Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                        Nov 25 2014, 9:58 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.


ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

CHRIS M. TEAGLE                                GREGORY F. ZOELLER
Muncie, Indiana                                Attorney General of Indiana

                                               MONIKA PREKOPA TALBOT
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BRANDAN J. FRANZE,                             )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )    No. 05A02-1404-CR-229
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                APPEAL FROM THE BLACKFORD CIRCUIT COURT
                       The Honorable Dean A. Young, Judge
                         Cause No. 05C01-1210-FB-382



                                    November 25, 2014


             MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                Case Summary and Issues

       Following a jury trial, Brandan J. Franze was convicted of dealing in a schedule II

controlled substance and unlawful possession of a syringe, and he received an aggregate

sentence of ten years imprisonment. Franze appeals his convictions and sentence, raising

three issues for our review:     (1) whether the State presented sufficient evidence to

overcome Franze’s entrapment defense; (2) whether the trial court abused its discretion

by admitting evidence of an audio recording of a controlled drug buy; and (3) whether

Franze’s sentence is inappropriate in light of the nature of his offenses and his character.

Concluding there was sufficient evidence to sustain Franze’s conviction, that the issue of

the audio recording’s admissibility has been forfeited for appellate review, and that

Franze’s sentence is not inappropriate, we affirm.

                               Facts and Procedural History

       During a search of the home of Johnny Gustafson, police discovered hypodermic

needles in Gustafson’s possession. In exchange for leniency, Gustafson volunteered to

serve as a confidential informant. Gustafson provided law enforcement with a list of

persons from whom Gustafson believed he could purchase drugs; Franze was among the

individuals Gustafson named.

       On June 19, 2012, Gustafson called police and informed them that he planned to

purchase drugs from Franze at 3 p.m. that afternoon. Blackford County Deputy Sheriff

James Heflin and Hartford City Police Officer Greg Bonewit met with Gustafson to

prepare him for the controlled buy. The officers searched Gustafson for money and

contraband. They then gave him $120 to purchase two, thirty milligram Oxymorphone

                                             2
tablets, and equipped Gustafson with a body transmitter and digital recorder.         The

officers drove Gustafson to a car wash where the drug buy was set to take place. The

officers parked across the street in order to watch and videotape the encounter.

       Franze arrived at the car wash accompanied by his wife, Brittany Hobbs. Franze

and Hobbs carried on a conversation with Gustafson, and after a short while, Franze

pulled a pill bottle out of his pocket and took something out of the bottle. The officers

saw that Hobbs had a hypodermic needle in her hands, and watched as the three

individuals knelt behind some bushes. When they emerged, Franze was licking his arm

near the joint area. Franze negotiated with Gustafson over the price of pills, and a

transaction occurred between Gustafson, Hobbs, and Franze.          After the transaction,

Gustafson met Officers Heflin and Bonewit at a prearranged location, and Gustafson

handed over two Oxymorphone tablets acquired from Hobbs and Franze.

       The State charged Franze with Count 1, dealing in a schedule II controlled

substance, a Class B felony, and Count 2, unlawful possession of a syringe, a Class D

felony. A jury trial was held, and Franze was found guilty of both counts. Franze

received sentences of ten years on Count 1 and one and one-half years on Count 2, to be

served concurrent. This appeal followed.

                                   Discussion and Decision

                                       I. Entrapment

       Indiana law provides for the defense of entrapment as follows:

       (a) It is a defense that:



                                             3
                (1) the prohibited conduct of the person was the product of a law
                enforcement officer, or his agent, using persuasion or other means
                likely to cause the person to engage in the conduct; and
                (2) the person was not predisposed to commit the offense.
         (b) Conduct merely affording a person an opportunity to commit the
         offense does not constitute entrapment.

Ind. Code § 35-41-3-9. Where a defendant relies on the defense of entrapment and

establishes police inducement, the burden shifts to the State to prove beyond a reasonable

doubt that the defendant was predisposed to commit the crime. Dockery v. State, 644

N.E.2d 573, 577 (Ind. 1994). Whether a defendant was predisposed to commit the crime

is a question for the trier of fact. Id.

         At trial, Franze raised the defense of entrapment, but the jury nevertheless found

Franze guilty of both charges. Franze argues he established that police induced his

conduct and that the State failed to present sufficient evidence to rebut Franze’s

entrapment defense and prove beyond a reasonable doubt that he was predisposed to sell

drugs.

         An appellate court reviews a claim of entrapment using the same standard applied

to other challenges to the sufficiency of evidence. Turner v. State, 993 N.E.2d 640, 644

(Ind. Ct. App. 2013), trans. denied. We neither reweigh the evidence nor judge the

credibility of the witnesses, and we must “respect[] the jury’s exclusive province to

weigh conflicting evidence.”        McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)

(citation omitted). We consider only the probative evidence and reasonable inferences

therefrom supporting the verdict. Id. We will affirm “if the probative evidence and




                                              4
reasonable inferences drawn from the evidence could have allowed a reasonable trier of

fact to find the defendant guilty beyond a reasonable doubt.” Id. (citation omitted).

