Oct 02 2013, 5:43 am
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KAREN M. HEARD GREGORY F. ZOELLER
Vanderburgh County Public Defender’s Office Attorney General of Indiana
Evansville, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RASHEEN MIDDLETON, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1301-CR-8
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Kelli E. Fink, Magistrate
Cause No. 82C01-1201-FA-28
October 2, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Rasheen Middleton appeals from his conviction and sentence for one count of class B
felony Unlawful Possession of Firearm by Serious Violent Felon.1 Middleton presents
several issues for our review, which we restate as follows:
1. Did the trial court err by denying Middleton’s motion for mistrial on the
basis of an alleged Doyle 2 violation?
2. Was the evidence of Middleton’s possession of a handgun sufficient to
sustain his conviction?
3. Was Middleton’s sentence inappropriate in light of the nature of the
offense and the character of the offender?
We affirm.
The evidence most favorable to the jury’s verdict establishes that on January 4, 2012,
Cheryl Lemmons, Middleton’s good friend, was contacted by him to come to an apartment on
Lodge Avenue in Evansville. Middleton told Lemmons that he wanted to borrow some
money from her. Lemmons owned a .357 magnum handgun, which Middleton had
previously asked to buy from her. Lemmons had declined to sell that gun to Middleton, but
later contacted him to let him know about another gun that was available for purchase.
Lemmons took her handgun with her when she drove to meet with Middleton on January 4th.
When Lemmons arrived at the address, she did not see Middleton, but instead, went inside
the apartment and spoke with Middleton’s girlfriend. After nearly twenty minutes, Lemmons
left the apartment and drove home.
1Ind. Code Ann. § 35-47-4-5 (West, Westlaw current with all 2013 legislation).
2
Doyle v. Ohio, 426 U.S. 610 (1976) (use of defendant’s post-Miranda silence for impeachment violates the
Due Process Clause of the Fourteenth Amendment).
2
Later on that same day, several Evansville Police Department Detectives, who were
conducting an investigation, were led to investigate a residence located at 523 South Lodge
Avenue, Apartment B, in Evansville. Upon their arrival, the detectives met with the
homeowner, Ms. Glover, who gave the detectives her written consent to search the residence.
Once the detectives entered the premises, they observed Middleton and his girlfriend,
Christina Smith, lying on the living room sofa and covered with a blanket. In addition, Mr.
Johnson, Ms. Glover’s boyfriend, was present at the house.
Initially, Middleton was lying flat on the sofa face down, while his girlfriend was
lying sideways. Middleton acted as though he had been sleeping and was startled by the
presence of the detectives, and continued to do so while the detectives explained to him why
they were at the house. Detective Paul Jacobs asked Middleton to remove his hands from
under the blanket for officer safety reasons. At first, Middleton complied, but a few minutes
later placed his hands under the blanket. Detective Jacobs once more asked Middleton to
remove his hands from under the blanket because he could not see what Middleton was doing
with his hands.
Middleton’s girlfriend was removed from the sofa first, and Detective Mike Kennedy
took her to another room to question her. After Middleton was removed from the sofa,
Detective Jacobs searched the sofa, and under the cushions found a handgun and a cell
phone. The items were located between the cushions on the deck of the sofa. The detectives
seized those items after photographing the scene.
3
Detective Kennedy advised Middleton of his rights, which Middleton waived.
Middleton spoke with the detective, but refused to answer a question about who was
responsible for placing the gun under the sofa cushions. Middleton did tell the detective that
he had handled the gun the previous night when he found it in a truck belonging to someone
he considered to be his sister, Lemmons. As the detectives were removing Middleton from
the house, he asked them if he could have his cell phone, which was found under the sofa
cushions and next to the handgun.
After Middleton was removed by the detectives from the house, Smith called
Lemmons and told her that Middleton had been arrested because he had a gun. Upon
receiving that information, Lemmons checked to find her gun and found that it was missing.
Police officers later contacted her about her gun, which was the gun that the detectives found
under the sofa cushions.
Of the three counts with which the State charged Middleton, the State elected to
proceed to trial first with the count alleging the handgun offense. Middleton was convicted
of the handgun charge at the conclusion of his jury trial. The trial court sentenced Middleton
to twelve years of imprisonment, with two years suspended to probation. The trial court also
ordered that the sentence be served consecutively to any parole revocation period. Additional
facts will be supplied. Middleton now appeals.
1.
Middleton first claims that the trial court erred by denying his motion for mistrial on
the ground that Detective Kennedy had commented on Middleton’s right to remain silent.
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After the motion was made, the trial court held a hearing outside the presence of the jury.
