Pursuant to Ind. Appellate Rule 65(D),

                                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                          Sep 07 2012, 9:11 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.                                                             CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JEFFREY G. RAFF                                  GREGORY F. ZOELLER
Deputy Public Defender                           Attorney General of Indiana
Fort Wayne, Indiana
                                                 BRIAN L. REITZ
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DAMIONNE M. NICHOLS,                             )
                                                 )
       Appellant,                                )
                                                 )
              vs.                                )       No. 02A04-1203-CR-133
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee.                                 )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                             Cause No. 02D06-1101-FB-11


                                     September 7, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                STATEMENT OF THE CASE

         Damionne Nichols (“Nichols”) appeals his conviction and sentence for unlawful

possession of a firearm by a serious violent felon, a class B felony. 1

         We affirm.

                                           ISSUES

         1.      Whether there is sufficient evidence to support Nichols’s
                 conviction.

         2.      Whether Nichols’s sentence is inappropriate pursuant to Indiana
                 Appellate Rule 7(B).

                                            FACTS

         During the afternoon of January 15, 2011, Malcolm Robinson answered a knock at

the door of his Fort Wayne home, which he shared with his mother, Mazelle Robinson,

and brother, Micah Robinson. Malcolm opened the door to find Nichols standing on the

porch. Malcolm noticed that Sheila Robinson, Micah’s estranged wife and Nichols’s

mother, was sitting in Micah’s white Oldsmobile Bravada, which was parked in front of

the residence. Nichols appeared upset, “[l]ike he wanted to snap, like he wanted to go off

on somebody,” and demanded to see Micah. (Tr. 46).

         Micah, Mazelle, and Danielle Robinson, Malcolm’s sister, who was visiting, all

walked out onto the front porch. “[A] lot of loud talking, arguing, [and] disrespect . . .”

ensued. (Tr. 48). During the exchange, all three of the Robinson siblings observed the



1
    Ind. Code § 35-47-4-5.

                                               2
grip of a gun sticking out of Nichols’s waistband.         Upon seeing the gun, Danielle

telephoned the police.

       Before the police arrived, Keenan Nichols, Nichols’s brother, “came and grabbed

him off the porch” and convinced Nichols to leave. (Tr. 48). Nichols, Keenan, and

Sheila drove off in the Bravada.

       Shortly after police dispatch relayed a description of Nichols and the Bravada,

Patrol Sergeant Trent Farrell saw Sheila pull into a gas station parking lot. Officer Farrell

observed that she “used the lot illegally to avoid the [traffic] light.” (Tr. 88). Officer

Farrell began following the vehicle and confirmed that it was the vehicle for which

officers were searching. Officer Farrell initiated a “felony high risk traffic stop” because

there was a report that one of the passengers was armed. (Tr. 92-93).

       Officer Farrell drew his weapon, and as he approached the vehicle, ordered the

occupants to put up their hands. Sheila and Keenan, who were in the front of the vehicle,

immediately did as Officer Farrell ordered. Nichols, however, “kind of ducked down,”

(Tr. 91), and Officer Farrell could see him making “a furtive movement” in the back seat.

(Tr. 102). After Officer Farrell repeated his order, Nichols finally put up his hands.

       After back-up officers removed and secured the vehicle’s occupants, Officer

Farrell approached the vehicle “to visually clear [it] and make sure” no one was hiding in

it. (Tr. 93). He noticed “a gun that was stuck down in the map pocket” on the back of

the driver’s seat. (Tr. 96). The gun, a Taurus Millenium 9mm handgun, did not have a

magazine in it. Officers placed Nichols under arrest.

                                             3
       On January 21, 2011, the State charged Nichols with unlawful possession of a

firearm by a serious violent felon, a class B felony. The trial court held a jury trial on

January 19, 2012.

       Detective Okey Sharp testified that a semi-automatic weapon does not need a

magazine in order to fire if it has a round in the chamber. During the trial, officers

present at the scene testified that either they did not know or could not recall whether the

gun had a round in the chamber when they collected it from the vehicle. The trial court

admitted the gun into evidence; no one, however, testified that the gun was in fact a semi-

automatic handgun. The jury found Nichols guilty as charged.

       The trial court held a sentencing hearing on February 28, 2012. According to the

presentence investigation report (“PSI”), Nichols had several adjudications as a juvenile

delinquent between 1996 and 2000. These included adjudications for crimes which, if

committed by an adult, would have constituted battery, criminal conversion, class D

felony theft, and class D felony receiving stolen property. The PSI further showed that,

as an adult, Nichols had been convicted of resisting law enforcement, criminal

conversion, driving without a license, disorderly conduct, unauthorized absence from

home detention, class C felony battery, and class D felony criminal recklessness. Nichols

also had had his probation revoked on two occasions, two suspended sentences revoked,

and a work-release placement revoked.




                                             4
       The PSI further showed that Nichols has three children, each of whom resides with

his or her respective mother. Although Nichols had been ordered to pay child support for

two of his children, he had not been employed since 2009.

