Opinion
23A-CR-2091
06-26-2024
Jose M. Mendoza, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Donald J. Frew Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior The Honorable Frances C. Gull, Judge Trial Court Cause No. 02D05-2211-F4-123
ATTORNEY FOR APPELLANT Donald J. Frew Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
PYLE, JUDGE.
Statement of the Case
[¶1] Jose Mendoza ("Mendoza") appeals his conviction, following a jury trial, of Level 4 felony possession of a firearm by a serious violent felon. He argues that: (1) there is insufficient evidence to support his conviction; and (2) his sentence is inappropriate. Concluding that there is sufficient evidence to support Mendoza's conviction and that his sentence is not inappropriate, we affirm the trial court's judgment.
[¶2] We affirm.
Issues
1. Whether there is sufficient evidence to support Mendoza's conviction for Level 4 felony possession of a firearm by a serious violent felon.
2. Whether Mendoza's sentence is inappropriate.
Facts
[¶3] The facts most favorable to the verdict reveal that at 2:00 p.m. on November 14, 2022, a crying and scared K.B. ("K.B.") ran inside a Dollar General store with her three-year-old son. Mendoza, who was K.B.'s former boyfriend, pursued K.B. to the back of the store, where K.B. had attempted to hide. K.B. then ran to the front of the store and used the store's telephone to call 911. During the 911 call, K.B. told the dispatcher that Mendoza had pointed a firearm at her. K.B. also told the dispatcher that Mendoza was driving a silver Ford Explorer ("the Explorer"). Mendoza left the scene after K.B. called 911.
[¶4] Shortly thereafter, Fort Wayne Police Department Officer Allison Massey ("Officer Massey") arrived at the scene and spoke with K.B., who appeared to be nervous and who kept looking over her shoulder. K.B. told Officer Massey that when she had pulled into the strip mall's parking lot, Mendoza had gotten into the passenger seat of her car. K.B. further told Officer Massey that she had not planned to meet Mendoza and did not know that he would be at that location. K.B. also told Officer Massey that she and Mendoza had begun arguing and that he had pulled out a firearm and pointed it at her. In addition, K.B. told Officer Massey that she had grabbed her son from the backseat and fled from the car.
[¶5] Fort Wayne Police Department Detective Geoff Norton ("Detective Norton"), who was in the area and who heard a dispatch regarding the incident, noticed a vehicle matching the description of the Explorer. Detective Norton ran the license plate of the Explorer and learned that it was registered to Mendoza. Detective Norton apprehended Mendoza when Mendoza pulled into the driveway at his home and exited the Explorer. Mendoza was the sole occupant of the vehicle, and Detective Norton found a firearm underneath the back of the front passenger seat. According to Detective Norton, the placement of the firearm was "consistent with someone reaching behind, placing the [firearm] underneath [the seat] while driving." (Tr. Vol. 2 at 139).
[¶6] An Indiana State Police Laboratory forensic scientist ("the forensic scientist") determined that a swab taken from the firearm found in Mendoza's car contained a DNA profile that was a mixture of four individuals. According to the forensic scientist, Mendoza was one of those individuals. The forensic scientist further determined that 46.3% of the DNA profile from the handgun was attributable to Mendoza. The next highest contributor to the DNA profile, who was not identified, was 28.4%.
[¶7] In November 2022, the State charged Mendoza with Level 4 felony possession of a firearm by a serious violent offender, Level 6 felony domestic battery, and Level 6 felony criminal recklessness.
[¶8] In May 2023, while Mendoza was out on bond in the current case, the State charged him in an unrelated case with Level 1 felony attempted murder, Level 4 possession of a firearm by a serious violent felon, Level 5 felony battery, and Level 6 felony criminal recklessness. In June 2023, the trial court granted the State's motion to revoke Mendoza's bond.
[¶9] At Mendoza's two-day trial in July 2023, the jury heard the facts as set forth above regarding the incident and the firearm. Officer Massey testified about what K.B. had told her at the scene, and the jury heard a recording of K.B.'s 911 call. K.B. did not testify.
[¶10] In addition, Mendoza's co-worker, Bryant Smith ("Smith") testified that he was the owner of the firearm found in Mendoza's car. Smith specifically testified that he had borrowed Mendoza's car in November 2022 and had left his firearm under the front passenger's seat in Mendoza's car.
[¶11] The jury convicted Mendoza of Level 4 felony possession of a firearm by a serious violent felon but acquitted him of Level 6 felony domestic battery. The jury was unable to reach a verdict on the Level 6 felony criminal recklessness count, and the State dismissed it.
[¶12] At Mendoza's August 2023 sentencing hearing, the trial court reviewed Mendoza's presentence investigation report, which revealed that twenty-eightyear-old Mendoza has a ten-year adult criminal history that includes two felony convictions in Illinois and one misdemeanor conviction in Whitley County, Indiana. Specifically, in 2013, Mendoza was convicted of felony robbery and sentenced to three years in the Illinois Department of Correction. In 2017, Mendoza was convicted of felony possession of a weapon by a felon and sentenced to seven years in the Illinois Department of Correction. In 2021, Mendoza was convicted of Class C misdemeanor operating a motor vehicle without ever receiving a license.
