Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
The state proved beyond a reasonable doubt that a Clark County man knowingly exerted unauthorized control over a motor vehicle and provided sufficient evidence for his felony auto theft conviction, the Indiana Court of Appeals affirmed Monday.
In July 2020, Christopher Applegate drove a Dodge Nitro along Upper River Road in Clark County with his girlfriend Tiffany Cox in the passenger seat. The couple got into an argument when Applegate shot Cox with a handgun in the right leg and then exited the vehicle.
When Applegate got out of the vehicle, Cox moved into the driver’s seat and backed the car into a wooded area. The vehicle got stuck and Cox then got out and ran down a nearby gravel driveway.
Cox waving her hands ran in front of a pickup truck being driven by Bonnie Cummings. Cox attempted to get in the passenger’s side seat of the truck but Cummings had the space filled with coolers so she jumped in the bed of the truck and told her to go.
As Cummings was processing what was going on she saw Applegate running at her from the same driveway Cox had run down.
Applegate jumped into the back of the truck with Cox where the two struggled. Cox managed to force herself in the front passenger seat and told Cummings to “go, go, go, he’ll kill me, he’ll kill us both.” Cummings saw Applegate get of the bed of the truck and then heard a shot.
Emma Sternberg was driving her Volkswagen Tiguan down Upper River Road and came up behind Cumming’s stopped truck. She saw Applegate and Cox struggling in the back of the truck. When Applegate jumped out of the truck he approached Sternberg and pointed his gun at her. Applegate yelled at her to exit the Volkswagen. As she attempted to do so, he fired his gun at her driver’s side window. The bullet went through the window but did not hit her.
Applegate took Sternberg’s vehicle and pursued Cummings and Cox. Some ways down the road, Applegate crashed the Volkswagen, casing significant damage to it.
Cumming’s drove to Cox’s father’s house where she called 911. Clark County Sheriff’s Department Officers Larry Pavey and Charlie Scott responded to the call. When they arrived they observed Cox’s gunshot wound.
Pavey observed Cox had quite a bit of blood on her and was physically shaking and was “crying really bad.”
Scott likewise observed that Cox was“[p]anicked, very much in a traumatic state, she was crying, visibly upset, visibly injured, a lot of yelling and screaming.”
Cox told Pavey her boyfriend was trying to kill her. She told Scott Applegate was the person her had shot her.
Pavey concluded there was “a shooter on the loose,” which he considered “an emergency situation.” While he was at Cox’s father’s house, he received a report from dispatch that Applegate may be nearby. Pavey when to that reported area and located Applegate.
Pavey placed Applegate in handcuffs, read him his Miranda rights, and asked him if he wanted to talk. Applegate denied wanting to talk. Pavey noticed Applegate was injured and told him paramedics would be there soon.
Applegate said Cox had hit him because she was mad at him “for fooling around.”
Scott later assisted with the investigation along Upper River Road, and he located the Dodge Nitro, which had been crashed but was still running. He observed that the vehicle had a Kentucky license plate. He searched the vehicle’s registration number in an interstate database, and he learned that the vehicle was registered to a Yolanda Sims in Louisville, Kentucky, and that the vehicle had been reported stolen.
Another officer investigating the Dodge Nitro, Detective August Vissing, located a driver’s license, an Aetna card, a Capitol One credit card, and a Visa credit card inside the vehicle. Each of those four cards was in a different name, and none of the cards were in Applegate’s or Cox’s names.
The state charged Applegate with numerous offenses and also alleged him to be a habitual offender. Prior to Applegate’s jury trial, Cox died due to unrelated circumstances.
Over Applegate’s objections, the Clark Circuit Court permitted Pavey and Scott to testify to what Cox had said to them at her father’s house on the day of the incidents. The court also allowed Scott to testify to his investigation of the Dodge Nitro’s registration but only for the purpose of understanding his investigation and not for the purpose of whether the statements he observed were “true or not” following Applegate’s hearsay objection.
The jury found Applegate guilty of Level 3 felony armed robbery, Level 5 felony battery, Level 6 felony auto theft and Class A misdemeanor criminal mischief. The jury also found Applegate to be a habitual offender.
The first issue on appeal was whether the trial court erred when it permitted two law enforcement officers to testify to out-of-court statements made to them by Applegate’s girlfriend.
The appellate court found the trial court did not err when it permitted Pavey and Scott to testify to Cox’s statements to them at her father’s house on the day of the incident.
“Cox’s statements were about events as they were actually happening. She, and the community, were facing what Officer Pavey expressly identified in his
testimony as an ’emergency situation’—Cox was suffering a loss of significant blood from her gunshot wound, and the community was facing a shooter-at-large,” Judge Paul Mathias wrote. “Further, the officers did not elicit statements from Cox that were not essential to meeting either her emergency or the community’s, and there was nothing formal about how the officers engaged Cox on her father’s porch while they were awaiting emergency medical personnel to arrive.”
The court concluded that the admission of Cox’s statements to the officers did not violate Applegate’s Sixth Amendment rights.
“The trial court did not abuse its discretion when it permitted the officers to testify to Cox’s out-of-court statements to them,” Mathias wrote.
The second issue on appeal was whether Applegate failed to preserve for appellate review his assertion that the trial court erred when it permitted a law enforcement officer to testify to out-of court statements made to him by Applegate.
The appellate court found Applegate did not preserve his argument under the Fifth Amendment for appellate review.
“However, Applegate did not contemporaneously object to Officer Pavey’s testimony on this issue in the trial court. Accordingly, he has not preserved the issue for appellate review,” Mathias wrote.
The next issue raised on appeal was whether the state presented sufficient evidence to support Applegate’s conviction for Level 6 felony auto theft of a Dodge Nitro.
The court found the state had presented sufficient evidence to support Applegate’s conviction for Level 6 felony auto theft.
“We disagree with Applegate’s assertion that that evidence merely establishes his possession of a vehicle that was not his. Rather, a reasonable fact-finder could have found from the totality of that substantive evidence that the State demonstrated the elements of Level 6 felony auto theft with respect to the Dodge Nitro,” Mathias wrote.
The appellate court affirmed Applegate’s Level 6 felony conviction.
Lastly, the appellate court addressed whether the trial court erred when it had the jury determine the facts underlying the habitual offender allegation but reserved for itself the determination of whether Applegate was a habitual offender based on those facts.
However, the court found the trial court’s procedure in determining Applegate’s status as a habitual offender was not contrary to a majority opinion of the Indiana Supreme Court in Harris v. State, 23S-CR-165.
“Again, during the second phase of Applegate’s trial, the court asked the jury, without objection from Applegate, to find whether the alleged prior convictions underlying the habitual offender allegation were true. The court reserved for itself the determination of whether Applegate was a habitual offender based on the jury’s findings,” Mathias wrote.
Judges Elizabeth Tavitas and Leanna Weissmann concurred in Christopher S. Applegate v. State of Indiana, 23A-CR-954.
Please enable JavaScript to view this content.