The trial court ultimately found that Middleton had not remained silent after he was advised
of his rights. The trial court then admonished the jury to disregard the detective’s last
statement, because it was inaccurate. This, Middleton claims, was error.
The standard of review with respect to the issue of a motion for a mistrial is well
settled and is as follows:
Whether to grant or deny a motion for a mistrial is a decision left to the sound
discretion of the trial court, as that court is in the best position to assess the
circumstances of an error and its probable impact upon the jury. On appeal, we
will reverse only upon an abuse of that discretion. To prevail on appeal from
the denial of a motion for a mistrial, the appellant must demonstrate the
statement or conduct in question was so prejudicial and inflammatory that he
was placed in a position of grave peril to which he should not have been
subjected. The gravity of the peril is assessed by the probable persuasive
effect of the misconduct upon the jury’s decision rather than upon the degree
of impropriety of the conduct. “A mistrial is an extreme remedy that is
warranted only when less severe remedies will not satisfactorily correct the
error.”
Stokes v. State, 922 N.E.2d 758, 762-63 (Ind. Ct. App. 2010) (quoting Warren v. State, 725
N.E.2d 828, 833 (Ind. 2000)), trans. denied.
Middleton argues that his motion for mistrial should have been granted because
Detective Kennedy allegedly improperly commented on Middleton’s right to remain silent.
A violation occurs under the Due Process Clause of the Fourteenth Amendment to the United
States Constitution if the State uses a defendant’s silence for impeachment purposes where
the defendant was advised of his Miranda warnings upon his arrest. Doyle v. Ohio, 426 U.S.
610 (1976). We have used this principle in Indiana in cases where the State has used the
defendant’s post-Miranda silence as affirmative proof in its case. See Francis v. State, 758
5
N.E.2d 528, 531-32 (Ind. 2001) (inappropriate to use defendant’s post-arrest, post-Miranda
warning silence as affirmative proof in State’s case).
During Detective Kennedy’s testimony, the following exchange took place prior to the
motion for mistrial:
Q: And did you advise [Middleton] of his Miranda rights?
A: I did, yes.
Q: Did [Middleton] indicate that he understood his rights?
A: He did, absolutely.
Q: And did he waive those rights and agree to talk with you?
A: He did.
Q: What did you ask [Middleton] about?
A: I asked [Middleton] who’s[sic] gun it was and if the gun
belonged to him or if he had handled the gun recently.
Q: And what statements, if any, did he make to you?
A: Mr. Middleton told me that he had handled the gun the previous
night, he was cleaning out or going through a truck that
belonged to a female he claimed to be his sister, when he was
going through her vehicle he located the gun inside the vehicle,
got the gun out, handled the gun, and claimed that he, admitted
that his DNA or fingerprints, excuse me, his DNA may be on the
gun because he did handle it the previous night.
Q: Did you ask him anything else in regard to the gun?
A: I did, I asked him who put the gun underneath the couch
cushions.?
Q: And what was his response?
A: At that point he said he did not know and didn’t want to talk about it
anymore.
Transcript at 54-55. Detective Kennedy then responded in the affirmative that he ceased his
questioning of Middleton after he refused to say anything more about the placement of the
gun. Middleton’s counsel then moved for a mistrial alleging the Doyle violation.
The trial court did not err in denying the motion for mistrial on this basis. Here, there
was no commentary before the jury about Middleton’s right to remain silent. Detective
6
Kennedy testified about Middleton’s response and that he ceased questioning Middleton
thereafter. Middleton was advised of his rights and waived those rights. He answered
Detective Kennedy’s questions during which he provided an exculpatory explanation for the
potential discovery of his DNA on the gun. In Sylvester v. State, 698 N.E.2d 1126, 1131
(Ind. 1998), for example, our Supreme Court held that “[w]here a defendant chooses to
fabricate a story, he has not remained silent and cannot claim a Doyle violation.”
Additionally, the detective’s testimony was that after asking Middleton who had
placed the gun under the cushions, Middleton replied that he did not know and did not want
to discuss it any further. Middleton’s comment, again, was exculpatory. Where a defendant
claims that he knows nothing more about a crime, that statement does not amount to an
assertion of a right to remain silent such that it would support an alleged Doyle violation.
Wilson v. State, 688 N.E.2d 1293 (Ind. Ct. App. 1997). Middleton has failed to establish that
the trial court abused its discretion by denying the motion.
