                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    September 1, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court



U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                       No. 05-3055
v.                                                  (District of K ansas)
                                               (D.C. No. 03-CR-10151-W EB)
M AURIC E FRANKLIN , JR.,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is, therefore,

ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I. Introduction

      Defendant-Appellant M aurice Franklin, Jr. was charged in a twenty-four

count Third Superseding Indictment with numerous robberies and related offenses

that occurred in Kansas between February 4, 2001 and M ay 8, 2003. Franklin

was tried and found guilty on ten counts, including three counts of robbery in

violation of the Hobbs Act, 18 U.S.C. § 1951; four counts of using or carrying a

firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §

924(c); two counts of unlawful possession of a firearm or ammunition by a

previously convicted felon, in violation of 18 U.S.C. § 922(g)(1); and carjacking,

in violation of 18 U.S.C. § 2119. He was sentenced in the United States District

C ourt for the D istrict of K ansas to imprisonment for a term of 1242 months. On

appeal, Franklin challenges the district court’s denial of his motion to suppress a

photo array identification and the sufficiency of the evidence supporting his

convictions. W e assert jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

II. Background

      Franklin’s convictions arose from four separate incidents. The first

occurred on the evening of M arch 9, 2002 in Independence, Kansas. A man with

a gun entered the Taco Inn restaurant, pulled a mask down over his face, and

directed a customer and two employees to empty the register and their pockets.

Immediately after the incident, Ryan Gilchrist, the sole customer at the Taco Inn

restaurant that evening, told police officers he did not see the perpetrator’s face,

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but could identify his voice and eyes. Gilchrist subsequently testified at trial,

however, that he did see the robber’s face before he pulled the mask down over

his head. Gilchrist also testified that approximately two years after the robbery,

police officers presented him with a photo array and he identified Franklin as the

perpetrator. Tabitha Easley, who was also at the Taco Inn restaurant on the night

of the robbery, did not identify the perpetrator when she was interviewed by

police after the crime. Later, however, Easley identified the robber as Franklin.

She testified at trial that she could see Franklin’s face through the black panty

hose he wore over his head and that she recognized him from high school. Easley

indicated she initially did not tell police officers Franklin was the perpetrator

because Franklin threatened to kill her if she identified him.

      The second incident occurred on the evening of M arch 11, 2002. A man

rang the doorbell at the residence of Julie and Robert Strain at 607 W est M aple in

Independence, Kansas. W hen M rs. Strain answered the door, the man, who was

wearing a mask and brandishing a gun, pushed his way into the residence and

demanded money. After the Strains complied by giving the man money and some

jew elry, he told M rs. Strain to remove her clothes. The man proceeded to

sexually assault M rs. Strain with the gun while her husband and two young

children watched. The man then directed M r. Strain to get the keys to his van.

Pointing the gun at M r. Strain, the man directed him to drive to Independence

High School. As they were driving into the parking lot of the high school, M r.

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Strain opened the door of the van, jumped out, and ran into the high school The

man followed M r. Strain and shot him in the leg before running away.

      At trial, M rs. Strain indicated the perpetrator was wearing a black, hooded

sweatshirt, navy or black pants, and a baseball cap. M r. Strain identified the

perpetrator as Franklin. M r. Strain indicated he had known Franklin for over

three years and first recognized him on the night of the incident by his voice. M r.

Strain informed several police officers that Franklin was the perpetrator

immediately after the incident. He also indicated Franklin called him “Rob,” a

nickname used by M r. Strain’s friends, while they were driving in the van.

      The government also presented testimony from M elvin Simpson, Jr.

Simpson testified that, shortly before the Strains were robbed, Franklin informed

Simpson that he was going to beat up M r. Strain. According to Simpson, Franklin

indicated Betty Kinsey had asked Franklin to beat up M r. Strain because of a fight

M r. Strain was having with Kinsey’s daughter over the custody of their child.

Simpson testified Franklin was wearing black pants and a blue sweatshirt that

evening when he dropped Franklin off less than a block from the Stain’s

residence. Simpson indicated he met Franklin approximately twenty minutes later

at a Jiffy M art two blocks away. At that time, Franklin told Simpson he had

robbed the Strains and made M rs. Strain take off her clothes. Independence

police detective Harry Smith, who interview ed Franklin on the night of the Strain

robbery, also testified. During the interview , Smith told Franklin that M r. Strain

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identified Franklin as the perpetrator. According to Smith, Franklin indicated he

had been told the perpetrator wore a mask. Smith testified that at that time, it was

not public knowledge that the perpetrator wore a mask. Smith also testified that

he told Franklin M r. Strain indicated the robber called him “Rob.” Smith told the

jury that Franklin accidentally responded, “I didn’t call him by his name.”

      The third incident took place at Braum’s Restaurant in Independence,

Kansas on April 30, 2003. The restaurant had closed for the evening, and Tiffany

Holt, an assistant manager, was in a back room counting money for the next

morning’s deposit. A man entered the room with a gun and demanded money.