       The State presented sufficient evidence to show Franze’s predisposition to sell

drugs. “Factors that indicate a predisposition to sell drugs include a knowledge of drug

prices, use and understanding of terminology of the drug market, solicitation of future

drug sales, and multiple drug sales.” Wattley v. State, 721 N.E.2d 353, 355 (Ind. Ct.

App. 1999). At trial, Gustafson testified that he had purchased drugs from Franze in the

past, and prior to the controlled buy, Gustafson told police he believed Franze would

continue to sell to him in the future. Gustafson also testified that Franze negotiated a

price for the drugs. And further, Franze testified at trial and admitted that he told

Gustafson that he could get him “some 40’s”—another type of pill—sometime in the

future. Transcript at 107. This was sufficient evidence for the jury to conclude that

Franze was predisposed to commit the crime of dealing in a schedule II controlled

substance.

                             II. Admission of Audio Recording

       Next, Franze contends the trial court erred by allowing into evidence an audio

recording made during the controlled buy. Franze argues that the recording is of such

poor quality that its substance was unhelpful to the jury, and thus the recording should

have been found inadmissible. Appellant’s Brief at 15 (citing Dearman v. State, 743

N.E.2d 757, 762 (Ind. 2001) (“To be admissible at trial, a recording must be of such

clarity as to be intelligible and enlightening to the jury.”)).



                                               5
         Franze did not object to the audio recording’s admission at trial, and he makes this

argument for the first time on appeal.                        It is well-settled that failure to make a

contemporaneous objection to the admission of evidence at trial results in forfeiture of

the issue on appeal. Brown v. State, 929 N.E.2d 204, 206-07 (Ind. 2010). Ordinarily, a

party may argue on appeal that, despite a failure to object, reversal is nonetheless proper

where fundamental error has occurred. Curtis v. State, 948 N.E.2d 1143, 1148 (Ind.

2011). However, if a party fails to raise the issue of fundamental error in his initial brief,

then that issue is forfeited.            Id. Franze did not assert that admission of the audio

recording was fundamental error in his Appellant’s Brief, and thus, we need not

determine whether fundamental error has occurred. In sum, Franze’s argument that the

audio recording was inadmissible is forfeited for the purposes of appellate review.1

                                             III. Franze’s Sentence

         Finally, Franze asserts that his ten-year advisory sentence2 is inappropriate in light

of the nature of his offenses and his character. Indiana Appellate Rule 7(B) provides

appellate courts with the authority to revise a defendant’s 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.” It is


         1
             Even if an objection had been made at trial, and even if Franze is correct that the recording was
inadmissible, it is unlikely that admission of the audio recording would be reversible error. Testimony from
Gustafson, Franze, Officer Heflin, and Officer Bonewit, along with video evidence of the controlled buy, was
sufficient to prove Franze’s guilt beyond a reasonable doubt. Accordingly, any error in the tape’s admission would
be harmless. See Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) (stating the improper admission of evidence
is harmless error “if the conviction is supported by substantial independent evidence of guilt satisfying the reviewing
court there is no substantial likelihood the challenged evidence contributed to the conviction”).
         2
            At the time of Franze’s offenses, the advisory sentence for a Class B felony was ten years, with a
sentencing range of six to twenty years. See Ind. Code § 35-50-2-5 (2012).

                                                          6
the defendant’s burden to persuade the reviewing court that the sentence is inappropriate.

Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).

         Regarding the nature of his offense, Franze attempts to minimize his apparent

culpability and shift blame from himself to Hobbs, suggesting that the evidence at trial

indicates that she, rather than Franze, was the primary culprit in the drug transaction. We

observe, however, that evidence of Franze’s level of culpability is conflicting to say the

least.

         As for Franze’s character, his criminal history includes a slew of misdemeanor

convictions, including acts of disorderly conduct, receiving stolen property, and most

importantly, two instances of possession of marijuana. See Johnson v. State, 986 N.E.2d

852, 857 (Ind. Ct. App. 2013) (stating a defendant’s criminal history is relevant in

assessing a defendant’s character for purposes of sentence review). The trial court also

recognized that Franze has previously had the benefit of probation, which he violated,

and the benefit of a court-ordered drug program, which did not resolve his addiction

issues. Although this is Franze’s first felony conviction, his history certainly does not

warrant a sentence reduction by this court. In sum, Franze has not convinced us that the

trial court’s imposition of the advisory sentence was inappropriate.

                                       Conclusion

         Concluding there was sufficient evidence to prove Franze was predisposed to

commit the offense of dealing in a schedule II controlled substance, that the issue of the

audio recording’s admissibility has been forfeited for appellate review, and that Franze’s



                                             7
sentence is not inappropriate in light of the nature of his offenses or his character, we

affirm.

          Affirmed.

BAKER, J., and KIRSCH, J., concur.




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