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Wilbourn v. State

Court of Appeals of Indiana

February 19, 2014

TYRONE WILBOURN, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Steven R. Eichholtz, Judge, The Honorable Michael S. Jensen, Magistrate. Cause No. 49G20-1204-FB-21558.

ATTORNEY FOR APPELLANT: MICHAEL G. MOORE, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; RYAN D. JOHANNINGSMEIER, Deputy Attorney General, Indianapolis, Indiana.

BROWN, Judge. ROBB, J., and BARNES, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Tyrone Wilbourn appeals his conviction for possession of a firearm by a serious violent felon. Wilbourn raises three issues which we consolidate and restate as:

I. Whether the admission of evidence related to Wilbourn's prior conviction constituted an abuse of discretion or resulted in fundamental error; and

II. Whether the evidence is sufficient to sustain his conviction.

We affirm.

FACTS AND PROCEDURAL HISTORY

On March 30, 2012, Indianapolis Metropolitan Police Sergeant Paul Vanek responded to a dispatch regarding shots fired in the 4200 block of Crittenden Avenue. Officer Vanek drove around Crittenden Avenue looking for persons or shell casings and observed Wilbourn sitting in the driver's seat of a Dodge Durango. Wilbourn had a " haunted look on his face" and his eyes became enlarged. Transcript at 20. Officer Vanek parked behind the Durango, approached Wilbourn, and said: " Hey, can I talk to you for a minute." Id. at 21. Wilbourn responded by stating: " F you, I didn't call the police." Id. Officer Vanek noticed that Wilbourn was wearing a Detroit Tigers hat. Wilbourn then put his vehicle in gear and sped off northbound. Officer Vanek advised control that the vehicle was fleeing the area.

Indianapolis Metropolitan Police Officer Bradley Scott Dow observed the Durango, drove behind it, and activated his emergency lights and siren. Officer Dow identified the license plate of the Durango, which was later determined to belong to Wilbourn's mother. The Durango accelerated and turned off 43rd Street and went south on Evanston. At some point, Officer James Case and Officer Derik Harper joined the pursuit. The Durango then accelerated, " blew the stop sign," and turned westbound onto 42nd Street. Id. at 31. After making further turns and failing to stop for another stop sign, Wilbourn pulled " out to the right side of the road," and Officer Dow along with a few other officers stopped behind Wilbourn's vehicle with their emergency lights and sirens activated. Id. at 34.

Officer Dow then saw the driver's side of the Durango " fly open" and a black male wearing a brown hoodie and carrying a " high powered rifle or an AK-47 saddle type rifle" exit the vehicle and take off running eastbound. Id. at 38. Officer Dow followed the individual until he jumped a privacy fence. Officer Dow gave the control operator a description of the driver of the vehicle and stated that he believed that the individual had an assault rifle. Officer Harper observed that the individual was wearing a Detroit baseball cap and a brown hoodie. A police dog picked up a track and eventually indicated on a bush. The police officers observed Wilbourn behind the bush and ordered him to show his hands and crawl out to them. Wilbourn did not respond, the K-9 officer used his dog, and Wilbourn, wearing a hoodie, crawled out without further incident. The police checked the area and did not recover a weapon of any sort, but removed a nylon handgun holster from Wilbourn's belt and found his Detroit Tigers hat several feet away.

Indianapolis Police Sergeant Gregory Scott arrived at the scene, and Wilbourn stated that he " has been shot thirteen times and he always carries a gun." Id. at 95. Sergeant Scott read Wilbourn his Miranda rights and questioned him " about the holster obviously that he had had on his belt" and asked him where the gun was, and Wilbourn stated that " it's a forty caliber that he keeps in that and that he left it at his girlfriend's that night." Id. at 96. Sergeant Scott inquired about the rifle, and Wilbourn denied knowledge of any rifle. When asked why he ran from the police, Wilbourn stated that " somebody was shootin' at him and he ran from the police because the police won't help if you are being shot at." Id. at 99.

While in jail, Wilbourn made a phone call to a woman and said " [d]id ya'll find it?" Id. at 125. The woman said, " Yes, uh-huh, it wasn't hard to find," and Wilbourn replied, " Yeah, I just threw it, I didn't figure it would be." Id. Wilbourn stated that he was running and hiding, that the police were chasing him, and that he was hiding in the bushes. He also said that the only reason he ran was because of " that thing in the back." Id. at 127. In a second phone call, Wilbourn asked where it was, and the woman said that " it was taken care of, and that Terry came by and picked it up and that it is safe." [1] Id. at 129.

On April 3, 2012, the State charged Wilbourn with Count I, unlawful possession of a firearm by a serious violent felon as a class B felony; Count II, obstruction of justice as a class D felony; Count III, resisting law enforcement as a class D felony; and Count IV, resisting law enforcement as a class A misdemeanor.

On April 10, 2012, the State filed a notice of discovery compliance which indicated that copies of his certified prior conviction for cause number 49G20-0704-FA-062400 (" Cause No. 62400" ) had been forwarded to defense counsel or made available for review.

On January 28, 2013, Wilbourn filed a waiver of trial by jury. Before the start of the bench trial on March 4, 2013, the parties discussed a possible plea ...


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