MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Oct 10 2018, 10:23 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Franklin,                                          October 10, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-966
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G21-1706-F4-23873



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-966 | October 10, 2018               Page 1 of 6
[1]   Brian Franklin appeals his conviction for Level 4 felony unlawful possession of

      a firearm by a serious violent felon. His sole argument is that the State failed to

      present sufficient evidence that he possessed the firearm in question.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On the afternoon of June 26, 2017, Harry Watkins was in his Indianapolis

      home with his wife, their two young children, and his brother Chris, who all

      lived with Watkins. Franklin, who was Watkins’s nephew, came to the home

      looking for a ride. He eventually stayed to visit and had dinner with the family.

      After dinner, Franklin went onto the front porch to smoke a cigarette.


[4]   Franklin had an active warrant for his arrest, and Sergeant Alex Nuetzel with

      the Marion County Sheriff’s Office was tasked that evening with apprehending

      Franklin. Sergeant Nuetzel was driving an unmarked black Dodge Charger

      when he saw Franklin on Watkins’s front porch. Franklin noticed the vehicle

      and immediately put his hand over his face to avoid being detected. Franklin

      then quickly stood up, ran into the house, and slammed the front door, as

      Sergeant Nuetzel and another officer yelled, “stop, it’s police, don’t run in the

      house, don’t close the door.” Transcript at 37. Another officer secured the back

      of the house, while Sergeant Nuetzel and others approached the front. After

      abruptly entering the house, Franklin ran past his family members and toward

      the back of the house.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-966 | October 10, 2018   Page 2 of 6
[5]   Watkins went out the front door to speak with the police, as his wife took care

      of the children and Chris stood inside the door holding onto the family’s very

      large dog that would not calm down. Watkins identified Franklin as the man

      who had just entered the house, and the officers indicated that they had a

      warrant for Franklin’s arrest. Watkins immediately allowed the officers into the

      home to search for Franklin. Additionally, Watkins accurately informed them

      of the location of his own guns, all but one of which were stored in gun safes.

      The other was a 9 mm pistol in a holster on the top of a tall dresser in his room,

      out of reach of the children. Officers secured both exits, as Watkins’s wife and

      children came out the front door and Chris went out the back door with the

      dog. The officers then allowed Chris to bring the dog around to the front yard,

      while the search inside the house continued.


[6]   Officers entered the home and cleared the main two floors. Watkins’s guns

      were located in the areas that he had described inside the home. Additionally,

      a Springfield XD 40 semi-automatic pistol was discovered inside a clothes

      dryer. The dryer was located just inside a utility room in the back of the house

      and directly across from the entrance to the basement, which was about three to

      five feet away. The door to the utility room generally remained open.


[7]   A K-9 officer was brought in to search the basement when officers could not

      locate Franklin elsewhere in the house. The K-9 discovered Franklin in a crawl

      space in the basement, and Franklin was placed under arrest. He had small

      amounts of Xanax and heroin in the pocket of his sweatpants. Franklin was a

      serious violent felon (SVF) and not permitted to possess a firearm.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-966 | October 10, 2018   Page 3 of 6
[8]    On June 28, 2017, the State charged Franklin with Level 4 felony possession of

       a firearm by a SVF (Count I), Level 5 felony possession of a narcotic drug

       (Count II), and Level 6 felony possession of a controlled substance (Count III).

       Franklin waived his right to a jury trial, and the bench trial was held on

       February 26, 2018. Franklin testified in his own defense and denied possessing

       the pistol or placing it in the dryer on the way to the basement. The trial court

       found Franklin guilty as charged. At the sentencing hearing on March 23,

       2018, the trial court reduced Count II to a Level 6 felony and Count III to a

       Class A misdemeanor, apparently due to double jeopardy concerns. The trial

       court sentenced Franklin to twelve years executed in prison for Count I and one

       year for each of Counts II and III. Counts II and III were ordered to be served

       concurrent to each other and consecutive to Count I. Franklin now appeals,

       challenging only his conviction for Count I.


                                           Discussion & Decision


[9]    Franklin contends that the State failed to present sufficient evidence that he

       committed possession of a firearm by a SVF. He does not dispute that he is a

       SVF, only that he possessed the gun found in the dryer at Watkins’s residence.


[10]   When we consider a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,

       51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

       reasonable inferences supporting the conviction. Id. We will affirm if there is

       probative evidence from which a reasonable trier of fact could have found the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-966 | October 10, 2018   Page 4 of 6
       defendant guilty beyond a reasonable doubt. Id. The evidence need not

       overcome every reasonable hypothesis of innocence. Craig v. State, 730 N.E.2d

       1262, 1266 (Ind. 2000). It is enough that an inference may be drawn from the

       circumstantial evidence that supports the conviction. Id.


[11]   Franklin argues that no one saw him with a gun on the day in question and that

       he was not seen placing anything in the dryer before fleeing to the basement.

       He also notes that Chris exited the rear of the house with the dog after the

       police arrived and was, therefore, near the dryer prior to the gun being

       discovered.1 Additionally, Franklin queries why he would have only put the

       gun in the dryer and not also the drugs in his pocket. All of these arguments

       were made to the trial court.


[12]   After hearing the evidence, including Franklin’s denial, the trial court found

       him guilty of possession of a firearm by a SVF. Specifically, the trial court

       noted that it was unpersuaded by the argument that the gun might have

       belonged to Chris. The court continued, “I think there’s one reasonable

       interpretation out of the evidence, and that is that Mr. Franklin did possess the

       firearm prior to escaping to the basement.” Transcript at 71.


[13]   The evidence establishes that, while visiting his family, Franklin was aware that

       there was an active warrant out for his arrest. When he believed he had been

       spotted by the police while on the front porch, he covered his face and quickly



       1
           Chris did not testify at the bench trial and was not subpoenaed by Franklin.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-966 | October 10, 2018    Page 5 of 6
       entered the home as the officers yelled for him to stop. After entering and

       slamming the front door, Franklin ran past his family members in the front

       room and toward the back of the house. Watkins immediately dealt with the

       officers and granted them permission to search the home. During this time,

       Chris held onto the family’s very large dog, which would not settle down during

       the commotion. The officers then cleared the home of occupants, with

       Watkins’s wife and children leaving through the front door and Chris taking the

       dog out the back door. Officers were covering both the front and back of the

       house at the time. Thereafter, Franklin was discovered hiding in a crawl space

       in the basement. The evidence establishes that Franklin would have passed the

       open utility room and been within three feet of the dryer as he ran to the

       basement. The gun, which did not belong to Watkins, was found inside the

       dryer, an unusual location for a gun. Based on this evidence, the trial court

       could reasonably infer that Watkins possessed the gun and then quickly

       discarded it inside the dryer as he fled to the basement. We reject the invitation

       to reweigh the evidence, as sufficient evidence supports the conviction.


[14]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-966 | October 10, 2018   Page 6 of 6
