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
Free access — add to your briefcase to read the full text and ask questions with AI
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