MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Jul 15 2016, 10:04 am
this Memorandum Decision shall not be
                                                                        CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Gregory F. Zoeller
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ricky D. Wessel,                                         July 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1601-CR-17
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Peggy Hart,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1502-F5-4730



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016           Page 1 of 10
                                            Statement of the Case
[1]   Ricky Wessel (“Wessel”) appeals his conviction, following a jury trial, for Level

      5 felony carrying a handgun without a license.1 Wessel contends that there was

      insufficient evidence to support his conviction. Concluding that Wessel’s

      contention is merely a request to reweigh the evidence, we affirm the

      conviction.

[2]   We affirm.

                                                     Issue
                 Whether sufficient evidence supports Wessel’s conviction.

                                                     Facts
[3]   On February 6, 2015, at around 2:00 A.M., Indianapolis Metropolitan Police

      Department (“IMPD”) Officer Erin Anderson (“Officer Anderson”) was

      dispatched to the 2100 block of Lexington Avenue upon a report that two

      Hispanic males were carrying handguns. Officer Anderson, in her fully-marked

      police vehicle and police uniform, arrived at the location a few minutes after the

      dispatch and saw two men walking east near Lexington Avenue. She later

      identified one of the men as Wessel. Officer Anderson parked her vehicle

      approximately ten to fifteen feet away from the men and shined her headlights

      directly on the pair. Walking two to three feet apart, the men first stopped

      when they saw Officer Anderson, but they then began walking towards her




      1
          IND. CODE § 35-47-2-1(a), (e)(2)(B).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016   Page 2 of 10
      vehicle. Officer Anderson observed the men looking back at her, and then

      Wessel, who had his hands down at his sides, dropping something from his

      hand. (Tr. 30, 42). Based on the impact of the object, Officer Anderson “knew

      it was something heavy.” (Tr. 40). Shortly thereafter, Officer Anderson exited

      her car, asked the men what was going on, and began to approach them.

      Officer Anderson further observed that Wessel was continuously looking back

      at the object he had dropped. Wessel’s actions led Officer Anderson to be

      concerned that the object was a weapon, and she requested backup.


[4]   Shortly thereafter, Officer Bob Tyron arrived at the scene and stayed with the

      men as Officer Anderson went to investigate the area where Wessel had

      dropped the object. While searching the area with a flashlight, Officer

      Anderson found a silver revolver with a brown handle. Officer Anderson did

      not touch the weapon, but rather stood by it as she waited for an evidence

      technician to recover it. It was later determined that Wessel did not have a

      license to carry a handgun.


[5]   The State charged Wessel with Count 1, carrying a handgun without a license,

      as a Class A misdemeanor. The charge was further enhanced to Level 5 felony

      carrying a handgun without a license based on the allegation that Wessel had

      “previously been convicted of a felony within fifteen (15) years before the date

      of this offense, that is: intimidation, a Class D felony.” (App. 24). A bifurcated

      jury trial was held on November 17, 2015. During Phase I of the trial, Officer

      Anderson testified as to the facts of the possession of a handgun without a

      license charge. The State further introduced Exhibit 3, which Officer Anderson

      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016   Page 3 of 10
      testified was the “firearm, the cylinder that goes in the firearm and [] the [eight]

      live rounds that were in the firearm.” (Tr. 37). Officer Anderson testified that

      the serial number on the weapon matched those she had recorded in her report

      on the night of the offense. The jury found Wessel guilty of the Class A

      misdemeanor charge.


[6]   During Phase II of trial, Matthew Wiesjahm (“Wiesjahm”) of the IMPD

      testified as a fingerprint analyst and keeper of records. Wiesjahm testified that

      he had compared Wessel’s fingerprints created from his arrest in this case to the

      thumbprint on a certified Officer’s Arrest Report (“OAR”) from Wessel’s 2004

      felony intimidation arrest under the cause number ending in 142017. Wiesjahm

      found that the two fingerprints were made by “one and the same person” whom

      he identified as Ricky Wessel. (Tr. 90). The State further introduced Exhibit 6,

      a certified Chronological Case Summary (“CCS”) which included an entry

      showing that Wessel had been previously convicted in 2005 of Class C felony

      intimidation under cause number 49G17-0408-FC-142017. At the conclusion

      of the second phase of trial, the jury found Wessel guilty of Level 5 felony

      carrying a handgun without a license based upon its determination that he had

      a prior felony conviction within fifteen years of the current offense.