       During the sentencing hearing, Nichols proffered as a mitigating circumstance that

his incarceration would impose a hardship on his children. After considering aggravating

and mitigating circumstances and finding that the aggravators, particularly Nichols’s

criminal history, outweighed the mitigators, the trial court sentenced Nichols to sixteen

years executed at the Department of Correction.

                                        DECISION

1. Sufficiency of the Evidence

       Nichols asserts that the evidence is insufficient to support his conviction.

Specifically, he contends that the gun in his possession was not a firearm.

               When reviewing the sufficiency of the evidence to support a
       conviction, appellate courts must consider only the probative evidence and
       reasonable inferences supporting the verdict. It is the fact-finder’s role, not
       that of appellate courts, to assess witness credibility and weigh the evidence
       to determine whether it is sufficient to support a conviction. To preserve
       this structure, when appellate courts are confronted with conflicting
       evidence, they must consider it most favorably to the trial court’s ruling.
       Appellate courts affirm the conviction unless no reasonable fact-finder
       could find the elements of the crime proven beyond a reasonable doubt. It
       is therefore not necessary that the evidence overcome every reasonable
       hypothesis of innocence. The evidence is sufficient if an inference may
       reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations and citations omitted)

(emphasis added).


                                             5
        Indiana Code § 35-47-4-5 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 class B felony.2 Indiana Code § 35-47-1-5 defines “firearm” as any

weapon that is:

                (A) capable of expelling; or
                (B) designed to expel; or
                (2) that may readily be converted to expel; a projectile by means of
                an explosion.

Nichols argues that the gun in his possession was not capable of expelling a projectile by

means of explosion because it did not have a magazine, and therefore, it was not a

firearm as defined by the statute.

        In Staten v. State, 844 N.E.2d 186, 187 (Ind. Ct. App. 2006), trans. denied, this

court held that Indiana Code § 35-47-1-5 “clearly contemplates that some conversion,

such as reorganization or assembly, of parts may be required.” The court therefore

concluded that “the statute includes in the definition of ‘firearm’ a disassembled gun.”

Id. In State v. Gibbs, 769 N.E.2d 594, 596-97 (Ind. Ct. App. 2002), trans. denied, this

court held that, even though inoperable, a gun that was designed to expel projectiles by

means of an explosion fell within the statutory definition of a firearm. See also Manley v.

State, 656 N.E.2d 277, 279 (Ind. Ct. App. 1995) (finding that a “handgun is, by

definition, a firearm with certain characteristics” and that a handgun need not be operable

to fit within the definition of a firearm), trans. denied.


2
  During the trial, Nichols stipulated that he “ha[d] a qualifying prior conviction under IC 35-47-4-5 from
the Allen Superior Court . . . dating from November 5, 2004.” (State’s Ex. 5).
                                                    6
       The absence of a magazine notwithstanding, the gun in this case was “designed to

expel . . . a projectile by means of an explosion.” See I.C. § 35-47-1-5. Even if, as

Nichols claims, the gun was designed to expel a projectile only when outfitted with a

magazine, the gun was “capable” of expelling a projectile. See, e.g., Staten, 844 N.E.2d

at 187 (holding that a disassembled gun meets the definition of a firearm). Thus, contrary

to Nichols’s assertion, whether the magazine was readily available is of no significance.

See id. at 188 (“[T]he fact that the handgun was not immediately capable of firing was

irrelevant under the statute.”).   We therefore find the evidence sufficient to sustain

Nichols’s conviction.

2. Inappropriate Sentence

       Nichols also asserts that his sentence is inappropriate. He maintains that “the

nature of the offense is not so aggravated as to justify a sixteen (16) year sentence”

because the gun “was inoperable because it did not have a magazine, . . . was not loaded,”

and “was not used in a threatening or dangerous manner.” Nichols’s Br. at 7.

       We may revise a sentence if it is inappropriate in light of the nature of the offense

and the character of the offender. Ind. Appellate Rule 7(B). It is the defendant’s burden

to “‘persuade the appellate court that his or her sentence has met th[e] inappropriateness

standard of review.’” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218 (Ind. 2007) (quoting Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006)).



                                             7
       In determining whether a sentence is inappropriate, 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. Indiana Code § 35-50-2-5 provides that “[a]

person who commits a Class B felony shall be imprisoned for a fixed term of between six

(6) and twenty (20) years, with the advisory sentence being ten (10) years.” Again,

Nichols received a sentence of sixteen years.

       As to the nature of the offense, the evidence shows that Nichols went to his

stepfather’s home while armed with a firearm in order to confront his stepfather. The

exchange between Nichols and the Robinson family became heated and could have

escalated into violence, as indicated by Micah’s testimony that, upon seeing the gun, his

intention became to defend his family and that he “was gonna [sic] do what [he] had to

do” to defend them. (Tr. 61). The presence of the gun also frightened Danielle enough

that she telephoned the police.

       As to Nichols’s character, the record shows that he has an extensive criminal

history spanning over a decade, including offenses against persons. Given Nichols’s

criminal history of convictions and probation violations, it is clear that he has a disregard

for the law. We therefore cannot say that his sentence of sixteen years in the Department

of Correction is inappropriate.

       Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.



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