also held that its reading of the statute was consistent with the statute’s purpose. Id. at 2196

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[28] Applying the same analysis here, we cannot conclude that Indiana Code section
35

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- 5(c) requires the State to prove both that a defendant knew he was a serious violent felon and knew he possess ed a firearm. Our statute provides that “[a] serious violent felon who knowingly or intentionally possesses ” a firearm commits unlawful possession of a firearm by a serious violent felon

. Here , the syntax is critical : “knowingly” modifies the verb “possess” and its direct object, a firearm. The text of the federal statute at issue in Re haif differs significantly from the text of Indiana’s statute and t herefore, cannot support Campbell’s interpretation

. The State was not required to prove that Campbell knew he was a serious violent felon when he unlawfully possessed a firearm . Because Campbell does not challenge any other element or aspect of his conviction for unlawful possession of a firearm by a serious violent felon, we conclude there is sufficient evidence supporting his conviction. 6



# Conclusion

[29] For the reasons set forth above, we conclude the re is sufficient evidence to support Campbell’s unlawful possession of a firearm by a serious violent felon conviction an d we therefore affirm his conviction. We also conclude that t he trial court abused its discretion by allow ing the State to file a late habitual

6 Campbell also argues that our jurisprudence in the context of various driving offenses support s his interpretation of Indiana Code section 35

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offender charge without good cause

. Therefore , we reverse the trial court’s habitual offender enhancement and remand with instructions to vacate the enhancement and resentence Campbell accordingly

.

[30] Affirmed in part, reversed and remanded in part

.

Crone, J., concurs

. Brown, J., concurs in part and dissents in part with opinion.Court of Appeals of Indiana | Opinion 19A

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### I N T H E 

# COURT OF APPEALS OF INDIANA

Ike Campbell, Appellant

- Defendant ,

v. 

### State of Indiana, Appellee

- Plaintiff

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Brown, Judge, concurring in part and dissenting in part
.

[31] I respectfully dissent from the majority’s conclusion that the trial court abused its discretion by allowing the State to file an habitual offender charge. The Indiana Supreme Court has held that the purpose of Ind. Code § 35

- 34

- 1

- 5(e)
“is to allow a defe ndant sufficient time to prepare a defense for an habitual offender charge.” Haymaker v. State , 667 N.E.2d 1113, 1114 (Ind. 1996). Given
that the State filed a notice on May 22, 2018, asserting that it intended to file an habitual offender sentencing enhancement if good faith plea negotiations were unsuccessful, the trial court granted Campbell’s motion to continue, and a trial
was not held until more than four months after the habitual offender charge was filed, I would c onclude that the trial court did not abuse its discretion in allowing the State to file the habitual offender allegation

. I concur with the majority in all other respects.