BROWN, Judge.
Damon Gee appeals his convictions for possession of a stolen vehicle as a class D felony and possession of a firearm by a serious violent felon as a class B felony and his adjudication as an habitual offender. Gee raises three issues which we revise and restate as:
We affirm.
The relevant facts follow. On November 12, 2011, Marion Police Officer Darrell Jackson arrived at an apartment complex in Marion, Indiana, after being dispatched there to investigate a disturbance or battery. Officer Jackson knocked at the door, and Gee answered the door and allowed him to enter. Officer Jackson spoke with Gee and his girlfriend, "found out everything was okay," and offered to give Gee a "ride to go where he wanted" because it is common to separate parties who had been arguing, and Gee accepted the offer. Transcript at 163. Officer Jackson instructed Gee to sit in the back seat because his front passenger seat was cluttered with items and Gee entered the back passenger's side and "was calm." Id. at 165. Officer Jackson then heard the "chirp" of a keyless remote locking a vehicle and his attention was directed to a black pickup truck parked outside of the apartment complex.
Officer Jackson eventually discovered another VIN on the truck and attempted to run a check on the number, but he read the number incorrectly and "it came back not on file."
Officer Jackson and Sergeant Artis searched the vehicle and discovered two identification cards for Gee from Kentucky and Indiana, letters addressed to Gee, and a box of ammunition and a holster. Sergeant Artis told Officer Jackson that he suspected that a gun was also in the truck, and Sergeant Artis then heard Gee, who was sitting in the back of Officer Jackson's police car, state that "[i]f there is a gun, it's in the back."
Officer Kyle Griffith was dispatched to the scene to transport Gee to jail, and as Officer Griffith was walking Gee to his police car Gee complained that one of the cuffs was too tight and asked that it be loosened. When Officer Griffith attempted to loosen the handcuff, Gee pulled the hand from behind his back and placed it on the hood of Officer Griffith's car. Officer Griffith ordered Gee to place the hand back behind his back, but Gee refused. Gee then shoved Officer Griffith into Sergeant Artis and started running. Officer Griffith pursued Gee into a wooded area where he eventually caught Gee. Officer Griffith attempted to apply a taser, but Gee was able to grab it and began to turn it towards the officer. Officer Griffith struck Gee and forced him to drop the taser and eventually was able to secure him. The keys to the pickup truck were recovered from Gee.
On November 14, 2011, the State charged Gee with Count I, possession of a firearm by a serious violent felon as a class B felony; Count II, possession of a stolen vehicle as a class D felony; Count III, resisting law enforcement as a class A misdemeanor; Count IV, resisting law enforcement as a class A misdemeanor; and Count V, escape as a class C felony. An initial hearing was held on November 15, 2011, and the court set the omnibus date for January 15, 2012 and a jury trial for January 24, 2012 as a fast and speedy trial. On January 13, 2012, Gee filed a motion to suppress statements by him made prior to being Mirandized. Gee also filed a request for a bifurcated trial. On January 17, 2012, the State filed an habitual offender charging information. On January 19, 2012, following a hearing, the court granted Gee's motion to suppress in part but denied the motion in part regarding his statement that "[i]f there's a gun, it's in the back," ruling that the statement was a "spontaneous utterance" and "was not made in response to improper police questioning." Appellant's Appendix at 37.
The court held a jury trial beginning on January 24, 2012, which consisted of three phases. Phase one concerned Counts II-V in which evidence consistent with the foregoing was presented, and at one point the State orally moved to dismiss Count III which the court granted. On January 25, 2012, the jury found Gee guilty as charged on Counts II, IV, and V. The court then proceeded with phase two of the trial concerning Count I, and the jury found Gee guilty under Count I.
On January 26, 2012, prior to the start of phase three of the jury trial, the State filed an amended habitual offender enhancement which did not contain two of the four unrelated convictions contained in the original habitual offender information and which Gee objected to as untimely and requested a continuance. The court overruled both the objection and request. The court commenced phase three, and the jury determined that Gee was an habitual offender. On March 5, 2012, the court held a sentencing hearing and sentenced Gee to twenty years on Count I, possession of a firearm by a serious violent felon, which was enhanced by twenty years due to the habitual offender adjudication for a total of forty years. The court also sentenced Gee to three years for possession of a stolen vehicle, one year for resisting law enforcement, and eight years for escape, and it ordered that Gee serve his sentences concurrently but consecutively to another sentence stemming from a probation violation. Thus, Gee was ordered to serve forty years in the Department of Correction.
The first issue is whether the evidence was sufficient to sustain Gee's conviction for possession of a stolen vehicle.
The offense of possession of a stolen vehicle, also known as receiving stolen auto parts, is governed by Ind. Code § 35-43-4-2.5(c) which provides in relevant part that "[a] person who knowingly or intentionally receives, retains, or disposes of a motor vehicle or any part of a motor vehicle of another person that has been the subject of theft commits receiving stolen auto parts, a Class D felony. . . ." Thus, to sustain a conviction for possession of a stolen vehicle as a class D felony the State was required to prove that Gee knowingly or intentionally received, retained or disposed of the black pickup truck which had been the subject of theft.
