Idowa Dontray Hood v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Apr 18 2016, 8:28 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone, IV Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Idowa Dontray Hood, April 18, 2016
Appellant-Defendant, Court of Appeals Case No.
48A02-1509-CR-1382
v. Appeal from the Madison Circuit
Court.
The Honorable David A. Happe,
State of Indiana, Judge.
Appellee-Plaintiff. Cause Nos. 48C04-1306-FC-1236,
48C04-9710-CF-210
Friedlander, Senior Judge
[1] Idowa Dontray Hood appeals from the trial court’s order revoking his
probation in two cause numbers and imposing his previously suspended
sentence, contending that there is insufficient evidence to establish that he
possessed a firearm. We affirm.
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[2] In 1998, Hood pleaded guilty to one count of class B felony burglary for which
he received an eight-year sentence, with two years suspended to probation
under cause number 48C04-9710-210. In 2014, Hood pleaded guilty to one
count of battery resulting in bodily injury and one count of invasion of privacy,
each Class A misdemeanors, in cause number 48C04-1306-FC-1236. In 1236,
Hood received consecutive one-year sentences suspended to probation, to be
served consecutively to his probation in 210.
[3] In July 2015, Hood was serving his probation under 210, but had not yet begun
to serve his probation in 1236. Execution of Hood’s probation in 210 was
delayed due to a subsequent conviction for arson, as well as a prior probation
violation in 210 and the arson case. See Hood v. State, No. 48A02-1309-CR-828
(Ind. Ct. App. May 28, 2014).
[4] On July 16, 2015, additional officers were requested to assist in the
investigation of a white Chevrolet van that had been in involved in a “hit/skip”
accident. Tr. pp. 8-9. Officer Gabe Bailey responded to the request for
assistance. When he arrived at the scene, he observed that an officer had the
driver of the van out of the vehicle. He also observed Hood seated in the front
passenger seat of the van. Hood had been named as a suspect in the shooting of
a dog a few days earlier.
[5] The paper license plate on the van was visibly altered, expired, and was
registered to a different vehicle, a Buick. During an inventory of the van,
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officers found a .44 caliber revolver containing one live round and one spent
casing under the front passenger seat where Hood had been sitting.
[6] Hood was arrested for possession of the gun. After he was arrested, he asked to
speak to a detective about the incident involving the recent shooting of a dog.
He received his Miranda warnings from Detective Norman Rayford, then
admitted to possessing a handgun during the July 12, 2015 incident involving
the dog, maintaining that he shot the dog in self-defense. Hood denied that the
handgun found under the seat of the van was his, though, claiming that he
came into contact with the gun found under his seat at the time of the traffic
stop when he reached down to hide a beer from officers. Hood did, however,
admit that he owned .44 caliber ammunition.
[7] The Madison County Probation Department filed notices of probation violation
under both 1236 and 210 on July 24, 2015. The notices alleged that Hood had
violated the terms of his probation by committing the new criminal offense
“Unlawful Possession of a Firearm by a Serious Violent Felon[], as filed in
Madison County Circuit Court, Division IV under cause numbers(s): 48C04-
15007-F4-001102.” Appellant’s App. p. 115. A combined hearing on the
alleged violations was held on August 17, 2015 at the conclusion of which the
trial court found that Hood had violated the terms of his probation under both
causes. When asked by defense counsel if the court was “finding that it
happened as specifically alleged,” the trial court responded that it was “finding
the violation as stated.” Tr. p. 23. The trial court revoked Hood’s probation
and ordered Hood’s aggregate sentence of two years under 1236 be executed in
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the Department of Correction. The trial court’s order states that on the
evidence presented the trial court found Hood had “violated the conditions of
his probation as alleged.” Appellant’s App. p. 16. Hood now appeals.
[8] A probation revocation hearing is civil in nature, and the alleged violation must
be proven by the State by a preponderance of the evidence. Mateyko v. State,
901 N.E.2d 554 (Ind. Ct. App. 2009), trans. denied. When reviewing a claim of
insufficient evidence to support a trial court’s decision to revoke probation, we
consider only the evidence most favorable to the judgment, and we neither
reweigh the evidence nor judge the credibility of witnesses. Id. Revocation is
appropriate if there is substantial evidence of probative value to support the trial
court’s conclusion that the probationer has violated the terms of probation.
Lightcap v. State, 863 N.E.2d 907 (Ind. Ct. App. 2007). It is well settled that the
violation of a single condition of probation is sufficient to support revocation.
Gosha v. State, 873 N.E.2d 660 (Ind. Ct. App. 2007).
[9] Where a defendant is alleged to have violated probation by committing a new
offense, the State need not show that the defendant was convicted of a crime to
support the revocation of probation. Lightcap v. State, 863 N.E.2d 907.
“Although an arrest standing alone does not necessarily support a revocation of
probation, where there is evidence submitted at the hearing from which the trial
court could find that an arrest was reasonable and that there is probable cause
for belief that the defendant violated a criminal law, revocation of probation is
permitted.” Id. at 911.
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[10] Possession of a firearm may be actual or constructive. Causey v. State, 808
N.E.2d 139 (Ind. Ct. App. 2004). Here, the issue is whether Hood
constructively possessed the handgun found under his seat in the van. We will
find that constructive possession occurs when the person has the intent and
capability to maintain dominion and control over the firearm. Id.
[11] With respect to intent to commit this offense, the State is required to
demonstrate the defendant’s knowledge of the presence of the firearm. Id.
Testimony at the hearing established that Hood was aware of the presence of
the firearm. He told Detective Rayford that he came into contact with the gun
when he reached under the passenger seat of the van to hide a beer from police
officers during the traffic stop. The evidence is sufficient to establish the
element of intent.
[12] As for the ability to establish a defendant’s dominion and control over a
firearm, several types of evidence may be used. Among those types of evidence
are: (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. Id. Additionally, the State must also
present evidence demonstrating a defendant’s capability to exercise control over
the firearm, including the ability to reduce the firearm to his or her personal
possession or to direct its disposition or use. Id. It bears repeating that our
review of a probation revocation is to ensure that the trial court correctly found
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that an arrest was reasonable and that there is probable cause for belief that the
defendant violated a criminal law. Lightcap v. State, 863 N.E.2d 907.
[13] Although the evidence at the hearing established that Hood did not have
exclusive dominion and control of the white van in which the firearm was
found, did not attempt to flee, or like the facts in Causey, make furtive gestures,
other evidence supports the trial court’s finding. Shortly after his arrest for
possessing the handgun, Hood asked to speak with a detective, and admitted
that he had shot at a dog, just four days before. He also admitted that he
owned .44 caliber ammunition. The firearm, which contained one live shell
and one spent casing, was located underneath Hood’s seat in the van.
Additionally, Hood stated that he made contact with the firearm during the
traffic stop.
[14] Hood’s explanation that he shot the dog in self-defense and that the firearm
underneath his seat of the van was not his was before the trial court and
rejected. We will not reweigh the evidence or reassess the credibility of
witnesses. Mateyko v. State, 901 N.E.2d 554. There is sufficient evidence to
establish by a preponderance of the evidence that Hood had committed the
offense of unlawful possession of a firearm by a serious violent felon by
constructive possession.
[15] Judgment affirmed.
Bailey, J., and Mathias, J., concur.
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