[7]   On December 16, 2015, the trial court held a sentencing hearing. The trial

      court imposed an executed four (4)-year sentence, two (2) years of which were

      to be served with the Indiana Department of Correction and two (2) years in

      Community Corrections. Wessel now appeals.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016   Page 4 of 10
                                                  Decision
[8]   Wessel argues that the State presented insufficient evidence to support his

      conviction for Level 5 felony possession of a handgun without a license. He

      challenges the evidence supporting the trial court’s conclusion that he possessed

      a handgun and the evidence supporting his prior felony conviction

      enhancement.


[9]   In Drane v. State, 876 N.E.2d 144, 146-47 (Ind. 2007), our Indiana Supreme

      Court stated our standard of review for a challenge to the sufficiency of the

      evidence as follows:

              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 the 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 in 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, 876 N.E.2d at 146-47 (internal quotation marks and citations omitted)

      (emphasis in original).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016   Page 5 of 10
[10]   INDIANA CODE § 35-47-2-1(a) provides, in relevant part, that “a person shall

       not carry a handgun . . . on or about the person’s body without being licensed

       under this chapter to carry a handgun.” This statute provides that a person who

       violates this provision commits a Class A misdemeanor. I.C. § 35-47-2-1(e).

       However, the offense is a Level 5 felony . . . if the person . . . has been

       convicted of a felony within fifteen (15) years before the date of the offense.”

       See I.C. § 35-47-2-1(e)(2)(B). Thus, to convict Wessel of Level 5 carrying a

       handgun without a license as charged, the State needed to prove beyond a

       reasonable doubt that Wessel knowingly carried a handgun, did not have a

       license to do so, and that he had been convicted of a prior felony within fifteen

       years of the underlying offense.


[11]   We address Wessel’s first challenge to his carrying a handgun without a license

       conviction. Wessel admits that he dropped the object found by Officer

       Anderson but argues that there was insufficient evidence to show that it was a

       handgun. Specifically, Wessel argues that “the State’s sole witness did not test

       fire the object, touch the object or closely examine it,” thereby failing to prove it

       was capable of expelling a projectile by means of explosion. (Wessel’s Br. 12).


[12]   The statutory definition of a handgun means any firearm:

               (1) designed or adapted so as to be aimed and fired from one (1)
               hand, regardless of barrel length; or

               (2) any firearm with;

                        (A) a barrel less than sixteen (16) inches in length; or


       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016   Page 6 of 10
                        (B) an average length of less than twenty-six (26) inches.

       I.C. § 35-47-1-6. Under Indiana law, a firearm is “any weapon that is capable

       of expelling, or designed to expel, or that may readily be converted to expel a

       projectile by means of an explosion.” I.C. § 35-47-1-5.


[13]   Contrary to Wessel’s assertion that the State failed to prove that the object he

       dropped was a handgun, Indiana law does not require the State to prove the

       gun was operable at the time. State v. Gibbs, 769 N.E.2d 594, 596-97 (Ind. Ct.

       App. 2002), trans. denied. It is sufficient for the State to establish that the

       handgun was designed to expel a projectile by means of explosion, rather than

       actually and currently capable of doing so. Id. (citing Manley v. State, 656

       N.E.2d 277, 279 (Ind. Ct. App. 1995), trans. denied). The objective behind our

       Court’s interpretation of the possession of a handgun without a license statute

       likely reflects our legislature’s recognition that a firearm is inherently

       dangerous, even if inoperable or unloaded, because firearms can create a

       substantial risk of harm to others. Id.


[14]   Here, the State presented sufficient evidence showing that Wessel had

       possession of a handgun, which was capable of expelling a projectile, without a

       license. The State introduced the gun into evidence with no objections.

       Moreover, Officer Anderson, an eight-year IMPD veteran, specifically

       identified that the object that Wessel had dropped as a firearm. The evidence

       introduced also contained the cylinder of the firearm necessary to expel the live

       rounds that were in the firearm. Wessel’s contention that the State failed to

       prove beyond a reasonable doubt that the object in question was a handgun is
       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016   Page 7 of 10
       merely a request for this Court to reweigh the evidence presented at trial, which

       we will not do. See Drane, 876 N.E.2d at 146.


