Damon Blinks v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 09 2018, 9:49 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

INTHE

COURT OF APPEALS OF INDIANA Damon Blinks, January 9, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1706-CR-1190 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia Gooden, Appellee-Plaintiff. Judge The Honorable Richard Hagenmaier, Commissioner Trial Court Cause No. 49G21-1506-F4-21581

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1190 | January 9, 2018 Page 1 of 11

STATEMENT OF THE CASE [1] Appellant-Defendant, Damon Blinks (Blinks), appeals his conviction for

unlawful possession of a firearm by a serious violent felon (SVF), a Level 4

felony, Ind. Code § 35-47-4-5(c). [2] We affirm.

ISSUE [3] Blinks raises one issue on appeal, which we restate as: Whether Blinks’

conviction for unlawful possession of a firearm by a SVF is contrary to due

process.

FACTS AND PROCEDURAL HISTORY [4] At approximately 3:19 a.m. on June 17, 2015, Officer Larry Lanigan (Officer

Lanigan) of the Indianapolis Metropolitan Police Department was dispatched

to Castleton Square Mall in Indianapolis, Marion County, Indiana, to

investigate a report of two people sleeping inside a black Toyota Solara in the

mall’s parking lot. The Toyota had a temporary paper plate, and when Officer

Lanigan ran the plate through his computer, it did not belong to the black

Toyota Solara. [5] Officer Lanigan observed two men in deep sleep. Officer Lanigan loudly

banged on the vehicle to wake the men up. Officer Lanigan then asked Blinks

why he was parked there, and Blinks stated that his vehicle had broken down

and he was waiting for help to arrive. Blinks indicated that he did not possess

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any identification and he provided Officer Lanigan with a fake name and date

of birth. Because Blinks had failed to provide any identifying documents,

Officer Lanigan ordered the men to step outside the vehicle so he could check

the vehicle’s VIN. [6] Blinks exited and held his baggy shorts with his left hand. During a pat-down,

Officer Lanigan felt something heavy inside Blinks’ right pocket. Upon placing

his hand on the object, Officer Lanigan believed it was a firearm. At that point,

Blinks took off running toward the rear of the mall, and Officer Lanigan

pursued him. Officer Lanigan radioed for assistance, and a K9 officer arrived.

The K9 officer alerted the officers to Blinks’ presence inside a dumpster behind

the mall. Because Blinks was believed to be armed, a SWAT officer who was at

the scene deployed tear gas into the dumpster. Moments later, Blinks climbed

out of the dumpster and was apprehended. A firearm was recovered inside the

dumpster, concealed beneath multiple bags of garbage. [7] On June 19, 2015, the State filed an Information, charging Blinks with Count I,

unlawful possession of a firearm by a SVF, a Level 4 felony; 1 Count II, resisting

law enforcement, a Class A misdemeanor; and Count III, false informing, a

Class B misdemeanor. On April 20, 2017, a jury trial was conducted. During

the State’s case-in-chief, the trial court informed the jury that the parties had

1 Blinks had a prior conviction in 2014 for a Class B felony carjacking, which the State indicated was the predicate offense for the SVF charge.

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“filed certain stipulations,” including that at the time of his arrest, Blinks “was a person prohibited from possessing a firearm under Indiana law.” (Tr. Vol. II, p.

111). At the close of the evidence, the jury found Blinks guilty of all three

Counts. The jury was dismissed and the trial court set the matter for a

sentencing hearing. At that time, the State requested the trial court to perform

a plea colloquy to establish the qualifying conviction that would have made

Blinks a SVF under Count I, asserting that Blinks still needed to formally waive

his right to a jury trial on the determination of his SVF status. Following

Blinks’ admission that he had been convicted of a serious violent felony, and

the State’s establishment of the factual basis to the predicate SVF offense, the

trial court determined that Blinks had waived his right to a jury trial on the

determination of his SVF status. [8] On May 8, 2017, the trial court conducted Blinks’ sentencing hearing. The trial

court sentenced Blinks to twelve years, with eight years executed in the Indiana

Department of Correction and four years suspended, for unlawful possession of

a firearm by a SVF; one year for resisting law enforcement; and 180 days for

false informing. Blinks’ sentences were to run concurrently. [9] Blinks now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [10] On appeal, Blinks claims that the trial court committed fundamental error by

finding him guilty of being a SVF. According to Blinks, the jury found him

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guilty of unlawfully possessing a firearm but did not determine whether he was

a SVF. Thus, Blinks argues that

[t]he trial court proceeded as if [he] had waived his right to a jury on the SVF enhancement. The judge mistakenly informed Blinks his stipulation meant he waived jury (or even a bench trial) and would proceed to sentencing. Finally, the trial court found Blinks guilty of the SVF offense without advising Blinks of his [Boykin 2] rights, without engaging in a colloquy with him regarding the factual basis offered by the State (as Blinks never agreed with the factual) and without even ascertaining that Blinks knowingly, voluntarily and intelligently wished to plead guilty to the offense.

