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Norris v. State

Court of Appeals of Indiana

November 14, 2018

Michael Norris, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court The Honorable Alicia Gooden, Judge The Honorable Richard E. Hagenmaier, Commissioner Trial Court Cause No. 49G21-1702-F4-4925

          Attorney for Appellant Megan Shipley Marion County Public Defender Agency Indianapolis, Indiana.

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana.

          Pyle, Judge.

         Statement of the Case

         [¶1] Michael Norris ("Norris") appeals his convictions following a bifurcated jury trial for Level 4 felony possession of a firearm by a serious violent felon, [1] Level 6 felony resisting law enforcement, [2] and Class A misdemeanor resisting law enforcement.[3] Norris argues that: (1) the State committed prosecutorial misconduct during closing argument; (2) the two convictions for resisting law enforcement violate the continuous crime doctrine; and (3) the trial court improperly sentenced him.

         [¶2] We conclude that the State did not commit prosecutorial misconduct; Norris' misdemeanor conviction for resisting law enforcement violates the continuous crime doctrine; and the trial court did not improperly sentence Norris. The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions for the trial court to vacate the Class A misdemeanor resisting law enforcement conviction and enter a new sentencing order and abstract of judgment to reflect the vacated conviction.

         [¶3] We affirm in part, reverse in part, and remand with instructions.

         Issues

         1. Whether the prosecutor's statement during closing argument constitute prosecutorial misconduct.

         2. Whether the two resisting law enforcement convictions violate the continuous crime doctrine.

         3. Whether the trial court improperly sentenced Norris.

         Facts

         [¶4] At approximately 4:00 a.m. on February 4, 2017, officers from the Beech Grove Police Department responded to a report of a disturbance at a residence. Officer Lee Huffman ("Officer Huffman") arrived on scene and was directed to a vehicle that was stopped in an alley behind the residence. Officer Huffman observed a silver van in the alley pull away and drive northbound. He followed the van and using his in-car radar unit, determined that the van was traveling forty-eight (48) miles per hour in an area with a speed limit of twenty-five (25) miles per hour. Officer Huffman initiated a traffic stop and activated the emergency lights on his marked police car. The van did not stop and accelerated to a higher speed. Officer Huffman then turned on his siren. The van continued driving at a high rate of speed and eventually crashed into a tree.

         [¶5] Norris, the driver and sole occupant, stumbled out of the van. Officer Huffman observed Norris "reaching into his waistband area or pockets." (Tr. 118). Officer Huffman could not tell exactly what he was reaching for, but "he was reaching for something." (Tr. 118). Norris then fled northbound toward a tree line and Officer Huffman, who was in a fully marked police uniform, "yell[ed] at him to stop, get on the ground, police." (Tr. 117). As Norris fled, Officer Huffman observed Norris toss an object near a tree. Officer Huffman could not see what the object was. Norris ran to a ravine, where he jumped and rolled down it. Officer Huffman pursued Norris and was able to apprehend him.

         [¶6] Officer Huffman returned to the scene of the accident with Norris and informed an assisting officer of the "general area" where he had seen Norris throw an object to the ground. (Tr. 120, 135). The assisting officer located a Smith & Wesson nine-millimeter handgun next to a tree on top of some leaves "within seconds" of Officer Huffman advising of the area where the object was thrown. (Tr. 136).

         [¶7] On February 6, 2017, the State charged Norris with: Count I, unlawful possession of a firearm by a serious violent felon, a Level 4 felony; Count II, resisting law enforcement, a Level 6 felony; Count III, possession of a controlled substance, a Level 6 felony; and Count IV, resisting law enforcement, a Class A misdemeanor.[4] A one-day bifurcated jury trial was held on November 30, 2017. The jury was instructed that in the first phase of the trial, it would determine whether Norris knowingly or intentionally possessed a firearm as charged in Count I and on the two resisting law enforcement counts. The jury was also instructed that it would determine whether the possession of a firearm was legal or illegal during the second phase of the trial.

         [¶8] The prosecutor argued the following during closing arguments for the first phase of the trial:

Now we get to the possession of the firearm. Is Mr. Norris the unluckiest man in Beech Grove that on this day, he decides that he's going to flee from police in [a] car, crashes that car, runs on foot, and then rolling down a ravine, and then, lo and behold, just where he happens to be after doing that, there's a gun that he's not allowed to possess - that it's unlawful for him to have.

(Tr. 160) (emphasis added). Counsel for Norris objected, stating, "[t]here's no evidence that it's unlawful. That's the whole point of bifurcating the trial." (Tr. 160). He requested an admonishment and also moved for a mistrial "just for the purposes of making the record." (Tr. 161). The trial court admonished the jury as follows:

All right. Ladies and gentlemen of the jury, the only issue as far as the gun is whether he possessed it at this point. Whether it was unlawful or not has not yet been determined, and that will be covered in the instructions. Okay? All right.

(Tr. 161). The prosecutor then argued to the jury, without objection, that the reason, "[Norris] fled after that accident knowing it was - he was injured - because he had to get rid of a gun, and that's what he did." (Tr. 162). Counsel for Norris then argued in closing:

There's a lot of reasons why a young black man might run, even before he knows that it's a police officer. He's sitting in an alley. He sees a car creeping up behind him. That doesn't mean that he's running because he's got this gun. There's all kinds of reasons that he could be running, none of them right, but still reasons.

(Tr. 168). On rebuttal, the prosecutor argued, "he has a gun he is not supposed to have. He needed to get it - needed to get it away from his body." (Tr. 171). Counsel for Norris again objected, and the ...


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