Ricky D. Wessel v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 15, 2016
• Docket: 49A02-1601-CR-17
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jul 15 2016, 10:04 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 Lisa M. Johnson Gregory F. Zoeller Brownsburg, Indiana Attorney General of Indiana Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ricky D. Wessel, July 15, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1601-CR-17 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Peggy Hart, Appellee-Plaintiff. Commissioner Trial Court Cause No. 49G20-1502-F5-4730

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016 Page 1 of 10 Statement of the Case [1] Ricky Wessel (“Wessel”) appeals his conviction, following a jury trial, for Level

5 felony carrying a handgun without a license.1 Wessel contends that there was

insufficient evidence to support his conviction. Concluding that Wessel’s

contention is merely a request to reweigh the evidence, we affirm the

conviction.

[2] We affirm.

Issue Whether sufficient evidence supports Wessel’s conviction.

Facts [3] On February 6, 2015, at around 2:00 A.M., Indianapolis Metropolitan Police

Department (“IMPD”) Officer Erin Anderson (“Officer Anderson”) was

dispatched to the 2100 block of Lexington Avenue upon a report that two

Hispanic males were carrying handguns. Officer Anderson, in her fully-marked

police vehicle and police uniform, arrived at the location a few minutes after the

dispatch and saw two men walking east near Lexington Avenue. She later

identified one of the men as Wessel. Officer Anderson parked her vehicle

approximately ten to fifteen feet away from the men and shined her headlights

directly on the pair. Walking two to three feet apart, the men first stopped

when they saw Officer Anderson, but they then began walking towards her

1 IND. CODE § 35-47-2-1(a), (e)(2)(B).

Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016 Page 2 of 10 vehicle. Officer Anderson observed the men looking back at her, and then

Wessel, who had his hands down at his sides, dropping something from his

hand. (Tr. 30, 42). Based on the impact of the object, Officer Anderson “knew

it was something heavy.” (Tr. 40). Shortly thereafter, Officer Anderson exited

her car, asked the men what was going on, and began to approach them.

Officer Anderson further observed that Wessel was continuously looking back

at the object he had dropped. Wessel’s actions led Officer Anderson to be

concerned that the object was a weapon, and she requested backup.

[4] Shortly thereafter, Officer Bob Tyron arrived at the scene and stayed with the

men as Officer Anderson went to investigate the area where Wessel had

dropped the object. While searching the area with a flashlight, Officer

Anderson found a silver revolver with a brown handle. Officer Anderson did

not touch the weapon, but rather stood by it as she waited for an evidence

technician to recover it. It was later determined that Wessel did not have a

license to carry a handgun.

[5] The State charged Wessel with Count 1, carrying a handgun without a license,

as a Class A misdemeanor. The charge was further enhanced to Level 5 felony

carrying a handgun without a license based on the allegation that Wessel had

“previously been convicted of a felony within fifteen (15) years before the date

of this offense, that is: intimidation, a Class D felony.” (App. 24). A bifurcated

jury trial was held on November 17, 2015. During Phase I of the trial, Officer

Anderson testified as to the facts of the possession of a handgun without a

license charge. The State further introduced Exhibit 3, which Officer Anderson

Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016 Page 3 of 10 testified was the “firearm, the cylinder that goes in the firearm and [] the [eight]

live rounds that were in the firearm.” (Tr. 37). Officer Anderson testified that

the serial number on the weapon matched those she had recorded in her report

on the night of the offense. The jury found Wessel guilty of the Class A

misdemeanor charge.

[6] During Phase II of trial, Matthew Wiesjahm (“Wiesjahm”) of the IMPD

testified as a fingerprint analyst and keeper of records. Wiesjahm testified that

he had compared Wessel’s fingerprints created from his arrest in this case to the

thumbprint on a certified Officer’s Arrest Report (“OAR”) from Wessel’s 2004

felony intimidation arrest under the cause number ending in 142017. Wiesjahm

found that the two fingerprints were made by “one and the same person” whom

he identified as Ricky Wessel. (Tr. 90). The State further introduced Exhibit 6,

a certified Chronological Case Summary (“CCS”) which included an entry

showing that Wessel had been previously convicted in 2005 of Class C felony

intimidation under cause number 49G17-0408-FC-142017. At the conclusion

of the second phase of trial, the jury found Wessel guilty of Level 5 felony

carrying a handgun without a license based upon its determination that he had

a prior felony conviction within fifteen years of the current offense.

