Preview:

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.

FILED
Dec 23 2008, 8:48 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: BRUCE N. ELLIOTT Marion, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MARJORIE LAWYER-SMITH Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
LARRY L. MARTIN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 27A02-0807-CR-605

APPEAL FROM THE GRANT SUPERIOR COURT The Honorable Jeffrey D. Todd, Judge Cause No. 27D01-0602-FB-38

December 23, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Larry L. Martin appeals his conviction for Possession of a Firearm by a Serious Violent Felon, a Class B felony, following a jury trial.1 Martin raises one issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We affirm. FACTS AND PROCEDURAL HISTORY On February 21, 2006, Janet Barron asked Martin to take her car to a shop in Fort Wayne and have the brakes checked. Barron was the last person inside her car before Martin took it. She did not leave any personal items in the car. She did not have any bags, firearms, or marijuana in the car. Later that evening, Officer Nathan McBee of the Marion Police Department initiated a traffic stop of Barron's car for nonworking taillights. Martin was driving the car and was accompanied by a male passenger, who sat next to Martin in the front of the vehicle. Martin informed Officer McBee that his driver's license was currently

suspended, which Officer McBee subsequently confirmed. Officer McBee noticed the smell of both burnt and raw marijuana inside the vehicle, and he saw a large duffel bag on the rear floorboard that contained "a greenish-brown leafy substance." Transcript at 144. That substance field tested positive for marijuana, and Martin later admitted the bag belonged to him. Officer McBee arrested Martin for driving with a suspended license. Officer McBee then performed a search of the driver's area incident to that arrest and locate d a

1

Martin does not appeal his other convictions or his sentence.

2

.380 caliber silver handgun in a black nylon holster under the driver's seat. At no point had Martin displayed "furtive movements or gestures" toward the firearm. Id. at 161-62. Because Martin's passenger also did not have a valid license, Officer McBee had Barron's vehicle towed. On February 23, the State charged Martin with possession of a firearm by a serious violent felon, a Class B felony, along with multiple drug charges. At his

subsequent trial, Martin introduced the affidavit of Marlin J. Hill, who claimed to have left the .380 caliber handgun underneath the driver's seat of Barron's vehicle after having cleaned that vehicle for Barron in February of 2006. A jury found Martin guilty of the Class B felony and two drug-related misdemeanors. The trial court sentenced Martin to an aggregate term of ten years, with two years suspended to formal probation. This appeal ensued. DISCUSSION AND DECISION Martin argues that the State did not present sufficient evidence that he was a serious violent felon who knowingly or intentionally possessed a firearm. When

reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the judgment and the reasonable inferences that may be drawn from that evidence to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id.
3

To prove that Martin possessed a firearm here, the State was required to prove beyond a reasonable doubt that Martin was "[a] serious violent felon who knowingly or intentionally possesse[d] a firearm." Ind. Code

Download Larry L. Martin v. State of Indiana.pdf

Indiana Law