Marces Riley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 14 2019, 8:39 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John Kindley Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marces Riley, August 14, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-384 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jane Woodward Appellee-Plaintiff. Miller, Judge Trial Court Cause No. 71D01-1709-F6-855

Riley, Judge Court of Appeals of Indiana | Memorandum Decision 19A-CR-384 | August 14, 2019 Page 1 of 8

STATEMENT OF THE CASE [1] Appellant-Defendant, Marces Riley (Riley), appeals his convictions for resisting

law enforcement, a Level 6 felony, Ind. Code § 35-44.1-3-1(b); carrying a

handgun without a license, a Class A misdemeanor, I.C. § 35-47-2-1(e);

possession of a narcotic drug, a Level 5 felony, I.C. § 35-48-4-6(b); two Counts

of resisting law enforcement, Class A misdemeanors, I.C. §35-44.1-3-1(a)(1); a

firearm enhancement charge, I.C. § 35-50-2-11(e)(h); possession of cocaine

while armed with a firearm, a Level 3 felony, I.C. § 35-48-4-6(d)(1); and his

vacated conviction for pointing a firearm at another, a Level 6 felony, I.C. § 35-

47-4-3(b). [2] We affirm.

ISSUES [3] Riley presents one issue on appeal, which we restate as: Whether the State

presented sufficient evidence beyond a reasonable doubt to sustain his

conviction for pointing a firearm at another, a Level 6 felony. 1

FACTS AND PROCEDURAL HISTORY [4] On September 7, 2017, South Bend Police Officer, Kyle Drury (Officer Drury),

was conducting a patrol. Officer Drury observed a vehicle driving in the

opposite direction that did not have a front bumper. Officer Drury made eye

1 Due to double jeopardy concerns, the trial court did not enter a judgment of conviction on this charge.

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contact with the driver, later identified as Riley, “whose eyes got really big,”

and who “immediately, ah, turned off of the main street.” (Transcript Vol. I, p.

146). Because that “seemed odd,” Officer Drury “went around the block to try

to find that car.” (Tr. Vol. I, p. 165). Officer Drury located Riley’s vehicle at a

gas station parking lot, and he began to follow Riley. Shortly thereafter, Officer

Drury initiated a traffic stop since the “license plate was tinted so dark that he

couldn’t read the lettering on the license plate.” (Tr. Vol. I, p. 140). As Officer

Drury approached Riley’s vehicle, Riley sank down in his seat and then sped

off. [5] Officer Drury ran back to his vehicle and chased Riley’s vehicle. Riley

eventually pulled into an alley and fled on foot. While running after Riley,

Officer Drury repeatedly yelled, “Stop! Police!” (Tr. Vol. I, p. 174). As Riley

ran up an embankment, he reached into his waistband and pulled out “a black

semi-automatic handgun” and pointed it toward Officer Drury. (Tr. Vol. I, p.

176). By that time, other officers had joined the chase. Officer Brittany Bayles

(Officer Bayles), who was running behind Officer Drury, yelled “Gun! Gun!

Gun!” (Tr. Vol. I, p. 177). At that point, Officer Drury reached for his firearm,

but it was not in his holster. Officer Drury’s only option was to tackle Riley to

the ground. After a brief struggle, Officer Drury handcuffed Riley. [6] After Riley was lifted from the ground, “a black semi-automatic handgun” was

located on the ground. (Tr. Vol. I, p. 147). The officers discovered a plastic

baggie containing a white powdery substance, which was later identified to be

0.58 grams of heroin. The officers also located a plastic baggie containing a

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white substance lying underneath an adjacent fence. That baggie contained

11.75 grams of cocaine. While there were four DNA profiles obtained from the

black semi-automatic handgun’s trigger, the “analysis provided strong support

for the proposition that [] Riley” was the largest contributor to the DNA profile.

(Tr. Vol. I, p. 129). [7] [8] On September 11, 2017, the State filed an Information, charging Riley with

Count I, resisting law enforcement, a Level 6 felony; Count II, carrying a

handgun without a license, a Class A misdemeanor; Count III, pointing a

firearm at another, a Level 6 felony; and Count IV, possession of a narcotic

drug, a Level 6 felony. On October 23, 2017, the State amended the charging

Information to include Count V, possession of a narcotic drug, a Level 5 felony;

and Counts VI and VII, resisting law enforcement, Class A misdemeanors. On

October 23, 2017, the State once more amended the charging Information to

include Count VIII, a firearm enhancement charge. The State’s last

amendment to the charging Information was on November 14, 2017, when it

added Count IX, possession of cocaine while armed with a firearm, a Level 3

felony. [9] A bifurcated jury trial was held on December 17 through December 19, 2018.

