MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Jan 23 2019, 9:12 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce E. Andis                                           Curtis T. Hill, Jr.
Bedford, Indiana                                         Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph M. Backenstoes,                                   January 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1297
        v.                                               Appeal from the Lawrence
                                                         Superior Court
State of Indiana,                                        The Honorable William Sleva,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         47D02-1710-F4-1533



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019                  Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Joseph Backenstoes (Backenstoes), appeals his conviction

      for unlawful possession of a firearm by a serious violent felon (SVF), a Level 4

      felony.


[2]   We affirm.


                                                    ISSUE
[3]   Backenstoes presents a single issue on appeal, which we restate as follows:

      Whether the State presented sufficient evidence beyond a reasonable doubt to

      establish that he had a prior conviction in Louisiana that would make him a

      SVF.


                      FACTS AND PROCEDURAL HISTORY
[4]   In May 2017, Backenstoes resided with his cousin Debbie Craig (Debbie) in her

      two-bedroom residence in Fayetteville, Lawrence County, Indiana. Also living

      in Debbie’s house was Debbie’s husband, Travis Craig (Travis), and their

      children.


[5]   On October 6, 2017, the Lawrence County Sherriff’s Department was

      investigating the homicide of Travis which had occurred in his home. During

      the investigation, the deputies learned that Backenstoes resided in Travis’ and

      Debbie’s home. Sometime that day, Detective Phil Wigley (Detective Wigley)

      interviewed Backenstoes at the station. During a recorded interview,

      Backenstoes offered his date of birth as November 2, 1989, and he “admitted to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019   Page 2 of 11
      shooting shotguns and several rifles” at Travis’ and Debbie’s compound.

      (Appellant’s App. Vol. II, p. 8). The officers later obtained a search warrant of

      Travis’ and Debbie’s home. During the search, the officers seized about twenty

      firearms from the residence. On October 7, 2017, “Detective Wigley became

      aware that Backenstoes has a prior conviction[] for . . . burglary of an inhabited

      dwelling in the [S]tate of Louisiana.” (Appellant’s App. Vol. II, p. 8).


[6]   On November 6, 2017, the State filed an Information, charging Backenstoes

      with unlawful possession of a firearm by a SVF, a Level 4 felony. A two-day

      jury trial was held on March 27 through March 28, 2018. During its case-in-

      chief, the State moved to admit Exhibit 12, a group of certified documents from

      a district court in Louisiana. With that exhibit, the State intended to prove that

      Backenstoes had a prior felony conviction in Louisiana, for “simple burglary of

      an inhabited dwelling.” (State’s Exh. 12). Backenstoes objected to the

      admission of that exhibit, arguing that it was hearsay and unduly prejudicial.

      After the parties’ arguments, the trial court admitted Exhibit 12 over

      Backenstoes’ objection, however, it redacted specific portions of the exhibit

      which had a reference to other charges which did not result in a conviction. At

      the close of the State’s case-in-chief, Backenstoes moved for judgment on the

      evidence pursuant to Indiana Trial Rule 50. Backenstoes’ sole basis for his

      motion for a directed verdict was his contention that the State had presented an

      unsigned document to prove his prior burglary conviction in Louisiana. After

      the parties’ arguments, the trial court denied the motion. Following the

      presentation of all evidence, the jury found Backenstoes guilty as charged. On


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019   Page 3 of 11
       April 26, 2018, the trial court conducted a sentencing hearing, and thereafter

       sentenced Backenstoes to ten years in the Department of Correction.


[7]    Backenstoes now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[8]    Backenstoes argues that the State presented insufficient evidence beyond a

       reasonable doubt to prove that he had a prior conviction in Louisiana that

       would make him a SVF.


[9]    When reviewing a claim of sufficiency of the evidence, we neither reweigh the

       evidence nor judge the credibility of witnesses. Jones v. State, 783 N.E.2d 1132,

       1139 (Ind. 2003). We look only to the probative evidence supporting the

       judgment and the reasonable inferences from that evidence to determine

       whether a reasonable trier of fact could conclude the defendant was guilty

       beyond a reasonable doubt. Id. We will uphold the conviction if there is

       substantial evidence of probative value to support it. Id.


[10]   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
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019   Page 4 of 11
               the evidence yields a logical and reasonable inference 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, 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.


