MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 09 2018, 9:49 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
INTHE
COURT OF APPEALS OF INDIANA
Damon Blinks, January 9, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1706-CR-1190
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia Gooden,
Appellee-Plaintiff. Judge
The Honorable Richard
Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1506-F4-21581
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Damon Blinks (Blinks), appeals his conviction for
unlawful possession of a firearm by a serious violent felon (SVF), a Level 4
felony, Ind. Code § 35-47-4-5(c).
[2] We affirm.
ISSUE
[3] Blinks raises one issue on appeal, which we restate as: Whether Blinks’
conviction for unlawful possession of a firearm by a SVF is contrary to due
process.
FACTS AND PROCEDURAL HISTORY
[4] At approximately 3:19 a.m. on June 17, 2015, Officer Larry Lanigan (Officer
Lanigan) of the Indianapolis Metropolitan Police Department was dispatched
to Castleton Square Mall in Indianapolis, Marion County, Indiana, to
investigate a report of two people sleeping inside a black Toyota Solara in the
mall’s parking lot. The Toyota had a temporary paper plate, and when Officer
Lanigan ran the plate through his computer, it did not belong to the black
Toyota Solara.
[5] Officer Lanigan observed two men in deep sleep. Officer Lanigan loudly
banged on the vehicle to wake the men up. Officer Lanigan then asked Blinks
why he was parked there, and Blinks stated that his vehicle had broken down
and he was waiting for help to arrive. Blinks indicated that he did not possess
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any identification and he provided Officer Lanigan with a fake name and date
of birth. Because Blinks had failed to provide any identifying documents,
Officer Lanigan ordered the men to step outside the vehicle so he could check
the vehicle’s VIN.
[6] Blinks exited and held his baggy shorts with his left hand. During a pat-down,
Officer Lanigan felt something heavy inside Blinks’ right pocket. Upon placing
his hand on the object, Officer Lanigan believed it was a firearm. At that point,
Blinks took off running toward the rear of the mall, and Officer Lanigan
pursued him. Officer Lanigan radioed for assistance, and a K9 officer arrived.
The K9 officer alerted the officers to Blinks’ presence inside a dumpster behind
the mall. Because Blinks was believed to be armed, a SWAT officer who was at
the scene deployed tear gas into the dumpster. Moments later, Blinks climbed
out of the dumpster and was apprehended. A firearm was recovered inside the
dumpster, concealed beneath multiple bags of garbage.
[7] On June 19, 2015, the State filed an Information, charging Blinks with Count I,
unlawful possession of a firearm by a SVF, a Level 4 felony; 1 Count II, resisting
law enforcement, a Class A misdemeanor; and Count III, false informing, a
Class B misdemeanor. On April 20, 2017, a jury trial was conducted. During
the State’s case-in-chief, the trial court informed the jury that the parties had
1
Blinks had a prior conviction in 2014 for a Class B felony carjacking, which the State indicated was the
predicate offense for the SVF charge.
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“filed certain stipulations,” including that at the time of his arrest, Blinks “was a
person prohibited from possessing a firearm under Indiana law.” (Tr. Vol. II, p.
111). At the close of the evidence, the jury found Blinks guilty of all three
Counts. The jury was dismissed and the trial court set the matter for a
sentencing hearing. At that time, the State requested the trial court to perform
a plea colloquy to establish the qualifying conviction that would have made
Blinks a SVF under Count I, asserting that Blinks still needed to formally waive
his right to a jury trial on the determination of his SVF status. Following
Blinks’ admission that he had been convicted of a serious violent felony, and
the State’s establishment of the factual basis to the predicate SVF offense, the
trial court determined that Blinks had waived his right to a jury trial on the
determination of his SVF status.
[8] On May 8, 2017, the trial court conducted Blinks’ sentencing hearing. The trial
court sentenced Blinks to twelve years, with eight years executed in the Indiana
Department of Correction and four years suspended, for unlawful possession of
a firearm by a SVF; one year for resisting law enforcement; and 180 days for
false informing. Blinks’ sentences were to run concurrently.