We note that the audio recording of Detective Kennedy’s questioning of Middleton
includes passages that are difficult to comprehend. In some instances there are two people
speaking at the same time, and in other instances the recording is simply inaudible. During
the hearing on Middleton’s motion to suppress any statement that followed he statement that
he “didn’t want to talk about it anymore”, Middleton’s counsel argued that a transcript
prepared for the defense was a more accurate representation of the questioning than that
audio recording. That transcription was offered by the State for purposes of that suppression
hearing as State’s Exhibit 3A. The transcription provides that Middleton’s answer was “I
7
don’t want to answer the question because it’s not my pistol and I don’t want (inaudible 7:50)
I’m being truthful . . . you know what I’m saying.” State’s Exhibit 3A at 2. Middleton then
continues to discuss the gun and the presence of his DNA on the gun. “An assertion of
Miranda rights must be clear and unequivocal, and in determining whether a person has
asserted his or her rights, the defendant’s statements are considered as a whole.” Clark v.
State, 808 N.E.2 d 1183, 1190 (Ind. 2004). Here there was no clear and unequivocal
assertion of Middleton’s right to remain silent.
The trial court chose to admonish the jury about Detective Kennedy’s statement prior
to the motion for mistrial, finding the statement to be untrue. Again, we find the trial court
acted appropriately. “When the jury is admonished by the trial judge to disregard what has
occurred at trial or when other reasonable curative measures are taken, no reversible error in
denying a mistrial will normally be found.” Wagner v. State, 474 N.E.2d 476, 489 (Ind.
1985). Here, in paraphrasing his questioning of Middleton, Detective Kennedy stated that
when asked who placed the handgun under the cushion, Middleton replied that he did not
know, did not want to say anything more about it, and that the questioning ceased. The trial
court correctly found that this paraphrase was inaccurate. Indeed, using the transcription,
which Middleton argued was more accurate, when asked about the mechanics of the
handgun, Middleton stated that he did not want to answer the question because it was not his
gun. Middleton then continued to discuss the presence of his DNA on the handgun, and
answered many other questions about Middleton’s presence at the residence. Although there
are not particular words a defendant must utter in order to cease questioning, where a
8
defendant indicates that he or she is tired of talking, or through with this, and continues to
answer questions without pausing or further indicating a wish to no longer respond, we have
found no assertion of a right to remain silent. Washington v. State, 808 N.E.2d 617 (Ind.
2004); Haviland v. State, 677 N.E.2d 509 (Ind. 1997). Consequently, the detective’s
paraphrase of the questioning was inaccurate, and the trial court correctly found that an
admonishment to the jury to disregard the inaccuracy was necessary. Since there was no
Doyle violation, the trial court correctly denied the motion for mistrial.
2.
Middleton next contends that the evidence of his possession of the handgun was
insufficient to support his conviction. Our standard of review of such matters is well settled
and is as follows:
[w]hen reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Henley
v. State, 881 N.E.2d 639, 652 (Ind. 2008). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of
probative value such that a reasonable trier of fact could have concluded the
defendant was guilty beyond a reasonable doubt. Id.
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
In order to establish that Middleton had committed the offense, the State was required
to prove beyond a reasonable doubt in pertinent part that Middleton previously had been
convicted of committing a serious violent felony and later knowingly or intentionally
possessed a firearm. I.C. § 35-47-4-5(c). One of the statutorily enumerated offenses that
classifies a person as a “serious violent felon” is robbery. I.C. § 35-47-4-5(a) and (b).
9
Middleton does not challenge the State’s presentation of evidence of his prior robbery
conviction. Instead, Middleton challenges the sufficiency of the State’s evidence that he
possessed the firearm found in the residence.
A defendant’s possession of a firearm may be either actual or constructive. Causey v.
State, 808 N.E.2d 139 (Ind. Ct. App. 2004). The Causey opinion further explains the
analysis that should follow in determining either type of possession:
However, constructive possession occurs when the person has the intent and
capability to maintain dominion and control over the firearm. To prove the
element of intent, the State must demonstrate the defendant’s knowledge of the
presence of the firearm. Knowledge may be inferred from either exclusive
dominion and control over the premises containing the firearm, or from
evidence of additional circumstances indicating the defendant’s knowledge of
the presence of the firearm.
The following types of evidence are among those utilized by the State to show
proof of the defendant’s dominion and control over a firearm: (1)
incriminating statements by the defendant; (2) attempted flight or furtive
gestures; (3) proximity of the firearm to the defendant; (4) location of the
firearm within the defendant’s plain view; and (5) the mingling of a firearm
with other items owned by the defendant. The State must also present
evidence demonstrating the defendant’s capability to exercise control over the
firearm, which includes the ability to reduce the firearm to his personal
possession or to otherwise direct its disposition or use.
808 N.E.2d at 143.
In the present case, sufficient evidence is present to establish Middleton’s actual and
constructive possession of the handgun, but we need analyze only the evidence of actual
possession. The firearm was found under the sofa cushion where Middleton had been lying.