(Appellant’s Br. p. 11). Blinks now invites our court to reverse and remand for

a new trial on the charge of unlawful possession of a firearm by a SVF. We

decline Blinks’ request. [11] Blinks was charged with unlawful possession of a firearm by a SVF. That

offense requires proof that “[a] [SVF] . . . knowingly or intentionally possesses a

firearm.” I.C. § 35-47-4-5(c). A SVF is defined, in relevant part, as a person

who has been convicted of a serious violent felony in Indiana. I.C. § 35-47-

45(a)(1)(A). “The legal status of the offender is an essential element of the

crime, and the act—the possession—is illegal only if performed by one

occupying that status.” Spearman v. State, 744 N.E.2d 545, 548 (Ind. Ct. App.

2 Boykin v. Alabama, 395 U.S. 238 (1969), provides that a trial court may not accept a guilty plea without an affirmative showing that the defendant was informed of and intelligently and voluntarily waived his rights to the privilege against compulsory self-incrimination, to trial by jury, and to confront one’s accusers. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006).

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2001), trans. denied. During the trial, Blinks—who was represented by

counsel—stipulated to the jury that, at the time of his arrest, he “was a person

prohibited from

possessing a firearm under Indiana law.” (Tr. Vol. II, p. 111). In his testimony,

Blinks further specified that he was convicted of carjacking in 2014. See I.C. §

35-47-4-5(b)(14) (listing carjacking as a serious violent felony offense). Thus,

Blinks necessarily stipulated to the fact that he is a SVF. [12] In Bowens v. State, 24 N.E.3d 426, 428 (Ind. Ct. App. 2014), following his

conviction for unlawful possession of a firearm by a SVF, the defendant argued

that the State had failed to prove his SVF status. Unlike in the present case, the

defendant in Bowens specifically requested a bifurcated trial in order to prevent

the jury from “hearing the term ‘serious violent felon’” as it could be

prejudicial. Id. The trial court denied the defendant’s request but did “remove

all reference to the SVF label during trial in order to avoid prejudice.” Id. The

jury instructions were phrased to impart that he was barred from possessing a

firearm without direct reference to his SVF status. Id. at 428-29. Furthermore,

the defendant stipulated to the jury that he was “a person barred from

possessing a firearm under Indiana Code [section] 35-47-4-5.” Id. at 429.

Despite the fact that his stipulation lacked the “the term SVF,” our court found

that the defendant had “stipulated to his SVF status and [could not] be heard to

complain that the State failed to prove that status.” Id. We reasoned that his

admission that he was “barred from possessing a firearm under Indiana Code

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Section 35-47-4-5” was no “different from [a] SVF.” Id. Furthermore, the

defendant “invited the language substitution by raising his request for

bifurcation on the basis of possible prejudice, he agreed to the stipulation, and

the State relied on the stipulation as an admission of the SVF element of the

offense, which therefore relieved the State of presenting other evidence.” Id. [13] In the present case, there is no explicit reason provided as to why the stipulation

was phrased as it was—although the trial court indicated that it was designed to

avoid prejudice. Nevertheless, Blinks was charged under Indiana Code section

35-47-4-5 and stipulated to the fact that he was prohibited from possessing a

firearm under that statute. Because he stipulated to his SVF status, the jury was

charged with determining the remaining elements of the offense: that Blinks

was knowingly or intentionally in possession of a firearm. See Dugan v. State,

860 N.E.2d 1288, 1292-93 (Ind. Ct. App. 2007) (stating that where a defendant

stipulates to his status as a SVF, “the State is not required to prove that

element”), trans. denied. [14] We are perplexed by the procedural course of this case and by the appellate

arguments raised by both parties. 3 Despite Blinks’ argument to the contrary,

and notwithstanding the procedural irregularity at the end of the jury trial

regarding Blinks’ purported waiver of a trial on his SVF charge, his trial was not

3 The State concurs with Blinks that he was not adequately advised of his right to a jury trial or advised of his rights prior to entering a guilty “plea to his underlying status of being a [SVF].” (State’s Br. p. 9).

