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Duncan v. State

Court of Appeals of Indiana

December 19, 2014

CHRISTOPHER DUNCAN, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Page 806

APPEAL FROM THE CASS CIRCUIT COURT. The Honorable Leo T. Burns, Judge. Cause No. 09C01-1108-FA-010.

ATTORNEY FOR APPELLANT: MARK LEEMAN, Cass County Public Defender, Logansport, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; KARL M. SCHARNBERG, Deputy Attorney General, Indianapolis, Indiana.

FRIEDLANDER, Judge. VAIDIK, C.J., and MAY, J., concur.

Page 807

OPINION

FRIEDLANDER, Judge

Christopher Duncan appeals following his convictions of class C felony Attempted Battery by Means of a Deadly Weapon,[1] class D felony Identity Deception,[2] class D felony Pointing a Firearm,[3] class D felony Possession of Marijuana,[4] and class D felony

Page 808

Resisting Law Enforcement.[5] Duncan presents the following restated issues for our review:

1. Did the trial court abuse its discretion in admitting certain evidence?
2. Did the State present sufficient evidence to support Duncan's identity deception conviction?
3. Do Duncan's convictions of attempted battery by means of a deadly weapon, pointing a firearm, and resisting law enforcement violate principles of double jeopardy?

We affirm in part, reverse in part, and remand with instructions.

On August 15, 2011, Indiana State Trooper Joshua Rozzi was on patrol in Logansport in his marked police cruiser. At around 10:30 p.m., after witnessing a vehicle turn without signaling, Officer Rozzi activated his emergency lights and initiated a traffic stop. When Officer Rozzi approached the vehicle, he detected the odor of burnt marijuana. He then made contact with the female driver and male passenger, neither of whom were able to provide identification. The woman identified herself as Gerrie Walker and the man identified himself as George F. Walker, although he was later identified as Duncan. Officer Rozzi returned to his car to run the names he had been given and to call for a canine handler.

Sergeant John Rogers of the Logansport Police Department, a canine handler, arrived within three or four minutes of Officer Rozzi's call. Upon arriving at the scene, Sergeant Rogers conferred with Officer Rozzi, and it was agreed that Trooper Rozzi would take the female driver back to his car while Sergeant Rogers dealt with Duncan. As Sergeant Rogers reached the passenger door of the stopped vehicle, he saw that Sergeant Travis Yike and Officer Nathan Garrison, both of the Logansport Police Department, had arrived and were standing on the sidewalk. Sergeant Rogers also detected the odor of burnt marijuana, and he tapped on the door and asked Duncan to step out of the car. Duncan complied, and when asked if there was anything illegal in the car, responded " Not that I know of." Transcript at 199. At that point, Duncan turned and began walking away from Sergeant Rogers. Duncan disregarded Sergeant Rogers's repeated commands to stop, and instead began to run. Sergeant Rogers, Sergeant Yike, and Officer Garrison all gave chase.

When the foot pursuit began, Sergeant Rogers drew his TASER and readied it for use. As Duncan reached the other side of the street, Sergeant Rogers saw the flash of a gun being fired over Duncan's left shoulder and felt a projectile whiz past the left side of his face. Sergeant Rogers then deployed his TASER and the probes lodged in Duncan's back. Duncan immediately fell to the ground, and as he did so, Sergeant Rogers saw a black handgun fall to the ground. Sergeant Rogers placed his foot on the gun and called out " 10-32," which is the police code for a gun. Id. at 211. Later inspection revealed that the gun was a 9 mm Hi-Point handgun.

Duncan was then transported to the local jail and booked. During the book-in procedure, he again identified himself as " George Walker, Jr." and gave a date of birth of April 6, 1967. When Officer Chad Wagner, who transported Duncan to jail, observed signs of intoxication and asked

Page 809

Duncan if he had been drinking, Duncan responded he had not been drinking, but that he had been smoking marijuana. Additionally, when Duncan overheard Officer Wagner and another officer discussing what charges to list on the jail intake form, Duncan stated that he thought the gun was a BB gun, and that if he had known it was a real gun, he would have turned around and shot at the officers. Officer Wagner later discovered Duncan's true identity. Additionally, when police searched the car in which Duncan had been a passenger, they discovered a bag under the passenger seat containing rolling papers, flavored cigar wraps used for rolling marijuana, numerous partially burnt marijuana cigarettes, and 39.53 grams of marijuana.

A few days after his arrest, Duncan placed a phone call to Gerrie Walker from the jail. Based on that phone conversation, police obtained a search warrant for a vacant house owned by Donald Vernon, Gerrie's stepfather. Inside the garage, police found a black backpack and two black suitcases. In the bags, the officers found Duncan's social security card and birth certificate, along with two marijuana pipes, a marijuana grinder, cigar wraps used for rolling marijuana, a small amount of marijuana, and a bag containing over 80 rounds of 9 mm ammunition.

As a result of these events, Duncan was charged as follows: Count I, attempted murder, a class A felony; Count II, attempted aggravated battery, a class B felony; Count III, attempted battery by means of a deadly weapon, a class C felony; Count IV, identity deception as a class D felony; Count V, pointing a firearm as a class D felony; Count VI, possession of marijuana as a class D felony; and Count VII, resisting law enforcement as a class D felony. A seven-day jury trial commenced on October 28, 2013. Duncan's defense at trial was that he did not intentionally fire at the officers, but that his hands had clenched as a result of being stunned by the TASER, causing him to involuntarily pull the trigger. At the conclusion of the evidence and argument, the jury acquitted Duncan of Counts I and II and convicted him of the remaining counts. Duncan was sentenced to an aggregate term of thirteen years executed. Duncan now appeals.

1.

Duncan first argues that the trial court erred in admitting into evidence the marijuana, drug paraphernalia, and ammunition discovered in the bags located in Donald Vernon's garage. The decision to admit or exclude evidence lies within the trial court's sound discretion. Filice v. State, 886 N.E.2d 24 (Ind.Ct.App. 2008), trans. denied. An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it. Dixon v. State, 967 N.E.2d 1090 (Ind.Ct.App. 2012). We will not reverse absent a showing of manifest abuse of discretion resulting in the denial of a fair trial. Johnson v. State, 831 N.E.2d 163 (Ind.Ct.App. 2005), trans. denied. Moreover, even ...


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