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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
Feb 18 2011, 10:20 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JEFFREY G. RAFF Deputy Public Defender Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MARJORIE LAWYER-SMITH Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MATTHEW A. FLORES, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 02A04-1007-CR-434

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-0911-FB-204

February 18, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Matthew A. Flores appeals his conviction, after a trial by jury, of unlawful possession of a firearm by a serious violent felon, a class B felony, and his sentence thereon. We affirm. ISSUES 1. Whether the trial court committed reversible error in its instructions to the jury. 2. Whether sufficient evidence supports the conviction. 3. Whether the sentence imposed is inappropriate. FACTS On the evening of November 7, 2009, Flores, Chandra Tennant,1 Cleveland Tennant, Latoya Wright, and Danielle Loraine went to Stines Tavern. When Cleveland became involved in a confrontation, Chandra and Elyshia Burdett went from Stines to Chandras home, where she retrieved a shotgun. Chandra placed the shotgun on the backseat of her pick-up truck. Subsequently, the group left Stines and went to Legends Sports Bar. After

several hours, the group left Legends and got into Chandras truck. Chandra drove through the parking lot, stopped, and Flores got out. In the meantime, Robert Wallace was exiting from Legends with his girlfriend and her daughter. As Wallace walked toward his car, Flores yelled at him, "[W]hatd you

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Chandra and Flores had three children together.

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say, fat boy?" (Tr. 78). Wallace responded that he had said nothing, and continued walking. Flores "got in his face" and said, "Whatd you say, you want to go?" Id. Wallace again responded that he had not said anything, and he saw that Flores held a shotgun "at his side." Id. Inside Legends, security guard Tyrone Fluker was informed that a man was in the parking lot pointing a gun. Fluker emerged from Legends and saw Flores "pointing his shotgun" at Wallace. Id. at 100. Fluker also saw Flores "rack a round," meaning "he loaded it," and "heard him say come on or something like that." Id. at 102. Fluker then saw "everybody just hit the ground, including Mr. Wallace," and heard Flores companions "telling him come on, the police coming." Id. at 104, 106. The group "fled the scene." Id. at 106. The police were called, and a dispatch was broadcast about "an armed party" having fled Legends, with a description of the pick-up truck and possible license plate number. Id. at 112. Officer Douglas Weaver saw the truck shortly thereafter and, with assisting officers, effected a stop. Chandra exited from the drivers seat; Flores from the passenger seat; and Cleveland, Latoya, and Danielle from the back seat. On the floor behind the passenger seat was a shotgun, loaded with a 12-gauge round. The shotgun barrel measured 16 1/8 inches long; the overall length of the shotgun was 28 inches. At the scene where the truck was stopped, Wallace, Fluker, Chandra, and Cleveland identified Flores as the man who had held the shotgun outside Legends earlier.

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On November 18, 2009, the State charged Flores with unlawful possession of a firearm by a serious violent felon, as a class B felony, and dealing in a sawed-off shotgun, as a class D felony. On June 2, 2010, the trial court held a jury trial, at which the above evidence was heard. The jury found Flores guilty on both counts,2 and the trial court entered judgment of conviction. At sentencing, on June 28, 2010, the trial court vacated the conviction on the second count on double jeopardy grounds. It found as "aggravating circumstances" Flores "juvenile and adult criminal record from 1999 to 2009," reciting the extensive listing of juvenile adjudications and adult convictions, and his numerous probation violations and parole revocations

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