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1190 | January 9, 2018 Page 7 of 11 bifurcated. There is no evidence in the record that Blinks even requested a bifurcation so that the jury could have first determined whether or not he was in possession of a firearm before, if necessary, proceeding to a second phase to determine his SVF status. See Williams v. State, 834 N.E.2d 225, 228 (Ind. Ct. App. 2005) (noting that, by bifurcating the trial to first determine whether the defendant knowingly or intentionally possessed the firearm before considering whether the defendant “committed a crime by possessing a firearm”—and instructing the jury that such procedure would be followed—our court stated that the trial court had “struck the proper balance between advising the jury that [the defendant] had indeed been charged with a firearm-related crime and avoiding identifying [the defendant] as a [SVF] from the outset of trial”); but see Spearman, 744 N.E.2d at 550 (“hold[ing] that the element of the prior felony cannot be bifurcated from the possession element in a prosecution under [Indiana Code section 35-47-4-5],” while also remaining “mindful of the prejudice that may arise in a jury trial when a defendant is identified and repeatedly referred to as a ‘serious violent felon[,]’ [urging] trial courts to be attentive to this potential for prejudice and to exercise their discretion in crafting instructions and referring to the prior felony in ways which minimize the potential for such prejudice” and further noting that prejudice to the defendant was minimized in this case “by allowing him to stipulate to the fact that he was convicted of the underlying felony” that predicated his SVF status). SVF status is not an enhancement; rather, it is one element of the offense of unlawful possession of a firearm by a SVF. Blinks stipulated to the SVF Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1190 | January 9, 2018 Page 8 of 11

element, and the jury, having determined the rest of the elements to be satisfied,

found him guilty all in one phase. Thus, because Blinks did not waive his right

to a jury trial or plead guilty to his SVF crime, there are no due process

violations with respect to the requisite advisement of rights.

CONCLUSION [15] Based on the foregoing, we conclude that Blinks’ conviction for unlawful

possession of a firearm by a SVF did not offend due process. [16] Affirmed. [17] Robb, J. concurs [18] Pyle, J. concurs in result with separate opinion

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INTHE

COURT OF APPEALS OF INDIANA Damon Blinks, Court of Appeals Case No. 49A02-1706-CR-1190 Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

Pyle, Judge concurring in result with opinion. [19] I concur with the result in my colleagues’ opinion, but I write separately

because I believe it is necessary to raise a warning about partial bifurcation in

SVF cases. As my colleagues noted, the procedural posture of this case was

irregular. Instead of requiring the State to present this case in a totally

bifurcated manner, the trial court allowed this case to be partially bifurcated.

Normally, in a case involving an SVF charge and other counts, a jury will hear

evidence and render its’ verdict on all counts except the SVF charge in phase

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one of the trial. In the second phase, evidence concerning the defendant’s prior

conviction will then be presented. At the conclusion of the second phase, the

jury, using evidence introduced in both phases, renders a verdict on the SVF

charge. However, in this case, the jury was told that, in addition to the other

crimes, it could convict Blinks of the fictitious crime of “unlawful possession of

a firearm.” The jury was also instructed that this crime was “defined by

statute,” and that to convict Blinks the State must prove each element of the

crime charged beyond a reasonable doubt. (App. Vol. II, Pg. 66, 70). Because

this crime does not exist, neither instruction was true. [20] While arguments involving judicial economy may support partial bifurcation,

our Supreme Court has warned trial courts to exercise caution so as not to

prejudice a defendant. Russell v. State, 997 N.E.2d 351 (Ind. 2013). In Russell,

the Court affirmed an SVF conviction arising out of a partially bifurcated trial,

but it did so because it deemed no prejudice had resulted to the defendant’s

selfdefense claim. My concern is that more trial courts are interpreting Russell

as giving tacit permission to the partial bifurcation of SVF cases. In my humble

opinion, to do so creates a form of legal sausage making that risks creating a

mess. If bifurcation is to be required in SVF cases involving multiple alleged

crimes, bifurcation should be total and without exception.

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