Court of Appeals of Indiana | Memorandum Decision 49A05

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### MEMORANDUM DECISION 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 establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Ellen M. O’Connor Marion County Public Defender Agency Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Charles Arnold , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff September 23, 2015 Court of Appeals Ca se No. 49A05

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- 110 Appeal from the Marion Superior Court The Honorable Shatrese M. Flowers, Judge The Honorable Peggy Hart, Commissioner Trial Co urt Cause No. 49G20

- 1408

- F4

- 38278

Bradford , Judge .Court of Appeals of Indiana | Memorandum Decision 49A05

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# Case Summary

[1] Appellant

- Defendant Charles Arnold engaged in an argument with Cynthia Bell during the early morning hours of August 4, 2014. Arnold interfered when Bell approached Eddie Williams and asked for assistance. Despite Arnold’s threatening demeanor, Williams helped Bell get away from Arnold. A few hours later, Arnold spotted Williams, who had fallen asleep in his vehicle. Arnold, in an aggressive and threatening manner, demanded that Williams tell him where he had taken Bell. As Williams attempted to flee f rom Arnold, Williams heard two gunshots. Immediately after Williams heard the gunshots, he noticed that something had shattered the back window of his vehicle and punctured his left rear tire.

[2] Appellee

- Plaintiff the State of Indiana (the “State”) subseq uently charged Arnold with a number of crimes, including unlawful possession of a firearm by a serious violent felon, a Level 4 felony , and attempted battery by means of a deadly weapon, a Level 5 felony. Following a jury trial, Arnold was found guilty as charged . On appeal, Arnold challenges the sufficiency of the evidence sustaining his convictions for unlawful possession of a firearm by a serious violent felon and attempted battery by means of a deadly weapon . We affirm.



# Facts and Procedural History

[3] O n the morning of August 4, 2014, Arnold and Cynthia Bell engaged in an argument. During the course of the argument, Bell “slashed” Arnold’s tires andCourt of Appeals of Indiana | Memorandum Decision 49A05

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Arnold called the police. State’s Ex. 35

- A, 5:44

- 5:50. At some point, Bell left the scene and approache d a white SUV which was being driven by Eddie Williams. Williams observed that Bell appeared to be “distressed” and appeared to be “trying to get away from [ ] Arnold.” Tr. p. 49.

[4] After Williams agreed to give Bell a ride, Arnold “jumped” in front of W illiams’s vehicle to try to block the vehicle’s exit route. Tr. p. 50. Williams then “gunned [his] vehicle[,]” causing Arnold to move from the vehicle’s path. Tr. p. 51. As Williams drove away, he observed Arnold “thr[o]w his hand behind his back like [he was] going to draw a weapon.” Tr. p. 51. Williams, however, did not actually see a weapon at this time. Williams gave Bell a ride to the intersection of 18 th Street and Meridian Street.

[5] After dropping Bell off, Williams drove to Graceland Avenue b etween 36 th and 37 th Streets, where he feel asleep in his vehicle. W illiams was subsequently awakened by Arnold yelling at him from the passenger seat of a burgundy Buick that was being driven by Cory Mills. At Arnold’s request, Mills had stopped the Bui ck to the left of Williams’s vehicle. Arnold exhibited a “threatening” demeanor as he questioned Williams about Bell. Tr. p. 54. Arnold was acting “real aggressive, wanting to know what [Williams] had did [sic] with [Bell].” Tr. p. 54. Believing that Arnold might be armed, Williams attempted to flee the encounter by pulling away from Mills’s Buick. As he pulled away, Williams heard two gunshots. Immediately after Williams heard the gunshots, he noticed that something had shattered the back window of his vehicle and punctured his left rear tire. The bullet that shattered Williams’sCourt of Appeals of Indiana | Memorandum Decision 49A05

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back window came to rest in “the second seat headrest right behind [Williams’s] head.” Tr. p. 57. Williams proceeded to a nearby restaurant and reported the incident to the Indianapolis Metropolitan Police Department.

[6] Detective Stephen Fippen responded to Williams’s call. After conducting an initial conversation with Williams, Detective Fippen transported Williams to Arnold’s home which was located just north of the i ntersection of 36 th Street and Kenwood Avenue. Once at Arnold’s home, Williams identified Arnold as the individual who m he had encountered both when initially approached by Bell and when he was aw a ken ed in his vehicle and shot at. Based on the facts know n to Detective Fippen coupled with Williams’s identification of Arnold, Detective Fippen obtained a search warrant for Arnold’s home.