It would have been difficult for Middleton not to have noticed the firearm. “We think it
would be difficult to sit on a handgun without knowledge of its presence and without the
10
intent and ability to exercise dominion and control over the handgun.” Collins v. State, 822
N.E.2d 214, 222 (Ind. Ct. App. 2005). Similarly, we think it would be difficult for Middleton
to have lain on the sofa without knowledge of its presence and without the intent and ability
to exercise dominion and control over it. Additionally, Middleton admitted to Detective
Kennedy that he had taken the gun the night before from Lemmons’s truck and had handled
the gun. Given this admission of actual possession of the handgun, no further analysis is
required. See Williams v. State, 834 N.E.2d 225, 229 (Ind. Ct. App. 2005) (unnecessary to
analyze whether discovery of gun under mattress where only defendant slept established
possession where evidence of actual possession was present). There was sufficient evidence
of Middleton’s possession of the handgun.
3.
Middleton next challenges his sentence, contending that it is inappropriate in light of
the nature of the offense and the character of the offender. The trial court sentenced
Middleton to twelve years of imprisonment, with two years suspended to probation. The trial
court also ordered that the sentence be served consecutively to any parole revocation period.
The sentencing range for a class B felony conviction is a fixed term of imprisonment between
six and twenty years with the advisory sentence being ten years. Ind. Code Ann. § 35-50-2-5
(West, Westlaw current with all 2013 legislation).
Appellate courts may revise a sentence after careful review of the trial court’s decision
if they conclude that the sentence is inappropriate based on the nature of the offense and the
character of the offender. Ind. Appellate Rule 7(B). Even if the trial court followed the
11
appropriate procedure in arriving at its sentence, the appellate court still maintains a
constitutional power to revise a sentence it finds inappropriate. Hope v. State, 834 N.E.2d
713 (Ind. Ct. App. 2005). “We recognize, however, the special expertise of the trial courts in
making sentencing decisions; thus, we exercise with great restraint our responsibility to
review and revise sentences.” Scott v. State, 840 N.E.2d 376, 381 (Ind. Ct. App. 2006),
trans. denied. The defendant has the burden of persuading the appellate court that his
sentence is inappropriate. King v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008).
Whether we regard a sentence as appropriate “turns on our sense of the culpability of
the defendant, the severity of the crime, the damage done to others, and myriad other factors
that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Furthermore, “[t]he principal role of appellate review should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each
case.” Id. at 1225. Accordingly, “the question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in
original).
We first note that the trial court imposed a sentence of twelve years imprisonment,
with two years suspended to probation. The executed portion of Middleton’s sentence is the
equivalent of the advisory sentence for a class B felony, ten years. I.C. § 35-50-2-5. That
12
said, the complete sentence imposed totals twelve years, two years above the advisory
sentence for Middleton’s offense.
As for the nature of the offense, we note that Middleton, a serious violent felon,
should not have been in possession of a firearm. He did so in a place where illegal drugs
were found and were being manufactured. Middleton was also charged with conspiring to
deal in methamphetamine and possession of methamphetamine at the time he was charged
with the present offense. The State elected to proceed on the charge at issue here first.
Middleton also stated at sentencing that he was unaware that methamphetamine was being
manufactured at the residence where he was located by the detectives. During sentencing,
Middleton admitted that he had been smoking methamphetamine with his girlfriend the entire
night prior to his arrest. Based upon the factors present, the possession of a firearm by a
serious violent felon who had consumed illegal drugs, at a location where methamphetamine
was being produced, we conclude that Middleton has failed to meet his burden of convincing
us that his sentence is inappropriate on the nature of the offense.
As for Middleton’s character, we note that he is twenty-four years old. Middleton’s
substance abuse problem began when he was twelve years old and has escalated. Middleton
has little education, and a virtually non-existent employment history. Middleton’s use of
illegal drugs further demonstrates his disregard for leading a law-abiding life, and the
commission of offense, beyond those reflected by his actual criminal history. Again,
Middleton has failed to meet his burden of convincing us that his sentence is inappropriate.
13
The trial court’s decision to impose the twelve-year sentence with two years
suspended to probation is not inappropriate in light of the nature of the offense and the
character of the offender. See Lewis v. State, 949 N.E.2d 1243, 1247 (Ind. 2011) (twelve-
year sentence imposed on conviction for unlawful possession of a firearm by a serious violent
felon was not inappropriate).
Judgment affirmed.
BAKER, J., and VAIDIK, J., concur.
14
Rasheen Middleton v. State of Indiana
Combined Opinion