Lonnie Garner v. State of Indiana (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    FILED
    Pursuant to Ind. Appellate Rule 65(D), this                              May 14 2018, 10:28 am
    Memorandum Decision shall not be regarded as
    precedent or cited before any court except for the                            CLERK
    Indiana Supreme Court
    purpose of establishing the defense of res judicata,                         Court of Appeals
    and Tax Court
    collateral estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Victoria L Bailey                                        Curtis T. Hill, Jr.
    Marion County Public Defender Agency                     Attorney General of Indiana
    Indianapolis, Indiana
    Lee M. Stoy
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Lonnie Garner,                                           May 14, 2018
    Appellant-Defendant,                                     Court of Appeals Case No.
    49A04-1711-CR-2543
    v.                                               Appeal from the Marion Superior
    Court.
    The Honorable Elizabeth Christ,
    State of Indiana,                                        Judge.
    Appellee-Plaintiff.                                      Trial Court Cause No.
    49G24-1509-F6-34661
    Darden, Senior Judge
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2543 | May 14, 2018               Page 1 of 6
    Statement of the Case
    [1]   Lonnie Garner appeals his conviction by jury of criminal mischief, a Class B
    1
    misdemeanor. We affirm.
    Issue
    [2]   Garner raises one issue, which we restate as: whether there is sufficient
    evidence to sustain his conviction.
    Facts and Procedural History
    [3]   On the night of September 27, 2015, Officer Michael Deskins of the
    Indianapolis Metropolitan Police Department (IMPCL) was sitting in his
    marked patrol car in a parking lot, writing a report. He saw a van drive through
    a red light while speeding. Deskins followed the van and activated his red and
    blue emergency lights.
    [4]   The driver of the van, who was later identified as Garner, stopped the van, but
    he did not put the transmission in park or turn off the engine. From his car,
    Deskins activated a spotlight and saw Garner’s face as Garner looked into a
    rearview mirror. There was another person in the van as well.
    [5]   Officer Deskins thought that Garner might be preparing to flee and radioed
    other officers to place them on alert. Next, Deskins got out of his car, but as he
    1
    Ind. Code § 35-43-1-2(a) (2014).
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2543 | May 14, 2018   Page 2 of 6
    approached the van, Garner slowly drove away. Deskins returned to his car
    and gave chase as Garner accelerated. Deskins also activated his siren and
    requested assistance from other officers.
    [6]   Garner made several sudden turns in an attempt to throw off pursuit.
    Eventually, Officer Deskins’ supervisor ordered Deskins to stop chasing Garner
    because Garner was driving toward an area where many pedestrians might be
    present. Deskins turned off his emergency lights and siren but continued to
    follow Garner as he drove through an alley. After several seconds Deskins saw
    a large flash, followed by the sound of a loud crash. The top of a utility pole
    was on fire, and a power line had fallen to the ground.
    [7]   As Officer Deskins arrived at the scene, he saw that “an IPL light pole” had
    fallen to the ground, pulling down power lines with it. Tr. Vol. II, p. 44. In
    addition, a service line that had connected the pole to a nearby house had been
    pulled away from the house, tearing off a portion of the house’s exterior wall.
    The van had collided with a parked vehicle, a white SUV, after hitting the pole.
    The van was empty. Residents of nearby houses came outside, but Deskins
    warned them to stay back because the downed power lines were still live.
    [8]   Next, one of Deskins’ fellow officers notified him by radio that the officers had
    detained two suspects. He walked to the officers’ location and saw Garner in
    handcuffs. Later, an “IPL utility truck” arrived at the alley and deactivated the
    downed power lines. 
    Id. at 46.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2543 | May 14, 2018   Page 3 of 6
    [9]    The State charged Garner with resisting law enforcement as a Level 6 felony,
    two counts of criminal mischief (one for the damaged utility pole and power
    lines, another for the damaged house), both as Class A misdemeanors, and one