[9] Blinks now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] On appeal, Blinks claims that the trial court committed fundamental error by
finding him guilty of being a SVF. According to Blinks, the jury found him
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guilty of unlawfully possessing a firearm but did not determine whether he was
a SVF. Thus, Blinks argues that
[t]he trial court proceeded as if [he] had waived his right to a jury
on the SVF enhancement. The judge mistakenly informed Blinks
his stipulation meant he waived jury (or even a bench trial) and
would proceed to sentencing. Finally, the trial court found
Blinks guilty of the SVF offense without advising Blinks of his
[Boykin 2] rights, without engaging in a colloquy with him
regarding the factual basis offered by the State (as Blinks never
agreed with the factual) and without even ascertaining that Blinks
knowingly, voluntarily and intelligently wished to plead guilty to
the offense.
(Appellant’s Br. p. 11). Blinks now invites our court to reverse and remand for
a new trial on the charge of unlawful possession of a firearm by a SVF. We
decline Blinks’ request.
[11] Blinks was charged with unlawful possession of a firearm by a SVF. That
offense requires proof that “[a] [SVF] . . . knowingly or intentionally possesses a
firearm.” I.C. § 35-47-4-5(c). A SVF is defined, in relevant part, as a person
who has been convicted of a serious violent felony in Indiana. I.C. § 35-47-
45(a)(1)(A). “The legal status of the offender is an essential element of the
crime, and the act—the possession—is illegal only if performed by one
occupying that status.” Spearman v. State, 744 N.E.2d 545, 548 (Ind. Ct. App.
2
Boykin v. Alabama, 395 U.S. 238 (1969), provides that a trial court may not accept a guilty plea without an
affirmative showing that the defendant was informed of and intelligently and voluntarily waived his rights to
the privilege against compulsory self-incrimination, to trial by jury, and to confront one’s accusers. Hall v.
State, 849 N.E.2d 466, 469 (Ind. 2006).
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2001), trans. denied. During the trial, Blinks—who was represented by
counsel—stipulated to the jury that, at the time of his arrest, he “was a person
prohibited from
possessing a firearm under Indiana law.” (Tr. Vol. II, p. 111). In his testimony,
Blinks further specified that he was convicted of carjacking in 2014. See I.C. §
35-47-4-5(b)(14) (listing carjacking as a serious violent felony offense). Thus,
Blinks necessarily stipulated to the fact that he is a SVF.
[12] In Bowens v. State, 24 N.E.3d 426, 428 (Ind. Ct. App. 2014), following his
conviction for unlawful possession of a firearm by a SVF, the defendant argued
that the State had failed to prove his SVF status. Unlike in the present case, the
defendant in Bowens specifically requested a bifurcated trial in order to prevent
the jury from “hearing the term ‘serious violent felon’” as it could be
prejudicial. Id. The trial court denied the defendant’s request but did “remove
all reference to the SVF label during trial in order to avoid prejudice.” Id. The
jury instructions were phrased to impart that he was barred from possessing a
firearm without direct reference to his SVF status. Id. at 428-29. Furthermore,
the defendant stipulated to the jury that he was “a person barred from
possessing a firearm under Indiana Code [section] 35-47-4-5.” Id. at 429.
Despite the fact that his stipulation lacked the “the term SVF,” our court found
that the defendant had “stipulated to his SVF status and [could not] be heard to
complain that the State failed to prove that status.” Id. We reasoned that his
admission that he was “barred from possessing a firearm under Indiana Code
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Section 35-47-4-5” was no “different from [a] SVF.” Id. Furthermore, the
defendant “invited the language substitution by raising his request for
bifurcation on the basis of possible prejudice, he agreed to the stipulation, and
the State relied on the stipulation as an admission of the SVF element of the
offense, which therefore relieved the State of presenting other evidence.” Id.
[13] In the present case, there is no explicit reason provided as to why the stipulation
was phrased as it was—although the trial court indicated that it was designed to
avoid prejudice. Nevertheless, Blinks was charged under Indiana Code section
35-47-4-5 and stipulated to the fact that he was prohibited from possessing a
firearm under that statute. Because he stipulated to his SVF status, the jury was
charged with determining the remaining elements of the offense: that Blinks
was knowingly or intentionally in possession of a firearm. See Dugan v. State,
860 N.E.2d 1288, 1292-93 (Ind. Ct. App. 2007) (stating that where a defendant
stipulates to his status as a SVF, “the State is not required to prove that
element”), trans. denied.
