MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Oct 26 2017, 9:38 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
Jeffrey E. Kimmell                                       Curtis T. Hill, Jr.
Law Office of Jeff Kimmell                               Attorney General of Indiana
South Bend, Indiana
                                                         Katherine M. Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy C. Watkins,                                       October 26, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1706-CR-1405
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1612-F4-52



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1405 | October 26, 2017          Page 1 of 7
[1]   Jeremy Watkins (“Watkins”) appeals his conviction for Level 4 felony unlawful

      possession of a firearm, claiming the trial court abused its discretion when it

      admitted two photographs of Watkins holding a firearm during trial.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On November 8, 2016, Watkins spent the night at his friend Porsche

      Washington’s (“Washington”) home. Around 9:30 a.m. the next morning,

      Mishawaka Police Department Sergeant Ryan Corbett and Detective Kevin

      Will arrived at Washington’s home looking for Watkins. Once Washington

      admitted that Watkins was asleep upstairs in her bedroom, Sergeant Corbett

      escorted Washington and her three children outside. At this time, Detective

      Will noticed Watkins walking down the stairs, and he took Watkins into

      custody. Sergeant Corbett then received consent from Washington to search her

      home.


[4]   During the search, Sergeant Corbett lifted up a mattress and box spring in

      Washington’s bedroom where he found a hand gun. Detective Will sent the gun

      to the South Bend Police Department Crime Laboratory where it was tested for

      fingerprints. Two fingerprints were recovered from the ammunition clip. One

      was unidentifiable; however, the second matched Watkins’s right thumb.


[5]   On December 13, the State charged Watkins with Level 4 felony unlawful

      possession of a firearm. A jury trial commenced on April 25, 2017. During

      Detective Will’s testimony, the prosecutor introduced, and the trial court
      Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1405 | October 26, 2017   Page 2 of 7
      admitted over objection, two exhibits of a photograph from Watkins’s public

      Facebook profile showing him holding a firearm.1 The prosecutor asked

      Detective Will if the firearm in the photograph was consistent with the handgun

      recovered from under Washington’s bed, and he responded:


               Yes, sir. The barrel -- it’s tough to see in this photo. I took this
               image and enlarged it. We were able to pick out a little more of
               the details from this weapon, specifically the indentation here at
               the end of the slide. And when I did the full size photo,
               enlargement of this I laid this weapon on top of that photo and
               the tracing matched. It’s also -- it’s very hard to see. At the top
               edge of the photo where the muzzle of this weapon sticks out is
               fairly visible.


      Tr. p. 51 (errors in original).


[6]   The jury found Watkins guilty and he was sentenced to six years, with three

      years executed in St. Joseph County Community Corrections and three years

      suspended to probation. Watkins now appeals.




      1
        The exhibits are each of the same photograph; one is an enlarged copy. Ex. Vol., State’s Exs. 4–5. The
      photograph was uploaded to Facebook on October 22, 2016, eighteen days prior to the events underlying the
      instant offense. However, Watkins testified at trial that the photograph was taken “at least a year and a half,
      two years ago.” Tr. 86. Watkins also testified that the photograph depicts him holding a BB gun. Id. These
      discrepancies were for the jury to weigh, and on appeal we consider the evidence most favorable to the
      verdict. Ferrell v. State, 746 N.E.2d 48, 51 (Ind. 2001) (“It is for the trier of fact to resolve conflicts in the
      evidence and to decide which witnesses to believe or disbelieve.”); Burns v. State, 59 N.E.3d 323, 328 (Ind. Ct.
      App. 2016), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1405 | October 26, 2017               Page 3 of 7
                                     Discussion and Decision
[7]   Watkins claims that the trial court abused its discretion by admitting into

      evidence two photographs offered by the State depicting Watkins holding a

      firearm. Specifically, he argues that the photographs were not relevant and,

      even if relevant, their prejudicial impact substantially outweighed their

      probative value.

[8]   Trial courts have wide discretion in determining whether evidence is relevant,

      and whether the probative value of evidence is outweighed by the danger of

      unfair prejudice under Indiana Evidence Rule 403. Snow v. State, 77 N.E.3d

      173, 177 (Ind. 2017). Photographs depicting matters that a witness describes

      during testimony are generally admissible. Ewing v. State, 719 N.E.2d 1221,

      1225 (Ind. 1999). Like other evidence, photographic evidence falls within the

      sound discretion of the trial court, and we will only reverse for an abuse.

      McQueen v. State, 711 N.E.2d 503, 505 (Ind. 1999). A trial court abuses its

      discretion by ruling in a way clearly against the logic and effect of the facts and

      circumstances before it. Halliburton v. State, 1 N.E.3d 670, 675 (Ind. 2013).