[¶13] Thereafter, the trial court stated as follows:
The Court does find as an aggravator your criminal record with failed efforts at rehabilitation and the fact that there are pending charges against you. You're a multi-state, multi-county offender covering a period of time from 2013 to 2023 where you've
accumulated one (1) prior misdemeanor conviction and two (2) prior felony convictions with short, intermediate, and longer jail sentences, active adult probation, you've been on supervised release, and then in the Department of Correction.(Tr. Vol. 2 at 232). The trial court found no mitigating factors and sentenced Mendoza to ten (10) years executed in the Department of Correction ("the DOC").
[¶14] Mendoza now appeals his conviction and sentence. Decision
[¶15] Mendoza argues that: (1) there is insufficient evidence to support his conviction for Level 4 felony possession of a firearm by a serious violent felon; and (2) his ten-year sentence is inappropriate. We address each of his contentions in turn.
1. Sufficiency of the Evidence
[¶16] Mendoza first argues that there is insufficient evidence to support his conviction for Level 4 felony possession of a firearm by a serious violent felon. Our standard of review for sufficiency of the evidence claims is well settled. We consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or judge witness credibility. Id. We will affirm the conviction unless no reasonable fact finder could find the elements of the crime proven beyond a reasonable doubt. Id. The evidence is sufficient if an inference may be reasonably drawn from it to support the verdict. Id. at 147.
[¶17] INDIANA CODE § 35-47-4-5(c) provides that "[a] serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Level 4 felony." Mendoza does not dispute that he qualified as a serious violent felon. Instead, he asserts that the State failed to establish that he actually or constructively possessed a firearm.
[¶18] A conviction for possession of a firearm may rest upon proof of either actual or constructive possession. Cruz v. State, 218 N.E.3d 632, 639 (Ind.Ct.App. 2023), trans. denied. Actual possession occurs when a person has direct physical control over a firearm. Id. Constructive possession requires a showing that the defendant had both the intent and the capability to maintain dominion and control over the firearm. Id.
[¶19] Here, our review of the evidence reveals that K.B. told both the 911 dispatcher and Officer Massey that Mendoza had pointed a firearm at her. After Detective Norton had apprehended Mendoza at his home, the detective found a firearm underneath the back of the Explorer's front passenger seat. Mendoza was the sole occupant of the Explorer, which was registered to him. Further, Mendoza's DNA was on the firearm. In light of this properly admitted evidence, which Mendoza does not challenge, the jury could have easily determined that Mendoza had direct physical control over the firearm and, therefore, actually possessed it. See id.
[¶20] Having concluded that the State presented sufficient evidence of actual possession, we need not address whether it also proved constructive possession. However, we note that "constructive possession of items found in an automobile may be imputed to the driver of the vehicle." Cruz, 2018 N.E.3d at 639 (internal citations and quotation marks omitted). Further, imputation of constructive possession in Mendoza's situation is particularly compelling because he was not just the driver of the Explorer but its sole occupant and registered owner. See id. Mendoza's argument that the handgun belonged to Smith and that Smith had left the handgun in Mendoza's car when he borrowed it is simply a request to reweigh the evidence, which we will not do. See Drane, 867 N.E.2d at 146. Therefore, the evidence is sufficient to support the jury's finding that Mendoza possessed the firearm, and we affirm his conviction for Level 4 felony possession of a handgun by a serious violent felon. See Cruz, 218 N.E.3d at 639.
2. Inappropriate Sentence
[¶21] Mendoza also argues that his ten-year sentence is inappropriate. Specifically, Mendoza argues that the trial court should have considered that he was found not guilty of two of the charged offenses and considered mitigating factors in imposing his sentence. Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on 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). The trial court is not obligated to accept the defendant's argument as to what constitutes a mitigating factor. Healey v. State, 969 N.E.2d 607, 616 (Ind.Ct.App. 2012), trans. denied.
[¶22] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, the jury convicted Mendoza of Level 4 felony possession of a firearm by a serious violent felon. The sentencing range for a Level 4 felony is between two (2) and twelve (12) years, and the advisory sentence is six (6) years. IND. CODE § 35-50-2-5.5. The trial court sentenced Mendoza to ten years, which is less than the potential maximum sentence of twelve years.
[¶23] With regard to the nature of the offense, we note that Mendoza, who had two prior felony convictions, pointed a firearm at K.B., his former girlfriend, while she was sitting in her car. In addition, K.B.'s three-year-old son was also in the car.
[¶24] With regard to Mendoza's character, we note, as did the trial court, that Mendoza has a ten-year criminal history that includes two felony convictions in Illinois and a misdemeanor conviction in another Indiana county. In addition, while Mendoza was out on bond in this case, the State charged him in an unrelated case with four additional felonies, including Level 1 felony attempted murder and another count of Level 4 possession of a firearm by a serious violent felon. Mendoza's former contacts with the law have not caused him to reform himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind.Ct.App. 2009), trans. denied. Based on the nature of the offense and his character, Mendoza has failed to persuade this Court that his ten-year executed sentence is inappropriate.
[¶25] Affirmed.
Bailey, J., and Crone, J., concur.