Holt put cash, checks, receipts, and credit card slips into a grey bank bag bearing

a Bank of America logo and the terms “midday deposit.” Holt described the

perpetrator at trial as a black male w earing a blue flannel long-sleeved shirt,

white long johns wrapped around his face, and a white baseball cap.

      The government also presented testimony from Tamika Scott. On the

evening of the Braum’s Restaurant robbery, Scott was sitting on the stairs at the

Garden W alk Apartments, approximately three blocks from the restaurant. Scott

testified she heard sirens and then saw Franklin driving into the apartment

complex at a high rate of speed. She indicated Franklin jumped out of his car, ran

behind an apartment building, reappeared two minutes later, and then drove off in

his car. According to Scott, when Franklin arrived at the apartment complex, he

was wearing long blue jeans and when he reappeared from behind the building, he

                                          -5-
was wearing blue jean shorts. Independence police officer Rick Troutman

testified he subsequently found a grey bank bag with a Bank of America logo

behind the Garden W alk Apartments while working on another case. The bag

contained checks and receipts from Braum’s Restaurant.

      The final incident giving rise to Franklin’s convictions occurred on the

evening of M ay 8, 2003 at the Kentucky Fried Chicken (“KFC”) in Coffeyville,

Kansas. A masked man with a gun entered the back of the restaurant and told

employees to lay down on the floor. He then took the assistant manager, Jessie

Payton, to the front of the store to empty the registers and open the safe. Payton

did as he was told, placing the money into a bag with a KFC logo. W hile the man

was at the front of the restaurant, one of the employees exited out the back and

ran to an adjacent building to call police.

      W hile the robbery was in progress, Coffeyville police officer Chad Newby

was in the vicinity of the KFC. After receiving a call from dispatch advising him

of the robbery, Officer Newby positioned his patrol car in an alley within view of

the KFC. Officer Newby subsequently witnessed a black male w earing a white

shirt over his head exit the KFC and begin running. Officer Newby saw a fellow

officer, Tommy Stewart, begin chasing the suspect in his car further down the

street. Officer Stewart followed the suspect until he was apprehended by other

officers on foot. At trial, Officer Stew art testified he only lost eye contact with




                                          -6-
the suspect for a few seconds during the chase. The apprehended suspect was

identified as Franklin.

      Several of the employees working at KFC on the night of the robbery

testified at trial. They described the perpetrator as a black male with tattoos on

his right arm and indicated he was w earing a black football jersey and a white

cloth or tank top over his head. Although none of the employees w as asked to

identify Franklin as the perpetrator, several identified the black jersey Franklin

was wearing when apprehended by police and his tattoos as belonging to the

perpetrator of the robbery. Additionally, Payton identified the bag Franklin

dropped while fleeing from police as the bag he filled with money during the

robbery.

III. Discussion

      A. Photo Array Identification

      Franklin argues the district court erred in refusing to suppress Ryan

Gilchrist’s photo array identification of Franklin as the perpetrator of the Taco

Inn restaurant robbery. In considering a denial of a motion to suppress a photo

array identification, we review the district court’s underlying factual findings for

clear error and the ultimate question of whether the identification infringed due

process rights de novo. United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir.

1994). W hen the constitutionality of a photo array is challenged under the due

process clause, this court applies a tw o-pronged test. Id. at 1261. W e first

                                          -7-
determine whether the photo array was impermissibly suggestive, considering

such factors as the size of the array, the manner of its presentation by the officers,

and the details of the photographs themselves. Id. at 1262. If the photo array is

impermissibly suggestive, we determine w hether the identification is nevertheless

reliable under the totality of the circumstances. Id. Factors to consider include

      the opportunity of the witness to view the criminal at the time of the
      crime, the w itness’ degree of attention, the accuracy of the witness’
      prior description of the criminal, the level of certainty demonstrated
      by the witness at the confrontation, and the length of time between
      the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199–200 (1972). “These two prongs must be

analyzed separately, and it is only necessary to reach the second prong if the court

first determines that the array was impermissibly suggestive.” Sanchez, 24 F.3d

at 1262.

      The district court held an evidentiary hearing on Franklin’s motion to

suppress the identification. The district court made the following findings of fact:

Franklin was suspected in connection with a robbery in Topeka, Kansas. Police

in Topeka asked Detective Smith to compile a photographic array to present to

witnesses of the robbery. Smith used computer software to generate photographs

of individuals w ith characteristics similar to Franklin. Smith then manually

narrowed the twenty to forty photographs selected by the computer to five that

looked similar to Franklin. The array Smith compiled contained photographs of

six, relatively young, black males with similar characteristics including height

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and weight, short hair, and a mustache. All of the individuals w ere dressed in

casual street clothes, and the background of each photograph was the same.