[15]   As for Wessel’s prior felony conviction challenge, he argues that the documents

       presented by the State were insufficient to support the prior felony enhancement

       of his possession of a handgun without a license conviction. When reviewing

       the issue of insufficient evidence to support a prior felony conviction, we must

       consider only evidence with substantial probative value. Dexter v. State, 959

       N.E.2d 235, 239 (Ind. 2012). Our Indiana Supreme Court has held that:

               Certified copies of judgements or commitments containing a
               defendant’s name or a similar name may be introduced to prove
               the commission of prior offenses. While there must be
               supporting evidence to identify the defendant as the person
               named in the documents, the evidence may be circumstantial. If
               the evidence yields a logical and reasonable inferences from
               which the finder of fact may determine beyond a reasonable
               doubt that it was a defendant who was convicted of the prior
               felony, then a sufficient connection has been shown.


       Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002) (internal citations omitted.).

       Furthermore, we have explained that when proving a prior conviction, “[t]he

       issue is proof beyond a reasonable doubt, and that proof may be achieved by the

       use of any properly admissible evidence sufficient to establish the ultimate fact.”

       Grant v. State, 870 N.E.2d 1049, 1051 (Ind. Ct. App. 2007), trans. denied.


[16]   Contrary to Wessel’s assertion, the evidence presented at trial was sufficient to

       support his prior felony conviction enhancement. Here, the State introduced a

       thumbprint identification card produced by Wiesjahm, as well as a certified
       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016   Page 8 of 10
       thumbprint on OAR from Wessel’s 2004 arrest with the cause number ending

       in 142017. The OAR included Wessel’s name and date of birth. The State also

       introduced a certified CCS with cause number 49G17-0408-FC-142017, which

       contained an entry showing that Wessel had been convicted of Class C felony

       intimidation in 2005. The CCS included Wessel’s name and date of birth,

       which matched the name and date of birth identifying Wessel in the OAR.

       Additionally, Wiesjahm, who testified as a fingerprint analyst, compared the

       two documents and determined that the thumbprints were from the same

       person.


[17]   Wessel cites to Dexter and Abdullah v. State, 847 N.E.2d 1031 (Ind. Ct. App.

       2006) to support his claim that the certified CCS and other documents were not

       sufficient to show that he had a prior felony conviction. Dexter, 959 N.E.2d at

       235. These cases, however, do not support his contention. Wessel

       misinterprets the case law from Abdullah, which provides that beside an entry of

       judgment under Trial Rule 58, “there are numerous other means by which the

       State may elect to prove a prior conviction[,] . . . including . . . case

       chronologies.” Abdullah, 847 N.E.2d at 1034. Furthermore, Dexter is clearly

       distinguishable from the present case. In that case, the State tried to prove a

       prior conviction by presenting an unsigned abstract of judgment and a “Rules of

       Probation” form, which merely stated the terms of probation. Here, however,

       that State presented a certified copy of a CCS, which included Wessel’s

       identifying information and information regarding his prior felony conviction.

       Our Indiana Trial Rules state that a CCS is an official record of the court. See


       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016   Page 9 of 10
       T.R. 77(B). With certified copies of Wessel’s CCS and OAR, and the

       identification testimony from Wiesjahm, a reasonable jury could find, beyond a

       reasonable doubt, that Wessel was the same person convicted of a prior felony

       within fifteen years of the underlying conviction. See e.g. Grant, 870 N.E.2d at

       1051 (finding fingerprint evidence from arrest reports and CCS “gallery

       numbers” from prior felony convictions presented at trial sufficient to support a

       prior felony conviction). Accordingly, we affirm Wessel’s Level 5 felony

       possession of a handgun without a license conviction. 2


[18]   We affirm.


       Kirsch, J., and Riley, J., concur.




       2
        We note that Wessel’s suggestion that his due process rights were violated under the U.S. and Indiana
       Constitution is waived because he makes no cogent argument or citation to any authority. See Ind. App R.
       46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016            Page 10 of 10
