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
of the Case
Michael Norris ("Norris") appeals his convictions
following a bifurcated jury trial for Level 4 felony
possession of a firearm by a serious violent felon,
Level 6 felony resisting law enforcement,  and Class A
misdemeanor resisting law enforcement. 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.
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.
We affirm in part, reverse in part, and remand with
Whether the prosecutor's statement during closing
argument constitute prosecutorial misconduct.
Whether the two resisting law enforcement convictions violate
the continuous crime doctrine.
Whether the trial court improperly sentenced Norris.
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.
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.
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).
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. 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.
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
(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
(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 ...