Subsequently, Special Agent Jim Carlson of the Bureau of Alcohol, Tobacco, and

Firearms presented the photo array to Ryan Gilchrist. Before he was presented

with the array, Gilchrist was asked to read and sign an admonition form, which

indicated he should not assume the perpetrator’s photograph is included in the

array. Gilchrist selected Franklin’s photograph as that of the individual who

robbed the Taco Inn restaurant.

      After an independent review of the testimony given at the evidentiary

hearing and the photo array, we conclude the district court’s factual findings were

not clearly erroneous. Further, because the individuals pictured in the array had

similar characteristics and the array was not presented in a manner that would

influence Gilchrist’s identification, the array was not impermissibly suggestive. 1

W e therefore affirm the district court’s denial of Franklin’s motion to suppress

the photo array identification.

      1
         Franklin argues the identification should not have been admitted because it
was made two years after commission of the crime and after Gilchrist viewed
newspaper articles containing Franklin’s photograph in connection with other
crimes. These factors, however, do not impact our analysis of whether the array
itself, or the manner of its presentation, was impermissibly suggestive. Instead,
they are only relevant in assessing whether an identification is reliable in spite of
an impermissibly suggestive array under the second prong of the applicable test.
See United States v. Wiseman, 172 F.3d 1196, 1210 (10th Cir. 1999). Because w e
conclude the array in this case was not impermissibly suggestive, we need not
reach the second prong. United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir.
1994).

                                         -9-
      B. Sufficiency of the Evidence

      Franklin also challenges the sufficiency of the evidence supporting his

convictions. Specifically, he contends the evidence presented identifying him as

the perpetrator of each of the robberies was insufficient. Franklin notes the

perpetrator wore a mask during each of the robberies and there was no DNA or

fingerprint evidence linking him to the crimes.

       In review ing the sufficiency of the evidence to support a conviction, we

review the record de novo to determine whether, viewing the evidence in the light

most favorable to the government, any rational trier of fact could have found the

defendant guilty beyond a reasonable doubt. United States v. Zunie, 444 F.3d

1230, 1233 (10th Cir. 2006). W e consider both direct and circumstantial

evidence, together w ith the reasonable inferences to be drawn therefrom. Id. W e

do not weigh conflicting evidence or consider the credibility of witnesses, but

instead must “accept the jury’s resolution of the evidence as long as it is w ithin

the bounds of reason.” Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998)

(quotations omitted).

      After reviewing the transcript of Franklin’s trial, we conclude the

government presented sufficient evidence to link Franklin to each of the four

incidents upon which his convictions are based. Two witnesses present during the

Taco Inn restaurant robbery identified Franklin as the perpetrator. Gilchrist

testified he saw Franklin’s face before he pulled the mask down over his head.

                                         -10-
Easley also identified Franklin, whom she had known in high school. Although

Easley initially told police officers she could not identify the perpetrator, she

explained her subsequent identification at trial by stating she was afraid to

identify Franklin because he threatened to kill her.

      A witness also identified Franklin as the perpetrator of the Strain robbery.

M r. Strain testified he had known Franklin for over three years and recognized

him as the perpetrator by his voice. Additionally, Simpson testified he dropped

Franklin off less than a block from the Strain’s residence on the night of the

incident after Franklin indicated he was going to beat up M r. Strain. According

to Simpson, when he saw Franklin later that evening, Franklin admitted to

robbing the Strains and making M rs. Strain take off her clothes. Finally, when

Detective Smith interview ed Franklin about the Strain incident and told him M r.

Strain indicated the perpetrator had called him “Rob,” Franklin responded, “I

didn’t call him by his name.”

      Although no witnesses identified Franklin as the perpetrator of the Braum’s

Restaurant robbery or the KFC robbery, the government presented sufficient

physical and circumstantial evidence to support the convictions arising from those

incidents as well. Holt, who was working at Braum’s Restaurant on the night of

the robbery, testified that she placed cash, checks, receipts, and credit card slips

into a grey bank bag bearing a Bank of America logo and handed it to the robber.

Scott testified that shortly after the Braum’s Restaurant robbery occurred, she

                                          -11-
witnessed Franklin drive into her apartment complex, change clothes behind the

apartments, and leave quickly. Officers subsequently found a grey bank bag

bearing a Bank of America logo behind the same apartment complex. The bag

contained checks and receipts from Braum’s Restaurant.

      Officer Newby testified to witnessing a black male exit the KFC shortly

after receiving a dispatch call regarding a robbery at that location. Police officers

followed the suspect, maintaining eye contact with him for all but a few seconds.

The suspect was eventually apprehended and identified as Franklin. Several KFC

employees subsequently identified the black jersey Franklin was wearing when

apprehended by police and his tattoos as those of the perpetrator of the KFC

robbery. Considering this evidence, a rational juror could have found Franklin

guilty of each offense of conviction beyond a reasonable doubt.

IV. Conclusion

      For the foregoing reasons, we AFFIRM Franklin’s convictions.

                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




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