Dean Ross v. State of Indiana (NFP)
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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. Oct 31 2008, 9:33 am ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: BARBARA J. SIMMONS Oldenburg, Indiana STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA DEAN ROSS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A02-0804-CR-342 APPEAL FROM THE MARION SUPERIOR COURT The Honorable John Hammel, Judge Cause No. 49F24-0607-CM-135736 OCTOBER 31, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION BARTEAU, Senior Judge Devin Ross appeals his convictions for carrying a handgun without a license as a Class A misdemeanor and failure to stop after an accident resulting in property damage as a Class C misdemeanor. We affirm. The sole issue for our review is whether there is sufficient evidence to support Ross convictions. On the morning of July 24, 2006, Warren Back was driving in the left lane of Pendleton Pike. Ross was driving in the right lane just slightly ahead of Back. Ross car suddenly swerved into the left lane, and the rear driver s side of Ross car struck the front passenger corner and bumper of Back s car. The force of the collision partially knocked Back s car into the oncoming lane of traffic. Back, who believed the force of the collision was such that Ross would have known that a collision occurred, slowed down so that he could pull over and get Ross s insurance information. Ross, however, sped away. Back called 911 and followed Ross onto Interstate 465. When Back was about two to three car lengths behind Ross, Ross pulled out a gun and held it out of his window. Back pulled back ten to twelve car lengths behind Ross as Ross exited onto Interstate 69 and then onto 82nd Street. Ross ran several red lights and drove around cars that were waiting on traffic. Ross eventually pulled over and was apprehended by the police. One officer found a handgun in Ross car and another officer observed damage to the rear driver s side of Ross car. Ross was charged with carrying a handgun without a license and failure to stop after an accident resulting in property damage. At trial, Indiana State Police Officer Douglas Shelton testified that Ross obtained a handgun license in March 2005. In July 2 2005, however, a certified letter informing Ross that there was a hearing scheduled to address the status of his license was sent to Ross last known address. In September 2005, a certified letter was sent to Ross advising him that his license was revoked. Both letters were returned to sender without Ross signature. At the time of the July 2006 accident, Ross did not have a valid license to carry a handgun. Also at trial, Ross testified that he was not aware that his vehicle hit Back s vehicle. He explained that he sped off, ran stoplights, and passed cars because he thought Back was following him and he was frightened. Ross also testified that he did not hold his handgun out the window, and that he did not know that his handgun license had been revoked. According to Ross, he notified the State Police of his address change at a November 2006 administrative hearing. The trial court convicted Ross of both offenses, and Ross appeals. Ross sole contention is that there is insufficient evidence to support his convictions. Our standard of review for sufficiency of the evidence is well settled. We will neither reweigh the evidence nor judge the credibility of witnesses. Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000). Rather, we will affirm the trial court if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id. at 11112. Ross first contends that there is insufficient evidence to support his conviction of carrying a handgun without a license. Specifically, he argues that there is no evidence that he knew his license had been suspended. In support of his argument, Ross directs us 3 to Stewart v. State, 721 N.E.2d 876 (Ind. 1999), wherein the Indiana Supreme Court held that the State must prove that an habitual traffic violator knew or should have known that his driver s license had been suspended. Stewart is not persuasive, however, because the State does not have the same burden where the defendant is charged with carrying a handgun without a license. Specifically, here, the State had to prove only that Ross carried a handgun in a vehicle away from his dwelling or fixed place of business. See Washington v. State, 517 N.E.2d 77, 79 (Ind. 1987) (citing Ind. Code ยง 35-47-2-1). Proof that Ross had a license to carry the handgun is an exception to the offense, and the burden was on Ross to prove he possessed a valid license. See id. Ross failed to sustain this burden. The State, however, presented evidence that showed Ross carried his handgun away from his dwelling or place of business. This gun was recovered from Ross car when Ross pulled over. The State sustained its burden of proof on this offense. See id. The conviction was therefore based on sufficient evidence. See id. Ross also argues that there is insufficient evidence to support his conviction of failure to stop after an accident resulting in property damage because he did not know that he had been in an accident that caused property damage. The elements of this offense include damage to another vehicle and the defendant s knowledge of the damage. Allen v. State, 844 N.E.2d 534, 536 (Ind. Ct. App. 2006), trans. denied.. However, in Allen, we explained that the State is not required to prove actual knowledge of the accident and the damage. Rather, the knowledge element of the offense can be proved where the trier of fact may infer from an examination of the circumstances 4 of the event that the conditions were such that the driver should have known that an accident occurred or should have reasonably anticipated that the accident resulted in property damage. Id. Here, our review of the evidence reveals that when Ross swerved into the left lane and collided with Back s vehicle, the force of the collision partially knocked Back s car into the oncoming lane of traffic. Back testified that the force of the collision was such that Ross would have known that a collision occurred. Based upon this evidence, the trier of fact could have inferred that Back should have known that an accident occurred. The evidence is therefore sufficient to support Ross conviction. Affirmed. BAKER, C.J., and BAILEY, J., concur. 5
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