MEMORANDUM DECISION
                                                            Jun 19 2015, 8:58 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Jay Rodia                                              Gregory F. Zoeller
Indianapolis, Indiana                                  Attorney General of Indiana
                                                       Katherine Modesitt Cooper
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Frank Rhodes,                                              June 19, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1411-CR-788

        v.                                                 Appeal from the Marion Superior
                                                           Court
                                                           The Honorable Steven R. Eichholtz,
State of Indiana,                                          Judge
Appellee-Plaintiff                                         The Honorable Peggy Ryan Hart,
                                                           Commissioner
                                                           Trial Court Cause No. 49G20-1312-
                                                           FB-79720




Bradford, Judge.



                                      Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-788 |June 19, 2015       Page 1 of 6
[1]   Indianapolis police responded to a 911 call placed by Arnetta Johnson and

      found Appellant-Defendant Frank Rhodes on the front porch. Johnson told

      police that Rhodes, who has a previous conviction for voluntary manslaughter,

      had held a gun to her head. Although a pat-down of Rhodes did not uncover a

      firearm, two loaded firearms were found in the front yard near the porch where

      Rhodes had been when police arrived. Plaintiff-Appellee the State of Indiana

      (“the State”) charged Rhodes with, inter alia, Class B felony possession of a

      firearm by a serious violent felon (“SVF”). After a jury found Rhodes guilty of

      SVF, the trial court sentenced him to fifteen years of incarceration. Rhodes

      contends that the State failed to produce sufficient evidence to sustain his

      conviction and that his sentence in inappropriately harsh. We affirm.



                            Facts and Procedural History
[2]   Early on December 17, 2013, Johnson called 911 from her Marion County

      home, reporting that Rhodes had assaulted her and that “he has guns[.]”

      State’s Ex. 2. Indianapolis Metropolitan Police Officer Michael Leeper

      responded and found Rhodes standing outside on the front porch. Rhodes

      quickly went back inside, and Officer Leeper followed him, finding Rhodes in

      the living room. Based on information received from dispatch, Officer Leeper

      performed a pat-down on Rhodes for weapons, finding none.


[3]   Meanwhile, Johnson had emerged from a back room, visibly distraught.

      Johnson told Officer Leeper that Rhodes had held a gun to her head, which

      prompted Officer Leeper to sweep the residence. Officer Leeper stepped back

      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-788 |June 19, 2015   Page 2 of 6
      onto the front porch and shone his flashlight into the front yard, where he

      noticed two loaded handguns near the porch lying on top of the snow.

      Rhodes’s DNA was found on one of the guns’ magazines and on a cartridge

      recovered from one of the guns.


[4]   On December 24, 2013, the State charged Rhodes with Class B felony SVF,

      Class C felony intimidation, Class A misdemeanor domestic battery, and Class

      A misdemeanor battery. On September 16, 2014, a jury found Rhodes guilty of

      SVF. On October 15, 2014, the trial court sentenced Rhodes to fifteen years of

      incarceration. The trial court identified Rhodes’s criminal history to be an

      aggravating circumstance and found no mitigating circumstances. Rhodes

      contends that the State produced insufficient evidence to sustain his SVF

      conviction and that his sentence is inappropriately harsh.


                                 Discussion and Decision
                              I. Sufficiency of the Evidence
[5]   Rhodes contends that the State failed to produce sufficient evidence to sustain

      his conviction. When reviewing the sufficiency of the evidence, we neither

      weigh the evidence nor resolve questions of credibility. Jordan v. State, 656

      N.E.2d 816, 817 (Ind. 1995). We look only to the evidence of probative value

      and the reasonable inferences to be drawn therefrom which support the verdict.

      Id. If from that viewpoint there is evidence of probative value from which a

      reasonable trier of fact could conclude that the defendant was guilty beyond a



      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-788 |June 19, 2015   Page 3 of 6
      reasonable doubt, we will affirm the conviction. Spangler v. State, 607 N.E.2d

      720, 724 (Ind. 1993).


[6]   Pursuant to the relevant version of Indiana Code section 35-47-4-5, “[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.”

      Rhodes stipulated to having a prior conviction for voluntary manslaughter,

      qualifying him as a “serious violent felon” for purposes of Indiana Code section

      35-47-4-5. Rhodes argues only that the State failed to prove that he possessed a

      firearm. Possession of contraband can be actual or constructive: “Actual

      possession occurs when a person has direct physical control over the item [and

      c]onstructive possession occurs when somebody has ‘the intent and capability

      to maintain dominion and control over the item.’” Henderson v. State, 715

      N.E.2d 833, 835 (Ind. 1999) (citation omitted).


[7]   Rhodes essentially argues that the State failed to prove that he constructively

      possessed a firearm, focusing on the fact that none of his fingerprints were

      found on the handguns found in the front yard and his DNA was found on

      neither gun body. Rhodes’s argument is fatally undercut, however, by its

      failure to take into account that the State produced evidence of actual possession

      of a firearm, in the form of Johnson’s statement to Officer Leeper. Johnson’s

      statement that Rhodes held a gun to her head is more than sufficient to sustain

      a finding that he possessed a firearm.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-788 |June 19, 2015   Page 4 of 6
                             II. Appropriateness of Sentence
[8]    We “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Ind.

       Appellate Rule 7(B). “Although appellate review of sentences must give due

       consideration to the trial court’s sentence because of the special expertise of the

       trial bench in making sentencing decisions, Appellate Rule 7(B) is an

       authorization to revise sentences when certain broad conditions are satisfied.”

       Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

       and quotation marks omitted). As previously mentioned, the trial court

       sentenced Rhodes to fifteen years of incarceration for Class B felony SVF. The

       sentencing range for a Class B felony is six to twenty years, with an advisory of

       ten years. Ind. Code § 35-50-2-5.


[9]    The nature of Rhodes’s offense justifies an enhanced sentence. By virtue of his

       previous conviction for voluntary manslaughter, it was illegal for Rhodes to

       even possess a firearm. Rhodes did much more than just possess a firearm,

       however; he held a loaded gun to Johnson’s head, causing her to be visibly

       distraught. The nature of Rhodes’s offense justifies an enhanced sentence.


[10]   Rhodes’s character also justifies his enhanced sentence. Rhodes has an

       extensive criminal history, including multiple arrests and previous convictions

       for five misdemeanors and two felonies. Rhodes has prior misdemeanor

       convictions for battery, resisting law enforcement, disorderly conduct, public


       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-788 |June 19, 2015   Page 5 of 6
       intoxication, and carrying a handgun without a license and felony convictions

       for theft and voluntary manslaughter.


[11]   Rhodes argues that his health issues, his difficult upbringing, the rekindling of

       his relationship with Johnson, her lack of physical injuries, and his alcohol

       abuse warrant a reduction in his sentence. The trial court was under no

       obligation to credit this self-serving evidence, however. In any event, Rhodes

       offers no real reason why any of the above would justify a reduced sentence. If

       anything, Rhodes’s self-reported daily habit of “drink[ing] as much [gin] as he

       has available[,]” despite recognizing that he has a problem, reflects poorly on

       his character. PSI p. 9. Rhodes, born in 1969, has had ample opportunity to

       seek help for his substance abuse and better himself, but has amassed an

       extensive criminal history instead. In light of the nature of his offense and his

       character, Rhodes has failed to establish that his fifteen-year sentence is

       inappropriate.


[12]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-788 |June 19, 2015   Page 6 of 6