[9]   Evidence is relevant if “it has any tendency to make a fact more or less probable

      than it would be without the evidence; and the fact is of consequence in

      determining the action.” Ind. Evidence Rule 401. Our supreme court recently

      explained that the standard for relevance “sets a low bar . . . and the trial court

      enjoys wide discretion in deciding whether that bar is cleared.” Snow, 77

      N.E.3d at 177 (internal citations and quotations omitted).


      Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1405 | October 26, 2017   Page 4 of 7
[10]   Watkins relies heavily on Wilson v. State to support his claim that the

       photographs here were not relevant. 770 N.E.2d 799 (Ind. 2002). In that case,

       Wilson retrieved a gun and fired it at two individuals driving by. Id. at 800. The

       passenger of the car died, and Wilson was charged with murder. Id. During

       Wilson’s jury trial, the court, over objection, admitted into evidence a

       photograph depicting Wilson brandishing various firearms. Id. at 801. The State

       argued that the photograph “was relevant because two shell casings recovered

       from the crime scene were fired from a 9-millimeter handgun, a weapon similar

       to the type of weapon that Wilson was brandishing in the photograph.” Id. Our

       supreme court disagreed with the State and held that the trial court erred in

       admitting the photograph for two reasons: (1) no weapon was introduced at

       trial, so there could be no comparison between the weapon in the photograph

       and the shell casings found at the crime scene; and (2) the evidence established

       that Wilson possessed the gun in the photograph two months before the

       murder. Id. at 802.


[11]   Here, the gun recovered from the scene was introduced into evidence. After

       Watkins objected to the admission of the photographs, the trial court explained,

       “If there is going to be some testimony that the characteristics of the firearm

       that he is possessing in this photo and the characteristics of the firearm

       recovered at the scene are similar, I think that makes the photograph relevant.”

       Tr. p. 48. Subsequently, Detective Will testified that the recovered firearm and

       the gun Watkins is holding in the disputed photographs were consistent based

       on several identifying marks. Detective Will elaborated, “when I did the full


       Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1405 | October 26, 2017   Page 5 of 7
       size photo, enlargement of this I laid this weapon on top of that photo and the

       tracing matched.” Tr. p. 51 (errors in original). Moreover, unlike in Wilson, the

       disputed photograph here was uploaded to Facebook just eighteen days prior to

       the instant offense.


[12]   The photographs, coupled with Detective Will’s testimony, tend to show that

       the firearm depicted and the firearm recovered from the scene are the same. Cf.

       Wilson, 770 N.E.2d at 802 (finding the photograph was irrelevant because there

       was no link between the evidence recovered at the scene and the firearm

       depicted in the disputed photograph). We therefore conclude that the

       photographs were relevant.


[13]   Watkins next argues that even if the photographs were relevant, they should

       have been excluded because “their probative value, if any, is substantially

       outweighed by the danger of unfair prejudice.” Appellant’s Br. at 11. He

       observes that the photographs “show him making an angry facial expression

       and flashing what most people would consider a gang sign.” Id. at 10.


[14]   Our supreme court has clarified that “evidence relevant under Rule 401 should

       nonetheless be excluded under Rule 403 when its risks—including unfair

       prejudice—substantially outweigh its relevance.” Snow, 77 N.E.3d at 178–79.

       The task of “evaluating whether the photographs’ probative value was

       substantially outweighed by the danger of unfair prejudice is a discretionary

       task best performed by the trial court.” Burns v. State, 59 N.E.3d 323, 328 (Ind.

       Ct. App. 2016), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1405 | October 26, 2017   Page 6 of 7
[15]   Here, the trial court recognized the potential prejudicial impact of the

       photographs stating, “I guess as we often say probative evidence is often

       prejudicial. But the weight of the issue of whether or not this is the same gun,

       that’s a decision for the jury to - - conclusion for the jury to engage in.” Tr. 48.

       We agree.


[16]   At trial, Watkins argued that the gun did not belong to him. Therefore, the

       photographs had significant probative value, as the jury heard testimony that

       the gun recovered from the scene and the gun Watkins is holding in the

       photograph had similar features. Moreover, Watkins facial expression in the

       photographs is innocuous, and no evidence presented indicates that a

       reasonable person would interpret his hand gestures in the photographs as gang

       signs. We decline to second-guess the trial court’s decision that the probative

       value of the photographs outweighed their prejudicial effect.


                                                 Conclusion
[17]   The trial court acted within its discretion when it admitted the two photographs

       after concluding that they were relevant, and that the danger of unfair prejudice

       did not substantially outweigh its probative value.


[18]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1405 | October 26, 2017   Page 7 of 7
