Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2327 | May 16, 2018 Page 1 of 11

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.

ATTORNEY FOR APPELLANT

James A. Edgar

J. Edgar Law Offices, Prof. Corp.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Theodore Briscoe,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

May 16, 2018

Court of Appeals Case No.

49A04-1709-CR-2327

Appeal from the Marion Superior 

Court

The Honorable Alicia Gooden, 

Judge

The Honorable Richard 

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 2 of 11

[1] Theodore Briscoe appeals his convictions of Level 6 felony resisting law 

enforcement by operation of a vehicle1 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.
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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).
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[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.
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“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: 
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[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 
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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.)
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[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 
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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 nonexclusive 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).
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[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)
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(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.