Gee argues that "[w]hen receiving or possession of stolen property is charged, the unexplained possession must be accompanied by additional circumstances which support the inference that the accused actually knew that the property was stolen." Appellant's Brief at 6 (citing
The record reveals that when Officer Jackson offered to drive Gee to wherever he wanted following the argument, Gee accepted Officer Jackson's offer despite the fact that the pickup truck which he had been driving was parked outside and Gee had a key to the truck in his pocket. Gee was initially calm when interacting with Officer Jackson, but after Officer Jackson's attention was focused on the truck Gee's mannerisms changed and he "started fidgeting around in [the] vehicle and acting a little nervous." Transcript at 166. After Officer Jackson told Gee that the VIN was not on file, Gee "calmed down and started talking normally . . . ."
Based upon our review of the record, we conclude that evidence of probative value exists from which the jury could have found Gee guilty beyond a reasonable doubt of possession of a stolen vehicle.
The second issue is whether the court abused its discretion in admitting a statement by Gee. The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion.
Gee argues that "[i]t might not be possible to determine the exact moment that his status became `in custody,' but clearly that could be no later than when Officer Jackson placed handcuffs upon him," and he notes that "the State appears to agree that the statement in question[] was given while [he] was in custody . . . ." Appellant's Brief at 7. Gee argues that the police had already been asking Gee "multiple questions" by the time he made the purported statement, arguing: "They initially inquired as to what was going on?; Where he wanted to go?; Would he get into the officer's back seat?; What was the situation between him and the black truck?"
The State argues that although he was in custody and handcuffed, Gee's statement was not a response to a police question and accordingly it is not protected by the Fifth Amendment. The State argues that "[t]he questions he offers as the `interrogation' are hardly questions that fit within the definition of `interrogation,'" noting that they were not "designed to elicit any incriminating response" and were "innocuous at best . . . ." Appellee's Brief at 11-12. The State also argues that even if the court's ruling was in error, such error is harmless because the statement was ambiguous and was "hardly a definitive admission."
Initially, we note that to the extent Gee argues on appeal that the court erred in determining that he made a voluntary or spontaneous utterance regarding a gun being potentially located in the back of the pickup truck, such argument is merely an invitation that we reweigh the evidence and judge the credibility of the witnesses, which we will not do.
Regarding Gee's suggestion that the statement should have been suppressed because it was given prior to receiving his
Here, the record reveals that while Officer Jackson and Sergeant Artis searched the vehicle, Sergeant Artis located a box of ammunition and a holster. Sergeant Artis then told Officer Jackson that he suspected that a gun was also in the truck, and he then heard Gee, who was sitting in the back of Officer Jackson's police car, state that "[i]f there is a gun, it's in the back." Transcript at 279. Gee's statement was volunteered and unsolicited, and thus the
The third issue is whether the trial court abused its discretion in allowing the State to amend the habitual offender information. Ind. Code § 35-34-1-5(e) provides:
In this case, the initial habitual offender information was filed on January 17, 2012, or two days after the omnibus date, alleged that Gee had "accumulated at least two (2) prior unrelated felony convictions," and listed four convictions as follows: (1) a 1997 conviction for carrying a handgun without a license with prior felony conviction as a class C felony; (2) a 1998 conviction for theft as a class D felony; (3) a 1996 conviction for receiving stolen property as a class D felony; and (4) convictions of four counts of armed robbery as class B felonies in 2001. On January 26, 2012, prior to phase three of Gee's trial, the State moved to amend the charging information by omitting the 1996 and 2001 convictions and instead relying solely on the 1997 and 1998 convictions. Gee objected to the State's motion as untimely and requested a continuance, and the court overruled both the objection and request. Gee was found by the jury to be an habitual offender.
Gee argues that the State's response to his objection and request for a continuance did not rise to the level of "good cause" as required by the statute, "particularly since it was done only thirty minutes or so[] before the scheduled hearing." Appellant's Brief at 8-9. Gee also argues that the State's act of amending the habitual offender charge "deprived [him] of a defense based upon [an] unauthorized `double enhancement' that would have entitled [him] to a reversal" of the habitual offender determination because it omitted armed robbery convictions from 2001 "which were utilized by the State the day before to enhance possession of the handgun up to a class B felony."
The State argues that Gee's argument has no merit because the unrelated prior felony convictions contained in the amended habitual offender charge "were wholly included in the initial charge; thus, no additional preparation was necessary." Appellee's Brief at 14. The State admits that Gee is correct that it "was precluded from using the prior armed robbery conviction[s] as an undergirding prior conviction for both the serious violent felony charge and the habitual offender allegation," but it argues that he does not demonstrate prejudice because "even had the State used the armed robbery conviction as an extra prior felony conviction to support the habitual offender charge, this would not have resulted in vacating the jury's determination that [he] is a habitual offender" because it would have constituted "nothing more than harmless surplusage," and that, in any event, "it should never be viewed as error for the State to follow the law."
"By permitting the State to file the habitual offender count, the trial court impliedly found good cause."
Here, the State had good cause for amending the habitual offender count because it was merely making clear for the jury what it intended to prove at phase three, and the other two charges contained in the original habitual offender information were muddying the waters in that regard. Gee was on notice that the 1997 and 1998 convictions could be used to prove that he was an habitual offender based upon the initial information; consequently, there can be no prejudice in this regard. To the extent that Gee argues that he was prejudiced by being deprived of a potential "double enhancement" defense, we note that where the State offers "proof of more than two prior convictions," the "additional convictions [are] considered to be harmless surplusage."
For the foregoing reasons, we affirm Gee's convictions for possession of a stolen vehicle as a class D felony and possession of a firearm by a serious violent felon as a class B felony and his adjudication as an habitual offender.
Affirmed.
BAILEY, J., and VAIDIK, J., concur.