[7] On December 16, 2015, the trial court held a sentencing hearing. The trial

court imposed an executed four (4)-year sentence, two (2) years of which were

to be served with the Indiana Department of Correction and two (2) years in

Community Corrections. Wessel now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016 Page 4 of 10 Decision [8] Wessel argues that the State presented insufficient evidence to support his

conviction for Level 5 felony possession of a handgun without a license. He

challenges the evidence supporting the trial court’s conclusion that he possessed

a handgun and the evidence supporting his prior felony conviction

enhancement.

[9] In Drane v. State, 876 N.E.2d 144, 146-47 (Ind. 2007), our Indiana Supreme

Court stated our standard of review for a challenge to the sufficiency of the

evidence as follows:

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of the appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably in the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane, 876 N.E.2d at 146-47 (internal quotation marks and citations omitted)

(emphasis in original).

Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016 Page 5 of 10 [10] INDIANA CODE § 35-47-2-1(a) provides, in relevant part, that “a person shall

not carry a handgun . . . on or about the person’s body without being licensed

under this chapter to carry a handgun.” This statute provides that a person who

violates this provision commits a Class A misdemeanor. I.C. § 35-47-2-1(e).

However, the offense is a Level 5 felony . . . if the person . . . has been

convicted of a felony within fifteen (15) years before the date of the offense.”

See I.C. § 35-47-2-1(e)(2)(B). Thus, to convict Wessel of Level 5 carrying a

handgun without a license as charged, the State needed to prove beyond a

reasonable doubt that Wessel knowingly carried a handgun, did not have a

license to do so, and that he had been convicted of a prior felony within fifteen

years of the underlying offense.

[11] We address Wessel’s first challenge to his carrying a handgun without a license

conviction. Wessel admits that he dropped the object found by Officer

Anderson but argues that there was insufficient evidence to show that it was a

handgun. Specifically, Wessel argues that “the State’s sole witness did not test

fire the object, touch the object or closely examine it,” thereby failing to prove it

was capable of expelling a projectile by means of explosion. (Wessel’s Br. 12).

[12] The statutory definition of a handgun means any firearm:

(1) designed or adapted so as to be aimed and fired from one (1) hand, regardless of barrel length; or

(2) any firearm with;

(A) a barrel less than sixteen (16) inches in length; or

Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016 Page 6 of 10 (B) an average length of less than twenty-six (26) inches.

I.C. § 35-47-1-6. Under Indiana law, a firearm is “any weapon that is capable

of expelling, or designed to expel, or that may readily be converted to expel a

projectile by means of an explosion.” I.C. § 35-47-1-5.

[13] Contrary to Wessel’s assertion that the State failed to prove that the object he

dropped was a handgun, Indiana law does not require the State to prove the

gun was operable at the time. State v. Gibbs, 769 N.E.2d 594, 596-97 (Ind. Ct.

App. 2002), trans. denied. It is sufficient for the State to establish that the

handgun was designed to expel a projectile by means of explosion, rather than

actually and currently capable of doing so. Id. (citing Manley v. State, 656

N.E.2d 277, 279 (Ind. Ct. App. 1995), trans. denied). The objective behind our

Court’s interpretation of the possession of a handgun without a license statute

likely reflects our legislature’s recognition that a firearm is inherently

dangerous, even if inoperable or unloaded, because firearms can create a

substantial risk of harm to others. Id.

[14] Here, the State presented sufficient evidence showing that Wessel had

possession of a handgun, which was capable of expelling a projectile, without a

license. The State introduced the gun into evidence with no objections.