    count of leaving the scene of an accident as a Class B misdemeanor. The case
    was tried to a jury.
    [10]   After the State rested its case, Garner moved for a directed verdict. The trial
    court reduced the criminal mischief counts to Class B misdemeanors. In
    addition, the trial court dismissed the charge of leaving the scene of an accident.
    The jury determined Garner was guilty of resisting law enforcement and the
    two counts of criminal mischief. The trial court imposed a sentence, and
    Garner now appeals his conviction of Count II, criminal mischief, for damaging
    the utility pole and power lines.
    Discussion and Decision
    [11]   Garner challenges the sufficiency of the evidence to support one of his
    convictions of criminal mischief. When an appellate court reviews the
    sufficiency of the evidence needed to support a criminal conviction, it neither
    reweighs evidence nor judges the credibility of witnesses. Tin Thang v. State, 
    10 N.E.3d 1256
    , 1258 (Ind. 2014). It is the fact-finder’s role, not that of appellate
    courts, to assess witness credibility and weigh the evidence. Drane v. State, 
    867 N.E.2d 144
    , 146 (Ind. 2007). Thus, appellate courts consider only the probative
    evidence, and reasonable inferences drawn from the evidence, that support the
    judgment. Fajardo v. State, 
    859 N.E.2d 1201
    , 1208 (Ind. 2007). We will uphold
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2543 | May 14, 2018   Page 4 of 6
    a conviction if there is substantial evidence of probative value from which a
    fact-finder could have found the defendant guilty beyond a reasonable doubt.
    Murray v. State, 
    761 N.E.2d 406
    , 408 (Ind. 2002). A conviction may be
    sustained based on circumstantial evidence alone. Lindhorst v. State, 
    90 N.E.3d 695
    , 701 (Ind. Ct. App. 2017).
    [12]   To obtain a conviction for criminal mischief as a Class B misdemeanor as
    charged, the State was required to prove beyond a reasonable doubt that: (1)
    Garner (2) recklessly, knowingly, or intentionally (3) damaged or defaced
    power lines and a utility pole belonging to Indianapolis Power and Light (IPL)
    (4) without the consent of IPL. Ind. Code § 35-43-1-2.
    [13]   Garner does not dispute striking the utility pole, thereby damaging it and the
    attached power lines. He instead claims the State failed to present direct
    evidence to prove the pole and lines belonged to IPL. Garner did not raise the
    issue of ownership of the utility pole during trial or in his closing argument to
    the trial court and jury. Further, there is no evidence in the record that Garner
    specifically moved the trial court, pursuant to Trial Rule 50, for judgment on
    the evidence or directed verdict regarding the State’s alleged lack of proof of
    ownership of the pole. To the contrary, during closing arguments he described
    the utility pole and power lines as “IPL property.” Tr. Vol. II, p. 136.
    [14]   The three primary indicia of ownership of personal property are title,
    possession, and control. Womack v. State, 
    738 N.E.2d 320
    , 324 (Ind. Ct. App.
    2000), trans. denied. Officer Deskins, without objection, testified at trial and
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2543 | May 14, 2018   Page 5 of 6
    identified the utility pole as belonging to IPL. Garner now argues on appeal
    that the State failed to establish a basis for the officer to know who owned the
    pole. We disagree. Deskins had been an IMPD officer for several years and
    had ample opportunity to learn who owned utility poles and power lines in his
    patrol area. In addition, it is undisputed that Deskins was at the scene of the
    incident and observed an IPL truck arrive at the alley to turn off the power to
    the downed lines. The jury, consisting of citizens from Marion County, could
    reasonably infer IPL’s ownership of the pole and the power lines from IPL’s
    attempt to mitigate the harm caused by the downed power lines. The State
    provided sufficient circumstantial evidence of IPL’s ownership of the utility
    pole and power lines, and Garner’s claim must fail.
    Conclusion
    [15]   For the reasons stated above, we affirm the judgment of the trial court.
    [16]   Affirmed.
    Mathias, J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2543 | May 14, 2018   Page 6 of 6
    

Document Info

Docket Number: 49A04-1711-CR-2543

Filed Date: 5/14/2018

Precedential Status: Precedential

Modified Date: 5/14/2018