[7] During a subsequent search of Arnold’s home, Detective Fippen discovered a holster that would fit a “large model frame Smi th and Wesson [.] 40 caliber handgun.” Tr. p. 202. In addition, investigatin g officers recovered two spent shell casings from the site of the shooting. These shell casings were in “pristine condition” when recovered, enabling the investigating officers t o identify the casings from

. 40 caliber Smith and Wesson cartridges. Tr. p. 119. It was later determined that the only possible weapon that could have fired the shells was a Smith an d Wesson firearm.

[8] On August 5, 2014, the State charged Arnold with Count I

– unlawful possession of a firearm by a serious violent felon, a Level 4 felony; Count II

– attempted battery by means of a deadly weapon, a Level 5 felony; Count III

–Court of Appeals of Indiana | Memorandum Decision 49A05

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criminal recklessness, a Level 5 felony; and Count IV

– possession of paraphernalia, a Class A misdemeanor. The trial court conducted a two

- day jury trial on December 9

- 10, 2014. Following the conclusion of trial, the jury found Arnold guilty as charged. At sentencing, the trial cou rt merged Counts II and III and sentenced Arnold to an aggregate twelve

- year sen tence. This appeal follows.


# Discussion and Decision

[9] Arnold contends that the evidence is insufficient to sustain his convictions for unlawful possession of a firearm by a serious violent felon and attempted battery by means of a deadly weapon. 1 When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact

- finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflic ting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact

finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The

1 Arnold does not challenge the sufficiency of the evidence to sustain his conviction for Class A misdemeanor possession of paraphernalia.Court of Appeals of Indiana | Memorandum Decision 49A05

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evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State , 867 N.E.2d 144, 146

- 47 (Ind. 2007) (citations, emphasis, and quotations omitted). “In essence, we assess only whether the verdict could be reached based on reasonable inferences that may be drawn from the evidence presented.” Baker v. State , 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Upon review, appellate cou rts do not reweigh the evidence or assess the credibility of the witnesses, Stewart v. State , 768 N.E.2d 433, 435 (Ind. 2002), as the jury, acting as the trier

- of

- fact, is “‘free to believe whomever they wish.’” Klaff v. State , 884 N.E.2d 272, 274 (Ind. C t. App. 2008) (quoting McClendon v. State , 671 N.E.2d 486, 488 (Ind. Ct. App. 1996)).

[10] “[A] conviction may be based purely on circumstantial evidence.” Hayes v. State , 876 N.E.2d 373, 375 (Ind. Ct. App. 2007) (citing Moore v. State , 652 N.E.2d 53, 55 (Ind . 1995)), trans. denied . “‘On appeal, the circumstantial evidence need not overcome every reasonable hypothesis of innocence.’” Id

. (quoting Moore , 652 N.E.2d at 55). “It is enough if an inference reasonably tending to support the conviction can be draw n from the circumstantial evidence.” Id . (citing Moore , 652 N.E.2d at 55). Thus, where circumstantial evidence is used to establish guilt, “‘the question for the reviewing court is whether reasonable minds could reach the inferences drawn by the jury; if so, there is sufficient evidence.’” Klaff , 884 N.E.2d at 274

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[11] Furthermore, “[e]ven though one’ s mere presence at the crime scene with the opportunity to commit a crime is not a suffi cient basis on whi ch to support a conviction, one’ s presence at the scene in connection with other ci rcumstances tending to show one’ s participation may raise a reasonable inference of guilt. ” Id . at 275 (citing Brink v. State , 837 N.E.2d 192, 194 (Ind. C t. App. 2005), trans. denied ). For instance, a defendant’s course of conduct before, during, and after the offense, may raise a reasonable inference of guilt. Willis v. State , 27 N.E.3d 1065, 1068 (Ind. 2015) (citing Maul v. State , 731 N.E.2d 438, 439 (Ind. 2000) ). 