[11]   In order to convict Backenstoes of Level 4 felony unlawful possession of a

       firearm by a SVF, the State needed to prove beyond a reasonable doubt that

       Backenstoes knowingly or intentionally possessed a firearm, and that he had

       previously been convicted of a serious violent felony in Indiana or in “any other

       jurisdiction in which the elements of the crime for which the conviction was

       entered are substantially similar to the elements of a serious violent felony” in

       Indiana. I.C. § 35-47-4-5(a)(1). The statute lists several offenses that qualify as

       serious violent felonies, including our own version of burglary (I.C. § 35-43-2-

       1); see also Louisiana Revised Statute 14:62.2 (providing, in part, that a simple

       burglary of an inhabited home is the unauthorized entry of any inhabited

       dwelling, house, apartment, or other structure used in whole or in part as a

       home or place of abode by a person or persons with the intent to commit a

       felony or any theft therein, other than as set forth). In the instant case, the State

       alleged that Backenstoes had a prior felony conviction for simple burglary of an

       inhabited dwelling in Louisiana. See I.C. § 35-47-4-5(b)(16).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019   Page 5 of 11
[12]   Here, it was incumbent upon the State to demonstrate that Backenstoes was the

       person convicted of the prior burglary conviction in Louisiana as alleged in the

       charging Information, and the State presented Exhibit 12, which encompassed

       certified minutes of a district court to support the allegation that Backenstoes

       had been convicted of a prior felony listed under Indiana Code section 35-47-4-

       5(b)(16).


[13]   Backenstoes repeatedly refers to Exhibit 12 as an unsigned abstract of judgment,

       however, we note that Exhibit 12 was a group of certified documents from a

       district court. The documents included an Information, filed on October 19,

       2009, showing that Backenstoes had been charged with other co-defendants for

       armed robbery, and an amendment of the same charging Information filed on

       February 22, 2010, indicating that the armed robbery offense had been reduced

       to a simple robbery, however, this charge did not yield a conviction. While

       these documents formed part of Exhibit 12, the trial court excluded their

       admission after concluding that they were “pretty darn prejudicial.” (Tr. Vol.

       III, p. 51). However, the trial court found an extract of the minutes by the

       district court dated November 18, 2010, probative. The minutes indicated that

       Backenstoes had appeared before a district court judge for a charge of simple

       burglary of an inhabited dwelling, a no-contest guilty plea was entered, and

       Backenstoes was subsequently sentenced to a term of seven years in the

       Louisiana Department of Correction. Notably, the district court minutes

       included Backenstoes’ personal identifying information, including his date of




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019   Page 6 of 11
       birth, and that information matched the information Detective Wigley offered

       at Backenstoes jury trial.


[14]   On appeal, Backenstoes relies on Abdullah v State, 847 N.E.2d 1031, 1033 (Ind.

       Ct. App. 2006). In that case, to establish the defendant’s dual status as a SVF

       and an habitual offender, the State submitted certified copies of an abstract of

       judgment, charging documents, probable cause affidavits, and arrest records to

       prove the defendant had been convicted of robbery in 1993. Id. The abstract of

       judgment was the only document suggesting a conviction, but it was not signed

       by the trial judge. Id. Citing Trial Rule 58, we held that an abstract of

       judgment must include a judicial signature in order to be a final record of the

       court's ruling. Id. at 1034. We reasoned that, standing alone, an unsigned

       abstract of judgment fails to represent the trial court’s final judgment and,

       therefore, was insufficient to prove a prior conviction for purposes of proving

       Abdullah’s statuses as a SVF and a habitual offender. Id. at 1035.


[15]   Turning to the record, after the State rested, Backenstoes pursued a motion for

       directed verdict, arguing that the State had presented insufficient evidence of his

       prior burglary conviction in Louisiana. After the parties’ arguments, the trial

       court denied Backenstoes’ motion and stated the following:


               All right, I actually shepardized [Abdullah] and all the prodigy are
               unpublished, but they all say the same thing [Abdullah] says.
               So[,] here’s my ruling based on my understanding of [Abdullah]
               and Trial Rule 58. I’m denying [Backenstoes’] motion because . .
               . [Abdullah] says other evidence could be admitted to show the
               conviction and it does say things like . . . Let me find it. . . it talks

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019   Page 7 of 11
               about, of course testimony from the officers which we clearly
               didn’t have. But it talks about . . . a judicial signature. . . but we
               didn’t have that either. But what is in evidence is a clear
               indication that this was done before the court. It says, [c]ourt
               convened at the hour of 9:00 a.m. before the Honorable Robert
               H. Morrison III District Judge, Division C, and there was a clerk
               of the court there, district attorney there[,] and court reporter.
               And so[,] it does have an indication that this was before a judicial
               officer.


