Joshua David Bubb, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Joshua Bubb appeals his conviction for possession of a firearm by a serious violent felon that arose from a road rage incident in which he displayed a gun. Claiming the evidence showed that he did not voluntarily possess the gun because it was left in the car by the gun's owner, Bubb contests the sufficiency of the evidence underlying his conviction. He also challenges his 8-year sentence as inappropriate. We affirm.

Facts

[2] On April 27, 2022, Bubb was in the midst of moving from Fort Wayne to Sellersburg in Southern Indiana when he encountered congested traffic on I-65 in the late afternoon. Bubb was driving a borrowed car with a small trailer in tow. He was on his way back to Fort Wayne after having unloaded the items on the trailer in Sellersburg. Nearby was Joseph Grizzle, who was driving a large pickup truck, with his wife as a passenger.

[3] When Bubb was unable to pass Grizzle's truck, Bubb appeared angry and “red faced.” Tr. Vol. II, p. 148. Grizzle eventually changed lanes, and Bubb passed him on the left. As Grizzle's wife looked down into Bubb's vehicle, she told her husband that she thought she saw Bubb pointing a gun at them. Grizzle looked over and saw a silver-grey gun in Bubb's hand. Grizzle slowed his truck and called 911 while continuing to follow Bubb's vehicle.

[4] When Bubb pulled over to the side of the road by a truck weighing station, the Grizzles followed suit. While Grizzle was still on the phone with 911 and his wife was filming the events on her cell phone, Bubb left his car and screamed at the Grizzles while waving his arms wildly. The Grizzles remained in their vehicle, and Bubb drove away.

[5] An Indiana State Trooper responding to the 911 dispatch located Bubb's vehicle as it was leaving I-65. That trooper stopped Bubb's vehicle, and a second trooper soon arrived. Bubb was on the phone with 911 when he was stopped.

[6] Noting that he was in the midst of moving, Bubb told the officers that he had a handgun in the vehicle. He reported that it was in the front passenger seat and that he had held it in his hand while putting it in the center console of the vehicle. Bubb admitted he lacked a license to carry it.¹ One of the officers recovered the gun during a search of the vehicle.

[7] Bubb later was charged with Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 6 felony pointing a handgun. While being fingerprinted and submitting a DNA sample as ordered by the trial court, Bubb stated that his DNA would be on the weapon because he “handles it routinely.” Tr. Vol. III, pp. 33-34. Tests for the presence of Bubb's DNA on the gun were inconclusive.

[8] At Bubb's trial, during which he represented himself, Bubb's girlfriend testified that the handgun belonged to her and that she forgot to retrieve it from the glove box of the vehicle the night before the incident with the Grizzles. She testified that she called Bubb between 11 a.m. and noon the next day to tell him that she had forgotten to remove the gun and that he should secure it in the safe on the trailer that Bubb was towing to Sellersburg.

[9] Although Bubb did not testify, the State Troopers’ body camera footage admitted at trial contained Bubb's statements recounting the events. Bubb told the officers that he had intended to move the gun into the safe when he dropped off his belongings in Sellersburg, but he forgot and left the gun on his front seat. He said that he later moved the gun to the center console of the car as he was driving next to the Grizzles’ truck. He denied ever intentionally pointing the gun at them.

[10] The jury found Bubb guilty of unlawful possession of a firearm by a serious violent felon but could not reach a verdict for the pointing a firearm count. The court first declared a mistrial as to the pointing a firearm count but later granted the State's motion to dismiss that count. After entering judgment of conviction on the firearm possession verdict, the trial court sentenced Bubb to eight years imprisonment. Bubb appeals both his conviction and his sentence.

Discussion and Decision

[11] Bubb raises two claims on appeal. First, he argues the evidence was insufficient to show that he “voluntarily” possessed a firearm. Second, he challenges his sentence as inappropriate under Indiana Appellate Rule 7(B) in light of the nature of his offense and his character. We find both claims unpersuasive.