During the first phase, the jury heard evidence on all Counts except for the

firearm enhancement charge. At trial, the charges were re-numbered as

follows: Count V, Class A misdemeanor resisting law enforcement (formerly

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Count VI); Count VI, Class A misdemeanor resisting law enforcement

(formerly Count VII); and Count VII, Level 3 felony possession of cocaine

while armed with a firearm (formerly Count IX). [10] At the close of the evidence, the jury found Riley guilty on all Counts except

Count IV, possession of a narcotic drug, a Level 6 felony. The trial court then

dismissed the jury. During the second phase pertaining to the firearm

enhancement charge in Count VIII, Riley admitted to the charge but reserved

his right to appeal. The trial court accepted Riley’s admission and stated

Well, I’m going to accept, um, your statement here and I’m going to find that under Count VIII[,] that you knowingly pointed a firearm at a person that you knew or should have known was a police officer and you did that in the course of the commission of another offense.

(Tr. Vol. II, p. 64). [11] On January 16, 2019, the trial court conducted a sentencing hearing. The trial

court merged Count II (Class A misdemeanor carrying a handgun without a

license) with Count VII (Level 3 felony possession of cocaine and firearm). The

trial court also merged Count VI (Class A misdemeanor resisting law

enforcement) with Count I (Level 6 felony resisting law enforcement). Due to

double jeopardy concerns, the trial court did not enter a judgment of conviction

as to Count III, Level 6 felony pointing a firearm at another. The trial court

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then attached the firearm enhancement to the Level 3 felony possession of

cocaine while armed with a firearm. 2 [12] The trial court subsequently ordered Riley to serve concurrent terms of one year

on Count I, Level 6 felony resisting law enforcement; one year on Count V,

Class A misdemeanor resisting law enforcement; and three years on Count VII,

Level 3 felony possession of cocaine while armed with a firearm. Due to

Riley’s admission to the firearm enhancement charge, the trial court enhanced

Riley’s sentence for the Level 3 felony possession of cocaine while armed with a

firearm by nine years, suspending two years, for an aggregate sentence of twelve

years. [13] Riley now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [14] When reviewing a claim of insufficient evidence, it is well-established that our

court does not reweigh evidence or assess the credibility of witnesses. Walker v.

State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all the evidence,

and any reasonable inferences that may be drawn therefrom, in a light most

favorable to the verdict. Id. We will uphold the conviction “‘if there is

2 The trial court noted that pursuant to the holding in Nicoson v. State, 938 N.E.2d 660, 661 (Ind. 2010), it was permitted to attach the “enhancement appropriately” to Riley’s Level 3 felony possession of cocaine while armed with a firearm. (Tr. Vol. II, p. 72). In Nicoson, the defendant was charged with, and convicted of criminal confinement with a deadly weapon, a Class B felony, because he was armed with a deadly weapon. Id. The trial court enhanced the sentence for that offense pursuant Indiana Code section 35-50-2-11 because the defendant “used” a firearm while committing the offense. Id.

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substantial evidence of probative value supporting each element of the crime

from which a reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178

(Ind. 2004)). Indiana Code section 35-47-4-3(b) provides that “a person who

knowingly and intentionally points a firearm at another person commits a Level

6 felony.” [15] Riley argues that the State did not present sufficient evidence beyond a

reasonable doubt to sustain his conviction for Count III, pointing a firearm at

another, a Level 6 felony. We initially note that while the jury found Riley

guilty of this charge, due to double jeopardy concerns, the trial court did not

enter a judgment of conviction. The State correctly argues that therefore Riley’s

challenge on appeal is moot. [16] “Mootness arises when the primary issue within the case ‘has been ended or

settled, or in some manner disposed of, so as to render it unnecessary to decide

the question involved.’” C.J. v. State, 74 N.E.3d 572, 575 (Ind. Ct. App. 2017).

In other words, when a court is not able to render effective relief to a party, the

case is deemed moot and subject to dismissal. Id. [17] At sentencing, the parties discussed whether certain convictions were barred by

double-jeopardy. The trial court found that Count III, pointing a firearm at

another, which is the sufficiency claim Riley discusses, should be vacated based

on double-jeopardy grounds. Following the parties’ arguments, the trial court

did not enter a judgment of conviction as to that Count. Thus, we find Riley’s

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sufficiency claim for his Level 6 felony pointing a firearm at another conviction

is moot. [18] Notwithstanding the mootness of his argument, to the extent he argues the

evidence is insufficient to his Level 6 felony pointing a firearm at another,

during the foot chase, we note that the evidence reflects that Riley reached into

his waistband and pulled out a semi-automatic handgun and pointed it toward

Officer Drury. Officer Bayles who was running behind Officer Drury also saw

Riley holding the gun and repeatedly yelled to warn Officer Drury that Riley

had a gun. This was sufficient evidence to establish beyond a reasonable doubt

that Riley pointed a firearm at Officer Drury.

CONCLUSION [19] Based on the foregoing, we hold that Riley’s sufficiency claim as to his Level 6

felony pointing a firearm at another is moot since the trial court did not enter a

judgment of conviction as to that charge. Moreover, to the extent that he

challenges his sufficiency of the evidence to that Count, we conclude that there

was sufficient evidence beyond a reasonable doubt that Riley pointed a firearm

at Officer Drury. [20] Affirmed. [21] Vaidik, C. J. and Bradford, J. concur

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