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
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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