I. The Evidence is Sufficient to Support Bubb's Conviction

[12] When reviewing the sufficiency of the evidence to support a criminal conviction, we neither reweigh evidence nor re-examine witness credibility. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016). We consider only the “probative evidence and reasonable inferences supporting the verdict” and affirm unless “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).

[13] To convict Bubb of Level 4 felony possession of a firearm by a serious violent felon, the State was required to prove beyond a reasonable doubt that he “knowingly or intentionally possesse[d] a firearm” while he was a serious violent felon. Bubb does not dispute that he was a serious violent felon. He merely contends that the State did not meet its burden of proving that he acted voluntarily and had the requisite intent. “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).

[14] In support of this argument, Bubb primarily relies on Indiana Code § 35-41-2-1 (Voluntariness Statute), which provides:

(a) A person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense. However, a person who omits to perform an act commits an offense only if he has a statutory, common law, or contractual duty to perform the act.

(b) If possession of property constitutes any part of the prohibited conduct, it is a defense that the person who possessed the property was not aware of his possession for a time sufficient for him to have terminated his possession.

“Once evidence in the record raises the issue of voluntariness, the State must prove beyond a reasonable doubt that the defendant acted voluntarily.” O'Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct. App. 2012). If the State does not meet this burden, it has not proven every element of the offense. Id.

[15] Bubb claims the evidence shows he was unaware of the gun in his car until shortly before the trooper stopped him. Bubb asserts that he “handled the firearm only to secure it” and that he “had no reasonable ability to terminate his possession of the handgun,” given that he was on a highway and “hours” from home. Appellant's Br., p. 12.

[16] As our Supreme Court has recognized, Indiana's Voluntariness Statute was based on provisions designed “to exclude from voluntary conduct those mental impairments that are the product of an otherwise healthy mind.” Davidson v. State, 849 N.E.2d 591, 594 (Ind. 2006). These “impairments” include “reflexes, convulsions, unconsciousness (for example, a driver who loses consciousness and runs over a pedestrian), somnambulism, hypnosis, and a residual category for movements not a product of the actor's effort (where the actor is moved by force).” Id.

[17] Thus, “Indiana Code § 35-41-2-1(b) was designed to create a defense in the situation where the person is not aware of his or her possession of illegal property at the time it is found.” Randolph v. State, 695 N.E.2d 615, 616 (Ind. Ct. App. 1998). For the statute to apply, the defendant “must not have been aware that he possessed the handgun.” Id.

[18] Like the defendant in Randolph, Bubb is essentially claiming that he was unaware of the handgun initially but that he continued to possess it only long enough to return it to the owner. See id. at 615-16. Because Randolph knew he possessed the handgun, this Court found he could not avail himself of the Voluntariness Statute defense. Id. The Voluntariness Statute's small umbrella similarly offers no shade to Bubb, given that he was aware of the gun hours before the officer recovered it from his vehicle.

[19] But even if this statutory defense were available to Bubb, the State disproved it beyond a reasonable doubt. Bubb's girlfriend testified she called him between 11 a.m. and noon that day to tell him that she had left the gun in the car and that he should secure it in the safe that he was moving. That means Bubb was aware of the gun four to five hours before the incident with the Grizzles and yet failed to rid himself of it. Bubb's prolonged, knowing possession of the gun is inconsistent with his claim that he had no opportunity to dispose of the gun responsibly and therefore acted involuntarily in possessing it. By his own admission, he could have placed the gun in the safe when he unloaded the safe in Sellersburg, but he did not do so.

[20] Second, although Bubb's account was quite different from that of the Grizzles, they agreed on one point: that during their initial encounter on the highway, Bubb picked up the gun from the seat while he was driving beside the Grizzles. Although Bubb asserted that his motive was just to move the gun to the center console, the Grizzles testified that he pointed the gun at them as part of his ongoing road rage.