Moreover, Officer Anderson, an eight-year IMPD veteran, specifically

identified that the object that Wessel had dropped as a firearm. The evidence

introduced also contained the cylinder of the firearm necessary to expel the live

rounds that were in the firearm. Wessel’s contention that the State failed to

prove beyond a reasonable doubt that the object in question was a handgun is Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016 Page 7 of 10 merely a request for this Court to reweigh the evidence presented at trial, which

we will not do. See Drane, 876 N.E.2d at 146.

[15] As for Wessel’s prior felony conviction challenge, he argues that the documents

presented by the State were insufficient to support the prior felony enhancement

of his possession of a handgun without a license conviction. When reviewing

the issue of insufficient evidence to support a prior felony conviction, we must

consider only evidence with substantial probative value. Dexter v. State, 959

N.E.2d 235, 239 (Ind. 2012). Our Indiana Supreme Court has held that:

Certified copies of judgements or commitments containing a defendant’s name or a similar name may be introduced to prove the commission of prior offenses. While there must be supporting evidence to identify the defendant as the person named in the documents, the evidence may be circumstantial. If the evidence yields a logical and reasonable inferences from which the finder of fact may determine beyond a reasonable doubt that it was a defendant who was convicted of the prior felony, then a sufficient connection has been shown.

Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002) (internal citations omitted.).

Furthermore, we have explained that when proving a prior conviction, “[t]he

issue is proof beyond a reasonable doubt, and that proof may be achieved by the

use of any properly admissible evidence sufficient to establish the ultimate fact.”

Grant v. State, 870 N.E.2d 1049, 1051 (Ind. Ct. App. 2007), trans. denied.

[16] Contrary to Wessel’s assertion, the evidence presented at trial was sufficient to

support his prior felony conviction enhancement. Here, the State introduced a

thumbprint identification card produced by Wiesjahm, as well as a certified Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016 Page 8 of 10 thumbprint on OAR from Wessel’s 2004 arrest with the cause number ending

in 142017. The OAR included Wessel’s name and date of birth. The State also

introduced a certified CCS with cause number 49G17-0408-FC-142017, which

contained an entry showing that Wessel had been convicted of Class C felony

intimidation in 2005. The CCS included Wessel’s name and date of birth,

which matched the name and date of birth identifying Wessel in the OAR.

Additionally, Wiesjahm, who testified as a fingerprint analyst, compared the

two documents and determined that the thumbprints were from the same

person.

[17] Wessel cites to Dexter and Abdullah v. State, 847 N.E.2d 1031 (Ind. Ct. App.

2006) to support his claim that the certified CCS and other documents were not

sufficient to show that he had a prior felony conviction. Dexter, 959 N.E.2d at

235. These cases, however, do not support his contention. Wessel

misinterprets the case law from Abdullah, which provides that beside an entry of

judgment under Trial Rule 58, “there are numerous other means by which the

State may elect to prove a prior conviction[,] . . . including . . . case

chronologies.” Abdullah, 847 N.E.2d at 1034. Furthermore, Dexter is clearly

distinguishable from the present case. In that case, the State tried to prove a

prior conviction by presenting an unsigned abstract of judgment and a “Rules of

Probation” form, which merely stated the terms of probation. Here, however,

that State presented a certified copy of a CCS, which included Wessel’s

identifying information and information regarding his prior felony conviction.

Our Indiana Trial Rules state that a CCS is an official record of the court. See

Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-17| July 15, 2016 Page 9 of 10 T.R. 77(B). With certified copies of Wessel’s CCS and OAR, and the

identification testimony from Wiesjahm, a reasonable jury could find, beyond a

reasonable doubt, that Wessel was the same person convicted of a prior felony

within fifteen years of the underlying conviction. See e.g. Grant, 870 N.E.2d at

1051 (finding fingerprint evidence from arrest reports and CCS “gallery

numbers” from prior felony convictions presented at trial sufficient to support a

prior felony conviction). Accordingly, we affirm Wessel’s Level 5 felony

possession of a handgun without a license conviction. 2

[18] We affirm.

Kirsch, J., and Riley, J., concur.

2 We note that Wessel’s suggestion that his due process rights were violated under the U.S. and Indiana Constitution is waived because he makes no cogent argument or citation to any authority. See Ind. App R. 46(A)(8)(a).

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