## I. Unlawful Possession of a Handgun by a Serious

Violent Felon

[12] Indiana Code section 35

- 47

- 4

- 5(c) provides that “[a] serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a seriou s violent felon, a Level 4 felony.” Arnold admitted below that he qualified as a serious violent felon. As such, he does not challenge the sufficiency of the evidence proving that he was a serious violent felon on appeal. Arnold merely challenges the su fficiency of the evidence to prove that he knowingly or intentionally possessed a firearm.

[13] In the instant matter, the evidence most favorable to the jury’s finding of guilty demonstrates that Arnold exhibited threatening behavior toward Williams during t wo separate encounters. During Williams’s first encounter with Arnold, Williams did not actually see a weapon, but saw Arnold “thr[o]w his hand behind his back like [he was] going to draw a weapon.” Tr. p. 51. During the second encounter, Williams, who had fallen asleep in his vehicle, wasCourt of Appeals of Indiana | Memorandum Decision 49A05

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awakened by Arnold yelling at him. Arnold exhibited a “threatening” demeanor as he questioned Williams about Bell. Tr. p. 54. Arnold was acting “real aggressive, wanting to know what [Williams] had did [sic] with [B ell].” Tr. p. 54. Because he believed from their earlier encounter that Arnold might be armed, Williams attempted to flee the encounter by pulling away from Arnold. As he pulled away, Williams heard two gunshots. Immediately after Williams heard the g unshots, he noticed that something had shattered the back window of his vehicle and punctured his left rear tire. The bullet that shattered Williams’s back window came to rest in “the second seat headrest right behind [Williams’s] head.” Tr. p. 57.

[14] Fur ther, while Mills testified at trial that he did not see Arnold with a gun on the day in question, the State attempted to impeach Mills by casting Mills’s credibility into doubt. In impeaching Mills, the State questioned him about his prior statement to D etective Fippen that he watched as Arnold “came out of his back pocket with a gun and started shooting.” Tr. p. 73. The jury, acting as the trier of fact, was in the best position to judge Mills’s credibility and to decide whether to believe Mills’s tria l testimony. See Stewart , 768 N.E.2d 435; Klaff , 884 N.E.2d at 274.

[15] W e conclude that the evidence is sufficient to allow the jury to reasonably infer Arnold’s guilt. Arnold ’s claim to the contrary is effectively an invitation to reweigh the evidence, w hich we will not do. See Stewart , 768 N.E.2d at 435.Court of Appeals of Indiana | Memorandum Decision 49A05

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## II. Attempted Battery by Means of a Deadly Weapon

[16] Indiana Code sections 35

- 42

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- 1(b)(1) provides that a person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is a Level 5 felony if it is committed with a deadly weapon. Ind. Code § 35

- 42

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- 1(f)(2). Furthermore, “[a] person attempts to commit a crime when, acting with the culpability required for co mmission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime.” Ind. Code § 35

- 41

- 5

- 1(a). “An attempt to commit a crime is a felony or misdemeanor of the same level or class as the crime attempted .” Ind. Code § 35

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- 5

- 1(a).

[17] As is discussed above, the evidence most favorable to the jury’s finding of guilt demonstrates that Williams was awakened by Arnold yelling at him. Arnold exhibited a “threatening” demeanor as he questioned Williams about Bel l. Tr. p. 54. Arnold was acting “real aggressive, wanting to know what [Williams] had did [sic] with [Bell].” Tr. p. 54. When Williams attempted to flee the encounter, Williams heard two gunshots. Immediately after Williams heard the gunshots, he not iced that something had shattered the back window of his vehicle and punctured his left rear tire. The bullet that shattered Williams’s back window came to rest in “the second seat headrest right behind [Williams’s] head.” Tr. p. 57. The evidence demons trates that the trajectory of the cartridges recovered form Williams’s vehicle was consistent with the gun being fired by Arnold and the record is devoid of any indication that there wasCourt of Appeals of Indiana | Memorandum Decision 49A05

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some other individual present at the scene that could have shot the g un in the direction of Williams ’s vehicle.

[18] W e conclude that the evidence is sufficient to allow the jury to reasonably infer Arnold’s guilt. Arnold’s claim to the contrary is effectively an invitation to reweigh the evidence, which we will not do. See St ewart , 768 N.E.2d at 435.

[19] The judgment of the trial court is affirmed.

May, J., and Crone, J., concur.