[14] We are perplexed by the procedural course of this case and by the appellate
arguments raised by both parties. 3 Despite Blinks’ argument to the contrary,
and notwithstanding the procedural irregularity at the end of the jury trial
regarding Blinks’ purported waiver of a trial on his SVF charge, his trial was not
3
The State concurs with Blinks that he was not adequately advised of his right to a jury trial or advised of his
rights prior to entering a guilty “plea to his underlying status of being a [SVF].” (State’s Br. p. 9).
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bifurcated. There is no evidence in the record that Blinks even requested a
bifurcation so that the jury could have first determined whether or not he was in
possession of a firearm before, if necessary, proceeding to a second phase to
determine his SVF status. See Williams v. State, 834 N.E.2d 225, 228 (Ind. Ct.
App. 2005) (noting that, by bifurcating the trial to first determine whether the
defendant knowingly or intentionally possessed the firearm before considering
whether the defendant “committed a crime by possessing a firearm”—and
instructing the jury that such procedure would be followed—our court stated
that the trial court had “struck the proper balance between advising the jury that
[the defendant] had indeed been charged with a firearm-related crime and
avoiding identifying [the defendant] as a [SVF] from the outset of trial”); but see
Spearman, 744 N.E.2d at 550 (“hold[ing] that the element of the prior felony
cannot be bifurcated from the possession element in a prosecution under
[Indiana Code section 35-47-4-5],” while also remaining “mindful of the
prejudice that may arise in a jury trial when a defendant is identified and
repeatedly referred to as a ‘serious violent felon[,]’ [urging] trial courts to be
attentive to this potential for prejudice and to exercise their discretion in
crafting instructions and referring to the prior felony in ways which minimize
the potential for such prejudice” and further noting that prejudice to the
defendant was minimized in this case “by allowing him to stipulate to the fact
that he was convicted of the underlying felony” that predicated his SVF status).
SVF status is not an enhancement; rather, it is one element of the offense of
unlawful possession of a firearm by a SVF. Blinks stipulated to the SVF
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element, and the jury, having determined the rest of the elements to be satisfied,
found him guilty all in one phase. Thus, because Blinks did not waive his right
to a jury trial or plead guilty to his SVF crime, there are no due process
violations with respect to the requisite advisement of rights.
CONCLUSION
[15] Based on the foregoing, we conclude that Blinks’ conviction for unlawful
possession of a firearm by a SVF did not offend due process.
[16] Affirmed.
[17] Robb, J. concurs
[18] Pyle, J. concurs in result with separate opinion
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INTHE
COURT OF APPEALS OF INDIANA
Damon Blinks, Court of Appeals Case No.
49A02-1706-CR-1190
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Pyle, Judge concurring in result with opinion.
[19] I concur with the result in my colleagues’ opinion, but I write separately
because I believe it is necessary to raise a warning about partial bifurcation in
SVF cases. As my colleagues noted, the procedural posture of this case was
irregular. Instead of requiring the State to present this case in a totally
bifurcated manner, the trial court allowed this case to be partially bifurcated.
Normally, in a case involving an SVF charge and other counts, a jury will hear
evidence and render its’ verdict on all counts except the SVF charge in phase
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one of the trial. In the second phase, evidence concerning the defendant’s prior
conviction will then be presented. At the conclusion of the second phase, the
jury, using evidence introduced in both phases, renders a verdict on the SVF
charge. However, in this case, the jury was told that, in addition to the other
crimes, it could convict Blinks of the fictitious crime of “unlawful possession of
a firearm.” The jury was also instructed that this crime was “defined by
statute,” and that to convict Blinks the State must prove each element of the
crime charged beyond a reasonable doubt. (App. Vol. II, Pg. 66, 70). Because
this crime does not exist, neither instruction was true.
[20] While arguments involving judicial economy may support partial bifurcation,
our Supreme Court has warned trial courts to exercise caution so as not to
prejudice a defendant. Russell v. State, 997 N.E.2d 351 (Ind. 2013). In Russell,
the Court affirmed an SVF conviction arising out of a partially bifurcated trial,
but it did so because it deemed no prejudice had resulted to the defendant’s
selfdefense claim. My concern is that more trial courts are interpreting Russell
as giving tacit permission to the partial bifurcation of SVF cases. In my humble
opinion, to do so creates a form of legal sausage making that risks creating a
mess. If bifurcation is to be required in SVF cases involving multiple alleged
crimes, bifurcation should be total and without exception.
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