               And it further states that the court read the law and possible
               penalties and charge to [Backenstoes]. . . [Backenstoes] entered a
               plea of no[] contest to the charge. Then it says the court advised
               [Backenstoes] of his right to file for post-conviction relief within
               two years. The court accepted the plea finding there is a factual
               basis for the plead [sic] and the plea is knowingly, intelligently
               and voluntarily made and is therefore accepted by the court.


               The court imposed the following sentence, in fact, I think one of
               the things [Abdullah] said which could be allowed is a sentencing
               document.


               So[,] I do believe that what’s before me and part of the evidence
               is distinguishable from [Abdullah], plus the fact that the . . .
               conviction in [Abdullah] . . . is an Indiana conviction. This is a
               Louisiana, so . . . [t]hat’s minor compared to the language of the
               court.


       (Tr. Vol. III, pp. 69-70).


[16]   We find Backenstoes reliance on Abdullah misplaced since Abdullah related to

       an incident where the State sought to prove a prior conviction with an unsigned

       abstract of judgment. Abdullah, 847 N.E.2d at 1034. An abstract of judgment is


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019   Page 8 of 11
       a “form issued by the Department of Correction and completed by trial judges

       for the convenience of the Department.” Robinson v. State, 805 N.E.2d 783, 794

       (Ind. 2004). This form is to be sent to the Department of Correction along with

       all other documents required by law, “upon the commitment of the adult

       offender to the Indiana Department of Correction.” Id. In Backenstoes’ case, a

       conviction was entered in 2010 for a burglary offense committed in Louisiana.

       At Backenstoes’ jury trial, the State sought to establish Backenstoes’ Louisiana

       burglary conviction by presenting certified district court minutes, and not an

       abstract of judgment.


[17]   With that said, we note that in Abdullah, we held that there are numerous other

       means by which the State may elect to prove a prior conviction. Abdullah, 847

       N.E.2d at 1034. We found that prosecutors routinely submit a wide variety of

       readily-available evidence for this purpose, including but certainly not limited to

       copies of sentencing orders, case chronologies, plea agreements, testimony from

       prosecutors or others involved in or witness to the prior conviction, or

       transcripts from the convicting court’s proceedings. Id. In fact, Louisiana law

       provides that district court minutes may be used to prove a prior conviction.

       For example, in State v. Gullette, 975 So.2d 753, 764 (La. App. 2 Cir. 2008), to

       prove the defendant’s status as a habitual offender, the State introduced exhibits

       including a certified copy of the bill of information containing the defendant’s

       fingerprints, as well as copies of the district court minutes reflecting in part that the

       defendant was present with counsel and was informed of his rights.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019   Page 9 of 11
[18]   If the evidence yields 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, 766 N.E.2d at 718. The district court minutes showed that on

       “November 18, 2010” Backenstoes appeared in court at “9:00 [a.m.]” before a

       “District Judge.” (State’s Exh. 12). In the district court minutes, Backenstoes’

       date of birth is recorded as November 2, 1989. The minutes further state that

       Backenstoes was represented by a public defender, and that a “no contest” plea

       was entered following that charge. (State’s Exh. 12). Further, the minutes

       show that the district court accepted Backenstoes’ no-contest guilty plea and

       proceeded to sentence Backenstoes to “7 [y]ears” in the Louisiana “Department

       of Corrections.” (State’s Exh. 12). Detective Wigley then testified that when

       he interviewed Backenstoes at the station, Backenstoes offered his date of birth

       as November 2, 1989. Backenstoes later admitted to shooting shotguns and

       several rifles at Travis’ and Debbie’s compound in 2017.


[19]   Looking at the evidence presented, the jury was provided with circumstantial

       evidence of Backenstoes’ identity as one and the same person who was

       convicted of a prior burglary conviction in Louisiana in 2010. Thus, we

       conclude the State presented sufficient evidence of probative value from which

       the jury could have found Backenstoes had a prior Louisiana burglary

       conviction that would make him a SVF. Accordingly, we affirm Backenstoes’

       conviction for possession of a firearm by a SVF as a Level 4 felony.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019   Page 10 of 11
                                             CONCLUSION
[20]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to convict Backenstoes for possession of a firearm

       by a SVF as a Level 4 felony.


[21]   Affirmed.


[22]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1297 | January 23, 2019   Page 11 of 11
