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

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.
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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).
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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
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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.
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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).
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[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
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(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
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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
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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
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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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