Alford v. State

1

Joseph Alford, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff

No. 22A-CR-2366

Court of Appeals of Indiana

March 9, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the St. Joseph Superior Court The Honorable Jeffrey L Sanford, Judge Trial Court Cause No. 71D03-1812-F4-91

ATTORNEY FOR APPELLANT Scott H. Duerring South Bend, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Indianapolis, Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

Judges Mathias and Bradford concur.

MEMORANDUM DECISION

May Judge.

[¶1] Joseph Alford appeals following his convictions of Level 4 felony possession of a firearm by a serious violent felon ("SVF"),^[1] Class A misdemeanor resisting law enforcement,^[2] and Class B misdemeanor leaving the scene of an accident.^[3]Alford presents one issue for our review, which we revise and restate as whether the trial court committed fundamental error when it responded to questions submitted by the jury during its deliberations by directing the jurors to review the jury instructions previously given to them. We affirm.

Facts and Procedural History

[¶2] At approximately 11:23 p.m. on December 25, 2018, Alford was driving west on Lincoln Way in Mishawaka. Alford drove his vehicle off the roadway and the front passenger side of his vehicle collided with a light post. After hitting the post, Alford's vehicle slid across the roadway and came to a rest facing west in the east bound lane. A nearby homeowner called 911, and Officer Harold Yost of the Mishawaka Police Department responded to the dispatch. Officer Yost noticed the front-right portion of the vehicle was severely damaged, two airbags had deployed, and the windshield was shattered. Officer Yost noticed Alford standing near where the car came to rest. When Officer Yost started to approach Alford, Alford started to back away. He then turned and ran away.

Officer Yost yelled, "Stop. Police." (Tr. Vol. II at 114.) Nevertheless, Alford continued to run away. As Alford was running away, he kept putting his hands in and out of his pockets because, as he later told Officer Yost, "he wanted to make sure he didn't have anything illegal on him." (Id. at 117.)

[¶3] Officer Yost pursued Alford on foot, and Officer Daniel Braniff joined the foot pursuit. Officer Yost and Officer Braniff caught Alford a few blocks away from the crash site, and Officer Yost handcuffed him. Officer Braniff then drove Alford to a local hospital for a medical evaluation, and while enroute to the hospital, Alford told Officer Braniff that "the reason that he left the scene of the crash was because his license was suspended." (Id. at 144.) After the medical evaluation, Officer Braniff transported Alford to jail.

[¶4] Officer Yost and Officer Ryan Kuzmicz conducted an inventory search of Alford's vehicle before impounding it. During the inventory search, the officers found a handgun on the driver's side floorboard, near the gas pedal. The Indiana State Police Lab tested the gun and found Alford's DNA on the trigger and the bottom of the magazine.

[¶5] The State charged Alford on December 27, 2018, with Class A misdemeanor resisting law enforcement, Class B misdemeanor leaving the scene of an accident, and Level 4 felony unlawful possession of a firearm by a SVF. Alford was alleged to be a SVF because of a Class B felony armed robbery^[4] conviction in 2001. The trial court held a two-day jury trial beginning on July 11, 2022.

[¶6] Sunjoi Bradshaw, the mother of one of Alford's children, testified that she, Alford, and her nephew Cameron Lee drove Alford's vehicle from Indianapolis to Mishawaka on December 25, 2018. At some point during the day, Bradshaw and Lee drove from Mishawaka to South Bend to visit Bradshaw's mother, and Alford remained at his sister's house. Bradshaw testified that, before she and Lee went into her mother's house in South Bend, Lee stashed his handgun underneath the driver's seat of Alford's vehicle. After visiting her mother, Bradshaw and Lee returned to Alford's sister's house. Alford then left in his car to visit a friend, and it was on the way to the friend's house that Alford got into the accident. Both Bradshaw and Lee testified they did not tell Alford about the gun that Lee had placed under the driver's seat of Alford's car while at the home of Bradshaw's mother. Lee also explained that Alford had gone with him when he purchased the handgun about three or four days before Christmas and that Alford handled the gun while Lee contemplated purchasing it.

[¶7] During its closing argument, the State recounted the evidence, including Lee's testimony, and the deputy prosecutor said: "So my thought to you and my proposition here is the crime occurred not necessarily on the 25^th of December. The crime occurred three or four days earlier in Indianapolis." (Id. at 210.)

The trial court called a side bar conference, and asked the State: "Don't you have to prove that he possessed a firearm in St. Joseph County?" (Id.) The State responded affirmatively and stated, "I'm working on it." (Id.) The State then concluded its closing argument:

So the question then becomes where did he possess it? Mr. Lee said it was down in Indianapolis. You can believe Mr. Lee or not. You can also believe whether or not he placed the gun in the car here in St. Joseph County. You can also choose to believe whether or not the defendant touched the gun here in St. Joseph County.

I submit, ladies and gentleman, that Mr. Lee and his affinity for guns does not necessarily mean that he placed the gun himself in the car. I think it's an inference that can be made since it's the defendant's car and he's all alone in the car at the time that the defendant touched that gun, placed that gun in the car here in St. Joseph County, and that's what I'm asking you to find today.

(Id. at 211.)

[¶8] After each side finished with its closing argument, the trial court read the final jury instructions, and the jury retired to deliberate. During deliberations, the jury sent three questions to the trial court: "Is the possession charge only related to the time of the accident or evidence presented of possession at any time previously? Does it include the testimony about the purchase in Indianapolis? How to define 'possession'?" (Id. at 231-32.) Without objection from either party, the trial court responded: "So the answer to your first two questions can be found in the instructions. As to the last question, you received all the instructions." (Id. at 232.)

[¶9] The jury returned guilty verdicts on all counts. On September 13, 2022, the trial court sentenced Alford to consecutive terms of six years in the Indiana Department of Correction for his Level 4 possession of a firearm by a SVF conviction, thirty days with respect to his Class A misdemeanor resisting law enforcement conviction, and thirty days with respect to his Class B misdemeanor leaving the scene of an accident conviction, for an aggregate sentence of six years and two months.

Discussion and Decision

[¶10] Alford contends the trial court abused its discretion when it did not further instruct the jury in response to the three questions the jury posed while it was deliberating. We generally leave instructing the jury to the sound discretion of the trial court, and we review such decisions for an abuse of discretion. Schermerhorn v. State, 61 N.E.3d 375 381 (Ind.Ct.App. 2016), trans. denied. "To constitute an abuse of discretion, the instructions given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury." Murray v. State, 798 N.E.2d 895, 900 (Ind.Ct.App. 2003). However, a party that fails to object at trial waives the issue for appellate review unless the error was so substantial as to constitute fundamental error. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013).

[¶11] Alford acknowledges he did not object to the trial court's proposed response before it was given to the jury, and he therefore argues the response amounted to fundamental error. The fundamental error doctrine "is extremely narrow and available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and [when the] violation is so prejudicial to the rights of the defendant as to make a fair trial impossible." Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). "In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue[.]" Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied. To assess whether fundamental error occurred, we look at the alleged error in the context of all that happened at trial and all the information given to the jury- including the evidence admitted at trial, closing arguments, and jury instructions-to determine whether the alleged error had "such an undeniable and substantial effect on the jury's decision that a fair trial was impossible." Id. (emphasis in original).

[¶12] Indiana Code section 34-36-1-6 provides:

If, after the jury retires for deliberation:

(1) there is a disagreement among the jurors as to any part of the testimony, or

(2) the jury desires to be informed as to any point of law arising in the case; the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.

Alford reads that statute to...