[21] This latter testimony, while apparently inadequate to generate jury consensus on the pointing a firearm charge, at the least supported an inference that Bubb's possession of the gun was not inadvertent and involuntary. And beyond that, Bubb's admission during fingerprinting that he “handles [the gun] routinely or from time to time” refutes his claim that his possession of the gun was unknowing, unintentional, and involuntary. Tr. Vol. III, p. 33. The evidence as a whole was sufficient to prove beyond a reasonable doubt that Bubb acted voluntarily in possessing the gun and that he knowingly or intentionally possessed it while he was a serious violent felon.

II. Bubb's Sentence is Not Inappropriate

[22] Bubb next challenges his 8-year sentence as inappropriate under Indiana Appellate Rule 7(B). Under this rule, we may revise a sentence if “after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” App. R. 7(B). Our aim in reviewing sentence appropriateness is to “attempt to leaven the outliers” rather than “achieve a perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014). Consequently, we defer substantially to the trial court's sentencing decision, which prevails unless “overcome by compelling evidence portraying in a positive light the nature of the offense ․ and the defendant's character.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[23] When assessing whether a sentence is inappropriate, we first consider the statutory range established for the class of the offense. Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). The sentencing range for Level 4 felony possession of a firearm by a serious violent felon is 2 to 12 years imprisonment, with an advisory sentence of 6 years imprisonment. Ind. Code § 35-50-2-5.5. The trial court thus imposed a sentence 2 years more than the advisory sentence and 4 years less than the maximum penalty.

[24] As to the nature of the offense, Bubb, who is a serious violent felon, possessed a gun owned by his girlfriend. He became involved in a road rage incident in which he reportedly pointed the gun at the occupants of another vehicle after becoming angry that he could not pass them. At the least, he chose this high-tension moment to move the gun from the seat to the center console. He had the opportunity before the offense to secure the gun in a safe outside his car and failed to do so. In his statements to the officers who stopped him, Bubb portrayed the Grizzles as the perpetrators of the road rage.

[25] As to the character of the offender, Bubb had a criminal history consisting of convictions for two felonies (both burglaries) and two misdemeanors. He also had violated the terms of his probation and home detention. Bubb, who was 29 years old at sentencing, also had been adjudicated a delinquent for burglary and theft when he was 13 years old. Although Bubb's criminal history extends over nearly two decades, even a minor criminal history is a poor reflection of a defendant's character. Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014), trans. denied.

[26] Bubb also admitted to substantial uncharged misconduct, demonstrating a disregard for the law. He acknowledged being a daily marijuana user since age 18 or 19 and that he had once used cocaine and methamphetamine regularly. He reported that his drug problems stemmed from his back injury in an automobile accident. Bubb claimed he was disabled by his back problems and had not received appropriate medical care for his condition during his incarceration in the present case.

[27] Bubb initially claimed at the sentencing hearing that he was an “upstanding citizen” and that he had “been trying to do the right stuff.” Tr. Vol. III, p. 123. The State then played recordings of Bubb's jail telephone calls and video chats in which Bubb made threatening statements about his stepfather, who testified on Bubb's behalf at trial. During those calls, Bubb also made disrespectful comments about the judicial system and the trial judge, and he blamed the state troopers for his predicament. The trial court referenced these statements, as well as Bubb's road rage displayed in the instant offense, in finding that Bubb had a pattern of allowing his anger to control his actions.

[28] Neither the nature of the offense nor Bubb's character support his claim for sentencing revision under Rule 7(B). The evidence shows Bubb's repeated defiance of societal rules and failure to take responsibility for his own actions. He has failed to establish that his 8-year sentence—bridging the gap between the advisory and maximum sentences—is inappropriate. See Hall v. State, 177 N.E.3d 1183, 1197 (Ind. 2021) (“The defendant bears the burden of persuading [the appellate court] that the sentence is inappropriate.”).

[29] We affirm Bubb's conviction and sentence for possession of a firearm by a serious violent felon.

FOOTNOTES

1.   Bubb was stopped two months before the Indiana General Assembly authorized a gun to be carried without a permit. See Ind. Code § 35-47-2-1.5 (effective July 1, 2022).

Weissmann, Judge.

Judges May and Scheele concur. May, J., and Scheele, J., concur.